AAI Ltd t/as AAMI v Shamsirad

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Ltd t/as AAMI v Shamsirad [2022] NSWPICMP 284
CLAIMANT:	Hosain Shamsirad
INSURER:	AAI Ltd t/as AAMI
REVIEW PANEL:	Principal Member John Harris Medical Assessor Dr Margaret Gibson Medical Assessor Dr Clive Kenna
DATE OF DECISION:	12 July 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 7 February 2020 when his vehicle was hit at the back by the insured vehicle; the issue in dispute was whether he suffered a non-minor injury; Held – radiculopathy can occur at any time relying on David v Allianz Australia Insurance Ltd; an analysis of the medical evidence showed the claimant had three signs of radiculopathy in the C6 dermatome noting the treating reports were business records; ASIC v Rich and Hancock v East Coast Timber Products Pty Ltd referred to; findings made that the tear of the right supraspinatus was probably extended from the motor accident; assessment revoked and findings made that the claimant suffered non-minor injuries.

Medical Assessment – Minor injury

Review Panel Assessment of Minor Injury
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel revokes the certificate dated 13 November 2021 and issues a new certificate determining that:

Cervical spine injury – right C6 radiculopathy; and
Right shoulder injury - aggravation of supraspinatus tear
Is not a MINOR INJURY for the purposes of the Act.

STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT

REASONS

BACKGROUND

Mr Hosain Shamsirad (the claimant) suffered injury in a motor accident on 7 February 2020 when his vehicle was hit at the back by the insured vehicle.
The insurer insured the owner and driver of the motor vehicle for liability to pay to Mr Shamsirad any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue presently in dispute is whether Mr Shamsirad’s injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”.
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.
The dispute was referred to Medical Assessor Truskett who issued a Medical Assessment Certificate dated 13 November 2021. Medical Assessor Truskett concluded that Mr Shamsirad sustained a number of injuries which are a minor injury for the purposes of the MAI Act and otherwise sustained a right shoulder injury which was classified as a non-minor injury.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to claim ongoing statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[2]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[3]
[2] Sections 3.11 and 3.28 of the MAI Act.
[3] Section 4.4 of the MAI Act.

THE REVIEW

The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
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.[5]
[5] 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[6] that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] 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.[7]
[7] 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.[8]
[8] 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.[9]
[9] Section 7.26(6) of the MAI Act.
The Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered.
The Panel issued a further Direction requiring further submissions that were partly complied with by the parties. The responses to this direction are summarised later in these Reasons however they did not assist the Panel in respect of the issue of cervical spine surgery.
The claimant was again asked to address paragraph 1(c) of the Panel’s direction dated 31 May 2022.
The Panel issued a further direction dated 1 July 2022 advising the parties that:
1.     The parties are advised that the Panel may apply, with respect to the allegation of non-minor injury of the cervical spine injury, that:
(a)radiculopathy can occur at any time: David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227 at [84]-[104]; and
(b)the consequences of the injury such as surgery can be considered as part of the determination of whether the injury is classified as non-minor.
2.     The Panel does not propose to examine the claimant as the issues relate to causation, diagnosis and potentially the consequences of the injuries sustained in the motor accident.
3.     The insurer is to file any submissions addressing these matters by close of business, 12 July 2022.
The insurer accepted that the Panel is not required to examine the claimant as the issues relate to causation, diagnosis and potentially the consequences of the injuries sustained in the motor vehicle accident. It otherwise referred to its initial submissions.

STATUTORY PROVISIONS

A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI 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 minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
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 minor injury for the purposes of the Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor 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 minor injury.
5.5    A diagnosis for the purpose of a minor 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 minor 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.”
Clause 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 minor injury. An injury resulting in radiculopathy will not be classified as a minor 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.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[10]
[10] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act[11].
[11] See s 3B(2) of the Civil Liability Act, 2002.

ASSESSMENT UNDER REVIEW

Medical Assessor Truskett recorded the following history of the motor accident:
“He was involved in a motor vehicle accident on 07 February 2020 at approximately between 6:30 and 7 pm. He was the driver and sole occupant of a Holden Cruze, year model 2014. He was wearing a seatbelt. The car was fitted with headrests. Airbags were fitted but not deployed. It had been raining and the road was wet. He was proceeding along Richmond Road, Blacktown. He was approaching traffic lights which were red. He stopped in a line of traffic. `
Apparently, there was a vehicle travelling behind him that was moving very quickly and swerved out of the way. The vehicle behind that vehicle was unable to stop and hit the rear of Mr Shamsirad’s vehicle. Mr Shamsirad’s vehicle was then pushed forward into the vehicle in front of him. He was not knocked out. He recalled hitting his chest against the steering wheel. He was assisted by passers-by from his vehicle and sat on the footpath. His car was not driveable and towed away. It was later written off. He received $7000 compensation for the vehicle.”
Medical Assessor Truskett noted that the numbness of the right hand and arm has improved following surgery. He made a finding that there were right arm symptoms did not satisfy radiculopathy.
The Medical Assessor made the following diagnosis of injuries suffered in the motor accident.
“From documentation, reviews and history Mr Shamsirad has considerable degenerative change of his neck which was previously symptomatic requiring injection. He denied previous shoulder pain. After the motor vehicle accident, he attended his local medical practice complaining of abdominal pain only. It was not until two days later that neck pain and right shoulder pain was described. There was no mention of left arm pain until 27 August 2020.
From imaging reviewed there was no evidence of cervical disc rupture. There is, however, ultrasound evidence and MRI evidence of a partial thickness tear of supraspinatus of the right shoulder and a full thickness tear of the left shoulder on ultrasound. There was, however, no evidence of left shoulder injury.
It would therefore be considered that there has been, as a result of the motor vehicle accident, aggravation of pre-existing degenerative cervical disease. Partial thickness tear of the right supraspinatus tendon. There is no evidence of left shoulder injury. The rotator cuff tear described would have to be considered degenerative.
In relation to the numbness of the right arm, fingers, and hand this would relate to a non-verifiable radicular complaint of the right upper limbs as a consequence of aggravation of previous degenerative changes of the neck.
In relation to the chest, there may have been soft tissue injuries but there is no bony injury.
In relation to the stomach, there may have been soft tissue injury but no other injury. The dyspepsia described is pre-existing and unrelated to the motor vehicle accident.”

MATERIAL BEFORE THE REVIEW PANEL

The parties filed bundle of documents in accordance with the initial Direction.
The ambulance attended Mr Shamsirad at the accident scene. The officer noted the claimant was in the vehicle “which sustained most impact”. Mr Shamsirad complained of abdominal and lower back pain with complaints of pain in a lap belt distribution. The claimant did not want to go to hospital against the advice of the officer.[12]
[12] Claimant’s bundle, page 80.
On 8 February 2020 the general practitioner referenced only “mild abdominal pain”.[13]
[13] Claimant’s bundle, page 201.
On 10 February 2020 the general practitioner noted “pain in the chest area and neck straightaway” and “now mostly c/o severe neck pain” with numbness over the fourth and fifth fingers.[14] Imaging of the cervical spine was requested. On 12 February 2020 the general practitioner noted that “numbness might be a bit worse” and referred the claimant to physiotherapy.[15] The referral noted “radiculopathy to rt hand” in the context of degenerative disc disease which was aggravated by the motor accident.[16]
[14] Claimant’s bundle, page 202.
[15] Claimant’s bundle, page 203.
[16] Claimant’s bundle, page 336.
On 14 February 2020 the general practitioner reviewed the CT scan of the cervical spine. The doctor described the numbness as “getting worse”.[17] Relevantly the CT scan showed diffuse disc osteophyte and advanced bilateral foraminal stenosis at C5/6.
[17] Claimant’s bundle, page 203.
Mr Shamsirad completed a motor accident claim form on 15 February 2020.[18] Mr Shamsirad stated that the insured vehicle hit his vehicle at “considerable speed” which pushed his vehicle into the next vehicle. He described “chronic neck and chest pain” which was “very severe”.
[18] Claimant’s bundle, page 1.
An ultrasound of the right shoulder dated 17 February 2020 referred to a clinical history of right shoulder pain following the accident with findings of a full thickness tear of the supraspinatus.[19]
[19] Claimant’s bundle, page 76.
Physiotherapy commenced on 20 February 2020. The pain diagram showed right sided neck pain into the shoulder region with pain down the arm into the middle fingers.[20]
[20] Claimant’s bundle, page 175.
The MRI scan of the right shoulder dated 5 March 2020 referred to a clinical history of neck and shoulder pain with paraesthesia of the index and third fingers.[21] Dr Chris O’Donnell, radiologist, concluded that the scan showed supraspinatus tendinopathy and intrasubstance tearing without full thickness defect and probable tear of the superior labrum.
[21] Claimant’s bundle, page 86.
The claimant’s general practitioner, Dr Bagherian, completed a questionnaire from the insurer on 24 March 2020.[22] The doctor confirmed he had treated Mr Shamsirad for two years and three months and certified injuries as a result of the motor accident as deterioration of multilevel discopathy and foraminal stenosis and supraspinatus tendinopathy and intra-substance tearing.
[22] Insurer’s bundle, page 368.
Dr Bagherian noted findings on examination as:[23]
“Decreased ROM of Rt arm due to shoulder injury and radiculopathy, diminished reflexes of right arm + numbness of the middle fingers + paraesthesia. Increased pain in neck 7/10.”
[23] Insurer’s bundle, page 368.
The doctor noted that Mr Shamsirad had cervical symptoms in the past, he was “stable, asymptomatic and able to do his job”.
On 25 March 2020, Dr Bagherian noted decreased right-side reflexes, decreased power (3/5) and sensation decreased on the C6 distribution.[24]
[24] Insurer’s bundle, page 288.
The MRI scan of the cervical spine dated 16 April 2020 noted a clinical history of neck and shoulder pain following motor accident with radiculopathy, paraesthesia of index and third fingers on the right side. The scan showed a prominent focal central disc protrusion compressing the anterior cord with degenerative changes causing severe foraminal narrowing bilaterally with potential for bilateral C6 nerve root irritation.
Dr Bagherian provided a referral to Dr Ali Ghahreman, neurosurgeon dated 22 April 2020.[25] The doctor noted neck and radicular arm pain since the motor accident with “tingling and numbness on his rt middle fingers”.
[25] Insurer’s bundle, page 338.
Dr Bagherian provided further responses to the insurer in a letter dated 3 May 2020.[26] The doctor noted prior cervical disc disease which was “quite stable prior to accident”. The signs of radiculopathy described by the doctor were:
“[N]umbness in deep touch diminished in comparison to the left side. The reflexes also is less prominent. Pain is the most symptom.”
[26] Insurer’s bundle, page 98.
The doctor described radiculopathy in the C4, C6 and C7 dermatomes although the reference to C7 is an error and is in the C6 dermatome. We return to this later.
Dr Ali Ghahreman, neurosurgeon, provided a report dated 26 June 2020.[27] The doctor noted right sided neck pain with radiation down to the right forearm and numbness of the right-hand including thumb, index and middle fingers. Prior neck pain “some years ago” was managed with injections which was asymptomatic at the time of the motor accident.
[27] Claimant’s bundle, page 92.
Examination showed “areflexia in the upper limbs” with a faint Hoffman’s sign on the right side and significant bilateral shoulder weakness, more so on the right. Spurling’s test was positive with bilateral paraesthesia in C6 and C7 distributions. Dr Ghahreman stated:[28]
“Corresponding his clinical and radiological picture, the primary problem is severe bilateral C5/6 foraminal stenosis, with the recent motor vehicle accident being a substantial contributor to the development of bilateral C6 radicular symptoms and neck pain.”
[28] Claimant’s bundle, page 93.

Dr Ghahreman recommended a transforaminal injection at C5/6 which should be paid by the insurer as the “symptoms were triggered by the accident”. The doctor then suspected that due to the severity of the foraminal stenosis and persistence of neurologic sensory changes and pain, some surgical intervention would be required.
A right C6 perineural injection was undertaken on 10 August 2020.[29]
[29] Claimant’s bundle, page 96.
On 25 August 2020 Dr Ghahreman noted persisting right hand numbness and clumsiness and a sense of reduction of dexterity that was not improved following recent conservative management.[30] The doctor opined that the changes on MRI scan and the neural swelling involving the exiting C6 nerve roots following the motor accident have cause the persistent hand numbness and loss of dexterity. Dr Ghahreman recommended a cervical discectomy and fusion at C5/6 which, in light of the persistent hand numbness and weakness, should proceed as soon as possible.
[30] Claimant’s bundle, page 97.
Dr Ghahreman completed a recommendation for admission to hospital noting “severe C6 radiculopathy secondary to injury and C5/6 discovertebral bar and foraminal stenosis."[31]
[31] Claimant’s bundle, page 99.
An anterior discectomy and fusion at C5/6 was undertaken by Dr Ghahreman on 4 November 2020.[32] The operative report noted good right C6 decompression with the cord decompressed including calcified disc fragment.[33]
[32] Claimant’s bundle, page 254.
[33] Claimant’s bundle, page 256.
In a post examination report, Dr Ghahreman stated:[34]
“This gentleman had significant neck and upper limb brachialgia and paraesthesia due to accident. He has undergone anterior cervical discectomy and fusion with good result but I think requires some physiotherapy now and I have suggested an independent review by a shoulder surgeon as well.”
[34] Claimant’s bundle, page 353.
Dr John Korber, radiologist, was qualified by the insurer and provided a report dated 6 July 2020 described as a radiology, imaging and file review.[35]
[35] Insurer’s bundle, page 242.
Dr Korber reviewed the scans of the neck and right shoulder and stated:[36]
“The right middle finger and right index finger symptoms could conform to a right C6 nerve root. The patient does not have an acute disc herniation at this level. He has cervical spondylosis with some narrowing of the disc space. If it is clinically confirmed, he could have aggravated a pre-existing condition.”
[36] Insurer’s bundle, page 245.
Later in his opinion, Dr Korber noted that the findings of the cervical spine are degenerative.
Dr Korber noted that the ultrasound showed a full thickness tear of the right supraspinatus and that the MRI was reported as not showing a full thickness tear. The doctor opined that there “probably is a full thickness (tear), but the fibres have not yet become detached”.
In respect of the right shoulder pathology, Dr Korber opined:
“In general terms, it is impossible to determine whether the claimant has aggravated a pre-existing condition or extended a tear but I suspect most of the findings have been present in the shoulder for some time. Not mentioned to date is the acromioclavicular joint which demonstrated bone oedema and could be symptomatic but requires clinical correlation. It is theoretically possible to injure the right shoulder with the seat belt.
….
It is not possible to say. It is extremely unlikely that the rotator cuff tear was caused by the injury, but could have been extended”.

RE-EXAMINATION

The Panel determined that it did not require Mr Shamsirad to be re-examined. This is because Mr Shamsirad has undergone cervical spine surgery which is reported as relieving radicular symptoms.
We have relied upon the clear findings made by Medical Assessor Truskett on history and the claimant’s examination. There were no submissions suggesting error in the clinical findings made by Medical Assessor Truskett.[37] Further, the issues ventilated by the parties concern causation and turn upon a close examination of the clinical records. Accordingly, we have also considered the material in determining whether there were past signs of radiculopathy and the issue of the extent of the right shoulder injury.

SUBMISSIONS
Claimant’s submissions dated 8 February 2022
[37] See the discussion by Leeming JA in Sydney Trains v Batshon [2021] NSWCA 143 at [41], White and McCallum JJA agreeing.

These submissions were filing opposing the application to review. The claimant noted that the right shoulder was mentioned by the general practitioner on 10 February 2020, and he was then referred for an ultrasound. In March the claimant was referred for an MRI scan of the right shoulder.
The claimant noted that the insurer had selectively quoted from Dr Korber’s opinion. He submitted that Dr Korber appears to have accepted that the motor accident aggravated or extended the shoulder tear. Further, the claimant’s pre-accident history and consistent post-accident complaints supports his case. There is no evidence of pre-accident complaints and the insurer’s submissions are speculative.

Claimant’s submissions dated 27 May 2022

The claimant confirmed that the general practitioner notes for the two years preceding the motor accident were before the Panel. He otherwise addressed the allegation of right shoulder injury and did not address the issue of whether the fact there had been cervical spine surgery meant that it was a non-minor injury.

Insurer’s submissions dated 22 March 2021[38]

[38] Insurer’s bundle, page 1.

The insurer submitted that the scan evidence showed degenerative changes at multiple levels with canal stenosis most marked at C5/6. The claimant’s physiotherapist provided a consistent diagnosis of whiplash Grade 1 noting “pain, intermittent neurological symptoms and reduced range of movement”. It submitted that the physiotherapist conducted thorough assessments and did not provide nor report symptoms to substantiate two signs of radiculopathy.
The insurer referred to the general practitioner’s opinion provided in a radiculopathy questionnaire which referred to symptoms in three dermatomes. It submitted that the doctor did not report symptoms in accordance with paragraph 5.8 of the Guidelines.
The insurer referred to part of Dr Ghahreman’s August 2020 report. It submitted that the medical evidence “is inconsistent across the Claimant’s GP, Neurosurgeon and Physiotherapist to conclude that the Claimant presents with two (2) or more genuine clinical signs.”[39]
[39] Insurer’s bundle, page 3.
The insurer noted that Dr Bagherian provided a diagnosis of right shoulder cuff injury. The physiotherapist in any of the requests for treatment did not diagnose or report any clinical findings in relation to the right shoulder.
In August 2020 Dr Ghahreman noted hand symptoms which were referred from the cervical spine rather than the right shoulder.
The insurer submitted that had there been an acute traumatic tear then the claimant would have experienced immediate severe signs of rotator cuff pathology including distinct weakness in movement and a positive “empty beer can test”.
The insurer submitted that there is no available evidence to suggest that the various other allegations of injury were not referred for treatment, radiological investigation or evidence of being non-minor.

Insurer’s submissions dated 17 December 2021

These submissions were filed seeking leave to review the Medical Assessor’s determination.
The insurer submitted that there was a lack of right shoulder complaint to the ambulance officer and indeed, the opposite was recorded as the officer recorded equal strength in both shoulders. Further, the physiotherapist, over the course of four treatment programs (32 sessions), did not diagnose or report any right shoulder injury.
The insurer referred to Dr Korber’s opinion that it was extremely unlikely that the rotator cuff tear was caused by the motor accident. This opinion was not considered by the Medical Assessor.
The insurer submitted that there was only non-specific right shoulder pain. The radiological evidence did not reference acute trauma and showed widespread degenerative changes which cannot be attributed to the motor accident.

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor 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[40] and Insurance Australia Ltd v Marsh.[41]
[40] [2021] NSWCA 287 at [40], [41] and [45].
[41] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[42] that radiculopathy can be present at any time to satisfy the concept that the injury is not minor for the purposes of the MAI Act.
[42] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[43] that the claimant bears the onus of proof in establishing that any injury is not a minor injury for the purposes of the MIA Act.
[43] [2022] NSWPICMP 6 at [44]-[62].
The claimant was not re-examined by the Panel because, on all accounts, the radiculopathy in the C6 dermatome resolved following the surgical procedure. That there was C6 radiculopathy is clear despite the insurer’s submissions to the contrary. Whilst Medical Assessor Truskett found that there was no radiculopathy at time of his examination, which is undoubtedly correct, he did not address whether there were past signs of radiculopathy.

Cervical spine injury

It did not appear to be disputed by the insurer that Mr Shamsirad sustained a cervical spine injury. Whilst the complaint was not mentioned to the ambulance officer, it was reported to the general practitioner on 10 February 2020. The symptoms had obviously commenced prior to that appointment. A short delay in onset of symptomatology for a significant rear end collision is medical plausible in circumstances where there is no other reasonable explanation.
The medical evidence from the general practitioner who had treated the claimant for a significant period prior to the motor accident was that Mr Shamsirad had prior cervical spine symptoms but was “stable, asymptomatic and able to do his job”. We accept this history of absence of symptoms immediately preceding the motor accident.
It is correct that the claimant has a degenerative cervical spine and that the various scans do not show traumatic injury. However, that submission, frequently made by insurers, does not address the correct question whether the degenerative condition was aggravated by the motor accident.
That issue recently was recently discussed by Brereton JA in Lederer v Insurance Australia Ltd[44]when his Honour stated:
[44] [2022] NSWSC 322.
44.    I agree that the assessor was not required to respond word by word to Dr Steel’s analysis. But he was required to consider, and to show that he had considered, the question of whether pre-existing age-related degenerative illness was aggravated and/or rendered symptomatic by the accident. This is particularly so in circumstances where:
(1) there is no evidence that the plaintiff’s neck was other than asymptomatic before the accident;
(2) the motor vehicle in which she was travelling was “rear ended” by another at high speed;
(3) it is accepted that she incurred a soft-tissue injury of the cervical spine in the accident;
(4) on any view, she was complaining of neck pain within three days after the accident (and on her account suffered such pain immediately), and that pain progressively deteriorated, although at one stage it was alleviated by a steroid injection; and
(5) it was ultimately somewhat mitigated by Dr Steel’s surgery.
45.    Even if one puts aside her own evidence of immediate symptoms and relies only on Dr Segel’s notes of 7 June 2016, the concurrency of her neck pain becoming symptomatic with the soft-tissue cervical injury admittedly incurred in the accident is striking. Even without Dr Steel’s evidence, this required consideration of the familiar phenomena by which a pre-existing asymptomatic age-related degenerative condition becomes symptomatic because of some trauma. In this case, that was fortified by Dr Steel’s evidence.
46     The assessor rejected that the plaintiff had an acute neck injury in the accident (as is common ground), and accepted that she had a pre-existing spinal disease (as is common ground). He accepted that she incurred a soft-tissue injury to her cervical spine in the accident. However, he nowhere addressed the question of whether the pre-existing disease was aggravated or rendered symptomatic by the accident. In so doing, he failed to engage with and evaluate Dr Steel’s report; and he failed to engage with the substance of the plaintiff’s case, or to give reasons which explained why he rejected it.
We appreciate that findings of fact in other cases do not create legal precedent[45] and indeed, Brereton JA was not making findings although making observations based on logic and commonsense that have general application. His Honour emphasised that cases based on an allegation of an aggravation of degenerative changes is not rebutted by the submission that the changes shown on the scans are degenerative.
[45] Edwards v Noble [1971] HCA 54 at [14] per Barwick CJ.
Dr Korber acknowledged that if the symptoms are “clinically confirmed, he could have aggravated a pre-existing condition.”
The confirmation of the clinical signs is confirmed in the clinical notes of the general practitioner, the physiotherapist who was treating a cervical spine condition, the clinical history reported in the various scans and the findings made by the treating neurosurgeon. Indeed, as the insurer emphasised in its submissions on the issue of right shoulder, the physiotherapist was not treating a discrete right shoulder injury but cervical spine pain and radicular symptoms.
The evidence supporting injury to the cervical spine is compelling.
We accept the history reported by the general practitioner that Mr Shamsirad, had an asymptomatic degenerative cervical spine at the time of the motor accident. Mr Shamsirad was involved in a significant motor accident at speed when his vehicle was shunted into the vehicle in front. The forces involved in that type of collision will result in the cervical spine flexing forward and backwards in a short period posing stress on the various joints.
Within a short period of days Mr Shamsirad was complaining of severe neck pain and describing sensory symptoms extending into the middle fingers of the right hand. It is medically plausible that a short delay of this period is causatively related to the motor accident particularly in circumstances where there is no alternative history of intervening events
The scan evidence shows degenerative pathology at C5/6 which could cause the radicular symptoms in the C6 dermatome. Dr Korber’s opinion confirms this. The medical expertise of the Panel agrees with it.
The cervical spine MRI scan shows severe bilateral C5/6 foraminal stenosis which could cause C6 radiculopathy because of the potential for bilateral C6 nerve root irritation. This view is consistent with the opinion of Dr Ghahreman that there was severe C6 radiculopathy and Dr Korber’s opinion that the symptoms in the right index and middle fingers, if clinically established, were in the C6 dermatome.
The various recorded histories were that the radicular symptoms were ongoing and not relieved by conservative treatment which included physiotherapy and a right sided C6 injection. Dr Ghahreman then performed discectomy and fusion at C5/6 which was primarily directed to relieving the radicular symptoms. On the histories subsequent to the surgery, reported by Dr Ghahreman and Medical Assessor Truskett, that procedure relieved the radicular symptoms.
For these reasons we find that the motor accident caused an aggravation of degenerative changes in the cervical spine which resulted in C6 radicular symptoms which ultimately led to the fusion at C5/6.

Signs of radiculopathy

The first issue is whether Mr Shamsirad had two signs of radiculopathy as defined by cl 5.8 of the Guidelines. For the following reasons we are satisfied that Mr Shamsirad had at least two signs in the C6 dermatome as a result of the motor accident which aggravated the degenerative changes in the C5/6 disc.
The insurer submitted that the various findings were inconsistent and did not establish two signs of radiculopathy under the Guidelines. First, we do not agree that the findings were inconsistent and are, to the contrary, consistent. Mr Shamsirad showed clear signs in the C6 dermatome resulting in the surgery performed by Dr Ghahreman.
Secondly, the reports were provided by treating doctors commenting on symptoms and appropriate treatment and not written for the purpose of addressing the Guidelines for establishing radiculopathy as required under the moor accidents legislation. That observation is particularly true of the treating neurosurgeon who has specific expertise in assessing neurological symptoms and whose reports, by themselves, establish two signs of radiculopathy in accordance with cl 5.8 of the Guidelines. That the Panel is required to analyse the reports does not detract from their accuracy and reliability, merely that they are not written for treating purposes and not for the purposes for which they are now being analysed.
The reports written by Dr Ghahreman come into existence as business records and should be considered in that context. That notion was considered in Rich v ASIC[46] and referred to in Hancock v East Coast Timber Products.[47] It is mentioned in these reasons because it is not unexpected, from the nature of the reports, that the Panel is required to analyse the reports in assessing whether the claimant has satisfied a radiculopathy sign in cl 5.8 and Table 6.8 of the Guidelines.
[46] [2005] NSWCA 233 at [13].
[47] [2011] NSWCA 11 at [93].
However, the Panel observes that a report from the treating surgeon specifically addressing the signs of radiculopathy would have been of assistance.

Sensory loss

First, Mr Shamsirad had sensory loss in the C6 dermatome. This finding is clear from consistent complaints that Mr Shamsirad had of sensory loss in the index and third finger of the right hand as shown by:
-      the pain diagram of the physiotherapist showing symptoms into the middle fingers;[48]
-      clinical history recorded in the original MRI scan of the right shoulder and MRI scan of the cervical spine of paraesthesia of the index and third fingers[49];
-      clinical notes and reports of the general practitioner[50], and
-      reports by Dr Ghahreman dated 26 June 2020 referring to sensory loss in the index and middle fingers and referring to bilateral paraesthesia in the C6 distribution.[51]
[48] Claimant’s bundle, page 175.
[49] Claimant’s bundle, page 86.
[50] See for example insurer’s bundle, page 288 (clinical note dated 25 March 2020), 338 (report dated 22 April 2020).
[51] Insurer’s bundle, page 98.
Far from being “inconsistent” as the insurer submitted, there are consistent complaints of sensory loss in the C6 dermatome. The Panel in its medical expertise accepts that Mr Shamsirad had sensory loss in the index and third fingers in the C6 dermatome.
We do not accept the insurer’s submission that the clinical notes of the physiotherapist detract from this conclusion. Most of the notes are illegible and it is difficult to interpret them. Otherwise, the pain diagram drawn by the physiotherapist is consistent with our finding of sensory loss into the middle fingers.
The insurer did not refer to Dr Korber’s opinion and only referenced a portion of Dr Ghahreman’s report. It relied on unclear notes of the physiotherapist in circumstances where the treating neurosurgeon made clear findings which were consistent with Dr Korbel’s opinion concerning sensory loss in the C6 dermatome.

Further, the clinical sign of sensory loss was part of Dr Ghahreman’s opinion for performing a C5/6 fusion which resolved following the surgical procedure.

Muscle weakness

On 25 March 2020 Dr Bagherian noted decreased power (3/5). On 25 August 2020 Dr Ghahreman recorded:[52]
“He has persisting right hand numbness and clumsiness, a sense of reduction in his hand’s dexterity that has not improved following his attempt at conservative management with physiotherapy and injection therapy.”
[52] Claimant’s bundle, page 97.
After referring to the findings shown on the MRI scan of the cervical spine, Dr Ghahreman stated:
“These changes and the neural swelling involving the exiting C6 roots following the MVA has caused the persisting hand numbness and loss of dexterity.”
Whilst there are signs of muscle weakness, we are not satisfied that they are in the C6 dermatome.

Sciatic nerve root sign

The insurer noted[53] the reference in the clinical notes on of the general practitioner on 25 March 2020 to the claimant cannot “hold posture due to pain” and was “elevating right shoulder to minimise pain and getting comfortable”.[54]
[53] Insurer’s bundle, page 15.
[54] Claimant’s bundle, page 206.
Arm elevation takes the brachial plexus and nerve root off stretch thereby decreasing or easing referral of symptoms into the upper limb. It is a positive sciatic nerve root sign in the C6 dermatome.

Loss or asymmetry of reflexes

Dr Bagherian noted decreased right-side reflexes in his clinical note on 23 March 2020.[55] That note does not precisely specify the C6 dermatome although the line below refers to decreased sensation in the C6 dermatome. This note was confirmed in a report dated 25 March 2020. Dr Bagherian also noted less prominent reflexes in a letter to the insurer dated 3 May 2020.
[55] Insurer’s bundle, page 288.
Dr Ghahreman also observed “areflexia” in the upper limbs.
It is unclear whether the loss of reflexes pertains to the C6 distribution although they may do because the principle radicular symptoms are in that distribution. Accordingly, it is also possible that Mr Shamsirad had recorded reduction of reflexes in the C6 distribution.
Based on our findings the Panel has identified two signs of radiculopathy in the C6 right dermatome, and possibly a third. For these reasons, Mr Shamsirad sustained a non-minor injury because he satisfied the definition of radiculopathy.

Cervical spine surgery

A separate issue is whether the C6 discectomy and C5/6 fusion means that the injury is not minor for the purposes of the MAI Act.
“Injury” is defined in s 1.4 of the MAI Act and means personal or bodily injury and is defined to extend to other meanings not here relevant.
“Motor accident” is also defined in s 1.4 and means “an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused” during certain circumstances.
We have earlier found that the surgical procedure was causatively related to the motor accident. The surgery involved the cutting of skin, tendons, ligaments, and cartilage and arguably takes any injury out of the concept of “minor injury”.
The parties were invited to but failed to provide proper submissions on this issue. Given the absence of proper submissions we have noted but not decided the issue on this basis.

Right shoulder injury

The insurer did not properly refer to the content of Dr Korber’s opinion on the right shoulder pathology. Dr Korber noted that whilst the MRI scan was reported as not showing a full thickness tear there “probably is a full thickness tear, but the fibres have not yet become detached.” The doctor stated:[56]
“In general terms, it is impossible to determine whether the claimant has aggravated a pre-existing condition or extended a tear but I suspect most of the findings have been present in the shoulder for some time.”
[56] Insurer’s bundle, page 245.
In response to an unknow question but probably about the aetiology of the shoulder pathology, Dr Korber then stated:
“It is not possible to say. It is extremely unlikely that the rotator cuff tear was caused by the injury, but could have been extended.”
We accept the history recorded by the general practitioner that there were no prior symptoms in the right shoulder. This history was confirmed by the Medical Assessor.[57]
[57] Claimant’s bundle, page 69.
There are reasonable contemporaneous complaints of right shoulder pain following the motor accident by the general practitioner who referred Mr Shamsirad for a right shoulder ultrasound. We do not consider the absence of clear complaint to the ambulance officer or the physiotherapist to undercut the history recorded by the general practitioner.
The insurer referred to the notes of the ambulance officer. However, the officer noted pain “7/10 bilaterally” in a lap belt distribution and conceded that there may be symptoms “that I can’t see or assess” and recommended that the claimant go to hospital.[58]
[58] Claimant’s bundle, page 80.
This was a significant rear end collision with an obvious soft tissue injury to the chest. The claimant was the driver with the seatbelt over the right shoulder. There would have been clear forces impacting through the right shoulder from the collision especially as the claimant was the driver with the seat belt over his right shoulder. Considering the significance of the collision, the absence of prior symptoms and the subsequent right shoulder complaint with the clear pathology shown on the scans, we accept that the right shoulder supraspinatus tear was extended by the motor accident.
This conclusion is consistent with Dr Korber’s opinion that the right shoulder tear was not caused by the motor accident “but could have been extended”.
An increase in the supraspinatus tear caused by the motor accident is not a minor injury within the meaning of the MAI Act.

Other injuries

We do not accept, for the reasons provided by Medical Assessor Truskett, that the left shoulder was injured in the motor accident.
We otherwise agree with the insurer’s submission that the various other allegations of injury do not meet the classification of non-minor. The chest X-ray was normal but noted breathing difficulties following the motor accident.[59] This is consistent with a minor injury to the chest.

[59] Claimant’s bundle, page 72.

CONCLUSION

For these reasons the Panel concludes that Mr Shamsirad suffered non-minor injuries to the right shoulder and suffered from right sided radiculopathy in the C6 dermatome. The certificate is revoked and a replacement certificate is issued.

[2022] NSWPICMP 284

12 July 2022