Abedi v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 26
•16 January 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Abedi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 26 |
| CLAIMANT: | Ali Abedi |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Clive Kenna |
| DATE OF DECISION: | 16 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant was injured in a motor vehicle accident on 17 January 2022; the following injuries were threshold injuries, soft tissue injury left shoulder, thoracolumbar soft tissue injury, thoracolumbar spine; Held – Certificate of MA Bernard Tamba-Lebbie affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel affirms the Certificate of Medical Assessor Bernard Tamba-Lebbie on the basis that it reads as follows: The following injuries caused by the motor accident: · Soft tissue injury left shoulder · Thoracolumbar soft tissue injury – thoracolumbar spine are THRESHOLD INJURIES for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Ali Abedi (Mr Abedi/the claimant) was born in Lebanon in March 1994, and has been a resident in Australia since 2016.
History of motor vehicle accident
Mr Abedi gave the following history to Medical Assessor Clive Kenna:
“…on 17 January 2022, he was the driver of a car when another car entered the intersection, failed to stop and impacted the passenger side of his vehicle. There was no loss of consciousness and he was able to exit the car. He states he was wearing a seatbelt at the time, but didn’t seek any immediate help, nor did he attend hospital.
Subsequently, he was reviewed by his general practitioner approximately a month later because of his persistent pains in particular pertaining to the lower back. There was also a complaint of some left shoulder pain.”
THE ASSESSMENT OF MEDICAL ASSESSOR BERNARD TAMBA-LEBBIE
The Medical Assessor assessed the claimant on 17 July 2023.
The following injuries were referred to the Medical Assessor for assessment:
· left shoulder injury, and
· lumbar spine injury.
The Medical Assessor had available the radiological imaging and documents to which he refers at page 5 [15]-[16]:
• Claimant’s submissions dated 5 August 2022
• Liability Notice – Minor Injury Determination dated 17 June 2022
• Application for Internal Review dated 4 July 2022
• Internal Review Outcome dated 25 July 2022
• Certificate of Capacity of Dr Christopher An dated 22 March 2022
• Referral of Dr Christopher An for MRI left shoulder 22 March 2022 23
Personal Injury Commission ‖ Sensitive – Personal and Health Information 6
• Referral of Dr Christopher An for MRI lumbar spine 22 March 2022 24
• Certificate of Capacity of Dr Mozhgan Karimi 2 April 2022 25
• MRI left shoulder report of Dr Luke Deady 4 April 2022 28
• MRI lumbar spine report of Dr Luke Deady 4 April 2022 29
• Referral of Dr Mozhgan Karimi for physiotherapy 7 April 2022 31
• Referral of Dr Mozhgan Karimi of Ms Ellena Daniele 7 April 2022 32
• Referral of Dr Mozhgan Karimi to Dr Nadeem Sheikh
• Application to Admit Late Documents dated 26 October 2022
• Submissions of Insurer dated 12 September 2022
• Application for Personal Injury Benefits dated 18 March 2022
• Liability Notice – Benefits up to 26 weeks dated 31 March 2022
• Liability Notice – Benefits after 26 weeks dated 17 June 2022
• Request for Internal Review dated 04 July 2022
• Internal Review Certificate dated 25 July 2022
• Clinical Records – Belmore Medical Centre various dates
• Certificate of Capacity/ Fitness dated 22 March 2022
• Certificate of Capacity/ Fitness dated 02 April 2022
• Certificate of Capacity/ Fitness dated 03 May 2022
• Certificate of Capacity/ Fitness dated 31 May 2022
• AHHR plan 1 (Physiotherapy) dated 28 July 2022
• AHHR plan 1 (Psychologist) dated 30 May 2022
• Medical Report D N Sheikh dated 03 August 2022
• Momentum Rehab – Initial Assessment Report dated 12 April 2022
• Momentum Rehab – Update Communication dated 02 June 2022
• Momentum Rehab – Progress Report dated 10 June 2022
• Momentum Rehab – Progress Report dated 04 July 2022
• Momentum Rehab – Case Closure Report dated 15 July 2022
• Momentum Rehab – Progress Report dated 24 August 2022
• Sealed Certificate Dr Surabhi Verma dated 10 January 2023
• Sealed Decision Stephanie Wigan dated 31 October 2022
The Medical Assessor took a history [9]. He notes that the claimant’s car was not written off and was repairable, that he was able to exit himself, and he did not go to hospital.
The history continues that the claimant was reviewed by his general practitioner (GP) a month later because he was in pain, the main pain being in his low back, though he also had some shoulder pain.
The history continues that the claimant was subsequently investigated with an MRI which showed a T11-T12 disc protrusion.
The claimant told the Medical Assessor of sharp pain in his back and that he gets a burning pain that goes down his left leg to his foot, present mainly when he moves. Occasionally, it is present at night. When he moves, the pain increases, and that limits his mobility.
Further, the claimant told the Medical Assessor that he has dull pain in his left shoulder.
The claimant stated at [12] that his current symptoms were in his left shoulder and pain in his lumbosacral spine.
The Medical Assessor conducted a clinical examination including the lumbar spine and upper extremity. In both areas, the Medical Assessor stated that the injury:
“…is not a threshold injury…”
It is quite clear that the Medical Assessor mixed up his terminology and he was intending to say:
“… is not a non-threshold injury…”
or
“…is a threshold injury…”That this is so, is made clear by his comments on the upper extremity where he says:
“…I do not feel on the basis of this examination that he has made the maximum effort with range of movement of the shoulder.”
The Medical Assessor made the following comments at [15]:
“In order to satisfy myself of the type of injury, I reviewed my anatomy of the spine again to see that the main ligaments in the spine are the anterior and posterior longitudinal ligaments and other ligaments that connect the various processes. The disc itself is enclosed within the annulus, which in itself is not a ligament and also has deficiencies posteromedially and posterolaterally. I am satisfied based on this anatomy that only the annulus was damaged, and the annulus is not a ligament. The damage in order for the claimant to sustain a disc protrusion, is an annulus. The annulus in itself, based on the anatomy is not a ligament. I am therefore comfortable that there was no ligament damage. As there was no ligament damage, I am therefore comfortable that this does not constitute a threshold injury.”
The Medical Assessor set out his diagnosis and reasons at [18], being:
· T11-T12 disc protrusion lower lumbosacral spine – lumbar spine injury, and
· left shoulder injury.
Both of these were threshold injuries.
The Medical Assessor continued as to causation and reasons at [19]:
“The claimant does have a single complaint of radiculopathy, but in order to reach a threshold injury the claimant needs to fulfil at least two of the five criteria in order to reach radiculopathy. The claimant does not meet this fulfilment.”
EVIDENCE BEFORE THE PANEL
Clinical notes of Belmore Medical Centre
Dr Christopher An, the claimant’s GP, examined the claimant on 22 March 2022, two months after the accident.
He recorded that the claimant presented with lower back pain radiating to the left lower limb which started ‘the following day’ after the accident. He continued that the claimant complained of left shoulder pain and stiffness upon movement.
On examination of the shoulder, Dr An recorded:
“…pain and stiff on shoulder abduction and internal rotation restricted to 70 degree [sic] on lower back flexion/ pain on lower back extension”
Dr An recommended physiotherapy, analgesia and referred the claimant for an MRI for the left shoulder and lower back.
The claimant presented for examination again at Belmore Medical Centre on 7 April 2022.
Dr Mozhgan Karimi reported:
“1- back and shoulder MRI result discussed with him and normal shoulder study
+
shallow disc bulge at L5/S1, Shallow right paracentral protrusion at T11/12”
MRI Reports of Dr Luke Deady of 4 April 2022
Dr Luke Deady conducted an MRI of the claimant’s left shoulder. The report stated:
“Rotator cuff tendons are intact. There is no tendinosis or tear identified. Muscle bulk is well preserved to all the cuff musculature.
There is a flat acromial undersurface without a significant outlet spur. There is no significant bursitis. The AC joint is normal in appearances.
The biceps tendon is intact and maintained within the bicipital groove. There is no tendinosis or tear identified. No labral tear is identified. The cartilage of the humeral head and glenoid is maintained. There is normal morphology to the glenoid. The periarticular soft tissues are within normal limits. There is normal muscle bulk to the deltoid and shoulder girdle.”Dr Deady concluded that with respect to the left shoulder, there was:
“No cuff tear. No labral tear or biceps tendon tear. Preservation of cartilage. No fracture seen.”
Dr Deady also conducted an MRI of the claimant’s lumbo-sacral spine the same day. He reported:
“Allowing for supine positioning alignment of the lumbar spine is overall within normal limits. There is no lumbar compression fracture or pars defect. No focal bone lesion is identified.
The conus medullaris is normal in appearances. It terminates at the L1 level. The roots of the cauda equina are within normal limits.
T11/12: There is a right paracentral disc protrusion and there is right foraminal crowding.
T12/L1: No significant disc bulge or facet joint arthrosis.
L1/2: No significant disc bulge or facet joint arthrosis.
L2/3: There is no significant disc bulge or facet joint arthrosis.
L3/4: No significant disc bulge or facet joint arthrosis.
L4/5: Once again no significant disc bulge.L5/S1: There is a shallow diffuse disc bulge which does not result in significant central or foraminal narrowing. There is mild facet joint arthrosis.”
Dr Deady recorded under ‘impression’:
“Shallow disc bulge at L5/S1. Shallow right paracentral protrusion at T11/12. There is no fracture seen.” (Dr Deady’s emphasis)
Report of Dr Nadeem Sheikh, rehabilitation and pain management consultant, of 3 August 2022
The claimant was referred to Dr Nadeem Sheikh and attended an examination on 19 July 2022.
In his report of 3 August 2022, Dr Sheikh recorded the following injuries:
• lumbar spine injury;
• right shoulder pain;
• pain/stiffness in his left leg, and
• psychological/emotional.
He reported on the claimant’s “Present Condition” on page 3 of the 3 August 2022 report:
“He presents with significant loss of functional tolerances in his upper & lower limbs particularly the left lower limb with a low tolerance to walking, standing, pulling, pushing and lifting activities. He is unable to carry heavy objects and pain in his right shoulder & low back continues to be reported as being exacerbated by repetitive manual activities or forceful dynamic use e.g., carrying a load. He has been advised not to lift more than 4/5 kg at this stage.”
He continued that the claimant’s “Current Tolerances” for activity were as follows:
• walking: 15-20 Min;
• lifting: 4-5kg;
• standing: 15-20 minute;
• Driving: 15-20 minutes;
• Sitting: 15-20 minute, and
• crouching: restricted.
Dr Sheikh considered that the claimant was not able to continue his work as a full-time paver in the construction industry.
EXAMINATION BY THE REVIEW PANEL
Medical Assessor Clive Kenna examined Mr Abedi for the Panel on 19 December 2023.
Background
Medical Assessor Kenna took a history of the background from Mr Abedi:
“Mr Ali Abedi is a 29-year-old male who stated that he is currently living in Queensland (Brisbane). By way of background, he is Lebanese. He has been in Australia since 2016, a period of some eight years.
He stated that he did further study in Sydney (although he stated with his partner he has since moved to Brisbane who works as a beautician).
He denied any past history of motor vehicle accidents (accident in question was on 17 January 2022, a period of almost two years ago).
He stated he had not been involved in motor vehicle accidents previously or indeed since but considered that he had not improved over the last two years.
He stated that previously he worked in paving and trades in the construction industry, and that he has not worked for the last two years. When asked why, he stated the main complaint pertains to his back and left shoulder.
In that respect, he has had no operations, injections or procedures.
He was not receiving any soft tissue therapy.
He stated whilst in Sydney after the accident, he had physiotherapy for about six months, as well as remedial massage, and believed he did see a specialist but couldn’t recall the name.
The purpose of the assessment was to determine whether in actual fact the injuries caused by the motor vehicle accident were a threshold or non-threshold injury.
He also stated he was in good health prior to the motor vehicle accident and denied any problems pertaining to the left shoulder previously or indeed the lower back.”
History taken
Mr Abedi told Medical Assessor Kenna that he had been very keen on attending the gymnasium and that this involved weightlifting and bodybuilding.
History of symptoms and treatment following the accident
Mr Abedi was treated conservatively by his GP and acknowledged he saw him some time after the accident.
He underwent a range of investigations (discussed later in the report) and he commenced physiotherapy attending about twice a week for about three to four months. From that he obtained temporary relief, but not permanent relief and he continued to take medications.
He acknowledged there were no symptoms into either his upper or lower extremities at the time or indeed post-accident.
Subsequently, he moved to Brisbane with his partner who is from Queensland. He stated she is currently expecting a child.
He believed also that there has been little improvement over the last two years.
Details of any relevant injuries or conditions sustained since the motor accident
Nil.
Current symptoms
Mr Abedi’s symptoms consisted of some central lower back pain, slightly left-sided, involving the left buttock and the back of the left thigh.
There was also a complaint of mild pain pertaining to the left shoulder but no radiation into the left extremity.
In that respect, he stated, activity wise, he is able to walk for 10-15 minutes (self-reported tolerance limits), stand for about 10-15 minutes and sit for about 10 minutes.
He acknowledged he had remedial massage and physio both to the left shoulder and lower back.
He stated that as a result of his symptoms, his movements are limited by pain.
CLINICAL EXAMINATION
Medical Assessor Kenna undertook a medical examination of the claimant.
General presentation
Findings on clinical examination including specific measurements of Range of Movement (ROM) (where applicable) of each of the injuries assessed.
He was weighed at 112kg. For his height of 170cm, he was very heavily built with very well developed upper body musculature.
He had very heavily built strong upper arms, although he states he is no longer in the gym.
Besides being heavily built, he also had a number of tattoos on his arms and came casually dressed wearing thongs.
Cervical spine (cervicothoracic)
On inspection of the neck:
· no muscle guarding or muscle spasm present, full range of motion and no asymmetry present;
· no neurological deficit evident in either upper limb;
· any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.
On formal examination of range of movement there was full range of movement as follows:
MOVEMENTS RANGE EXHIBITED Flexion 100% full Extension 100% full Rotation to the right 100% full Rotation to the left 100% full Lateral bending to the right 100% full Lateral bending to the left 100% full
NEUROLOGICAL TESTS
Reflexes
REFLEX LEFT RIGHT TRICEPS JERK Normal Normal BICEPS JERK Normal Normal BRACHIORADIALIS Normal Normal
Sensation
Normal.
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
Muscle wasting
Nil
LEFT (cm) RIGHT (cm) UPPER ARM 40 40 FOREARM 34 34
Muscle power
LEVEL MOTOR POWER LEFT RIGHT C4 5/5 NORMAL NORMAL C5 5/5 NORMAL NORMAL C6 5/5 NORMAL NORMAL C7 5/5 NORMAL NORMAL C8 5/5 NORMAL NORMAL T1 5/5 NORMAL NORMAL 5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance.
Dural tension tests
TEST RIGHT LEFT PASSIVE NECK FLEXION Normal Normal BRACHIAL PLEXUS STRETCH Normal Normal
Upper extremity
Right shoulder
Measurement
Reference
(4th ed.)Normal
Flexion
180°
Figure 38 (43)
180°
Extension 50° Figure 38 (43) 50° Adduction 50° Figure 41 (44) 50° Abduction 180° Figure 41 (44) 180° Internal Rotation 90° Figure 44 (45) 90° External Rotation 90° Figure 44 (45) 90° Total Goniometer measured
Inspection of the right shoulder was normal. Arc, resisted motions, and passive motions were pain free on the right. There was no abnormal tenderness. Impingement tests were negative.
Left shoulder
Measurement
Reference
(4th ed.)Normal
Flexion
180°
Figure 38 (43)
180°
Extension 50° Figure 38 (43) 50° Adduction 50° Figure 41 (44) 50° Abduction 180° Figure 41 (44) 180° Internal Rotation 90° Figure 44 (45) 90° External Rotation 90° Figure 44 (45) 90° Total Goniometer measured
Inspection of the left shoulder was normal. Arc, resisted motions, and passive motions were pain free on the left. There was no abnormal tenderness. Impingement tests were negative.
Lumbar spine (lumbosacral)
On inspection of the lumbosacral spine:
No muscle guarding or spasm present, full range of motion and no asymmetry present.
No neurological deficit evident in either lower limb.
Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.
On formal examination of range of movement there was full range of movement as follows:
MOVEMENTS RANGE EXHIBITED Flexion 100% full Extension 100% full Rotation to the right 100% full Rotation to the left 100% full Lateral bending to the right 100% full Lateral bending to the left 100% full NEUROLOGICAL TESTS
Reflexes
REFLEX LEFT RIGHT KNEE JERK Normal Normal ANKLE JERK Normal Normal
LEFT RIGHT Sciatic nerve stretch (straight leg raise) Normal Normal Femoral nerve stretch (prone knee bending) Normal Normal Sensation
Normal.
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
Muscle wasting
Nil.
LEFT (cm) RIGHT (cm) THIGH
(measured 10cm above the superior pole of the patella)50 50 CALF 42 42 Muscle power
LEVEL MOTOR POWER LEFT RIGHT L3 5/5 NORMAL NORMAL L4 5/5 NORMAL NORMAL L5 5/5 NORMAL NORMAL S1 5/5 NORMAL NORMAL
3 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
5 is active movement against gravity only, without resistance.
Muscle atrophy
Nil.
THIGH LEFT = RIGHT CALF LEFT = RIGHT
No unilateral muscle atrophy present.
DURAL TENSION TESTS
TEST RIGHT LEFT PRONE KNEE BEND Normal Normal STRAIGHT LEG RAISE Normal Normal SLUMP Normal Normal
Comments on consistency
Medical Assessor Kenna noted that there were comments from the initial Medical Assessor that the claimant’s effort was sub-maximal and not consistent with findings. At the time of Medical Assessor Kenna’s assessment, the claimant was instructed to make maximum effort and Medical Assessor Kenna believes that the claimant did so, noting a full range of movement pertaining to the left shoulder as well as the lumbar spine.
REVIEW OF DOCUMENTATION
Summary of relevant radiological and medical imaging and other investigations
On 4 April 2022 – MRI left shoulder – conclusion: no cuff tear, no labral tear or biceps tendon tear. Preservation of cartilage. No fracture seen.
On 4 April 2022 – MRI lumbar spine – impression: shallow disc bulge at L5/S1. Shallow right paracentral protrusion at T11/12. There was no fracture seen.
Medical Assessor Kenna’s findings
Medical Assessor Kenna made the following findings:
“Mr Ali Abedi is a 29-year-old construction worker who was involved in a motor vehicle accident some two years ago and states he has not worked since.
The dispute relates to whether this is a non-threshold injury, which is dependent in part also upon the radiological findings, i.e. tissue tear.
Medical Assessor Kenna confirmed, therefore, that besides the full functional mobility of the left shoulder, the MRI confirmed that there was no soft tissue tear of either the rotator cuff or labrum or biceps tendon and that there was preservation of cartilage and no fractures seen.
Similarly pertaining to the lumbar spine, there was no fracture seen and there was no evidence to support any radicular symptoms involving either lower extremity. Medical Assessor Kenna considered that to be consistent with the clinical presentation where there was normal neurological findings and no evidence of a history of radiculopathy.”
(Medical Assessor Kenna’s emphasis)
Medical Assessor Kenna’s conclusions
Medical Assessor Kenna concluded, and the Panel accepted as correct that:
“The re-examination confirms that these are threshold injuries pertaining to:
1.Left shoulder
2.Lumbar spine
There is no evidence of radiculopathy, fractures or soft tissue tears.
Both are therefore threshold injuries due to the fact that there is no complete or partial rupture of tendons, cartilage, menisci or ligaments, or damage to spinal nerve roots which meet the criteria of radiculopathy.
As noted, there was no loss of asymmetry of reflexes, no evidence of sciatic nerve root tension signs, no evidence of muscle atrophy (indeed to the contrary), or decreased limb circumference. There was no evidence of muscle weakness and no reproducible sensory loss anatomically localised to an appropriate spinal nerve root.”(Medical Assessor Kenna’s emphasis)
THRESHOLD INJURY- STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the Motor Accident Injuries Act 2017 (the Act) defines a “soft tissue injury” as:
“[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 threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017(the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Section 5D of the Civil Liability Act 2002 (CLA) provides:
“(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
SUBMISSIONS
Claimant’s submissions of 10 August 2023
The Review Panel reproduces the submissions in so far as relevant:
“It is submitted that the Proper Officer would be satisfied that the assessment contains material errors in respect to:
1. Denial of Natural Justice and/or Procedural Fairness;
2. Incorrect implementation of the relevant legislation/definition during examination; and
3. Making decisions fairly with transparent reasoning.
The dispute referred to Assessor Bernard Tamba-Lebbie was to determine whether the Claimant’s injuries sustained from the subject motor vehicle accident are threshold/non-threshold pursuant to the Motor Accident Injuries Act 2017.
The Claimant submits that he was denied natural justice/procedural fairness as a result of Assessor Bernard Tamba-Lebbie’s failure to provide a consistent analysis and transparent reasoning to the relevant legislation applicable in assessing his injuries sustained from the subject motor vehicle accident.
In his Certificate, Assessor Tamba-Lebbie determines that the Claimant sustained soft tissue injury to the left shoulder and to the thoracolumbar and as such confirms that the injuries are not a threshold injury for the purposes of the Act. While the Claimant maintains and acknowledges that his injuries are non-threshold, the reasons provided by Assessor Tamba-Lebbie are questioned.
In paragraph 10, Assessor noted that the Claimant ‘continues to have pain in his lower back. He points to the lumbar areas as the area of pain. He also says that he has paraesthesia that goes down to his foot… Mr Abedi’s pain in the back is described as sharp. He has told me that he gets burning pain that goes down the left leg to his foot’.
The symptoms above are consistent with the medical records. As a result of the ongoing pain to his lower back since the date of accident, the Claimant was referred for an MRI scan of the Lumbar Spine which evidenced:
‘paracentral disc protrusion at T11/12’.
Upon examination, Assessor noted that ‘good forward flexion with normal unrolling of his lumbar spine. He straight leg raising his 80 degrees on the right and 70 degrees on the left. His power with knee flexion if Grace 5 and knee extension if Grace 5. Ankle dorsiflexion and plantar flexion are grade 5 bilaterally. He has no dermatomal abnormal sensation’.
[the submission then reproduces the Medical Assessor’s comments at [15] – see above]
…
The Assessor then determines both injuries to be considered as non-threshold, though contradicts himself by noting in paragraph 19 that ‘the Claimant does have a single complaint of radiculopathy, but in order to reach a threshold injury the Claimant needs to fulfil at least two of the five criteria in order to reach radiculopathy. The Claimant does not meet this fulfilment’.
Reference is made to s1.6 of the Motor Accident Injuries Act 2017 which confirms that non-threshold injuries are fractures, complete or partial rupture of a tendon, cartilage, meniscus or ligament or damage to the spinal nerve root which meets the criteria for radiculopathy. [claimant’s emphasis]
[the submission then refers to clause(s) 5.8 to 5.10 of the Motor Accident Guidelines]
…
It is submitted that the Claimant has demonstrated the following signs during examination (expressed in the Medical Assessment Certificate) pertaining to radiculopathy:a) Sharp back pain with burning sensation that goes down the left leg into his foot (i.e. paraesthesia).
b) Limitation on movement.
c) Paracentral protrusion – i.e. damaged annulus.
d) Radiating pain down to the legs.
e) Constant pins and needles sensation (which the Assessor did not document).
It is submitted that the Assessor has primarily focused on ligament damages as opposed to a spinal nerve root injury with radiculopathy.
The Assessor has clearly failed to consider the Claimant’s symptomology, signs, and medical evidence in justifying the Claimant’s injuries to be non-threshold pursuant to the Act.”
Insurer’s submissions of 15 August 2023
The Review Panel reproduces the submissions in so far as relevant:
“The Insurer has considered these submissions and agrees that there are errors contained within the PIC Certificate by Assessor Tamba-Lebbie (“The Assessor”). However the Insurer submits the reasons for the errors are:
1. The Insurer’s submissions regarding this application are:
•the Assessor has failed to provide any reasons to indicate why the left shoulder was determined to be not a Threshold injury, to allow the reader to understand how the Assessor had arrived at this decision.
•the Assessor has failed to provide sufficient reasons to indicate why the thoracolumbar spine injury did not satisfy the criteria for a Threshold injury, to allow the reader to understand how the Assessor had arrived at this decision.
•The Assessor had failed to carry out a complete examination of the lumbar spine at the PIC Assessment.
…
With regards to the Assessor determining left shoulder was a not a Threshold injury7. The Insurer noted the MRI dated 4.04.2022 (R12 of the Insurer’s Reply) reported there was no cuff tear, no labral tear or biceps tendon tear. There was a preservation of cartilage. There was no fracture seen. The Insurer submits that when considering the findings of the MRI report, this satisfied the definition and criteria of a soft tissue injury as detailed at paragraph 4 of these submissions and the Act. Furthermore the Insurer observed that the Assessor had reported the shoulder MRI report as normal on pages 5 and 6 of the PIC Certificate.
8. The Insurer submits that when consideration is given to the reasons provided by the Assessor with regards to the injury severity of the left shoulder, the Assessor is silent in the Certificate, however he does determine this injury to be not a Threshold injury as sustained from the accident.
9. The Insurer submits the Assessor has erred by failing to provide reasons to allow the reader to understand why he has determined the Claimant had a not a Threshold injury to the left shoulder.
10. The Insurer submits that the Assessor has erred by failing to properly consider the findings of the left shoulder MRI with the criteria of a soft tissue injury/threshold injury as set out within the Act. The Insurer submits a correct consideration of the MRI report would result in a determination that the Claimant had sustained a Threshold injury from the effects of the motor accident.
With regards to the Assessor determining Thoracic and lumbar spine injury was a not a Threshold injury
11. The Insurer noted the MRI report of the lumbar spine dated 4.04.2022 (R13 of the Insurer’s Reply) detailed the Claimant had a shallow disc bulge at L5/S1 and a shallow right paracentral protrusion at T11/12. There was no evidence of a fracture. The Insurer submits this report did not indicate if there was any annular tear or fissure present. The Insurer submits this report also does not comment on the presence of any spinal nerve related compression within the foramen, compression within the spinal canal or compression of any other neural related structure. The Insurer also observes the absence of any findings which were reported to be acute in nature. The Insurer noted the Assessor failed to discuss if he believed the findings as reported within the MRI were considered to be due to trauma or were due to constitutional factors which were pre existing to the effects of the motor accident. In light of the findings of the MRI report, the Insurer submits the Assessor should have been persuaded this report satisfied the criteria of a soft tissue injury/Threshold injury as set out within the Act.
12. The Insurer referred to the examination findings of the lumbar spine as reported by the Assessor within the PIC Certificate as noted in paragraph 2 of these submissions. The Insurer observed the Assessor had failed to provide an assessment of the range of motion for the planes of extension, right and left lateral flexion and right and left rotation. The Assessor had failed to report if the straight leg raising had replicated the Claimant’s lower back symptoms and/or thigh and/or leg pain along an appropriate dermatomal distribution. The Assessor had failed to report on if there were altered reflexes within the lower limbs at the PIC Assessment.
13. The Insurer submits that following a review of the medical evidence provided for the PIC Assessment, including the consultation notes from Belmore Medical Centre (R7 of the Insurer’s Reply), the physiotherapy Allied Health Recover Request (R14 of the Insurer’s Reply) and the report by Dr Nadeem Sheikh (R16 of the Insurer’s Reply) these did not contain evidence of an abnormal neurological examination of the lower legs with evidence of radicular symptoms at a specific nerve root.
14. The Insurer submits that the treating diagnosis for the Claimant’s lower back pain as contained within the subsequent Certificates of Capacities following the MRI of the lumbar spine did not result in a change of diagnosis. That is, the Claimant was still diagnosed to have a lower back injury following the motor accident.
15. The Insurer submits that considering the findings of lumbar examination as reported by the Assessor, the Assessor had failed to provide reasons within the PIC Certificate to allow the reader to understand what single complaint of radiculopathy was present at the PIC Assessment. The Insurer submits that when reviewing the PIC Certificate it is not apparent which finding from the lumbar spine examination was reflective of an abnormal examination relating to a specific nerve root.
How the above errors are material to the determinations made by the Assessor
16. The Insurer submits the reasons provided by the Assessor for determining the claimant had not Threshold injuries at the left shoulder and lumbar spine were not of the standard as set out within case law of Wingfoot Australia Partners Pty Ltd v Kocak [2013]. The Insurer submits the Assessor has not provided sufficient reasons to permit the reader to understand what reasons he had relied upon to support his determination that not Threshold injuries had been sustained at the left shoulder and the lumbar spine.
17. The Insurer submits the Assessor has simply stated he had determined the left shoulder was not a Threshold injury without providing any reasons to allow the reader to understand how he had made this determination. The Insurer submits the Assessor has erred when making this determination by failing to provide any reason to support the determination.
18. The Insurer submits the Assessor has not provided sufficient reasons to allow the reader to understand why he had determined the lumbar spine injury was not a Threshold injury. The Insurer submitted the Assessor had failed to provide reasons to indicate why he had discounted the disc bulge at L5/S1 was not related to the motor accident presentation. The Insurer submitted the Assessor had failed to provide reasons to indicate why and how the shallow disc bulge at T11/12 correlated with the findings of his examination of the claimant’s lower back and absence of any radicular signs recorded to be present at the PIC Certificate without providing any reasons to allow the reader to understand how he had made this determination.”
Case law on causation
The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd [2015] NSWSC 558, where Hidden J notes:
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
Hidden J refers to the High Court’s judgement in Wallace v Kam [2013] HCA 19, where Allsop P explained the tests of causation under s 5D(1)(a) of the CLA, at [16]:
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”
The ‘but-for’ test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
In Briggs v IAG Limited trading as NRMA Insurance his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
PANEL’S CONCLUSION
The Review Panel affirms the certificate of Medical Assessor Bernard Tamba-Lebbie on the basis that it reads as follows:
The following injuries caused by the motor accident:
·soft tissue injury left shoulder, and
·thoracolumbar soft tissue injury – thoracolumbar spine
are THRESHOLD INJURIES for the purposes of the Act.
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