Allianz Australia Insurance Limited v Poloa
[2024] NSWPICMP 266
•2 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Poloa [2024] NSWPICMP 266 |
| CLAIMANT: | Pilisita Poloa |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Maurice Castagnet |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 2 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor accident on 21 October 2021 when her vehicle was rear ended by the insured vehicle; dispute about whether the injuries caused by the accident were threshold injuries; Held – original assessment confirmed; injury to right shoulder is a non-threshold injury. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The issue determined by the Review Panel is whether the injuries caused by the motor accident are threshold injuries. The Review Panel: 1. Confirms the certificate of Medical Assessor Mohammed Assem dated 29 November 2022. 2. Certifies that the following injuries caused by the motor accident: · cervical spine – soft tissue injury; · thoracic spine – soft tissue injury; and · lumbar spine – soft tissue injury, are THRESHOLD INJURIES for the purposes of the Act. 3. Certifies that the injury to the right shoulder – partial tear to the long head biceps tendon caused by the motor accident is a NON-THRESHOLD INJURY for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
On 21 October 2021, the claimant, Pilisita Poloa, was injured in a motor accident when her stationary motor vehicle was rear ended by a motor vehicle insured by the insurer, Allianz.
As a result of the accident, the claimant claimed that she sustained injuries to her shoulders, cervical spine, thoracic spine, lumbar spine and arms. She also claims to have developed a psychological injury.
The insurer accepted liability to pay the claimant statutory benefits arising from her injuries, under the Motor Accident Injuries Act 2017 (the MAI Act), for the first 26 weeks.
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 threshold injuries”.[1] An injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[1] Sections 3.11 and 3.28 of the MAI Act. From motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks.
[2] Section 4.4 of the MAI Act.
The issue in dispute is whether the claimant’s physical injuries resulting from the accident were threshold injuries for the purposes of the MAI Act.
Schedule 2, cl 2 of the MAI Act provides that various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
The MAI Act was amended by the Motor Accident Injuries Amendment Act 2022 to provide that from 1 April 2023, the term “minor injury” is to be expressed as a “threshold injury” and “minor injuries” as “threshold injuries”. Accordingly, any reference in these reasons to a “minor injury” or “minor injuries” will be a reference taken from a document that existed prior to 1 April 2023.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
On 15 February 2022, the insurer issued a post-26 weeks liability decision, finding that the claimant sustained only minor physical injuries in the accident. The claimant requested an internal review and on 25 March 2022, the insurer affirmed its original decision.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5. This means that the matter is determined at first instance by a Medical Assessor [3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.
MEDICAL ASSESSMENT UNDER REVIEW
The dispute was referred at first instance to Medical Assessor Mohammed Assem who issued a Medical Assessment Certificate on 29 November 2021 (the medical assessment).
It is to be noted that the only injuries referred for assessment to the single Medical Assessor were injuries to the cervical spine, thoracic spine, lumbar spine and right shoulder.
Medical Assessor Assem determined that the following injuries that were referred to him for assessment were caused by the accident and were minor (threshold) injuries for the purposes of the MAI Act:
· cervical spine – soft tissue injury;
· thoracic spine – soft tissue injury, and
· lumbar spine – soft tissue injury.
Medical Assessor Assem determined that the accident caused an injury to the right shoulder by way of a partial tear to the long head of the biceps tendon, and that this was not a minor (threshold) injury for the purposes of the MAI Act.
The claimant made submissions that the injury to the left shoulder should also be assessed because it “was injured in the subject motor vehicle accident” and was a non-threshold injury. This is supported by contemporaneous medical records from the general practitioner, the physiotherapist and the statement made in the personal injury claim form.
The insurer objected to an injury to the left shoulder being assessed and submitted that no left shoulder injury was referred for assessment by the single Medical Assessor. Further, there is no supporting evidence that may establish that the accident caused non-threshold injury to the left shoulder.
Firstly, the Panel notes that the only reference by the claimant that may infer that there was an injury to the left shoulder was a reference in the claimant’s personal injury claim form to injury to “shoulders”.[4]
[4] Page 3 of the claimant’s bundle.
Secondly, the Panel notes that there was a reference in the claimant’s submissions to the single Medical Assessor to “injury to shoulders”.
However, only a right shoulder injury was referred for assessment by the single Medical Assessor.
When the matter was before the single Medical Assessor, there was no suggestion made at any stage that the absence of a referral for assessment of a left shoulder injury may have been due to an administrative oversight or any other reason.
In the material before the Panel, there is no evidence to show that there was a left shoulder injury caused by the accident. The clinical records of the general practitioner (GP), Dr Di Mascio (the GP records) did not record any injury to the left shoulder at the first visit to the GP on 25 October 2021, although there was a specific complaint about the right shoulder injury which was followed by an examination of the right shoulder. [5] On the next visit to the GP on 28 October 2021, there was a report of restriction in the right shoulder, pain in the cervical spine and the thoraco-lumbar area. There was no mention of a left shoulder injury or any complaints about the left shoulder. There were no complaints about the left shoulder in any subsequent visits.
[5] Page 96 of the claimant’s bundle.
The Panel notes that there is no evidence of any injury to the left shoulder recorded in the certificate of fitness dated 2 November 2021[6] and no evidence of any treatment received for any injury to the left shoulder in the physiotherapy records. [7]
[6] Page 17 of the claimant’s bundle.
[7] Pages 238-247 of the claimant’s bundle.
For the above reasons, the Panel has not assessed any injury to the left shoulder in this review.
THE REVIEW APPLICATION
On 22 December 2022, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessment to a review panel for review. The application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being 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.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Neil Berry, Medical Assessor Chris Oates and Member Maurice Castagnet (the Panel).
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.[8]
[8] Section 41(2) of the PIC Act.
Pursuant to Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[10]
RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
[10] Section 7.26(6) of the MAI Act.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the 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 psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold 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.
The Motor Accident Guidelines
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 threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on 1 December 2017 to 31 March 2023. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
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 threshold injury. An injury resulting in radiculopathy will not be classified as a threshold 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 threshold injury.[11]
Causation of injury
[11] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[12]
[12] See s 3B(2) of the Civil Liability Act 2002.
It is convenient to also set out in full the observations made by Wright J in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of Injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
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 judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
CLAIMANT’S SUBMISSIONS
Right shoulder injury
The claimant submitted that the motor accident caused (or materially contributed to) the tear in the right shoulder. There were no records of ongoing right shoulder complaints immediately before the accident and there were no pre-accident records of a right shoulder tear.
Cervical spine, thoracic spine and lumbar spine
The claimant submitted that the injuries to the cervical spine, thoracic spine and lumbar spine were all causally related to the accident and are all non-threshold injuries for the purposes of the MAI Act because there are contemporaneous medical records of those injuries from the claimant’s treating general practitioner and physiotherapist. These injuries are also referred to in the personal injury claim form.
However, the Panel notes that there were no submissions from the claimant on the evidence upon which she seeks to rely to show that the injuries to the cervical spine, thoracic spine and lumbar spine caused by the accident were not threshold injuries for the purposes of the MAI Act.
INSURER’S SUBMISSIONS
Right shoulder injury
The insurer’s submissions were primarily directed to the right shoulder injury.
The insurer submitted that in applying the correct test for causation, it is necessary to consider whether the accident was capable of causing the injury and whether in fact it did. That enquiry required the consideration of the pre-existing conditions, the nature of any aggravation to an existing right shoulder injury and whether that aggravation was more than negligible.
The insurer noted that the police report recorded that the claimant’s vehicle was struck from behind by a vehicle travelling 40kmph and submitted that there was not sufficient force to cause air bags to deploy. The insurer noted that there is no evidence that the claimant struck any part of the cabin. In the circumstances, the insurer submitted that it is considerably more likely that any right shoulder tear was degenerative in nature and not caused by any trauma in the accident.
The insurer submitted that it was highly unlikely that the pre-existing pathology became irrelevant simply due to an absence of reporting in the two years prior to the accident.
MATERIAL BEFORE THE REVIEW PANEL
The Panel considered the material filed by the parties. The claimant’s evidence comprised of a bundle of 251 pages. The insurer’s evidence comprised of a bundle of 221 pages. The Panel also considered the late documents filed by the claimant (with the consent of the insurer) on 23 February 2024 – an MRI report of the right shoulder and an MRI of the cervical spine both dated 14 April 2023.
The evidence may relevantly be summarised as follows.
The claimant’s personal injury claim form
In her personal injury claim form, dated 23 October 2021, the claimant stated that she was stationary at a set of traffic lights when the insured vehicle, without warning, suddenly struck her vehicle from behind at considerable speed.[13]
[13] Page 3 of the insurer’s bundle.
The claimant was driving a 2010 Hyundai Getz sedan and the insured vehicle was a Toyota Estima (People Mover). [14]
[14] Pages 259 - 260 of the claimant’s bundle.
The claimant described her injuries as follows:
“-Neck
-Shoulders
-Back
-Arms
-Psychological Sequalae [sic].”[15]
[15] Page 3 of the claimant’s bundle.
Pre-accident medical records
The GP records referred to the following consultation notes, complaints, and observations:
(a) on 15 July 2013 – ongoing right shoulder pain and limitation; X-ray and ultrasound; AC joint osteoarthrosis; supraspinatus tendinosis and bursitis;[16]
(b) on 1 August 2013 – had cortisone injection right shoulder; was ok, but then sweeping floors, with increasing pain abduction 80 degrees, limitation internal and external rotation; discussed ROM exercises; 1 week Celebrex 200mg;[17]
(c) on 22 October 2013 – still troubled with right shoulder; tender AC joint; abduction 75 degrees; limited internal/ external rotation; repeat cortisone injection;[18]
(d) on 1 November 2013 – involved in motor vehicle accident 28 October 2013, driver of own vehicle in morning, seat-belt in place; hit by another vehicle on passenger side panel; apparently rolled vehicle; ambulance…taken to Liverpool Hospital; had CT scans etc; discharged later that day; resolving ecchymosis right lateral neck and antero-lateral right shoulder;[19]
(e) on 3 December 2013 – flare with right shoulder; restriction abduction, internal and external rotation; may benefit from repeat injection;[20]
(f) on 20 May 2018 – pain and restriction right shoulder; some crepitus on movement; Abduction to 90 degrees; pain on internal/ external rotation;[21]
(g) on 22 August 2018 – pain and limitation right shoulder; crepitus and pain on internal/external rotation; abduction to 75 degrees;[22]
(h) on 26 August 2018 – better with right shoulder; abduction to 80-90 degrees; wishes to persist with conservative treatment,[23] and
(i) on 29 October 2019 – poor sleep last pm; right shoulder pain; pain on shoulder external/ internal rotation.[24]
[16] Page 40 of the claimant’s bundle.
[17] Page 40 of the claimant’s bundle.
[18] Page 43 of the claimant’s bundle.
[19] Page 43 of the claimant’s bundle.
[20] Page 43 of the claimant’s bundle.
[21] Page 61 of the claimant’s bundle.
[22] Page 62 of the claimant’s bundle.
[23] Page 62 of the claimant’s bundle.
[24] Page 70 of the claimant’s bundle.
On 8 February 2011, an X-ray of the right shoulder reported the following findings:[25]
“The right clavicle has a normal appearance. The acromioclavicular and glenohumeral joints have normal appearances. Subacromial space height is preserved, and no spurring is evident. The humeral head and proximal shafts are normal.”
[25] Page 133 of the claimant’s bundle.
On 4 July 2013, an ultrasound of the right shoulder reported the following findings:[26]
“The sonographic features are consistent with the presence of supraspinatus tendonitis, with associated subacromial bursitis. The patient may benefit from an ultrasound guided injection of corticosteroid and local anaesthetic into the subacromial bursa.”
[26] Page 137 of the claimant’s bundle.
On 4 July 2013, an X-ray of the right shoulder reported the following findings:[27]
“Mild osteoarthritic change is present in the glenohumeral and AC joints, with evidence of joint space narrowing, subchondral sclerosis and osteophyte formation. Bony spurs are arising from the inferior part of the AC joint.”
[27] Page 137 of the claimant’s bundle.
On 25 July 2013, an Ultrasound Guided Injection of Right Subacromial Bursa was performed by sonographer, R Coutts.[28]
[28] Page 138 of the claimant’s bundle.
Post-accident medical records
The GP records referred to the following consultation notes, complaints, and observations:
(a) on 25 October 2021 – involved in car accident last week, 21 October 2021, driver, own vehicle; accident after my swabs taken earlier in morning; stationary at lights, hit in rear by following vehicle; wearing seat belt, daughter in front seat; thrown forward+.
Pain right shoulder, scapula-thoracic; tightness in neck, thoracic; tender at right trapezius, right cervical para-spinal; pain lateral neck rotation; neuro UL grossly N; tender at medial aspect scapula on right pain thoracic rotation; tender at right lumbar para-spinal; pain forward lumbar flexion.
Right shoulder abduction to 80 degrees; limitation internal/ external rotation
Likely flare right rotator cuff; cervical facet joint dysfunction; thoracic facet, and para-spinal muculo-ligamentous strain; lumbar musculo-ligamentous strain.[29]
(b) on 28 October 2021 – pain cervical, thoraco-lumbar; restriction right shoulder; >bursal distension, possible tear biceps, s/spinatus tendinosis; physio treatment will help; may need orthopaedic review;[30]
(c) on 2 November 2021 –lingering with cervical and right shoulder, and thoraco-lumbar; undertaking physio treatment; simple analgesia;[31]
(d) on 11 November 2021 – residual discomfort right shoulder; restriction; usual cervical neck discomfort; lingering lower pain;[32]
(e) on 14 November 2021 – residual discomfort right shoulder; lingering cervical spine discomfort; has found physio treatment beneficial, especially in regards LBP; nil radicular;[33]
(f) on 18 November 2021 – much the same with neck and lower back using Celebrex I daily; physio treatment - has completed 5 sessions via EPC;[34]
(g) on 28 November 2021 – pain complex; cervical neck, restricted lateral rotation; right shoulder pain and limitation; pain lower back; interference with ADL’s,[35] and
(h) on 5 December 2021 – persisting cervical neck pain; right shoulder unchanged; lower back discomfort.[36]
[29] Page 92 of the claimant’s bundle.
[30] Page 93 of the claimant’s bundle.
[31] Page 94 of the claimant’s bundle.
[32] Page 95 of the claimant’s bundle.
[33] Page 96 of the claimant’s bundle.
[34] Page 97 of the claimant’s bundle.
[35] Page 97 of the claimant’s bundle.
[36] Page 98 of the claimant’s bundle.
An X-ray of the cervical, thoracic and lumbar spine, performed on 26 October 2021, reported the following findings:[37]
“The cervical vertebral column demonstrates normal alignment. Vertebral body height is preserved. Mild generative endplate changes are evident throughout. Small anterior osteophytes are present. The prevertebral soft tissues are normal. The articular surfaces of the facet joints are normal and the spinous process are normal. No cervical ribs are present. The thoracic vertebral column demonstrates a gentle scoliosis convex to the right. Vertebral body height is preserved. Mild degenerative endplate change and anterior osteophytes are present. The lumbar vertebral column demonstrates normal alignment with mild to ss of disc space height at the L5/S1 level where mild degenerative endplate changes are present. The sacrum has a normal appearance. The sacroiliac joint articular surfaces are normal.”
[37] Page 28 of the claimant’s bundle.
An X-ray of the right shoulder performed on 26 October 2021 reported the following findings:[38]
“The cortical pattern of the right clavicle is normal. The articular surfaces of the sternoclavicular and acromioclavicular joint are normal. The glenohumeral joint has a normal appearance. Subtle foci of calcification are identified adjacent to the supraspinatus insertion. The humeral head has an otherwise normal appearance.”
[38] Page 28 of the claimant’s bundle.
An ultrasound of the right shoulder performed on 26 October 2021 reported the following findings:
“The right biceps tendon is markedly thinned, possibly reflecting a partial tear. A small amount of fluid is noted within the tendon sheath. The subscapularis tendon is heterogeneous which may reflect mild atrophy. The infraspinatus tendon is unremarkable. The teres minor tendon and posterior labrum are normal. The supraspinatus tendon is heterogeneous. No tear is evident although there is mild thickening associated with bursal distension.
Conclusion
The sonographic appearances suggest the presence of supraspinatus tendinosis associated with subacromial bursitis. There is a likely partial tear of the long head of the biceps tendon.”
An MRI of the right shoulder performed on 14 April 2023, reported the following findings:[39]
“Conclusion: There is marked thinning of the insertional aspect subscapularis tendon. No atrophy of muscle belly. Medial dislocation of long head biceps from bicipital groove evident. Some insertional and critical zone tendinopathy seen supraspinatus tendon and minor insertional tendinopathy infraspinatus tendon seen. No tears noted.”
[39] Page 28 of the claimant’s bundle.
An MRI of the cervical spine performed on 14 April 2023 reported the following findings:[40]
“Conclusion: Broad-based posterior and right lateral disc bulge at C5/6 level is causing severe narrowing right exit foramen. Moderate narrowing right exit foramen C6/7 level also evidence secondary to disc osteophyte complex.”
[40] Page 28 of the claimant’s bundle.
RE-EXAMINATION
The re-examination was conducted in person by Medical Assessor Oates on behalf of the Panel on 30 November 2023. The claimant attended the appointment accompanied by her daughter.
An official Samoan telephone interpreter was available for the entire assessment.
Relevant personal details
The claimant was born in Samoa and came to Australia in 1993. She is aged 51 years.
She was not in the workforce, apart from one year when she did home care of six children in 2018.
She is a mother of five daughters and one son, all born by normal delivery.
Pre-accident medical history
Her general health is good, and she is on no regular medications. She has not had any operations.
She recalled an earlier injury in 1994 when she was a pedestrian and was struck by a motor vehicle, sustaining two lacerations to her scalp which were sutured, and an injury to her left knee. She does not recall any injury to the shoulders.
The claimant was asked about her past history referred in the GP records. She could not remember having an X-ray of the left knee and right shoulder in September 2011, nor the reason for having these.
She thinks she may have had X-ray and ultrasound of right shoulder and ultrasound-guided cortisone injection of right shoulder in July 2013 due to an injury in 2012, but she was not sure.
According to the GP records, she had further right shoulder flare-up and injection from the GP prior to the accident but cannot recall this.
She said she had moved from Melbourne to Sydney in 2010 and has had Dr Di Mascio as her GP since then.
The claimant was asked her about the motor accident of 28 October 2013. She said she was the driver of a car with no passengers and another car struck the right rear passenger door of her vehicle. Her vehicle rolled over once and ended up on its wheels on the footpath. She was very shocked. The police and ambulance attended, and she was taken to hospital. The car was written off. She did not recall having any physical injury.
She does not recall a left shoulder soreness or having an injection in 2020, as recorded in the GP records.
She does not recall having an X-ray and ultrasound of the left shoulder in January 2021.
The motor accident
The claimant said on 21 October 2021, she was driving a Toyota Tarago (similar to an Estima) vehicle with her daughter as a front seat passenger. When she was stopped at a red light, her vehicle was rear ended by a following taxi cab.
She was thrown forwards on the impact, but her seatbelt tensioned. She did not hit the steering wheel. Her vehicle was pushed forward and collided with another vehicle in front of it, but this driver left the scene. The airbags did not deploy.
The police and ambulance did not attend the scene, but the vehicle was not driveable. It was towed and was later written off.
History of symptoms and treatment following the motor accident
At the time of the accident, she felt soreness in the neck, right shoulder and lower back. She did not recall having any visible bruises.
She saw her GP, Dr Di Mascio at Fairfield Heights, when he was next available after the accident on 25 October 2021. He diagnosed a likely flare-up of right rotator cuff pathology. She was treated with painkillers and referred for physiotherapy. She had sporadic treatments to the right shoulder, neck and back, and did exercises with Thera bands.
She has continued to have sporadic treatment, having a couple of treatments in 2022 and a further treatment two weeks ago. She is now going to have a block of therapy sessions with eight approved by the insurer, with treatment proposed to the lower back, neck and right shoulder. She will attend twice a week.
She was also having some remedial massage at home but stopped this because it was flaring up the soreness in the neck and back. She has not seen any other doctors.
Details of any relevant injuries or conditions sustained since the motor accident.
The claimant said that she has had no subsequent accident or injury.
Current symptoms
She has not had much improvement over time and still has neck pain with restricted rotation to both sides, with the pain radiating to the left trapezius and left shoulder, and pins and needles and weakness of grip in both forearms and hands, right greater than left. The symptoms are constant in the right forearm and intermittent in the left forearm.
She has right shoulder pain, indicating the apex and lateral upper arm, and this pain is getting worse. She cannot properly dress or shower herself or scratch her back with her right hand.
She has soreness in the lower back if she sits down or stands up too long and the long back pain radiates to both buttocks, more so on the left side.
She has difficulty walking distances because pain comes into both legs of equal severity on each side. Her pain has been overwhelming her since the motor accident and she needs more help now from her daughters with everyday activities and household tasks than before.
She had an MRI scan to look at her neck and right shoulder about four months ago and her GP wants her to see a specialist, as there is a possibility she will need neck surgery, and she is awaiting a decision on liability.
Current and proposed treatment
She is not having any medications currently.
She is awaiting a decision on liability so that she can see a specialist regarding possible cervical spine surgery.
Examination
General presentation
She was of solid build with height 164cm and weight 103.8kg.
Her daughter helped her get on and off the couch.
She had a slow ponderous gait. She had a stiff back when she got off the chair after 50 minutes of interview.
Cervical spine (cervicothoracic)
There was a kyphosis of the upper thoracic spine with poke-necked posture. There was no muscle guarding. There was some tenderness over the lower cervical spines centrally and adjacent paracervical muscles.
Range of movement was symmetrically limited with flexion and extension one-third normal, rotation one-half normal to the right and left, and lateral flexion one-third normal to the right and left.
Reflexes, power and sensation in the upper limbs were normal.
Upper arm girth; right equals left equals 34cm at 10cm above the elbow. Forearm girth; right equals left equals 29cm at 5cm below the elbow.
Thoracic spine (thoracolumbar)
As noted above, there is an upper thoracic kyphosis. There was paraspinal tenderness in the upper thoracic spine but no guarding.
Range of movement in rotation was one-half normal to the right and left. There was no abnormality of neurological findings applicable to the thoracic spine.
Lumbar spine (lumbosacral)
There was no muscle guarding. Range of movement was limited with flexion three-quarters of normal range and extension one-quarter normal range, with lateral flexion two-thirds normal range to the right and left.
Supine straight leg raising; right 30°, left 40° limited by low back pain. Sciatic stretch test was negative.
Reflexes were symmetrical with plantar responses both flexor. Sensation and power in the lower limbs were normal.
Thigh girth; right 59cm, left 60cm at 10cm above the superior patellar pole. Leg girth; right equals left equals 41cm at 13cm below the inferior patellar pole at the point of maximum circumference.
Upper extremities
Active range of movement measured with a goniometer.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 90° | 90° |
| Extension | 30° | 40° |
| Adduction | 20° | 20° |
| Abduction | 90° | 120° |
| Internal Rotation | 30° | 60° |
| External Rotation | 60° | 60° |
There was no visible biceps tendon deformity.
Comments on consistency
Apart from some pain inhibition of active movement (fear avoidance behaviour), there was no other inconsistency noted.
Summary of relevant radiological and medical imaging under investigation
No imaging was brought to the assessment. At the request of the Panel, imaging studies were subsequently provided to the Panel.
Diagnosis, causation and reasons
The diagnosis is soft tissue injury to cervical spine, thoracic spine and lumbar spine.
The accident was a cause of soft tissue injury to the three spine regions, as these are mentioned in the personal injury claim form, the contemporaneous GP records, the physiotherapy records of 28 October 2021, and the certificate of fitness of 24 October 2021.
There was soft tissue injury to the right shoulder with aggravation of a pre-existing symptomatic right shoulder condition which was also a soft tissue injury. Ultrasound scan of the right shoulder after the motor vehicle accident showed a new lesion of partial tear of long head of biceps tendon, which is, on the balance of probabilities, a post-traumatic finding in the Panel’s opinion. The right shoulder diagnosis, resulting from the accident, is partial tear of long head of biceps tendon.
The right shoulder injury is mentioned in the GP record of 25 October 2021, the personal injury claim form, the physiotherapy records and certificate of fitness.
There is a long history of symptomatic right shoulder problems prior to the subject accident, with the GP records referring to the right shoulder as early as February 2011.
An X-ray of right shoulder from 7 February 2011 showed no degenerative change and no other abnormality.
An ultrasound right shoulder of 4 July 2013 showed thickening of supraspinatus tendon and of the subacromial bursa, and no abnormality in either long head of biceps tendon, or subscapularis or infraspinatus tendons.
At that point, an X-ray was showing mild osteoarthritic change in the glenohumeral and acromioclavicular joints.
An earlier motor accident of 28 October 2013 resulted in bruising to the right side of the neck and anterolateral right shoulder, presumably from the seatbelt, but there was no imaging available from this time.
The right shoulder had been symptomatic days earlier, with the entry of 22 October 2013 in the GP records indicating still troubled with right shoulder and tender AC joint with limited abduction, internal and external rotation, with a repeat cortisone injection from the GP.
After this accident, there was a further steroid injection on 3 December 2013.
There was further right shoulder pain on 7 October 2014.
There was also further right shoulder pain with restriction of movement in abduction to 90° in the entries of 20 May 2018 and 22 August 2018 in the GP records.
Following the accident of 21 October 2021, an X-ray of the right shoulder showed normal joints with subtle foci of calcification adjacent to supraspinatus insertion. Ultrasound of the right shoulder showed marked thinning of right biceps tendon, possibly reflecting a partial tear, with a small amount of fluid noted within the tendon sheath, heterogeneous subscapularis and supraspinatus tendons but no evident tears.
It was considered that the sonographic appearances suggested supraspinatus tendinosis with subacromial bursitis and a likely partial tear of long head of biceps tendon.
An MRI right shoulder performed on 14 April 2023, reported the following findings:[41]
“Conclusion: There is marked thinning of the insertional aspect subscapularis tendon. No atrophy of muscle belly. Medial dislocation of long head biceps from bicipital groove evident. Some insertional and critical zone tendinopathy seen supraspinatus tendon and minor insertional tendinopathy infraspinatus tendon seen. No tears noted.”
[41] Page 28 of the claimant’s bundle.
The MRI scan performed 18 months after the ultrasound scan, on account of persisting restricted active range of motion, suggests the partial tear of the right biceps tendon has healed, however there is persistent pathology shown on the imaging in the form of medial dislocation of long head of biceps, a possible late sequela of the biceps tendon pathology demonstrated on the post-accident ultrasound scan.
The apparent healing of the biceps tendon tear does not alter the fact that it manifested as new pathology after the accident, not having been present on the pre-accident ultrasound scan, and the Medical Assessors of the Panel considered that on the balance of probabilities, the accident was of a type which could cause such an injury, considering the rear followed by frontal collisions, with sudden tensioning of the seat belt as she was propelled forward by the impact, with pressure from the belt directly over the front of the shoulder at the anatomical site of the long head of biceps tendon origin, concordant with the site of pathology on the ultrasound scan.
An X-ray of the cervical, thoracic and lumbar spines on 26 October 2021 showed preservation of vertebral body height in the cervical spine with mild endplate degenerative changes throughout and small anterior osteophytes. The facet joints were normal. The thoracic spine showed gentle scoliosis convex to the right with vertebral body height preserved and mild endplate degenerative change and anterior osteophytes. The lumbar spine showed mild loss of L5/S1 disc space height with mild degenerative endplate changes.
THRESHOLD INJURY
Cervical spine
This is a threshold injury. There is no evidence of cervical radiculopathy on clinical examination. No imaging has been performed to the knowledge of the Panel, apart from an X-ray, hence there was no evidence to suggest partial or complete rupture of any connective tissue, such as tendon, ligament or cartilage.
Thoracic spine
This is a threshold injury. There is no evidence of radiculopathy clinically and no imaging is available to suggest a partial or complete rupture of connective tissue, such as tendon, ligament or cartilage.
Lumbar spine
This is a threshold injury. There is no clinical evidence of lumbar radiculopathy on examination and there is no imaging available to demonstrate a partial or complete rupture of connective tissue, such as tendon, ligament or cartilage.
Right shoulder
The right shoulder - partial tear to the long head biceps tendon is a non-threshold injury.
Pre-accident, a right shoulder ultrasound scan showed no abnormality of biceps tendon, whereas a post-accident ultrasound scan of the right shoulder showed a partial tear of the long head of biceps tendon, which represents a partial rupture of a connective tissue (tendon) and this satisfies the definition for non-threshold injury for the purposes of the MAI Act.
FINDINGS
For the above reasons and on the examination findings, the Medical Assessors of the Panel are satisfied that the claimant sustained a partial tear of long head of biceps tendon of the right shoulder caused by the motor accident.
This is a not a threshold injury as defined in the MAI Act.
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 threshold or non-threshold 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: See Insurance Australia Group Ltd v Keen[42] and Insurance Australia Ltd v Marsh.[43]
[42] [2021] NSWCA 287 at [40], [41] and [45].
[43] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination findings and conclusions of the Medical Assessors of the Panel.
Accordingly, the claimant’s injury to the right shoulder caused by the motor accident is a non-threshold injury.
CONCLUSION
The following injuries caused by the motor accident:
· cervical spine – soft tissue injury;
· thoracic spine – soft tissue injury; and
· lumbar spine – soft tissue injury,
are THRESHOLD INJURIES for the purposes of the MAI Act.
The injury to the right shoulder - partial tear to the long head biceps tendon is a NON-THRESHOLD INJURY for the purposes of the MAI Act.
The Review Panel confirms the certificate of Medical Assessor Mohammed Assem dated
29 November 2022.
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