AAI Limited t/as GIO v Radhi
[2023] NSWPICMP 591
•15 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Radhi [2023] NSWPICMP 591 |
| CLAIMANT: | Esam Radhi |
| INSURER: | GIO |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 15 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – MOTOR ACCIDENT INJURIES ACT 2017; Threshold injury; certificate under section 7.23(1); Review Panel for determination under section 7.26; pre-accident radiological investigations; collision with driver’s side of car; kyphotic appearance; neurological examination normal; no signs of radiculopathy; threshold injury not a direct measure of symptoms or disability; soft tissue injury, cervical and lumbar spine; Held – certificate of Medical Assessor Assem revoked. |
| DETERMINATIONS MADE: | Review Panel Assessment – Threshold Injury The Review Panel revokes the certificate of Medical Assessor Mohammed Assem dated 28 April 2023 and issues a new certificate determining that the following injuries were caused by the motor accident: · Lumbar spine injury · Soft tissue injury · Left shoulder soft tissue injury · Left elbow soft tissue injury · Cervical spine soft tissue injury are THRESHOLD INJURIES for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
The Medical assessment conducted by Mohammed Assem dated 28 April 2023 was referred to this Review Panel for determination under s 7.26 of the Motor Accident Injuries Act 2017 (the Act).
That certificate considered the injuries sustained by the claimant in the motor vehicle accident on 19 February 2021 and found that the injuries sustained to the claimant’s lumbar spine, left shoulder and left elbow were all soft tissue injuries and were threshold injuries for the purposes of the Act. The certificate found that the injury caused by the motor vehicle accident to the claimant’s cervical spine is not a threshold injury for the purposes of the Act.
The claimant’s lodged submission opposing the insurer’s application for a review in respect to the threshold injury.
On 27 July 2023 the President’s delegate allowed the claimant’s application to admit late documents in respect to the insurer’s application. Thereafter the President in a decision dated 31 July 2023 and the President’s delegate determined the review application is accepted and the matter was referred to a Review Panel.
On 5 October 2023 the Panel conducted a telephone conference in respect to this matter. Thereafter it was determined that the Panel would require a further assessment of the claimant and this was arranged as an in person assessment conference with Medical Assessor Moloney at 3.00pm on 25 October 2023.
The Review Panel considered all aspects of the assessment under review. That is, the cervical spine, lumbar spine and upper limbs. All material which had been provided in the original application for assessment of threshold injury and considered by Medical Assessor Assem was before the Panel.
Mr Radhi attended the medical suites at the Personal Injury Commission (Commission) on 25 October 2023. An interpreter, Elias Zakharia, NAATI No. CPN1RP72A was present during the entire examination and interview.
Pre-accident history
Mr Radhi stated that he migrated from Iraq in 2002. At the time of the accident, he was living with his wife and three children but states that following the accident his wife and children have separated from him. At present he lives with his sister.
Mr Radhi was unemployed at the time of the accident and stated that he had been on Newstart allowance from Centrelink for six or seven years prior to the accident. During that time, he stated that he had gone to one job in a butcher shop but found the work too strenuous. He stated he had had no injuries prior to this accident and denies having any radiological investigations to the cervical and lumbar spines despite these being recorded in his medical records. He also denies consulting his GP, Dr Guirgis for a sore neck and back 10 days before the accident.
History of motor accident
On 19 February 2021, Mr Radhi was driving his car when a car suddenly turned in front of him colliding with the driver side of his car. He was wearing a seatbelt at the time but airbags were not deployed. He states that he bumped his head on the mirror and to explain an injury to the left shoulder and elbow, states he twisted around with the impact. The police and ambulance attended the scene of the accident and he states that his car was towed away and was later written off.
Subsequent history and investigations
Mr Radhi attended Fairfield Hospital on 23 February 2021 and complained of neck pain. He was investigated with a CT scan of the cervical spine and discharged. On 8 March 2021 he consulted his GP, Dr Guirgis. She referred him for physiotherapy and prescribed analgesics. He states that physiotherapy was of no benefit. He states that since the accident he has not been referred to any specialist and no injections have been ordered. Recently, Mr Radhi change to another GP, Dr Almansun.
Mr Radhi states that he has had no further accidents or injuries to those assessed today.
Current symptoms
There is a constant pain in the neck associated with stiffness which radiates down his back to the base of the lumbar spine. There was also radiation of pain from the neck to the left elbow and occasionally to the left hand and fingers. He keeps the left arm flexion of the elbow for pain relief.
There is a constant severe low back pain which radiates into the right leg and occasionally causes shaking of the leg. This right leg pain is in a global distribution radiating to the level of his foot. The left leg is asymptomatic and the right upper limb is asymptomatic.
He no longer drives and is able to walk short distances.
Current treatment
At present, he takes Lyrica and Panadol osteo and ceased tramadol due to side-effects. He can’t remember the exact doses. He attended a physiotherapist on a fortnightly basis which is funded by the insurer. He consults his GP when needed but has no specialist appointments.
Clinical examination
Mr Radhi walked in with a slow cautious gait with his left arm flexed at the elbow. He states that he is right-handed and sat with a depressed facial appearance throughout the interview and examination. His height was measured at 174cm and weight 71kg.
Cervical spine
On inspection, there was a kyphotic appearance particularly over the upper thoracic spine. On testing range of movement, flexion/extension was 40% of expected range, side bending and rotation was 50% of expected range with no asymmetry noted. On palpation there was tenderness over all the paravertebral cervical muscles and bilaterally over the sternocleidomastoid muscles. He was also tender over both trapezius muscles but no guarding or spasm was noted in the cervical musculature.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and there was a global decrease in sensation over the entire left arm including the hands and fingers. On strength testing, there was a slight global weakness in all muscles tested of the left arm. There was a slight asymmetry in the upper arm circumferences with the right upper arm 26cm in the left 25cm (10 cm above the olecranon process) and in the upper forearms 25cm bilaterally. This is within normal limits for a right-handed man.
The examination of the claimant did not show signs of radiculopathy. This would accord with the Certificate of Medical Assessor Assem which found only atrophy in the left upper arm which, in the Panel’s view, is within normal limits of a right-handed man. The claimant similarly showed some guarding in respect to movements of the cervical spine when examined by Medical Assessor Assem. No guarding was noted when he was examined by the Panel. Medical Assessor Assem recorded an absence of the right triceps reflex which has no bearing on radiculopathy on the left side. The Panel observed triceps reflexes present bilaterally. The material observed which was lodged in this matter similarly does not give rise to any finding of radiculopathy.
Lumbar spine
Mr Radhi walked with a slow gait and was very unsteady when attempting to stand on his heels and toes. Squatting was less than 50% which he said that due to bilateral knee pain. On testing range of movement, flexion/extension was 50% of expected range as was side bending with no asymmetry.
Straight leg raise was 60° bilaterally with limitation due to hamstring tightness and sciatic nerve root tension signs were negative. On palpation there was tenderness over the entire lumbar region with no guarding or spasm noted.
On neurological examination of the lower limbs, reflexes were brisk and equal bilaterally with normal power and no sensory changes were noted in the lower limbs. No muscle wasting was apparent with the circumference of the lower thighs 40cm bilaterally (10cm above the superior patella pole) and at the maximum circumference of the calves 31cm bilaterally. There was decreased sensation over the entire left thigh in a global distribution but normal sensation below the knee. This was not in a dermatomal pattern.
Upper limbs
On inspection of the shoulders, no muscle wasting was apparent and on palpation there was tenderness over the left acromioclavicular joint. No crepitation was noted on passive movement of either shoulder. There was a resistance to passive movement above 90° of flexion. Active movements of the shoulders were measured using a goniometer and repeated 3 times.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 150° | 80° |
| Extension | 40° | 30° |
| Adduction | 50° | 30° |
| Abduction | 150° | 80° |
| Internal Rotation | 80° | 80° |
| External Rotation | 80° | 70° |
Mr Radhi stated that the limitation in movement of the left shoulder was due to shoulder pain and there was no referral of pain from the neck. There was also some limitation in movement of the right shoulder but Mr Radhi stated that this was asymptomatic.
There was a full pain free range of movement of both elbows.
No radiological studies were available for inspection.
Comments
At the time of my examination, there were no clinical signs of radiculopathy in the left upper limb with a nondermatomal decrease in sensation in a global distribution and a non myotomal slight weakness in the muscles of the left upper limb. Reflexes were symmetrical.
I consider that there was a soft tissue injury to the cervical and lumbar spine which may have been an aggravation of pre-existing degenerative changes. In respect to the left shoulder
I note there was no crepitation, resistance to passive movement, no referral of pain from the neck and radiological findings taken one month after the accident which reported mild bursitis. It may be that there was a soft tissue injury to the left shoulder. The ultrasound report suggests mild bursitis. Even that there is mild bursitis in the left shoulder it is still a threshold injury.
Summary of injuries referred by the parties
The following injuries WERE caused by the motor accident:
(a) cervical spine – soft tissue injury;
(b) lumbar spine - soft tissue injury, and
(c) left upper extremity – soft tissue injury with possible mild bursitis.
A soft tissue injury is (subject to this section) an injury to tissue that connects, supports, or surrounds, other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci, or cartilage.
Schedule 1[2] clause 4 of the Motor Accident Injuries Regulation 2017:
“1) An injury to a spinal nerve rood that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.”
The Panel finds Mr Radhi sustained soft tissue injury to the cervical and lumbar spine and left shoulder. It satisfies the definition of threshold injury.
The assessment of whether an injury is a “threshold injury” is not a direct measure of symptoms or disability. A finding that an injury is a “threshold injury” indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however the injury satisfies the definition of a threshold injury under the Act and the Regulation.
Conclusion – threshold injury
The following injuries are threshold injuries:
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury, and
· upper extremities – soft tissue injury and possible mild bursitis to the left shoulder.
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