Allianz Australia Insurance Limited v Stosic

[2024] NSWPICMP 880

DETERMINATION OF REVIEW PANEL

CITATION:

Allianz Australia Insurance Limited v Stosic [2024] NSWPICMP 880

CLAIMANT:

Radojka Stosic

INSURER:

Allianz

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

Tania Rogers

DATE OF DECISION:

20 December 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury dispute; claimant was a passenger on a bus when the bus braked suddenly; claimant was thrown from her seat onto the floor; claimant developed increasing neck and back pain over the subsequent days; claimant was complaining of right shoulder pain, right elbow pain, bilateral knee pain, bilateral hip pain (left worse than right), numbness and tingling in her right hand; claimant underwent diagnostic investigations; issue whether right rotator cuff/supraspinatus tear caused by motor accident; Medical Assessor Herald certified that right shoulder tear caused by the motor accident is not a threshold injury for the purposes of the Act; Medical Review Panel not satisfied as to causation based upon close examination of the claimant’s diagnostic scans and delay in onset of symptoms; Held – Medical Assessment Certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF THRESHOLD INJURY

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

1.     The Review Panel revokes the certificate of Medical Assessor Jonathan Herald issued on
31 May 2023 and issues a new certificate as follows:

(a)    The following injuries caused by the motor accident:

·         soft tissue injury to the cervical, thoracic and lumbar spine;

·         soft tissue injury to the left hip, both knees and right elbow, and

·         soft tissue injury to the right shoulder, are a threshold injuries for the purposes of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

INTRODUCTION

1. On 22 January 2020, Radojka Stosic (the claimant) was a passenger on a bus with her friend when the bus braked suddenly. The claimant was thrown from her seat and her friend ended up on the floor. The claimant developed increasing neck and back pain over the subsequent days. She returned home to Belgrade, in Serbia, on 16 March 2020, as she could not afford treatment in Australia. By that time, the claimant was complaining of right shoulder pain, right elbow pain, bilateral knee pain, bilateral hip pain (left worse than right), numbness and tingling in her right hand. The claimant underwent diagnostic investigations. The claimant returned to Australia after the COVID-19 lockdown restrictions were eased.

2. As there is a dispute between the claimant and the insurer about whether the injuries caused by the motor accident are threshold injuries under Schedule 2, cl 2(e) of the Motor Accident Injuries Act 2017 (MAI Act), the claimant was referred for assessment by Medical Assessor Jonathan Herald, who certified under s 7.23(1) of the MAI Act as follows:

The following injury caused by the motor accident:

• Soft tissue injury to the cervical, thoracic and lumbar spine
• Soft tissue injury to the left hip, both knees, and right elbow

is a THRESHOLD INJURY for the purposes of the Act.

The following injury caused by the motor accident:

• Right shoulder rotator cuff tear

is not a THRESHOLD INJURY for the purposes of the Act.

Medical Assessor Herald also certified that assessment of the degree of permanent impairment arising from the soft tissue threshold injuries is not required.

THE REVIEW

1. The insurer sought a review of Medical Assessor Herald’s certificate on the basis that the assessment is incorrect, within the meaning of s 7.26 of the MAI Act, in a material respect.

2. The insurer relied upon the reports of Dr Robin Mitchell, occupational physician, dated
   9 March 2023, which were accepted as late documents. Dr Mitchell opined that the claimant “aggravated long-standing and well-developed degenerative changes in her neck, thoracic and lumbar back, as well as the right shoulder and each knee”. Specifically in relation to the right shoulder, Dr Mitchell considered any tear of the right shoulder was long-standing and not caused in the subject accident.

3. Medical Assessor Herald reviewed the radiology which the claimant underwent in Serbia four months after the subject accident. An MRI scan of the right shoulder showed a “partial-thickness supraspinatus rotator cuff tendon tear with associated biceps tendonitis and subacromial bursitis”. The insurer submitted Medical Assessor Herald opined that the features were consistent with a non-threshold injury, but provided no reasons as to the causation of the tear, relative to the subject accident.

4. The insurer stressed that its submission was not that Medical Assessor Herald fell into error because he came to a different conclusion to Dr Mitchell. Rather, the insurer submitted that Medical Assessor Herald was in error for failing to disclose his path of reasoning in relation to the central issue of causation. The insurer said Medical Assessor Herald ought to have commented on Dr Mitchell’s findings, being the only other medico-legal report that went to the central issue.

5. The insurer’s application for review was opposed by the claimant. The claimant submitted that Medical Assessor Herald was required to employ his entire gamut of clinical skill and judgment. That is not contentious. The claimant says that Medical Assessor Herald referred to the documents which were made available to him, noted the available radiology, and determined that there is a non-threshold injury to the right shoulder, as a rotator cuff tear is a non-threshold injury.

6. President’s delegate Catherine Freeman issued a Determination of an Application for Review of a Medical Assessment on 6 September 2023 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect that Medical Assessor Herald’s assessment was incorrect in a material respect. The basis of that decision was stated to be Medical Assessor Herald’s failure to set out his reasons in relation to causation of the rotator cuff tear in the claimant’s right shoulder when causation of that injury was raised as a central issue in the insurer’s submissions. Accordingly, the application for review was accepted.

1. In the Review Panel Report and Directions issued on 12 February last, the Review Panel indicated that it wished to see the original hard copy MRI scan of the right shoulder, to which Medical Assessor Berry refers, if it is available. That scan was performed in Serbia and was provided to the Review Panel.

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).

2. Part 5 of the Personal Injury Commission Act 2020 (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.[1]

   [1] Section 41(2) of the PIC Act.

3. 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.[2]

   [2] Rule 128 of the PIC Rules.

4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]

   [3] Section 7.26(6) of the MAI Act.

5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

CAUSATION OF INJURY

1. Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.

2. In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:

   [4] [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 cl 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 AMA 4 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 AMA 4 Guides as follows:

   ‘Causation means that a physical, chemical or biological 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.

   6.7There 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.”

THRESHOLD INJURY

1. The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.

2. The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury.

3. Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.

4. A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.

5. 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 accident is a threshold injury for the purposes of the MAI Act.

6. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:

   “5.3   The assessment will determine whether the injury related to the claim is a soft-tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.

   5.4    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.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.”

OTHER ASSESSMENTS

1. The claimant’s physical injuries were assessed on 13 June 2023 by Medical Assessor Neil Berry who certified as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 10% and IS NOT GREATER THAN 10%:

• Cervical spine
• Thoracic spine
• Lumbar spine
• Right shoulder
• Right elbow
• Knees
• Hips

1. Medical Assessor Berry ascribed the whole of the impairment to the claimant’s right upper extremity based upon restriction in the range of motion. Medical Assessor Berry made no adjustment for pre-existing/subsequent impairment, apportionment or treatment effects. There is a separate review of Medical Assessor Berry’s certificate.

MATERIAL BEFORE THE REVIEW PANEL

1. The claimant relied upon the following material which the Review Panel has considered:

   (a)claimant’s submissions opposing insurer’s review application (previously summarised), and

   (b)bundle of radiological investigation reports and translation reports (some 1,200 images and pages). Whilst the commentary has been translated from Serbian into English, the diagnoses remain in Latin).

2. The insurer relied upon the following material which the Review Panel has considered:

   (a)    Insurer’s submissions to application for threshold injury assessment dated
   7 September 2020:

   (i)in relation to the cervical spine, the insurer submitted that any injury to the cervical spine is a minor injury, in the absence of radiculopathy. The insurer says that clinical investigation, following the subject accident, revealed no acute, traumatic pathology in the cervical spine, rather only degenerative findings, which cannot be directly attributed to the subject accident;

   (ii)in relation to the thoracic spine, the insurer submitted that the claimant has pre-existing back/spine pathology and any injury sustained to the thoracic spine, attributable to the subject accident, constitutes a minor injury, for the purposes of the MAI Act. The insurer repeats its previous submission regarding the results of clinical investigations;

   (iii)in relation to the lumbar spine, the insurer submitted that the claimant has long-standing lumbar spine pathology and that any injury sustained to the lumbar spine, attributable to the subject accident, constitutes a minor injury for the purposes of the MAI Act. The insurer repeats its previous submissions regarding the results of clinical investigations;

   (iv)in relation to the right shoulder, the insurer submitted that the claimant did not list the right shoulder as an injury on the Application for Personal Injury Benefits and no diagnosis pertaining to the right shoulder was provided by the claimant’s treating general practitioner. The insurer says the first recorded evidence of right shoulder injury was an MRI performed on
   14 May 2020, some five months after the subject accident, which revealed “degenerative alterations”. The insurer disputes the claimant sustained any injury to the right shoulder in the subject accident, noting the lack of contemporaneous complaint/evidence, delay in reporting and evidence degenerative pathology. In the event it is found that the claimant sustained any injury to the right shoulder, the insurer maintains this is a minor injury, in the absence of a complete or partial rupture in the right shoulder, caused by the accident;

   (v)in the relation to the right elbow, the insurer repeated the submissions it made in relation to the right shoulder, and

   (vi)in relation to the left hip, the insurer notes that the claimant complained of hip pain, following the accident. The insurer says that clinical investigation revealed no evidence of acute, traumatic injury to either hip. In the absence of any injury to nerves or complete or partial rupture of tendons, ligaments, menisci or cartilage, in accordance with s 1.6(2) of the MAI Act, the insurer maintains any injury to the left hip, attributable to the subject accident, is a minor injury. The insurer makes similar submissions in relation to both knees.

   (b)    Insurer’s sb

   (c)    Insurer’s submissions dated 29 June 2023 for review of Medical Assessor Herald’s certificate dated 31 May 2023 (previously summarised).

   (d)    Report dated 22 March 2023 by Dr Robin Mitchell, occupational physician, to the insurer’s lawyers.

   Dr Mitchell records the circumstances of the motor accident. The claimant was a passenger on the bus which braked suddenly. She was thrown from her seat. There was no head strike and the claimant did not lose consciousness. The claimant attended Dr Ong a few days later and was prescribed analgesia. The claimant then returned to Belgrave and consulted various doctors there, reported complaining of pain in the right shoulder and elbow, both hips and both knees. The claimant was referred for scans to which Dr Mitchell refers. He records that the claimant apparently was diagnosed with rotator cuff syndrome, medial epicondylitis and carpel tunnel syndrome, for which she was prescribed analgesia and referred for physiotherapy. (The Panel notes that, whereas the various specialists reports have been translated from Serbian into English, all of the stated diagnoses are in Latin). Dr Mitchell notes the history of previous low back pain. He records that the claimant’s present symptoms are continuing pain in her neck, thoracolumbar back, right shoulder and hand, both knees. Dr Mitchell records his findings upon physical examination. The range of movement was reduced in the neck and thoracolumbar back. He describes in detail the diagnostic findings translated from the Serbian reports. He notes that some of the terminology is not used in Australia.

   Under the heading DIAGNOSIS, Dr Mitchell states as follows:

   “She appears to have aggravated long-standing and well-developed degenerative changes in her neck, thoracic and lumbar back as well as the right shoulder and each knee.”

   Dr Mitchell finds there is a direct temporal relationship between the injuries sustained and the subject motor accident. Dr Mitchell opines that the claimant’s injuries fall within the definition of a minor (soft tissue) injury. In relation to the diagnostic reports, Dr Mitchell states as follows:

   “There was no clinical or radiologically significant injury apparent and although there may have been a partial thickness tear of the supraspinatus tendon of the right shoulder…… it was of a long-standing nature with calcification already having developed, and it is difficult to interpret the findings as being significant.”

   In a separate Impairment Assessment of the same date, Dr Mitchell assessed 8% whole person impairment for the right shoulder. He found 0% whole person impairment for the cervical spine, thoracic spine, lumbar spine, left shoulder, right wrist and hand, each hip and each knee joint.

   (e)     Clinical records of Valley Plaza Medical Centre as at 13 June 2023.

EXAMINATION REPORT

1. The claimant was assessed on 26 September 2024 by Medical Assessor Tania Rogers whose report is as follows:

1. The claimant was assessed on 26 September 2024 by Medical Assessor Tania Rogers whose report is as follows:

   “Examination 26/9/24 PIC rooms

   Ms Stosic was accompanied to the Personal Injury Commission offices by a relative; however, she attended the assessment alone.  She reported that she had travelled by train from Green Valley. She usually resides with her family in Serbia.

   The interpreter engaged by the MAS, Patrick Matijevic, National Accreditation Authority for Translators and Interpreters number CPN3ZK99F, was present for the duration of the assessment.

With regard to occupational history, Ms Stosic reported that she worked as an assistant in nursing for many years and retired in 2018

In regard to medical history, Ms Stosic reported that she sustained a lumbar spine injury some years ago, when working as a nurse. She has ongoing back pain.

In regard to the history of the motor accident, Ms Stosic stated that she was travelling in a bus in Liverpool with her sister-in-law. She was seated in the first row next to the window behind the driver and her sister-in-law sat next to her.

All of a sudden, the bus suddenly stopped and Ms Stosic and her sister in law were thrown forward out of the seats and fell on the floor near the driver. Some other passengers helped them get up. Ms Stosic is not sure how she landed. She cannot recall if she hit her head.

The bus driver then started the bus again and kept driving. The bus driver never talked to them. They got out of the bus at their destination.

Ms Stosic stated that at that time she felt pain in the right shoulder, the neck, the right hip, right knee, right shoulder, right elbow and dorsal right wrist.  She was scared as she was in a strange country and did not know the laws.

That night, Ms Stosic could not sleep due to the pain and applied some cream that her daughter had. She felt pain in the right dorsal wrist as well.  She also said that she has pain in her chest.

Ms Stosic recalled that she subsequently consulted a general practitioner with her daughter. The doctor prescribed painkillers and told them she had to have scans. She took painkillers and applied cream.

Ms Stosic said that she could not undertake the scans due to the cost and, returned to Serbia in March 2020 which was about two months after the subject motor accident.

She saw this GP once more who wrote a report for her lawyer.

In Serbia, Ms Stosic underwent an MRI scan of her right shoulder 3.7 months after the subject matter accident and was treated with physiotherapy. Additionally, Ms Stosic was told she needed carpal tunnel surgery but decided not to go ahead.

No relevant injuries or conditions are reported to have been sustained since the motor accident.

In regard to current symptoms, Ms Stosic reports that she experiences sternal pain, constant right lateral hip pain, and constant right shoulder pain that worsens with arm movement. Ms Stosic has also been experiencing frequent pain in her right arm generally, right knee, and posterior neck. Additionally, on specific inquiry, she reported that she has pins and needles in all fingers of her right hand.

Ms Stosic further reported that she can walk on flat surfaces unrestricted but experiences pain when going up or downstairs. She can sit for about half an hour at a time and prefers to stand when possible. Ms Stosic reported that she can stand so for about an hour at a time. While walking, she can manage 45 minutes to an hour on flat surfaces, although she experiences mild pain.

Ms Stosic takes Brufen daily, usually three times a day, and she also takes Sumatriptan for migraines, typically 2-3 times a month for two to three days at a time.

Clinical Examination

On examination, Ms Stosic was a pleasant lady of medium build who spoke through the interpreter. 

Ms Stosic declined to remove any items of clothing for the purposes of examination. She felt it would be too difficult to put the clothing back on. Ms Stosic did remove her shoes. She was able to roll up her sleeves above the elbows and roll up her pants above the knees.

There was a voluntary tremor of the right arm and right leg on active movement which disappeared when she was distracted. Ms Stosic reported dizziness when getting up from a lying position. Ms Stosic demonstrated very high levels of illness behaviour.

Weight was 83.8kg, and height was 161 cm, giving a Body Mass Index of 32.3. Gait and posture were normal. There was no deformity of the cervical spine. There was no guarding in the cervical spine.

On formal examination of active range of movement, there was nil movement during flexion, 50% of the normal range during extension, nil movement during right lateral flexion, 50% of the normal range during left lateral flexion, 15% of the normal range during lateral rotation to the right, and 40% of the normal range during lateral rotation to the left.

Power was normal in the upper limbs. There was absent sensation to light touch in the right arm from the hand to the elbow in a non-dermatomal glove distribution.

Biceps brachii reflexes were present and symmetrical, supinator reflexes were present and symmetrical and triceps reflexes were present and symmetrical.

Forearm circumference, as measured 10 cm distal to the olecranon, was 29 cm in the right and 28 cm in the left arm. Upper arm circumference measured 10 cm distal to the olecranon, was 33 cm on the right and 32 cm on the left. The slight increase in limb circumference on the right was consistent with right hand dominance.

On examination of the thoracic spine, there was no tilt or deformity of the thoracic spine. Spinal curvatures were normal. No muscle guarding was evident

Forward flexion, extension, right lateral flexion, and left lateral flexion were 80% of the normal range. Rotation to the right and left was 40% of the normal range. No dysmetria was observed.

On examination of the lumbar spine, there was no tilt or deformity of the lumbar spine. Spinal curvatures were normally maintained. There was no  muscle guarding.

Forward flexion, extension, right lateral flexion, and left lateral flexion were 80% of the normal range. Rotation to the right and left was 40% of the normal range.

Seated straight leg raising was to 90^° bilaterally and was not accompanied by complaints of pain.

Supine straight leg raising testing was to 30^° on the right and was reportedly limited by pain in the lower back and was to 90^° on the right and was reportedly limited by pain in the lower back.   There were no consistent signs of neural tension.

Knee reflexes in the lower limbs were present and symmetrical. Ankle reflexes were present and symmetrical.

Thigh circumference was 51cm in the left and 51cm in the right thigh measured 10 cm proximal to the upper border of the patella.  The maximum left calf circumference was 38cm and right calf circumference was 40cm.

Shoulder Movement	Active ROM RIGHT	Active ROM LEFT
Flexion	90° 40° 20°	130°
Extension	30°	50°
Abduction	60° 40° 30 °	130°
Adduction	20°	50°
Internal Rotation	50°	80°
External Rotation	20°	40°

The shoulder contour was symmetrical. Range of motion of the shoulders was assessed with a goniometer, and the results were as follows:

On examination of the elbows, there was no deformity, scars, tenderness or crepitus of the elbows. Range of motion of the elbows was assessed with a goniometer and the results were as follows:

Elbow Movement	Active ROM RIGHT	Active ROM LEFT
Flexion	80° 100° 110°	120°
Extension	0°	0°
Pronation	60°	80°
Supination	60°	80°

On observation of the wrists, there was no deformity, scars, or muscle wasting of the wrists or hands.   Range of motion of the wrists was assessed with a goniometer and the results are as follows:

Wrist Movement	Active ROM RIGHT	Active ROM LEFT
Flexion	60°	80°
Extension	60°	80°
Radial Deviation	20°	20°
Ulnar Deviation	30°	30°

Tinel’s sign was negative bilaterally.

With regard to the lower extremities, there were no visible deformities of the legs. Hip, knee and ankle alignment were within normal limits clinically. 

Heel and toe walking were normal. She barely squatted. Power was grade 5/5 (normal) in the lower limbs. Skin temperature and colour in the lower limbs was normal.

There was reduced sensation to light touch in the entire right lower limb below the knee. Varicose veins of the right calf were noted.

Trendelenburg sign was positive bilaterally. Range of motion of the hips was assessed with a goniometer and the results are as follows:

Hip Movements	Active ROM RIGHT	Active ROM LEFT
Flexion	40° 90°90°	110°
Extension	No flexion contracture	No flexion contracture
Adduction	20°	20°
Abduction	40°	60°
Internal Rotation	0°	30°
External Rotation	20°	50°

There was no knee effusion present. There was no crepitus evident in either knee. Anterior drawer testing was negative. McMurray’s test was negative.

Range of motion of the knees was assessed with a goniometer and the results are as follows:

Knee Movements	Active ROM RIGHT	Active ROM LEFT
Flexion	40° 90° 90°	120°
Extension	0°	0°

Consistency of Presentation

Ms Stosic did not mention back pain initially but, on specific inquiry, stated that she had increased back pain after the accident.

I asked her about the side of the hip injury extensively, and she confirmed on several occasions the pain was in her right hip, not her left hip.

I indicated that the range of motion today was significantly worse than found by previous examiners. She stated that the pain was getting worse as time progressed and because she was getting older.

I also noted that Dr Ong only referred to back pain and did not mention shoulder injuries or any other injuries. She stated that she complained about all other areas that were painful and that he had told her to have scans.

I also highlighted that the range of motion today was variable in the spine and in the knees, and she stated that that was because she was lying down when I measured the knee movement initially.

I noted that the right shoulder range of motion varied and she stated that was because she was in pain.

THRESHOLD DECISION

Section 1.6(2) of the Act:

A soft tissue injury is (subject to this section) an 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.

Schedule 1 [2] clause 4 of the Motor Accident Injuries Regulation 2017:

1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.

The above features are consistent with a non-threshold Injury to the cervical, thoracic, and lumbar spine, left hip, both knees, and right elbow and right shoulder.

This was because there was no radiculopathy on clinical examination and there was no evidence (either clinical or imaging) an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.

Impairment - Further Observations

Cervical Spine

There was dysmetria. There was no muscle guarding, non-verifiable radicular complaints, radiculopathy, fractures, multilevel structural compromise or surgery. This meets the criteria for DRE Cervicothoracic Category II which is 5% WPI (AMA 4 p. 3/103 - 104; Motor Accident Guidelines Part 6).

Lumbar Spine

There is no dysmetria, guarding, non-verifiable radicular complaints, radiculopathy, fractures, multilevel structural compromise or surgery. This meets the criteria for DRE Lumbosacral Category I which is 0% WPI (AMA 4 p. 3/102; Motor Accident Guidelines Part 6).

Upper Extremity

Motor Accident Guidelines

6.48 Assessment of the upper extremity involves a physical evaluation that can use a variety of methods. The assessment in this Part of the Motor Accident Guidelines does not include a cosmetic evaluation, which should be done with reference to 'Other body systems' within this part of the Motor Accident Guidelines and Chapter 13 of the AMA4 Guides.

6.49 The assessed impairment of a part or region can never exceed the impairment due to amputation of that part or region. For an upper limb, therefore, the maximum evaluation is 60% WPI.

6.50 Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed. Range of motion is assessed as follows:

(a) a goniometer should be used where clinically indicated

(b) passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements

(c) if the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions

(d) if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation (see clause 6.40 of these Guidelines)

(e) if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.

Right Shoulder

There was inconsistency in range of motion within the assessment, therefore range of motion cannot be used as a valid parameter of impairment evaluation.

Assessment by analogy with mild crepitations of the acromioclavicular joint is appropriate using Table 18, page 58 and Table 19, page 59, AMA 4. 15% WPI (Table 18)  multiplied by 10% (Table 19) is 1.5% WPI which is rounded up to 2% WPI.

Right Elbow

There was inconsistency in range of motion within the assessment, therefore range of motion cannot be used as a valid parameter of impairment evaluation. There is no other impairment, Therefore the WPI is 0%.

Right Wrist

Range of movement of the right wrist is assessed as 0% (Page 35 – 38, AMA 4.)

Right Lower Extremity

There was inconsistency in range of motion within the assessment, therefore range of motion cannot be used as a valid parameter of impairment evaluation.6.84 Although range of motion (pages 77-78, AMA4 Guides) appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the injured person being assessed. Range of motion is assessed as follows:

(a) a goniometer should be used where clinically indicated

(b) passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements

(c) if the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions

(d) if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation.

(e) if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other evidence available to determine if an impairment is present.

There is no gait derangement, muscle atrophy, true muscle weakness or joint ankylosis.  There is no assessable impairment under Table 64 AMA 4 page 85-86. There is no assessable impairment under Table 62 AMA 4 page 83.

There was inconsistency in range of motion of the right hip and knee within the assessment, therefore range of motion cannot be used as a valid parameter of impairment.

Right knee impairment could be assessed by analogy to partial medial or lateral meniscectomy which is 1% WPI (Table 64, page 85 AMA4)

TOTAL WPI

Cervical Spine	5%
Lumbar Spine	0%
Right Lower Extremity	1%
Right Upper Extremity	2%

FINDINGS

1. The Review Panel conducts a new assessment of all the matter with which the medical assessment is concerned.[5] The Review Panel adopts the examination findings and reasons of Medical Assessor Rogers with which Medical Assessor Gibson concurs. The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6]

   [5] Section 7.26(6) of the MAI Act.

   [6] Insurance Australia Group Limited v Keen [2021] NSWCA 287.

2. The claimant was unable to provide to Medical Assessor Rogers a good history of the mechanism of her injuries, particularly as regards to the right shoulder. There is no evidence from the bus company as to the details of what occurred. There is no evidence of complaint or pain in relation to the claimant’s right shoulder in the report from the claimant’s treating general practitioner. The Review Panel accepts Dr Mitchell’s opinion that there would have been pre-existing degenerative pathology in the right shoulder.

3. The Review Panel reviewed the imaging provided by the claimant in great detail and considered it is of poor quality. The Review Panel were unable to confirm the presence of a rotator cuff tear based on this imaging. 

4. The Review Panel notes the insurer’s submissions that the claimant did not list the right shoulder as an injury in her Personal Injury Benefits Application and that no diagnosis pertaining to the right shoulder was provided by the claimant’s treating general practitioner. Those submissions were not disputed by the claimant. The Review Panel notes the considerable delay in the reporting and investigation of right shoulder symptoms. The Review Panel are of the opinion that, had the claimant in fact sustained a rotator cuff tear in the subject accident, there would have been early symptoms and signs suggestive of this diagnosis, recorded by her treating practitioners.

5. For the above reasons, the Review Panel is not satisfied that the motor accident was causative of a tear of the right rotator cuff/supraspinatus.

6. The Review Panel agrees with the findings of Medical Assessor Berry that all of the claimant’s injuries relevantly were soft tissue injuries. That is because the Review Panel is satisfied that all of the claimant’s accident-related injuries fall within the definition prescribed by s 1.6 (2) of the MAI Act (above).

7. For the reasons stated, the Review Panel is not satisfied that the subject accident caused, or contributed to, a tear of the claimant’s right rotator cuff/supraspinatus, as a matter of medical determination, and as a matter of non-medical factual determination.

8. The Review Panel makes the same findings as Dr Mitchell in relation to the condition of the claimant’s right shoulder and respectfully disagrees with the findings of Medical Assessor Herald in relation to that issue.

CONCLUSIONS

1. For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor Herald on 31 May 2023 should be revoked. The new certificate appears at the commencement of these reasons.