Allianz Australia Insurance Limited v Yadko

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Yadko [2024] NSWPICMP 549
CLAIMANT:	Fadi Yadko
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Leslie Barnsley
DATE OF DECISION:	8 August 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Vehicle Injuries Act 2017; medical dispute; whether the physical injuries sustained, were all threshold injuries; claimant re-examined; consideration of claimant’s history, the clinical findings on examination, the radiological imaging and the factors contributing to the injury in order to determine the issue of causation; claimant was diagnosed with an injury to the lumbar spine that was causally related to the accident and was not a threshold injury; Held – Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Panel revokes the certificate of Medical Assessor Berry, dated 24 January 2024, and substitutes the determination to certify that: (a) the injury to the right shoulder was not caused by the accident, and (b) the injury to the lumbar spine was caused by the accident and was not a threshold injury.

STATEMENT OF REASONS

INTRODUCTION

Fadi Yadko (Mr Yadko), the claimant suffered injury in a motor vehicle accident (the accident) on 15 February 2019.
Allianz Australia Insurance Limited ABN 15 000 122 850 (Allianz) insured the owner and driver of the motor vehicle for liability to pay Mr Yadko any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the accident.

Threshold injury dispute

The dispute is whether Mr Yadko’s physical injuries are a “threshold injury” within the meaning of the MAI act.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
The disputes were referred to Medical Assessor Neil Berry who issued a Medical Assessment Certificate dated 24 January 2024 (the medical assessment certificate). The Medical Assessor concluded that the accident caused an injury to the lumbar spine that was not a threshold injury. He further determined that the injury to the right shoulder was a threshold injury for the purposes of the MAI Act.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and 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 threshold injuries”. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.

THRESHOLD INJURY- STATUTORY PROVISIONS

Assent was given to the Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) 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” was 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.
A threshold injury was defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that was 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)”.
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 was a threshold injury for the purposes of the MAI Act. Version 9.2 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 was a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim was a soft tissue injury or a threshold psychological caused by the motor accident.
5.4    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim was a threshold injury. Diagnostic imaging was 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 was 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.”
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There was no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5 An assessment of the degree of permanent impairment was 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 was related to the accident in question was therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation was 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 was necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which was a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which was a non-medical determination.”
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There was no simple common test of causation that was 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 was a contributing cause, which was 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 was not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes’.”

The certificate and reasons of Medical Assessor Berry

The following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor Berry for assessment:
(a) whether the injury to the lumbar spine – nerve root injury and a disc injury caused by the motor accident is a threshold injury for the purposes of the Act, and
(b) whether the injury to the right shoulder – subacromial bursitis and multiple partial tears of the right shoulder subscapularis and supraspinatus tendons caused by the motor accident is a threshold injury for the purposes of the Act.
Medical Assessor Berry determined that the following injuries were caused by the accident:
(a) lumbar spine – soft tissue injury L5/S1 disc lesion, damage to S1 nerve root, and
(b) right shoulder – soft tissue injury.
Medical Assessor Berry concluded that although the injury to the right shoulder was a threshold injury, the injury to the lumbar spine was not a threshold injury.
Under the heading “diagnosis and reasons”, the Medical Assessor concluded:
“Mr Yadko has a history of right shoulder pain and restriction of movement which settled some two weeks prior to his motor vehicle accident. He was then holding the steering wheel with the right hand extended when the impact occurred, and I would consider that there was a soft tissue impact to the right shoulder. In the lumbar spine, the claimant has a history of being thrown forward in the motor vehicle at the time of collision and immediately experienced symptoms in the left leg. I would consider that there was rupture of the L5/S1 disc and impingement on the S1 nerve root.”
The findings by the Medical Assessor on causation of the physical injuries were:
“With regard to the right shoulder, the claimant has a history consistent with chronic dislocation of the right shoulder as evidenced by a Hill-Sachs lesion. He then had a direct impact with the right hand outstretched on the steering wheel when the collision occurred. With regard to the lumbar spine, the claimant was thrown forward and then backwards and immediately experienced pain and numbness in the left leg.”
In terms of the threshold injury dispute, the Medical Assessor reported that:
“Right Shoulder
The claimant has a history of pain coming at the time of the accident as a result of the impact. Imaging shows no evidence of a tear in the rotator cuff and therefore I would consider that the claimant suffered a threshold injury to the right shoulder. The Hill-Sachs lesion has been commented on by radiologists and obviously pre-existed his motor accident.
Lumbar Spine
The claimant had immediate onset of pain in the left leg consistent with damage to the S1 nerve root and therefore I would consider the injury to the lumbar spine was not a threshold injury. The assessment of whether the injury is a ‘threshold injury’ is not a direct measure of symptoms or disability. A finding that the injury is a ‘threshold injury’ indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however the injury satisfies the definition of a threshold injury under the Act and the Regulation.”

THE REVIEW

The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessments to the Review Panel (the Panel) satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
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 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 (Commission).
Part 5 of thePIC 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.

26.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.

SUBMISSIONS

Allianz’s submissions

Allianz sought review of the Commission’s threshold injury certificate from Medical Assessor Neil Berry, general surgeon, dated 24 January 2024.
Allianz submitted that the medical assessment of Medical Assessor Berry is incorrect in the following material respect because his failure to provide sufficient reasons for causation of the injury to the lumbar spine.
Allianz highlighted the following:
(a)    Prior to the accident, Mr Yadko consulted Dr Erian on 6 February 2019. The entry noted right shoulder pain on abduction. Dr Erian recorded ‘he is a truck driver and carries multiple weights, examination showed anterior tenderness otherwise normal, rotator cuff tendinitis or bursitis’. He gave him a referral for an X-ray and ultrasound for the right shoulder and a CT scan for the lumbar-sacral with a further note of “Low back pain with the pain on the left thigh radiating to the left thigh ?? dic disease”. Dr Erian prescribed Panadeine Forte.
(b)    CT Lumbar Spine dated 16 February 2019 showed a small crush fracture at L1 and significant changes at L5/S1 and to a lesser extent at L4/5. Allianz noted that the CT scan was the day after the subject accident, but the referral was from
6 February 2019. The report concluded lower lumbar spondylosis and raised the potential for lumbar nerve root impingement at L4/5, L5/S1.
(c)    On 7 December 2019, Mr Yadko underwent a left L5/S1 discectomy and laminectomy performed by Dr Darwish, orthopaedic surgeon.
(d)    MRI lumbar spine dated 9 March 2020 this confirmed the presence of a left L5/S1 hemi-laminectomy with no residual disc impinging on S1.
(e)    Dr Nair in report dated 8 January 2021 opined Mr Yadko had clinical and radiological evidence of degenerative disc disease at L4/5 and L5/S1 as evidenced by findings on MRI lumbosacral spine.
(f)    Dr Phil Allen dated 11 July 2022 provided a diagnosis that Mr Yadko had an aggravation of pre-existing lumbar spondylosis with development of an S1 root lesion for which he has had surgery. Symptoms persisted however objective signs of ongoing radiculopathy were absent at on assessment.
(g)    Commission’s WPI certificate from Medical Assessor Kenna dated
12 October 2022 opined soft tissue injury to the lumbar spine. Medical Assessor Kenna found there was no evidence of non- verifiable radiculopathy as any distal symptoms did not follow a specific nerve root on examination of the lumbar spine.
Allianz submitted that Medical Assessor Berry relied on a logical fallacy, post hoc ergo propter hoc (Latin for “after this therefore on account of this”) noting that since Mr Yadko was thrown forward and then backwards and immediately experienced pain and numbness in the left leg. Medical Assessor Berry determined the lumbar spine – soft tissue injury L5/S1 disc lesion, damage to S1 nerve root is related to the accident.
Allianz submitted this was an erroneous approach to the issue of causation, noting that the onset of symptoms isn’t the sole determinative factor for causation as per Coventry v Insurance Australia Ltd T/as NRMA Insurance [2019] NSWSC 1096 at [63].
Medical Assessor Berry erred in not providing adequate or full reasons for his causation finding in relation to Mr Yadko’s lumbar spine injury despite:
(a) the radiological findings that do not evidence an injury to the nerves, a fracture or a complete or partial rupture of tendons, ligaments or cartilage concerning
Mr Yadko’s lumbar spine, and
(b) prior to the accident, on 6 February 2019, Mr Yadko complained of low back pain with the pain on the left thigh radiating for which he was referred for CT lumbar scan.

Mr Yadko’s submissions in reply

Mr Yadko submitted that Allianz’s reference to Coventry v Insurance Australia Ltd T/as NRMA Insurance [2019] NSWSC 1096 was not instructive in this instance, as it concerned the correctness of the Medical Assessor’s determination as to the degree of permanent impairment of a psychiatric injury at the time of the assessment. There was no general principle to be gleaned from the case, upon which Allianz can suggest that there has been error in this instance
The Medical Assessor did not, when regard is had to the whole of his reasons, determine causation solely because of the onset of symptoms as at the date of accident. In this regard, the Medical Assessor’s reasons exposed that he considered, when determining that the lumbar spine injury was caused by the accident, which is the subject of the claim, inter alia that, firstly, the mechanism of injury, having regard to the circumstances of the accident was consistent with the accident, and, secondly, that, because of the mechanism of the injury, there was damage to the S1 nerve root.
It was notable that the medical expert qualified by Allianz, Dr Allen, orthopaedic surgeon, by his report dated 11 July 2022, opined as follows, consistent with the Medical Assessor’s opinion, when commenting on causation with respect to the lumbar spine injury: “With respect to the lumbar spine, he has had an aggravation of pre-existing lumbar spondylosis with a development of an S1 root lesion (emphasis added) for which he has had surgery.” In other words, Dr Allen, appeared to accept that there was damage, or injury, caused to the S1 nerve root as a consequence of the accident, and that opinion alludes to a “development” of that damage, or injury in the S1 region, post-accident.
Where Dr Allen differed from the Medical Assessor in his assessment of injury is that he did not consider that radiculopathy was present at the time of his assessment of Mr Yadko.
The doctors who had assessed Mr Yadko’s lumbar spine injury, and whose reports or certificates were available to the Medical Assessor, as outlined at paragraph 15, on pages 5-6 of the Certificate, had accepted that the lumbar spine injury was caused by the accident. The consensus of opinion underlined that the Medical Assessor could not be said to have fallen into error, himself, when determining the issue of causation of the lumbar spine injury.
It could not then, when regard is had to the totality of the available medical opinion evidence, be suggested that it was incorrect for the Medical Assessor to conclude that the lumbar spine injury was caused by the accident. He expressed his opinion in a similar way to Dr Allen, as set out above, and other doctors have provided their own reasons as to why they also accepted that the lumbar spine injury was caused by the accident.

MEDICAL EVIDENCE

Discharge Referral – Liverpool Hospital

Mr Yadko presented to Liverpool Hospital approximately five weeks following the accident, they reported:
"Summary of admission:
Mr Yadko was diagnosed with an L4-L5 disc herniation secondary to MVA
MVA occurred 5 weeks ago. Mr Yadko immediately experienced left
lower limb weakness and left sided gloid back pain into the lumbar
region, which was managed with multiple analgesics ...
He presented to Liverpool ED on 14/03/2019 due to increasingly
severe pain as well as progressive left lower limb weakness."

Statement of Mr Yadko, dated 26 February 2021

Mr Yadko recalled in his statement:
“The collision was extremely forceful and my truck was completely damaged on the right driver side. The other 2 vehicles were also extremely damaged. I immediately felt pain to my lower back and right shoulder, but more so by back while on the scene of the accident, and eventually felt pain to my right shoulder.”
Mr Yadko further stated:
“I recall that I had some pain to my right shoulder about a week or two prior to the accident. I woke up one morning and felt a stiff and odd pain in my right shoulder which I had not felt the day before. I was fine the day before and I did not understand why my shoulder was hurting that morning. I also did not have any pain in my right shoulder before that day. I recall that I went to work as usual on that day, it was a Wednesday on the 6th of February 2019. While working, I noticed some pain and discomfort in my right shoulder. For instance, it was uncomfortable for me to have my right hand on the steering wheel for a long period of time. I finished up with my last job for that day and decided to see my general practitioner that afternoon because I wanted a quick solution.”

Medical Assessment Certificate of Medical Assessor Tim Anderson dated 9 November 2021

Medical Assessor Tim Anderson took a history of the onset of symptoms and of subsequent relayed events after the accident:
“He saw his doctor. The lower back condition continued to deteriorate. He also had pain in his right shoulder which he believes came on within several days of this event. For his lower back, he was referred to Specialist Spinal Surgeon, Dr Balsam Darwish. Radiological investigations demonstrated discogenic pathology at the L5/S1 articulation deviated towards the left. Conservative management was tried, although this did not give him any improvement and a decompression procedure was conducted by
Dr Darwish on 07/12/19. This seemed to give him some improvement. He later had physiotherapy. In May 2020, while he was doing nothing more adventurous than just walking along, the lower back condition suddenly deteriorated and he had severe lower back pain, again radiating down the left leg.
I was unable to find detailed corroborating clinical evidence of the subsequent proposed clinical management although Mr Yadko advised me that the possibility of repeat surgery was mentioned, although he did not wish to have this and this condition has subsequently been managed conservatively.
For his right shoulder he was referred to Specialist Orthopaedic Surgeon, Dr John Ireland. The possibility of a previous dislocation was identified with a Hill-Sachs lesion of the right shoulder complex. Nevertheless, in reviewing this in detail, this Hill-Sachs lesion appears to be particularly small and there is no previous history of injury to the shoulder. Dr Ireland’s clinical management consisted of cortisone injections, which unfortunately did not help. Later there was treatment with platelet rich plasma injections which seemed to give him limited improvement for a while, then the condition deteriorated again.”
Medical Assessor Anderson reported a decreased ankle reflex on the left and a nerve root tension sign which I found. Mr Yadko was thought to have restricted right shoulder movements and although there was radiological evidence of a previous condition of the right shoulder, Medical Assessor Anderson was unable to identify any specific injury which may have resulted in this. He opined:
“The issue of his right shoulder appears to be controversial. In discussing this in detail with him, I came to the conclusion that this probably was associated with this recent vehicle accident and is likely to have arisen due to holding onto his steering wheel very tightly at the time of this accident. The previous suggestion of a Hill-Sachs deformity, whilst it cannot be completely discounted, suggests that this condition appears to have been very minor. I can find no history of other significant right shoulder pathology.”

Medical Assessment Certificate of Medical Assessor Clive Kenna, dated 12 October 2022

Medical Assessor Kenna concluded because of Mr Yadko’s pre-existing condition that he had a soft tissue injury to the right shoulder and a soft tissue injury to the lumbar spine.
Medical Assessor Kenna opined:
“The motor accident does not have to be a sole cause as long as it is a
contributing cause, which is more than negligible.
Whilst the insurer is of the view that neither the right shoulder or the lumbar spine is directly related to the motor vehicle accident in view of the significant prior history, I am of the view that the motor vehicle accident of 15 February 2019 was a significant aggravating or contributing factor to the onset initially of back pain with subsequent development of left leg symptoms and also associated onset of right shoulder problems.
I accept that there was a past history pertaining to the right shoulder but that the motor vehicle accident had further aggravated potentially pre-existing pathology and had caused subsequently a degree or loss of range or movement.
Hence, injuries resulting from the accident consist of:
Soft tissue injury to thew right shoulder
Soft tissue injury to the lumbar spine
This is on a background of pre-existing degenerative change as noted but
nevertheless I consider the motor vehicle accident pertaining to both has been a
significant contributing factor.
From that perspective, I believe the prognosis is on the up.
He is back at work part-time in a job duty which isn't particularly arduous but
has had to change his Job career as a result of injuries.
I consider the injuries are consistent with the stated cause.
Pre-existent degenerative changes and possible previous injuries to the right
shoulder have, I believe, influenced the course of the current events but the
MVA was a further contributory factor, more than minimal.
I have commented on treatment and medication received. I note that essentially
all soft tissue therapy has ceased and in view of the time that has elapsed, his
conditions have stabilised.”

Medical reports of Dr Mohammed Assem dated 22 June 2022 and 3 August 2022

Dr Assem concluded that according to the information provided and assuming it was accurate and correct, Mr Yadko’s injuries were consistent with the accident that occurred on 15 February 2019.
His diagnosis of the injuries was:
“Right Shoulder – aggravation of pre-existing pathology / labral tear and Hill-Sachs
Lesion
Lumbar Spine – soft tissue injury, L5/S1 disc protrusion compression the left S1
nerve root requiring left L5/S1 hemilaminectomy and microdiscectomy. He
continues to have radiculopathy after surgery.”

Medical Report of Dr Anil Nair dated 8 January 2021

Dr Nair concluded that Mr Yadko had pre-existing injuries to the low back and to the right shoulder.
In his report, he said:
“He has clinical and radiological evidence of degenerative disc disease at L4/5 and L5/S1 as evidenced by findings on MRI lumbosacral spine. This is consistent with his clinical presentation. There is no work-related condition involving his right shoulder that has been identified.”
Dr Nair further commented:
“It is my opinion that the lower back condition is related to his employment as well as his treatment for employment-related condition.”

Report of Dr Charles Allen, orthopaedic surgeon, dated 11 July 2022

Dr Allen was of the view that Mr Yadko did sustain an injury to the back, but this was an aggravation of a pre-existing problem. He was uncertain about Mr Yadko’s right shoulder.
Dr Allen provided in his report:
"Mechanism of Alleged Injury/Sequence of Events:
Mr Yadko told me that on 15 February 2019 he was driving a truck when he was
involved in a motor vehicle accident.
He told me that there was an ambulance on the scene and at the time he had
some pain in his left leg which was assessed by the ambulance officers. He did
not go to hospital.
He then reported that his leg pain deteriorated over the next two days with
increasing back pain.
He attended his doctor for treatment.
It was noted that he reported that he had previously had episodes of lower back
pain but these had not precluded him from playing soccer, attending the gym or
going about his usual employment.
He also told me that he had previously had problems with the shoulder but
when questioned about it he told me ‘I cannot truly remember’.
He was treated initially with non-surgical management including physiotherapy
and cortisone injection from which he reported no benefit.
He was referred to an orthopaedic surgeon who recommended an LS/S1
discectomy of a left nerve root compression.
He underwent surgery on 2 December 2019 and reported that there was no
benefit from the surgery. He reported that his symptoms have persisted
thereafter.
He also reported that during this period he started developing pain in the right
shoulder for which he has been investigated and treated non-operatively.
He reported that he continues to have activity related pain in the right shoulder.”

Report of Associate Professor John Ireland, dated 5 July 2019

Professor Ireland confirmed Mr Yadko’s ongoing symptoms and restriction of movement. He concluded that his symptoms were due to aggravation of a pre-existing chronic dislocation of the right shoulder.
X-ray right shoulder, dated 20 February 2019: showed a small old Hill-Sachs deformity. The rotator cuff and subacromial bursa are normal.
“The alignment appears normal at glenohumeral and acromioclavicular joints. No rotator cuff tendon calcification is seen. No significant bone, joint or soft tissue abnormality is seen in relation to the shoulder, clavicle or upper ribs.”
Ultrasound right shoulder, dated 20 February 2019: Old small Hills- Sachs deformity. The rotator cuff and subacromial bursa defined normally.
CT lumbar spine, dated 16 February 2019: showed a small crush fracture at L1 and significant changes at L5/S1 and to a lesser extent at L4/5.
MRI right shoulder, dated 20 June 2019: showed changes of a very shallow Hill-Sachs lesion but no evidence of a recent injury to the right shoulder. The conclusion of the report was:
“1. Very shallow Hill-Sachs lesion, chronic
2. Anterior and anterior inferior labral tear
3. No cuff tear
4. Subacromial-subdeltoid bursal labral tear.”
MRI lumbar spine, dated 10 March 2020: this confirmed the presence of a left L5/S1 hemi-laminectomy with no residual disc impinging on S1. Conclusion:
“Satisfactory appearance post left L5/S1 hemi-laminectomy and microdiscectomy with no residual nor recurrent disc impinging on the S1 nerve root. L4/5 disc desiccation with an annular tear and disc protrusion with mild thecal sac compression without impingement of the L5 nerve roots.”
MRI Lumbar spine, dated 25 May 2020: The MRI concluded:
"1. Satisfactory appearances post left LS-51
hemilaminectomy and microdiscectomy with post
surgical changes but no residual nor recurrent disc
impingement on the S1 nerve root.
2. L4-5 disc dislocation with annulus tear and disc
protrusion with mild canal narrowing but no definite
root impingement.”
MRI, dated 16 September 2020: showed there was evidence of either post-operative scarring or a recurrence at L5/S1. The report provided the following comment:
“Lower lumbar spondylosis. At L4/5 there was facet and flavum hypertrophy with central disc protrusion indenting the thecal sac and causing moderate canal stenosis. There is mild thecal sac compression, minimal foraminal narrowing descending left L5 nerve root is contacted with mild impingement subarticular recess level. At L5/S1 there is loss of disc height and posterior vertebral osteophyte formation. Posterior disc osteophyte causes severe narrowing of the left subarticular recess with impingement of the descending left S1 nerve root. Vertebral and disc encroachment into the left exit foramen causes moderate to severe narrowing and further mild impingement of the exiting left L5 nerve root. There was a partial right-sided sacralisation of the L5 vertebra with pseudo-articulation and sclerosis. There is a 2mm non-obstructing calculus in the left kidney interpolar region.”

THE REVIEW PANEL

At the first Medical Review Panel (MRP) meeting on 23 May 2024, the Panel agreed that a medical examination would be necessary to address the parties’ submissions.
Medical Assessor Stubbs examined Mr Yadko on behalf of the Panel on 9 July 2024 at the Commission’s examination rooms.

Background

Mr Yadko was 35 years of age. He came to Australia from Iraq in 2008, completed a course on English and then went on to become a self-employed delivery driver involving a mix of work and generally driving a truck of about 12 gross tons. He had a TAFE level certification as an electrician from Iraq. He was accompanied by his wife. They lived in a single-story house. He was working as a self-employed franchisee of a pest eradication business.
His history included a stabbing wound in 2009 - a laparotomy was performed.

History of the accident

The accident occurred on 15 February 2019. Mr Yadko swerved to avoid car in front which unexpectedly stopped on a green light, and he had a collision with a second vehicle. He self-extracted and helped out the passenger of the vehicle he collided with. Details were exchanged and he later advised the police. His truck was repaired. He attended his general practitioner on the advice of police.
He returned to work one week after the accident but left-sided low back pain extending into the buttock down the outer thigh and beyond the knee, worsened over the following week. Nothing relieved this pain, and it was noticeably worse if he sneezed. He had previously had back pain from time to time but always locally. The pain in the leg below the knee was new and distinct from the pain in the thigh reported before the accident.
His general practitioner, Dr Sammy Erian referred him to Dr Darwish a neurosurgeon with left sciatica in March 2019, about three weeks after the accident. A laminectomy was performed at Liverpool Hospital in December 2019. There was initial benefit with the pain level falling from 90% to 30% but within weeks the pain was back to its former level.
Concurrently, he developed right shoulder pain. Mr Yadko said this was within a fortnight of the accident. He was subsequently sent to see Dr John Ireland, orthopaedic surgeon, who arranged for a plasma rich protein injection which provided temporary benefit, but the pain returned after a few weeks. His shoulder was now more painful and stiff than it is had been at any time since the accident.
Mr Yadko was asked about the timing of the shoulder pain since the general practitioner notes reported the initial complaint of pain as 6 February 2019, nine days before the accident. He said he took no time off work for this, but it was unclear as to what investigations had been performed.
The general practitioner noted that an ultrasound had been ordered but whether this was actually done prior to the accident was unclear. Mr Yadko’s recollection is that the pain in the shoulder did not develop until after the accident.

Current symptoms

Mr Yadko was back at work as a pest controller but was still suffering from left leg pain. He could not climb ladders and could only work on single story buildings. The right shoulder pain also persisted. Treatment was confined to non-prescription analgesic agents. He had not returned to his pre accident sports, including resistance training in the gymnasium and soccer.
Mr Yadko was wearing a tightfitting top and tracksuit bottom with joggers. He stood 173cm tall and weighed 91kg. He moved about freely and could tip toe and heel toe walk but complained of back pain doing this. He did not believe he could hop or squat. He dressed and undressed without assistance including pulling the top over his head. He got on and off the examination table without assistance.

Cervical spine

He had a normal standing posture. He moved his head forward and backwards over a limited range of motion. He similarly restricted his neck movement in rotation and side bending. He moved much more freely in general examination, and in particular seemed to have no difficulty taking off his top when undressing. The discrepancy was put to him, but he said that moving his neck in clinical examination was very painful. The girth of his arms was 38 cm right and left, and of the forearms 34 cm right and left. Reflexes were brisk and symmetrical. There was some complaint of pain radiation, but this did not follow a dermatomal distribution. Sensation was normal. Strength was 4/5 in all motor groups with the arms by the side. It was suggested that he could grip more strongly but he said this was painful. General impression was that there was no guarding or spasm, no evidence of radiculopathy but there was an overprotection during formal examination.

Lumbar spine

His general posture was good. Movements were quite limited. He had full knee extension when sitting on the couch. Straight leg raising was resisted on the left side to about 30°. Sensory testing had diffuse complaints of pain probably of an L5 distribution. There was a positive traction sign on ankle dorsiflexion. Girth of the thighs was 52 cm right equals left, and the calves 39 cm, right equals left. Reflexes were difficult to elicit but symmetrical. There was a small midline laminectomy scar in the lumbar spine. There was marked tenderness to light palpation and some induced spasm to firm pressure. He had a residual sign of left-sided L5 radiculopathy.

Thoracic spine

This was normal and his truncal rotation was good. Principal finding was of the midline scar, running from the sternum to the pubic symphysis, consistent with an exploratory laparotomy. This followed the 2009 stabbing incident.

Upper limbs

There were symmetrical reflexes and no muscle wasting. Motor strength was suboptimal even with the elbows by the side at 4/5. Movements of the elbows wrists and hands was normal. There was no cubital or carpal tunnel compression. Sensation was normal to find touch, there were non-dermatomal complaints of pain in the right upper arm. Reflexes were brisk and symmetrical. There was mild wasting of the right shoulder girdle to palpation.
There was a noticeable difference in movement between the apparent ease with which he pulled his tightfitting top off over his head, and the very restricted range of motion she showed about the right shoulder informal examination.
The left shoulder had a full passive range of motion. The right shoulder showed a variable restriction of motion in flexion and abduction but unrestricted internal and external rotation with the elbows by the side and normal extension and cross body adduction. Testing rotation in mid abduction was not possible because of discomfort. Apprehension, impingement and other specific signs were variable. He was diffusely tender about the whole shoulder. Specific provocation tests for shoulder instability could not be comfortably performed.

Lower limbs

There was no muscle wasting and strength was 5/5 in all motor groups. There was complaint of sensory disturbance of L5 distribution. Movements of the hips, knees and ankles was normal.

Radiological and medical imaging

20 February 2019 – ultrasound right shoulder – old small Hill-Sachs deformity rotator cuff and subacromial bursa define normally. X-ray the right shoulder same date – the alignment appeared normal at the glenohumeral and acromioclavicular joints. No rotator cuff tendon calcification is seen. No significant bone joint or soft tissue abnormality seen in relation to the shoulder, clavicle, or upper ribs.

20 June 2019 MRI right shoulder. – Very shallow Hill-Sachs lesion anterior and an antero-lateral label tear. No rotator cuff tear. Sub- acromial bursal label tear
CT lumbar spine – lower lumbar spondylosis potential for lumbar nerve root impingement as above. Concurrent symptoms could be arising from the L4-L5 or L5 S1 level.
25 May 2019 MRI lumbar spine – left paracentral disc herniation at L5 S1 with impingement upon the S1 nerve root in the lateral recess of the spinal cord.
10 March 2020 MRI lumbar spine – conclusion satisfactory appearance post left L5 S1 hemi laminectomy and micro discectomy was no residual nor recurrent impingement on the S1 nerve root. L4 five disc desiccation with an acute annular tear and disc protrusion, mild thecal sac compression without impairment of the L5 nerve roots.
25 May 2020 – MRI lumbar spine satisfactory appearance post L5 S1 hemi laminectomy and micro discectomy with postsurgical changes but no residual nor recurrent disc impingement on the S1 nerve root. L4 five disc dislocation with annular tear and disc protrusion with mild central narrowing but no definite nerve root impingement

PANEL’S DISCUSSION

Lumbar spine

The Panel noted that Mr Yadko had a history of low back and thigh pain shortly before the subject motor vehicle accident. However, the symptoms in the left lower limb following the accident were reported to be in the calf and were more severe, precipitating attendance at Liverpool Hospital. The Panel was of the view that Mr Yadko suffered a new and distinct injury in the accident, probably on the background of some prior lumbar spinal disease. The contribution from the accident to cause sciatic symptoms in a new area was axiomatically more than negligible.
The Panel turned its considerations to the question of a threshold versus non threshold injury. The Panel put particular weight on the report of Dr Darwish, the treating neurosurgeon, due to the inherent expertise required by that specialty, the fact that he performed his assessment in the context of treatment rather than as an IME, and the fact that he saw Mr Yadko within three months of the subject accident. Dr Darwish, in his letter of 16 May 2019, reported symptoms in the left leg with paraesthesia. On examination he found that there was normal power and sensation but a positive sciatic nerve stretch test and an absent left ankle jerk (emphasis added). These findings indicated that a radiculopathy was present under the criteria listed in the Medical Assessment Guidelines (MAG). Their presence is supported by the findings on MRI which demonstrate compression of the S1 nerve root on the left by a disc prolapse. The Panel was therefore satisfied that radiculopathy was present due to injuries sustained in the vehicle. The Panel noted that to be non-threshold, radiculopathy only needs to have occurred at one time after the subject accident provided it is caused by that accident. Mr Yadko’s signs have subsequently been modified by his surgery, which was specifically intended to decompress the nerve root responsible for these findings (S1).
The findings at re-examination by Medical Assessor Stubbs would support current radiculopathy present in the left L5 dermatome, specifically loss of sensation in the L5 distribution and a positive traction sign (sciatic stretch test). The Panel was of the view that these findings relate to the surgery, which was in turn precipitated by injuries sustained in the accident.
In summary, the Panel considered there was evidence of some persisting radicular signs from the disc excision at L5 S1 but principally involved the left L5 nerve root. Possibly this was from epidural adhesions. The timing of the referral to neurosurgeon at three weeks post-accident corresponded with a disc injury from the accident. Surgery was not performed for six months which allowed plentiful opportunity for the disc to settle naturally. Persistent symptoms at this time would be an indication for surgery.

Right shoulder

The right shoulder problems were harder to determine on clinical examination. There was a clear difference between what he could do and what he allowed to be tested.
The radiology report was of a Hill-Sachs lesion (an indentation in the humeral head which is pathognomonic for anterior shoulder dislocation). This was not expected in a motor vehicle accident. His history was inconsistent, the shoulder complaint predated the accident.
The likely cause was prior dislocation and some functional instability of the glenoid.
A Hill-Sachs lesion is in fact a compression fracture of the posterior humeral head caused by impaction on the front of the glenoid as the humeral head dislocates anteriorly and tears off the labrum from the glenoid. Whilst this fracture is a dent in the bone rather than something broken off, the bone still broken and elicits a typical response on MRI.
There should be an increased marrow oedema signal from the repairing infraction which will typically persist for up to 12 months.
The MRI was performed four months after the accident, and it would be expected that the marrow oedema would be very prominent if the accident had caused the dislocation. There was in fact no marrow oedema and all one can speculate is that sometime in the past, at least 12 months before, Mr Yadko suffered a dislocation of the right shoulder. There was nothing to link this prior dislocation to the accident. Were there any recent injury which one would expect to see some kind of oedema signal coming from injured soft tissues? None was reported and the same logic concerning the absence of marrow oedema in the Hill-Sachs lesion applied to the detached anterior glenoid labrum. This too was old.

CONCLUSION

The Panel noted the submissions made by Allianz that Medical Assessor Berry’s approach to the issue of causation was erroneous, noting that the onset of symptoms isn’t the sole determinative factor for causation as per Coventry v Insurance Australia Ltd T/as NRMA Insurance [2019] NSWSC 1096 at [63].
Allianz highlighted that Medical Assessor Berry erred in not providing adequate or full reasons for his causation finding in relation to Mr Yadko’s lumbar spine injury despite:
(a) the radiological findings that do not evidence an injury to the nerves, a fracture or a complete or partial rupture of tendons, ligaments or cartilage concerning
Mr Yadko’s lumbar spine, and
(b) prior to the accident, on 6 February 2019, Mr Yadko complained of low back pain with the pain on the left thigh radiating to which he was referred for CT lumbar scan.
The review by the Panel is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to whether the injuries sustained in the motor accident were threshold or non-threshold as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen and Insurance Australia Ltd v Marsh.
The Panel adopts the reasoning in Lynch v AAI Limited [2022] NSWPICMP 6 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.
The Panel adopts the examination report of the Medical Assessor Stubbs. We are particularly reliant on the clinical expertise of the Medical Assessor who undertook the recent examination process and concluded that the accident did result in a non- threshold injury to Mr Yadko’s lumbar spine.
In respect of accepting that Mr Yadko had established causation of the lumbar spine injury, the Panel had considered the contemporaneity of onset of symptoms, the significance of the motor accident, radiological and medical imaging, and the various clinical records of treating practitioners. On the day of examination, there was marked tenderness to light palpation and some induced spasm to firm pressure.
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in cl 5.6 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 ...
(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.”
For Mr Yadko’s injuries to fall outside the definition of threshold injury in s 1.6, he would need to have two of the above signs. There was evidence before the Panel of two of the requisite signs for radiculopathy being detected both by Dr Darwish pre-operatively (positive sciatic stretch test and absent ankle reflex) and by Medical Assessor Stubbs on re-examination (positive sciatic stretch test and sensory disturbance in a dermatomal distribution). The Panel had complete confidence that since the accident in question, Mr Yadko has had and does have radiculopathy as defined by cl 5.6 of the MAG. The lumbar spine injury is non-threshold.
For the Panel to determine whether or not there were clinical signs justifying a determination that the injuries referred to the Panel were not threshold injuries in accordance with the guidelines, it must take into account the examination on the day and on this day, the examination of Mr Yadko observed by the Medical Assessor confirmed a non – threshold injury to the lumbar spine.
Mr Yadko’s claim for injury to the right shoulder was unsuccessful based on a variety of factors including the evaluation of the medical records of pre-existing symptoms, the lack of initial treatment following the accident, histories recorded by the doctors in the months following the motor accident, the nature of the accident and the likelihood of the natural progression of degenerative changes which was the likely explanation for the subsequent deterioration in symptoms.
The Panel revokes the certificate of Medical Assessor Berry, dated 24 January 2024, and substitutes the determination to certify that:
(a) the injury to the right shoulder was not caused by the accident, and
(b) the injury to the lumbar spine was caused by the accident and was not a threshold injury.

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Citations

Allianz Australia Insurance Limited v Yadko [2024] NSWPICMP 549

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

0

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

Coventry v Insurance Australia Ltd T/as NRMA Insurance [2019] NSWSC 1096

Lynch v AAI Limited t/as AAMI [2022] NSWPICMP 6

[2024] NSWPICMP 549

8 August 2024