Arhawi v QBE Insurance (Australia) Ltd
[2022] NSWPICMP 297
•20 July 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Arhawi v QBE Insurance (Australia) Ltd [2022] NSWPICMP 297 |
| CLAIMANT: | Rena Arhawi |
INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL: | Principal Member John Harris Medical Assessor Mohammed Assem Medical Assessor Drew Dixon |
| DATE OF DECISION: | 20 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 20 March 2020 when travelling in the front passenger seat on a roundabout when the insured vehicle entered from the left colliding with the claimant’s vehicle; this was a medical dispute about whether the claimant suffered a non-minor injury within the meaning of the Motor Accident Injuries Act 2017; the left shoulder ultrasound refers to an intramuscular haematoma; that pathology, taken some three months after the motor accident, is suggestive of acute injury because it shows recent bleeding and supportive of a recent tear consistent with the timing of the motor accident; the Magnetic resonance imaging (MRI) scan shows a full thickness tear of the supraspinatus tendon; that pathology is grossly inconsistent with the claimant being able to work as a cleaner; whilst this type of pathology is consistent with being caused by cleaning work, the nature of the type of pathology is inconsistent with being able to undertake such work; the nature of the motor accident is also consistent with a tear; the claimant had the seat belt over the left shoulder with the force of the motor accident directed into the passenger side, albeit rear door, of the vehicle; that type of impact was sufficient to place stress on the shoulder joint and capable of causing or aggravating a tear in the supraspinatus; further, the MRI scan showed degenerative changes within the shoulder joint; it is otherwise medically plausible that trauma is more likely to tear a degenerative joint; Held – original assessment revoked; finding made that claimant sustained non-minor injury to left shoulder. |
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 8 March 2022 and issues a new Medical Assessment Certificate determining that:
The left shoulder injury is NOT A MINOR INJURY for the purposes of the Motor Accident Injuries Act 2017.
REASONS
BACKGROUND
Ms Rena Arhawi (the claimant) suffered injury in a motor accident on 20 March 2020 when she was involved in a motor accident with the insured’s motor vehicle. Ms Arhawi was travelling in the front passenger seat on a roundabout when the insured vehicle entered from the left colliding with the claimant’s vehicle.
The insurer insured the driver of the other motor vehicle for liability to pay Ms Arhawi any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue presently in dispute is whether Ms Arhawi’s injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Menogue who issued a medical assessment certificate dated 8 March 2022. Medical Assessor Menogue determined that Ms Arhawi sustained 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”[2]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[3]
[2] Sections 3.11 and 3.28 of the MAI Act.
[3] Section 4.4 of the MAI Act.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by Ms Arhawi within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
On 14 April 2022, 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 Person 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.
The Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered
STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury 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.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act[10].
[10] See s 3B(2) of the Civil Liability Act, 2002.
ASSESSMENT UNDER REVIEW
Medical Assessor Menogue found that Ms Arhawi suffered soft tissue injuries to the cervical spine and lumbar spine and bruising to the abdomen which were a minor injury within the meaning of the MAI Act. The Medical Assessor also concluded that Ms Arhawi did not suffer injuries to the right and left shoulders in the motor accident.
Medical Assessor Friend provided a certificate dated 21 November 2021. The Medical Assessor concluded that the claimant did not sustain a psychological injury caused by the motor accident.[11]
SUBMISSIONS
Claimant’s submissions dated 11 August 2020[12]
[11] Insurer’s bundle, page 232.
[12] Claimant’s bundle, page 10.
The claimant noted that the injuries in dispute were the neck, both shoulders, lower back and abdomen. The CT scan of the cervical spine dated 29 May 2020 showing loss of disc height at C5/6 and C6/7 and the ultrasound of both shoulders dated 10 July 2020. The left shoulder ultrasound showed a chronic muscle tear.
It was submitted that these scans showed a non-minor injury.
Claimant’s submissions dated 13 September 2021[13]
[13] Claimant’s bundle, page 40.
The claimant referred to the certificate of capacity dated 23 April 2020 which noted left shoulder symptoms and that an ultrasound was eventually undertaken on 10 July 2020. The tear shown on the ultrasound was confirmed in an MRI scan dated 16 September 2020.
The claimant was referred to Dr Reitz who recommended, in a report dated 19 October 2020, left shoulder arthroscopy to repair the tear.
Claimant’s submissions dated 16 March 2022[14]
[14] Claimant’s bundle, page 46.
These submissions sought a review of the certificate issued by the Medical Assessor and asserted that the finding that the left shoulder was not injured in the motor accident was incorrect.
The claimant submitted that the Medical Assessor made inconsistent findings concerning whether the left shoulder pathology was pre-existing. The claimant relied on:
(a) the absence of pre-injury complaint of left shoulder problems noting that the clinical records date form 15 June 2010;
(b) the reference to left shoulder symptoms in the clinical records of the general practitioner on 23 March 2020;
(c) the reference to both shoulders being injured in the claim form dated 25 March 2020;
(d) the recorded complaint of left shoulder symptoms on 23 April 2020 which the general practitioner then thought related to the neck, and
(e) the left shoulder symptoms continued, and the general practitioner eventually referred Ms Arhawi for scans.
The common law test of causation had been established as there was “clear incontrovertible positive evidence which confirms the causal nexus” and “no evidence to the contrary”.[15] Further, the Medical Assessor failed to consider whether the motor accident was a contributing cause in the context that it could have been an aggravation or acceleration of an asymptomatic pre-existing condition.
[15] Claimant’s bundle, page 48.
The claimant otherwise submitted that the relevant guidelines referring to apportionment for pre-existing impairment should have been addressed. It was further suggested that the conclusion that the left shoulder tear was not caused by the motor accident should have been put to the claimant.
Insurer’s submissions dated 4 September 2020[16]
[16] Insurer’s bundle, page 5.
The insurer submitted the injuries sustained in the motor accident were soft tissue. It noted that Dr Stetrak referred to radiation of left arm pain in a certificate dated 22 June 2020 and Ms Yo diagnosed whiplash injury with bilateral shoulder pain.
The certificates refer to radicular pain. However, there is no satisfaction of the requirements of radiculopathy in cl 5.8 of the Guidelines.
The initial complaints of pain at hospital were minor and the claimant denied any cervical spine tenderness and ambulated independently. Any pathology shown on the radiology was pre-existing.
Insurer’s submissions undated[17]
[17] Insurer’s bundle, page 205.
These submissions were filed opposing the claimant’s application for a review.
The insurer noted that the claimant referred to the incorrect Guidelines which related to the assessment of permanent impairment under the Motor Accident Compensation Act, 1999 and should have referred to cls 5.1 to 5.12 of the relevant Guidelines.
The insurer submitted that the Medical Assessor provided clear reasons based on a thorough clinical examination. The Medical Assessor did not contradict himself and determined that the left shoulder tear was not caused by the motor accident.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents in accordance with the initial Direction.
Pre-accident medical records
The clinical records date from 15 June 2010.[18] Within the notes are several references to lumbar spine symptoms with radiating pain.[19]
[18] Insurer’s bundle, page 49.
[19] See for example, 27 January 2012 (Insurer’s bundle, page 47) and 21 February 2020 (Insurer’s bundle, page 36).
On 25 September 2015 the claimant reported neck and back pain affecting the right shoulder joint.[20]
[20] Insurer’s bundle, page 42.
A CT scan of the lumbar spine dated 5 February 2020 referred to a clinical history of right thigh pain and numbness in the L3 dermatome.[21] The radiologist concluded there was degenerative disc disease at L5/S1 with compression of the left L5 nerve root and minor disc bulges at L3/4 and L4/5.
Hospital records
[21] Insurer’s bundle, page 120.
Ms Arhawi attended the emergency department of Bankstown-Lidcombe Hospital following the motor accident. The history of the accident was: [22]
“She was the front passenger and her car sustained a direct hit in a T collision at a roundabout – the collision impact was on the rear door. Both vehicles were travelling at approximately 50 km/hr.”
[22] Claimant’s bundle, page 31.
The attending medical officer noted that Ms Arhawi was suffering from shock with a vague recollection of events. No obvious injuries were shown on examination with no cervical spine tenderness, some lumbar spine pain and ambulating independently.[23]
[23] Claimant’s bundle, page 32.
Police report
The police report referred to the accident on the evening of 20 March 2020 when the insured vehicle entered the roundabout and “collided with the rear nearside door” of the claimant’s vehicle.[24]g
[24] Insurer’s bundle, page 171.
Statements
Ms Arhawi completed a claim form on 25 March 2020 which noted injuries to the neck, both shoulders, lower back, abdomen and stomach.[25] A prior work injury to the low back injury was disclosed in the form.
[25] Claimant’s bundle, page 14.
Medical evidence
The clinical note of the general practitioner dated 23 March 2020 states:[26]
“Involved in MVA on Friday 20/03/2020, she was the passenger sitting beside the driver, going through the roundabout, another car hit her passenger side (rear door), she was shocked, unable to move, others helped her to get out, couldn’t stand on her legs
The broken glass hit her head, and was scared from that
Then developed neck pain, LT shoulder pain and lower abdominal pain, with headache and dizziness
The was taken to Bankstown hospital, had CXR, then released
Now has neck and lower back pain, legs pain, LT shoulder pain, lower abdominal pain
Fears from the accident with dizzy feeling”
[26] Insurer’s bundle, page 36.
The clinical note of 3 April 2020 noted ongoing neck pian “with radiation to LT shoulder and arm with numbness LT hand”.[27]
[27] Insurer’s bundle, page 36.
An Allied health recovery request dated 27 April 2020 for physiotherapy referred to a clinical assessment off whiplash injury with “neck and bilateral shoulder pain (associated burning in both hands)”.[28] The diagnosis was repeated in subsequent requests.[29]
[28] Insurer’s bundle, page 26.
[29] Insurer’s bundle, page 22.
A report by a rehabilitation consultant dated 4 June 2020[30] noted neck pain radiating to the left arm and lower back pain radiating to both legs.
[30] Insurer’s bundle, page 164.
A physiotherapy report dated 19 June 2020 noted a whiplash and lower back injury in the motor accident with treatment directed to increasing shoulder, cervical and lumbar spine range of motion as well as strengthening shoulder function.[31]
[31] Insurer’s bundle, page 230.
Dr Christopher Reitz, orthopaedic surgeon, provided a report dated 19 October 2020 after reviewing the MRI scan. The doctor recommended and performed a cortisone injection with excellent results. He otherwise noted that the hand numbness and pain in the first three fingers was consistent with carpal tunnel syndrome.
Radiology
An X-ray of the cervical and lumbar spine dated 23 March 2020 showed normal anatomical alignment and vertebral disc heights preserved. Degenerative changes were present at C6/7 and L5/S1.[32]
[32] Claimant’s bundle, page 34.
A CT scan of the cervical spine dated 29 May 2020 noted a clinical history of increasing neck pain with radiation to the left upper limb and numbness in the left hand.[33] The scan showed mild multilevel spondylosis with mild dis loss at C5/6 and C6/7. The radiologist concluded that there was no definite cause for the symptoms shown on the CT scan.
[33] Claimant’s bundle, page 35.
A bilateral ultrasound of the wrist and shoulders dated 10 July 2020 was suggestive of a chronic muscle tear of the left deltoid muscle with an intramuscular haematoma.[34] Further imaging was recommended.
[34] Claimant’s bundle, page 37.
An MRI scan of the cervical spine dated 16 September 2020 noted disc bulges at C5/6 and C6/7 with preservation of exiting nerves. The MRI scan of the left shoulder showed a full-thickness tear of the supraspinatus tendon associated with fluid in the subacromial subdeltoid bursa.[35]
RE-EXAMINATION
[35] Insurer’s bundle, page 228.
The Panel determined that Ms Arhawi be examined by Medical Assessor Dixon by audio-visual link on 13 July 2022. The examination report is as follows:
“This claimant was reviewed by Teams on July 13, 2022.
She reiterated the history of being a front seat passenger in a motor vehicle which was hit on the rear passenger side on a roundabout and that after the accident she had a neck strain injury with left shoulder brachialgia.
She ultimately found her way to an Orthopaedic Surgeon, Dr Reitz and an MRI scan was arranged on September 16, 2020 of the left shoulder which showed a full thickness tear of the supraspinatus.
On examination there was slight drooping of her left shoulder and she had difficulty elevating the arm above shoulder height. She indicated there was pain at the trapezius muscle and deltoid muscle as far as its insertion and some pain in the biceps groove.
Active abduction was 110 degrees, forward flexion 130 degrees, extension 40 degrees and adduction 30 degrees. External rotation was 80 degrees and internal rotation was 40 degrees. There appeared to be impingement on abduction.
She had a full range of motion of her other shoulder and both elbows, wrists, and hands and reported no discomfort in the right shoulder today but did report discomfort in her neck in the region of the left trapezius muscle.
Other matters she reported were that she has difficulty sleeping on the left shoulder due to pain and difficulty lifting and carrying heavy items including groceries, due to left shoulder brachialgia and difficulty hanging clothes on the line, and she now has a dishwasher. She finds it difficult at times to lift a teapot with her left hand as well as heavy cooking utensils.
In summary she was a front seat passenger in a motor vehicle accident which was rear ended on the left-hand rear side and she sustained a seatbelt injury to her left shoulder as well as a whiplash injury to her neck and has persisting shoulder brachialgia with trapezial muscle and deltoid pain with post traumatic stiffness as indicated above. There was some impingement on abduction consistent with her supraspinatus tear.”
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[36] and Insurance Australia Ltd v Marsh.[37]
[36] [2021] NSWCA 287 at [40], [41] and [45].
[37] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[38] that radiculopathy can be present at any time to satisfy the concept that the injury is not minor for the purposes of the MAI Act.
[38] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[39] that the claimant bears the onus of proof in establishing any injury is not a minor injury for the purposes of the MIA Act.
[39] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessor Dixon and adds the following reasons.
The factors against establishing causation include the claimant’s age because there is an increase in likelihood of intrasubstance tears with age. It is also correct, as Medical Assessor Menogue stated, that the nature of the claimant’s cleaning work is associated with this type of pathology.
However, there are various and stronger factors which in our conclusion establish that the supraspinatus tear was caused, or at least, aggravated by the motor accident.
We accept the claimant’s evidence that there were no left shoulder symptoms prior to the motor accident. There is a complete absence of left shoulder symptoms in the clinical notes prior to the motor accident. The absence of symptoms where there is a complete shoulder tear would be extremely unusual.
The general practitioner recorded left shoulder symptoms, albeit initially believed to be from the cervical spine, shortly after the motor accident. The left shoulder is also referenced as an injury in the claim form completed shortly after the motor accident. Accordingly, there is a contemporality of symptoms supportive of left shoulder injury.
The left shoulder ultrasound refers to an intramuscular haematoma. That pathology, taken some three months after the motor accident, is suggestive of acute injury because it shows recent bleeding and supportive of a recent tear consistent with the timing of the motor accident.
The MRI scan shows a full thickness tear of the supraspinatus tendon. That type of pathology is grossly inconsistent with the claimant being able to work as a cleaner. Whilst this type of pathology is consistent with being caused by cleaning work, the nature of the type of pathology is inconsistent with being able to undertake such work.
The nature of the motor accident is also consistent with a tear. The claimant had the seat belt over the left shoulder with the force of the motor accident directed into the passenger side, albeit rear door, of the vehicle. That type of impact was sufficient to place stress on the shoulder joint and capable of causing or aggravating a tear in the supraspinatus. Further, the MRI scan showed degenerative changes within the shoulder joint. It is otherwise medically plausible that trauma is more likely to tear a degenerative joint.
Dr Reitz performed a cortisone injection into the supraspinatus with reported resolution of symptoms. That successful treatment is consistent with the conclusion that the symptoms were coming from the left shoulder rather than the cervical spine. This conclusion is consistent with Medical Assessor Dixon’s recent examination that the current pain is from the supraspinatus rather than the cervical spine.
We otherwise observe that the diagnosis of whether there is discrete trauma to a shoulder as opposed to symptoms from the cervical spine can be problematic and open to differing interpretations by medical experts. There is no doubt that the general practitioner formed a view immediately following the motor accident that the left shoulder symptoms were emanating from the neck. However, the Panel’s conclusion is based upon a thorough review of the entire medical evidence, Medical Assessor Dixon’s examination[40] and an analysis of the impact from the motor accident.
[40] Impingement on abduction consistent with a supraspinatus tear.
For these reasons we are satisfied that Ms Arhawi suffered a tear of the left supraspinatus tendon caused by the motor accident. This is not a minor injury within the meaning of the MAI Act.
We finally observe that the claimant’s submissions at [30] herein are misconceived. The concept of deduction for pre-existing impairment is not relevant in assessing the nature of the injury sustained in the motor accident. Further, it would be wrong for a Medical Assessor to put a contrary medical diagnosis to an injured person and request a lay response to a medical question.
Other injuries
The prohibition in the MAI Act for ongoing statutory entitlements and/or the recovery of damages applies if the “only injuries resulting from the motor accident were minor injuries”.[41] Given our conclusion that the left shoulder injury was not a minor injury, it is unnecessary to consider the other injuries.
[41] See for example s 3.28(1)(b) and s 4.4.
However, we observe that there are no recorded observations of two clinical signs of radiculopathy either in the legs or in the arms. That observation is consistent with Medical Assessor Menogue’s findings.
CONCLUSION
For these reasons, the Panel concludes that the Medical Assessment Certificate should be revoked, and a new Medical Assessment Certificate issued. The new certificate is attached at the commencement of these Reasons.
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