Alonso v Allianz Australia Insurance Limited
[2023] NSWPICMP 57
•23 February 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Alonso v Allianz Australia Insurance Limited [2023] NSWPICMP 57 |
| CLAIMANT: | David Alonso |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Trudy Rebbeck |
| DATE OF DECISION: | 23 February 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered when the insured vehicle veered into the claimant’s lane of travel causing a collision; medical dispute about whether the motor accident caused a non-minor injury within the meaning of the Act; Panel concluded that the claimant suffered a non-minor injury to the right shoulder; shoulder scan taken in October 2020 showed a partial tear which was not present in the 2017 scan; the October 2020 scan also showed no muscle belly atrophy which is consistent with recent injury as it showed a lack of wasting; the claimant suffered from right shoulder symptoms consistent with the shoulder pathology; the mechanism of injury was consistent with the accident as the claimant’s right arm was outstretched and internally rotated whilst holding the steering wheel in the subject accident; Held – original assessment revoked; findings made that claimant sustained a non-minor injury to the right shoulder; order made for payment of some of the treatments claimed. |
DETERMINATIONS MADE: | |
Medical Assessment – Minor injury
Review Panel Assessment of Minor Injury
Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel revokes the certificate dated 22 July 2022 and certifies that the right shoulder injury caused by the motor accident is not a MINOR INJURY for the purposes of the Motor Accident Injuries Act 2017.
Medical Assessment –Treatment and Care
Review Panel Assessment of Treatment and Care and
Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel revokes the certificate dated 22 July 2022 and issues a new certificate determining that:
The following treatment and care:
· eight sessions of physiotherapy, and
· request by Dr Herald for subacromial and local injections.
IS REASONABLE AND NECESSARY in the circumstances.
The following treatment and care:
· eight sessions of physiotherapy;
· request by Dr Herald for subacromial and local injections;
· right shoulder arthroscopic stabilisation, labral repair or reattachment decompression and ligament transfer recommended by Dr Jonathan Herald;
· mattress request recommended by Dr Jonathan Herald, and
· request from Dr Herald for compound cream.
RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT.
Medical Assessment – Recovery
Review Panel Assessment of Recovery
Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel revokes the certificate dated 22 July 2022 and issues a new certificate that the following treatment and care:
· eight sessions of physiotherapy, and
· request by Dr Herald for subacromial and local injections.
Will improve the recovery of the claimant.
REASONS
BACKGROUND
Mr David Alonso (the claimant) suffered injury in a motor accident on 12 August 2020 (the motor accident). The accident occurred when the insured vehicle veered into the claimant’s lane of travel and caused a collision.[1]
[1] Claimant’s bundle, p 24.
The insurer is liable to pay to Mr Alonso any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issues presently in dispute are whether Mr Alonso’s injury is classified as a “minor injury” within the meaning of the MAI Act and whether various treatment is reasonable and necessary in the circumstances and caused by the motor accident.
The proposed treatment is:
· eight sessions of physiotherapy treatment;
· right shoulder arthroscopic stabilisation, labral repair or reattachment decompression and ligament transfer recommended by Dr Jonathan Herald;
· mattress request recommended by Dr Jonathan Herald;
· request from Dr Herald for subacromial cortisone and local injections, and
· request from Dr Herald for compound cream.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”, whether “any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24” and whether, for the purposes of s 3.28 of the MAI Act, treatment and care will improve the recovery of an injured person.
The claimant asserted that he sustained physical injuries caused by the motor accident to the cervical and lumbar spine, right shoulder and both knees.
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[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Cameron who issued a Medical Assessment Certificate dated 22 July 2022. Medical Assessor Cameron concluded that Mr Alonso sustained soft tissue injuries to the cervical and lumbar spine, right shoulder and both knees which are a minor injury for the purposes of the MAI Act.
Whether a person has only suffered minor 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 minor injuries”[3]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[4]
[3] Sections 3.11 and 3.28 of the MAI Act.
[4] Section 4.4 of the MAI Act.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by
Mr Alonso 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 assessment to the Review Panel (the Panel) as they were 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.[5]
[5] Section 7.26(5) of the MAI Act.
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[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[6] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
On 16 December 2022 the Panel issued a direction requesting the claimant to provide the scans of the right shoulder in 2017 and 2020 and advising of an examination with Medical Assessor Rebbeck. The Panel also noted and directed:
“The insurer has failed to file bundle of documents for the Panel’s consideration. The insurer is again directed to file its bundle by close of business, 22 December 2022 or advise the Commission through the Portal that it has no documents other than that filed by the claimant in its bundle. In the absence of a response, the insurer is on notice that the Panel will assume that there are no documents upon which it intends to rely other than those documents contained in the claimant’s bundle.”
On 16 January 2023 the Panel issued a further Direction which provided:
“The Panel notes the insurer has failed to file its bundle of materials relied upon on the Review despite our previous direction and follow-up enquiries from the case-officer.
The only material before the Panel is the bundle of documents filed by the claimant.
The medical examination will proceed on 19 January 2023.”
The insurer was also contacted by the case officer in respect of its bundle.
The insurer filed no bundle despite the requests.
The claimant also produced the 2017 and 2020 MRI scans of the right shoulder to the examination undertaken by Medical Assessor Rebbeck and subsequently to Medical Assessor Berry. The subsequent findings are partly based on both Medical Assessors having viewed the imaging films.
STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[10]
[10] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act[11].
[11] See s 3B(2) of the Civil Liability Act 2002.
Section 3.24 of the MAI Act relates to the provision of treatment and care. The section relevantly provides:
“(1) An injured person is entitled to statutory benefits for the following expenses (‘treatment and care expenses’) incurred in connection with providing treatment and care for the injured person—
(a)the reasonable cost of treatment and care,
….
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Section 3.24 provides that the issues of “reasonable and necessary in the circumstances” and whether any such treatment “did not relate to the injury resulting from the motor accident” are different concepts.
That conclusion is consistent with Schedule 2 of the MAI Act which defines a medical assessment matter as “whether any treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)” (emphasis added).
Clause 2 (b) of Schedule 2 of the MAI Act was recently amended with the inclusion of the words “or to be provided” into the provision. That amendment followed a previous Review Panel decision rejecting the proposition that there was power under the MAI Act to determine a claim for future treatment.[12] Accordingly, there is a clear statutory intention of a power due to the recent amendment.
[12] Obeid v AAI Ltd [2022] NSWPICMP 76 (Obeid).
Section 3.28 of the MAI Act provides that treatment and care ceases after 26 weeks where the person was mostly at fault or otherwise only received minor injuries. However, an exception to the cessation of payments is provided by s 3.28(3) which provides:
“(1) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
SUBMISSIONS
Claimant’s submissions
These submissions were filed seeking leave to review the certificate. The claimant submitted that Medical Assessor Cameron referred to the wrong date of injury (20 March 2021) when the relevant date was 12 August 2020. This may have influenced the opinion on causation because the claimant suffered injuries in 2017, 2020 and 2021.
The claimant submitted that the scan evidence of the right shoulder dated
13 November 2017 and 14 October 2020 were “very important scans”. This is because the second scan was taken three months after the motor accident and showed a right shoulder tear that was not present in the 2017 scan. The claimant submitted:[13]“The Claimant highlights that there was an MRI of the Right Shoulder conducted on 13 November 2017 following the Claimant’s first accident and that MRI reveals no partial-thickness insertional supraspinatus tear as at that time. However, in the subsequent MRI dated 14 October 2020, just 3 months after the subject accident, the partial thickness international supraspinatus tear is detected. The only conclusion available is that the Claimant sustained that pathology in the subject accident.”
[13] Claimant’s bundle, p 3, paragraph 2.10.
It was also submitted that the Medical Assessor speculated on causation and failed to put unspecified inconsistencies to the claimant.
Insurer’s review dated 1 December 2020[14]
[14] Claimant’s bundle, p 214.
The insurer described in detail the medical evidence. It did not accept that the right shoulder tear was caused by the motor accident. The insurer noted that the claimant was complaining of radicular symptoms but had not established two signs of radiculopathy pursuant to cl 5.8 of the Guidelines.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
Mr Alonso was involved in a previous motor accident on 10 July 2017. The claimant was then stationary at lights and hit from behind at low speed. He reported symptoms for approximately 15 months before returning to unrestricted full employment duties.[15] At the time of the subject motor accident, Mr Alonso reported occasional pain in the right shoulder and back.
[15] Claimant’s bundle, p 42.
A medical certificate dated 19 July 2017 referred to cervical spine pain WAD II, lumbar spine pain and bilateral shoulder pain.[16]
[16] Claimant’s bundle, p 497.
On 2 August 2017 Dr Jonathan Herald, orthopaedic surgeon, noted neck and back pain radiating to both shoulders.[17] Examination of the shoulders showed full range of motion, grade 5 power in the rotator cuffs and negative impingement signs. On 20 October 2017 the doctor noted increasing shoulder pain with full range of movement. MRI scans of the neck showed spondylotic changes with multiple tears and L1/2 and L5/S1 disc herniation.[18]
[17] Claimant’s bundle, p 305.
[18] Claimant’s bundle, p 310.
The MRI scan of the right shoulder dated 13 November 2017 is reported as showing subacromial/subdeltoid bursitis with the tendons of the rotator cuff and other tendons appear normal.[19]
[19] Claimant’s bundle, p 7.
On 20 November 2017 Dr Herald noted the MRI scan of the right shoulder which showed early arthritis and some subacromial bursitis. The doctor recommended a cortisone injection.[20]
[20] Claimant’s bundle, p 316.
On 26 February 2017 Dr Herald provided a quotation for right shoulder arthroscopy.[21] The doctor noted that the shoulder had a full range of movement but there were features of a labral tear and a SLAP lesion and recommended arthroscopy.[22]
[21] Claimant’s bundle, p 324.
[22] Claimant’s bundle, p 327.
The claimant returned to Dr Herald on 23 September 2019[23] complaining of ongoing right shoulder pain affecting gym and work. The doctor opined that the claimant had a SLAP lesion which had not healed and recommended shoulder arthroscopy and a labral repair of the biceps tenodesis.
[23] Claimant’s bundle, p 340.
Medical evidence
The ambulance report recorded nausea, neck and back pain post moderate speed motor accident.[24]
[24] Claimant’s bundle, p 63.
The emergency department discharge record referred to neck and low back pain with paraesthesia to both lower limbs posteriorly.[25] There was no reported weakness or loss of sensation in the upper and lower limbs. A CT scan of the cervical spine dated
12 August 2020 showed no fracture with minor degeneration at C3/4.[26][25] Claimant’s bundle, p 33.
[26] Claimant’s bundle, p 36.
A certificate dated 14 August 2020 certified that the motor accident caused the following injuries:[27]
·cervical spine – whiplash associated disorder grade ? II/III;
·right shoulder impingement syndrome;[28]
·lumbar spine – mechanical low back pain, and
·bilateral knees – patella femoral joint impact.
[27] Claimant’s bundle, p 28.
[28] Claimant’s bundle, p 38.
The clinical notes of the general practitioner on 14 August 2020 noted neck and low back pain, bilateral knee pain and bilateral shoulder discomfort with right shoulder discomfort radiating to right upper limb.[29] Testing of the right shoulder revealed positive O’Brien’s test and Hawkin’s impingement test. These tests were negative on the left-hand side.
[29] Claimant’s bundle, p 30.
Radiology
The X-rays of the cervical spine, both shoulders and lumbar spine dated 12 October 2020 were normal.[30]
[30] Claimant’s bundle, p 69.
The MRI scan of the lumbar spine dated 13 October 2020 showed a disc herniation at L5/S1 contacting the right S1 nerve root.[31]
[31] Claimant’s bundle, p 71.
The MRI scan of the right shoulder dated 14 October 2020 showed a partial thickness insertional supraspinatus tear with no muscle belly atrophy.[32]
[32] Claimant’s bundle, p 8.
The MRI scan of the left shoulder dated 14 October 2020 showed supraspinatus tendinosis and subacromial bursitis.[33]
[33] Claimant’s bundle, p 75.
The MRI scan of the cervical spine dated 15 October 2020 showed small annular fissure and disc protrusion at C6/7 which had the potential to compress the C7 nerve roots.[34]
[34] Claimant’s bundle, p 77.
On 3 November 2020 the claimant underwent right C4/5 and C5/6 injections.[35]
[35] Claimant’s bundle, p 61.
Dr Herald
Dr Jonathan Herald, orthopaedic surgeon, has provided a series of reports.
Dr Herald initially examined the claimant on 31 August 2020.[36] The doctor noted a previous right shoulder injury from which there had been recovery. Examination findings were lumbar spine tenderness, cervical spine pain with non-verifiable radicular complaints, and restricted shoulder movement. There was a mildly positive O’Brien’s test particularly on the right.
Dr Herald assessed bilateral SLAP lesions with whiplash injury to the cervical and lumbar spine.[36] Claimant’s bundle, p 166.
On 29 October 2020, Dr Herald noted a positive Spurling’s test to both upper limbs. After noting the recent MRI scans the claimant was referred to a neurosurgeon.[37]
[37] Claimant’s bundle, p 59.
On 30 October 2020, Dr Nair, surgeon noted discogenic low back pain with bilateral radicular symptoms and cervical disc herniation with right upper extremity radicular symptoms. Right C4/5 and C5/6 injections were recommended. The doctor noted “two plus upper extremity hyporeflexia” with no pathological upper extremity reflexes and features of right cubital tunnel syndrome.[38]
[38] Claimant’s bundle, p 79.
On 16 November 2020 Dr Herald noted back, neck and right shoulder pain. Recent cortisone injection reduced shoulder symptoms by 40%. The doctor recommended shoulder arthroplasty and an Orthokinetic Octavia mattress to support the neck and back at night and prevent nocturnal pain.[39]
[39] Claimant’s bundle, p 81.
A request by the physiotherapist for an orthopaedic mattress for sleeping was also made at that time.[40]
[40] Claimant’s bundle, p 188.
On 10 December 2020 Dr Herald noted neurological symptoms in both upper limbs and impingement in both shoulders.[41]
[41] Claimant’s bundle, p 58.
On 1 February 2021 Dr Herald noted a “lot of pain” in the shoulder radiating to the neck.[42] The doctor recommended injections and “compounded some creams” due to concern about long term medications. Ongoing physiotherapy and home exercises were recommended.
[42] Claimant’s bundle, p 268.
Qualified evidence
Dr Uthum Dias, physician, was qualified by the claimant and provided a report dated
5 March 2021.[43] On examination Dr Dias noted findings consistent with a right C6 radiculopathy based on a sluggish right-sided biceps reflex and reduced sensation.[44] No other neurological signs were evident. Right shoulder examination showed tenderness over the anterior and lateral aspects of the right glenohumeral joint with reduced abduction, flexion, internal rotation and extension. There was full range of external rotation and adduction. The knees were normal on examination.[43] Claimant’s bundle, p 38.
[44] Claimant’s bundle, p 48.
Lumbar pain examination showed reduced sensation in the right and left S1 dermatomes and reduced straight leg raising. There were no other objective motor or sensory deficits.
Dr Dias diagnosed persistent aggravation of cervical spondylosis with a right C6 radiculopathy, secondary to an acute strain associated with a C6/7 disc protrusion, S1 radiculopathies associated with a L5/S1 disc protrusion and right shoulder impingement secondary to a partial thickness supraspinatus tendon tear. Injuries to the left shoulder and both knees had resolved.
Claim form
Mr Alonso completed a claim form dated 2 September 2020 noting his birth year in 1989.[45] The claimant stated the motor accident caused injuries to the neck, back, both knees, both shoulders and right arm.
[45] Claimant’s bundle, p 23.
Statement evidence
The insured provided a statement which provided an alternative explanation of the accident, specifically, that the claimant changed lanes and caused the collision.[46]
[46] Claimant’s bundle, p 228.
Subsequent motor accident – March 2021
The claimant was involved in a subsequent motor accident in March 2021 when the car was travelling on the M1 motorway from Newcastle at speed and rolled over.[47] Hospital notes recorded a history of motor vehicle accident nine months previously with associated right shoulder pain.[48] Pain was noted to the cervical spine and right arm radiculopathy.
[47] Claimant’s bundle, p 281.
[48] Claimant’s bundle, p 282.
Dr Stan Levy, neurologist, provided a report dated 21 May 2021.[49] The doctor noted that the major problem following the 2020 motor accident was right shoulder pain. The March 2021 motor accident caused neck and back pain. Neurological examination was then normal. Right upper limb symptoms could be due to cervical radiculopathy or brachial plexopathy.
[49] Claimant’s bundle, p 94.
On 24 June 2021, Dr Choong, neurologist, reported that upper limb nerve conduction study was normal.[50] On 23 July 2021, the doctor also reported that right upper limb EMG studies were normal with no electrophysiological evidence of right cervical nerve root impingement, brachia plexus lesion (particularly at C6) or peripheral nerve entrapment.[51]
[50] Claimant’s bundle, p 96.
[51] Claimant’s bundle, p 98.
On 21 April 2022 Medical Assessor Sidorov found that the claimant was suffering from post-traumatic stress disorder caused by the March 2021 motor accident.[52]
[52] Claimant’s bundle, p 567.
RE-EXAMINATION
The Panel determined that Mr Alonso be examined by Medical Assessor Rebbeck on
19 January 2023.The re-examination report is as follows:
“History
1. Pre-accident medical history and relevant personal details
Mr Alonso stated that he lives at home with his wife and 3 children. Prior to the subject accident, he worked full time as I understand for his own construction business.
Prior to the subject accident, Mr Alonso was involved in an accident in 2017. He stated this was a minor accident and he did experience some neck and low back pain. He had some time off work, then recovered after a few weeks. He stated he was fully recovered prior to the subject accident.2. History of the motor accident
Mr Alonso told me that he was involved in the first motor vehicle accident on 12 August 2020. He stated that he was rear-ended by another vehicle. He recalled that he was holding the steering wheel with his right arm outstretched and internally rotated and felt the impact in his neck and right shoulder.
He was taken by ambulance to Bankstown hospital.3. History of symptoms and treatment following the motor accident
Emergency
Mr Alonso said that he was discharged from Bankstown Hospital later that day after being cleared of fracture.
General practitioner
Mr Alonso said that he atttended his GP approximatley 2 days after the accident. He stated that he was provided with medicaitons (mobic) and referred for physiotherapy.
Physiotherapy
Mr Alonso said he attended physiotherapy that same week. He recalled that he received physiotherapy care twice per week for a few months, then this reduced to once per week. Treatment was provided for neck pain, shoulder pain. He stated that he felt temporary improvement from physiotherapy, but symptoms became aggrivated when he used his shoulder again (e.g lifting).
Specialist Medical
When he expereinced a second flare up, he was referred for scans and to a neurologist (for his headache).4. Details of any relevant injuries or conditions sustained since the motor accident
Mr Alonso stated that a few months later, he was involved in a second car crash (March 2021). This time he was travelling to his property in Stroud when it was heavily raining (when Sydney experienced the significant floods). When driving home on the motorway (at Mount White) he lost control and the car rolled. He was unable to open the door and as I understand had to be extracted from the vehicle. He was taken to Royal North Shore Hospital by ambulance and was admitted for 5 nights. He stated he experienced exacerbation of his neck pain and shoulder pain but additionally was diagnosed with a neck injury and low back pain.
Physiotherapy
Mr Alonso returned to physiotherapy and continued treatment
Psychology and Psychiatry
Mr Alonso was also referred to a psychologist and psychiatrist. He stated that he was diagnosed with post traumatic stress disorder and experienced symptoms including flashbacks and nightmares.
Orthopaedic surgeon
Mr Alonso was referred to an orthopaedic surgeon for an opinion on his shoulder. He was told that surgery may reduce his shoulder pain and could be indicated.
Neurologist
He was referred to a neurologist for his arm pain and paraesthesia. He stated that “nerve studies” (meaning nerve conduction studies) were undertaken. As I understand, these were normal. He was referred for a cortisone injection into his neck. This did not help any pain, neither arm, neck or shoulder pain.
When asked to estimate global perceived recovery after each accident, Mr Alonso stated he felt 40% better or improved/ recovered (scale 0% not recovered at all à 100% completely recovered) after the subject (2020) accident. He then got worse after the 2021 accident and now feels he has regressed to 10% recovered.
He felt the neck and shoulder pain were caused by the 2020 accident and exacerbated in the 2021 accident. He also felt the head injury, and psychological distress were caused by the second accident.5. Current symptoms
Mr Alonso completed a body chart which indicates where her current symptoms are. He described her current symptoms as follows:
· Neck pain, constant, also feels stiff. This stops him sleeping well and he wakes several times a night
· Headache that is constant and associated with blurred vision, tinnitus and dizziness
· Right sided arm pain “feels like a nerve pain” that extends to his right sided little finger
· Low back pain
· Bilateral posterior leg pain
· Right sided anterior shoulder pain that feels “different” to his neck and arm pain.
Neck pain is aggravated by driving and neck rotation. His shoulder pain is aggravated by lifting his arm, putting his hand behind his back and lifting heavy things.
Current function
Mr Alonso stated that before the accident he would go to the gym 3-5xper week. Currently he goes to the gym with the physio but is limited in what he can do.
He is not able to work in his construction business. He feels his concentration and memory is also affected; hence paper and computer work are difficult. Physical work is limited by his low back pain and shoulder pain.
Questionnaires and beliefs
Mr Alonso completed the following questionnaires after the examination.· Neck Disability Index. He scored 32/50. This indicates moderate to severe disability due to neck pain
· The Orebro Musculoskeletal Pain Screening Questionnaire. He scored 83/100. This indicates a moderate risk of poor outcome. Of note he scored more than 5/10 on the following items
o item 2-pain intensity 8/10
o item 7- risk of persistent pain- score 8/10
o item 8- chance of resuming normal activities- score 10/10, indicating he does not feel confident he'll be working her normal duties in three months
o item 9- beliefs about pain – score 8/10, indicating pain means he should stop what he's doing until pain decreases.
· Shoulder Pain and Disability Index.
o 38/50 – 76% for pain
o 53/80 – 66.25% for disability
o 91/130 – 70% overall
Imaging brought to the assessment
· MRI Right shoulder dated 12 November 2017. This indicated:
o Report: Synovitis with fluid and synovial thickening seen in the inferior axillary recess. Early degenerative change with mild intra-articular osteophytosis arising from the humeral head. Linear cyst at the junction of the posterior superior labrum measuring 4 mm may be the result of paralabral cyst from previous injury. Mild intrasubstance signal abnormality in the labrum at this point. Subacromial/subdeltoid bursal thickening. The tendons of the rotator cuff appear to be intact. The biceps tendon and biceps anchor are normal.
o Comment: Subacromial/subdeltoid bursitis. Synovitis. Small paralabral cyst seen posteriorly.
· MRI right shoulder dated 14 October 2020
oFindings: Scanning from the open scanner due to claustrophobia. There is a partial-thickness anterior footprint/insertional bursal side tear 5mm mediolateral x 5mm anteroposterior. There is no muscle belly atrophy. There is subacromial bursitis in particular a focally thickened area deep to the acromion. There is minimal AC joint OA. There is no outlet obstruction.
Infraspinatus and teres minor appear intact. Subscapularis appears intact.
The biceps labral complex is intact. The inferior labrum, anterior and posterior, is degenerate and attenuated. Articular cartilage cover does appear compete. There is however a large inferior osteophyte.oConclusion:
§Partial-thickness insertional supraspinatus tear. No muscle belly atrophy.
§Subacromial bursitis
§Articular cartilage cover appears complete but with prominent humeral head osteophyte.
6. Current and proposed treatment
The current and proposed treatment to be considered in this assessment are listed below. In summary proposed treatment includes physiotherapy, orthopaedic surgery, provision of topical creams and provision of a mattress.
Clinical Examination
7. General presentation
Mr Alonso presented in a consistent manner. There were no inconsistent mannerisms or inconsistent behaviour.
8. Cervical spine (cervicothoracic)
There was reduced range of cervical motion as indicated in the Table below.
Cervical movement Active Range Comments Flexion 20° Reduced and painful (neck pain and headache) Extension 30° Reduced and painful (neck pain and headache) Left lateral flexion (side bending) 25° normal range of motion for age Right lateral flexion (side bending) 25° normal range of motion for age Left rotation 40° Reduced and painful- neck pain Right rotation 20° Reduced and painful- neck pain
9. Lumbar spine (lumbosacral)
There was reduced range of motion in the lumbar spine in all directions. Lumbar flexion was hands to mid shins (usually to floor), lumbar extension was 20 degrees and increased pain. Lumbar left and right lateral flexion were reduced to 25% of normal range.
10. Shoulder
Shoulder range of motion was reduced on the right as indicated in the table below.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 90° 140° Extension 20° 50° Abduction 90° 140° Internal Rotation Hand behind back to L5 Hand behind back to T12 External Rotation 30° 45°
Further testing of the shoulder revealed full passive range of motion when tested supine. This is undertaken carefully when the patient was supine. This information would suggest that there is no injury to the passive (joint) structures in the shoulder.
The Hawkins Kennedy and O’Briens tests were positive.
Resisted static contractions of the shoulder external rotators, internal rotators, flexors and extensors were weak in all directions.11. Neurological assessment.
A neurological assessment was undertaken for both the lower and upper limbs.
· Lower limb neurological examination. There were normal reflexes, normal dermatomal sensation, and normal myotomal strength exhibited.
· Upper limb neurological examination. There were normal reflexes, normal dermatomal sensation, and normal myotomal strength.
There was some pain reported during muscle testing of the myotomal strength in the right upper limb. I undertook this examination very carefully to minimise the pain. Hence, pain may have reduced the ability for Mr Alonso to resist the muscle tests fully. Hence, mild weakness was observed, however this was not myotomal in nature but was consistent across all muscles tested.
There was no observed muscle wasting in the upper or lower limbs.
Comments on consistency
Mr Alonso presented in a consistent manner, with no obvious illness behaviour. He was able to perform all of the active movements consistently. There was pain during movement and reported pain during the testing. However, every attempt was made to minimise the discomfort to obtain the information required for this assessment.
OPINION on DIAGNOSIS
Diagnoses are consistent with1. Whiplash associated disorder grade II (causing neck pain). WAD grade III can be excluded due to a normal neurological examination and normal nerve conduction studies (in the documentation).
2. Mild rotator cuff tendinopathy and or sub acromial impingement causing the right shoulder pain. This opinion is based on:
a.SYMPTOMS- That the right shoulder symptoms are felt anteriorly. This area is commonly reported as symptomatic by people with shoulder pathology. These symptoms are considered by Mr Alonso to be separate to the neck and arm symptoms. The behaviour of the right anterior shoulder pain is consistent with a shoulder diagnosis, in that shoulder actions (lifting arm elevation) exacerbate this pain. In contrast, different activities (eg neck rotation and driving) aggravate the neck pain.
b.DISABILITY. The cores on the Shoulder Pain and Disability Questionnaire (SPADI) indicated that there is significant self-reported disability due to the shoulder.
c.DYSFUNCTION evident in the PHYSICAL EXAMINATION. The reduced shoulder ROM, positive impingement tests of the shoulder and the weakness when contracting shoulder rotator cuff muscles observed during the physical examination are consistent with discrete shoulder pathology.
d.IMAGING. The findings of the MRI taken after the subject accident indicate mild sub-acromial bursitis and partial thickness tear of the rotator cuff tendon, which is consistent with the symptoms and physical examination findings above.
e.MECHANISM. It is more probable than not that a compressive force could have occurred to the shoulder when the right arm was outstretched and internally rotated whilst holding the steering wheel in the subject accident.
CAUSATION
Due to the five reasons above, in my opinion the right shoulder is more likely than not to have been caused by the subject (2020) accident and exacerbated in the 2021 accident. This would therefore be considered non-minor in nature due to the tendinopathy diagnosis.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor 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[53] and Insurance Australia Ltd v Marsh.[54]
[53] [2021] NSWCA 287 at [40], [41] and [45].
[54] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[55] that radiculopathy can be present at any time to establish that the injury is not minor for the purposes of the MAI Act.
[55] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[56] that the claimant bears the onus of proof in establishing that any injury is not a minor injury for the purposes of the MAI Act.
[56] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the extremely detailed examination report of Medical Assessor Rebbeck and adds the following brief further reasons.
Low back injury
We accept that the low back was injured in the motor accident based on the claimant’s evidence, the contemporaneous hospital and ambulance note and the initial report to the general practitioner.
There is no evidence of traumatic injury involving an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The MRI scan of the lumbar spine shows degenerative changes. The reference to previous history of some back pain does not alter our view that there was injury to this body part.
There is no evidence of radiculopathy as defined in cl 5.8 in either the clinical notes or on the examination recorded by the Medical Assessor.
Cervical spine injury
We accept there was a soft tissue injury to the cervical spine probably involving an aggravation of degenerative changes at C5/6. We do not accept that there was traumatic injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The conclusion of neck injury is based on the claimant’s evidence and the early reporting of symptoms.
There are no recorded observations of two signs of radiculopathy as defined in cl 5.8 of the Guidelines. The clinical notes refer to symptoms of radicular pain. These are not signs of radiculopathy as defined because they are not described as relating to a specific dermatome.
Based on the examination findings of Medical Assessor Rebbeck, Mr Alonso did not have radiculopathy at the recent examination.
For these reasons we conclude that Mr Alonso has not satisfied, at any time, two clinical signs of radiculopathy pursuant to the Guidelines.
Right shoulder
Whilst there was no recorded right shoulder complaint to the ambulance officer or at the hospital, the general practitioner noted right shoulder pain and impingement on
14 August 2020, that is two days following the motor accident. It is medically plausible that the symptoms may not develop immediately and can develop within days of the motor accident. Reasons for this include adrenalin rush which assist an injured person in coping with the shock of an accident.The testing undertaken by the general practitioner on 14 August 2020 showed a positive O’Brien’s test and Hawkin’s impingement test in the right shoulder. This is also consistent with the motor accident having caused injury by way of trauma to the supraspinatus.
The 2017 MRI scan did not show a partial tear which was present in the October 2020 scan. The imaging has been viewed by the Medical Assessors on the Panel and they agree with the comments of the radiologists that the supraspinatus tear was present in October 2020 scan and not present in the 2017 scan.
The 2020 MRI scan showed a partial thickness insertional supraspinatus tear with “no muscle belly atrophy”.[57] The absence of muscle belly atrophy is consistent with recent injury as it shows a lack of wasting. This is consistent with the injury causing the partial tear in the preceding months as there was insufficient time for wasting to have occurred in the presence of a partial tear.
[57] Claimant’s bundle, p 8.
The symptoms described by the claimant and observed by Medical Assessor Rebbeck is consistent with a tear of the supraspinatus. The examination findings of loss of range of movement and shoulder weakness are all consistent with the reported pathology of a partial supraspinatus tear.
The claimant provided a description of the mechanism of the injury to the shoulder and noticed a right shoulder sensation when the motor accident occurred. We accept that it is medically plausible that by placing himself in a brace position, the motor accident could impose forces through the shoulder resulting in a partial tear.
There has been a consistent continuity of complaint of right shoulder symptoms since the motor accident and an absence of alternative explanation for the partial supraspinatus tear.
For these reasons we accept that the claimant has established that the partial supraspinatus tear was caused by the motor accident. This is not a minor injury as a partial tear of a tendon falls within the exclusion of the term in s 1.6(2) of the MAI Act.
Other injuries
The bilateral knees and left shoulder injuries have resolved. There is no evidence that the injury to these parts was anything other than a soft tissue injury as defined by the MAI Act.
Reasonable and necessary in the circumstances
Mr Alonso is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[58], Grove J stated:[59]
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be "reasonably necessary" there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”[58] [2003] NSWCA 52 (Clampett).
[59] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[60]
[60] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[61] They include:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[61] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
The claimant has sought approval for a number of treatments. In keeping with treatment disputes where there is a number of modalities referred to a Medical Assessor and subsequently to a Panel, the assistance from the parties on the various disputes is limited.
We accept that the claim for physiotherapy and shoulder injections are both reasonable and necessary. Our conclusion is based on the examination findings of Medical Assessor Rebbeck and the medical expertise within the Panel that the conservative treatment is appropriate and could be effective.
We do not accept that the proposed shoulder surgery at this stage is necessary although it is probably reasonable. Our view is that the claimant should undergo the proposed conservative treatment approved above.
Further, the claimant has some movement of the right shoulder and can lift his arm. The proposed surgery for a partial, as opposed to a complete tear, in the absence of exhausting conservative alternatives may be problematic. We are not convinced that the proposed surgery is necessary at this stage until conservative treatment has been exhausted.
We do not accept that the compound cream is necessary as we do not accept that it will be therapeutic. This view also applies to the provision of an orthopaedic mattress.
Does the proposed treatment relate to the injury resulting from the motor accident
The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson[62]. These principles are well settled and equally apply to the causal relationship of treatment under the MAI Act by reasons of the same statutory language.
[62] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[63] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[63] [2018] NSWSC 1710 at [29] (Phillips).
We have explained why the motor accident caused the partial tear of the supraspinatus. The various suggested treatments are either to treat the symptoms from the tear or to treat the tear.
In those circumstances the various treatments are all caused by the motor accident.
Recovery
It is strictly unnecessary to consider this medical dispute as we have found that the claimant sustained a right shoulder tear which is not a minor injury. Accordingly, the requirement that the treatment “will improve the recovery of the injured person” within the meaning of s 3.28(3) only applies when the claimant has only sustained minor injuries.
However, for completeness, the Panel, using its medical expertise, is satisfied that both the physiotherapy and injections will improve the recovery of the claimant.
CONCLUSION
For these reasons, the Panel concludes that the certificates issued by Medical Assessor Cameron are revoked. The new certificates are attached at the commencement of these Reasons.
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