Allianz Australia Insurance Limited v Miles
[2025] NSWPICMP 563
•1 August 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Miles [2025] NSWPICMP 563 |
CLAIMANT: | Rachel Miles |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
SENIOR MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Rhys Gray |
DATE OF DECISION: | 1 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); treatment dispute; cortisone injection to shoulder; arthroscopic surgery to right shoulder; causation; claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) certified cortisone injection and arthroscopic surgery to right shoulder related to the injury caused by the accident; cortisone injection reasonable and necessary in the circumstances; arthroscopic surgery not reasonable and necessary in the circumstances; insurer lodged review; Held – no frank injury to right shoulder in accident; claimant sustained injury to the right shoulder; injury to lumbar spine caused by the accident; causation for consequential injury to right shoulder established having regard to clauses 6.5 to 6.7 of the Motor Accident Guidelines; Briggs v IAG Limited Trading as NRMA Insurance, and section 5D of the Civil Liability Act 2002 cited; cortisone injection and arthroscopic surgery were related to the injury caused by the accident and were reasonable and necessary in the circumstances; MAC revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF TREATMENT AND CARE Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Woo dated 26 October 2024 and certifies the following treatment and care relates to the injury caused by the accident and is reasonable and necessary in the circumstances: · cortisone injection to the right shoulder, and · arthroscopic surgery to the right shoulder. |
STATEMENT OF REASONS
INTRODUCTION
On 30 April 2022 Ms Rachel Miles (the claimant) was driving her vehicle approaching a roundabout to go left when her vehicle was hit from behind by the insured vehicle (the accident).
Ms Miles has an entitlement to statutory damages arising out of the accident under the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay statutory benefits to Ms Miles under the MAI Act.
A referral to undergo an ultrasound guided right subacromial cortisone injection dated
13 March 2023 was submitted to the insurer for approval.On 17 March 2023 the insurer declined the treatment request for the cortisone injection on the basis the injury to the right shoulder was not related to the accident.
In an email dated 5 June 2023 the claimant requested approval for a right shoulder arthroscopy and SLAP repair.
On 15 June 2023 the insurer declined the request for surgery and again confirmed its decision to decline approval for the cortisone injection on the basis the injury to the right shoulder was not related to the accident.
On 13 September 2023 the claimant requested an internal review of the decision dated
15 June 2023. On 19 September 2023 the insurer declined to undertake an internal review on the basis that it did not have jurisdiction to conduct an internal review “in relation to a body part”.The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the treatment dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (b) “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
This dispute was assessed by Medical Assessor Alexander Woo who issued a certificate dated 5 October 2024.
DOCUMENTS CONSIDERED BY THE REVIEW PANEL
On 20 January 2025 the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 664 (insurer’s documents).
On 20 January 2025 the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 142 (claimant’s documents).
In addition to the subject treatment dispute the Panel was also constituted by the President of the Personal Injury Commission (the Commission) to conduct a review of Medical Assessor Woo’s assessment dated 26 October 2024 in respect of permanent impairment (Matter No. M20603/23).
In Matter No. M20603/23 the Panel issued Directions dated 3 February 2025 stating:
“1. This Review Panel has already been convened to conduct a review of Medical Assessor Woo’s assessment dated 26 October 2024 in respect of a treatment dispute. It is proposed that the two disputes be assessed together although two separate certificates will be issued.
2. On 10 December 2024 the Review Panel directed the insurer upload an indexed and paginated bundle of all documents relied upon by the insurer in that review by 21 January 2025 and the directed the claimant to upload an indexed and paginated bundle of all documents relied upon by the claimant in that review by 4 February 2025.
3. To avoid duplication the Review Panel proposes to rely upon the documents furnished by each party in respect of the treatment dispute with the proviso that the insurer upload to the portal in one indexed and paginated bundle any additional documents sought to be relied upon in respect of the permanent impairment dispute on or before 12 February 2025 and the claimant to upload to the portal in one indexed and paginated bundle any additional documents sought to be relied upon in the permanent impairment dispute by 21 February 2025.”
In accordance with the Directions dated 3 February 2025 the insurer on 13 February 2025 in Matter No. M20603/23 uploaded to the portal a bundle of documents paginated from pages 1 to 324 (insurer’s further documents).
On 20 February 2025 the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 289 (claimant’s further documents).
Whilst no submissions were contained within the claimant’s bundle of documents the Panel has had regard to the submissions uploaded by the claimant with the Reply to the insurer’s application for review on 9 January 2025 (claimant’s submissions).
On 27 March 2025 the Panel issued a Report and Directions notifying the parties of the medical assessment schedule to occur on 24 April 2025. Further, the Panel noted the clinical notes of Harrington Park Medical Centre do not include a clinical entry relating to the claimant’s reported attendance following the accident on 16 May 2022. The Panel directed the claimant by Monday 21 April 2025 to upload to the portal a full copy of the clinical notes of any general practitioner consulted by the claimant in the period two years preceding the accident to date, including an entry relating to an attendance on or about 16 May 2022.
On 1 April 2025 the claimant uploaded to the portal an Application to Admit Late Documents together with a report of Dr Herald dated 12 March 2025 and an X-ray and MRI report of the right shoulder dated 7 March 2025.
On 1 April 2025 the insurer uploaded to the portal an Application to Admit Late Documents together with extracts of Harrington Park Medical Centre clinical records from 30 September 2006 to 27 May 2022 paginated from page 1 to 97 (ALAD 1 April 2025).
On 17 April 2025 the claimant uploaded to the portal an Application to Admit Late Documents together with the clinical notes of Harrington Park Medical Centre for the period 3 June 2022 to 15 March 2024 paginated from page 1 to 400 (ALAD 17 April 2025).
RELEVANT LEGAL AUTHORITY
Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person-
(a)The reasonable cost of treatment and care,
(b)Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,
(c)If the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and cate for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
OTHER MEDICAL CERTIFICATES IN RESPECT OF THE ACCIDENT
Certificate of Medical Assessor Ian Cameron dated 17 February 2023
Medical Assessor Cameron issued a certificate dated 17 February 2023 in which he assessed the cervical and lumbar spine injuries as threshold (minor) injuries.
He found no neurological abnormalities in either the upper or lower limbs. He found range of movement of both shoulders were consistent with abduction 120º, adduction 30º, flexion 120º, extension 30º, external rotation 70º and internal rotation 80º. He also observed a symmetrically reduced range of movement of the lumbar spine.
Medical Assessor Cameron concluded the accident caused an exacerbation of chronic soft tissue problems to the cervical and lumbar spine. He stated:
“There is no evidence of radiculopathy as defined in the Motor Accident Guidelines at present or at any time following the motor vehicle crash. There is no evidence that an annular fissure was caused by the motor vehicle crash. They are common findings in asymptomatic people of Ms Miles age and the mechanism of injury in the motor vehicle crash would not be expected to transmit major force to the lumbar spine.”
He certified the following injury was not caused by the accident:
· head – post-concussion syndrome.
Certificate of Medical Assessor Ian Cameron dated 5 April 2025
Injury to the lumbar spine was referred for further assessment and Medical Assessor Cameron issued a certificate dated 5 April 2025 in which he certified the following injury caused by the accident was not a threshold injury for the purpose of the MAI Act:
· lumbar spine – soft tissue injury.
Medical Assessor Cameron reported in 2016 there was a C5/6 fusion by A/Prof Sheridan and in 2010 there was a C6/7 cervical fusion with persisting radiculopathy.
Medical Assessor Cameron reported on 10 November 2023 A/Prof Sheridan performed an L5/S1 microdiscectomy. This improved the leg pain but there was continuing urinary incontinence. He noted some symptoms in the right lower extremity and some residual numbness in the third, fourth and fifth toes on the right foot.
Medical Assessor Cameron reported signs of continuing radiculopathy with a reduced right ankle jerk and restricted straight leg raising on the right side. He thought the increased circumference of the right lower extremity was likely to be related to oedema. He found it plausible that there had been deterioration of the lumbar spine degenerative disease with radiculopathy since his earlier assessment.
Medical Assessor Cameron found that the injury to the lumbar spine was not a threshold injury because radiculopathy was present.
The insurer has lodged an application for review of this certificate, and that review will also be determined by this Panel.
Certificate of Medical Assessor Ian Cameron dated 5 April 2025
Medical Assessor Cameron issued a certificate dated 5 April 2025 in which he certified the following injury caused by the accident was not a threshold injury for the purpose of the MAI Act:
· right shoulder – soft tissue injury.
He also certified that the following injuries were not caused by the accident:
· right arm – aggravation of pre-existing radiculopathy.
The insurer has lodged an application for review of this certificate, and that review will also be determined by this Panel.
Certificate of Medical Assessor Woo (permanent impairment) dated 26 October 2024
Medical Assessor Woo issued a certificate dated 26 October 2024 in which he certified the following injuries caused by the accident gave rise to a permanent impairment of 12%:
· lumbar spine – aggravation of pre-existing disc bulging and deterioration;
· right shoulder – possible rotator cuff tear, and
· right arm – aggravation of pre-existing radiculopathy.
The insurer has lodged an application for review of this certificate, and that review will also be determined by this Panel.
ASSESSMENT UNDER REVIEW OF MEDICAL ASSESSOR WOO DATED 26 OCTOBER 2024
Medical Assessor Woo issued a certificate dated 26 October 2024 in which he certified the following treatment and care relates to the injury caused by the accident:
· cortisone injection to the right shoulder, and
· arthroscopic surgery to the right shoulder.[2]
[2] Insurer’s documents p 54 and claimant’s documents p 88.
Medical Assessor Woo certified the cortisone injection to the right shoulder is reasonable and necessary in the circumstances. He certified the arthroscopic surgery to the right shoulder is not reasonable and necessary in the circumstances.
On examination Medical Assessor Woo reported vague tenderness in the right shoulder. Range of movement was limited by pain. He used a goniometer to measure range of motion and recorded the following:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
90°
180°
Extension
30°
50°
Adduction
30°
50°
Abduction
90°
180°
Internal Rotation
30°
90°
External Rotation
90°
90°
Medical Assessor Woo reported Ms Miles underwent a CT guided left L5/S1 transforaminal steroid injection on 18 October 2022 and following that procedure she reported falling after alighting from transport that had picked her up from hospital and transported her home.
Medical Assessor Woo reported the ultrasound of the right shoulder of 6 December 2022 revealed supraspinatus tendinosis with partial-thickness tear, subacromial bursitis and early degenerative changes at the AC joint.
He noted the first report of a right shoulder problem was the certificate of capacity/certificate of fitness of Dr El Ayoubi dated 13 March 2023. He noted the sequence of events suggested there was a possible injury to the right shoulder when the claimant fell on her right arm and shoulder on 2 November 2022 (the Panel assumes he was referring to the fall on 18 October 2022).
In relation to causation Medical Assessor Woo stated:
“Dr Jonathan Herald reviewed her on 2 June 2023 and noted the MRI findings of both a partial-thickness tear with an os acromiale and biceps tendinitis most likely secondary to a SLAP lesion.
Dr Herald recommended her to consider selective injections to determine where most of the pain is coming and ultimately it may be worth considering a shoulder arthroscopy, subacromial decompression, rotator cuff repair and biceps tenodesis.
The treatment and care recommended by Dr Herald is related to the right shoulder
symptoms following the subject accident. She has ongoing right arm radiculopathy
symptoms and Dr Herald wanted to determine where most of the pain is coming from. The Cortisone injection serves as a diagnostic test as well as treatment.If she has symptom relief after the Cortisone injection, and depending on the duration of the symptom relief, it may be worth considering a shoulder arthroscopy, subacromial decompression, rotator cuff repair and biceps tenodesis. The treatment and care as recommended by Dr Herald relates to the subject accident.”
REVIEW PROCEDURE
The insurer lodged an application for review of the medical assessment within 30 days of the date on which the certificate was made available to the parties.
On 5 December 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 27 March 2025 the Panel agreed an examination was necessary.
EVIDENCE BEFORE THE REVIEW PANEL
A summary and review of the evidence including radiological investigations relied upon by the parties is set out in Appendix A to this Statement of Reasons.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 1 November 2023 in respect of the treatment dispute submitting the Commission did not have jurisdiction to determine the dispute.
The insurer provided submissions in respect of the application for review dated
15 November 2024.[4][4] Insurer’s documents p 4.
The insurer submits that despite medical evidence confirming a history of shoulder complaints Medical Assessor Woo did not refer to that history in his summary of the claimant’s medical history and nor did he take a detailed history from the claimant as to the commencement of her right shoulder symptoms.
The insurer disputes the claimant sustained injury to her right shoulder as a result of the accident where:
· pre-accident records confirm a history of right shoulder complaints;
· having regard to the circumstances of the accident the claimant could not have sustained a discrete injury to the right shoulder, and
· the claimant did not report any right shoulder complaints in the post-accident period and only appears to have reported right shoulder complaints following an unrelated fall on 18 October 2022.
The insurer provided submissions dated 23 November 2023 in relation to the dispute as to permanent impairment and submissions in respect of the treatment dispute dated
25 June 2024.On the basis the insurer asserts the claimant did not sustain an injury to her right shoulder in the accident or as a result of the accident the insurer submits the shoulder surgery and cortisone is not reasonable and necessary nor related to injuries sustained in the accident. [5]
[5] Insurer’s documents p 51.
The insurer relies upon the records of Harrington Park Medical Practice to assert:
“On 24 October 2022 the claimant reported having undergone a cortisone injection the previous week and that transport had been organised. She advised that following the injection her leg kept giving way and she experienced difficulty walking. She advised that when she got home, she fell down on her right arm and shoulder. She complained of right shoulder, arm and cervical spine pain. The claimant was referred for an MRI scan of the cervical spine. On 4 November 2022 the MRI scan was reviewed, and it was recorded that there was no acute pathology. The claimant also advised that she was working 4 days per week and that her employer had been accommodating.
At consultation on 13 March 2023 Dr El Ayoubi noted that a right shoulder ultrasound had revealed a partial thickness tear of the right supraspinatus tendon.”[6]
[6] Insurer’s documents p 52.
The insurer submits that the supraspinatus tear referred to in the ultrasound was no more than an incidental finding and likely related to the claimant’s pre-existing complaints.[7] The insurer notes the following history of right shoulder complaints:
· at a consultation with Harrington Park Medical Centre on 7 October 2008 the claimant gave a history of a sore right neck with pain shooting down her outer arm in the context of her work. Range of motion in the right shoulder was noted to be minimally restricted on internal rotation only;
· at a consultation with Harrington Park Medical Centre on 13 June 2017 the claimant complained of ongoing pain in her neck and both shoulders, particularly on the left;
· at a consultation with Dr Parmegiani on 8 June 2012 the claimant reported developing increasing symptoms of pain in the neck and right shoulder as well as pins and needles down the whole right arm, and
· at a consultation with Dr Coroneos on 7 June 2017 the claimant described pain in the right outer shoulder.
[7] Insurer’s documents p 44.
The insurer submits the MRI scan performed on 17 May 2023 suggested that any tear was of a degenerative nature.
The insurer submits if it is accepted that the claimant sustained an injury to the right shoulder in a fall on 18 October 2022 it cannot possible be caused by the accident as per clauses 6.5 and 6.7 of the Guidelines or s 5D of the Civil Liability Act 2022 (CLA).[8] It is noted that s 5D of the CLA relevantly provides:
“5D General principles
(i) 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).”
[8] Insurer’s documents pages 44 and 52.
The insurer submits it would not be appropriate for the insured’s liability to extend to any injury sustained as a result of the claimant falling after exiting a vehicle some eight months post-accident.
Claimant’s submissions
The claimant provided submissions dated 17 October 2023.[9]
[9] Claimant’s documents p 11.
The insurer refers to the report of Dr Herald dated 19 April 2023 where he reported the claimant had been complaining since the accident of pain in the right shoulder which was treated as coming from her neck injury. Upon examination he concluded she had suffered a rotator cuff tear and possible SLAP lesion in her right shoulder. He considered it occurred at the time of the accident but had not been diagnosed due the claimant’s pre-existing neck symptoms.
THE MEDICAL EXAMINATION
Ms Miles was examined by Medical Assessor David Gorman and Medical Assessor Rhys Gray at the medical suites at the Commission on 8 May 2025 in respect of the associated permanent impairment dispute. She attended unaccompanied.
HISTORY
Pre-accident medical history and relevant personal details
Ms Miles is a 52-year-old woman. She is single and has four children aged 13, 15, 26 and 30 years. The youngest two children are at home.
Ms Miles is currently working as a counsellor for 30 hours per week. She initially had commenced a teaching degree but did not finish it.
Ms Miles worked in administration roles and then in the finance sector as a mortgage broker for 13 years.
She completed a Bachelor of Social Science majoring in psychology. She also completed a Diploma of Counselling.
In 2010 Ms Miles had a motor vehicle accident where her car was hit from behind. After this she had “burning” pain in the right arm and right side of the face. She trialled Lyrica but it had side effects. Due to her ongoing symptoms Dr Darwish undertook a C6/7 discectomy and fusion on 10 December 2010. It helped somewhat.
Ms Miles stated there was no back pain after the 2010 accident.
She returned to work in 2014.
In 2016 Ms Miles had a second accident where her car was rear-ended. This caused worsening of her neck and right arm pain. This led to her having a C5/6 anterior discectomy and fusion with A/Prof Sheridan on 15 December 2017. This improved her symptoms although they did remain in the neck and right arm – she said the surgery improved her by “30%”.
Ms Miles has had osteoarthritis of both hips and had a right total hip replacement on
5 April 2018. The right hip surgery was on a background of having septic arthritis and requiring multiple surgeries in 1986.Right chondromalacia patella has also been diagnosed.
Ms Miles has been diagnosed with ulcerative colitis and has had trials of immunotherapy without success. She now manages this with diet.
She has atrophic gastritis and is on vitamin B12 injections.
Prior to the accident, Ms Miles was using Panadol Osteo three times a day. Just before the accident, she started using CBD oil (medicinal CBD approved by the Therapeutic Goods Administration).
History of the accident
On 30 April 2022, Ms Miles was the driver of a 2012 Jeep Grand Cherokee. She approached a roundabout to go left. She was wearing a seat belt. There were no other occupants. She was hit from behind by a Ford Raptor. Air bags in her vehicle did not deploy. She was not thrown around inside the car.
Ms Miles exited her vehicle and took photos of the accident. She exchanged details with the other driver. No ambulance attended the scene.
She went on to pick up her son from a sleepover and took him to his soccer game.
Ms Miles remembered having heightened anxiety for the rest of the day. Her vehicle was subsequently repaired.
History of symptoms and treatment following the accident
Ms Miles consulted her usual GP Dr Ahmed El Ayoubi on 16 May 2022 and gave a history of the accident. Dr El Ayoubi recorded: “She was stopped at a roundabout and hit from behind, not a big hit but enough to trigger symptoms. Has had an increase in nerve pain and increase in headaches and PTSD flare up.”
Ms Miles lodged an application for personal injury benefits on 16 May 2022. She reported:
“Since the current accident an increase in my symptoms have occurred of nerve pain (particularly of the right arm and right thumb), radiculopathy mainly right leg and right arm, headaches, lower back pain and bilateral elbow pain and increase in bruxism and insomnia.”
On 20 May 2022, Dr El Ayoubi completed a Certificate of Capacity when he diagnosed “Whiplash and lumbar back pain.”
In the post-accident AHRR No. 1 dated 24 May 2022 a physiotherapist diagnosed “whiplash” and lumbar pain. Pre-existing cervical and lumbar spine pathology was noted. There was no shoulder complaint at that stage.
Ms Miles was reviewed by A/Prof Sheridan for her ongoing neck and back pain and radicular symptoms.
Ms Miles underwent an ultrasound of the right shoulder on 6 December 2022 which showed: - “Supraspinatus tendinosis with partial-thickness tear - Subacromial bursitis - Early degenerative changes are noted in the AC joint.
A/Prof Sheridan suspected that her right arm pain could be related to the right shoulder.
Ms Miles reported that after the accident the neck and right arm pain returned to their pre-accident severity, but the low back pain continued and that her right shoulder felt “different”.
Ms Miles had ongoing low back pain and underwent a L5/S1 microdiscectomy on 11 November 2023 performed by A/Prof Sheridan. Prior to the surgery she had right hip region pain and numbness of the lateral three toes on the right. The surgery was covered by her insurer.
Ms Miles was reviewed by Dr Jonathan Herald on 19 April 2023. She was referred for an x-ray and MRI of the right shoulder, which was done on 17 May 2023. Dr Herald reviewed her on 2 June 2023 and noted the MRI findings of both a partial thickness tear with an os acromiale and biceps tendinitis most likely secondary to a SLAP lesion.
Dr Herald recommended Ms Miles consider selective injections to determine where most of the pain was coming from and ultimately concluded it may be worth considering a shoulder arthroscopy, subacromial decompression, rotator cuff repair and biceps tenodesis.
Ms Miles went on to have this procedure on 10 December 2024 – this was covered by her insurer. She reported that her right shoulder is “better” after the procedure.
Details of any relevant injuries or conditions sustained since the accident
On 30 September 2022, Ms Miles underwent a CT guided L5/S1 transforaminal steroid injection. It was recorded that Ms Miles “had mild vasovagal episode after procedure but was proactively managed with short bed rest and reassurance”.
On 18 October 2022, Ms Miles underwent a CT guided left L5/S1 transforaminal steroid injection. It is following this procedure that the Claimant reported falling after alighting from transport that had picked her up from the hospital following the procedure and returned her home. Her leg gave way from under her.
Ms Miles reported to the Medical Assessors that she could not recall scans after the fall from the car. However, it is noted she had an MRI cervical spine on 2 November 2022. The clinical history included “Recent fall onto her right arm and shoulder with whiplash effect onto the neck. Ongoing pins and needles in right arm radiculopathy.” The scan showed mild degenerative spondylosis of the cervical spine. The cervical spinal cord signal intensity is normal.
Ms Miles also had an ultrasound right shoulder on 6 December 2022 which showed supraspinatus tendinosis with partial-thickness tear; Subacromial bursitis; Early degenerative changes in the AC joint.
Current symptoms
Ms Miles complains of a constant burning pain in her right shoulder and upper arm. She complains of neck pain and right arm pain, which is like what she had at the time of the accident.
Ms Miles complains of lower back pain. She indicates that her lower back pain had improved following surgery, and it is manageable. She has occasional “sciatica pain” in her legs, often after prolonged standing.
Ms Miles is now able to carry out household chores such as cooking but must be careful and avoid prolonged standing.
Ms Miles has returned to work, 30 hours per week, as a counsellor in a rehabilitation service.
Current and proposed treatment
She takes Panadol Osteo three times daily with Nurofen as required.
She has regular vitamin B12 injections.
CLINICAL EXAMINATION
General presentation
Ms Miles is 155 cm in height and weighs 80kg.
She has a normal gait.
Cervical spine (cervicothoracic)
There was no tenderness in the cervical spine.
There was no muscle guarding.
Ms Miles had full flexion of the cervical spine, but extension was 1/3 normal. Rotation was 2/3 normal to the right and left. Lateral flexion to the right was 1/3 normal and to the left 2/3 normal. There was dysmetria.
There were two anterior scars related to previous fusion surgeries. The scars were well healed and barely visible.
There was no wasting in the upper limbs – the circumferences are outlined below:
Circumference (cm)
Right
Left
Upper arm
33
32
Forearm
27
25
The 2cm difference in circumference of the right forearm can be explained by the claimant’s right hand dominant difference.
Ms Miles reported a “burning” sensation in the whole right arm with duller sensation over the whole arm, not in any radicular pattern.
Reflexes were equal and present.
Power was equal and normal on the right and left.
Lumbar spine (lumbosacral)
There was a 4.5cm scar in keeping with the L5/S1 microdiscectomy. It was well healed.
There was no tenderness in the lumbar spine.
Range of movement was limited to ½ normal in all planes. There was no dysmetria.
Reflexes were normal and symmetrical.
Sciatic nerve root tension signs were negative.
There was no weakness in the lower limbs. There was a subjective sensory change over the lateral three toes of the right foot.
There was no wasting – the right calf circumference was 41.5cm and the left was 41cm.
Upper extremity
There was burning pain involving the whole right upper limb including over the right shoulder.
There was restricted range of movement bilaterally as outlined below. A goniometer was used to assess the range of motion. The ranges were consistent with repetition.
Shoulder Movement
Right (degrees)
Left (degrees)
Flexion
100
160
Extension
50
50
Adduction
30
50
Abduction
90
160
Internal rotation
50
90
External rotation
60
90
Impingement signs were positive on the right side.
Comments on consistency
Ms Miles was cooperative and consistent throughout the medical examination by the Medical Assessors.
WHETHER THE TREATMENT RELATED TO THE INJURY CAUSED BY THE ACCIDENT
The Panel considered the question of causation and diagnosis of the right shoulder injury in the associated threshold injury decision in matter No. R-M28979/24-02-1. In that matter the Panel considered whether the claimant established the right shoulder injury was causally related to the accident.
In Briggs v IAG Limited trading as NRMA Insurance[10] his Honour Justice Wright stated at [35]:
[10] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“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 injury
6.5An 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.
6.6Causation 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:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.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.
6.7There 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.”
The question is whether the accident could have caused or contributed to the alleged injury having regard to cls 6.6 and 6.7 of the Guidelines and s 5D of the CLA. Section 5D of the CLA provides:
“5D General principles
(ii) 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).”
The accident occurred on 30 April 2022. The Panel notes that in his statement dated
23 June 2022 the insured driver Mr Yakomov denied there was any impact at all between his vehicle and that of the claimant. However, he still followed the claimant around the corner and stopped.In her Application for personal injury benefits dated 16 May 2022 the claimant reported lower back pain and, in her statement, dated 3 June 2022 she said she felt the impact at the back of the car and her body was pushed forward and did move forward. On
16 May 2022 Dr El Ayoubi reported the claimant’s involvement in the accident noting she conceded it was not a big hit, but she alleged it was enough to trigger her symptoms. Whilst there was no complaint about lower back pain at that time the Panel notes on 20 May 2022, three weeks post-accident Dr El Ayoubi reported lumbar spine pain with burning down the right leg.Medical Assessors Gorman and Gray found the claimant to be a credible historian and having regard to the consistency of her complaint the Panel prefers the account of the claimant over that of the insured driver and is satisfied there was an impact between the insured’s vehicle and the rear of the claimant’s vehicle. The Panel is fortified in this conclusion where the insured driver stopped following the collision, noting if there had been no collision at all he would not, in all likelihood, have stopped.
The Panel has considered the competing biomechanical reports of Dr McIntosh and
Mr McDonald. Dr McIntosh concluded there was no mechanism for upper limb injuries in the accident whilst Mr McDonald only addressed the possibility of injury to the lumbar spine.In any event regardless of whether there was any mechanism for injury to the right shoulder in the accident there is no record of complaint relating to the right shoulder before the fall on 18 October 2022.
The right shoulder was not referenced in the Application for personal injury benefits dated 16 May 2022. Whilst Ms Miles reported that her right shoulder felt “different” after the accident there were no complaints pertaining to the right shoulder, where Dr El Ayoubi, A/Prof Sheridan and Ms Kira Ferry of Pinnacle Rehab only reported complaints relating to the neck and right arm.
Ms Miles informed Dr El Ayoubi on 24 October 2022 that on 18 October 2022 she fell on her right arm and shoulder and thigh resulting in ongoing pain in the right shoulder. The history recorded on the MRI of 2 November 2022 was of a “recent fall onto her right arm and shoulder with whiplash effect”. Further investigation included an ultrasound of the right shoulder performed on 6 December 2022 which revealed a partial-thickness tear of the supraspinatus, subacromial bursitis and bursal impingement together with early degenerative changes. An MRI of the right shoulder on 17 May 2023 revealed a high-grade partial thickness supraspinatus rotator cuff tear, a SLAP lesion and an Os acromiale.
The Panel finds there was no discrete injury to the right shoulder in the motor vehicle accident given the minor nature of the collision, the likely mechanism of the accident and the lack of complaint relating to the right shoulder until after the fall on 18 October 2022.
The next question is whether causation extends to the injury sustained as a result of the fall on 18 October 2022.
The claimant submits she sustained injury to the right shoulder in the accident and does not address the question of consequential injury sustained as a result of the fall on 18 October 2022. However, the insurer does address that issue submitting that it would not be appropriate for the insured’s liability to extend to any injury sustained as a result of the claimant falling after exiting a vehicle some eight months post accident.
The fall on 18 October 2022 occurred after the claimant underwent a left lumbar spinal cortisone injection on referral from A/Prof Sheridan. In her email to the insurer dated
19 October 2022 Ms Miles stated she had experienced numbness and weakness in her left leg following the injection and after she got out of the car her left leg went out from under her, and she fell. Mr Sisopha, the driver of the vehicle which had transported the claimant home confirmed Mr Miles fell after she got out of the car and informed him her leg went numb.The Panel considered the question of causation of injury to the lumbar spine in the associated matter of R-M28979/24-02-2. Having considered the competing biomechanical reports of Dr McIntosh and Mr McDonald the Panel preferred the opinion of Mr McDonald who stated in the absence of any collision event recorded by the Airbag Control Module of the claimant’s vehicle the change in speed caused by the collision was around 8kmph or less. Whilst Mr McDonald reported the threshold for lumbar injury is in excess of 20kmph that was in the absence of any pre-existing condition. The Panel notes Ms Miles had a long-standing pre-existing degenerative condition in her lumbar spine and accepted the impact was sufficient to cause injury to the lumbar spine.
Having concluded that the accident could have contributed to the claimant’s pre-existing lumbar spine condition the Panel considered whether it, in fact, did so. The Panel noted that other than a reference to backache in a questionnaire completed on 18 June 2019 for
Mrs Griffiths, chiropractor there was no other record of complaint pertaining to the lumbar spine since the claimant was reviewed by Dr Soh on 7 January 2019. Where Ms Miles reported symptoms relating to the lumbar spine immediately after the accident and in the absence of complaints relating to the lumbar spine in the four years pre-accident the Panel found the accident did contribute to the claimant’s lumbar spine condition.In matter No R-M28979/24-02-2 the Panel concluded the claimant had sustained a soft tissue injury to the lumbar spine where there was no evidence that at any time since the accident the claimant had demonstrated two or more clinical signs of radiculopathy in accordance with the Guidelines. Whilst A/Prof Sheridan reported a worsening disc protrusion with nerve compression consistent with the claimant’s back and right leg pain sufficient to recommend the claimant undergo an L5/S1 microdiscectomy he did not document two or more signs of radiculopathy in accordance with cl 5.8 of the Guidelines.
The Panel finds the cortisone injection was a reasonable and necessary treatment for the accident-related soft tissue injury to the lumbar spine where it was not only treatment but also a diagnostic tool and where the injection was performed on the recommendation of
A/Prof Sheridan, the claimant’s treating neurosurgeon. The Medical Assessors agree that the local anaesthetic in such an injection can cause leg weakness persisting for up to 24 hours.The Panel finds the claimant sustained injury to the right shoulder caused by her left leg giving way after undergoing a cortisone injection into her lumbar spine on 18 October 2022.
The Panel does not accept the insurer’s submission that the supraspinatus tear referred to in the ultrasound was an incidental finding where there had been no complaint of pain in the right shoulder for at least four years pre-accident and where there was an immediate onset of pain reported by the claimant following the fall.
The Panel finds the claimant sustained a high-grade partial thickness supraspinatus rotator cuff tear, and aggravation of a SLAP lesion as a result of the fall on 18 October 2022.
Applying the principles as to causation set out in cls 6.5 to 6.7 of the Guidelines in accordance with Briggs the Panel finds the injury to the right shoulder was materially contributed to by the accident where the facts establish that the claimant sustained a consequential injury to the right shoulder as result of a fall occasioned due to treatment for the accident-related lumbar spine injury.
Having regard to the provisions of s 5D of the CLA the Panel is satisfied that factual causation has been established in that the negligence of the insured was a necessary condition of the occurrence of the harm where the consequential injury to the right shoulder was caused by a fall occasioned by the treatment undergone by the claimant for her accident-related lumbar spine injury. The Panel also finds that it was appropriate for the scope of the insurer’s liability to extend to the harm caused to the claimant given the nature of the injury sustained and the need for further treatment.
It is clear from the Guidelines that the Panel should have regard to common law principles. The Panel notes the decision of the High Court in Mahony v J Kruschich (Demolitions) Pty Ltd is a leading authority for the proposition that the original tortfeasor remains liable for an injury and for any subsequent treatment unless the conduct of the subsequent treatment provider can be categorised as grossly negligent.[11] The Panel finds that common law principles also support a finding that the consequential injury to the right shoulder as a result of a fall was occasioned due to treatment for the accident-related lumbar spine injury.
[11] Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37.
Accordingly, the Panel finds the injury to the right shoulder was caused by the accident.
The claimant sought treatment from Dr Jonathan Herald. He reviewed the claimant on
2 June 2023 and noted the MRI findings of both a partial thickness tear with an os acromiale and biceps tendinitis most likely secondary to a SLAP lesion.The Panel is satisfied the treatment in dispute, namely the cortisone injection and the arthroscopic surgery to the right shoulder were related to the injury caused by the accident.
WHETHER THE TREATMENT WAS REASONABLE AND NECESSARY IN THE CIRCUMSTANCES
In his report dated 19 April 2023 Dr Herald noted prior to the accident and having undergone a C6/7 fusion in 2010 and a C5/6 fusion in 2011 the claimant had some radiculopathic symptoms to her upper limbs but was relatively fine. However, Dr Herald reported following the accident the claimant developed an aggravation of neck pain and radiculopathic symptoms to her right upper limb as well as shoulder pain. He considered she had a rotator cuff tear and a possible SLAP lesion in the right shoulder.
When he reviewed the claimant on 2 June 2023 Dr Herald reported she had tenderness over her biceps region as well as rotator cuff and positive impingement signs. He recommended selective injections to determine the source of the pain followed by a shoulder arthroscopy, subacromial decompression, rotator cuff repair and biceps tenodesis.
The Panel notes the cortisone injection proposed by Dr Herald was for both diagnostic and treating purposes. The Panel considers that an appropriate course of action given the diagnosis and the claimant’s symptoms.
Having undergone the cortisone injection without success Dr Herald recommended the claimant proceed to surgery. Arthroscopic surgery is acceptable treatment having regard to the claimant’s ongoing symptoms and the findings demonstrated on imaging.
Having regard to the presence of a rotator cuff tear and a SLAP lesion the Panel considers the proposed surgery was reasonable and necessary in the circumstances.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Woo dated 26 October 2024 and certifies the following treatment and care relates to the injury caused by the accident and is reasonable and necessary in the circumstances:
· cortisone injection to the right shoulder, and
· arthroscopic surgery to the right shoulder.
OutcomeDocumentSignee
OutcomeDocumentSignature
0
2
0