Allianz Australia Insurance Limited v Susak
[2024] NSWPICMP 60
•7 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Susak [2024] NSWPICMP 60 |
| CLAIMANT: | Zoran Susak |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Cameron Thompson |
| MEDICAL ASSESSOR: | Ian Cameron |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 7 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injuries in a motor accident on 12 June 2020 when he was a rear seat passenger in a vehicle which collided with the rear of another vehicle; assessment of threshold injury under section 1.6; Medical Assessor (MA) issued certificate when the relevant term was “minor injury”; Motor Accident Injuries Amendment Act 2022; minor injury now described as a threshold injury; MA determined that the soft tissue injury to the cervical spine and thoracic spine and the injury to the lumbar spine in the form of a L5/S1 disc prolapse and right S1 radiculopathy were caused by the accident, and the injury to the lumbar spine in the form of an L4/5 disc bulge and bilateral shoulder rotator cuff tears were not caused by the accident; the insurer sought a review; Held – Panel satisfied that the claimant sustained soft tissue injuries to his cervical and lumbar spine in the accident, however, not satisfied that the accident was the cause of disc injury at the thoracic spine or rotator cuff tears to the right and left shoulders; no contemporaneous documentation establishing an injury to the thoracic spine in the accident and no evidence to suggest that the bilateral rotator cuff tears were caused by the accident; radiological investigations did not reveal any tears; Panel not satisfied that at least two of the clinical signs of radiculopathy specified in clause 5.8 of the Motor Accident Guidelines were found on examination of the claimant at any time following the accident; David v Allianz Australia Ltd; the injury to the lumbar spine is not a threshold injury because two clinical signs of radiculopathy were present at the time of MA’s examination following that injury; certificate of MA revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act2017 1. The Review Panel revokes the certificate of Medical Assessor Herald dated 2 March 2022. 2. The Review Panel certifies that the following injury caused by the accident is a threshold injury: (a) cervical spine – soft tissue injury. 3. The Review Panel certifies that the following injury caused by the accident is not a threshold injury: (a) lumbar spine – soft tissue injury. 4. The Review Panel certifies that the following injuries were not caused by the accident: (a) thoracic spine – disc lesion; (b) left shoulder – rotator cuff tear, and (C) right shoulder – rotator cuff tear. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Zoran Susak, suffered injuries in a motor accident on 12 June 2020, when he was a rear seat passenger in a motor vehicle which was being driven eastbound on Oran Park Drive and which collided with the rear of another motor vehicle at the intersection of Oran Park Drive with Camden Valley Way at Harrington Park in New South Wales (the accident).
The claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay the claimant any damages and/or statutory benefits under the MAI Act.
The issues in dispute are whether the claimant’s injuries are classified as a “minor injury” within the meaning of the MAI Act.
This issue constitutes a medical dispute within the meaning of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2 clause 2(a) of the MAI Act.
The claimant alleges that he suffered injuries to the following body parts caused by the accident:
(a) neck;
(b) middle back;
(c) lower back;
(d) left shoulder;
(e) right shoulder, and
(f) psychological injury.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to ongoing statutory benefits and an entitlement to bring an action for damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”.[2] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[3]
[2] Sections 3.11 and 3.28 of the MAI Act.
[3] Section 4.4 of the MAI Act.
THE ASSESSMENT UNDER REVIEW
This is a review lodged by the insurer of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Herald and dated 2 March 2022.
The following injuries were referred to Medical Assessor Herald for assessment:
(a) cervical spine – disc lesion C4/5 and C5/6;
(b) lumbar spine – disc lesion at L4/5 in particular L5/S1 where there is a right paracentral disc protrusion with a right lateral component compressing the S1 nerve root;
(c) thoracic spine – disc lesion;
(d) left shoulder – rotator cuff tear, and
(e) right shoulder – rotator cuff tear
Medical Assessor Herald determined that:
(a) the following injury caused by the motor accident is a minor injury for the purposes of the MAI Act:
(i)soft tissue injury to cervical spine and thoracic spine;
(b) the following injury caused by the motor accident is not a minor injury for the purposes of the MAI Act:
(i)lumbar spine – L5/S1 disc prolapse and right S1 radiculopathy, and
(c) the following injuries were not caused by the motor accident and a decision as to whether these injuries are a minor or non-minor injury is not required for the purposes of the MAI Act:
(i)lumbar spine – L4/C5 [sic L4/5] disc bulge, and
(ii)bilateral shoulder rotator cuff tears.
THE REVIEW
On 28 April 2022, the President’s Delegate referred the medical assessment to the Panel as he was satisfied that there was reasonable cause to suspect that the medical assessment is incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 7.26(5) of the MAI Act; Insurer’s bundle p.1.
Pursuant to s 7.26(5)(A) of the MAI Act and Schedule 1, cl 14(F)(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accident’s Division of the Personal Injury Commission (the Commission).
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.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters in which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
On 12 September 2022, the claimant was examined by Medical Assessor Cameron.
STATUTORY PROVISIONS AND GUIDELINES
Threshold injury
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury”. Section 1.6(2) of the MAI 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)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) is 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 9.2 of the Guidelines commenced on 10 November 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 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 minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a 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.[8]
[8] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[9]
[9] See s.3B(2) of the Civil Liability Act 2002.
Amendment to legislation
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented to on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The original Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury. The submissions and original medical assessment were written at a time when the term was “minor injury”. We have used the term in these reasons as it was used by the parties or the Medical Assessor.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.
MATERIAL BEFORE THE PANEL
The Panel issued directions dated 7 June 2022 requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in the Review.
In response to these directions, the insurer uploaded to the portal at AD1 a bundle of documents paginated from pages 1 to 273 (IB). The claimant uploaded to the portal at AD2 a bundle of documents which were not fully paginated but were referred to in the index as documents R1 to R14 (CB).
On 1 July 2022, the Panel issued a further direction to the claimant requiring him to serve on the insurer and upload to the portal:
(a) particulars of all general practitioners and other treatment providers who have treated the claimant, either in Australia or overseas, during the period from three years prior to the accident to date, that is from 1 June 2017 to date;
(b) clinical records of all general practitioners and other treatment providers who have treated the claimant, either in Australia or overseas, during the period from three years prior to the accident to date, that is from 1 June 2017 to date;
(c) all reports of imaging from any radiological investigations undergone by the claimant, either in Australia or overseas, during the period from three years prior to the accident to date, that is from 1 June 2017 to date, and
(d) colour copies of the photographs of vehicle registered number DLB 62C and vehicle registered number DHH 92M which are part of document R5 in the claimant’s bundle (AD2).
On 18 October 2022, the Panel issued a further direction to the claimant extending the time for the claimant to comply with the directions by the Panel on 1 July 2022 to
2 November 2022.
In response to these further directions the claimant uploaded to the portal the following:
(a) photographs of vehicles DLB 62C and DHH 92M[10], and
[10] At AD3 on the portal.
(b) clinical records from the following:[11]
[11] At AD4 on the portal
(i)Dr Srinivasan;
(ii)Dr Sanki;
(iii)Dr Protulipac;
(iv)Dr Grunstein;
(v)Harrington Park Medical Practice;
(vi)Fairfield District Medical Centre;
(vii)Dr Zoumaras;
(viii)Vuko Tomasevic;
(ix)Dr Ganeshan;
(x)Dr M Giblin, and
(xi)Health Check Family Medical Practice.
The Panel has read and considered the documentation relied upon by the parties on this Review as identified in paragraphs 31 to 35 above in making its findings and determinations.
CLINICAL RECORDS AT AD4
Dr Srinivasan at his initial assessment of the claimant on 7 May 2021 noted that:
“On 12-6-20 while being a back seat passenger, the car hit a car infront [sic] at a set of lights. Heard a click. Consulted a doctor after 2 days for neck and low back pain.”
On 17 January 2022, Dr Srinivasan noted:
“Back pain still the same. Radiation to right leg +
Requests Targin Refused.”
Dr Srinivasan completed several medical certificates certifying the claimant unfit to work or study.
On 6 July 2020, the claimant first consulted the general practitioner, Dr Tomasevic in relation to the subject motor accident on 12 June 2020. Dr Tomasevic records that the claimant complained that he was suffering from headaches and pain in the neck and lower back, but no pain in the left or right shoulders. There is a reference to the claimant seeing a general practitioner on approximately 15 June 2020 and being prescribed Panadeine Forte.
On 8 July 2020, Dr Tomasevic referred the claimant for physio noting that he was suffering from headaches and pain in the neck and lower back.
On 29 July 2020, Dr Tomasevic referred the claimant to Dr Protulipac (psychologist) noting neck, back and bilateral shoulder pain.
On 25 December 2020, the claimant consulted Dr Tomasevic regarding persistent pain in the lower back. Dr Tomasevic records that the claimant reported that “neck and shoulders improved”.
On 23 September 2020, the claimant again consulted Dr Tomasevic, who records that:
“Neck pain intermittent with restricted ROM. neck flexion limited”; and
“Bilateral shoulder pains: left > right shoulder pains, restricted movements in combined movements as hand behind back – reduced strength. Weakness on inner range RC testing and shoulder add/abd.
Lower back pains- constant 7/10 on VAS. Restricted movement in back extension around 1/4 ROM. lumbar flexion to 1/2 ROM.”
Dr Harry Grunstein (endocrinologist) examined the claimant on 12 August 2020 and noted the following history:
“Sustained injuries when playing soccer. Treated with growth hormone treatment to accelerate healing. Sustained injuries in car accident. Has developed low back pain following injury, and numbness affecting left shoulder. Accident occurred June 12.”
Dr Grunstein completed a report on 12 August 2020, stipulating that “it is not inappropriate to administer growth hormone to accelerate healing of the spine and shoulder injuries that he sustained in the motor vehicle accident”.
On 3 September 2019, the claimant presented to Dr El Ayoubi at Harrington Park Medical Practice complaining of back pain after “lifting boxes at home last week”. Dr El Ayoubi recorded that there was no radicular pain or weakness. He was diagnosed with mechanical low back pain. He was prescribed Naprosyn and Panadeine Fort.
On 18 September 2019, the claimant was reviewed by Dr El Ayoubi with ongoing lower back pain that was worse with walking and sitting. Dr El Ayoubi recorded that the claimant had seen a chiropractor and that he seems to have a scoliosis. Radiological imaging of the lumbar spine was arranged. The next consultation was on 16 June 2020 following the subject motor accident on 12 June 2020. The claimant complained of left-sided neck pain and there was slight pain at the left lower back. There is a good range of neck movements. There was mild pain with left lumbar extension.
An MRI scan of the lumbar spine on 29 September 2020 arranged by Dr Giblin showed a minor broad-based disc bulge at the L4/5 level without any neural compression or neural exit foraminal narrowing. At L5 – S1, there was a right paracentral disc protrusion compressing S1 nerve root in lateral recess and impinging the exiting L5 nerve root on the right.
Dr Giblin arranged a CT guided lumbar spine injection on 24 December 2020. A progress MRI scan of the lumbar spine on 27 January 2021 showed a high grade right paracentral annular tear and focal disc extrusion compressing and displacing the right S1 nerve root.
On 31 August 2020, Dr Giblin completed a report to the insurer indicating that there are no significant peripheral neurological signs. On 1 February 2021, Dr Giblin recommended an urgent right L5/S1 microdiscectomy.
On 1 March 2021, Dr Giblin completed a report to the insurer providing the following opinion in relation to the mechanism of injury in the accident:
“It is irrelevant as to what position he was sitting in the car. As you are aware, because cars are made of such low impact material, photos really don’t confirm the force of impact. Considering this gentleman had no pain prior to the accident and he has only had pain since the accident, I think it is fair to assume the accident has caused his pain and it is unrelated to the seating or any photos you may have. The pain, which relates to the accident, is the need for his surgery.”
SUBMISSIONS
Claimant’s submissions in support of the application to the Dispute Resolution Service in relation to the minor injury dispute[12]
[12] CB p.133.
The claimant submits that the nature of his injuries are not minor because:
(a) in relation to the cervical spine, there is a disc lesion in the form of a C4/5 minor broad-based disc bulge with a minor broad-based disc bulge at C5/6 also;
(b) in relation to the lumbar spine, there is a right paracentral disc protrusion with a lateral component with compression of the S1 nerve root in the lateral recess of the spinal canal and impingement on the exiting L5 nerve root, and
(c) in relation to the claimant’s psychological injury, he has been diagnosed by his psychologist as suffering from a major depressive disorder which is not a minor injury.
In support of these submissions the claimant relies upon the radiological investigations and also Case Study No. 48 – Review Panel Decision.[13]
Insurer’s preliminary submissions[14]
[13] CB p.134.
[14] IB p.12.
These submissions were relied on by the insurer in reply to the claimant’s application to the Dispute Resolution Services for determination of the issue as to whether the claimant’s injuries are classified as a “minor injury” within the meaning of the MAI Act.
The insurer notes that the subject collision was insufficient to cause the airbags of either vehicle to deploy and that neither the police nor ambulance were called to the scene of the accident. It notes that there was no evidence of the claimant having sought medical treatment until 6 July 2020, more than three weeks after the accident, as reflected in the clinical records of Health Check Family Medical Practice, and that on that occasion the complaint was limited to headache and pain in the neck and lower back and there was no specific reference to there being pain in the left or right shoulder, left or right knees, left or right hips, chest or abdomen, and furthermore, there was no complaint of psychological injury.
It is therefore the insurer’s primary submission that any injury arising out of the subject accident would have been apparent at the time of the consultation three weeks after the accident and that there is no explanation for onset of alleged injuries to the claimant’s left and right shoulders, or psychological injury thereafter.
The insurer then makes submissions with respect to each of the injuries referred for assessment.
With regards to the cervical spine, the insurer points out that the claimant’s general practitioner diagnosed soft tissue injury and facet joint strain in the neck. Whilst radiological imaging showed the presence of disc bulges at C4/5 and C5/6, there was degenerative change in the form of spondylosis, and it is submitted that the pathology revealed on the imagining is secondary to age related changes in the cervical spine.
The insurer further submits that the bone scan conducted by Dr Brittain on 2 October 2020, noted that dynamic flow study in early blood pool images of the neck, shoulders, lumbar region and pelvis were normal and that the only adverse finding was degenerative arthritis at L5/S1 level of the lumbar spine.
The insurer submits that the neurological symptoms reported by the claimant are global in nature and not as a result of an injury to the spinal nerve root and on this basis submits that the claimant does not meet the criteria for radiculopathy under cl 5.8 of the Guidelines and that in the absence of radiculopathy, or a complete or partial rupture of tendons, ligaments, menisci or cartilage, any injury to the claimant’s cervical spine would be categorised as a minor injury.
With regards to the lower back, the insurer notes that the claimant has been referred for MRI of the lumbar spine which showed degenerative change in the form of disc desiccation and submits that pathology revealed on the imagining is secondary to age related changes in the lumbar spine.
The insurer again refers to the bone scan conducted on 2 October 2020 by Dr Brittain, which supports the submission that the changes revealed on the MRI are degenerative in nature and in this regard notes a finding of mild discovertebral degenerative arthritis at L5/S1 level of the lumbar spine.
The insurer further notes that Dr Giblin noted that there were no symptoms of radiculopathy, and accordingly submits that the claimant does not meet the criteria for radiculopathy under cl 5.8 of the Guidelines, and that in the absence of radiculopathy or a complete or partial rupture of tendons, ligaments, menisci or cartilage, the claimant sustained a soft tissue injury to the lumbar spine which would result in a minor injury finding.
With regards to the right and left shoulders, the insurer repeats its submission that there is an absence of evidence of complaint of shoulder injury until four weeks after the accident and disputes causation. Further, and in the alternative, the insurer submits that there is no evidence of an acute injury or nerve damage to either shoulder, and no clinical findings or evidence of a complete or partial rupture of tendons, ligaments, menisci or cartilage, and that therefore the shoulder injuries resulting in a minor injury determination.
With regards to the alleged psychological injury, the insurer repeats its submission with respect of the delay in complaint of psychological injury arising from the accident and it disputes the diagnosis and assessment of Dr Protulipac because it is based on an inaccurate history and inconsistent complaint of injury and disability.
The insurer notes the description of the circumstances of the accident and that the claimant reported to be a rear seat passenger in a vehicle which was stationary at traffic lights when it was hit from behind by another vehicle, and submits that that history is not concordant with the circumstances of the accident in which the vehicle in which the claimant was a passenger collided into the rear of another vehicle.
The insurer submits that on the basis of the absence of airbags being deployed and police or ambulance being called to the accident scene, or the claimant not seeking medical treatment for 3.5 weeks after the accident, the impact of same is not as described in the report of Dr Protulipac.
The insurer disputes the assertion made by Dr Protulipac that the claimant has been unable to return to employment duties and was forced to abandon pre-injury activities due to pain and disability because of the absence of evidence the claimant was in employ and has not been able to resume pre-accident employment.
It is the insurer’s primary submission that the physical injuries the claimant sustained in the accident, if any, were limited to soft tissue injuries which would not cause the level of pain and disability reported, and further, that the claimant’s post-accident function is significantly greater than that recorded by Dr Protulipac, which has influenced the doctor’s diagnosis and assessment of impairment.
Insurer’s PIC submissions and schedule of documents[15]
[15] IB p.21.
These submissions were lodged by the insurer in support of its application for review of Medical Assessor Herald’s Certificate and Reasons.
The insurer submits that there is more than reasonable cause for suspicion that Medical Assessor Herald’s assessment was vitiated by the following material errors:
(a) failure to provide adequate reasons;
(b) failure to engage with material;
(c) failure to consider or address substantially made argument in relevant submissions made on behalf of the insurer regarding the relevant material, and
(d) materiality of the error.
The insurer submits that Medical Assessor Herald failed to provide adequate reasons as to how he reconciled his determination that the findings of an L5/S1 disc prolapse and S1 radiculopathy were caused by the subject accident.
The insurer refers to the following conclusion by Medical Assessor Herald:
“The clinical examination features of S1 radiculopathy as well as MRI scan findings of an L5/S1 disc prolapse caused by the subject accident.”
The insurer submits that this lack of clarity is particularly problematic because the claimant’s condition was recorded in imagining to be pre-existing degenerative disc disease and where Medical Assessor Herald concluded that pathology at L4/L5 was not causally related to the subject accident.
The insurer submits that as a result of this the parties are left to fill in the gaps and assume what view Medical Assessor Herald took with respect of causation, and that consequently the only reasonable conclusion that can be drawn is that Medical Assessor Herald either ignored the claimant’s degenerative pathology, and determined that the claimant’s current condition, which has deteriorated substantially, was causally related to the subject accident merely because there was evidence of degenerative pathology some months following same.
The insurer relies on the decision in AAI Limited v Fitzpatrick,[16] where the Supreme Court held that, where there is a medical controversy over a particular issue, a more expansive explanation needs to be given and expressed consideration revealing the use the Medical Assessor made of the information provided is required. It submits that these omissions are material and render a reader of the certificate unable to determine how the assessor justified his opinion or balanced his determination as between the pre and post-accident symptoms. The insurer submits that it should not have to “fill in the gaps of reasoning” by reference to assumptions and evidence.[17]
[16] [2015] NSWSC 1108.
[17] SAD v NRMA Insurance Limited.
With regards to the issue of Medical Assessor Herald’s failure to adequately consider the relevant material, whilst the insurer concedes that it is not incumbent upon Medical Assessors to address each and every piece of evidence, it cites the decision of the Court of Appeal in Canberra City Council v Vegan,[18] in which it was held that where more than one conclusion is open, it is necessary for an assessor to give some explanation for her/his preference of one conclusion over another and that that aspect may have particular significance in circumstances where the assessor has come to a different conclusion from that reached by other medical practitioners as set out in the reports provided to her/him.
[18] [2006] NSWCA 284.
The insurer also relies upon the decisions in Singh v Minister for Immigration and Multicultural Affairs,[19] Allianz v Francica,[20] and AAI Limited v Fitzpatrick,[21] all of which it submits further indicate that Medical Assessor Herald’s consideration of the pertinent material was wanting.
[19] [2001] FCA 389.
[20] [2012] NSWSC 1577.
[21] [2015] NSWSC 1108.
The insurer also refers to the decision of the Full Federal Court in Najt vMinister for Immigration and Multicultural and Indigenous Affairs,[22] and submits that it is reasonable to assume that, given Medical Assessor Herald’s silence with respect to all treating evidence, but for the radiological investigations of the claimant which merely demonstrates degenerative pathology and are not taken contemporaneous to the subject accident, he did not genuinely consider same.
[22] [2005] FCAFC 134.
With regards to the issue of failure to consider or address a substantially made argument and relevant submissions made on behalf of the insurer regarding the relevant material, the insurer submits that Medical Assessor Herald’s failure to consider the relevant material not only equates to a material error, but constitutes a denial of procedural fairness and renders his assessment invalid (per Craig v The State of South Australia).[23]
[23] [1995] HCA 58.
The insurer also relies upon the decisions in Dranichmikov v Minister for Immigration and Multicultural Affairs,[24] NABE vMinister for Immigration and Multicultural and Indigenous Affairs (No.2),[25] and Singh v Minister for Home Affairs,[26] and submits that Medical Assessor Herald ignored relevant material, specifically the insurer’s submissions, and failed to respond to a substantial, clearly articulated argument pertaining to causation of the claimant’s injuries, thereby denying the insurer procedural fairness.
[24] [2003] HCA 26.
[25] [2004] FCAFC 263.
[26] [2019] FCAFC 3.
The insurer relies upon the decision of the New South Wales Court of Appeal in Meeuwissen v Boden,[27] and submits that Medical Assessor Herald failed to provide adequate reasons and failed to engage in substantiative arguments raised by the parties and that these are not trivial or immaterial errors, especially given that more engagement with the material could have resulted in a different determination.
[27] [2010] NSWCA 253.
In conclusion, and relying upon the decision of the New South Wales Court of Appeal in Elliot v Insurance Australia t/as NRMA Insurance,[28] the insurer submits that, as outlined in its submissions, there is reasonable cause to suspect that significant errors have been made in Medical Assessor Herald’s assessment that would cause more than a “state of unease” and that accordingly, the insurer is entitled to a review pursuant to s 7.26 of the MAI Act.
Claimant’s submissions in reply to the insurer’s application for review[29]
[28] [2014] NSWSC 1848.
[29] CB p.1.
The claimant opposes the insurer’s application for review of the certificate of Medical Assessor Herald and submits that the insurer has failed to demonstrate materiality, that is, that the medical assessment certificate is incorrect in a material respect.
The claimant refers to the insurer’s complaint that Medical Assessor Herald failed to provide adequate reasons as to how he reconciled his determination for the finding that L5/S1 disc prolapse and S1 radiculopathy were caused by the subject accident. The claimant submits that the insurer appears to suggest in paragraph 11 of its submissions that it is unclear as to what view the Medical Assessor took with respect to causation.
The claimant notes that the Medical Assessor took a history of the motor vehicle accident in paragraph 10 of his reasons, which the claimant quotes, and notes that Medical Assessor Herald then conducted an assessment of the claimant and specifically in paragraph 18 on pages 5 and 7 sets out his findings and noted “neurological examination reveals features of an S1 radiculopathy with decreased or absent ankle jerks and altered sensation over the sole of his foot to light touch and deep pressure”.
The claimant emphasises that Medical Assessor Herald noted the claimant to be consistent in presentation and that there was no exaggeration. The claimant submits that the Medical Assessor, succinctly and importantly after grappling with all of the evidence notes on page 7 that “however, given the clinical examination features of S1 radiculopathy as well as MRI scan findings of an L5/S1 disc prolapse caused by the subject accident, Zoran’s injury to his lumbar spine is a non-minor injury”.
The claimant submits that Medical Assessor Herald has accepted that causation is satisfied. He notes the history on page 4 and the history of complaints and treatment which allows the evidentiary basis for the finding that the claimant’s injury is causally related to the subject accident, and he also reviews the available radiology at paragraph 22.
The claimant submits that on that basis, Medical Assessor Herald has not failed to provide adequate reasons. The reasoning process is exposed and the path of reasoning is clear and it involves an acceptance of the complaints made by the claimant and there is no basis to suggest that the reasoning process is inadequate.
The claimant then refers to the insurer’s complaint that Medical Assessor Herald has not adequately considered the relevant material. It submits that Medical Assessor Herald noted all the documentation that he reviewed on page 5 and also page 6 and submits that he is not required to recite the material contained therein. The material was available to him and he notes at page 3 that “I have considered the documents provided within the application and the reply”.
The claimant also refers to the insurer’s complaint that Medical Assessor Herald failed to consider an argument made in its submissions. It submits that Medical Assessor Herald had available to him the insurer’s submissions, and as indicated, the Medical Assessor has stated that he considered the documents provided in the application and the reply.
Further, the claimant submits that the insurer’s submissions contain numerous contentions as to the merits of the decision under review and that this constitutes an impermissible attempt by the insurer to have the Delegate examine for itself the real merits of the matters that were before Medical Assessor Herald.
The claimant submits that it is an impermissible approach in judicial review for a Medical Assessor’s decision to be the subject of detailed examination and analysis.[30]
[30] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The claimant relies upon the decision of the High Court in Wu Shan Liang in submitting that:
(a) the Review Panel’s decision must be read with a “beneficial construction”;
(b) the Delegate should not be concerned about looseness in the language, nor with unhappy phrasing of the reasons of an administrative decision-maker;
(c) the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error;
(d) the certificate under challenge must be read as a whole. It must be considered fairly, it is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law, and
(e) the reality is that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
The claimant further submits that the review process must not become a pernickety and artificial scrutiny of the language of the Tribunal’s reasons, divorced from attention to the decision itself.[31]
[31] Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 33 at [153].
In conclusion, the claimant submits that none of the errors submitted by the insurer would allow the Delegate to be satisfied that Medical Assessor Herald’s certificate is incorrect in a material respect and there is no basis to assert that his certificate is in incorrect in a material respect.
RE-EXAMINATION
The claimant was examined by Medical Assessor Cameron on 12 September 2022. The re-examination report is as follows:
“The assessment was conducted at Hornsby. Mr Susak attended unaccompanied.
Mr Susak said that he was born and educated in Australia and did not require an interpreter.
Background
Mr Susak is living in Harrington Park with his sister and brother-in-law. At the time of the motor accident on 12 June 2020, Mr Susak said that he had been working as a house painter for 10 years.
Mr Susak said his past health was good. He specifically denied any significant injuries and illnesses. He said he saw his general practitioner infrequently mainly with respiratory tract infections.
Mr Susak said he was a non-smoker.
History of Injury
Mr Susak said that on 12 June 2020 he was a rear seat passenger in a vehicle driven by his sister which collided with the rear of another vehicle. His brother-in-law was the front seat passenger.
Mr Susak confirmed that the registration of the vehicle he was a passenger in was DLB-62C. He was shown the photographs at AD3 and confirmed that there was front end damage to the vehicle that he was in at the time of the accident.
Mr Susak said that his initial symptom was neck pain. He saw a local general practitioner. He said he then developed low back pain in the few days after the accident.
Mr Susak confirmed that he consulted Dr Tomasevic on 6 July 2020. The clinical records from Dr Tomasevic on that day note that there was a previous consultation with another general practitioner on 15 June 2020 who recorded at the time of his assessment that Mr Susak had headache, pain in the neck and pain in the lower back. He did not record other pain.
Mr Susak said that symptoms persisted.
Mr Susak was referred to Dr Giblin who, in February 2021, recommended surgery in the form of an urgent L5/S1 microdiscectomy, which the insurer declined.
Mr Susak said that he had about 100 sessions of physiotherapy. He said that they did not provide lasting relief of his pain.
Mr Susak estimated that he had 20 to 30 treatments from a psychologist.
Mr Susak said that he had been unable to return to work. Mr Susak said that he had previously been taking strong pain relievers but had been able to cease them.
Further information
Mr Susak specifically denies that there were pre-existing problems from his lumbar spine. However, the general practitioner records of Dr El Ayoubi show three consultations in September 2019 with “mechanical low back pain”. The notes for the last consultation on 20 September 2019 stated that the back pain was improving slowly. The next consultation is following the subject motor accident and occurred on 16 June 2020. Neck stiffness was noted as well as “slight discomfort to left lower back”. The diagnosis recorded was “whiplash injury”. There were no further consultations related to the motor accident.
Current Status
Mr Susak said he was always in pain. He said he had pain felt in the right leg. By this he meant in the posterior aspect of the right leg down to the right heel. He also said there was low back pain. Mr Susak said there was some neck pain. He said there were no other sites of pain.
Mr Susak said he had not been able to return to work and his income was now from Job Seeker Allowance.
Mr Susak is driving and drove to the appointment.
There are no current medications and no specific treatment. Mr Susak sees a general practitioner, Dr Srinivasan, on an intermittent basis.
The injuries referred for assessment
The following injuries were referred for assessment:
· cervical spine – disc lesion at C4/5 and C5/6;
· lumbar spine – disc lesion at L4/5 in particular L5/S1 where there is a right paracentral disc protrusion with a right lateral component compressing the S1 nerve root;
· thoracic spine – disc lesion;
· left shoulder – rotator cuff tear; and
· right shoulder – rotator cuff tear.
Examination
Mr Susak is right handed, 187cm and weighs 92kg. He was co-operative and provided a clear history.
Cervical spine
At the cervical spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non- verifiable radicular complaints present. Nerve tension signs were negative. His neck pain is not severe.
Right and left shoulders
There was a full range of motion at both shoulders. There was pain at extremes of movement. There was a full range of motion at other upper extremity joints.
There were no neurological abnormalities in the upper extremities. Circumferences of the upper extremities were right 28cm and left 28cm.
Thoracic spine
At the thoracic spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, and no non- verifiable radicular complaints present.
Lumbar spine
At the lumbar spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, and no non-verifiable radicular complaints present. Straight leg raising was equivocally positive on both sides.
There was full range of motion in the lower extremities, although Mr Susak was slow to move due to pain.
Circumferences of the lower extremities were right 40 cm, left 38 cm. The reason for the increased circumference of the right leg appeared to be oedema of that leg.
There was no reflex abnormality in the lower extremity.
Mr Susak said there was an area of numbness approximately 2 cm x 2 cm in the sole in the right heel area.
Mr Susak walked slowly with an abnormal gait. He walked with a stiff right lower extremity.
The interpretation at the time of re-examination was that Mr Susak has continuing low back pain with radicular symptoms but there are no current clinical signs consistent with radiculopathy.
Imaging
There were no imaging studies to review.
Photographs
The photographs of the damaged vehicles at AD3 were viewed. These photographs are consistent with the history the claimant provided of the circumstances of the accident that the vehicle he was a passenger in collided with the rear of another vehicle. The photographs showed damage that appeared to be relatively minor.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[32] and Insurance Australia Ltd v Marsh.[33]
[32] [2021] NSWCA 287 at [40], [41] and [45].
[33] [2022] NSWCA 31 at [11], [21], and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[34] (David) that radiculopathy can be present at any time to establish a non-threshold injury for the purposes of the MAI Act.
[34] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[35] that the Claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[35] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessor Cameron in its reasons and adds the following further reasons.
Diagnosis and causation
The Panel is satisfied that the claimant sustained soft tissue injuries to his cervical and lumbar spine in the motor accident on 12 June 2020. He had symptoms related to these body regions soon after the accident as documented in the treating records of his general practitioner and continues to have symptoms in these body regions.
However, the Panel is not satisfied that the accident was the cause of a disc injury at the claimant’s thoracic spine or rotator cuff tears to his right and left shoulders. The documents relied upon by the parties, including results of clinical examination and radiological investigations, do not include any contemporaneous documentation establishing an injury to the thoracic spine in the accident. A whole body scan in October 2020 indicated that delayed bone views of the thoracic spine are normal. Although the first complaint of shoulder pain was documented in the clinical records at AD4 on 29 July 2020, approximately six weeks after the accident, there is no evidence to suggest that the bilateral rotator cuff tears were caused by the accident. This conclusion is supported by radiological investigations, which did not reveal any tears. Had bilateral rotator cuff tears occurred in the accident, it is likely that there would have been complaint by the claimant of significant pain in the shoulders in the first few weeks after the accident. In fact, on 6 July 2020, just over three weeks after the accident, the claimant reported to his general practitioner, Dr Tomasevic, that he had no pain in the left or right shoulders.
The Panel has determined that the following injuries were caused by the accident:
(a) cervical spine – soft tissue injury, and
(b) lumbar spine – soft tissue injury.
The Panel has determined that the following injuries were not caused by the accident:
(a) thoracic spine – disc lesion;
(b) right shoulder – rotator cuff tear, and
(c) left shoulder – rotator cuff tear.
Threshold injury
Cervical spine
This area was affected by soft tissue injury, but not an injury to the nerves or a complete or partial rupture of tendons, menisci or cartilage. The Panel is not satisfied that at least two of the clinical signs of radiculopathy specified in cl 5.8 of the Guidelines were found on examination of the claimant at any time following the accident. The injury to the cervical spine is a threshold injury.
Lumbar spine
Neurological examination of the claimant by Medical Assessor Herald on 9 February 2022 revealed “features of an S1 radiculopathy with decreased or absent ankle jerks and altered sensation over the sole of his foot to light touch and deep pressure”.[36] This constitutes radiculopathy because two of the clinical signs specified in cl 5.8 were found on examination:
(a) loss or asymmetry of reflexes, and
(b) reproducible sensory loss that is anatomically localised to an appropriate nerve root distribution.
[36] CB at R10 p.5.
Although the Panel did not detect radiculopathy during its examination of the claimant's lumbar spine, the Panel has taken into consideration the findings of Medical Assessor Herald, who identified two clinical signs of radiculopathy during his examination of the lumbar spine in February 2022, and after the claimant injured his lumbar spine in the accident on 12 June 2020, and has concluded that the claimant's lumbar spine injury does not meet the classification for a threshold injury. Applying the principle in David, the injury to the claimant’s lumbar spine is not a threshold injury because radiculopathy was present at the time of Medical Assessor Herald’s examination following that injury.
Application to admit late documents
The insurer lodged an application to admit late documents dated 23 January 2024 seeking to have included and considered in this review documents attached to that application being Medicare Benefits Scheme summaries and Pharmaceutical Benefits Scheme summaries in relation to the claimant during the period from 12 April 2021 to 3 November 2023. These documents were produced in November 2023 in response to a Direction for Production. The insurer submits that these documents are relevant to the injury being assessed as well as the treatment of the injury but makes no submission as to why this is so.
By letter dated 23 January 2024, the insurer sought consent from the claimant’s solicitor to the late admission of these documents, but says that as at 23 January 2023, the date of the application, it had received no response.
The Panel has determined pursuant to Rule 67 of the PIC Rules and Procedural Direction PIC-34 that leave be granted to the insurer to lodge and rely upon these documents on this review. However, having read and considered these documents, they do not cause the Panel to amend or supplement its findings and reasons in paragraphs 97 to 109 above.
CONCLUSION
For the reasons set out above, the Panel revokes the certificate of Medical Assessor Herald dated 2 March 2022. A replacement certificate is attached at the commencement of these Reasons.
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