AAI Limited t/as GIO v Skaf
[2024] NSWPICMP 392
•20 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Skaf [2024] NSWPICMP 392 |
| CLAIMANT: | Antoin Skaf |
| INSURER: | AAI Limited trading as GIO |
| REVIEW PANEL | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 20 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; treatment and care dispute; claimant alleges injury to right shoulder, amongst other injures; Held – Panel not satisfied on the balance of probabilities that the claimant sustained an injury to the right shoulder; lack of contemporaneous medical evidence of any complaint; examination in weeks/months following accident showed normal range of motion which is contrary to the assertion the accident caused a tear of the shoulder; treatment determined to not be related to an injury caused by the motor accident and not reasonable and necessary. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel 1. Revokes the certificate issued by Medical Assessor Dixon dated 21 June 2023 and finds: 2. The following treatment: (a) MRI Investigation of the right shoulder, as proposed by Dr Vijay Maniam; (b) right shoulder arthroscopy and rotator cuff repair performed in May 2021 (recommended by Dr Bigges); (c) proposed excision lateral end of clavicle for osteolysis distal end right clavicle (Dr Maniam); (d) proposed subacromial decompression for subacromial bursitis in the right shoulder (Dr Maniam); (e) proposed post-operative physiotherapy (Dr Bigges and Dr Maniam); (f) proposed post-operative shoulder abduction brace (Dr Maniam), and (g) three Platelet-Rich Plasma (PRP) injections to the right shoulder (Dr Maniam). DOES NOT RELATE TO THE INJURY caused by the motor accident. 3. The following treatment: (a) MRI Investigation of the right shoulder, as proposed by Dr Vijay Maniam; (b) right shoulder arthroscopy and rotator cuff repair performed in May 2021 (recommended by Dr Bigges); (c) proposed excision lateral end of clavicle for osteolysis distal end right clavicle (Dr Maniam); (d) proposed subacromial decompression for subacromial bursitis in the right shoulder (Dr Maniam); (e) proposed post-operative physiotherapy (Dr Bigges and Dr Maniam); (f) proposed post-operative shoulder abduction brace (Dr Maniam), and (g) three PRP injections to the right shoulder (Dr Maniam) IS NOT REASONABLE AND NECESSARY in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
Mr Antoin Skaf (the claimant) has made a claim for damages under the Motor Accident Compensation Act 1999 (MAC Act) following a motor vehicle accident occurring on 28 October 2017.
The claimant alleges injury as result of him being the driver of a stationary vehicle that was hit from behind by another vehicle. This caused his vehicle to be pushed forward and collide with a truck in front.
A dispute has arisen between the claimant and the insurer of the vehicle considered at fault (the insurer) in respect of a number of treatment requests made by the claimant. The treatment in dispute is as follows:
(a) MRI Investigation of the right shoulder, as proposed by Dr Vijay Maniam;
(b) right shoulder arthroscopy and rotator cuff repair performed in May 2021 (recommended by Dr Bigges);
(c) proposed excision lateral end of clavicle for osteolysis distal end right clavicle (Dr Maniam);
(d) proposed subacromial decompression for subacromial bursitis in the right shoulder (Dr Maniam);
(e) proposed post-operative physiotherapy (Dr Bigges and Dr Maniam);
(f) proposed post-operative shoulder abduction brace (Dr Maniam), and
(g) three Platelet-Rich Plasma (PRP) injections to the right shoulder (Dr Maniam).
The subject dispute involves a question as to whether the treatment was or is reasonable and necessary pursuant to s 58(1)(a) of the MAC Act, and whether the treatment relates to the injury caused by the motor accident pursuant to s 58(1)(b) of the MAC Act.
This dispute became the subject of an application lodged with the Personal Injury Commission (Commission). The matter was allocated to Medical Assessor Dixon who examined the claimant on 15 June 2023 and issued a certificate dated 21 June 2023. He certified that each treatment, except for the PRP injections, relates to the injury caused by the motor accident and were reasonable and necessary in the circumstances.
The insurer lodged a review application arguing that the medical assessment was incorrect in a material respect.
LEGISLATIVE FRAMEWORK
Pursuant to s 83 of the MAC Act the insurer is obliged to make payments to or on behalf of the claimant in respect of treatment and care expenses. Pursuant to s 83(2) such duty extends to a situation where the payments:
(a) are reasonable and necessary in the circumstances;
(b) are properly verified, and
(c) relate to the injury caused by the motor accident.
Disputes regarding treatment and care are governed by Part 3.4 of the MAC Act.
THE REVIEW
The application for referral of the medical assessment to a Review Panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[1]
[1] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (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[2] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
[2] Section 63(3) of the MAC 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.[3]
[3] 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.[4]
[4] 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.[5]
[5] Section 63(3A) of the MAC Act
The Panel convened a teleconference and it was decided a re-examination of the claimant was necessary.
Medical Assessor Maloney examined the claimant on 13 March 2024 at the Commission Medical Suites in Darlinghurst.
MEDICAL ASSESSMENT THE SUBJECT OF REVIEW
Medical Assessor Dixon examined the claimant’s cervical spine and upper extremities. He found the claimant to present in a consistent manner, particularly on repeat measurements of his shoulder motion.
In respect of the issue of causation, Medical Assessor Dixon found the claimant had a seat belt injury to the right shoulder that included a lot of bruising to the shoulder and upper arm. He stated the claimant had post traumatic stiffness that had persisted, despite physiotherapy, hydrotherapy and exercise physiology. He found the claimant had tenderness at the acromaclavicular (AC) joint wit impingement on abduction and had aggravated the OA arthrosis of the right shoulder which is ongoing.
Medical Assessor Dixon found the restricted motion, AC joint tenderness and findings of AC arthrosis, aggravated in the subject accident, was causing impingement of the rotator cuff where there are partial tears amounted to indication that rotator cuff acromioplasty with resection of the distal clavicle was reasonable and necessary. He found that same would allow easier passage of the rotator cuff and the partial tears would be repaired at the time of arthroscopy, depending on the surgeon’s findings.
In respect of the PRP injections, Medical Assessor Dixon found that they were not necessary at this stage as the claimant would be having surgical intervention.
It was found that the surgical intervention is reasonable and necessary given the claimant has had a prolonged period of conservative management but still suffering from right shoulder brachalgia with trapezial muscle pain with subacromial bursitis clinically with impingement.
It was found that the rotator cuff repair recommended by Dr Bigge will be ascertained by Dr Maniam at the time of the arthroscopic surgery, and was reasonable and necessary.
In respect of the MRI investigation of the right shoulder, Medical Assessor Dixon found same to be reasonable and necessary to ascertain the pathology carefully following the seat belt injury sustained in the accident.
Post-operative physiotherapy was considered reasonable and necessary, with a need to be done carefully to avoid any early active motion and gentle passive motion will likely be required as per the protocol of the surgeon.
Finally, it was concluded that shoulder abduction brace is essential following such surgery.
SUBMISSIONS
Insurer’s review submissions dated 20 July 2023
The insurer asserts that the Medical Assessor failed to engage with the substance of the insurer’s submissions.[6]
[6] Allianz Australia v Cervantes [2012] NSWCA 244, Basten JA at [19].
The insurer notes that the submissions highlighted the following in respect of the issue of causation:
(a) the lack of evidence of any complaints of a right shoulder injury immediately after the accident until 25 June 2018;
(b) the lack of any right shoulder injury diagnosis by the insurer’s experts, Professor Ian Cameron and Dr Hyde Page as well as Commission Assessor Mohammed Assem, and
(c) the possibility that the claimant’s right shoulder problems were constitutional given the remoteness of their onset, as raised by the claimant’s treating orthopaedic surgeon Dr Maniam.
It is submitted that it appears the Medical Assessor disregarded or overlooked the above arguments, and the issue of a lack of complaint regarding the right shoulder in the documentation ought to have been raised with the claimant.
The insurer submits that the Medical Assessor’s conclusion that the claimant suffered a seat belt injury and had bruising is merely speculative. In this regard, the insurer refers to paragraph 16 of the Reasons where the Medical Assessor described the seat belt injury as probable.
It is further submitted that the Medical Assessor failed to explain how he concluded the presence of a seat belt injury in the absence of any contemporaneous complaint.
The insurer notes that the claimant consulted his general practitioner (GP), Dr Dagher two days after the accident and made no mention of any right shoulder complaint and there is no mention of right shoulder bruising. Further, in the 11 consultations in the first six months after the accident, Dr Dagher makes no mention of a right shoulder injury.
Claimant’s Review submissions dated 1 August 2023
The submissions observe that “the entire premise of the insurer’s submissions is that records indicate that the claimant did not make any complaints about his right shoulder until 25 June 2018.”
The claimant rejects this suggestion and submits that he did make complaints about right shoulder pain as identifiable in the evidence. In this regard, the claimant refers to the Allied Health Recovery Request (AHRR) form dated 4 December 2017 (approximately five weeks after the motor accident) submitted by the claimant’s physiotherapist, Mr Mitchell Cook, which details a request to treat “shoulder stiffness.”
The claimant also notes that the physiotherapist wrote to the GP on 8 December 2017 noting shoulder stiffness.
Also referred to is a diagram of the body shaded by the physiotherapist that includes shading over the right upper limb and the right upper torso up to the shoulder region.
The submissions note that Medical Assessor Assem did not have the benefit of the aforementioned AHRR form when reaching his determination.
The submissions also state that the GP treatment would have focused on the immediately noticeable and severe complaints for other body parts, such as the neck, upper back. Lower back, right arm, right knee, right leg and the face. The claimant refers to the case of Mason v Demasi [2009] NSWCA 227 that discusses the limitations inherent with treating doctor’s clinical records.
The submissions observe the insurer’s argument fails to give credit to the Medical Assessor’s clinical expertise and judgment.
In respect of the note of 30 October 2017 of Dr Dagher, the claimant highlights that the doctor noted a complaint to the right arm (laceration), which in the claimant’s submission is clinical evidence that may allow a Medical Assessor to reasonably infer the right shoulder was also involved given the close proximity of the body parts.
DOCUMENTS
Additional assessment certificates and reasons
Medical Assessor Assem
Medical Assessor Assem provided a certificate and reasons dated 12 December 2019 in respect of a dispute regarding whole person impairment.
Medical Assessor Assem records questioning the claimant about the lack of complaint of right shoulder symptoms until 12 July 2018. In reply, the claimant stated that it is documented in the personal injury claim form. Medical Assessor Assem referred the claimant to the fact that the claim form did not include a mention of right shoulder and the pictogram was not shaded at the shoulder. The claimant stated that the back was shaded which included the shoulder.
The Medical Assessor also noted that the medical certificate of 23 November 2017 did not refer to an injury to the shoulders, but there was mention of right arm pain. The claimant replied that the right arm includes the shoulder.
The claimant was further questioned about the variable range of motion noted by different examiners, and he states that his condition has deteriorated.
In respect of consistency, Medical Assessor Assem found the movements exhibited in the cervical spine, lumbar spine and shoulders was disproportionate to any incident or injuries. The Medical Assessor stated when the absence of shoulder complaint until nine months after the accident, were brought to the claimant’s attention he failed to provide a reasonable explanation.
The Medical Assessor found that injuries to the neck, back and right knee were caused by the motor accident, however, there was no contemporaneous evidence of an injury to his right shoulder or left shoulder.
Medical Assessor Jones
Medical Assessor Jones provided a certificate and reasons dated 2 December 2019 which includes a determination that the psychological injuries referred for assessment were not caused by the motor accident.
Medical Assessor Curtin
The Medical Assessor provided a certificate and reasons dated 16 November 2019, which certified a soft tissue injury to the face gave rise to a 1% whole person impairment.
The claimant gave a history that he broke his glasses in the accident and sustained a laceration below the right lower eyelid. His face was swollen and bruised and his mouth was painful.
Medical Assessor Marsh
The certificate issued is dated 16 March 2020 and relates to a treatment dispute involving an MRI of the right shoulder and PRP injections to the right shoulder. Medical Assessor Marsh found that they were related to the injuries caused by the motor accident. He found the MRI was reasonable and necessary, however, the PRP injections were not.
The claimant gave a history that he suffered bursitis in the right shoulder about a year prior to the motor accident and was treated with cortisone injections at the time. The claimant stated that such treatment was successful and he denied any ongoing symptoms of the right shoulder following this an up until the time of the subject motor accident.
The claimant complained of ongoing pain of the lower back, neck, both shoulders and right knee.
Medical Assessor Marsh found some muscle wasting around the right shoulder girdle region. He found marked restriction in all movements particularly involving the right shoulder. With flexion and extension of the left shoulder, the claimant indicated this was only associated with pain in the neck. With all other movements of the left shoulder, the claimant indicated pain mainly over the lateral aspect of the upper arm.
The Medical Assessor noted that there was considerable variation in the range of movement of the shoulders, particularly the right, with previous reports on file noting a greater range of movement. The claimant replied that the pain had been getting worse, particularly after the cessation of physiotherapy and the pain also was variable and increased with activity.
Importantly, the GP records were not available to Medical Assessor Marsh. He does note however that the GP in a report dated 30 October 2017, noted soft tissue injuries to the neck and right arm but does not indicate whether the latter would also include shoulder region.
Medical Assessor Marsh determined that the referred pain from the neck into the right shoulder and the marked neck pain in the right side may have overshadowed any concomitant discrete injury to the right shoulder in addition to neck injury. He found that the clinical picture was also somewhat clouded by the claimant’s marked exaggerated pain behaviour.
The Medical Assessor found there may have been a discrete injury to the right shoulder in the accident.
Medico-legal evidence
The insurer relies on a report of Dr Hyde Page, orthopaedic surgeon, dated 7 June 2018. At the time, the claimant complained of ongoing neck pain shooting into his right shoulder. He also reported lower back pain with some numbness of the left thigh.
On examination, the claimant was reported to have three quarters of range of movement in all directions of the cervical spine.
Neurological examination of the upper limbs was normal, with normal power, sensation and reflexes, and he had a strong grip strength.
Dr Hyde Page found that on examination of the shoulders the claimant had a full range of movement in all directions. Some loss of movement in the thoracolumbar spine was noted.
The doctor concluded: “overall, today’s examination was normal, except for some mild neck stiffness and he had some numbness on the lateral side of his left thigh. He had some patellofemoral discomfort in the right knee with some crepitus.”
The insurer also obtained a report of Professor Cameron, consultant physician in rehabilitation medicine, dated 2 June 2019. The claimant complained of severe headaches and neck pain, major right shoulder pain and right elbow pain, right knee pain, low back pain and numbness to the toes.
Significant pain behaviours were noted by Professor Cameron. Variable shoulder movement was reported, which the claimant stated was due to pain. A loss of range of motion was noted of the shoulders. The doctor found that the claimant’s condition was in general consistent with the alleged injuries and disabilities.
Dr Bodel, orthopaedic surgeon, prepared a report dated 2 July 2019 addressed to the claimant’s representatives.
The claimant complained of neck and shoulder girdle pain, particularly the right side, in addition to lower back pain with leg pain radiating all the way to both feet, with right side worse than left.
On examination, the claimant was found to have reduced range of neck flexion, extension and rotation in all directions, most restricted on left side. He was found to have restricted range of shoulder movement on both sides. The doctor found impingement on the right shoulder and generalised wasting on the right shoulder girdle but not the left. The doctor accepted the claimant suffered an injury to the right shoulder caused by the accident.
Dr Porteous, occupational physician, provided a report to the claimant’s representatives dated 3 July 2019.
On examination, range of motion of the cervical spine was noted. In respect of the shoulders, the claimant was found to have substantially restricted shoulder range of motion. It was noted that this condition had deteriorated from the findings reported by Dr Hyde Page.
Dr Porteous concluded the claimant suffered contusion resulting in bruising of the right shoulder and arm and found that the claimant “…most likely had a soft tissue musculoligamentous sprain and aggravation of degenerative change in the right shoulder.”
Treating evidence
The clinical notes of the claimant’s GP, Dr Dagher, are provided. The notes commence in July 2005. The pre-accident notes are largely unremarkable, with various unrelated ailments recorded. However, muscle aches after doing physical work was noted on 11 September 2013, with ultrasound guided cortisone injections of the right shoulder conducted. By 15 November 2013, the claimant was noted to still be complaining of right shoulder pain. The shoulder is not complained again until 20 July 2016 when a right rotator cuff syndrome was noted. On 28 July 2016 this was noted as right bursitis – subacromial.
In respect of the accident the claimant attended Dr Dagher on 30 October 2017 (two days post-accident) and complaints were noted as being pain to the neck and back, headaches, scratches to the right arm and face, right knee, and bruising and pain to the right lower leg.
On examination, generalised tenderness was noted to the cervical, thoracic and lumbar spine and generalised stiffness and restricted spinal rotation. Generalised tenderness to the right knee was also noted. There is no specific mention of either shoulder.
The claimant returned on 23 November 2018 and the claimant was noted to be still complaining of pain to the neck, back and right leg and was noted to be very stressed. Again on 5 January 2018, the claimant was noted to have ongoing neck and back pain.
The claimant was referred to physiotherapy and to orthopaedic surgeon, Dr Maniam.
On 12 March 2018 the claimant complained of right knee issues since the accident including generalised tenderness and restricted movement.
On 12 July 2018 there is mention of the right shoulder. Dr Dagher records: “still co neck right shoulder, right knee and back pain. Referrd [sic] to pain clinic.” The next consultation is on 2 October 2018 when the claimant is noted to have ongoing neck, back and right knee pain and was very stressed.
Lateral epicondylitis was noted by Dr Dagher on 30 October 2018. And on 30 October 2018 complaints involving the neck and back were recorded. Dr Dagher on 6 December 2018 notes the results of a right shoulder MRI. Complaints involving the right shoulder are again noted on 24 January 2019 and 18 March 2019 and consistently thereafter.
An ultrasound report of the right shoulder is included in the file dated 16 August 2013, which noted mild supraspinatus tendonosis without discrete tear and associated mild subdeltoid bursitis with mild “AC joint OA.”
A further ultrasound report of the right shoulder is dated 21 July 2016 and documents a mild tendinotic change of the supraspinatus tendon, otherwise no discrete rotator cuff tendon tear. Subacromial bursitis is also noted. The file also includes a report post ultrasound guided right subacromial bursal steroid injection dated 2 August 2016.
A report of Dr Maniam dated 22 February 2018 addressed to the insurer, notes the claimant was seen on 19 February 2018 after being referred by Dr Dagher. The report states the claimant suffered injuries to his cervical spine, lumbar spine, left chest wall and right knee. Recorded complaints are centred on these body parts. It was also noted the claimant underwent surgery to the cervical spine for an impingement “twenty years ago.”
Examination findings recorded by Dr Maniam include the following statement: “the cervical spine exhibited restricted movements but the shoulders exhibited normal function and the neurological signs were intact.” MRI scans of the cervical spine, thoracic spine were thereafter performed.
A report of Dr Alister Ramachandran, pain medicine specialist, dated 22 October 2018 reports to the GP that the claimant “pain orientated problem list” included the cervical spine, headaches, lumbar pain and psychological issues. The report states the claimant’s pain issues were localised to the cervical spine, lumbar spine and right knee. In respect of the cervical spine it is stated there was referred inter-scapular and shoulder pain.
An MRI of the right shoulder was undertaken and a report dated 15 November 2018 includes the following conclusions found:
“• Partial thickness articular surface tear involving the posterior fibres of the supraspinatus tendon with extension into the superior fibres of infraspinatus, (9mm – AP), and involving up to 40% of the width of the tendon.
(a) Low grade articular surface tear involving the distal, superior fibres of the infraspinatus tendon.
(b) Insertional tendinosis involving the anterior fibres of supraspinatus.
(c) Laminar split within the long head of biceps tendon within the rotator interval and mild tendinosis laterally within the rotator interval.
(d) Moderate AC joint arthrosis
(e) Moderate thickening of the subacromial/subdeltoid bursa represents a bursopathy.”
Dr Dagher’s file includes a physiotherapy “spinal assessment” dated 4 December 2017. It includes a diagram of a human body from each angle. It is shaded to represent symptoms in the left chest area, right leg from knee down, left thigh, the whole of the back and neck, right shoulder and right arm. The notes include a history of the subject motor accident with pain in the cervical and lumbar spine. Steroids was noted in the right shoulder in 2015.
An allied health recovery request for physiotherapy dated 4 December 2017 included findings of examination of the cervical and lumbar spines. Shoulder findings included flexion at 170 degrees bilaterally and shoulder abduction 170 degrees bilaterally.
A report dated 8 December 2017 of the physiotherapist, Mitchell Cook, notes the claimant attended on 4 December 2017 It states the claimant presented with marked neck pain, headaches and lower back pain. It is noted the claimant’s worst pain related to active movement of the neck. The claimant was noted to be pain focussed.
The report states the claimant needed assistance with most activities of daily living due to pain and he had significant muscle guarding through his upper trapezius. Examination findings included decreased movement of the cervical spine, thoracic spine and lumbar spine. There are no recorded shoulder examination findings.
Dr Biggs, orthopaedic surgeon, reported to Dr Dagher on 27 May 2021. The claimant is noted to have given a history of the motor accident and he presented to the examination with “unremitting night pain and a significant functional limitation with the use of the right arm particularly with any attempted above shoulder height level lifting.” Treatment was noted to have included three to four subacromial injections which have provided only short term relief.
Dr Biggs reported hesitant motion in all planes with pain at the end of the range of movements. Active elevation was noted at 100 degrees and external rotation in adduction to 45 degrees with internal rotation limited to the lumbosacral spine. Exquisite subacromial irritability was noted. The doctor felt that the condition warranted surgery in the form of right shoulder arthroscopy and rotator cuff repair.
The claimant attended the emergency department of Westmead Hospital on 2 August 2021 due to lumbar pain and bilateral leg numbness and associated urinary and faecal incontinence. An MRI of the whole spine found no acute cord compression or nerve impingement. It was additionally noted in the discharge summary that the claimant had moderately active degenerative change in bilateral sternoclavicular joints (right greater than left) and bilateral acromioclavicular joints.
RE-EXAMINATION
Mr Skaf attended the medical suites at PIC on 13 March 2024. He was accompanied by his wife.
Pre-accident history
Mr Skaf is married and lives with his wife and has two adult children. At the time of the accident he was working as an interior designer self-employed on a full-time basis. He states that he was active with regular hiking, table tennis, social soccer and swimming. There was a past operation to cervical spine about 30 years ago which had a good result.
Mr Skaf stated that he injured his right shoulder playing table tennis about a year prior to the MVA and due to persistent pain had two cortisone injections into the right shoulder which gave pain relief. He states that the right shoulder was asymptomatic at the time of the accident.
History of motor accident
Mr Skaf was the driver of his car, a Holden Rodeo and stationary when hit from the rear. The impact pushed his car into the truck in front of him. He states that he hit his head with the impact which caused him to break his glasses and bruised his face, right shoulder and right knee. He was wearing a seatbelt at the time but airbags were not deployed. The police and ambulance attended the scene of the accident and after being checked by the ambulance officer, his wife collected him and drove him home.
History of symptoms and treatment following the motor accident
Mr Skaf states that he had shoulder pain immediately after the accident and consulted his GP, Dr Dagher the next day. The GP organised physiotherapy and radiological investigations and prescribed analgesics. He states these injuries at the time of the right shoulder, right elbow, neck and right knee.
His GP referred him to an orthopaedic surgeon Dr Maniam in February 2018. Dr Maniam repeated a cortisone injection to the right shoulder as well as hyaluronic acid injections to the right knee. He states that since the accident he has been having four cortisone injections a year to the right shoulder and is due for repeat injection next week. The injections gave relief for a few weeks. Apparently, Dr Maniam has suggested PRP (platelet rich plasma) injections of the right shoulder and possibly an arthroscopic rotator cuff repair. This was undertaken by Dr Biggs in May 2021. There is also a proposal for excision of the lateral end of the clavicle and subacromial decompression. Mr Skaf stated that he is on the waiting list for the proposed surgery to the right shoulder by Dr Biggs.
Current symptoms
At present, Mr Skaf has low back pain which radiates into the right buttock area and occasionally down the posterior right leg. He also gets anterior right hip pain and numbness over the lateral left thigh which increases with cold weather. There is pain in the right shoulder with abduction or flexion above shoulder height and increases with any lifting. He feels a stiffness in the neck and a burning in the right elbow. There is also pain and numbness in the right little finger. Left shoulder and arm are asymptomatic.
Mr Skaf has not worked since the accident and walks with the help of a walking stick. He is able to drive short distances and does a little gardening.
Current and proposed treatment
Present medication is Lyrica 150mg twice a day, Nurofen two to four a day, Difflam gel to the right shoulder and a sleeping tablet. No manual therapy is being undertaken at present and the last physiotherapy was a year ago. He consults his GP and Dr Maniam on a regular basis.
Clinical examination
Mr Skaf walked into the rooms accompanied by his wife and was using a walking stick but had a normal gait. He states that he is right-handed and weight was 103kg and height 179cm without shoes.
Cervical spine
There was generalised decreased range of movement of the cervical spine with flexion/extension, side bending and rotation were all 50% of expected range with no asymmetry. On palpation, there was tenderness over the cervicothoracic junction but no spasm or guarding was noted in the cervical musculature.
On neurological examination the upper limbs, reflexes were equal bilaterally with normal power and a slight decrease in sensation over the lateral right upper arm and forearm and decreased sensation over the entire right little finger. Tinel’s test was positive at the cubital fossa on the right. No muscle wasting was apparent with the circumference the upper arms 30cm bilaterally (10cm above the olecranon process) and in the upper forearm 29.5cm in the right and 29cm on the left (5cm below the olecranon process).
Shoulders
On inspection, no muscle wasting was apparent with the shoulders but there was tenderness over the right acromioclavicular joint and mild tenderness over the right trapezius muscle with no guarding. On passive movement, no crepitus was detected and impingement tests were positive on the right. Active measurements were measured using a goniometer and repeated.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 90° 150° Extension 40° 60° Adduction 40° 60° Abduction 90° 140° Internal Rotation 30° 70° External Rotation 80° 90°
Mr Skaf stated that the restriction in movement in the right shoulder was due to pain located over the glenohumeral joint with no referral from the cervical spine to either shoulder on movement.
I asked Mr Skaf why the range of movement has deteriorated since the accident and he states that he has no pain for two weeks after the cortisone injection with a better range of movement. He also stated that after the physiotherapy and hydrotherapy he was much improved but can’t explain the more recent deterioration compared to previous medical examinations.
Mr Skaf provided an MRI of the right shoulder dated 14 November 2018 which shows partial tears the supraspinatus and infraspinatus tendons associated with subacromial bursitis and degenerative changes of the acromioclavicular joint. There was also an ultrasound of the right elbow dated 6 November 2018 which shows mild chronic lateral epicondylitis.
Comments
The Panel has determined that Mr Skaf did not, on the balance of probabilities, sustain a rotator cuff tear to his right shoulder as a result of the motor accident on 28 October 2017.
In the initial Certificate of Capacity from the treating GP on 23 November 2017, no shoulder pain was recorded but he did record that there was pain going down the right arm. This does not mean that there has been a shoulder injury. Furthermore, the treating physiotherapist on 4 December 2017, which was six weeks after the accident, recorded that there was shoulder stiffness but a full range of movement of both shoulders. The Panel has determined that had there been an initial rotator cuff tear to the right shoulder in the accident there would be a limitation of movement at that time.
The claimant was referred to Dr Maniam and had his initial consultation on 22 February 2018, there was no documentation of a shoulder injury and he reported that the shoulders had a normal function. He later recorded a shoulder injury which he listed as a comorbidity with chronic pain in the right shoulder. This was documented by an MRI on 14 November 2018 which is over one year after the accident. Mr Skaf also saw a pain specialist, Dr Ramachandran who recorded an injury to the neck, lumbar spine and right knee with some somatic referral of pain from the neck to the intrascapular and shoulder region.
A bone scan on 5 August 2021 reported degenerative changes in the right shoulder region, namely the sternoclavicular, acromioclavicular and mildly in the right glenohumeral joint, which is not indicative of an acute rotator cuff tear.
There was pre-existing bursitis of the right shoulder diagnosed by an ultrasound in July 2016 which was treated by cortisone injection.
When questioned about the lack of recorded complaints regarding the right shoulder, the claimant stated that he did tell the treating doctors of right shoulder pain soon after the accident but there is no documentation in any of the clinical notes. There was mention in the physiotherapy notes, however, as noted above, a full range of motion was recorded which is inconsistent with an acute tear.
The Panel is in agreement with the opinion of Medical Assessors Cameron and Assem that there was no injury to the right shoulder in the subject accident and note that Dr Page considered that there was no injury to the shoulders in a medico-legal report on 7 June 2018 with a full range of movement of both shoulders.
CONCLUSION
The Panel has found that the following treatment and care does not relate to the injuries caused by the motor accident:
(a) MRI Investigation of the right shoulder, as proposed by Dr Vijay Maniam;
(b) right shoulder arthroscopy and rotator cuff repair performed in May 2021 (recommended by Dr Bigges);
(c) proposed excision lateral end of clavicle for osteolysis distal end right clavicle (Dr Maniam);
(d) proposed subacromial decompression for subacromial bursitis in the right shoulder (Dr Maniam);
(e) proposed post-operative physiotherapy (Dr Bigges and Dr Maniam);
(f) proposed post-operative shoulder abduction brace (Dr Maniam), and
(g) three PRP injections to the right shoulder (Dr Maniam).
As the Panel has found that the treatment does not relate to an injury caused by the motor accident, the Panel finds that the treatment is not reasonable and necessary.
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