Bachir v Youi Pty Limited
[2024] NSWPICMP 182
•28 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Bachir v Youi Pty Limited [2024] NSWPICMP 182 |
| CLAIMANT: | Batool Bachir |
| INSURER: | Youi Pty Limited |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Les Barnsley |
| DATE OF DECISION: | 28 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for review under section 7.26 of Medical Assessor (MA) Menogue’s assessment of a threshold injury dispute; claimant injured in T-bone type accident on 14 November 2022, claimant 20 at the time; she alleged injuries to neck, lower back and right arm; MRI within two weeks of the accident revealed a C5/6 disc bulge and annular tear; MA determined all injuries threshold on the basis no radiculopathy and that there was no evidence of a specific injury to the cervical spine; parties agreed only issue in dispute was causation of the bulge and tear; insurer relied on studies that said young people can have annular tears and they can be asymptomatic; insurer’s submissions also raised issue with any injury to neck and existence of annular tear; the Panel was satisfied on the contemporaneous documents there was a neck injury; the Panel was satisfied on the basis of the MRI report and without seeing the images (which were unavailable) that the claimant sustained an annular tear at the C5/6 level; the Panel was satisfied the annular tear was caused by the accident; test of causation discussed and Briggs v IAG t/as NRMA Insurance applied; Held – MA Menogue’s certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Menogue dated 14 November 2022. 2. Certifies that the cervical spine injury sustained by Ms Bachir is not a threshold injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Batool Bachir was involved in a motor accident on 14 November 2022. She was driving her car when another car turned right in front of her and a t-bone type collision occurred between that car and the passenger side of her vehicle.
The claimant says she injured her neck, lower back and right arm in the accident and made a claim for statutory benefits against Youi, the third-party insurer of the vehicle that she says caused her accident.
A medical dispute about whether any of the claimant’s injuries were not threshold injuries has arisen in connection with that claim and Ms Bachir referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 1 September 2023, Medical Assessor Menogue determined that all of Ms Bachir’s injuries were threshold injuries.
The claimant then lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 2 November 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 7 November 2023 the President’s delegate convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
General
Ms Bachir’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident (for injuries before
1 April 2023) and cannot recover damages.
Threshold injury
A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue 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.”
If a person injured in a car accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2) (highlighted in italics in paragraph 8 above), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act.
It appears settled (from the decisions published by the Commission) that a tear of the annulus fibrosis in any of the discs of the spine would be the “complete or partial rupture of” tissue and would therefore be a non-threshold injury if caused by the accident.
Dispute resolution
If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[1]
[1] Schedule2, cl 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Menogue’s, further medical assessments and the review of medical assessments by this Panel.[2]
[2] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Menogue examined the claimant on 24 August 2023 and issued his certificate on 1 September 2023. He confirms at [2] that he was asked to assess the following injured parts of Ms Bachir’s body:
(a) lumbar spine;
(b) cervical spine annular tear and disc bulge;
(c) right hand, and
(d) right shoulder.
The claimant lives at home with her family and denied at [8] a history of previous injuries or conditions. She did admit to psychological problems as a teenager. The claimant said she was taking Voltaren most nights for her right shoulder pain and Panadeine Forte two to three times a week for breakthrough pain.
Medical Assessor Menogue takes a history of the accident at [9] noting Ms Bachir was wearing a seatbelt and her airbags deployed and the car was towed.
The claimant reported at [10] her treatment history. She said she was taken to Liverpool Hospital where she was assessed and observed before discharge the same day. She then saw Dr Dimitri in Bankstown her usual general practitioner (GP) before going to see Dr Al-Zabin on 25 November 2022 at a new medical practice closer to home. She had investigations, medication and physiotherapy.
The claimant recounted at [11] an incident with her right hand when she had slammed a door and caught her right hand in the door. She accepted this was not related to the accident and said at [12] that in any event the symptoms had resolved.
The claimant’s current symptoms were stated to be:
(a) cervical spine – a low right sided ache which she considered was “connected to the shoulder” in that the pain started in the right shoulder and extended to the neck. There was no pain from the shoulder to the right arm, but she did have sensory changes of numbness over the right arm stopping close to the elbow;
(b) right shoulder – Ms Bachir said she had no pain at rest however had discomfort with arc and elevation. The pattern of neck pain was in the trapezius muscles, and
(c) lumbar pain – intermittent, mid-line low back ache with discomfort on rotation but no pain or sensory changes in the lower limbs.
On examination it is recorded at [15] that there was some discomfort in the right trapezius but no guarding or spasm and no dysmetria of neck movements. There were no neurological deficits in the upper limbs.
In the lumbar spine there was some discomfort at the L4/5 level, no dysmetria, no guarding and no spasm. There were no neurological deficits.
In the shoulders the right range of motion was restricted.
After considering the evidence and radiology, the Medical Assessor diagnosed at [21]:
(a) a right shoulder injury with a spread of discomfort in the right side of the neck, and
(b) low back pain.
He notes “none of the documents studied have recorded two or more signs of radiculopathy” and that there were no signs of radiculopathy at his examination in either the upper or lower limbs. He also said, “there is no evidence of a primary or isolated injury to the cervical spine or the right hand therefore no diagnosis can be made.”
He found at [23] that the right shoulder and lumbar spine injuries were soft tissue injuries and that a neck injury and right-hand injury were not caused by the accident.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant’s submissions deal with the cervical spine injury and the Medical Assessor’s finding that the cervical spine was not injured in the accident on the basis of the clinical history of right shoulder pain.
The claimant says there is contemporary evidence of a neck injury as follows:
(a) the hospital records note complaints of left lateral neck pain with a cervical spine whiplash injury diagnosis being made;
(b) the claimant’s claim form (dated 21 November 2022) reports neck pain (but not shoulder pain);
(c) the claimant reported to her GP on 15 November 2022 “neck pain” and had an MRI of the cervical spine performed;
(d) Dr Al-Zabin on 9 February 2023 records “neck pain, [right] shoulder pain remain the main issue”, and
(e) a clinical note on 28 March 2023 notes a request for pain management.
The claimant points to the results of the MRI of 28 November 2022 (14 days after the accident) which shows a reduction in disc height at C5/6 with a disc bulge and annular tear. The claimant says a tear to the annulus falls outside the definition of soft tissue injury and is therefore a non-threshold injury.
Insurer’s submissions
The insurer asserts there are no errors in the decision and quotes two published review panel decisions citing research papers which indicate that annular tears are common, are often asymptomatic and therefore not always related to traumatic incidents.
The insurer says, “there is no evidence submitted that [the] MRI finding of an annular tear is causally related to the motor accident.”
Procedural matters
On 5 December 2023, the Panel issued directions to the parties in relation to the documents on file.
The claimant confirmed on 11 December 2023 that the “combined review documents” bundle on the Commission’s file (of 144 pages) contained all the documents upon which the claimant relies in the review.
On 16 January 2024 the Panel requested the claimant provide documents referred to in the submissions but not included in the claimant’s bundle. On 22 January 2024 the claimant provided these documents.
On 22 January 2024 the Panel met and reported to the parties on 23 January 2024.
The Panel said:
“[6] The Panel has read the submissions from both parties and notes:
(a)the claimant has not placed in issue Medical Assessor Menogue’s assessment that the claimant’s lumbar spine (lower back) injury is a threshold injury;
(b)the claimant gave a history of her right hand being injured in an accident at home. The claimant has not placed in issue Medical Assessor Menogue’s decision that the car accident did not cause that injury;
(c)the claimant has not placed in issue Medical Assessor Menogue’s decision that her right shoulder injury is a soft tissue and therefore threshold injury, and
(d)clause cl 5.8 of the Motor Accident Guidelines requires two or more signs to be present for there to be a finding of cervical radiculopathy and therefore a non-threshold nerve or nerve root injury.
The claimant has not challenged Medical Assessor Menogue’s finding that “none of the documents studied have recorded two or more signs of radiculopathy” and that there were no signs of radiculopathy at his examination in the upper limbs.
[7] It therefore appears to the Panel, having read the submissions from the parties, that the real (and only) issue in dispute in Ms Bachir’s proceedings is whether the ‘annular tear’ reported in the MRI of 28 November 2022 was caused by the accident.
[8] It appears settled (from the decisions published by the Commission) that a tear of the annulus fibrosis would be the ‘complete or partial rupture of’ tissue and would therefore be a non-threshold injury if caused by the accident.
[9] The insurer has referred to two published review panel decisions citing research papers which indicate that annular tears are common, are often asymptomatic and therefore not always related to traumatic incidents.
[10] The Panel notes the test it must apply to determine causation is:
(a)whether the accident could have caused the tear in Ms Bachir’s C5/6 disc which would involve a consideration of the mechanics of the accident and forces involved, and
(b)whether the accident did cause that tear. In resolving that part of the test, it is the Panel’s preliminary view it would need to consider the age of the claimant, the claimant’s pre-accident medical history and her pre-accident activities, the time frame of the onset of symptoms, the treatment provided, and investigations undertaken and so on.”
The Panel requested the opportunity to view the cervical spine MRI of 28 November 2022 preferably in digital format. The Panel also requested records from Dr Dimitri and reminded the insurer to provide its bundle of documents.
Responses from the parties
On 16 February 2024 the claimant advised:
(a) clinical notes of Dr Dimitri were requested however had not yet been received;
(b) the claimant had taken steps to obtain the digital copy of the requested MRI from Issa Medical Centre, and
(c) the claimant agreed that the only issue in dispute is the assessment of the cervical spine and the causation of the annular tear.
On 4 March 2024 the insurer provided its bundle which included additional submissions as to the following:
(a) the insurer agreed at [1] that the only issue in dispute is “whether the annular tear reported in the MRI on 28 November 2022 was caused by the accident”;
(b) additional documents were provided, and
(c) the Panel should note that the second AHRR dated 31 March 2023 refers to a right shoulder and lower back injury only (not neck) [5].
The author of Youi’s submissions (not disclosed on the face of the submissions) then says at paragraph 7:
“Youi upholds the position that the Medical Assssment … is not incorrect in a material respect and this medical assessment should not be referred to a review panel.”
The author of the submissions then replicates the submissions that have already been filed. With great respect to the author of the submissions, the delegate of the President has determined the application for review and referred the matter to a Review Panel. The Panel is now seized with power to undertake the Review and must exercise that power and determine the matter. It is not a matter for the Panel to re-determine or reconsider or otherwise interfere with a decision made by the delegate of the President. The part of Youi’s submissions from paragraph 7 onwards are unhelpful.
Second Panel teleconference
At a teleconference on 19 March 2024, the Panel had further discussions. The Panel reported to the parties on the same date noting at [5] the agreement between the parties that “the only issue in dispute between the parties was the issue of causation concerning the annular tear”.
The Panel confirmed the receipt of additional documents from the insurer and that the claimant had advised the radiology practice where the MRI was performed had been the victim of a cyber attack and there were no pre-November 2023 scans or images available. The Panel then said at [8]:
“Noting the insurer’s concession that the claimant does have an annular tear, the Panel is of the view that it no longer critical for the MRI to be viewed.”
The Panel determined it needed additional information in the form of a history from the claimant to assist with determining the issue of causation (see [9]). An audio-visual appointment was set at short notice for 22 March 2024 with Medical Assessor Barnsley on behalf of the Panel and the claimant attended that appointment.
While the Panel’s report did not invite a response from the parties, the insurer did respond to the conference report by way of a message in the portal on 27 March 2024 which says:
“Youi respectfully submits that we have not conceded to the presence of an annular tear. We have acknowledged the reference to the annular tear in the radiologist’s report and agree that the dispute relates to whether the motor accident was the cause of this reported radiological finding.
We have contacted Quantum Radiology in relation to the cyber incident and asked if there is a possibility of images obtained from investigations prior to 22 November 2023 will become accessible. It is understood that the images cannot be accessed via their Zed Doctor online portal, however it is possible the referring medical practice received the digital images at the time the investigation was performed.”
The Panel notes:
(a) In its original submissions the insurer said: “there is no evidence submitted that [the] MRI finding of an annular tear is causally related to the motor accident”, and
(b) in its further submissions the insurer said it agreed that the real issue in dispute was “whether the annular tear reported in the MRI on 28 November 2022 was caused by the accident”.
It is difficult for the Panel to understand how these statements (in the context of the whole of the submissions) could not be interpreted as conceding the presence of the tear. The Panel observes that in none of the submissions filed by the insurer has Youi specifically disputed the existence of the tear.
The Panel does not propose to defer its determination pending the insurer’s enquiries as to the availability of the radiological images. The Panel reiterates its view that in the light of the agreement between the parties that the real issue in dispute is the cause of the annular tear reported in the MRI of 28 November 2022, the Panel no longer needs to view the imaging. The Panel will deal in these reasons with the issue of the existence (or not) of the annular tear.
REVIEW OF THE EVIDENCE
The claimant relies on her submissions and a bundle of documents comprising 144 pages plus additional certificates and allied heath requests (filed on 22 January 2024), the notes of Dr Dimitri and a letter from Bankstown radiology. The insurer relies on a bundle comprising 17 pages.
Claim form and claim related documents
The claimant was born in 2001 and was 21 years of age at the time of the accident.
The application for personal injury benefits (claim form)[3] is dated 21 November 2022. The claimant’s documents on that form attempts to make a report of the accident. The claimant describes the accident as follows:
“I was heading straight on a green light, the other vehicle was turning right into a street and stopped right in front of me causing our cars to collide.”
[3] Page 21 of the claimant’s bundle.
The claimant lists her injuries as “bruised leg, neck pain, back pain, rib cage pain”. The Panel notes there is no mention in this form of right shoulder pain.
There is a letter from Youi to the claimant dated 4 January 2023[4] entitled “A plan for recovery” and the opening words, of this letter says, “thanks for talking to me about your “neck, lower back and rib cage pain, post-traumatic stress, insomnia, [right] shoulder pain.”
[4] Page 107 of the claimant’s bundle.
The following certificates of fitness have been provided in support of the claim:
(a)
25 November 2022 – this certificate is completed by hand and bears a signature which is indecipherable. The identity of the doctor who completed it cannot be ascertained. There are no details of when the claimant was first seen in the practice. The Panel has assumed that this certificate was completed by
Dr Dimitri. The diagnoses of injuries are stated to be “neck, lower back and rib cage pain, post traumatic stress, insomnia and [right] shoulder pain”;
(b) 9 January 2023 – this certificate is clearly completed by Dr Al-Zabin and identifies “right shoulder bursitis, lower back pain muscular”;
(c) 9 February 2023 – from Dr Al-Zabin and diagnoses “right shoulder pain (bursitis), neck pain (disc bulge at C5/6) lower back pain post MVA”;
(d)
10 March 2023 - from Dr Al-Zabin and it repeats the same injuries as the
9 February 2023 certificate;
(e) 12 April 2023 – from Dr Al-Zabin and it repeats the same injuries as included in the previous two certificates, and
(f) 19 May 2023 – from Dr Al-Zabin and it repeats the same injuries as included in the previous three certificates.
There is an internal review certificate from Youi dated 27 March 2023 which affirms the original decision concerning threshold injury.
The claimant has provided a copy of a photograph showing the damage to her vehicle. It shows major deformation damage to the front passenger side of the claimant’s vehicle including displacement of the front passenger side wheel and significant damage to the bonnet, front bumper and passenger side panels. The passenger airbag and passenger side airbag are clearly visible as having deployed. r
Treating medical records and reports
Before the accident
Dr Dimitris’ notes were provided to the Panel on 18 March 2024. They contain three attendances in November 2017 relevant to neck pain. An X-ray was apparently requested and reported by Dr Dimitri as normal. There is no X-ray report in Dr Dimitri’s notes.
There are no other neck complaints or musculo-skeletal issues between then and the date of the accident.
After the accident
The discharge summary from Liverpool Hospital[5] refers to a whiplash injury and notes “currently reports left lateral neck pain”. It was noted that on assessment there was no cervical spine tenderness centrally but there was “left lateral trapezius firmness with mild tenderness”. There was also mild tenderness over the left ribs.
[5] Page 36 of the claimant’s bundle.
Dr Dimitri records an attendance on 15 November 2022, the day after the accident. The entry reads as follows:
“Was the driver of a car hit another car which going to the right in front of her going straight. Seen by amulbance. Taken to Liverpool hosital had chest x-ray. Today complaining of neck pain radiating to both shoulders, thoracic spine, ?right? shoulder pain, bruises to right leg and no neurological abnoralities.”
Brufen was prescribed and the claimant was referred for an MRI of her cervical spine and an X-ray of both shoulders.
In a letter to Youi dated 13 December 2022[6] Dr Al-Zabin refers to neck, right shoulder and lower back pain. He diagnoses a small cervical spinal disc bulge at C5/6, right shoulder subdeltoid bursitis and lower back pain. He indicates the claimant never had injuries or previous complaints in the neck, right shoulder or lower back. He confirmed he had recommended Panadol and Nurofen and a steroid injection into the right shoulder. He also requested physiotherapy and suggested that if the claimant’s condition did not improve neurosurgical opinion would be sought.
[6] Uploaded separately to the Commission’s portal file.
The claimant’s ultrasound guided injection to the right shoulder was performed on
14 December 2022 and reported on the same date.
The claimant was referred for physiotherapy on 9 January 2023. The referral seeks opinion and management of right shoulder and lower back pain.
The first allied health recovery request (AHHR) for eight sessions of physiotherapy is dated
9 February 2023.[7] It states the diagnosis is of a right shoulder injury and lower back injury and refers to neck pain radiating from the right shoulder.
[7] Page 39, 71 of the claimant’s bundle. The treatment request was approved on 16 February 2023 see page 75 of the claimant’s bundle.
The second AHHR[8] is dated 31 March 2023 and seeks a further eight sessions of physiotherapy and the provision of a TENS machine. The first goal was to reduce pain in the right shoulder by 20% in four weeks. The request identifies “2 area treatment” and repeats the two areas of the body injuries being the right shoulder and lower back and mentions pain radiating to the right side of the neck.
[8] Page 14 of the insurer’s additional bundle.
A third AHRR was submitted by Mr Azzi on 10 May 2023 for a right shoulder and back injury.[9] It is in similar terms to the other two and this request was denied.
[9] Page 81 of the claimant’s bundle.
Jawad Azzi of Bankstown Physiotherapy wrote to Dr Al-Zabin on 10 May 2023.[10] He refers to a right shoulder and lower back injury. He also has a history from the claimant of her right shoulder pain radiating to the neck and lower back pain. He nominates lifting, sleeping on her right side and turning the steering wheel as aggravating her shoulder pain. The claimant complained of disturbed sleep, had not returned to work and was having difficulty with her home duties.
[10] Page 34 of the claimant’s bundle.
Mr Azzi noted significant improvement in the shoulder and lower back but does not mention any neck symptoms.
Treatment notes from Mr Azzi end on 19 May 2023 with pain increasing during the week particularly at nighttime and while driving. She reports the last injection was about a month ago and the injection made her worse. There is no mention of neck pain or neck treatment. The first note in the physio notes is dated 9 February 2023. The pain diagram is right side of the neck down to the shoulder and right sided lower back pain. The history was “Patient had a car accident in November 2022, hit her right shoulder against the steering wheel and strained her lower back. Patient felt extreme pain in right shoulder, couldn’t lift the arm. She talks of pain radiating from the shoulder into the neck. The patient information sheet notes right shoulder and lower back (9 February 2022 page 103)”.
The referral to Dr Dave from Dr Al-Zabin dated 28 March 2023[11] asks for “opinion and management of [right] shoulder pain post MVA, the [ultrasound’ showed subdeltoid bursitis”.
[11] Page 43 of the claimant’s bundle.
Radiology
The Panel notes the records of Dr Dimitri reveal three attendances in November 2017 for neck pain. While an X-ray was taken and reported as normal, there is no copy of the X-ray report in the notes.
Dr Dimitri requested on 15 November 2022 an ultrasound of the right shoulder, X-ray of the right shoulder and X-ray of the left shoulder. The radiology was undertaken on
28 November 2022 and a report issued that day addressed to Dr Al-Zabin with a clinical history noted of “neck pain radiating to both shoulders”. The X-rays did not reveal any fractures. The ultrasound of the right shoulder showed all rotator cuff tendons were said to be normal with no tendinitis or tear seen and a thickened subdeltoid burse with impingement. An ultrasound cortisone injection was suggested if conservative management failed.
An MRI of the claimant’s cervical spine was also requested on 15 November 2022 by
Dr Dimitri and undertaken on 28 November 2022 with a report dated 30 November 2022 addressed to Dr Al-Zabin. The history given was of “neck pain radiating to both shoulders.” The report says “At C5/6level, disc height is mildly reduced. There is focal central disc bulge with an annular tear causing impression upon anterior CSF sleeve. Both neural foramina appear patent.”
An MRI of the lower back was said to have been requested by Dr Al-Zabin on
12 December 2022 and performed on 16 December 2022 and showed “mild scoliosis along the lumbar spine”. There was no significant canal or neural foraminal stenosis reported and no nerve root impingement and no mention of any disc injury.
The Panel requested a copy of the 28 November 2022 MRI. On 18 March 2024 the claimant uploaded to the portal a letter from Quantum Radiology advising that due to a cyber incident, no reports and images were available before November 2023.
Medico-legal reports
The claimant relies on a medico-legal report from Dr Conrad dated 18 April 2023.[12] He has a history of the claimant experiencing immediate pain in the neck, back and right shoulder.
Dr Conrad also has a history of attendance at hospital then Dr Al-Zabin.
[12] Page 27 of the claimant’s bundle.
Dr Conrad notes the claimant had been referred to Dr Dave, orthopaedic surgeon but that the insurer had not yet approved payment for the consultation.
Dr Conrad takes a history of pain in the neck, pain and restriction of movement in the right shoulder and back pain. He notes the claimant sees her GP, has had physiotherapy, a single cortisone injection into the shoulder and medication.
Dr Conrad found a moderate asymmetrical restriction of movement with muscle spasm. The left shoulder was normal, but the right shoulder had restricted motion. He reports “no neurological signs” in the left or right arm. He also found spasm present in the lumbar spine but no neurological signs in either leg.
Dr Conrad reviewed the radiology that is the ultrasound of the right shoulder and an MRI of the lumbar spine. He also had the 28 November 2022 cervical MRI scan but no report and says, “apparently the report showed a small cervical disc bulge at C5/6.”
Dr Conrad diagnosed a whiplash injury of the neck and back and a degree of discal injury in both areas. He refers to it as a “very significant” motor accident and a “very significant” right shoulder injury and supports the referral to an orthopaedic surgeon and MRI of the right shoulder.
Dr Conrad, in a separate report calculated WPI at 16%. He did not provide an opinion concerning “threshold injury”.
RE-EXAMINATION FINDINGS
Ms Bachir attended the audio-visual re-examination on 22 March 2024 by MS Teams. She was on time and was pleasant and co-operative throughout. She answered all questions without hesitating and in a straightforward fashion using simple non-medical terms.
The claimant was asked about any pre-accident neck pain. She did not recall any. The records of Dr Dimitri were read to the claimant. This did not assist her, and Ms Bachir said she had no recollection of this episode or what had triggered it. She was 16 years old at the time.
Ms Bachir was asked about the accident. She recalled her head being flung forward and hitting the steering wheel as the airbags deployed. Ms Bachir confirmed the passenger airbag and the driver’s airbag deployed.
The claimant was asked about the hospital notes which record left sided neck pain, left sided trapezius pain and left sided rib pain. She said that her recollection was of pain in both the left and the right sides of her neck radiating down to the shoulders. She is unsure why the left sided pain is emphasised in the hospital notes.
Ms Bachir was taken to the noes of Dr Al-Zabin and her physiotherapist which mentions right shoulder symptoms only. The claimant said she still has neck pain on both sides of her neck going into her shoulders which has persisted since the accident and is associated with some neck stiffness. Ms Bachir said the physiotherapist gave her exercises to do for her neck and the right shoulder was the focus of the physiotherapist’s attention as it was the main source of her pain.
The claimant said she changed GPs from Dr Dimitri to Dr Al-Zabin because he was closer to her home, and she was driving less after the accident and therefore more convenient.
The claimant said at school she did not play any specific sport and while before the accident she went to the gym she said she did cardio work on the treadmill and did not lift weights.
The claimant said she has worked at the cash register at a takeaway fast-food shop and as a traffic controller. She denied undertaking any form of heavy or manual labour.
CONSIDERATION OF THE ISSUES
What is the statutory question for the Panel?
The question to be answered by this Panel is whether Ms Bachir’s injuries “caused by the accident” are threshold injuries for the purposes of the MAI Act. This clearly requires the Panel to determine what injuries were caused by the accident before determining whether they are threshold or not.
Justice Wright in Briggs v IAG Limited t/as NRMA Insurance[13] said in a judicial review application concerning a medical review of “minor” injury:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[13] [2022] NSWSC 372.
The test of causation of injuries in Chapter 6 of the Guidelines requires consideration of a medical decision and a non-medical informed judgment as follows:
(a) could the accident have caused the injury alleged to be non-minor (medical determination), and
(b) did the accident in fact cause the injury alleged to be non-minor (non-medical determination).
Did the claimant injure her neck in the accident?
While the parties agreed that the real issue in the proceedings is whether the annular tear at C5/6 reported in the imaging of 28 November 2022 is not a threshold injury, the insurer’s early submissions confirm it disputes any injury to the claimant’s neck.
The insurer’s submissions on causation are made on the basis that:
(a) Medical Assessor Menogue had found causation was not “established between the accident and the cervical spine”;
(b) early certificates of capacity do not mention a neck injury, and
(c) the first three AHRR for physiotherapy treatment mention the right shoulder and lower back but not the neck.
In relation to first limb of the test of causation, having reviewed the photograph of the significant damage to the claimant’s vehicle and noting her history of an impact from the left and of her head moving forward and hitting the steering wheel as the airbags deployed, it is the clinical judgment of the medical members of the Panel that the mechanism of the accident could have caused an injury to the claimant’s cervical spine including a disc bulge and annular tear at the C5/6 level.
The Panel is satisfied, in respect of the second limb of the test of causation, that the claimant did injure her neck in the accident for the following reasons:
(a) there has been no challenge to the claimant’s credit made by the insurer. She has made concessions about her medical history (including pre-accident mental health issues and a post-accident hand injury) and co-operated at the re-examination answering all questions put to her by the Medical Assessor;
(b) the claimant gave a history to Medical Assessor Barnsley of her body moving forward in the accident and her head hitting the steering wheel. The claimant’s pre-accident medical records indicate an isolated short period of neck pain at the age of 16 which the claimant does not remember. The pain was investigated with X-rays which were reported as normal. At the time of the accident therefore there was nothing that would suggest to the medical members of the Panel any symptomatic neck condition;
(c) there are contemporaneous complaints of neck pain. Liverpool hospital notes on the day of the accident record complaints of left sided neck pain only. The claimant attended Dr Dimitri on 15 November 2022, the day after the accident complaining of neck pain radiating to both shoulders. The claim form completed on 21 November 2022 a week after the accident nominates neck pain as one of the injuries and the medical certificate presumed to be completed by Dr Dimitri on 25 November 2022 nominates neck pain as one of the injuries, and
(d) the claimant reported to Dr Conrad in April 2023, the immediate onset of pain in the neck. She told Medical Assessor Menogue she had a lower right sided ache in the right shoulder extending into the neck. She told Medical Assessor Barnsley she has had pain the neck radiating to both shoulders and that she still has this pain and some neck stiffness. She has been consistent in her complaints of pain in the neck but there are some differences in the language used, that is pain radiating from the neck into the shoulders or from the shoulders into the neck.
The medical members of the panel note that injuries at the C5/6 spinal level can cause pain to be referred in the lower part of the neck, radiating out onto the medial aspect of the upper trapezius, often described by patients as their shoulder. It is the Panel's view that this would account for the differences in descriptions of the source and location of the claimant’s pain by both the claimant and those who have treated her.
Does the claimant have an annular tear?
The MRI scan of 28 November 2022 says:
“There is focal central disc bulge with an annular tear causing impression upon anterior CSF sleeve.”
The Panel notes the message in the portal from the insurer which states that the insurer does not concede the presence of this annular tear. The Panel notes the original MRI is not available for viewing from the radiological practice and it is not known whether the GP practice has access to them or has made copies of them.
The Panel notes the formal parts of the radiological report (at page 67 of the claimant’s bundle) includes details of the claimant’s name, date of birth and other details that satisfy the Panel that the report relates to the claimant. The Panel also notes the MRI report comes from a firm that has undertaken other radiology for this claimant. Finally, the Panel notes that the report was written by Dr Farhana Younis who is said to be a qualified doctor and member of the Royal Australian and New Zealand College of Radiologists.
The Panel accepts the report as an accurate record of the images taken and accepts on the basis of this report that the claimant has an annular tear and disc bulge at the C5/6 level of her spine.
Is the annular tear and disc bulge caused by the accident?
The Panel notes the insurer’s reliance on papers referred to by other panels in other review proceedings. No copies of these actual papers have been provided however the medical members of the Panel agree with what they are said to report, that is:
(a) that tears of annulus fibrosis are common in the younger population although more prevalent in the older population;
(b) that annular tears can be asymptomatic and are not always associated with neck pain and that neck pain can be associated with many medical causes including changes in the discs, and
(c) that changes in the annulus fibrosis of a disc can occur for reasons other than trauma.
The Panel is satisfied that this disc bulge with annular tear was caused by the accident because:
(a) of the mechanism of the accident and the likely forces involved in it;
(b) the contemporaneous complaints of neck pain;
(c) the radiology that found the bulge and tear is dated two weeks after the accident;
(d) the only other imaging of the claimant’s spine (an X-ray from 2017) was reported as normal. The Medical Assessors note that if there was a disc bulge and associated tear in 2017, there would be a finding in the x-ray of a reduction in the level of the C5/6 disc and Dr Dimitri would not have commented that the radiology was normal;
(e) there are no complaints of neck pain in the records after 2017 and the claimant’s history she had no complaints of neck pain before the accident;
(f) there are no findings at any other level of the spine which is more suggestive of traumatic injury to the affected disc than a degenerative cause;
(g) the wording that has been used by the radiologist is of a “tear” to the annulus and not the word “fissure” which the medical assessors note is used when referring to changes in an annulus that appears to be more degenerative than traumatic, and
(h) the claimant’s age and the absence of pre-existing trauma or sporting and employment activities which in the Medical Assessor’s view could have led to the “tear” before the accident suggests a traumatic cause is more likely that a degenerative cause.
CONCLUSION
As outlined in paragraph 8 above, s 1.6(1) of the MAI Act defines a threshold injury as a soft tissue injury and s 1.6(2) provides “… a complete or partial rupture of tendons, ligaments, menisci or cartilage” is not a soft tissue injury.
The insurer does not dispute that a tear to the annulus fibrosis is a “partial rupture of tendons, ligaments, menisci or cartilage.” It follows that Ms Bachir’s C5/6 annular tear is not a soft tissue injury and is not a threshold injury for the purposes of the Act.
For the reasons set out in paragraphs 88 to 94 above, the Panel is satisfied that Ms Bachir injured her neck in the accident and that the disc bulge and annular tear at C5/6 were caused by the accident.
As the Panel has come to a different conclusion to Medical Assessor Menogue, the Panel will revoke his certificate and issue a fresh certificate.
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