Bajada v QBE Insurance (Australia) Limited
[2023] NSWPICMP 5
•09 January 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Bajada v QBE Insurance (Australia) Limited [2023] NSWPICMP 5 |
| CLAIMANT: | Carmen Bajada |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| MEMBER: | Ray Plibersek |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 09 January 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was a passenger in a bus; she was trapped and crushed by the rear bus door when exiting; injuries to arms and shoulders, abrasions on right ankle and shock; Held – original medical certificate found that all injuries sustained by claimant were a minor injury; original medical certificate set aside; claimant not re-examined; claimant gave some inconsistent history not put to claimant; Panel gave no weight to any inconsistency and made no adverse findings; Panel reviewed medical records, x-rays, ultrasounds and magnetic resonance imaging (MRI) scans which showed long standing pre-existing rotator cuff tears to both shoulders, chronic degenerative age-related changes; injuries were a minor injury and not attributable to motor accident. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Alexander Woo dated • right shoulder – soft tissue injury; • right arm – soft tissue injury; • left shoulder – soft tissue injury, and • left arm – soft tissue injury. |
STATEMENT OF REASONS
introduction
On 3 February 2020 Ms Carmen Bajada (the claimant) was a passenger on bus number 945 on Thurlow Street, Riverwood. As she was attempting to exit the rear door of the bus, the door closed on her without warning. The claimant stated that she was trapped and crushed in the closed door and had to scream to be released by the bus driver.
In the Application for Personal Injury Benefits dated 5 March 2020 [1] Ms Bajada stated she sustained the following injuries as a result of the accident:
(a) right arm / shoulder;
(b) left arm;
(c) abrasions on right ankle, and
(d) shock.
[1] Insurer bundle AD5 page 4.
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Bajada under the Motor Accident Injuries Act 2017 (MAI Act).
Medical Assessor Alexander Woo issued a certificate dated 25 April 2022 in which he certified that the injuries sustained by Ms Bajada are all a minor injury for the purposes of the MAI Act.
As a result, Ms Bajada has no entitlement to ongoing statutory payments or any entitlement to pursue a claim for damages arising out of the accident.
Ms Bajada has sought a review of the certificate of Medical Assessor Woo.
BACKGROUND
At the date of the accident Ms Bajada was 75 years of age and in receipt of a pension.
On 5 March 2020 Ms Bajada lodged an Application for Personal Injury Benefits.
The insurer issued a Liability Notice – benefits after 26 weeks informing the claimant that her physical and psychological injuries were minor injuries and that her entitlement to treatment and care expenses would cease on 23 October 2020.
On 2 June 2020 the insurer determined the injury sustained by the claimant was minor and therefore the claimant was not entitled to pursue a claim for damages.
On 25 September 2020 Ms Bajada’s solicitors sought an Internal Review of that decision. On 23 October 2020 the insurer issued their Internal Review - Certificate of Determination and Statement of Reasons.[2] This decision affirmed the insurer’s earlier decision that all the injuries suffered by Ms Bajada in the accident fell within the definition of minor injury.
[2] Claimant bundle AD4 page 25.
The claimant filed an application with the Personal Injury Commission (the Commission) seeking a medical assessment to resolve the minor injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[3].
ASSESSMENT UNDER REVIEW
[3] Section 7.20 MAI Act.
The dispute was referred to Medical Assessor Woo who assessed Ms Bajada and issued a certificate dated 25 April 2022.[4]
[4] Insurer bundle AD 5 page 10.
The injuries referred for assessment were described as follows:
“• Whether the Right Shoulder: Chronic complete supraspinatus tendon tear, partial width tears of the infraspinatus and subscapularis superiorly and glenohumeral labral tear anteriorly with focal anterior glenoid full-thickness articular cartilage loss; injury caused by the motor accident is a minor injury for the purposes of the Act.
• Whether the Right Arm: Long head of biceps tendinosis; injury caused by the motor accident is a minor injury for the purposes of the Act.
• Whether the Left Shoulder: Chronic complete tear of the supraspinatus insertion, moderate full-thickness tear of the infraspinatus insertion superiorly and glenohumeral labral tear superiorly; injury caused by the motor accident is a minor injury for the purposes of the Act.
• Whether the Left Arm: Complete retracted tear of the long head of biceps tendon; injury caused by the motor accident is a minor injury for the purposes of the Act.”
Medical Assessor Woo reported Ms Bajada experienced shoulder pain prior to the accident. Clinical notes from her treating general practitioner (GP) show evidence of pre-existing conditions in both shoulders.
In his reasons Medical Assessor Woo found there was evidence that Ms Bajada had rotator cuff and biceps tendon tears prior to the motor accident on 3 February 2020.
Ultrasounds of the left and right shoulders prior to the accident show full-thickness tears to subscapularis, supraspinatus and long head of biceps tendons.
Medical Assessor Woo referred to an MRI of the right shoulder dated 6 July 2020 which showed a: chronic complete tear of the supraspinatus insertion; a moderate full-thickness tear of the infraspinatus insertion superiorly and a complete retracted tear of the long head of biceps tendon and glenohumeral labral tear superiorly.
Medical Assessor Woo noted the medical imaging findings of both shoulders after the motor accident are similar to that prior to the accident. The images show evidence of chronic degenerative changes in both shoulders with rotator cuff tears in both shoulders as well as left biceps tendon tear. The chronic degenerative changes in the right shoulder are consistent with biceps tendinosis and tear.
Medical Assessor Woo’s diagnosis is that based on the history of the accident, mechanism of injury and the clinical and medical imaging findings. He found that
Ms Bajada had the following injuries:(a) right shoulder – soft tissue injury with aggravation of pre-existing rotator cuff tear and glenohumeral labral cartilage loss;
(b) right arm – soft tissue injury with aggravation of pre-existing biceps tendinosis;
(c) left shoulder – soft tissue injury with aggravation of pre-existing rotator cuff tear, and
1. (d) left arm – soft tissue injury with aggravation of pre-existing biceps tendon tear.
Medical Assessor Woo found that the tendon tears shown on medical imaging are similar to the imaging finding prior to the motor accident. This indicates that there were no acute tendon rupture or cartilage tear caused by the motor accident. These findings are consistent with the anticipated degenerative changes in the shoulder at the age of 77.
Medical Assessor Woo found the following was a minor injury:
• right shoulder – soft tissue injury;
• right arm – soft tissue injury;
• left shoulder – soft tissue injury, and
• left arm – soft tissue injury.
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Woo was lodged within 28 days of the date on which the certificate was made available to the parties.
On 30 June 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel). The delegate’s reasons were that he was persuaded by the applicant’s argument that the Medical Assessor has not clarified as to any pre-existing ruptures in the claimant’s right bicep before the accident, particularly when the pre-accident ultrasound showed the right biceps tendon to be “…intact and no tear or tendinosis is seen…”.
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 new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission [5]. Accordingly, the President’s delegate referred the matter to this Panel to assess.
[5] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor[6].
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued a Direction to the parties on 8 July 2022 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant filed a bundle of documents (AD 4) paginated from pages 1 to 97. The solicitor for the insurer filed a bundle of documents (AD 5) paginated from pages 1 to 114.
On 19 August 2022 the Panel issued a second Direction to the parties reporting in part that:
“…the Panel decided that it need to review all past and future x-rays, ultrasounds, MRI scans and accompanying reports relevant to the Claimant’s injuries currently before the Panel including to both shoulders and both arms (the relevant imaging).
2.Until the Panel has reviewed the relevant imaging, the Panel cannot decide whether or not a re-examination of the Claimant is required and whether the assessment can be undertaken by a review of the relevant imaging.”
On 26 September 2022 the two Medical Assessors on the Panel meet and reviewed the available radiology for the claimant. The details of this review are reported below.
After receiving and reviewing the requested imaging, the Panel agreed an examination of the claimant was not required. The Panel has taken into consideration that Medical Assessor Woo has measured the movement of, examined and reported on both of the claimant’s shoulders in his reasons. Medical Assessor Woo’s assessment shows the shoulders are of limited movement as one would expect from the imaging studies and the other reported medical evidence. The Panel decided that based on the material before it, including all of the medical evidence, imaging and reports, there was sufficient material for the Panel to form a view of the claimant’s injuries without the need for a re-examination.
In reaching its decision to not re-examine the claimant the Panel took into account the decision by the Court of Appeal in Sydney Trains v Batshon [2021] NSWCA 143 (Batshon) where Leeming JA (with White JA and McCallum JA agreeing) stated at [41]:
“Under the motor accidents legislation, the default position where there is review of a medical assessment is that the review “should generally include a re-examination of the claimant”, especially where a party objects to the review being conducted on the papers, unless there is no dispute, ambiguity or uncertainty as to the relevant clinical findings: see cl 4(a)(i) and (ii) of the “Review Panel Practice Note 3/2005”, reproduced in Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127 at [36]. Importantly, the review “is not limited to a review only of that aspect of the assessment that is alleged to be incorrect”, but rather “is to be by way of a new assessment of all the matters with which the medical assessment is concerned”: Motor Accidents Compensation Act 1999 (NSW), s 63(3A); Motor Accident Injuries Act 2017 (NSW), s 7.26(6).”
The Panel has considered the decision in Batshon, all of the medical evidence, medical assessments and the parties’ responses. In all the circumstances of this case and the nature of the dispute, the Panel affirms its decision not to re-examine the claimant.
MINOR INJURY- 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”. Sub-section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that Regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the MAI Act. Version 8.2 of the Guidelines commenced on 8 April 2022 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:
“5.3The 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.
5.4Diagnostic imaging is not considered necessary to assess minor injury.
5.5A 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.
5.6The 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.”
EVIDENCE BEFORE THE REVIEW PANEL
Treating medical evidence
Pre-accident treating records
The treating GP notes from the Revival Medical Centre Riverwood[8] and various other pre-accident treatment records for Ms Bajada are briefly referred to as follows. Many of the notes were made by Ms Bajada treating GP, Dr Raj Basavaraj.
[8] Insurer bundle AD5 pages 30 to 100.
The Patient Health Summary notes the following.[9] On 22 August 2019, right subacromial bursitis and right supraspinatus tendon tear. On 16 January 2020, left supraspinatus tear and left biceps tendon rupture.
[9] Insurer bundle AD5 page 31.
Ms Bajada prior injuries and imaging hips, right knee lumbosacral spine. A lot of leg pain running for bus July 2016. Having physiotherapy. Depressed with personal life July 2016. Seeing Raj Reddy for spondylosis lumbar spine. Facet joint injections at L4 five S1. September 2016 injections right knee. MRI query low back. August 2017 court case. March 2018 still seeing Raj Reddy ankle ulcer. Attending St George review vascular surgeon left leg. Referral varicose veins July 2018 – through to November 2018 chronic varicose ulcer left ankle requiring dressings continued problems through to 2019 up until March 2019. Hospitalised for left ankle May 2019.
On 2 August 2019, jerked her right arm about a month ago against table a right shoulder. Right shoulder range of movement affected. Imaging request printed to medica imaging August 2019. [10]
[10] Insurer bundle AD5 page 61.
Ultrasound by Dr Robert Chung on 22 August 2019 refers to painful arc syndrome.[11] Report there is fluid in the right long head of the biceps tendon. The tendon appears intact and no tears of or tendinosis is seen. There is heterogenicity of the right sub scapularis, supraspinatus and infraspinatus tendon suggesting tendinosis. There is a hypoechoic defect in the superior portion of the right subscapularis tendon, with focal thinning, consistent with a full thickness focal tear. This appears to affect the superior edge of the tendon. There is also a relatively large full thickness tear of the supraspinatus tendon anteriorly measuring 1.9 cm transversely and 2.5 cm longitudinally. There are a few fibres seen posteriorly that appear intact. The infraspinatus tendon appears intact. There is a joint effusion of the glenohumeral joint. The acromioclavicular joint appears to have some bulge, but is otherwise unremarkable. There is fluid in the subdeltoid bursa suggesting subacromial bursitis, however this is only minimal suggesting the tears are old.
[11] Insurer bundle AD5 pages 61 and 94.
On 7 January 2020 has high BP. Left arm is aching and feels muscles in the left arm is weak over a month now. Hurts her shoulder to lift, over a month now no injury. Has hurt her right shoulder in the past, this affects her sleep. Reason for visit, left shoulder pain.[12]
[12] Insurer bundle AD5 page 65.
In a report dated 13 January 2020, Dr David Rowen from I – Med Radiology reported about an ultrasound of the claimant’s left shoulder.[13] This ultrasound showed the long head of the biceps tendon appears to be torn and retracted. Increased fluid in the biceps tendon sheath. Tendinopathic appearance of the subscapularis tendon with a full thickness tear superiorly measured at 10 x 7 mm. Tendinopathic appearance to the supraspinatus tendon with a full thickness tear extending through anterior to mid substance. Tendinopathic infraspinatus. There is increased fluid and thickening at the subacromial/subdeltoid bursa with some bursal bunching and impingement. Full thickness tears to subscapularis, supraspinatus and long head of biceps tendon.
[13] Claimant bundle AD4 page 95.
On 16 January 2020 the claimant meet with her GP, Dr Bassavaraj. He summarised and explained the ultrasound report dated 13 January 2020 from Dr Rowen. He discussed with the claimant the need to see an orthopaedic surgeon. He records the reason for the visit as being left supraspinatus tear and left biceps tendon rupture.
On 7 February 2020 she had another accident crushed in the bus as door closed on her, last Monday afternoon. Tuesday she had a nurse for leg dressing. Went to hospital this a.m. vascular surgeon review. Bruising and pains in both arms right worse and left. Was getting off bus with another passenger, she was the first one on the door was shut on her through her to the other side and she was caught in the back door. Then he released the door when the passengers shouted was wedged in the door for at least two minutes. Examination bruising over right shoulder. Range of motion both shoulders affected can’t abduct right shoulder as worse than the left medical imaging for ultrasound guided steroid. [14]
Post-accident treating records
[14] Insurer bundle AD5 page 66.
A brief summary of some of the medical and GP notes from the Revival Medical Centre Riverwood for Ms Bajada after the accident on 3 February 2020 includes the following.
Medical imaging 13 February 2020 x-rays right and left shoulders with normal glenohumeral joint and AC joint, reduced bone density no significant arthritis.[15] Ultrasound right shoulder the sub scapularis tendon shows tendinosis changes. There is subscapularis impingement under the coracoacromial ligament. The long head of the biceps is subluxed and dislocated splitting sub scapularis. There is fluid in the biceps tendon sheath. The supraspinatus tendon is completely torn. The infraspinatus muscle is atrophic. There is restricted abduction at 60°. Osteophytes noted at AC joint. Ultrasound left shoulder the long head of the biceps is normal. Partial tear in the subscapularis tendons superiorly at the bursal surface. Partial tear of the supraspinatus tendon anteriorly at the bursal surface. The infraspinatus is atrophic. The sub acromial subdeltoid bursa contains some fluid but the patient has a full range of movement. Degenerative changes at the acromioclavicular joint.
[15] Insurer bundle AD5 page 67 to 68.
On 4 May 2020 case conference with Carmen Bajada, Dr Raj Basavaraj ,Louis from Rehab Focus and Michael physiotherapy from Riverwood. Started physiotherapy about a week ago – discussed around injuries to her shoulder – now declining functional capacity. Affected by bilateral shoulder tears. She had capacity but is able to do general activities. She had an MRI at Concord Hospital in the public system. Not clear whether this was done, all this cancelled.
On 9 June 2020 case conference with Carmen Bajada, Mihui from Rehab Focus and Dr Raj Basavaraj. Mihui says that his records show pre-existing shoulder injury. Carmen states that she had issues with her left shoulder – never the right shoulder.
On 6 September 2020 there is a Closure Report from Mihui Kim , Psychologist from Rehab Focus. The report stated that the insurer reported Ms Bajada having pre-existing conditions in both shoulders. Ms Bajada denied having any pre-existing issues with her shoulders and was very upset.
Medico-legal reports/Medical Assessment Certificates
Many of the medicolegal and radiology reports are summarised in the below section headed review of radiology. Set out immediately below are a number of other relevant reports.
Medical Assessor Atsumi Fukui
Medical Assessor Fukui assessed Ms Bajada for any psychiatric injury[16]. She provided a Certificate dated 19 July 2022 which concluded that Ms Bajada’s reported shock, anxiety and depression were not caused by the motor vehicle accident.
[16] Insurer bundle AD5 page 108.
Medical Assessor Fukui found no evidence of psychological impairment on mental state examination. She concluded that Ms Bajada did not suffer a psychological injury as a result of the subject motor accident.
Dr. T Gothelf
On 23 March 2022 Ms Bajada was reviewed by shoulder surgeon Dr Todd Gothelf and diagnosed with shoulder outlet impingement syndrome and chronic rotator cuff tears.[17] Dr Gothelf recommended a number of shoulder exercises to improve Ms Bajada’s injuries.
[17] Claimant bundle AD4 page 50.
In a report dated 12 August 2022[18], Dr Gothelf noted the history given by Ms Bajada as follows. Carmen says that both shoulders are painful and that she has been unable to use both arms to put clothes on the line. Carmen had an injury riding on the bus on
3 February 2020. Prior to this date her shoulders were fine. Carmen said that as walking off the bus the doors closed on her and she was shoved across and hit on both shoulders. After the accident she had pain in both shoulders.
SUBMISSIONS
[18] Claimant bundle AD4 page 93.
Claimant’s submissions
The claimant provided submissions dated 20 May 2022 in support for an application for review to a review panel [19]. Referring to the meeting with the Medical Assessor Woo, the submissions note the claimant’s instructions are that;
3.“…..Assessor Dr Woo acted inappropriately at the assessment. He had the wrong file at the assessment, spoke very aggressively to the Claimant to recall specific dates and aggressively demanded the Claimant to produce all her CT scan investigations. The Claimant is a vulnerable 77-year-old woman. She was flustered at the assessment and she formed the view that the Assessor was totally unsupportive.”
[19] Claimant bundle AD4 page 1.
In their submissions for review, the claimant’s solicitors identified the material errors made by Assessor Woo were as follows: he conducted himself in an appropriate manner towards the claimant; he made findings substantially inconsistent with the overwhelming preponderance of the claimant’s treating medical evidence and did not make any reference to the claimant’s reduction in bone density.
The claimant’s solicitors submitted that the applicant claimant’s right upper extremity and left upper extremity has been incorrectly assessed by Medical Assessor Woo, and incorrectly found to be a soft tissue injury.
The submissions then make detailed reference to three MRI, X-ray, or ultrasound reports dated 10 February and 6 July 2020 after the subject accident.
The claimant submits that, as Medical Assessor Woo has not clarified or provided discussion as to any pre-existing ruptures in the applicant claimant’s right bicep and the development of tear of the supraspinatus tendon prior to or after the accident, that Medical Assessor Woo has erred in that respect.
Claimant’s statements
The claimant has provided a number of statements about how the accident occurred and how its effects on her health has impacted upon her.
In a statement dated 22 April 2022[20], Ms Bajada describes the effect of the accident as follows. Cannot raise arms to hang clothes on the washing line. Cannot lift saucepans full of water, do cooking, wash windows and window sills or work in and maintain her garden. Cannot apply make-up or wash all areas of her body. Cannot sleep on the left or right hand side of the body but must sleep on her back.
[20] Claimant bundle AD4 page 81.
Ms Bajada provided a further statement dated 22 April 2022[21] about her medical assessment with Medical Assessor Woo. She states that Medical Assessor Woo had lots of files and papers scattered over his desk. She also states that he asked her lots of questions about the day of the accident and what treatment she received. She replied that she did not know the answers to many of these questions. Ms Bajada further stated that she placed a note on Medical Assessor Woo’s desk describing a list of everyday duties she can no longer perform. She concludes her statement by saying that the whole session caused her stress and disrupted her sleep for days afterwards. Medical Assessor Woo’s report still wrongly states that she sleeps on her stomach.
[21] Claimant bundle AD4 page 83.
Insurer’s submissions
The insurer provided submissions dated 9 June 2022[22].
[22] AD 2.
The insurer submits that Medical Assessor Woo appropriately addressed the cause and nature of the claimant’s injuries in his Certificate. Medical Assessor Woo stated that the claimant denied ‘any previous injuries’ and ‘however, the clinical notes from her treating GP show evidence of pre-existing conditions in both shoulders’. Medical Assessor Woo outlined the pre-existing injuries noted within the clinical records from Revival Medical Centre and concluded ‘it is evidence that Ms Bajada had rotator cuff and biceps tendon tears prior to the motor accident of 3/02/2020’. Medical Assessor Woo stated that ‘the glenohumeral labral articular cartilage loss is also related to the pre-existing degenerative changes in the right shoulder’. Medical Assessor Woo determined that injury arising from the accident was limited to soft tissue injury and aggravation of pre-existing injury to the upper extremities.
The insurer provided earlier submissions dated 30 November 2020 [23]. These submissions included the statement that radiological investigations objectively show pre-existing tears to both shoulders and degenerative age-related change and confirm that these did not arise from the accident and accordingly, should be assessed as minor-injuries.
REVIEW OF THE RADIOLOGY
[23] R 1.
On 26 September 2022 the two Medical Assessors on the Panel reviewed the available radiology for the claimant. The outcome of this review is as follows.
Dr Robert Chung from Med Radiology reported on an ultrasound of the right shoulder on 8 August 2019 six months before the accident.[24] He commented on long-standing full thickness supraspinatus tear from the infraspinatus insertion with complete retraction and associated sub-chondral sclerosis. Dr Chung commented on large effusion and lots of joint rubbish. Bunching on attempted abduction at 90°. Supraspinatus tendon does not retract . Maximum defect about 25 mm. Biceps tendon is dislocated from the bicipital groove and sits under the subscapularis. AC joint is enlarged. No good views of the sub scapularis. The infraspinatus is attenuated at its insertion. Coracoacromial ligament is grossly hypertrophied, the rotator interval shows not only the dislocated long head of biceps tendon but no sub scapularis tendon. Conclusion – chronic rotator cuff tear with probable loss of overhead use of the arm.
[24] Insurer bundle AD5 page 94.
Dr David Rowen from Waratah Private Hospital, I Med Radiology Hurstville conducted and ultrasound and reported the results on 13 January 2020[25] . The ultrasound of the left shoulder was three weeks before accident. There is a full thickness rotator cuff tear of acute on chronic pattern with about a 50% joint sided tear of rounded long-standing appearance and a more acute bursal sided tear with moderately ragged edges. Measures at least 7 mm, the radiologist says 10 x 7 mm. Attrition rupture of the long head of the biceps noting the attenuated tail of residual tendon. The tendon of the sub scapularis muscle is also damaged. Excessive Bursal fluid, bunching on abduction and bursal thickening .
[25] Insurer bundle AD5 page 95.
On 10 February 2020 Dr Kit Lam from Cross Radiology conducted an ultrasound right and left shoulders, X-ray right and left shoulders one week post-accident.[26] His findings were as follows. X-ray left shoulder humeral head is fairly well located, no calcifications in subacromial space and ligament and minor acromioclavicular joint changes. X-ray right shoulder humeral head sits high on internal rotation, low on external rotation and posteriorly on the axial view. Ultrasound – Left shoulder joint sided partial thickness tear of supraspinatus of greater than half tendon sickness and best seen in the abduction view with full thickness in the longitudinal view that extends approximately 15 mm –a full thickness tear with very thick bursa rounded margin and notably the tear is laterally rounded at the margins and fibrin and other junk, insertional tear beginning on the joint side. Ultrasound – right shoulder, hypertrophy biceps tendon which remains located in the bicipital groove but has a progressively attenuated distally. The tendon is subluxed into the sub scapularis insertion. Large full thickness cuff tear extending posteriorly to include most of the infraspinatus and is retracted from its insertion. What is seen is mostly thickened bursal tissue – plain X-ray shows osteopenia and mild changes in the acromioclavicular joint.
[26] Claimant bundle AD4 page 54.
Castlereagh Imaging 7 March 2020 right shoulder CT scan four months post-accident – osteopenia, 50% high riding humeral head with sclerosis of the greater tuberosity indicating effective articulation is subacromial. 25% posterior translocation of humeral head against the glenoid. Subacromial sclerosis, greater tuberosity sclerosis. Plain
X-ray the same day shows a high riding humeral head and subacromial stenosis.Dr Philip Herald from Waratah Private Hospital reported on MRI of the left shoulder on 6 July 2020 , four months post-accident[27]. Bursal fluid indicates significantly damaged subscapularis superiorly. Well located humeral head with good articular cartilage. The Coronal view very much as before with hypertrophied osteo AC joint – this is the left shoulder with some rotator cuff tissue intact but the supraspinatus fossa shows fatty atrophy anteriorly. Full thickness tear at least supraspinatus with retraction of the tendon stump. The humeral head is uncovered with subacromial sclerosis and subluxation long head of biceps tendon – reported as retracted. Conclusion: established chronic rotator cuff tear involving supraspinatus and the upper portion infraspinatus and subscapularis. Shoulder abduction relies on exploitation of the humeral head/acromial articulation. Lesser degree of fatty atrophy in the supraspinatus muscle than on the right. After allowing for the different imaging technology there is no evidence of new injury to the left shoulder.
[27] Claimant bundle AD4 page 56.
On 6 July 2020 Dr Philip Herald from Waratah Imaging also reported on an MRI of the right shoulder on Ms Bajada.[28] He commented on effusion in shoulder, effusion long head of biceps tendon sheath with retracted biceps, with plenty of fluid in biceps tendon sheath with the fluid leaking out anteriorly around between sub scapularis and pectoralis minor and spreading medially indicating tendon rupture. Bare humeral head from 90° north to below the equator anteriorly. There is retracted atrophied supraspinatus tendon and a subscapularis tear, displaced biceps tendon. There is long-standing 4/5 grade supraspinatus muscle belly fatty atrophy. Conclusion long-standing full thickness rotator cuff tear. The bare humeral head indicates abduction occurs via impingement of the humeral head on the acromion leading to loss of articular cartilage. Fatty atrophy is a late change in rotator cuff tears suggest that most, if not all the damage has been present for longer than the four months delay between accident and imaging.
[28] Claimant bundle AD4 page 58.
The Medical Assessor’s review of the radiology shows that Ms Bajada has long-standing degenerative rotator cuff disease. There is no radiological evidence of any new injury following the accident in either shoulder. Any changes are minor and the consequence of normal progression of rotator cuff disease. The changes are more advanced on the right shoulder than the left, but they follow the same pattern. Deterioration of function is to be expected and is unpredictable and may occur with minor injury (GP notes 2 August 2019 – “ jerked her right arm against the table about a month ago”) or without any apparent cause (GP notes 7 January 2020 “Left arm is aching and muscles in the left arm are weak – over a month now! Hurts her to lift … no injuries”).
After the motor vehicle accident Ms Bajada had an MRI of the right and left shoulders on 6 July 2020 which showed long-standing extensive rotator cuff tears. The Medical Assessor’s view was that there was no extension of the tears from the bus door incident.
The Panel notes the reports from Dr Robert Chung from Med Radiology and Dr David Rowen made a few months before the accident which show recent extension of a chronic rotator cuff tears. The Panel also notes the history in the GP notes of 7 January 2020 of increasing pain and weakness without specific injury. This is a common history in degenerative rotator cuff tear extension. Based on this
(and other evidence), the Panel’s conclusion is that prior to the accident the claimant was suffering from chronic rotator cuff tear with natural progression expected.
CONSISTENCY
Ms Bajada gave a history to Dr Gothelf on 12 August 2022 that prior to that date her shoulders were fine. This is inconsistent with the history and notes taken by other doctors including her GP, Dr Raj Basavaraj. The history given to Dr Gothelf is also inconsistent with the report to the NSW Police[29] by Ms Bajada which records her as stating that she felt immediate pain in her right shoulder and left arm. The history she gave to Medical Assessor Woo was that her right ankle was trapped by the door and her right shoulder jammed by the door as well[30].
[29] Claimant bundle AD4 page 60.
[30] Claimant bundle AD4 page 12.
Because the Panel did not re-examine Ms Bajada it was unable to ask her about these apparent inconsistencies. Accordingly, the Panel has not placed any weight on these possible inconsistencies. They have been excluded from the Panel’s considerations and have formed no part in the Panel making any findings adverse to Ms Bajada in this review.
CONCLUSION
Based on its review of all the evidence and in particular the review of the radiology and the pre-accident treatment records, the Panel finds that Ms Bajada had long-standing degenerative rotator cuff disease which pre-dated her accident on 3 February 2020. The Medical Assessors review of the ultrasound reports show her post-accident ultrasounds are essentially similar to her pre-accident reports.
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