Allianz Australia Insurance Limited v Wagemans

[2023] NSWPICMP 243

DETERMINATION OF REVIEW PANEL

CITATION:

Allianz Australia Insurance Limited v Wagemans [2023] NSWPICMP 243

CLAIMANT:

Diane Wagemans

INSURER:

Allianz Australia Insurance Limited

REVIEW Panel

MEMBER:

Susan McTegg

MEDICAL ASSESSOR:

Neil Berry

MEDICAL ASSESSOR:

Shane Moloney

DATE OF DECISION:

2 June 2023

CATCHWORDS:

MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident as a pedestrian on 3 September 2019; Medical Assessor (MA) Bodel certified all injuries threshold injuries except for the right shoulder; claimant furnished MA with an MRI scan of the right shoulder dated 15 September 2022 which had not been served on the insurer; the application for review was founded on the basis there had been a denial of procedural fairness; insurer disputed the claimant sustained a non-threshold injury to the right shoulder but conceded if Panel finds small full-thickness tear of the supraspinatus tendon shown on the MRI scan was caused by the accident the tendon tear would constitute a non-threshold injury; Held – tendon tear caused by accident where claimant pedestrian, where claimant fell on right side, where claimant sustained abrasions of right shoulder; where GP recorded right shoulder painful on 6 September 2019, where right shoulder included in Application; having regard to consistency of presentation and complaint accident was contributing cause to development of the supraspinatus tendon tear; supraspinatus tendon tear is a non-threshold injury.

DETERMINATIONS MADE:  

Review Panel Assessment of Threshold Injury
Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel revokes the certificate of Medical Assessor Bodel dated 8 November 2022 and determines that the following injuries caused by the accident are threshold injuries for the purpose of the Motor Accident Injuries Act 2017 (the MAI Act):

·     cervical spine – ongoing tightness and stiffness in the neck – intermittent sharp stabbing pains with movement or rotation of the neck;

·     right arm – frequent onset of sharp pains and tenderness in the right upper arm and forearm;

·     wrist – persistent pain in the right wrist radiating into the right hand with feelings of numbness, and

·     lumbar spine – constant pain and discomfort and restriction of movement in the lower back.

The Panel finds the following injury caused by the accident is not a threshold injury for the purposes of the MAI Act:

·     right shoulder injury – small full-thickness supraspinatus tendon tear.

REASONS

BACKGROUND

1. On 3 September 2019 Ms Diane Wagemans (the claimant) was a pedestrian when she was struck by a car as she crossed a road from one side to the other (the accident). 

2. On 6 September 2019 Ms Wagemans lodged an Application for Personal Injury Benefits.

3. Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to make statutory payments to, for, or on behalf of Ms Wagemans under the Motor Accident Injuries Act 2017 (the MAI Act).

4. On 3 December 2019 the insurer issued a “Liability Notice- benefits after 26 weeks” in which the insurer determined the injury sustained by Ms Wagemans was minor (threshold) and that her entitlement to medical and care related expenses would cease 26 weeks after the date of accident.

5. On 29 January 2021 Ms Wagemans sought an Internal Review of that decision and on
   19 February 2021 the insurer affirmed the earlier decision that all the injuries suffered by Ms Wagemans resulting from the accident fell within the definition of minor (threshold) injury.

6. The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the threshold injury dispute between the parties.

7. 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 threshold injury for the purposes of the Act”.

8. A medical assessment matter is determined in accordance with division 7.5 of the MAI Act by a Medical Assessor.[1]

   [1] Section 7.20 of the MAI Act.

9. The threshold injury dispute was referred to Medical Assessor James Bodel.

THRESHOLD  INJURY- STATUTORY PROVISIONS
Threshold injury

1. The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented 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”.

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

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

4. A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. 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 threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.

5. Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:

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

   5.4    Diagnostic imaging is not considered necessary to assess threshold injury.

   5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.

   5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:

   (a)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.”

6. 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 threshold injury.”

7. In Briggs v IAG Limited trading as NRMA Insurance[2] his Honour Justice Wright stated at [35]:

   [2]  Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.

   “The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:

   ‘Causation of injury

   6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

   6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

   'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

   1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

   2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

   This, therefore, involves a medical decision and a non-medical informed judgement.

   6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

CERTIFICATE OF MEDICAL ASSESSOR JAMES BODEL

1. The dispute was referred to Medical Assessor Bodel who assessed the claimant on
   

   [3] AD1 p 14.

   29 September 2022 and issued a certificate dated 8 November 2022.[3] 

2. The injuries referred for assessment were as follows:

   ·        shoulder – constant aching and stiffness alongside occasional clicking in the right shoulder;

   ·        cervical spine – ongoing tightness and stiffness in the neck – intermittent sharp stabbing pains with movement or rotation of the neck;

   ·        right arm – frequent onset of sharp pains and tenderness in the right upper arm and forearm;

   ·        wrist – persistent pain in the right wrist radiating into the right hand with feelings of numbness, and

   ·        lumbar spine – constant pain and discomfort and restriction of movement in the lower back.

3. Medical Assessor Bodel noted a prior injury to the back at the age of 18 years and an injury to the left knee.  She also had a fracture at the L5/S1 level and an injury to the right knee. 

4. At the time of the accident Ms Wagemans was working for NSW Health in regional assessment home support as part of ACAT. She had returned to that work in a modified fashion.

5. Medical Assessor Bodel reported Ms Wagemans suffered an injury to the region of the right shoulder and her neck and felt pain, numbness and tingling in the forearm and lateral three fingers of the hand involving the middle, ring and little fingers. She had pain and stiffness in the region of the right wrist and a continuing clicking sensation. She injured the lower part of the back.

6. He reported her current symptoms were as follows:

   ·        continuing pain at the base of the neck but this is minor;

   ·        right shoulder girdle pain and stiffness;

   ·        wakes from sleep if she rolls on the right side at night;

   ·        pain, stiffness and weakness in the region of the right wrist and numbness and tingling in the middle, ring and little fingers of the right hand, and

   ·        lower back pain which is aggravated by prolonged sitting, bending, twisting or lifting.

7. On examination Medical Assessor Bodel found tenderness in the trapezius muscle at the base of the neck on the right side and guarding in that area. He found a reduced range of neck flexion, extension and rotation in all directions, more on the left than the right. He found asymmetry of movement and dysmetria.  Reflexes were present and equal in both upper limbs. There was no objective sign of sensory loss in a dermatomal distribution or evidence of median or ulnar nerve pathology in either upper limb.

8. There was no measurable wasting in either arm or forearm and no evidence of resisted elbow, wrist or hand movement. 

9. In the lumbosacral spine Medical Assessor Bodel reported mild tenderness and guarding on the right side with backache.  There was also backache on extension with reduced range of lateral bending to the left.

10. Straight leg raising was 70 degrees on each side and limited by hamstring tightness. There was no restriction of hip, knee, ankle or subtalar movement and no clinical sign of reflex abnormality or objective sign of sensory impairment in the lower limbs. There was no wasting in either thigh or calf.

11. Medical Assessor Bodel found restricted range of shoulder movement on the right side. He recorded:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	140°	180°
Extension	40°	50°
Adduction	20°	50°
Abduction	120°	180°
Internal Rotation	60°	90°
External Rotation	60°	90°

1. He noted impingement of the right shoulder but not instability.

2. Medical Assessor Bodel reported slight restriction of wrist movement on the right hand side. He recorded:

Wrist Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	50°	60°
Extension	50°	60°
Radial Deviation	20°	20°
Ulnar Deviation	25°	30°
Pronation	80°	80°
Supination	80°	80°

1. He noted normal grip strengths.  There were complaints of numbness and tingling of the middle, ring and little fingers of the right hand but no objective sign of sensory loss. The distribution outline did not follow a dermatomal pattern. 

2. In relation to the lower extremity there was no leg length inequality, no impairment of straight leg raising and no measurable wasting in either thigh or calf, no reflexes abnormality or sign of sensory impairment in the lower limbs.

3. Medical Assessor Bodel had regard to an MRI scan of the right shoulder of
   15 September 2022 (the report is dated 16 September 2022) provided to him at the time of his assessment of Ms Wagemans. This report had not been served on the insurer.  It was Medical Assessor Bodel’s reliance upon this scan which was relied upon by the insurer to assert a denial of procedural fairness and resulted in this review.

4. Medical Assessor Bodel concluded Ms Wagemans had ongoing pathology involving her right shoulder and right wrist and to a lesser extent her neck and back arising from the accident.

5. Medical Assessor Bodel certified the injuries referred for assessment were caused by the accident. He certified all the injuries listed except the right shoulder injury were minor injuries for the purpose of the MAI Act.

6. In relation to the right shoulder Medical Assessor Bodel stated:

   “The following injuries were not listed by the parties but were caused by the motor accident:

   In response to this question, I will indicate that the pathology in the region of the right shoulder is a small full-thickness tear of the supraspinatus tendon. Clinically, this has been caused by the motor vehicle accident, although the applicant has not listed the injury in those medical terms. The description of the area of injury is in vague symptomatic terms and does not list the underlying pathology, which could be minor or non-minor for the purpose of the Act.

   As I have indicated above, the pathology confirmed on the MRI scan which I have now seen, done only very recently, confirms a small full-thickness supraspinatus tendon tear which is a non-minor injury for the purpose of the Act.”

REVIEW PROCEDURE

1. An application for review of the medical assessment of Medical Assessor Bodel was lodged by the insurer on 5 December 2022 within 28 days of the date on which the certificate of Medical Assessor Bodel was made available to the parties.[4]

   [4] Section 7.26(10) of the MAI Act.

2. On 27 January 2023, 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).

3. 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.

4. 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 Commission.[5] Accordingly, the President’s delegate referred the matter to this Panel to assess.

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

5. 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.[6]

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

6. 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.

7. The review is by way of a new assessment of all matters with which the medical assessment is concerned.

8. On 6 April 2023 the Panel issued a Review Panel Report and Directions (the Report) to the parties. That report included the following:

   1.     “3. The Panel considers a re-examination of the claimant is not required because:

   (a)The dispute between the parties is in respect of diagnosis and causation of the right shoulder injury;

   (b)The insurer accepts that a right small full-thickness supraspinatus tendon tear is a non-minor injury.

   (c)There is no dispute as to the findings on examination of Medical Assessor Bodel; and

   (d)The panel can determine the dispute as to diagnosis and causation of the right shoulder injury on the available documents.”

1. The Report invited the parties to indicate if they had any objection to the matter being determined on the papers having regard to the matters outlined in paragraph 3 of the Report.

2. Both parties consented to the matter being determined on the papers and the Panel agreed a medical examination was not required.

EVIDENCE BEFORE THE REVIEW PANEL

1. In response to a Direction dated 17 March 2023 the insurer uploaded to the portal an indexed bundle of documents paginated from page 1 to 80 and marked AD1.

2. On 6 April 2023 the claimant confirmed her documents were contained in R1 previously uploaded to the portal and paginated from page 1 to 7.          

Application for personal injury benefits

1. In the Application for personal injury benefits dated 6 September 2019 Ms Wagemans described her injuries as follows:

   “Right wrist, severe sprain or fracture, upper arm strain. Lower left back pain, neck pain, hit my head. Multiple areas of abrasions & friction burns. Both knees impacted & grazed swollen.”

Treating medical evidence

Report of NSW Ambulance Service[7]

[7] AD1 p 35.

1. The report of the NSW Ambulance Service reads as follows:

   “O/A pt alert and orientated, GCS 15. Pt states she was walking across the road and a car pulled out of a carpark and hit her. Pt states she was facing the car, slightly turned and the car impacted her knees. Pt states the force moved her backwards 71-2 metres and she landed on her R wrist and side. Unknown speed of car ?low speed. Pt states slight head strike to R face. Pt denies any LOC; full recall of events. PEARL. Nil neck pain or back pain on palpation. Pt C/O pain to R wrist near thumb and R elbow and shoulder blade. Nil obvious deformity to wrist, shoulder or arm. Radial pulse present. Grazes to R shoulder, R cheek, and both knees. Pt denies any nausea or dizziness. All vital signs within normal limits. Pt given methoxyflurane to good effect. R wrist splinted with cardboard splint. Nil other injuries found on full secondary survey. Pt assisted off ground and ambulatory. Pt stable enroute.”

South East Regional Hospital[8]

[8] AD1 p 39.

1. The clinical records from South East Regional Hospital dated 3 September 2019 reported:

   “BIBA after pedestrian Vs car

   pt crossing road, hit by car that pulled out from parking

   hit by bumper to L. knee region and knocked to the ground

   main injury R. forearm/wrist from FOOSH

   Past Hx:
   HCHOL. Hiatus hernia/GORD. Appendicectomy. Hysterectomy
   on HRT only
   anaphylaxis to penicillin
   sensitive to morphine, tramadol and PDF, has tolerated endone in the past
   O/E:
   alert and orientated
   no midline Cspine tenderness
   not distressed, not dyspnoeic, not diaphoretic

   no jaundice, anaemia, cyanosis

   minor abrasions R. face, R. shoulder, both knees

   no LOC or neck pain

   FROM of R. shoulder and knees
   no chest, abdo, pelvic, hip injury evident

   was able to WB and mobilise from the ambo trolley to the bed…”

2. An ED (Emergency Department) medical certificate of Dr Pascoe dated
   3 September 2019 diagnosed the claimant with an abrasion and/or friction burns of multiple sites and wrist sprain.

3. On 6 September 2019 Dr Janet Watterson of Pambula Medical Centre reported the following: “bruised forearm and wrist and right shoulder painful, also lower back and both knees”.

4. Dr Watterson issued a Certificate of Capacity dated 6 September 2019 in which she diagnosed the claimant with ‘right shoulder & forearm soft tissue injury; bruised knees, neck painful, left lower back pain’. Pre-existing factors affecting recovery was listed as “arthritis in knees”.[9]

   [9] AD1 p 42.

5. An Allied Health Recovery Request (AHRR) completed by physiotherapist Tegan Brotherton on 17 September 2019 reported Ms Wagemans had been hit as a pedestrian on 3 September 2019 and provided the following diagnosis:

   “Abrasions on right shoulder

   WAD neck and muscle spasm into shoulder
   Possible impingement pain from impact bursitis
   Neural tension median and ulna nerve
   Initially pain in left hip and knee that has settled now
   Right wrist injury? Ruptured blood vessel but awaiting x-ray and MRI for further

   investigation”

6. Ms Brotherton listed the current signs and symptoms as follows:

   “Watsons -ve

   Palmar forearm bruising and into palm
   Sup just off full, sore ulna border
   shoulder flex= full
   abduction= full however pain and limited if ER rotates arm to neutral position
   ER= 3/4
   IR= TIO
   empty can negative
   Resisted ER= negative
   ULTT Left: median positive 50deg elbow flexion: ulna positive l !Odeg elbow flexion
   Right limited by wrist (unable to get wrist ext) positive median and ulna nerve
   Csp RR=l/2 LR= full
   LF R=L=l/4
   R C2-4 TOP

   Right shoulder protracted”

7. In an AHRR dated 14 October 2019 the physiotherapist provided the following opinion as to diagnosis:

   “Hit as a pedestrian by motor vehicle 3.9.19

   Abrasions on right shoulder
   WAD neck and muscle spasm into shoulder
   Possible impingement pain from impact bursitis
   Neural tension median and ulna nerve
   Initially pain in left hip and knee that has settled now
   Right wrist injury
   Wrist ROM 40/55, light extrinsic flexors
   Relropisiform ganglion
   Grip strength R 18 L 28kg

   Pain on ulnocarpal glide”.[10]

   [10] AD1 p 75.

8. The physio reported the current signs and symptoms in identical terms to those reported on 17 September 2019. The rationale for services requested was as follows:

   “Progressive wrist and forearm strengthening. Taping to offload for heavier activities. Manual Rx for management of cervical and shoulder stiffness, graduated rotator cuff strengthening.”

9. In a Certificate of Capacity dated 13 November 2019 Dr Watterson provided the following diagnosis:

   “hit by car… see previous certificate, ongoing right wrist

   pain, neck stiffness and R shoulder pain”.

10. In respect of capacity for work Dr Watterson commented: “fit for work but benefits from physiotherapy as still has pain and weakness in right arm”.[11]

    [11] AD1 p 65.

11. In an AHRR completed by a physiotherapist on 4 December 2019 the following was reported:

    “Diane was originally DC from physiotherapy on 29 November 2019 on pre injury duties and hours and reported feeling ‘amazing’. She returned on 4 December 2019 and reported than on 2^nd of December 2019 she reached to turn on her bedside lamp and her shoulder “popped out and then back in”. She appears to have reached into abduction/external rotation/extension position at the time which is a mechanism of injury for subluxation. She also reported that this has caused her neck to re-aggravate. Dianne reported to me that prior to this incident she still had wrist pain, finger stiffness and some mild neck symptoms.

    Currently:

    Flexion= full ROM- discomfort at End of Range (BOR)

    Abduction^ full ROM- discomfort at EOR
    External rotation = 3/4 (P)
    Internal rotation Right= T12, Left= T5
    Speeds positive
    Resisted external rotation= negative
    Upper traps tender and hypertonic

    Cervical spine range RR=lR=3/4.”[12]

    [12] AD1 p 70.

12. Ms Wagemans consulted Dr Krishnankutty Rajesh, orthopaedic surgeon who provided a report dated 19 December 2022.[13] Dr Rajesh reported a history of the accident and stated the consultation was mainly about the right shoulder and the tingling in the little and ring fingers.

    [13] R2 p 7.

13. Dr Rajesh reported:

    “On examination, she has good ROM with flexion to 140 degrees, abduction to 120 degrees, external rotation to 45 degrees, internal rotation to thoracolumbar junction. There is only mild weakness. MRI scan has shown a 16 mm x 9 mm supraspinatus tear with tendinosis extending beyond this.”

14. Dr Rajesh did not consider surgery an option at that time noting she had good range of motion without much pain. He recommended physiotherapy. 

Investigations 

1. X-ray right forearm and wrist, 3 September 2019 – the report reads:

   “Findings:

   The overall bony alignment appears normal. No fracture is seen. No joint effusion is seen at the elbow.”

2. X-ray of the right wrist, 10 September 2019 – the report reads:

   “There are no bone, joint or periosteal lesions. In particular, there is no

   evidence of fracture or dislocation”.

3. MRI of the right wrist, 27 September 2019 – the report reads:

   “No evidence of TFCC tear. Small osteochondral lesion involving the lunate. Small ganglion cyst adjacent to the pistoform bone.”[14]

   [14] AD1 p 67.

4. MRI of the right shoulder, 15 September 2022 ­– the report reads:

   “Findings: 

   There is a full thickness tear of the supraspinatus tendon measuring approximately 9mm in the coronal and 8mm in the sagittal plant. There are further changes of tendinosis extending over approximately 1.6cm in the coronal plane. The musculotendinous junction is not retracted, there is no fatty infiltration or atrophy of the supraspinatus muscle belly. There is a small subacromial enthesophyte and non specific capsular change at the acromioclavicular joint. There is a small amount of glenohumeral joint and subacromial/subdeltoid bursal fluid with associated synovitis. The long head of biceps tendon is intact and is normally located, there is undermining of the biceps anchor consistent with SLAP tear but no frank displacement. The biceps pulley mechanism appears intact, the infraspinatus tendon and teres minor appear intact. The anterior, inferior and posterior aspect of the glenoid labrum appear intact. The articular cartilage of the glenohumeral joint appears well preserved.

   The supraspinous and spinoglenoid notches appear clear.

   CONCLUSION:  Small thickness supraspinatus tendon tear with associated glenohumeral joint and subacromial/subdeltoid bursal effusions.”[15]

SUBMISSIONS

[15] R2 p 6.

Insurer’s submissions

1. The insurer provided submissions dated 31 May 2021 in respect of the threshold injury dispute.[16] The insurer submitted that on the available medical evidence the claimant’s injuries were soft tissue in nature. Whilst the main injury was to the right forearm/wrist due to a fall onto outstretched hands the X-ray of that region was normal.

   [16] AD1 p 11.

2. The insurer provided submissions dated 5 December 2022 in support of the application for review. [17]

   [17] AD1 p 3.

3. The insurer disputes the finding of Medical Assessor Bodel that the claimant sustained a non-threshold injury to her right shoulder.

4. The insurer noted that Medical Assessor Bodel listed “constant aching and stiffness alongside occasional clicking” as a non-minor injury, on the basis this was the injury referred for assessment.  The insurer notes that Medical Assessor Bodel also stated:

   “The following injuries were not listed by the parties but were caused by the motor accident:

   In response to this question, I will indicate that the pathology in the region of the right shoulder is a small full-thickness tear of the supraspinatus tendon. Clinically, this has been caused by the motor vehicle accident, although the applicant has not listed the injury in those medical terms. The description of the area of injury is in vague symptomatic terms and does not list the underlying pathology, which could be minor or non-minor for the purpose of the Act.

   As I have indicated above, the pathology confirmed on the MRI scan which I have now seen, done only very recently, confirms a small full-thickness supraspinatus tendon tear which is a non-minor injury for the purpose of the Act.”

5. The insurer accepts that a right small full-thickness supraspinatus tendon tear is a non-minor injury. The insurer’s application for review is with respect to diagnosis and causation of the right small full-thickness supraspinatus tendon tear.

6. Medical Assessor Bodel notes that the medical evidence provided by the parties did not include an MRI scan of the right shoulder which he states he saw, and which showed a small full-thickness tear of the supraspinatus tendon. He further states the scan was dated 15 September 2022 although some confusion exists because he later refers to the MRI scan of the right shoulder dated 16 September 2022.

7. The insurer notes the scan would constitute a “late document” as it was performed after the parties lodged their respective submissions, it was not the subject of an Application to Admit Late Documents and the insurer was not afforded an opportunity to respond, constituting a denial of procedural fairness.

8. Assuming the existence of the scan establishing that the claimant has sustained a small full-thickness tear of the supraspinatus tendon the insurer asserts Medical Assessor Bodel failed to adequately address causation of that injury, noting there was a three year period between the accident and the scan being performed and also having regard to the independent right shoulder injury recorded in the AHRR dated
   4 December 2019.

Claimant’s submissions

1. The claimant provided submissions dated 11 January 2023 addressing the insurer’s argument that the reliance by Medical Assessor Bodel upon the MRI scan of
   16 September 2022 was a denial of procedural fairness.

2. In relation to causation the claimant submits that she complained of right shoulder pain immediately after the accident. The claimant notes the insurer was not willing to fund further treatment for her to undergo investigations into her injuries and shortly after deemed her injury minor.

3. The claimant submits the incident described in the AAHR dated 4 December 2019 was merely an aggravation of the pre-existing condition.

PANEL FINDINGS

Findings of Medical Assessor Bodel not in dispute

1. There is no dispute as to the findings of Medical Assessor Bodel that the following injuries caused by the accident are threshold injuries for the purpose of the MAI Act:

   ·        cervical spine – ongoing tightness and stiffness in the neck – intermittent sharp stabbing pains with movement or rotation of the neck;

   ·        right arm – frequent onset of sharp pains and tenderness in the right upper arm and forearm;

   ·        wrist – persistent pain in the right wrist radiating into the right hand with feelings of numbness, and

   ·        lumbar spine – constant pain and discomfort and restriction of movement in the lower back.

Injury to the right shoulder

1. There is a dispute as to diagnosis and causation of the right shoulder injury.

2. Having regard to the comments of Wright J in Briggs the Panel considers it is appropriate to apply the test as to causation set out in part 6 of the Guidelines.

3. In Briggs Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[18]  His Honour stated at [70] – [72]:

   “70.   This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):

   ‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:

   ‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’

   71.    The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes[1970] 2 NSWR 238 as follows, at 242:

   ‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’

   72.   Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”

   [18] Briggs [2022] NSWSC 372.

4. In considering whether the right small full-thickness supraspinatus tendon tear was caused or materially contributed to by the motor accident the Panel notes the accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible.  The Panel notes the following history:

   ·        the claimant was a pedestrian when she was struck by the car landing on her right wrist and side;

   ·        the ambulance report documents complaints of pain to the right wrist near the thumb, the right elbow and the right shoulder blade; 

   ·        whilst the South East Regional Hospital reported the main injury was to the right forearm/wrist it also documented minor abrasions of the right shoulder;

   ·        on 6 September 2019 general practitioner Dr Watterson recorded, inter alia, “right shoulder painful” and in a Certificate of capacity dated 6 September 2019 she referred to “right shoulder and forearm soft tissue injuries…”;   

   ·        the same day the Application for personal injury benefits included “Right wrist, severe sprain or fracture, upper arm strain”;

   ·        on 17 September 2019 Ms Brotherton physiotherapist included the following in her opinion as to diagnosis;

   “Abrasion on right shoulder
   WAD neck and muscle spasm into shoulder
   Possible impingement pain from impact bursitis”;

   ·        on 14 October 2019 Ms Brotherton reported she was providing treatment for management of cervical and shoulder stiffness with graduated rotator cuff strengthening; 

   ·        on 13 November 2019 Dr Watterson reported ongoing right wrist pain, neck stiffness and right shoulder pain; 

   ·        the physiotherapist reported on 2 December 2019 Ms Wagemans turned to reach her bedside lamp and her shoulder “popped out and then back in” which the physiotherapist described as a mechanism for subluxation;

   ·        on 29 September 2022 Medical Assessor Bodel reported ongoing right shoulder girdle pain and stiffness, and

   ·        on examination Medical Assessor Bodel found a restricted range of shoulder movement on the right side, he noted impingement of the right shoulder but not instability.

5. The Panel notes when the claimant was struck by the vehicle she landed on her right side which is consistent with the injuries she sustained.

6. Whilst the diagnostic MRI was not undertaken until 15 September 2022 the available evidence supports an injury to the right shoulder at the time of the accident with contemporaneous complaints of right shoulder pain and what was described as “possible impingement pain”.  Thereafter, there has been a consistent history of right shoulder pain. 

7. Significantly, even after the tear was diagnosed on 15 September 2022 Dr Rajeesh reported Ms Wagemans had a good range of movement without much pain.  The claimant’s presentation to Dr Rajeesh is consistent with her presentation as it pertains to the right shoulder since the accident.

8. The Panel notes the subluxation which occurred on 2 December 2019.  This subluxation occurred within three months of the accident and was described by her treating physiotherapist as a minor movement of turning on her bedside lamp from the bed. A supraspinatus tear would make this more likely to occur due to a weakening of the shoulder joint stability.

9. Having regard to the consistency of both presentation and complaint the Panel finds on the balance of probabilities that the accident was a contributing cause which was more than negligible to the development of the right small full-thickness supraspinatus tendon tear.

1. The Panel notes the insurer accepts that a right small full-thickness supraspinatus tendon tear is a non-threshold injury in accordance with s 1.6(2) of the MAI Act.

PANEL FINDINGS

1. The Panel finds the following injuries caused by the accident are threshold injuries for the purpose of the MAI Act:

   ·        cervical spine – ongoing tightness and stiffness in the neck – intermittent sharp stabbing pains with movement or rotation of the neck;

   ·        right arm – frequent onset of sharp pains and tenderness in the right upper arm and forearm;

   ·        wrist – persistent pain in the right wrist radiating into the right hand with feelings of numbness, and

   ·        lumbar spine – constant pain and discomfort and restriction of movement in the lower back.

2. The Panel finds the following injury caused by the accident is not a threshold injury for the purposes of the MAI Act:

   ·    right shoulder injury – small full-thickness supraspinatus tendon tear.