AAI Limited t/as GIO v Shepherd
[2023] NSWPICMP 158
•27 April 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Shepherd [2023] NSWPICMP 158 |
| CLAIMANT: | Li Yuan Shepherd |
INSURER: | AAI Ltd t/as GIO |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | Geoffrey Curtin |
| DATE OF DECISION: | 27 April 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act2017; threshold injury dispute; claimant suffered injury in rear end collision in April 2018; the only dispute was whether the left supraspinatus tear was caused or aggravated by the motor accident and constituted a non-threshold injury; partial tear of the supraspinatus was not caused or aggravated by the motor accident based on: the minor nature of the impact which is unlikely to have caused injury to the left shoulder; the absence of contemporaneous left shoulder complaint; the post-accident scan evidence which is most likely degenerative pathology; the previous 2014 findings of general degenerative changes in the left shoulder which would deteriorate over time; and acute onset of left shoulder symptoms delayed until some two months after the motor accident; Held – claimant suffered threshold injury; original assessment revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold Injury Review Panel Assessment of Threshold Injury The Review Panel revokes the certificate dated 22 August 2022 and issues a new certificate that all injuries caused by the motor accident are threshold injuries for the purposes of the Motor Accident Injuries Act 2017. |
REASONS
BACKGROUND
Ms Li Yuan Shepherd (the claimant) sustained injury in a motor accident on 12 April 2018 when her vehicle was stationary at traffic lights and was rear-ended by the insurer’s vehicle (the motor accident).
The insurer is liable to pay to Ms Shepherd any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue is whether Ms Shepherd’s physical injuries caused by the motor accident are a “threshold injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, disputes about whether the injury is a threshold injury is a medical assessment matter.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
Medical assessment
The medical dispute was referred to Medical Assessor Bodel who issued a Medical Assessment Certificate dated 22 August 2022 (the medical assessment).
Medical Assessor Bodel concluded that Ms Shepherd sustained soft tissue injuries to the cervical, thoracic and lumbar spines which are a minor injury for the purposes of the MAI Act. The Medical Assessor found that the injury to the left shoulder involving a partial tear of the rotator cuff was a non-minor injury.
Amendment to legislation
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The Medical Assessment Certificate was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52 week limitation period.
The assessment by the Medical Assessor and the parties’ submissions were made prior to 1 April 2023 when the correct term was “minor injury”. Accordingly, the term “minor injury” and “threshold injury” are used in this assessment interchangeably as it reflects the relevant wording at the time of the submission and/or the medical assessment.
THE REVIEW
The insurer applied for referral to a review panel of the medical dispute of whether the claimant only suffered minor injuries.
The President’s delegate referred the dispute to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment of minor injury was incorrect in a material respect having regard to the particulars set out in the application.[2]
[2] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.The review provisions provide[3] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[3] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
The Panel served a further Direction following the initial telephone conference which relevantly provided:
A. We cannot identify two objective signs of radiculopathy in accordance with cl 5.8 of the Guidelines and Medical Assessor Bodel did not find any signs. In these circumstances the allegation of non-minor injury appears to be limited to the partial tear of the supraspinatus referred to in the MRI scan of the left shoulder. The applicant is to confirm whether this proposition is accepted. If not, the precise evidence establishing radiculopathy under cl 5.8 is to be particularised.
B. Subject to the materials being produced as set out below, the Panel is of the view that it can assess the matter on the papers, specifically whether the partial tear of the left supraspinatus was caused or aggravated by the motor accident. It does not accept that a range of motion examination will assist in that conclusion.
The Panel issues the following directions:
1. The claimant is to file and serve by close of business 19 January 2023:
(a)Record of the general practitioner on the day of the accident believed to be from Wentworthville Medical Centre; and
(b)Clinical records of all general practitioners for the two years preceding the motor accident.
The insurer responded by providing the clinical note dated 12 April 2018 from the Wentworthville Medical Centre. That note is set out later in these Reasons.
The Panel forwarded a further Direction dated 14 April 2023 which noted:
“There has been non-compliance by the claimant with the direction dated 12 December 2022 (the Direction);
The insurer recently responded providing the document in response to paragraph 1(a) of the Direction;
The claimant has withdrawn the bundle filed on 13 April 2023;
The claimant is to respond to the Direction by close of business 17 April 2023 including advising when the GP records for the two-year period before the motor accident will be obtained.”The claimant’s response to the Direction received on 17 April 2023 is set out in full.
“The Claimant responds to the Directions as follows: -
1) The claimant accepts the proposition of the Medical Review Panel to assess the partial tear of the supraspinatus referred to in the MRI scan of the left shoulder.
2) The claimant does not require radiculopathy to be assessed.
3) The claimant had consulted the following general practitioners two years preceding the motor accident: -
(i) Dr Jonathan Hsu of Multicare Family Medical Centre, 240/242 Liverpool Road ASHFIELD NSW 2131
(ii) Dr Daisy Dai of Hurstville City Medical Centre, 85A Forest Road HURSTVILLE NSW 2220
4) The claimant has requested a copy of the Dr Jonathan Hsu and Dr Daisy Dai’s clinical notes on 14 April 2023 and anticipates being able to serve and provide by 21 April 2023.
5) The claimant shall forward the left shoulder scans (electronic scan images) to Medical Assessor Oates by 21 April 2023 to his nominated address.
6) The claimant admits she has past right shoulder injury.
7) As a result of her right shoulder injury, she was recommended to undergo a left shoulder radiology scan for the purposes of investigations of only.
8) However, the claimant denies having sustained a left shoulder injury prior to the motor vehicle accident.
9) In the alternative, if it is alleged that there was a left shoulder condition prior to the motor accident, the claimant submits that it was asymptomatic which did not require any treatment.
10) The claimant submitted that her left shoulder injury is entirely related to the motor accident.
11) The claimant accepts the Review Panel view that the assessment of the matter can be conducted on the papers.” (Emphasis in original)
The claimant then promptly provided the records of the two general practitioners as outlined in its response dated 17 April 2023.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a psychological or psychiatric injury.”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n 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.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[7]
SUBMISSIONS
Claimant’s submissions dated 23 September 2022[8]
[7] See s 3B(2) of the Civil Liability Act 2002.
[8] Claimant’s bundle, p 1.
These submissions were filed opposing the application to review the certificate of Medical Assessor Bodel. The claimant submitted that the certificate was not incorrect in a material respect. A typographical error is not a sufficient ground and the absence of examination findings of range of motion are not sufficient grounds as this is an issue of minor injury.
The claimant submitted that the absence of viewing unavailable radiology is not an error.
Insurer’s submissions dated 18 August 2021[9]
[9] Insurer’s bundle, p 113.
The insurer described in detail the medical evidence. It submitted that there was an absence of at least two signs of radiculopathy as defined by cl 5.8 of the Guidelines. The insurer referenced Dr Machart’s opinion that the only injury was a minor muscle strain to the cervical spine.
Insurer’s submissions dated 31 August 2022[10]
[10] Insurer’s bundle, p 218.
The insurer provided submissions why the original medical assessment should be reviewed.
The insurer suggested that there was no recording or reference to a clinical examination being undertaken by the Medical Assessor.
The insurer submitted that the Medical Assessor did not review the radiology and applied an incorrect test when referring to “non minor signs”. Further, there was a lack of reasoning how there was a conclusion that the left shoulder injury constituted a non-minor injury.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
The records of Dr Johnson Hsu were provided by the claimant in response to a request by the Panel of the prior clinical records. There are various references to right shoulder symptoms including a frozen shoulder and pathology which are not summarised.
The general practitioner (GP) records also refer to prior left arm shoulders symptoms in 2014 which are summarised as follows:
- 20 February 2014 – left shoulder pain and request for left shoulder ultrasound, and
- 12 June 2014 – left and right supraspinatus tear.
The left shoulder ultrasound dated 3 March 2014 showed small partial thickness tears both anteriorly and in the mid part of the supraspinatus tendon with subdeltoid bursitis with impingement.
On 18 June 2014 Dr Deepak Cherichan, orthopaedic register, noted right sided pain since January and left sided pain since March. Relevant history included moving house in December 2013 which aggravated pain and work as a librarian constantly lifting books which exacerbated pain.
The left shoulder MRI scan dated 1 July 2014 noted a clinical history of the left shoulder pain for three months with weakness and positive impingement. The scan showed mild supraspinatus tendinosis, acromial bony spur and enthesophyte. Range of motion was significantly reduced in both shoulders with positive signs of impingement. The right shoulder was described as the “most symptomatic”.
Post-accident medical records
The claimant attended Wentworthville Medical Centre on the day of the motor accident. The clinical note provided:[11]
“MVA Driver with belt hit on the back while stationary Traffic light
No police no ambulance
pain chest and back and cant remember hit the steering or not
Librarian in Ashfield returning home from work
On
MVA Chest pain not bleeding H L OK
Eyes OK”
[11] Insurer’s reply to Direction.
The discharge referral from Westmead Hospital noted tenderness in the cervical spine, sternum and right lumbar pain.[12] A CT scan of the cervical spine dated 13 April 2018 showed no acute fracture or body alignment but could not exclude a ligamentous injury.[13] The cervical spine X-ray was reported as showing no fracture.[14] The chest and sternum X-rays were normal.[15]
[12] Insurer’s bundle, p 4.
[13] Insurer’s bundle, p 9.
[14] Insurer’s bundle, p 13.
[15] Insurer’s bundle, pp 11-12.
The examination findings of the upper and lower limbs showed “no swelling deformity from all joints”.[16]
[16] Claimant’s bundle, p 53.
The claimant attended her physiotherapist on 19 April 2018 with the following complaints:[17]
- bilateral neck pain and headaches;
- chest pain;
- upper arm pain with hand numbness;
- interscapular pain;
- lumbar pain with referred pain to buttocks, and
- thigh and knee pain.
[17] Insurer’s bundle, p 166.
On the same day the GP noted the following symptoms:[18]
“Headaches, neck pain and stiffness, radiating to bilateral shoulders and arms, pins and needles in bilateral hands, Wearing hard collar, upper back pain, lower back pain and stiffness, radiating to bilateral upper legs, chest pain, SOB, abdomen pain, bilateral knees pain, clicking, trouble sleeping, flashbacks, anxious and cautious to drive.”
[18] Insurer’s bundle, p 164.
The GP confirmed these findings in a report dated 19 April 2018.[19] A certificate of capacity dated 19 April 2018 signed by the GP noted cervical spine radiculopathy, thoracic spine strain, chest contusion, abdominal contusion, lumbar spine radiculopathy, bilateral knee strain and acute stress disorder.[20]
[19] Claimant’s bundle, p 41.
[20] Claimant’s bundle, p 68.
On 23 April 2018 the physiotherapist recommended an MRI scan for the neck.[21]
[21] Insurer’s bundle, p 163.
An MRI scan of the cervical spine dated 30 April 2018 noted ongoing cervical and thoracic tenderness.[22] The scan was normal with no significant degenerative disease.
[22] Insurer’s bundle, p 15.
The claim form dated 4 May 2018 noted injuries to the neck, both shoulders, back and psychological injury.[23]
[23] Claimant’s bundle, p 158.
On 7 May 2018 the physiotherapist observed restricted range of movement in both shoulders.[24] On 14 May 2018 the left shoulder pain was described in the ulnar nerve distribution.[25] That diagnosis was repeated on 18 May 2018.[26] On 21 May 2018 the left shoulder was noted as “very stiff”.
[24] Insurer’s bundle, p 160.
[25] Insurer’s bundle, p 158.
[26] Insurer’s bundle, p 157.
On 25 May 2018 the physiotherapist noted left shoulder pain, pain down to little finger, left grip weakness and reduced left shoulder movement.[27] On June 1, 2018, the physiotherapist noted recent cold weather had caused an onset of right shoulder pain.[28] Symptoms were noted as “worse’ during following consultations.[29]
[27] Insurer’s bundle, p 155.
[28] Insurer’s bundle, p 152.
[29] Insurer’s bundle, pp 148-151.
An MRI scan of the cervical spine dated 27 July 2018 reported degenerative changes most marked at C5/6 with minor disc bulge indenting the thecal sac and minimal C6 narrowing without evidence of neural impingement.[30]
[30] Insurer’s bundle, p 16.
An MRI scan of the left shoulder dated 27 July 2018 showed imaging features of adhesive capsulitis with cuff insertional tendinopathy, partial thickness tearing and moderate subacromial/subdeltoid bursitis without bursal effusion.[31] The partial thickness tearing involved the supraspinatus over an area 5mm in diameter and 2mm in depth. In the summary conclusion the radiologist opined that there was cuff insertional tendinopathy particularly involving the supraspinatus with bursal surface fraying up to 2mm in depth, no significant tear.
[31] Insurer’s bundle, p 18.
The MRI scan of the thoracic spine dated 31 August 2018 was reported as normal.[32]
[32] Insurer’s bundle, p 195.
The GP note of Dr Dai dated 16 December 2018 noted a neck injury from the motor accident with “right arm referred pain”.[33]
[33] Claimant’s late documents – Dr Dai.
Treating specialist reports
Dr Gavin Soo, orthopaedic surgeon, provided a report dated 21 August 2018.[34] At that time the doctor noted pain on the lateral aspect of the left shoulder with difficulty lifting above shoulder height and reaching behind. Dr Soo diagnosed adhesive capsulitis requiring physiotherapy.
[34] Insurer’s bundle, p 178.
Dr Bhisham Singh, orthopaedic surgeon, noted on 31 January 2019 that Ms Shepherd had pins and needles in the C7/8 distribution of both hands and a left frozen shoulder.[35] The doctor recorded grade 5 power (which is normal), normal sensory examination, and normal reflexes.
[35] Insurer’s bundle, p 175.
On 28 February 2019 the doctor noted plain X-rays showed no instability, and left shoulder symptoms were improving with physiotherapy.[36]
[36] Insurer’s bundle, p 177.
Dr Alan Dao, orthopaedic surgeon, provided a report dated 13 November 2019.[37] The doctor noted the left pain became worse two days after the motor accident. Examination showed pain over the glenohumeral joint and point tenderness over the greater tuberosity. The doctor opined:
“Li Yuan has resolving adhesive capsulitis of the left shoulder, but there are also signs of subacromial bursitis and impingement symptoms. There is partial thickness cuff tear which potentially may have worsened over time. At this point in time I have recommended an ultrasound guided cortisone injection in the subacromial space to help with her symptoms. Considering that the adhesive capsulitis is improving I would suggest continuing with the physiotherapy and maintaining this course for the time being. If the cortisone injection is helpful then this may be all the management that is necessary, however if the pain recurs I would repeat the MRI scan and consider intervention at that stage.”
[37] Insurer’s bundle, p 196.
Dr Dao noted on 8 January 2020 that left shoulder pain is “feeling better” although the cortisone injection had not been undertaken.[38] On 28 February 2019 the doctor noted further improvement of the left shoulder with physiotherapy.[39]
[38] Insurer’s bundle, p 198.
[39] Insurer’s bundle, p 199.
Dr Paul Teychenne provided a report dated 10 January 2020.[40] The doctor diagnosed an “incomplete cervical cord lesion with weakness in the hands. The doctor described the motor accident occurring “at about 50 km per hour” causing “an incomplete cervical cord lesion as a result of the whiplash injury to the neck”.
[40] Insurer’s bundle, p 207.
Qualified opinions
Dr John Davis was qualified by the claimant and provided a report dated 8 December 2020.[41] The doctor noted tenderness discreetly over the humeral heads bilaterally, tenderness at C2/3 and C5/6 with no abnormal neurological findings in the upper limbs. Lower limb examination did not show any neurological signs.
[41] Claimant’s bundle, p 33.
The doctor described the MRI of the left shoulder as involving the supraspinatus with bursal surface fraying up to 2mm in depth and “no significant tear”. The doctor made a diagnosis in accordance with the scan. He also diagnosed strain injury to the thoracic and lumbar spine, right shoulder bursitis and aggravation of asymptomatic cervical degenerative changes.
Dr Frank Machart, orthopaedic surgeon, was qualified by the insurer and provided a report dated 25 March 2021.[42] The doctor opined:
“By the description of the MVA, car rear-ended, not pushed into the car in front, no ambulance, and minor damage to the vehicle, I could not diagnose severe, substantial, or structural injury, and not to the extent of causing substantial disability affecting several areas of the body now, 3 years after MVA. Structural damage was not evident. There was a minor muscle strain to the cervical spine as per hospital documentation.
Specifically, I have not identified structural lesion to either of the shoulders to be causing substantial diminution of movement, as was reported to be the case at this examination, not consistent with treating doctor’s assessment of elevation in relation to resolving frozen shoulder, expectation from this diagnosis being improvement rather than deterioration. Examination was punctuated by pain behaviour. The physical signs and symptoms could not be explained by objectively defined pathology of injury. My conclusion is that she suffered minor soft tissue injury which is now healed. I cannot explain the self-reported symptoms and signs as based on objectively defined pathology of injury.”
[42] Insurer’s bundle, p 103.
Dr Andrew McIntosh, biomechanical engineer provided a report dated 22 June 2020.[43] The opinion was expressly partly based on dashcam video from the insured vehicle which showed both vehicles stationary at a gap of approximately 6.5 metres, before the insured vehicle moved forward at “a fast walking speed” colliding with the claimant’s vehicle. The expert was asked to assume that the insured’s foot “slipped” off the brake.
[43] Insurer’s bundle, p 55.
The photograph of the claimant’s vehicle showed “no discernible damage”.[44]
[44] Insurer’s bundle, p 71.
Dr McIntosh concluded that the closing speed at the collision was less than 10 kmph and the collision was of “very low severity”. He concluded that it was unlikely that the claimant suffered any injuries as alleged and that there was “no mechanism for shoulder injury, including rotator cuff injury, in the incident”.[45]
[45] Insurer’s bundle, p 95.
Other medical assessments
Medical Assessor McGrath issued a certificate dated 21 January 2019[46] concluding that eight sessions of physiotherapy for the claimant’s neck and back was not reasonable and necessary. The Medical Assessor noted neurological examination of the upper limbs was normal with some subjective dullness in the third finger of the right hand which was part of a global sensory disturbance in the right hand. Thoracic range of motion was normal, and no symptoms were reported in the lower back and lower extremities.
[46] Insurer’s bundle, p 19.
The Medical Assessor observed grossly reduced range of movement in the left shoulder at the glenohumeral joint. Passive examination confirmed a relatively frozen shoulder.
Medical Assessor Wijetunga issued a certificate dated 25 November 2020 that some physiotherapy and chiropractic treatment was reasonable and necessary in the circumstances.[47] Examination at that time showed no dermatomal signs in the lower limbs with tenderness in the lumbar spine and right knee. There was acute tenderness in the cervical spine and restricted range of movement in the left shoulder.
[47] Insurer’s bundle, p 42.
The Medical Assessor concluded that past physiotherapy and chiropractic treatment was reasonable and necessary for the whiplash associated disorder.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The medical assessment related to the injuries sustained in the motor accident were minor or non-minor (now threshold or not threshold) as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[48] and Insurance Australia Ltd v Marsh.[49]
[48] [2021] NSWCA 287 at [40], [41] and [45].
[49] [2022] NSWCA 31 at [11], [21] and [64].
We adopt the reasoning in Lynch v AAI Ltd[50] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[50] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the reasoning in David v Allianz Australia Ltd[51] that radiculopathy can be present at any time to establish that the injury is not minor for the purposes of the MAI Act.
[51] [2021] NSWPICMP 227 at [84]-[104].
Examination
The parties agreed that the matter can be determined on the papers. There was an acceptance in the subsequent written submissions that the injury suggested to be not a threshold injury was the tear in the left shoulder. This is in circumstances where there is no evidence supporting the conclusion that the other injuries caused by the motor accident were other than threshold injuries.
Left shoulder
The initial notes of the GP on 12 April 2018 and at the hospital do not refer to shoulder pain. The examination report at hospital of the joints of the upper and lower limbs is reported as normal.
However, we accept that soft tissue injuries may take up to 48 hours to appear and the absence of pain on the day of the accident to an injured body part is not uncommon.
The scan dated 27 July 2018 of the left shoulder shows a minor partial thickness tear of the supraspinatus tendon.
There is no mechanism for a left shoulder injury having occurred in the subject accident. This was a low-speed rear end collision. It is not of the type of collision expected to cause a left shoulder injury in the driver where the right shoulder contacts the sash of the seat belt but not the left.
The MRI scan left shoulder performed on 27 July 2018 was viewed by a Medical Assessor on the Panel. The findings in the supraspinatus tendon are coincidental and constitutional, rather than being post traumatic as a result of an acute injury. Although in the body of the MRI report there is described cuff insertional tendinopathy, notably involving the supraspinatus with bursal surface partial thickness tear over an area 5mm in diameter and 2mm in depth, the conclusion in fact, states that there is cuff insertional tendinopathy, particularly involving the supraspinatus with bursal surface fraying up to 2mm in depth, no significant tear. This tendon fraying (ragged edge) is a common finding in the middle-aged adult population, reflecting general ‘wear and tear’. This pathology is often seen on scans in asymptomatic subjects.
The physiotherapy records indicate an acute onset of left shoulder pain with decreased range of movement on or about 22 June 2018, that is more than two months after the motor accident. The claimant was then referred for an MRI scan of the left shoulder.
The Panel accepts that the claimant suffered a whiplash soft tissue Injury to the cervical spine and there is mention in the early contemporaneous medical records of referred pain from the neck to both upper extremities, through the shoulders.
Referred symptoms from the neck can progressively limit shoulder range of movement. Ms Shepherd subsequently was diagnosed with a frozen left shoulder, on the background of past history of right frozen shoulder.
If the accident had caused an acute rotator cuff tear, we would have expected shoulder pain and symptoms within days of the accident. The contemporaneous notes do not support an acute onset. The absence of complaint is relevant but not determinative of causation.[52]
[52]AAI Ltd v McGiffen [2016] NSWCA 229 at [64]-[66].
Review of the general practitioner records reveals that Ms Shepherd made quite frequent visits to her general practitioner, particularly in 2014, with a variety of apparently unrelated complaints. Early in that year there were reports of complaints of right shoulder pain and an ultrasound was ordered to investigate this. Ms Shepherd was seen in RPAH Orthopaedic outpatients on 18 June 2014, and a letter from the Registrar, Dr D Cherichan, reported complaints of bilateral shoulder pain. He reported stiffness of both shoulders and stated that on previous x-rays and ultrasounds there were signs of subacromial bursitis and partial-thickness rotator cuff tear on both shoulders. Left shoulder ultrasound carried out on the 3 March 2014, stated that although there was a “small bursal surface tear” there was no full-thickness tendon tear. An MRI examination of left shoulder was carried out on the 01/07/2014 and this study (generally a more reliable investigation than an ultrasound), showed mild supraspinatus tendinosis, but no partial or full-thickness tendon tear.
The left shoulder continued to be symptomatic, with a further GP record on 7 July 2016, two years after the initial left shoulder symptoms, indicating left shoulder pain with treatment by laser acupuncture.
The scan evidence in 2014 shows degenerative changes in the left shoulder which would gradually deteriorate over time.
The Panel concludes that the partial tear of the supraspinatus was not caused or aggravated by the motor accident based on:
- the minor nature of the impact which is unlikely to have caused injury to the left shoulder;
- The absence of contemporaneous left shoulder complaint;
- The post-accident scan evidence which is most likely degenerative pathology;
- The previous 2014 findings of general degenerative changes in the left shoulder which would deteriorate over time; and
- Acute onset of left shoulder symptoms delayed until some two months after the motor accident.
Other injuries
We briefly mention the other injuries noting that the claimant accepted that these injuries were threshold injuries. Accordingly, we express brief reasons for agreeing with that concession.
There was a complaint of right lumbar spine pain at hospital.
There has never been any recorded evidence of two signs of radiculopathy as defined in the Guidelines.
There is otherwise no suggestion that there was traumatic injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage in the lumbar spine.
We accept there was a soft tissue injury to the cervical spine evidenced by the contemporaneous complaint of neck pain at hospital.
There are no recorded observations of two signs of radiculopathy as defined in cl 5.8 of the Guidelines. The clinical notes refer to symptoms of radicular pain including numbness in the right hand. These are not signs of radiculopathy as defined because they are not described as relating to a specific dermatome.
Ms Shepherd otherwise did not have radiculopathy when examined by the Medical Assessor.
For these reasons we conclude that Ms Shepherd has not satisfied, at any time, two clinical signs of radiculopathy pursuant to the Guidelines.
There is otherwise no suggestion in the scans that there was traumatic injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
There was complaint of pain to the GP on the day of the accident and at hospital of injury to the sternum and chest. However, there is no evidence of a non-threshold injury caused by the motor accident to the sternum and chest.
CONCLUSION
For these reasons the Panel concludes that the certificate issued by Medical Assessor Bodel is revoked. A new certificate is attached at the commencement of these Reasons.
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