Al-Samer AAI Limited t/as GIO
[2023] NSWPICMP 115
•28 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Al-Samer AAI Limited t/as GIO [2023] NSWPICMP 115 |
| CLAIMANT: | Mohammad Al-Samer |
INSURER: | AAI Ltd t/as GIO |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 28 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act2017; the claimant suffered injury when his rear wheel lost traction causing the motor bike to tip upwards causing the claimant to fall onto his back; the claimant suffered various injuries and severe lacerations abrasions with residual scarring; the dispute related to whether the injury was a minor injury; claimant re-examined; discussion of interpretation of minor injury with reference to skin injury; Dhupar v AAI Ltd applied; other authorities on meaning of skin injury rejected; examination showed claimant suffered injury to the superior cluneal nerve when he fell and landed on the gravel; that skin injury held to be a non-minor injury; other injuries found to be minor; claimants request based on Case Study 48 to have pathology referred outside the Panel for an opinion rejected; previous practice by Review Panels adopting that approach rejected as being outside statutory power, inconsistent with the constitution of the Panel and the requirement to form its own opinion; Held – claimant suffered an injury to a nerve from the various skin injuries; original assessment revoked; finding made that claimant suffered a non-minor injury. |
| DETERMINATIONS MADE: | Medical Assessment – Minor injury Review Panel Assessment of Minor Injury The Review Panel revokes the certificate dated 24 March 2022 and certifies that the injury to the skin causing nerve injury is not a minor injury for the purposes of the Motor Accident Injuries Act 2017. |
REASONS
BACKGROUND
Mr Mohammad Al-Samer (the claimant) suffered injury in a motor accident on 27 March 2021 (the motor accident). The accident occurred when the claimant’s bike started moving away from traffic lights when the rear wheel lost traction and the motor bike tipped backwards falling causing the claimant to fall onto his back.[1] The claimant asserted that he sustained injuries to the back, right hip, heel, hands and a number of severe lacerations and abrasions.
[1] Claimant’s bundle, p 45.
The insurer is liable to pay to Mr Al-Samer any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether Mr Al-Samer’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[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both 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”.[3] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[4]
[3] Sections 3.11 and 3.28 of the MAI Act.
[4] Section 4.4 of the MAI Act.
MEDICAL ASSESSMENT
The medical dispute was referred to Medical Assessor McGrath who issued a Medical Assessment Certificate dated 24 March 2022. Medical Assessor McGrath concluded that Mr Al-Samer sustained a number of injuries which were a minor injury for the purposes of the MAI Act.
The examination of the lumbar spine by the Medical Assessor showed a normal neurological examination with normal straight leg raising and normal deep tendon reflexes, power and sensation. There were no signs of radiculopathy. The Medical Assessor stated:[5]
“The majority of the lower back impairment arises from an earlier motor vehicle accident on 17 April 2017 and the duration of time. High levels of pain were recorded by his General Practitioner as recently as 23 January 2020. He has had MRI scans both pre and post the index MVA. A more recent post-MVA scan reveals the same pathology but with small annular defects. It is not possible to know if these defects arose at the time of the accident or in the intervening period as the natural course of internal disc disease. They are relatively common in the asymptomatic public and are associated with internal disc disruption of the lumbar intervertebral discs. The use of the word “tear” by radiologists is incorrect. These are defects in the annular fibrosis of the disc structure. As such, they should not correctly be called tears, which implies a transverse or longitudinal transection of the fibre bundles.
On the balance of probabilities, they pre-existed the MVA and could not be considered as MVA injuries.”
[5] Claimant’s bundle, p 7.
The Medical Assessor described the scarring as follows:
“Mr Al Samer has multiple scars on his torso and limbs, some or most of them are keloid in nature. His worst scar is about the posterior left buttock region. It measures 8cm x 6cm and is highly raised, indurated and tender. He needs further treatment and is under review by a plastic surgeon. It also interferes with his activities of daily living creating discomfort with sitting in particular.”
The Medical Assessor made the following comments on the scarring:[6]
“The left-buttock scar is non-minor under everyday usage of that expression. This is a very unsightly keloid scar which requires treatment and is symptomatic. The initial abrasions were followed by infection and keloid inflammatory scarring. The definition of minor does not encompass the situation. That is, there [is] no specific ligament, tendon or cartilaginous structure within skin that would satisfy the usual medical definition.” (emphasis in original)
[6] Claimant’s bundle, p 8.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by
Mr Al-Samer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[7]
[7] 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[8] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[8] 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.[9]
[9] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[10]
[10] 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.[11]
[11] Section 7.26(6) of the MAI Act.
The parties filed respective bundles of documents for the Panel’s consideration.[12] The Panel then issued the following direction:
[12] The numbering in the claimant’s bundle was either non-existent or partial for some of the pages and that numbering was inconsistent with the bundle.
“The Review Panel (the Panel) has received bundles of documents from the parties and raises the following matters.
1. The claimant is to forward, by close of business 27 January 2023, the original MRI scans (digital versions) of the lumbar spine dated 21 April 2017 and
1 June 2021 to Medical Assessor Stubbs at:….
2. The Panel notes the claimant’s submissions on non-minor injury are restricted to the scarring (particularly the left buttock) and the lumbar spine (the presence of annular tears). In these circumstances the Panel believes that the new assessment can be determined on the papers based on the examination findings of Medical Assessor McGrath, subject to the Panel considering the MRI scans (direction 1) and otherwise conducting a new assessment considering the question of causation (annular tears in the lumbar spine) and the statutory construction issue concerning skin and minor injury (see direction 3).
3. In relation to the interpretation of whether a cut to the skin is a non-minor injury (s 1.6 of the Motor Accident Injuries Act, 2017), the parties may consider the following matters:
-That skin is an organ and therefore the injury cannot be an injury to tissue that connects, supports or surrounds an organ as it is an injury to an organ;
-The meaning of “structures” in the definition and whether an injury to skin is an injury to tissue that connects, supports or surrounds other structures.
-Whether the assessment of skin under the TEMSKI criteria (Table 6.18 of the Motor Accident Guidelines) is relevant to the assessment of non-minor injury.
4. The claimant is to file any further submissions by close of business
3 February 2023, addressing the issue of statutory construction (with reference to direction 3 and any other matter on statutory construction he considers relevant) and direction 2 (particularly that the allegation of non-minor injury only relates to the allegation of annular tears in the lumbar spine and the skin injuries/scarring and whether the matter can proceed on the papers).5. The insurer is to file any submissions in reply by close of business
13 February 2023.6. The parties are requested to adhere to the timetable as the Panel is reconvening on 16 February 2023.”
There was no compliance with this direction.
On 10 February 2023 the Panel sent the following further direction to the parties:
“Further to the direction dated 20 January 2023, the Panel notes and directs:
1. That skin is an organ as commonly understood by the medical profession.
2. “Body structures” is defined by the World Health Organisation as “anatomical parts of the body such as organs, limbs and their components” - ( The Panel is considering referring to that definition in its Reasons.
3. The parties are requested to address whether the injury to the skin is otherwise ‘an injury to tissue that connects, supports or surrounds other structures’ within the meaning of s 1.6 of the MAI Act.
4. The Panel has determined to re-examine partly because the skin injury may also involve nerve injury which otherwise takes any injury outside the definition of ‘minor injury’.
5. The claimant can file any submissions by close of business, 28 February 2023
6. The insurer is to file any further submissions by close of business, 7 March 2023.
7. The claimant is to be examined by Medical Assessor Stubbs as follows:
….
8. The claimant at is directed to bring the scans as requested in the direction dated 20 January 2023 to the medical examination as opposed to forwarding them by mail.”
The insurer submitted that it was clearly the intention of the legislature “to incorporate an injury to the skin as a minor injury”. It referenced the decision of a recent Medical Review Panel[13] which referred to policy considerations which were against a construction that included a skin injury as a non-minor injury as this could lead to compensation being awarded for an “exaggerated claim”.
[13] Nazari v AAI Ltd [2023] NSWPICMP 62 (Nazari).
On 20 March 2023 the parties were forwarded recent decision of a differently constituted Panel in Dhupar v AAI Ltd.[14] The insurer was placed on notice that the decision of Nazari may have been incorrectly determined and otherwise that a skin injury would fall outside the definition of minor injury if there was an injury to a nerve. The insurer was directed to make any further submissions.
[14] Unreported, 20 March 2023 (Dhupar).
No submissions were received in response to this Direction.
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 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 9 of the Guidelines commenced on 15 January 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 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.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a 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.[15]
[15] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[16]
SUBMISSIONS
Claimant’s submissions dated 31 August 2021[17]
[16] See s 3B(2) of the Civil Liability Act 2002.
[17] Claimant’s bundle, p 132.
The claimant submitted that at that time he had not been fully investigated to enable a conclusive determination that the injuries sustained in the motor accident were non-minor.
Claimant’s submissions dated 7 October 2021[18]
[18] Claimant’s bundle, p 10.
The claimant referred to the MRI scan of the lumbar spine and right hip dated 1 June 2021 which showed small posterior disc annular tear on the right at L4/5 and L5/S1. He compared this with the MRI scan dated 21 April 2017, described as “the most important piece of evidence” which did not show any annular tears.
The claimant referred to Case Study 48 where a Review Panel constituted by Medical Assessors referred the dispute to a medical assessor specialising in diagnostic radiology to comment upon the scans.
The claimant also submitted that the outer half of the disc composed of tough connective fibres or ligaments known as the annulus fibrosis. If the external layer is torn, then this is known as an annular tear which occurs in the case of trauma.
Claimant’s submissions dated 29 July 2022[19]
[19] Claimant’s bundle, p 1.
These submissions were filed seeking to review the Medical Assessment.
The claimant submitted that the Medical Assessor fell into error in determining that the lumbar spine injury was a minor injury. He otherwise submitted that there was “no direct reasoning as to how the Assessor came to the conclusion that the scarring was a ‘minor injury’.”
Insurer’s submissions dated 9 November 2021[20]
[20] Insurer’s bundle, p 12.
The insurer referred to the prior motor accident on 5 August 2016 when the claimant injured his lumbar spine and suffered ongoing back pain.
On 6 February 2021 the claimant fell off his motor bike and attended the Gold Coast hospital reporting severe lumbar pain.
The insurer submitted that the annular tears were not caused by the motor accident given the prior history and the likely progression of degeneration and the mechanism of injury sustained in the motor accident.
Insurer’s submissions dated 19 August 2022[21]
[21] Insurer’s bundle, p 1.
These submissions were filed opposing leave to review the original Medical Assessment.
The insurer noted that the “annular tears” were not found to be caused by the motor accident and were not “tears” but “defects” which pre-existed the motor accident.
The insurer submitted that the keloid scarring was not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
Mr Al-Samer was involved in a previous motor accident on 5 August 2016 when he sustained injuries to the neck, low back and right knee.[22] The clinical notes of the general practitioner reference neck, low back and right knee pain on various occasions from 2016 to 2021 with occasional prescriptions of endone and tramadol.[23]
[22] Insurer’s bundle, p 243.
[23] Insurer’s bundle, pp 137-149.
The MRI scan of the lumbar spine dated 21 April 2017 showed posterior annular bulges of the lower three discs with no annular tears.[24]
[24] Insurer’s bundle, p 261.
A hospital attendance on 10 September 2018 was for severe right sided flank pain with a past medical history of lumbar disc bulge.[25]
[25] Insurer’s bundle, p 24.
On 16 February 2021 the general practitioner noted trauma after a recent fall from a bike and prescribed panadeine forte.[26]
[26] Insurer’s bundle, p 149.
Medical evidence
The ambulance report recorded that the claimant “accelerated away from traffic lights when lost bike underneath landing on buttocks and hands on gravel and skidding for a short distance”.[27] The officer noted severe abrasions to buttocks and abrasions and skin loss to bilateral palms of hands.
[27] Insurer’s bundle, p 16.
The claimant was admitted to Prince of Wales Hospital following the motor accident when the back and buttock were debrided due to heavily ingrained dirt. Abrasions were also noted on the volar aspect of both hands.[28]
[28] Insurer’s bundle, p 30.
The claimant attended St George Hospital on 30 March 2020 reporting inadequate pain management at Prince of Wales Hospital. The claimant was prescribed further endone and discharged.
The general practitioner noted, at the initial attendance on 31 March 2021, severe multiple skin abrasions on both hands, right foot and on a large area of the back.[29] Endone was then prescribed.[30]
[29] Claimant’s bundle, p 56.
[30] Insurer’s bundle, p 149.
The claimant again attended Prince of Wales Hospital on 2 April 2021 with concerns regarding the dressings.[31]
[31] Insurer’s bundle, p 41.
On 26 April 2021 the general practitioner noted the motor accident. Severe low back and right hip was recorded on 15 May 2021.
On 15 June 2021 the physiotherapist noted the claimant sustained multiple superficial skin grazes and lower back symptoms caused by the motor accident on 27 March 2021.[32]
[32] Insurer’s bundle, p 49.
A certificate of capacity dated 15 June 2021[33] referred to severe multiple skin abrasions and low back and right hip injury.
[33] Claimant’s bundle, p 50.
Radiology
The MRI scan of the right hip dated 1 June 2021 was normal and showed no fracture or dislocation and fluid or oedema.[34]
[34] Claimant’s bundle, p 49.
The MRI scan of the low back dated 1 June 2021 is reported as showing early disc dessication and posterior disc protrusions with annular tears on the right at L4/5 and L5/S1. The radiologist noted no lumbar fracture or nerve root impingement.[35]
[35] Claimant’s bundle, p 49.
The right gluteal ultrasound dated 22 September 2021 was normal.[36]
[36] Insurer’s bundle, p 165.
Claim form
Mr Al-Samer completed a claim form dated 26 April 2021[37] describing injuries caused by the motor accident which included lacerations and grazing to various body parts and injury to the lower back and right hip.
[37] Claimant’s bundle, p 45.
Subsequent motor accident
The claimant was involved in a subsequent motor accident on 6 August 2021 sustaining injuries to the left shoulder, left wrist, facial fractures and to the right knee.[38]
[38] Insurer’s bundle, p 103, p 105, p 178.
The clinical notes do not refer to the low back being injured in that motor accident.
RE-EXAMINATION
The Panel determined that Mr Al-Samer be re-examined by Medical Assessor Stubbs on 14 March 2023.
The re-examination report is as follows:
“Interview and examination that Assessor Stubbs at the PIC on 14 March 2023.
Mr Al Samer attended with his partner, but she was not present at the examination.
HISTORY OBTAINED FROM MR AL SAMER.
Background: Mr Al Samer is 24 years old was born in June 1988 at the St George hospital. He has two sisters and one brother. His father is presently overseas. He is living with his partner in a granny flat at his mother’s home. He is the father of the two-month-old daughter. He last worked in March 2021.
He completed year 12 and went on to start studies construction management at university. He did not complete the study but his progress was sufficient to obtain a well-paid position as a supervisor in the construction industry. He was working up until the time of his first motorcycle accident.
His past health includes a knee injury playing soccer in 2014 at age 15. Exactly what happened to him is unclear, he is uncertain and at times reported he suffered a dislocation of the knee and others report this as a rupture of the anterior cruciate ligament. Whatever happened exactly did not require any surgical treatment and resulted in full resolution of his right knee problems.
In 2006 whilst in year 12 aged 18 he was given a second-hand Mazda X8. This car four-door sports car with a 1.6 L rotary engine and a rear hinged suicide style rear door manufactured between 2002 and 2012. The accident happened on 6 August and the first attendance general practitioner on 8 August with listed injuries as a soft tissue injury to the neck, low back, and right knee. A third-party claim was initiated and settled in 2021. He then entered the workforce for the first time, having lost interest in his university studies which he continued after leaving school.
He reports that all the injuries settled, and he went back to a normal lifestyle. He is uncertain of the size of the settlement but believes it was less than $100,000. Through the time and particularly after the settlement he continued working out regularly in the gymnasium doing martial arts and bodybuilding. He admits to taking anabolic steroids which he says were to facilitate his recovery. He purchased a second-hand Audi an upmarket sports coupe. He also acquired Suzuki GSXR 1000 cc motorcycle based on a range of roasting bikes of various capacity made between 1992 and 2017.
On Saturday 27 March 2021 he was involved in a motor vehicle accident taking off from lights at an intersection at the airport near botany. He says he was riding in a group motorcyclist though not his regular friends in a social event. He reports that the bike got out of control when he dropped the clutch too quickly and reared up on loose gravel causing him to fall backwards. He suffered lacerations to the buttocks and was taken to the Prince of Wales hospital by ambulance. There is a police report in the documentation. He was treated in the accident emergency Department and admitted for surgical dressings and discharged home but returned over the next three days to the accident emergency Department at St George hospital as he was not managing the pain. There were ongoing issues with back pain and scarring nevertheless he recovered well enough to resume motorcycle riding. He did not return to work.
On 6 August 2021 he had another motorcycle accident. He states that he was unconscious and has no recollection of the accident. He reports that a fellow rider told him he was T-bone from the right side at a T intersection by a Honda sedan. Apparently, the accident was caught on CTV footage.
Mr Al Samer reports that he was unconscious and in a coma for four days at the St George hospital. He suffered injuries to his right ankle and both wrists. He also lists a fractured skull an injury to his eye socket, a fracture of the proximal fibula in the left knee and a dislocated patella as injuries suffered in this accident, He says that he discharged himself after one week in the hospital having had arguments with the staff about his fitness to leave. He was discharged home with a ‘moon boot’ on his right leg (a below knee Velcro brace with an ankle hinge) for 3 to 4 weeks with both forearms in below elbow casts using a forearm support frame/crutches.
The certificate of capacity list the following injuries – persistent headache, facial fracture in an injury to the eye (side not specified) neck pain, left wrist fracture, right ankle fracture and ligament injury to the right knee.
Assessor McGrath in a medical certificate of 24 March 2022 in respect to the subject accident of 27 March 2021 listed the following injuries.· Lumbar spine – soft tissue injury.
· Right arm – skin abrasions.
· Left and right hand – soft tissue injuries.
· Left and right buttock – skin scarring
· right hip – soft tissue injury.
· right heel soft tissue injury.
Assessor McGrath felt that all were minor injury for the purposes of the Act. Further he thought that the lumbar soft tissue injury arose from an earlier accident on 17 April 2017. There were MRI studies before and after the index accident that is March 2021 which revealed no new pathology. Assessor McGrath expressed his view of the claim of annulus fibrosis tear constituted a non-minor injury. He thought otherwise. Assessor McGrath assessed the buttock injury as using TEMSKI.
After discharge from the August 2021 accident Mr Al Samer underwent MRI investigations and specialist surgical review. Dr Daniel Cohen managed the wrist injuries and Dr David Lunz the right ankle injury. These injuries were be investigated by MRI examination on plain x-rays. The reports are available, but the films are not available for review. Because of persisting left wrist problems, he was further referred to Dr Mark Nabarro and upper limb specialist who wrote back to the general practitioner Dr Ishmael in November 2021. Surgery was performed to the left distal ulnar by Dr Nabarro in July 2022. Mr Al Samer is not very clear as to what the surgery was, the subsequent clinical examination suggests this was an excision of the distal ulnar/arthroplasty of the distal radial and joint. This has not helped his left wrist problems.
His present circumstances are these:· he is not working.
· He cannot ride a motorbike. He has problems using the clutch with the left wrist and breaking with the right foot. Further the racing style posture required by the Suki is impossible with his back injury. The bike has been sold.
· His partner drives him around in his present car is a 2016 Audi RS3 hatchback sports version of the A3 with a turbocharged diesel.
· He requires constant assistance from his partner includes personal care. He can do no gardening or housework.
· He is not worked since the first motorcycle accident.
· He takes regular opiate medication including tramadol, endone and Lyrica. He is taking opiate medications in some form since the 2016 accident.
· He no longer goes to the gym.
· He believes he can never go back to any physical exercise as this would ‘pension nerve and lead to lasting paralysis’.
Clinical examination: –
General:
Mr Al Samer is a powerfully built man who stands 197 cm and weighs 109 kg. He was dressed in tight long-sleeved T-shirt and tight-fitting jeans wearing soft slipper like shoes. It is partner drove to the examination in his Audi. There is a good balanced upright posture and moves freely. He has good single leg stance but reports that it is difficult to walk on tiptoes or heel toes because of the injury to his right ankle.
Mr Al Samer reported that prior to the motor vehicle accident he weighed 90 kg was very proud of his athletic build. He sat comfortably, dress and undress himself and get on and off the examination couch. When undress to his underpants he shows some subcutaneous adiposity around the waist but is otherwise powerfully built. There is some visible difference in the bulk of the left deltoid compared to the right and in the left forearm compared to the right. He has multiple tattoos. At 90 kg he would have very little subcutaneous fat and was indeed proud of the fit athletic look with his well-defined abdominal musculature that he enjoyed then.
Cervical spine: he moves his head naturally during conversation. Informal examination shows voluntary guarding which restricts the overall range of movement. Recorded range is half normal in flexion and extension, half normal and rotation and side bending. There is no muscle spasm but there is generalised tenderness without guarding. As pointed out to Mr Al Samer that he seems to move his neck more freely during conversation and he reported that he was concerned would suffer further injury. Nerve root traction signs are negative. Using a pinwheel there is no abnormal sensory changes seen in the cervical spine or either upper limbs. The reflexes are brisk and symmetrical but he is apprehensive when these are performed. Girth of the upper limbs is 45 cm on the right 44 cm on the left. The right forearm is 34 cm, the left forearm 32 cm. There is a surgical scar over the distal ulnar. The right deltoid is bulkier than the left.
Comment he is DRE 1. There is no radiculopathy in the muscle wasting of the left shoulder girdle and forearm is fully inexplicable by the left wrist injury.
Upper limbs:
The range of shoulder movement is given in the table below. There is voluntary restriction noted in the range of movement in the normal right shoulder. The left shoulder is more restricted than the right. Grip strength in all muscle to the right upper limb 5/5. Pinwheel testing of upper limb dermatomes is normal. Movement of the elbows, wrists and fingers is normal range. The motion is given in the table below. Left upper limb shows restricted movement, muscle wasting in the left forearm and to palpation the left deltoid and grip strength is only 4/5. Sensation is normal. There is a 7 cm surgical scar of the distal ulnar. This is well healed and reflects recent surgery. Some non-dermatomal hyposensitivity is complained of on the scar margins.
Thoracic spine: as a normal standing posture and curvature. There is no tenderness in the thoracic spine to palpation. Sensation is normal. Range of motion is about half normal in both directions.
Lumbar spine. Has normal standing posture curvature. There is tenderness complained of in the low back diffusely over the midline spreading into the upper buttocks right left. Side bending is fingertips to the level of the head of the fibula right equals left. Forward flexion is fingertips to the lower border of the patella right equals left. Extension is half normal range. There is voluntary restriction of range movement with noticeable muscle resistance at the end of the active range of movement. There is no spasm or guarding. The lower limb reflexes are brisk and symmetrical. Pinwheel mapping of dermatomes shows no specific loss of cutaneous sensation in either lower limb though the response is variable when the mapping is repeated. Note see point below. Girth of the thighs 58 cm right equals left. Girth of the knee admit patella is 42 cm on the left but only 40.5 cm on the right. Girth of the cars is equal at 33 cm. In contrast to his well-developed arms and torso his calves are rather spindly.
Comment – he is DRE1 with no evidence of radiculopathy.
Lower limbs – hip range of motion is unrestricted on both sides. There are two livered scars about the thumb print in size at the proximal pole level of the right patella and a fingerprint size livered scar over the lateral margin of the proximal pole of patella. Pinwheel testing reveals sensory loss over the distribution in area about a hand span in size below the lower pole of the patella on the median to lateral side corresponding to the distribution of the infra patella branch of the saphenous nerve. Table 68Girth measurements are noted above. Both knees flexed beyond 130° on both going full extension. There is tenderness but no crepitus on force palpation of the right patella. Left patella is normal. There is no anterior draw sign present in either knee. Both knees are stable median laterally. On the clinical examination there is no anterior cruciate ligament injury but there is evidence of direct injury to the right paddle of joint.
Both ankles are stable. Particular there is no anterior draw sign in the right ankle. The right ankle was complained of as being painful and tend to palpation. Flexion inversion and eversion of both ankles are normal but active extension of the right ankle was limited to neutral and strongly resisted when passive dorsiflexion is performed to between 10 and 20°. All of the calf musculature on both sides 5/5 was no measurable wasting.
There is an 11 x 9 cm area of scarring on the left buttock. The scar has normal overall contour but has a cobblestone feeling. The skin here is noticeably thinner the skin elsewhere. The lumpiness is soft, and the impression is that of feeling a puffer jacket. This is a patchwork appearance. Contour overall is normal, coloration is normal. There is no keloid scar. Sensory testing with a pinwheel reveals apparently normal sensation over the scar itself but there is a proximal area of about the same size where hypersensitivity is reported. The appearance is consistent with a deep abrasion resulting in partial full-thickness loss re-epitheliazation from the surviving dermal tissue. This represents the abrasion from the subject accident.
Elsewhere his skin has a white-coffee consistent with his Middle Eastern background. There are various small stretchmarks on this torso and abdomen buttocks and upper thighs, but these are not obvious as there is no discolouration.
Comment:
There is long history of patella malalignment and the changes seen on the MRI probably reflect developmental problems going back to 2014. The treating doctors for the August 2017 have assumed that the dislocation of the patella followed that motor vehicle accident, but they do not know the history of prior problems or the findings on prior MRIs. There are however to local wounds and the finding that there is an injury the infra patella branch of the saphenous nerve which is right in the way of the smaller of the two wounds in the front of the knee. This is commonly injured in any surgery to the knee.
The buttock. Though the hospital reports abrasions on both sides the scarring on the left is clearly more pronounced. The right has healed pretty well completely. There is a nerve injury in the area that is numb innovated by the superior cluneal nerves which are branches of L1, L2 and L3 dorsal Rami of the spinal nerves. The superior cluneal nerves are sensory nerves that innervate the skin at the upper end of the buttock.
The scarred injury is not insensitive rather there is hypersensitivity in the intact skin just proximal to the scar.
Imaging:
Radiology performed by Waratah imaging on 1 June 2021 was brought to the examination by Mr Al Samer. Overall, the MRI is normal for age shows no sign of injury to the lumbar spine. In the lumbar canal there is an unusually bright signal on the T1 weighted images from within canal. The signal matches areas of fatty degeneration in the deep layer spinal musculature and the signal from subcutaneous fat. The report is not available.
Annular tears
The significance of annular tears in the relationship to low back pain, and in particular causation is complex needs to be explained in depth.High-intensity zone (HIZ) is a bright signal on T2 weighted MRI images. These are sometimes called annular tears or annular fissures. The 3 terms are often used interchangeably, but HIZ refers only bright signal seen on the T2-weighted images, it is a radiological finding with no assumptions about causation/pathology whereas the term annular tear is a histopathological diagnosis made on microscopic examination of tissues recovered at operation or at autopsy. An annular fissure is a finding made only on provocative discography of the intervertebral disc when the injected contrast into the nucleus of the disc penetrates the annulus.
Since the features referred to annular tears lumbar spine on MRI only concern the radiological appearance, the Panel will continue to refer to these as HIZ. The distinction is important since the histopathological findings of operative or autopsy specimens are associated with intervertebral disc degeneration not trauma and the term annular tear is misleading.
The HIZ are produced by a high-water content lesion in a normally dry tissue. Possible pathologies included reactive response to the injury, calcification, mucoid degeneration and delamination (amongst others) and the few histopathological studies available confirm that the HIZ represent a variety of processes.
HIZ were originally described in spinal surgery candidates in whom provocative discography was the proposed preoperative investigation. Provocative discography was known to give unreliable results in predicting the benefits (or absence of) with spinal surgery and had the possibility of accelerating degenerative changes in the discs tested. HIZ was proposed as a radiological sign that the intervertebral disc was the source of pathology producing low back pain and so discography would not be necessary. The reader should appreciate that though there was a correlation this did not mean there was necessarily causation as the initial reports were in highly selected groups with chronic low back pain.
With time HIZ were found in asymptomatic subjects either as part of a control group who did not have low back pain or as part of ongoing population studies of ageing changes in mostly asymptomatic subjects. HIZ were common and part of normal spinal aging and thus unreliable predictors of low back pain.
HIZ are common in asymptomatic spines between 30 and 60% the site depending mostly on the age of the subject. Unlike other MRI features of spinal ageing, they did not become cumulatively more common as the subject aged. Rather they appeared first in the more mechanically stressed lower levels cervical and lumbar spine (C5/6 C6/7, L4/5 and L5 S1) in younger subjects and later in the less stressed higher levels in older subjects. Further the frequency remaindered about one in five in asymptomatic subjects under 50 then resolved only be noted again at the same frequency in older asymptomatic subjects but at higher levels with increasing age.
Though more common in the posterior third of the annulus they also noted to occur laterally and anteriorly, regions usually protected acute mechanical stress.
In MRIs performed on average 1.5 days after beginning of low back pain found HIZ in 30% and T2 enhancement in the outer annulus (also regarded as an HIZ phenomenon) in a further 20%. Granulation tissue, the possible source of the enhanced signal, would not have developed in this timescale; therefore, the authors concluded annular tears are pre-existing incidental findings.
The natural history of HIZ is for the lesion to mostly stay the same in appearance on serial MRI over a short timescale (usually less than 12 months). Less than one in 5 enlarges, one in 5 gets smaller and one in 5 disappears. There is no correlation with changes in size of the HIZ and the presence or absence of symptoms of low back pain and whether the pain resolved or continued. Nor did they any give any guide as to what the appropriate treatment (including no treatment) might be.
HIZ are therefore common but transient findings of normal spinal ageing and for the most part pre-date the onset of any episode of low back pain that prompts the MRI. They have a positive correlation with other features of intervertebral disc degeneration but are not causative.An HIZ is part of the natural history of intervertebral disc ageing but is not an independent source of low back pain.”
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[39] and Insurance Australia Ltd v Marsh.[40]
[39] [2021] NSWCA 287 at [40], [41] and [45].
[40] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[41] that radiculopathy can be present at any time to establish that the injury is not minor for the purposes of the MAI Act.
[41] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[42] that the claimant bears the onus of proof in establishing that any injury is not a minor injury for the purposes of the MAI Act.
[42] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessor Stubbs and adds the following reasons.
Skin injury
We are satisfied from the physical examination and testing undertaken by Medical Assessor Stubbs that there was injury to the superior cluneal nerves caused by the motor accident when the claimant fell from the motor bike, landed on the gravel, and sustained a severe skin injury to the left buttock.
The area of the nerve injury accords with the contemporaneous hospital records and is otherwise consistent with the various medical records showing the skin injury to that region.
The insurer relied on the policy discussion articulated in Nazari v AAI Ltd that an injury to the skin is a minor injury.
The Panel in Dhupar explained why that approach is inconsistent with superior Court authority. As the High Court noted in Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd with respect to interpretation:[43]
“[S]tating the purpose is unlikely to solve the problem.”
[43] The various authorities on the role of “purpose” are referred to Dhupar at [91]-[92].
We adopt the reasons articulated in Dhupar. We do not accept the policy reasons discussed in Nazari that all skin injuries are a minor injury within the meaning of the MAI Act. The text in s 1.6(2) clearly provides that an injury (whether an injury to the skin or otherwise) which involves injury to nerves is excluded from the definition of “soft tissue injury” in s 1.6(2) of the MAI Act.
Low back injury
We accept that the low back was injured in the motor accident based on the claimant’s evidence, the contemporaneous hospital and ambulance note and the initial report to the general practitioner.
The reference to previous history of some back pain does not alter our view that there was injury to this body part.
There is no evidence of radiculopathy as defined in cl 5.8 in either the clinical notes or on the examination recorded by Medical Assessor Stubbs. The radiology otherwise does not support a basis for radiculopathy.
The claimant otherwise submitted that the motor accident caused annular tears.
In its submissions the claimant referred to Case Study 48 where a previous Medical Review Panel had referred a CT scan of the lumbar spine to a Medical Assessor outside the Panel to a radiologist to “clarify whether the L4-5 disc herniation meant that the claimant had incurred a ‘cartilage rupture’ for the motor accident”.
There is an express power for a merit reviewer or the Commission to refer a medical assessment matter to a Medical Assessor for a non-binding opinion.[44] The Commission is comprised of members but not Medical Assessors.[45] Medical Assessors are otherwise defined as a “decision-maker”[46] and have the functions conferred by the PIC Act and the legislation for which the decision maker is appointed.[47]
[44] Section 7.27(1) of the MAI Act.
[45] Section 8 of the PIC Act.
[46] Section 32 of the PIC Act.
[47] Section 34 of the PIC Act.
The Panel is constituted by two Medical Assessors and a Member.[48] It cannot enlarge the panel by including a further Medical Assessor as that would be contrary to the express provision of the constitution of the Panel. The fact that the other doctor holds specific expertise is irrelevant.
[48] Section 7.26(5A) of the MAI Act.
The powers of the Panel are otherwise set out in s 7.26(7) of the MAI Act which provides:
“The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.”
There is no incidental or implicit authority in s 7.26(7) enabling a Medical Review Panel to refer a medical issue to a doctor outside the Panel. The powers of the Panel are to conduct a new assessment and either confirm or revoke the certificate.
The previous practice by Review Panels in organising and accepting an opinion from outside the Panel does not create the power. Further it is inconsistent with the requirement that the Panel form its own opinion.
The Panel declines the claimant’s request to refer the radiology to a radiologist as this is beyond power.
We are not satisfied on the balance of probabilities that the annular tears described by the radiologist in 2021 were caused by the motor accident for the following reasons.
First, the claimant had a chronic history of low back pain preceding the motor accident. Secondly, in April 2017 the scan evidence showed degeneration, specifically posterior annular bulges of the lower three lumbar discs. Thirdly, it is likely that the degeneration would gradually deteriorate. Fourthly, it is extremely unlikely that a fall would cause annular tears at two levels. Such pathology suggests the tears are degenerative and probably pre-existing the motor accident. Fifthly, for the clear reasons articulated by Medical Assessor Stubbs, such tears are likely degenerative.
Finally, we note that the July 2021 scan was viewed by Medical Assessor Stubbs. The Medical Assessor was not satisfied that the scan showed trauma of the discs and the appearances were consistent with degenerative changes.
Other injuries
We are satisfied that the other injuries caused by the motor accident were minor injuries. The examination undertaken by Medical Assessor Stubbs is consistent with the findings of Medical Assessor McGrath. The claimant otherwise made no submissions to the contrary.
CONCLUSION
For these reasons the Panel concludes that the certificate issued by Medical Assessor McGrath is revoked because of the nerve injury to the superior cluneal nerves. The new certificate is attached at the commencement of these Reasons.
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