Allianz Australia Insurance Limited v Tenhave
[2022] NSWPICMP 527
•22 December 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Tenhave [2022] NSWPICMP 527 |
| CLAIMANT: | Susan Tenhave |
INSURER: | Allianz Australia Insurance Limited |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Les Barnsley |
| MEDICAL ASSESSOR: | Geoffrey Curtin |
| DATE OF DECISION: | 22 December 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in the motor accident; pre-accident history of lower back pain; the claimant alleges injury to the cervical and lumbar spine; whether the claimant sustained a disc bulge at C5/6 in the accident; whether the claimant suffered an avulsion fracture of the left shoulder; Held – the claimant suffered soft tissue injury to the lumbar spine; the disc bulge at C5/6 is not an injury related to the accident; the claimant sustained soft tissue injury to the cervical spine; a CT scan demonstrated that the claimant had not sustained an avulsion fracture of the left shoulder; the claimant sustained a soft tissue injury to the left shoulder; no evidence of radiculopathy; minor injury finding confirmed. |
| DETERMINATIONS MADE: | The Review Panel revokes the certificate of Medical Assessor Raymond Wallace dated 21 February 2022 and determines that the following injuries caused by the motor accident are minor injuries: · lumbar spine – soft tissue injury; · cervical spine – soft tissue injury, and · left shoulder – soft tissue injury. |
STATEMENT OF REASONS
introduction
Ms Susan Tenhave (the claimant) was in a vehicle driven by her husband on 27 March 2020 when a garbage truck ran into the rear of a small truck which then collided with the rear of the vehicle in which Ms Tenhave was a front seat passenger (the accident). Ms Tenhave asserts she sustained injury.
Allianz Insurance Australia Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Tenhave under the Motor Accident Injuries Act 2017 (MAI Act).
Medical Assessor Raymond Wallace issued a certificate dated 21 February 2022 in which he certified that the injury to the lumbar spine caused by the accident was a minor injury for the purposes of the MAI Act. He certified that injuries sustained by Ms Tenhave to the cervical spine and the left shoulder were not minor injuries for the purposes of the MAI Act.
As a result, Ms Tenhave has an entitlement to ongoing statutory payments under the MAI Act.
The insurer has sought a review of the certificate of Medical Assessor Wallace.
BACKGROUND
On 21 April 2020 Ms Tenhave lodged an Application for Personal Injury Benefits.
On 16 July 2020 the insurer issued a Liability Notice – benefits after 26 weeks informing the claimant that her injuries were minor injuries and that her entitlement to statutory benefits including treatment and care would cease on 25 September 2020.
The insurer issued a further liability notice on 1 October 2020 maintaining the minor injury determination after receiving a report in respect of nerve conduction studies conducted by Dr McGrath on 18 August 2020. The insurer concluded the injuries sustained by Ms Tenhave were not causally related to the accident.
On 23 July 2021 Ms Tenhave sought an Internal Review of that decision.
On 12 August 2021 the insurer issued their Internal Review – Certificate of Determination and Statement of Reasons affirming their earlier decision.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the minor injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[1].
ASSESSMENT UNDER REVIEW
[1] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Raymond Wallace who assessed
Ms Tenhave and issued a certificate dated 21 February 2022. The injuries referred for assessment were described as follows:· cervical spine;
· left shoulder, and
· lumbar spine.
Medical Assessor Wallace diagnosed the following injuries:
· musculoligamentous strain cervical spine;
· aggravation of pre-existing multilevel degenerative cervical spondylosis;
· left-sided disc protrusion C5/6 level;
· avulsion fracture posterior glenoid rim left shoulder;
· musculoligamentous strain lumbar spine, and
· aggravation of pre-existing symptomatic multilevel degenerative lumbar spondylosis.
Medical Assessor Wallace found the claimant’s lumbar spinal symptoms were due to soft tissue injury to her lumbar spine and an aggravation of her pre-existing multilevel degenerative lumbar spondylosis.
Medical Assessor Wallace concluded Ms Tenhave had suffered a non-minor injury at her cervical spine as she has evidence of a disc protrusion at the C5/C6 level with no previous history of cervical spinal symptoms.
He also found Ms Tenhave had suffered a non-minor injury at her left shoulder because she had sustained an avulsion fracture involving the posterior glenoid rim shown on X-ray on 20 May 2020 consistent with recent trauma.
Medical Assessor Wallace found the claimant had sustained an injury to her lumbar spine which was a minor injury. He found the claimant had sustained injury to her cervical spine and to her left shoulder which were not minor injuries.
REVIEW PROCEDURE
The insurer lodged an application for review of the medical assessment of Medical Assessor Wallace on 22 March 2022 within 28 days of the date on which the certificate of
Medical Assessor Wallace was made available to the parties.On 2 June 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission) [2]. Accordingly, the President’s delegate referred the matter to this Panel to assess.
[2] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor[3].
[3] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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.[4]
[4] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The solicitor for the claimant filed a late Reply attaching a bundle of documents paginated from pages 1 to 327. The insurer filed submissions dated 22 March 2022 which were uploaded to the portal and marked AD3. After significant delay the insurer filed documents in the portal on 8 August 2022 marked AD2.
On 25 July 2022 the Panel agreed an examination was required.
MINOR INJURY – STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, clause 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines minor 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) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the MAI Act. Version 8.2 of the Guidelines commenced on 8 April 2022 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clause 5.7 of the Guidelines states that 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. Clauses 5.8 and 5.9 are in the following terms:
“5.8 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.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury.”
EVIDENCE BEFORE THE PANEL
The claimant is now 60 years of age. She has a history of hypertrophic cardiomyopathy and has a defibrillator. She is in receipt of a disability pension.
Pre-accident treating records
Clinical notes of Wollongong Medical Centre[5]
[5] Claimant’s bundle p 94.
On 13 October 2017 Ms Tenhave underwent a right shoulder rotator cuff repair following a fall two years earlier under the care of Dr Jansen, orthopaedic surgeon.[6]
[6] AD2 p 228.
On 13 August 2018 Ms Tenhave consulted Dr Vukoje complaining of middle and lower back pain. Dr Vukoje diagnosed scoliosis of the thoracic and lumbar spine. She reported reduced flexion to above the knees and was referred for physiotherapy.
On 26 October 2018 Dr Vukoje reported complaints of lower back pain radiating to the back and front of the left leg up to the toes of the left foot. The claimant also reported she had right shoulder pain and reduced range of motion. Ms Tenhave was referred to Dr Jeni Saunders, sports and exercise physician.
On 12 April 2019 Dr Vukoje referred Ms Tenhave for physiotherapy for chronic lower and middle back pain.
On 3 January 2020 Ms Tenhave was reviewed by Dr Vukoje for lower back pain radiating to her left leg. A diagnosis was made of left S1 joint mechanical incompetence.
Dr Jeni Saunders
Dr Jeni Saunders reported to Dr Vukoje on 27 November 2018.[7] She referred to a possible eight year history of intermittent back pain and left leg pain exacerbated in March 2018. She reported pain predominantly in the left lumbosacral region, extending down the posterior aspect and lateral aspect of her thigh associated with paraesthesia in the lateral calf. She noted several episodes of injury, a fall in 2010 when she slipped on a wet floor and landed on her right side, an incident when horse riding when she landed very heavily in the saddle, a fall as a teacher’s aide when she slipped and landed on her right buttock, a fall on a gravel pathway, a slip in a classroom and in 2015 a fall from the side of a pathway which caused a right shoulder rotator cuff tear.
[7] Claimant’s bundle p 157.
Dr Saunders reported:
“Physical examination shows an asymmetrical stance, there is an increased lumbar lordosis and corresponding thoracic kyphosis. She has an anterior lean of the trunk upon the pelvis. There is marked swelling over the sacrum.
She has a well preserved range of motion in flexion, extension of the lumbar spine; her side flexion on the left and rotation on the left are diminished.
Neurological testing of the lower limbs is essentially normal.
She has some quite marked signs of sacroiliac joint incompetence worse on the right than on the left. There is no tenderness over the lumbar discs.”
Dr Saunders noted a CT scan undertaken on 9 March 2015 reported some broad based L4/5 disc bulging with flattening of the thecal sac and some facet degenerative change of the left.
Dr Sanders reviewed Ms Tenhave on 19 March 2019.[8] She reported examination showed ongoing ligament laxity of the right and left sacroiliac joint (SIJ), with the left appearing worse than the right.
[8] Claimant’s bundle p 161.
On 9 May 2019 Ms Tenhave underwent an injection to the left sacroiliac joint.[9] She was reviewed by Dr Saunders on 3 July 2019 when she reported some improvement.
[9] Claimant’s bundle p 163.
On 28 August 2019 Dr Saunders reported an increase in left sided pain and stiffness along with left toe spasm. She noted considerable tenderness over the superior cluneal nerve and recommended a perineural injection.[10] Ms Tenhave underwent injections on 28 August 2019 and 15 October 2019.
[10] Claimant’s bundle p 172.
On 2 September 2019 Dr Saunders reported some improvement in the claimant’s condition.
On 16 October 2019 Dr Saunders reported examination showed remaining laxity on the left SIJ with ongoing muscular tightness on the buttock gripping muscles on the left. She also noted irritability of the superior and middle cluneal nerves.
On 20 March 2020 Ms Tenhave was reviewed by Dr Saunders who reported ongoing pain greater in the right than the left buttock. She noted continued left SIJ laxity and performed an injection into the left SIJ. She reported the claimant was ready to get into rehab.
Post-accident treating records
Application for personal injury benefits (the Application)
In the Application Ms Tenhave recorded as a result of the accident:
“I hurt all of my neck, mainly on the right side, right shoulder and back on the right side”.
She also recorded:
“I have been having treatment on my S1 joints which is in the lower back region”.
Clinical notes of Wollongong Medical Centre
On 28 March 2020 Ms Tenhave consulted Dr Vukoje following the accident the previous day. Dr Vukoje reported she presented with neck pain and stiffness radiating to the right shoulder and inner side of the right shoulder blade. She also reported upper back pain, middle back pain, worsening back pain, stress, anxiety and shock. On examination she noted the neck muscles were stiff, range of motion was reduced in all directions and rotation to the right was significantly reduced. In respect of the back, she reported reduced flexion to above the knees.
On 20 April 2020 Dr Vukoje recorded:
“c/o neck pain radiating to the right and left side, L>R; rotation to the right is reduced;
Middle back pain and lower back pain;
R and L shoulder pain and reduced rom.”
On 24 April 2020 Dr Vukoje recorded:
“p/w neck pain;
neck stiffness;
neck pain radiating to the right and left side;
rotation to the right side is reduced;
upper back pain;
middle back pain;
lower back pain;
right and left shoulder pain;
and reduced rom…
O/E
Neck: muscles stiff,
reduced rotation to the right;
R and L shoulder; reduced abduction;
Back: reduced flexion to above her knees…”
On 28 April 2020 Dr Vukoje referred Ms Tenhave to Phytness Healthcare and reported worsening lower back pain.
On 20 May 2020 Dr Vukoje recorded a “locking” feeling in the neck when moving it to the right and left and pain in the middle, upper and lower back. She also reported pain in the tip of the right second, third and fourth finger.
X-ray of the cervical spine, 9 April 2020
The report stated:
“There is loss of cervical lordosis. Vertebral heights are preserved. No obvious vertebral collapse or fracture seen. Prominent anterior osteophytes seen at multiple levels. No significant facet arthropathy. There is mild to moderate foraminal narrowing at C4-C6 levels on the left. No convincing foraminal narrowing seen on the right side. Normal paraspinal soft tissue shadows.”[11]
CT of the cervical, thoracic and lumbar spine, 9 April 2020
[11] Claimant’s bundle p 82.
The comment in the report of Dr Blumgart is as follows:[12]
“There are some early spondylotic changes in the lower cervical spine. At the C5/6 level there does appear to be a small broadbased left sided disc protrusion.
Some spondylotic changes with disc space narrowing and end-plate irregularity is seen in the mid to lower thoracic spine. Some facet joint changes in the upper thoracic region.
In the lumbar spine, at the L4/5 level there is severe bilateral posterior facet joint degeneration associated with a slight degree of anterolisthesis. There is an associated broadbased posterior bulging of the disc and thickening of the ligamentum flavum resulting in moderately severe focal, multifactorial central spinal canal stenosis.”
X-ray left and right shoulder, 20 May 2020
[12] Claimant’s bundle p 111.
The report reads.[13]
[13] AD2 p 187.
“Clinical Information:
Presents with bilateral shoulder pain following MVA.
Findings:
Right Side: On the right is a steel anchor post associated with the humeral head compatible with a previous shoulder reconstruction. Prominent enthesopathic irregularity.at the greater tuberosity. The alignment of the glenohumeral joint is normal and anatomical. Minor lipping is noted at the joint margins. Mild narrowing at the AC joint. No fracture or avulsion injury identified.
Left Side:
Pacemaker generator and lead noted in situ projected over the left chest wall. There is a bony fragment identified associated with the posterior glenoid rim at its mid to lower portion. In the setting of recent trauma this is most likely a recent avulsion injury. Alignment at the glenohumeral joint is normal and anatomical. There is degenerative change incidentally noted at the AC joint. No subluxation or dislocation is identified.
OPINION: Suspected avulsion injury of the left glenoid. Further assessment with CT or MRI is recommended.”
CT left shoulder, 29 May 2020
The clinical history noted a presentation of left shoulder pain following the accident and a suspected avulsion injury of the left glenoid shown on X-ray. The report reads:
“Calcification overlying the posterior rim of the glenoid (3 x 2 15 mm – AP, TV, SI). Given the underlying cortex of the posterior rim of the glenoid is intact and this focus was present on the chest x-ray performed on 03/01.2020, this is presumed to reflect a non-acute injury”.
Phytness Healthcare
Records from Phytness Healthcare detail attendances from 14 October 2019 until 17 September 2020.
On 9 March 2020 Ms Tenhave reported she awoke two days earlier with “stiff R C5, down in to scap a little, feels can’t lift weight of head off pillow [sic]”. [14]
[14] Claimant’s bundle p 211.
On 20 April 2020 Ms Tenhave reported she had been rear ended suffering whiplash type injury. She complained of reduced range of motion, neck pain, headaches and referral of pain down the thorax into the hip. Mr Bart Tuohey completed an Allied health recovery request (AHRR) with a diagnosis of “whiplash secondary to MVA”.[15]
[15] AD2 p 81.
On 26 June 2020 Mr Tuohey completed an Allied health recovery request (AHRR) where he reported the current symptoms as:
“2-4/10 pain in R) neck & shoulder with intermittent temporal and occipital headaches.”[16]
[16] Claimant bundle p 226.
In an AHHR dated 3 August 2020 Mr Tuohey reported the pain was variable with consistent pain in the right side of the neck between 2-4/10.
On 22 August 2020 Bart Tuohey, physiotherapist completed an AHRR in which he provided a diagnosis of “cervical whiplash secondary to MVA”. He described the symptoms as pain in the neck and shoulder with intermittent temporal and occipital headaches.
Grenfell Community Healthcare
Ms Tenhave was referred to Jennifer Minehan, physiotherapist at Grenfell Community Healthcare. In an AHHR from Grenfell Community Healthcare dated 5 May 2020 current signs and symptoms were reported as follows:
“Reports of neck, upper back and low back pain and stiffness. Disturbed sleep. Pain radiating to right shoulder inc. scapular area. Limited ROM L. spine tested in standing. C. Spine ROM flexion restricted by pain, rotation < 40 deg and extension 25 deg and painful. Both shoulders AROM restricted esp. abduction at 130 deg. Reports of general pain, stiffness and anxiety.”[17]
[17] Claimant’s bundle p 244.
In an AHHR dated 1 June 2020 Ms Minehan reported an improved range of movement in the cervical spine and shoulders with decreased pain during movement.[18]
[18] Claimant’s bundle p 250.
In an AHHR dated 26 November 2020 Ms Minehan reported a further improvement in active range of movement with neck and shoulder range within normal limits although she reported Ms Tenhave still reported pain during movement and at the end of range of neck movement.[19]
[19] Claimant’s bundle p 218.
In an AHHR dated 9 April 2021 Ms Minehan reported an active range of neck and shoulder movement within normal range although she noted Ms Tenhave reported an ongoing issue with occasional pain in the neck on certain movements.[20] The treatment was declined by the insurer on the basis Ms Tenhave had received sufficient treatment to be able to self-manage her symptoms.
[20] Claimant’s bundle p 256.
Nerve Conduction Studies, 18 August 2020
Dr McGrath reported electrophysiological evidence of a mild chronic inactive right C7 radiculopathy.[21]
[21] Claimant’s bundle p 88.
Dr Darweesh Al-Khawaja, neurosurgeon
On 12 October 2020 Dr Al-Khawaja reported:
“On 27 March 2020 she was involved in a car accident. She was hit from the back as a front passenger. Since then she has been complaining of neck pain mainly on the right side going down to the right interscapular area and to both shoulders she had physiotherapy with minimal help. She does not have much of radicular pain at this stage. But she describes some pain in her right wrists. She describes occasional pins and needles on the right side at C6 and C7 distribution. She has been having back issues in the past but her back exercises were delayed because of her neck injury and she starts complaining from lower back pain with left gluteal pain as well.”[22]
[22] Claimant’s bundle p 65.
On examination he reported:
“On examination she had good range of cervical spine movements. Power examination is normal. Reflexes are normal. Sensation examination is normal. She has significant limitation of flexion and extension of her lumbar spine. Power, sensation and reflexes examination of the lower limbs is normal.”
On 22 October 2020 Dr Al-Khawaja reported the SPECT scan showed multilevel hot spots at C1/C2, C3/C4, C4/C5 and C5/C6 and a significant hot spot at L4/L5.[23]
[23] Claimant’s bundle p 67.
On 16 December 2020 Ms Tenhave underwent a bilateral C4/C5 facet joint injection. The operative report recorded the diagnosis as “facet joint disease”.[24]
[24] AD 2 p 74
In a report dated 29 December 2020 Dr Al-Khawaja reported Ms Tenhave was a front seat passenger involved in an accident where the car was hit from behind.[25] He stated:
“This can easily cause acceleration deceleration type of injury into the body and the scan cause jarring of the cervical and lumbar spine [sic]. Arthropathy is very common pathology but it can be dormant for long time, where minor injuries can trigger it off badly. This was a major factor in causing Ms Tenhave symptoms….” [sic]
[25] Claimant’s bundle p 76
Dr Al-Khawaja was asked whether the claimant symptoms were chiefly a result of her history of L4/5 joint degeneration and not the accident. He stated:
“Ms Tenhave current symptoms are combined, because of the L4-5 joint pathology and the accident which has triggered and aggravated her symptoms”.
On 13 January 2021 Ms Tenhave underwent a bilateral C5/C6 facet joint injection under anaesthetic.[26]
[26] AD2 p 72.
In a report addressed to the insurer dated 4 February 2021 Dr Al-Khawaja was asked to justify the need for L4/5 facet blocks where the insurer had suggested there was no evidence of radiculopathy. Dr Al-Khawaja stated:
“Ms Tenhave’s suffering from significant back pain going to the left gluteal region and the sacroiliac area. And the scans confirmed hotspot at L4-L5 level.”[27]
[27] Claimant’s bundle p 59.
On 22 March 2021 Dr Al-Khawaja reported the injection for the lumbar spine was declined but he noted Ms Tenhave’s condition was under control and he recommended continued physiotherapy.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 10 September 2020.
The insurer disputes the claimant sustained cervical radiculopathy as a result of the accident, noting that the examination performed by Dr Al-Khawaja demonstrated that power, sensation and reflexes of the upper limbs were normal.
Further, the insurer notes the X-ray of 9 April 2020 did not demonstrate any fractures to the cervical spine. There were no soft tissue changes to indicate an acute injury to the cervical spine. The insurer submits the spondylotic changes at C4/5 and C5/6 shown on the CT scan are degenerative and not evidence of an acute accident related injury.
The insurer disputes the claimant sustained lumbar radiculopathy as a result of the accident where on examination Dr Al-Khawaja found power, sensation and reflexes on examination of the lower limbs were normal.
The insurer notes the pre-accident history of lumbar spine pain and left leg pain commencing in 2010. In her report dated 27 November 2018 sports physician Dr Jeni Saunders documented many causative incidents including slipping on a wet floor, other falls and an incident where the claimant landed heavily on a saddle. The insurer also points to a history of back spasms over a 10 year period to at least 27 November 2018.
On 3 January 2020, two months prior to the accident Dr Vukoje recorded pain radiating from the lumbar spine.
The insurer disputes the claimant sustained injury to her left shoulder as a result of the accident where she did not refer to the left shoulder in the Application for Personal Injury Benefits and she did not complain about her shoulder to Dr Vukoje on 28 March 2020. The insurer notes the first complaint of a left shoulder injury was on 20 April 2020 to Dr Vukoje. In the absence of earlier complaints, the insurer disputes the claimant sustained injury to her left shoulder.
The insurer also provided submissions dated 22 March 2022.[28]
[28] Insurer’s submissions AD3.
The insurer submitted if the claimant had sustained a fracture of the left shoulder as a result of the accident, she would have experienced acute pain and discomfort immediately post-accident and would have referenced this injury in contemporaneous records.
The insurer also submitted the radiological findings of a left sided C5/6 disc protrusion did not correspond with the claimants’ complaints, noting specifically:
(a) in the Application the claimant made complaints of right sided neck pain;
(b) on 28 March 2020 Dr Vukoje recorded complaints of “neck pain radiating to the right shoulder and inner side of the right shoulder blade”;
(c) nerve conduction studies of 18 August 2020 showed evidence of a mild chronic inactive right C7 radiculopathy, and
(d) Medical Assessor Wallace reported the claimant had intermittent aching pain at the right paracervical region at C5, C6 and C7 radiating to the right occiput of her skull and intermittently to the right scapular spine as well.
The insurer submits that the imaging findings represent natural spinal degeneration in an aging spine that would not be attributable to the accident.
Claimant’s submissions
The claimant provided submissions which were undated.
The claimant submits prior to the accident, she experienced scoliosis of the thoracic and lumbar spine which was managed with analgesic medication and physiotherapy consultations on an as-needed basis. However, as a result of the accident, she had been diagnosed with a “facet joint injury at L4 and 5 level” and a suspected “disc prolapse” at that level. It is submitted that pathology coincides with the claimant’s aggravated lumbar spine symptoms including muscle weakness, decreased range of movement and reproducible sensory loss.
The claimant notes Dr Vukoje observed she suffered from “reduced flexion to above her knees” which it is submitted was attributable to her accident-related lumbar spine injuries. As a result, the claimant has limitations in her capacity for lifting, standing and walking. The claimant also notes her physiotherapist Ms Minehan reported she can no longer undertake heavy lifting.
The claimant also relies upon the report of Dr Al-Khawaja who observed the accident had “caused aggravation of pre-existing degeneration”.
In respect of the cervical spine, it is submitted the claimant sustained injury to her cervical spine in the form of “changes at C5-6 and C6-7 level with pressure on the right C6 and C7 nerve root” and suffers from radiculopathy symptoms in the form of reproducible sensory loss and muscle weakness.
On 22 October 2020 Dr Al-Khawaja reported the claimant suffers from “axial neck pain”, that “radiates to the right shoulder and inner side of the right shoulder blade… and left shoulder”.
Dr Vukoje noted the pain extends to “the tip of her right second, third and fourth finger” and furthermore, she experiences “pins and needles on the right side at C5 and C7 distribution”. Ms Minehan opines that the claimant now requires assistance for the completion of activities of daily living due to her neck instability and limited range of movement.
The claimant submits the position of the insurer that the injuries sustained by Ms Tenhave are not causally related to the accident overlooks a clear and persuasive history of contemporaneous complaint and a clear decline in her condition from the date of the accident.
In respect of the left shoulder injury the claimant notes the X-ray report of both shoulders revealed an avulsion injury to the left shoulder which was reported to be most likely recent. The claimant notes the scan was taken less than eight weeks after the accident.
The claimant notes an avulsion injury occurs when the joint capsule, ligament, tendon or muscle attachment site is pulled off from the bone, falling outside the definition of minor injury, noting s 1.6 of the MAI Act provides an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage is not considered a minor injury.
THE MEDICAL EXAMINATION
Ms Tenhave was examined by Medical Assessor Barnsley and Medical Assessor Curtin on 28 October 2020. Ms Tenhave was accompanied by her husband Peter.
History of the accident and subsequent progress
Mrs Tenhave described how she had been a front seat passenger in a utility driven by her husband when the accident occurred. She said they were travelling quite slowly on a road that was under repair when their vehicle was rear ended by a truck. She said the impact was considerable and unexpected, and she remembers being pushed forward, although restrained by a seatbelt. She did not recall being struck on her head or on any other part of her body. She said that her neck was sore immediately after the accident and she later became aware of discomfort in her left shoulder. She could not remember exactly when the shoulder pain started but thought her left shoulder may have been hurt by the seatbelt, which on the passenger side passes close to the left shoulder. Ms Tenhave reported her husband was able to drive away in their car following the accident, although subsequent repairs were required.
She attended her general practitioner (GP) the following day and was referred for physiotherapy, which she has continued to receive since the accident. The Panel notes the documents include lengthy physiotherapy records and AHRR documents, which refer to treatment for neck discomfort and whiplash injury. Mrs Tenhave continues to attend physiotherapy once every three weeks.
Current complaints
Mrs Tenhave said neck discomfort was her main problem. Her neck symptoms are principally located on the right side, and she also complained of intermittent numbness affecting the whole of her right hand. She said these symptoms usually occurred at night and woke her up. When asked where her shoulder pain was located, she pointed to the left shoulder tip. She said her left shoulder symptoms do not bother her every day, as her neck does, but in bed, she is unable to lie on the left shoulder because of discomfort.
When asked whether she had sustained any previous injury to her neck or left shoulder, Ms Tenhave said she was unable to recall any previous injury to either her neck or left shoulder. She said that she had been involved in a motor vehicle accident in 2000 when the car in which she was travelling was rear-ended, but she could not recall having suffered any significant injury. She admitted in her youth, she had enjoyed both netball and hockey, but could not recall any falls whilst participating in these sports. She did recall a prior injury to her right rotator cuff following a fall in 2015.
Clinical examination
Ms Tenhave was a pleasant woman of 61 years. She had a BMI of 27.5 (163 cm and 73 kg) placing her in the overweight category. Ranges of movement were assessed with a goniometer.
Cervical spine
Movements were symmetrical, specifically, left and right rotation both measured at 60°, Flexion and extension were both at normal range, left and right lateral tilt both measured at 30°.
There was some mild tenderness on the right side of the neck but no guarding or spasm.
Upper limb neurological examination was normal. Specifically, power was normal on both sides, reflexes (biceps, triceps and brachioradialis) were normal and symmetrical, power was normal and there was no loss of sensation. Limb circumference measured at equivalent sites above and below the elbow revealed no asymmetry.
Lumbar spine
Flexion and extension range within normal range, left and right lateral tilt were equal and symmetrical and similarly left and right rotation were equal and symmetrical.
Palpation revealed no guarding or spasm.
She was able to stand on alternate legs and on her heels and toes. Straight leg raising was greater than 60° on both sides with negative sciatic stretch tests. Lower limb power was normal in all muscle groups. Reflexes (knee and ankle jerks) were brisk and symmetrical. There were no areas of sensory loss. Limb circumference measured at equivalent sites above and below the knee revealed no asymmetry.
Shoulders
There was a full and symmetrical range of flexion, extension, abduction, adduction, internal and external rotation in both left and right shoulders. There was some tenderness over the left sternoclavicular joint. There was no crepitus or synovial hypertrophy at either glenohumeral joint, sternoclavicular or acromioclavicular joint. there was normal scapulo-thoracic movement. There was no evidence of shoulder girdle muscle wasting on either side.
Elbows/hands
There was a normal range of movement. As noted above, upper limb neurological examination was normal. Specifically, there were no features of radiculopathy.
Lower limbs
There was a full range of movement of hips, knees and ankles. As noted above, lower limb neurological examination was normal. Specifically, there was no evidence of radiculopathy.
REVIEW OF INVESTIGATIONS
Plain X-ray of the shoulders, 20 May 2020.
This shows a calcified sliver over the posterior inferior aspect of the glenoid. The report states that it is a “suspected” avulsion fracture, which appears to be based on the history of recent trauma, rather than the specific appearances.
CT scan of the left shoulder, 29 May 2020.
The abnormality in the glenoid labrum is calcification overlying the posterior glenoid rim. The report specifically states that the underlying glenoid rim and cortex are intact. The panel notes that this would not be consistent with a fracture. The report also notes that the lesion was seen on a plain chest X-ray two months before the accident, so it is not an acute injury,
CT of the cervical spine, 9 April 2020
The CT of the cervical spine shows significant degenerative change with anterior and posterior osteophytes at C5/6 accompanying the mild, left sided broad based disc protrusion. These findings are indicative of chronic changes and indicate that the reported disc bulge is not an acute injury. This would also fit with the observation that Ms Tenhave’s new symptoms were primarily right sided.
CONCLUSION
Lumbar spine
The Panel notes the significant pre-accident history of complaint pertaining to the lumbar spine.
The Panel refers to the report from Dr Jeni Saunders to Dr Vukoje dated 27 November 2018. She noted Ms Tenhave had reported several episodes of injury, the first in 2010 when she slipped on a wet floor and landed on her right side, many falls since including one horse riding when she landed very heavily in the saddle, another fall as a teacher’s aide when she slipped on a foreign body on the ground and landed on her right buttock, a fall on a gravel pathway, a slip on cardboard in a classroom and in 2015 a fall from the side of a pathway resulting in a right shoulder rotator cuff tear.
The Panel notes on 3 January 2020 Dr Vukoje reviewed Ms Tenhave for lower back pain radiating to her left leg. She diagnosed left SI joint mechanical incompetence.
Records from Phytness Healthcare detail attendances from 14 October 2019 and on 9 March 2020 Ms Tenhave reported she awoke two days earlier with “stiff R C5, down in to scap a little, feels can’t lift weight of head off pillow [sic]”.
On 20 March 2020, one week before the accident Ms Tenhave was reviewed by Dr Saunders who reported ongoing pain greater in the right than the left buttock. She noted continued left SIJ laxity and performed an injection into the left SIJ.
On examination the Panel found no evidence of loss or asymmetry of reflexes, no muscle wasting or decreased limb circumference, no positive sciatic nerve root tension signs, no evidence of muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Notwithstanding her pre-existing condition the Panel is satisfied Ms Tenhave sustained a soft tissue injury to her lumbar spine caused by the accident. However, Ms Tenhave does not meet the assessment criteria for radiculopathy and the injury to the lumbar spine is assessed as a minor injury in accordance with clause 5.9 of the Guidelines.
Cervical spine
The Panel notes the absence of any complaints of neck pain prior to the accident and the finding on the MRI scan of a small left disc protrusion at the C5/6 level. The Panel had some doubt as to the significance of the left sided disc protrusion given that the claimant’s subsequent symptoms were predominantly right-sided. Subsequent to the medical examination Ms Tenhave provided by post hard copy X-ray and CT scan images.
This cervical spine CT dated 9 April 2020 showed significant degenerative change with anterior and posterior osteophytes at C5/6 accompanying the mild, left-sided broad-based disc protrusion. The opinion of the panel was that these findings were indicative of chronic changes and that the disc bulge was not an acute injury. This finding supports the observation that the symptoms reported by Ms Tenhave following the accident were primarily right-sided.
The Panel concludes that the disc bulge at C5/6 is not an injury related to the accident. Furthermore, there is no current or previous evidence of a radiculopathy evidenced by clinical findings. The Panel finds the claimant suffered a soft tissue injury to the cervical spine caused by the accident which is assessed as a minor injury in accordance with clause 5.9 of the Guidelines.
Left shoulder
Following the accident on 28 March 2020 Ms Tenhave visited her GP yet made no mention of left shoulder pain. Right and left shoulder pain was noted on 20 April 2020 and on 28 April when neck pain was said to radiate to both shoulders associated with reduced range of movement.
The plain X-ray of 20 May 2020 of the left shoulder showed a calcified sliver over the posterior inferior aspect of the glenoid. The report stated that it was a “suspected” avulsion fracture, a conclusion which appears to be based more on the history of recent trauma rather than the specific appearance.
However, the Panel notes the report of the CT scan of 29 May 2020 stated categorically that the underlying glenoid rim and cortex were intact, and the abnormality was, in fact, calcification overlying the posterior glenoid rim.
The panel finds that the diagnosis of a left shoulder avulsion fracture suspected on initial imaging has been comprehensively refuted by the findings on the subsequent CT scan of 29 May 2020 which also demonstrated that the imaging abnormality pre-dated the accident, noting it was present on the chest X-ray performed on 3 January 2020.
The panel therefore concludes that the suspected avulsion fracture was not an injury caused by the accident.
The Panel finds the claimant sustained a soft tissue injury to the left shoulder caused by the accident. In accordance with s 1.6(2) of the MAI Act a soft tissue injury is defined as a minor injury for the purposes of the Act.
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