Abdo-Fareeda v QBE Insurance (Australia) Limited
[2023] NSWPICMP 606
•22 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Abdo-Fareeda v QBE Insurance (Australia) Limited [2023] NSWPICMP 606 |
| CLAIMANT: | Fadya Abdo-Fareeda |
| INSURER: | QBE |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 22 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – MOTOR ACCIDENT INJURIES ACT 2017; REVIEW OF MEDICAL ASSESSMENT; CERTIFICATE ISSUED UNDER SECTION 7.23(1); THRESHOLD INJURIES FOR THE PURPOSES OF THE ACT; ASSESSMENT INCORRECT IN A MATERIAL RESPECT; ADDITIONAL MATERIAL REQUIRED BY REVIEW PANEL; UMBILICAL HERNIA PRESENT PRIOR TO MOTOR VEHICLE ACCIDENT; NO EXACERBATION BY MOTOR VEHICLE ACCIDENT; CONDITION DOES NOT FIT DEFINITION OF NON-THRESHOLD INJURY; CERVICAL SPINE SOFT TISSUE INJURY; HELD – certificate of Medical Assessor Cameron confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel confirms the certificate of Medical Assessor Cameron dated 28 March 2023 and issues a new certificate determining that the following injuries were caused by the motor accident: · cervical spine injury; · lumbar spine injury; · right hip – chondromalacia, truncated labral tip, trochanteric bursitis and tendinopathy, are THRESHOLD INJURIES for the purposes of the Act. · abdomen – umbilical hernia. |
STATEMENT OF REASONS
INTRODUCTION
Fadya Abo-Fareeda (the claimant) suffered injury in a motor vehicle accident on 22 December 2021 when the insured’s vehicle hit the driver’s side of the vehicle which was being driven by the claimant.
The issue in dispute is whether the injuries are classified as a threshold injury within the meaning of the Motor Accident Injuries Act 2017 (MAI Act). The following injuries were referred in the medical dispute:
·abdomen – umbilical hernia;
·cervical spine – spinal nerve dysfunction at C5/6;
·lumbar spine – spinal nerve dysfunction at L5, and
·right hip – chondromalacia, truncated labral tip, trochanteric bursitis and tendinopathy.
The medical dispute was referred to Medical Assessor Cameron who issued a certificate dated 28 March 2023.
ORIGINAL MEDICAL ASSESSMENT
Medical Assessor Cameron concluded that the claimant sustained soft tissue injuries to the cervical spine, lumbar spine and right hip. He certified that the abdomen – umbilical hernia was not caused by the motor accident.
REVIEW
The claimant sought a review alleging that Medical Assessor Cameron’s assessment was incorrect in the material respect primarily on the basis that the claimant suffered a tear in cartilage in the right hip and accordingly this claimant’s right hip injury cannot be considered a threshold injury within the meaning of the legislation. The insurer submitted that simply because there is chondral damage this does not mean that there is a tear or rupture to constitute a non-threshold injury.
The matter was considered by the President’s delegate, Tajan Baba, who determined that the claimant’s application relating to the MRI findings of chondral damage at the right hip and the nature of this injury gives rise to a reasonable cause to suspect that the medical assessment was incorrect in the material respect.
The application was referred to the medical assessment review panel which met on 24 August 2023 at which time directions were made on the parties to provide material from the claimant’s treating practitioner together with any further hospital or clinical notes available to the parties.
The matter was thereafter referred to a further telephone conference which took place on 16 October 2023 at which time the Review Panel determined that the matter was one which could be determined on the papers without the need for a re-examination of the claimant.
MATERIAL BEFORE THE REVIEW PANEL
The Review Panel has considered all material which was before Medical Assessor Cameron as well as the letter from Dr Bernard Zicat to the claimant’s treating practitioner dated 9 November 2022 and correspondence from Dr Khaleal dated 18 July 2022 which notes the existence of the hernia prior to the motor vehicle accident.
BACKGROUND
The claimant is a 33-year-old woman who was injured in a motor vehicle accident on 22 December 2021. The vehicle in which the claimant was the driver was hit by a vehicle that did not obey a traffic signal. Following the accident the claimant was taken to Nepean Hospital and discharged home the same day.
Following an affirmation of the insurer of the decision that the claimant’s injuries were minor injuries for the purposes of the MAI Act and an Application for Medical Assessment was lodged with the Personal Injury Commission (Commission) and the claimant was assessed by Medical Assessor Ian Cameron on 14 March 2023. In a Certificate dated 28 March 2023 the claimant was found to have suffered injuries to her cervical spine, lumbar spine and right hip all of which were found to be minor injuries for the purposes of the Act. He also found that the abdomen-umbilical hernia was not caused by the motor vehicle accident. The claimant sought to have the matter reviewed primarily on the basis that the claimant’s injury to her right hip involved a tear in cartilage and accordingly the claimant’s right hip injury could not be considered a minor injury. The insurer submitted that chondral damage does not indicate a tear or rupture of the cartilage and accordingly constitutes a minor injury. On 15 May 2023 the President’s delegate, Tajan Baba, determined that there is a reasonable cause to suspect that the medical assessment was incorrect in the material respect and accordingly, the matter was referred to the Review Panel.
The Review Panel, met by way of Teams meeting on 24 August 2023 and noted that there was a significant amount of additional material required by the Review Panel before the matter could be determined. This material was provided and the Review Panel again met by way of an audio-visual conference on 16 October 2023 wherein the Review Panel determined there was no requirement to physically assess the claimant but rather that the matter could be considered on the material and papers available to it. The parties were advised that they were to make any further submissions should they consider that the claimant ought to be physically examined together with any further submissions or material upon which they seek to rely no later than 3 November 2023. No additional material has been provided by the parties and accordingly the Review Panel considered all aspects of the assessment under review.
The history of the motor vehicle accident has been obtained from the documentation of medical material. Briefly, Ms Abdo-Fareeda was the driver of the vehicle which was hit on the driver’s side by the insured’s vehicle. An ambulance attended and she was taken to Nepean Hospital and discharged the same day. She complained of symptoms to her right leg and right hip with numbness and spasm as well as neck, back and shoulder pain. She was unable to work following the accident. At the time of her examination by Medical Assessor Cameron on 14 March 2023 she noted that there was an MRI to the right shoulder, she was on a waiting list for a surgical repair of the periumbilical hernia, she had undergone physiotherapy, was returning to driving and was on medications which included Meloxicam, Codapone Forte and Diclofenac.
INJURIES
Abdomen – umbilical hernia
This condition does not fit the definition of non-threshold injury because there is no tear or rupture of tendon, ligament, cartilage or meniscus. An umbilical hernia is a situation where intestine or fat pushes through an opening in the abdominal muscles around the navel (umbilicus) and is not a traumatic tear of muscle. The umbilical area is a lifelong potential site of weakness because the muscle layer at this point is interrupted by the opening at the navel by which the umbilical cord was attached between the maternal placenta and foetus in the uterus.
The Panel notes the correspondence from Dr Khaleal to Dr Meriam Hanna dated 18 July 2022. This report notes the claimant first presented with symptomatic umbilical hernia in December 2021 prior to the motor vehicle accident. It notes that she “had another episode of incarceration following the MVA which was a few weeks following the initial incident”. The Review Panel is satisfied that the hernia was present prior to the motor vehicle accident and was not exacerbated by the motor accident and accordingly cannot be considered to be an injury caused or arising from the motor vehicle accident.
Cervical spine – nerve dysfunction at C5/6
The Review Panel considered that this is a soft tissue injury and therefore a threshold injury, as there is no evidence of annular tear or disruption on MRI scan, and there is no report of clinical findings to support a diagnosis of radiculopathy in the original Medical Assessor’s (Cameron) report. The general practitioner (GP) records provided to the Review Panel do not show any evidence of two or more criteria to allow a diagnosis of radiculopathy as per 6.18 on page 108 of the SIRA Guidelines Version 9.1.
Right hip – chondromalacia, truncated labral tip, trochanteric bursitis and tendinopathy
Based on the information available to the Review Panel, this injury was caused by the motor accident. On review of the evidence, this is a threshold injury. Trochanteric bursitis, as shown on ultrasound scan, is a soft tissue injury.
The MRI scan reveals chondromalacia, which is a softening of cartilage but not a rupture, either partial or complete, of cartilage, and truncated labral tip refers to shortening of the free edge of the labrum at the point furthest from the acetabulum, which is the socket section of the hip joint. The MRI does not display signs typically associated with acute labral injury such as oedema or a frayed traumatic free edge. The MRI scan does not indicate there has been any tear of a cartilaginous structure. The Panel Medical Assessors have determined that the findings reported on the MRI scan indicate degenerative change, not an acute injury. The Panel therefore has classified the right hip injury as a threshold injury.
The Panel notes the report of Dr Khatib, the original treating orthopaedic surgeon, dated 28 April 2022, which diagnosed soft tissue injury of the right hip with no significant joint, bone, tendon or muscle injury.
The correspondence from Dr Bernard Zicat to the claimant’s GP, Dr Meriam Hanna, dated 9 November 2022 notes on examination that the claimant:
“demonstrates good range of motion of her hip, with pain at the extremes”.
It goes on to note:
“She has no evidence of neurological or vascular dysfunction”.
He recommended that if there was evidence of right hip joint injury, that an arthroscopy should follow to determine the nature and extent of cartilage damage in the hip. The evidence available to the Panel suggests that this further treatment was mentioned however the Panel was not provided with any evidence that this took place.
Lumbar spine – spinal nerve dysfunction at L5
The Review Panel determined that the accident was a cause of soft tissue injury to the lumbar spine, however the view of the Review Panel was that it is a threshold injury because there was no annular fissure or tear demonstrated on MRI scan of the lumbar spine and there is no evidence of radiculopathy in Medical Assessor Cameron’s original report to the Commission. The GP records available to the Review Panel did not indicate the presence of two or more criteria to justify a diagnosis of lumbar radiculopathy, as for the cervical spine reference mentioned above.
In summary, the Review Panel found that the motor vehicle accident was a cause of soft tissue injury to the lumbar spine, cervical spine and right hip, all of which are threshold injuries.
The Review Panel does not consider that the umbilical hernia was caused by the motor accident.
Conclusion – threshold injury
For these reasons the Review Panel concludes that the certificate issued by Medical Assessor Cameron is confirmed.
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