Bennett v QBE Insurance (Australia) Limited
[2023] NSWPICMP 152
•19 April 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Bennett v QBE Insurance (Australia) Limited [2023] NSWPICMP 152 |
| CLAIMANT: | Steven Bennett |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 19 April 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motorbike accident; pre-existing back injury; Medical Assessor found the following injuries were minor injuries: cervical spine, whiplash associated disorder; left knee, soft tissue injury; left shoulder, subacromial bursitis, lumbar spine and right leg, soft tissue injury; Held – Medical Assessment Certificate revoked; accident caused soft tissue injury to cervical spine, soft tissue injury to left shoulder; soft tissue injury to left knee; accident contributed to worsening of pre-existing back condition; two or more signs of radiculopathy identified on examination; lumbar spine accident caused aggravation of degenerative changes, with development of right-sided radiculopathy which is not a threshold injury. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 Review Panel Assessment of Minor Injury The Review Panel revokes the certificate of Medical Assessor Nelukshi Wijetunga dated 30 August 2022 and issues a new certificate determining that the following injuries caused by the motor accident are not threshold injuries: · lumbar spine – aggravation of degenerative change, with development of right-sided radiculopathy. The Panel determines the following injuries caused by the accident are threshold injuries: · cervical spine-soft tissue injury. · left shoulder-soft tissue injury with impingement; · left knee-soft tissue injury. The Panel determines the following injuries were not caused by the motor accident: · right shoulder injury; and · right knee injury. |
REASONS
BACKGROUND
On 15 July 2021 Mr Steven Bennett (the claimant) was riding his motorbike when a truck driven by the insured driver turned right in front of him. Mr Bennett took evasive action but slid off his bike and crashed into a corrugated iron shed (the accident).
Mr Bennett asserts he sustained the following injuries in the accident:
(a) injury to the neck;
(b) injury to both shoulders;
(c) injury to the thoracic spine;
(d) injury to the lumbar spine;
(e) injury to both knees, and
(f) injury to the fingers.
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to make statutory payments to for or on behalf of Mr Bennett under the Motor Accident Injuries Act 2017 (the MAI Act).
On 16 December 2021 Mr Bennett lodged an Application for Personal Injury Benefits.[1]
[1] A1 p 28.
On 11 March 2022 the insurer issued a “Liability Notice- benefits after 26 weeks” in which the insurer determined the injury sustained by Mr Bennett was minor (threshold) and that his entitlement to medical and care related expenses would cease 26 weeks after the date of accident.[2]
[2] AD1 p 20.
On 11 March 2022 Mr Bennett sought an Internal Review of that decision and on 29 March 2022 the insurer affirmed the earlier decision that all the injuries suffered by Mr Bennett in the accident fell within the definition of minor (threshold) injury.[3]
[3] AD1 p 14.
The claimant filed an application with the Personal Injury Commission (the Commission) on 30 March 2022 seeking a medical assessment to resolve the minor (threshold) 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 threshold 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[4].
[4] Section 7.20 of the MAI Act.
The minor (threshold) injury dispute was referred to Medical Assessor Wijetunga.
THRESHOLD INJURY- STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold 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 threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine Clauses 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8 Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In Briggs v IAG Limited trading as NRMA Insurance[5] his Honour Justice Wright stated at [35]:
[5] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“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. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
CERTIFICATE OF MEDICAL ASSESSOR NELUKSHI WIJETUNGA[6]
[6] R1 p 10.
The dispute referred to Medical Assessor Nelukshi Wijetunga was in respect of the following injuries:
· cervical spine injury – the claimant is suffering from ongoing issues and chronic pain in his cervical spine and neck;
· left and right knee injury – the claimant is suffering from knee pain and there is marrow oedema medial aspect of the medial femoral condyle in his left knee. His mobility is affected, and he requires to use a knee brace;
· left and right shoulder injury – it was found that the claimant has thickening of the subacromial bursa, equivocal for bursitis in his left shoulder and ongoing pain and restriction in his right shoulder;
· lumbar spine injury – the claimant is suffering from chronic lower back pain and disc prolapse at L4-5. There is also severe L4/5 central canal narrowing and foramina' narrowing on the left side at L2/3, L3/4 and L4/5;
· right leg injury – the claimant experiences recurring right leg paraesthesia which radiates to his foot and cannot walk for more than 1km without experiencing numbness; and
· thoracic spine injury – the claimant has endplate spurring at multiple levels with disc changes in his thoracic spine.
Medical Assessor Wijetunga reported Mr Bennett did not describe injury to the thoracic spine, right shoulder or right knee and found no injury to those body parts.
Medical Assessor Wijetunja found Mr Bennett described mild pain of the cervical spine since the accident. The neurological examination was normal and the clinical examination suggestive of muscular tenderness. She found Mr Bennett sustained a whiplash associated disorder, a soft tissue injury.
Medical Assessor Wijetunja found Mr Bennett had pre-accident mild bilateral knee pain. She also found he injured his left knee by direct impact in the accident followed by ongoing pain. She noted the scan suggested marrow oedema. She diagnosed a soft tissue injury to the left knee.
In relation to the shoulder Medical Assessor Wijetunja found Mr Bennett has mild wasting of his left shoulder, a painful arc and positive signs of impingement. The ultrasound showed subacromial bursitis. She noted inflammation of the bursa does not involve injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage concluding it was a soft tissue injury and considered minor.
Medical Assessor Wijetunja noted Mr Bennett had a background history of intermittent lower back pain and concluded that the lower back pain was clinically correlated with the mechanism of the accident where Mr Bennett had direct impact with a shed and fell off his motorbike. She noted whilst the CT scan of the lumbar spine showed severe L4/5 central canal narrowing on the left side, Mr Bennett’s symptoms were right sided. She concluded the muscles wasting on the left was probably related to the left knee injury. She found no atrophy of the right affected side; sensory changes were not in a specific dermatomal area and Mr Bennett demonstrated normal strength of the lower limbs. Medical Assessor Wijetunga diagnosed soft tissue injury to the lumbar spine.
Medical Assessor Wijetunga found the right leg paraesthesia was related to the soft tissue injury to the lumbar spine rather than a discrete injury to the leg.
In a certificate dated 30 August 2022 Medical Assessor Wijetunga certified the following injuries were minor (threshold) injuries:
· cervical spine – whiplash associated disorder;
· left knee – soft tissue injury;
· left shoulder – subacromial bursitis, and
· lumbar spine and right leg – soft tissue injury.
Medical Assessor Wijetunga certified the following injuries were not caused by the accident:
· right knee;
· left shoulder, and
· thoracic spine.
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Wijetunga was lodged by the claimant on 28 September 2022 within 28 days of the date on which the certificate of Medical Assessor Wijetunga was made available to the parties.[7]
[7] Section 7.26(10) of the MAI Act.
On 10 November 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).[8]
[8] AD2 p 4.
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[9]. Accordingly, the President’s Delegate referred the matter to this Panel to assess.
[9] 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[10].
[10] 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.
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.
On 14 February 2023 the Panel agreed an examination was required.
EVIDENCE BEFORE THE REVIEW PANEL
In response to a Direction dated 19 January 2023 the claimant uploaded to the portal an indexed bundle of documents paginated from page 1 to 60 and marked AD1.
The insurer confirmed reliance upon documents uploaded to the portal paginated from pages 1 to 20 and marked R1.
Application for personal injury benefits
The Application for personal injury benefits dated 16 December 2021 records a history of a “bad back” and that Mr Bennett was in receipt of the Disability Support Pension. Mr Bennett identified the following injuries caused by the accident:
“• right leg goes numb;
· knee;
· pain left shoulder won’t rotate;
· properly [sic] broke two fingers;
· stffnes [sic] in neck with pain, and
· lower back pain”.
Ambulance report
The report relating to the accident on 15 July 2021 states:
“Pt was riding motorbike when truck turned in front of him. Pt slid off bike and hit a corrugated iron wall. Pt was wearing helmet and had nil loss of consciousness and on arrival GCS 15. Pt sitting on grass and immediately stood to his feet on ambulance arrival. Pt has stiffness in his lumbar region and stiffness in both his left and right hands, nil other c/o of pain or obvious injures. Pt walking around post-accident talking to bystanders and police and refusing transport to hospital. Pt has nil neck pain and chest sounds equal and clear observations all within the flags and patient wife on scene will taking him home….”.[11]
[11] R1 p 5.
Dr Woolgar, general practitioner
Mr Bennett attended Dr Woolgar, general practitioner (GP) on 9 September 2021. She issued a Certificate of capacity/certificate of fitness with the following diagnosis:
“Likely soft tissue injuries to Cervical Spine, Lumbar Spine, L Shoulder and R Knee ongoing. Bilateral Ring Fingers – Resolved”.
She listed “Chronic Lower Back Pain and mild knee pain” as relevant pre-existing factors.
A Certificate of capacity/certificate of fitness completed by Dr Woolgar dated 7 December 2021 reports bilateral ring finger, cervical spine, lumbar spine, left shoulder and left knee injury.[12] It also noted previous lower back pain and mild knee pain.
[12] AD1 p 30.
A Certificate of capacity/certificate of fitness dated 9 February 2022 refers to the pre-existing chronic lower back pain and a disc prolapse at L4/5 and notes Mr Bennett was on a disability pension.[13]
[13] AD1 p 33.
In response to a questionnaire from the insurer on 2 February 2022 Dr Woolgar provided a diagnosis of soft tissue injuries to the neck, lower back, knee, shoulders and an exacerbation of chronic back pain.[14] She reported Mr Bennett presented with left knee pain which improved with a full time knee brace, lower back pain with right leg recurrent paraesthesia to the foot, chronic cervical spine pain and right shoulder pain with an inability to lift over 90º laterally.
Paul Hawkins, physiotherapist
[14] AD1 p 49.
In an Allied health recovery request (AHRR) dated 9 February 2022 Paul Hawkins physiotherapist of See Change Physiotherapy referred to chronic lower back pain with referral to the right leg and paraesthesia, indicative of discopathy at L4/5.[15] He reported the current signs and symptoms as “restricted active lumbar spine mov’ts ++ SLR L=R = 30 degrees. T=p all lumbar spine segments”.
[15] AD1 p 52.
Dr Woolgar referral
Dr Woolgar, GP referred Mr Bennett to Dr Tsai on 25 January 2022.[16] She referred to the accident. She noted he had a history of chronic lower back pain and disc issues for which he was on a disability pension. His current symptoms were described as cervical spine – chronic pain, lumbar spine – chronic pain, worse than previous with paraesthesia down the right leg and a decreased ability to stand, garden or walk. Left shoulder pain with an inability to lift laterally over 90 degrees. Left knee pain with limited walking or mobilising but improved with use of a knee brace.
Dr Nicholas Tsai, orthopaedic surgeon
[16] R1 p 10.
Dr Tsai reviewed Mr Bennett on 16 February 2022. In his report to Dr Woolgar, he reported a longstanding history of lower back pain but noted Mr Bennett was still able to walk 3 km every day with his dogs.[17]
[17] AD1 p 57.
Dr Tsai reported Mr Bennett complained of lower back pain with the right leg going numb after walking more than 1 km. He reported his left knee also gives him grief and he has problems lifting his left shoulder sideways. Mr Bennett had undergone physiotherapy for his lower back. He noted he was wearing a knee brace and had worn a back brace for many years. Dr Tsai noted Mr Bennett walked with a limp.
Mr Bennett could flex his back 60° and extend his back 20°. Sideways bending was painful. He has a straight leg raise bilaterally to 60° with lower back pain. Neurological examination of the lower limbs was unremarkable.
The left knee patella tracked centrally without crepitus. There was no effusion and he had a range of 0 to 120°. All ligaments were intact. Mr Bennett was tender over the medial femoral condyle and medial tibial plateau.
In the left shoulder he had active forward flexion to 180° but abduction only to 80° with positive impingement test. Dr Tsai reported he could just reach the back pocket with internal rotation.
Dr Tsai reported the CT scan of the lumbar spine showed lumbar spondylosis with lateral recess stenosis at L4/5 level impinging on the L5 nerve root.
Dr Tsai recommended physiotherapy for the shoulder and low back, suggested Endep and a cortisone injection into the left subacromial space. He also recommended an MRI scan of the left knee.
Shannen White, exercise physiologist
Exercise Physiologist Shannan White furnished reports dated 6 June 2022 and 4 July 2022 stating Mr Bennett had attended an initial assessment and further sessions focused on introducing general exercise to begin building strength and improving functional capacity. Mr Bennett was said to display a high level of resistance and fear of movement with high levels of reported pain.
Investigations
Ultrasound left shoulder and left groin dated 17 September 2021 found no abnormality in the left groin. In respect of the shoulder the report reads:
“Possible subacromial bursitis but no rotator cuff tendon tear demonstrated”.[18]
[18] AD1 p 41.
X-ray thoracic spine dated 17 September 2021 reported:
“The thoracic spine alignment is normal. There is moderate endplate spurring at multiple levels with disc changes noted. There is no fracture identified. The visualised pedicles appear intact.”[19]
[19] AD1 p 41.
CT scan lumbar spine dated 17 September 2021 concluded:
“There is severe L4/5 central canal narrowing. On the left side, there is foraminal narrowing at L2/3, L3/4 and L4/5”.[20]
[20] AD1 p 41.
X-ray of cervical spine reported 15 October 2021 concluded the vertebral alignment was within normal limits, the intervertebral disc heights maintained, and no fracture was demonstrated.
CT scan cervical spine reported 15 October 2021 reported:
“Vertebral alignment is normal. No fracture or suspicious osseous lesion is demonstrated in the visualised upper spine. No major disc bulge, canal stenosis or neural exit foraminal narrowing demonstrated. Early facet osteoarthritis change noted at C5/6 on the left. No paraspinal soft tissue abnormality identified.
Conclusion: No clear cause for patients worsening neck pain identified.”
X-ray left knee reported 13 November 2021 reported:
“There are no significant arthritic changes. No evidence of joint effusion or recent fracture. No loose bodies are detected. Patellofemoral alignment appears normal.”
MRI left knee reported 9 March 2022 concluded:
“Tiny area of marrow oedema medial aspect of the medial femoral condyle. Relatively preserved cartilage at all 3 compartments. No meniscal or ligament tear demonstrated.”[21]
SUBMISSIONS
[21] AD1 p 45.
Claimant’s submissions
The claimant provided submissions dated 30 March 2022.[22] The claimant submitted injuries sustained to both shoulders, to the cervical spine, to the thoracic and lumbar spine, to both knees and to the right leg are not minor (threshold) injuries pursuant to s 1.6 of the MAI Act.
[22] AD1 p 2.
The claimant provided submissions dated 27 September 2022 addressing the test required to be determined by the President’s Delegate, that is whether there was reasonable cause to suspect the medical assessment was incorrect in a material respect.
Insurer’s submissions
The insurer provided submissions dated 17 October 2022 addressing the test required to be determined by the President’s Delegate.
The insurer refers to the decision of His Honour Judge Basten in Rahman v Insurance Australia Ltd t/as NRMA [2022] NSWSC 1079 where His Honour held that Medical Assessors are only required to have regard to the material before them, but only insofar as it assists them in forming their own expert opinion as to the relevant issues. At [63] he stated:
“The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration”.
In respect of reliance on diagnostic imaging the insurer also notes that clause 5.4 of the Guidelines states: “Diagnostic imaging is not considered necessary to assess minor injury”.
In respect of the minor injury dispute the insurer provided submissions dated 22 April 2022 relying upon the reasons found in the liability notice dated 11 March 2022 and the internal review certificate and reasons dated 29 March 2022.
In the internal review letter dated 29 March 2022 in respect of minor injury the insurer outlined the contents of the Application for personal injury benefits, the NSW Ambulance record and the Certificate of capacity completed by Dr Woolgar on 9 September 2021 and the AHRR dated 9 February 2022.
The insurer submitted that Dr Tsai did not mention that two or more of the required clinical signs of radiculopathy were found on examination, noting he recorded “neurological examination of his lower limbs was unremarkable”. The insurer also noted that Dr Tsai did not mention any complete or partial rupture of tendons, ligaments, menisci or cartilage.
The insurer also noted that none of the radiological reports provided evidence to demonstrate that the claimant had sustained other than a minor injury.
THE MEDICAL EXAMINATION
Mr Bennett was examined by Medical Assessor Couch on 3 April 2023 at the Commission rooms.
Medical Assessor Couch commenced by going through the history recorded by Medical Assessor Wijetunga in her certificate and clarifying or adding to that history as needed.
Pre-accident medical history and relevant personal details
Mr Bennett said he grew up in Parkes and had been a train driver for 20 years. He had worked on both freight and passenger trains and finished up as a Specialist Class 6 driver. He was proud of having held the record for driving the longest and heaviest train in NSW (7 km long, 9 engines). He explained that he had left the railways after his freight train hit a cow and was derailed. On questioning he said that, although his engine ended up on its side, he was not injured.
After this he had worked in Canberra in a factory making aluminium handrails.
As recorded by Medical Assessor Wijetunga, he eventually left this position on medical grounds. He explained this was mainly due to longstanding diverticulitis, with recurrent episodes of abdominal pain, requiring time off work. On questioning he said that he had never had surgery for this and over the years had learnt to manage it well with diet and courses of antibiotic for acute episodes (he explained that he always kept a supply of antibiotic at home).
He had also sustained a low back injury while carrying a moderately heavy sheet of glass upstairs. This was treated conservatively; in particular, he denied any lower limb pain at that time. He had been in receipt of the Centrelink disability support pension (DSP) since approximately 2008, mainly because of diverticular disease.
He and his partner had left Canberra in 2011 and retired to Moruya on the NSW South Coast. They live on a 28 acre property a few kilometres from Moruya. He described his partner as his carer. Mr Bennett has four adult children of his own. His partner has a daughter, and she had a son who passed away in 2022.
Mr Bennett stated that prior to the accident his diverticular disease was under quite good control. When asked about his back he described this as “not bad”. He said that he was quite physically active, although he would get a backache if he split wood or rode the ride-on mower for too long. He explained that he was able to walk their two dogs (a Malamute and a Husky/Staffordshire Terrier cross) regularly. He quite often walked the dogs some 7 km to the beach and was able to walk on the beach. His partner would then pick him up.
Mr Bennett said he had ridden motorbikes since the age of 10 years. At the time of the accident, he had a Harley-Davidson and regularly went for rides with his friends. He also enjoyed deep sea fishing on a 24 or 26 foot motorboat.
Mr Bennett was also asked about the statement which appears at the top of page 5 of Medical Assessor Wijetunga’s certificate that “he recalls intermittent mild knee pain which he attributed to arthritis”. On questioning, he denied ever having had any knee pain prior to the accident.
History of the motor accident
Mr Bennett gave an account of the accident like that recorded by Medical Assessor Wijetunga. He explained that he was riding his Harley-Davidson back from a repair shop in Moruya after getting it prepared for registration renewal. It was in a 50 kmph zone, and he was heading downhill. He saw a truck waiting to make a right turn from the side road to his right and expected it to wait and turn right after he had passed the intersection. He estimated that he was travelling at about 40 kmph when the truck suddenly pulled out in his path. He braked and tried to turn to the left to avoid the truck but found a car in his way. He had to steer between the oncoming truck and the car. His bike hit the gutter on the far left side of the intersection and became airborne. Mr Bennett and the bike hit a galvanised steel shed near the road.
Mr Bennett was wearing a leather jacket, motorcycling boots, strong jeans, gloves and a helmet. He recalled that his gloved hands hit the side of the steel shed first. His helmet received a “few scuffs” but he was not knocked out. After the impact the heavy bike fell to the left with him underneath. A bystander partially lifted the bike, and he was able to crawl out, but he was initially unable to stand. He recalled that “I wanted to find the truck driver and punch him out!”
Police and ambulance attended, and the ambulance officers apparently wanted to take him to the local hospital. Mr Bennett said he declined because he was worried about his valuable motorbike. He called a friend who came with a trailer. The friend and the truck driver helped him get the bike onto the trailer to take it home. It was subsequently repaired at considerable expense.
History of symptoms and treatment following the accident
Mr Bennett recalled that after a while he was able to get up and hobble around. After getting help to get his motorbike home, he recalled having a hot shower, a couple of beers and going to bed.
When asked about his initial symptoms he recalled “pain all over – I was splatted – my whole body hit the side of the shed and the bike landed on my left leg”. He recalled that he rested in bed except for going to the toilet or getting food for about a week. He confirmed that he did not see a GP initially, explaining that it was during the COVID-19 pandemic and that it was hard to see a doctor. He added that, particularly having had various minor injuries over the years, he thought he was getting better. In the event some symptoms started to improve but some did not.
Mr Bennett went on to say that he thought (having had previous broken fingers from sport, including cricket and basketball) that he had broken both ring fingers. The right ring finger was very swollen. He taped each ring finger to the adjacent middle finger for a few weeks. He went on to say that he knew that X-rays were unlikely to lead to any change in treatment.
When asked what his worst problem was after the general soreness of the first few weeks had worn off, he replied this had definitely been his back. He added that his partner had described a large bruise (he indicated approximately 150mm across) between his shoulder blades. In addition to this and his hands, he recalled pain in the neck, left shoulder and left knee. Because of persistent symptoms, he eventually consulted his GP. A CT scan of the lumbar spine two months after the accident was reported to show degenerative changes with severe L4/5 central canal narrowing on the left and foraminal narrowing at multiple levels.
His GP referred him to Dr Nicholas Tsai. He recalled feeling that he could not afford this; when his GP explained that the CTP insurer should pay, he first contacted a solicitor. Subsequently the insurer approved the appointment with Dr Tsai, whom he saw once. Mr Bennett said that Dr Tsai ordered various scans, but nothing had been done since then. Mr Bennett went on to state “all I really want out of this is to see Dr Tsai and see what can be done for my back”.
It seems that he has not had further investigation or treatment for his back pain. He had one injection to his left shoulder with little benefit, but no injections to his back. He described weekly physiotherapy for a period of about 18 months, but the insurer had since ceased this. Mr Bennett said he was still doing exercises, mainly for his back.
He went on to explain that he had been a keen competitive swimmer when younger and occasionally swam at a nearby beach prior to the accident. He said that he had not been swimming for exercise since the accident but would like to do so. He said there was no easily accessible heated pool.
Current symptoms
Lower back
When asked which body area bothered him most, Mr Bennett said that this was definitely his low back. He described a constant pain, pointing to the right lumbosacral area. He said he definitely has no pain-free days with his low back. He also said that his back was more painful than usual after experiencing turbulence on the flight that morning from Moruya to Sydney. He wears a back brace.
He described radiation of low back pain to the right buttock and right lateral hip. He described his right lower limb as “going to sleep” when he is walking, and he sometimes drags the foot. He has caught his foot and fallen on two occasions. He went on to describe radiation to the anterior right thigh and the posterior posterolateral right calf and all toes of the foot.
Low back symptoms increase with prolonged sitting – he will get brief relief from standing up and walking around, but then his right leg will go to sleep, and he needs to sit again. He described some relief from lying down and taking the strong opiate OxyContin. Mr Bennett described a marked loss of walking tolerance compared with prior to the accident. As noted above, he said that he could regularly walk his dogs seven km to the beach but was now “flat-out doing one km”.
Left knee
Mr Bennett described pain, pointing quite precisely to the anterior medial joint line. This is constantly present but worse with weightbearing. He experiences clicking and giving way with the left knee, but it does not lock. He wears a knee brace.
Shoulders
Mr Bennett only described symptoms in his left shoulder. When asked about his right shoulder he said that it was “OK – I don’t need any more injuries!” He described left shoulder pain, pointing to the glenohumeral joint (shoulder joint proper). He demonstrated pain on abduction to 80 degrees and mentioned pain when he puts a shirt on. He can briefly lie on his left side in bed, but mostly sleeps on his right side.
Right knee
Mr Bennett said that his right knee was sore initially, but this had resolved, stating “that’s the one that’s good”. However, as noted above, he said that right lower limb symptoms, which he related to his low back, continue to be a major problem.
Neck
When asked about neck symptoms Mr Bennett stated, “it’s a bit stiff at times – I put it down to old age”.
Thoracic spine
Mr Bennett described some pain between the shoulder blades which occurs “when I’m tired and everything is hurting”. He denied any referred pain around the chest.
Fingers
These were not referred to Medical Assessor Wijetunga but had been mentioned by Mr Bennett. He described these as “fine – they just click and carry on”.
Current and proposed treatment
Mr Bennett continues to take the opiate analgesic OxyContin (Oxycodone) 5 mg tablets. He said that he tries to only take one at night, but sometimes takes up to three a day. He explained that he had taken two OxyContin in the morning prior to the examination and expected to take another one afterwards because of increased pain. In addition, he takes Paracetamol approximately 10 tablets per day.
As noted above, Mr Bennett said his main concern with all the proceedings was to be able to see Dr Tsai and get advice about any possible further treatment for his back.
Present activities
As noted above, Mr Bennett continues to live with his de-facto partner Sandra on a rural property. He said whereas he was previously physically active, he can no longer do much. He said that Sandra now does most of the mowing and does the housework. He described his driving tolerance as 30 minutes maximum (mainly because of low back pain). He went on to state that when he had driven to Canberra to see Dr Tsai on the one occasion, he had needed to stop for relief four times. He had previously tried riding his Harley-Davidson (these machines usually offer an upright rather than a forward-flexed posture for the rider) but it was too painful. In particular, he stated: “the right leg goes to sleep and falls off the foot peg – that’s the last thing you want because it will catch on the ground!” He has since sold his motorbike.
Physical examination
Mr Bennett attended promptly. The assessment took approximately 90 minutes. He walked down the corridor towards the examination room slowly with a marked limp. He looked obviously stiff and sore and was noted to move slowly and stiffly in and out of a chair and on/off the examination couch. During examination on the examination couch, he needed to get up from the supine position several times because of increased low back pain and was somewhat more comfortable sitting.
Mr Bennett was balding, had a long beard, an earring and tattoos. There was considerable sun damage to exposed areas of the skin and moderate central obesity. When undressed to his underpants he looked like someone who had been quite strong in the past, but who had lost muscle bulk from both upper and lower limbs. Height was 172cm and weight 86kg.
Mr Bennett presented in a straightforward manner and gave clear, specific answers to questions. There was no suggestion of exaggeration of symptoms. He cooperated with all suggested active movements. He could smile and share a joke appropriately but was clearly also frustrated by his ongoing symptoms and restrictions.
Cervical spine
Posture of the cervical spine was within normal limits. On palpation he reported slight tenderness at the cervicothoracic junction from C7 to T2 in the midline. Trapezius muscles were not abnormally tense and were non-tender to palpation. Active cervical flexion was full at 60 degrees and extension almost full at 40 degrees (normal is 45 degrees), with some pain described. There was some restriction of active cervical spine rotation at 60 degrees to the left (three-quarters normal) and 50 degrees to the right (two-thirds of normal). Lateral flexion was about two-thirds of normal at 20 degrees bilaterally. During these movements Mr Bennett said that he could feel cracking in his neck. Mr Bennett did not describe non-verifiable complaints in the upper limbs.
Thoracic spine
On palpation Mr Bennett described slight tenderness over the lower thoracic spine from T8 to T10. Spinal rotation (which mainly occurs in the thoracic spine) was tested with Mr Bennett seated on a chair to stabilise the pelvis. It was full at 40 degrees to the right but only half of normal to the left at 20 degrees. Left rotation was accompanied by low back pain but no thoracic spine symptoms. He did not describe non-verifiable radicular complaints in relation to the thoracic spine.
Lumbar spine
On palpation, Mr Bennett described slight tenderness over the lumbosacral spine from L1 to the sacrum, mostly in the midline. Active lumber spine movements were carefully measured with Mr Bennett standing with knees straight. They were markedly restricted: he could only flex forward cautiously with fingertips to the knees, with a much reduced 2.5 cm expansion over a measured 15 cm lumbar segment, accompanied by low back pain (the lower limit for this McRae-Wright movement is 5 cm). Lumbar extension was two-thirds of normal at 20 degrees and described as more comfortable than flexion. On questioning Mr Bennett said that he sometimes uses lumbar extension for relief. Lateral flexion of the lumbar spine was markedly asymmetric – it was full and relatively pain-free to the right at 30 degrees, but only one-third of normal and painful to the left at 10 degrees.
Medical Assessor Couch attempted to assess for lumbar paraspinal muscle spasm by palpating these muscles while Mr Bennett moved his weight from one foot to the other. He had difficulty balancing properly on either foot, but palpation of these muscles while he walked slowly indicated at least a degree of normal relaxation of the muscles on the weightbearing side.
As noted above, Mr Bennett appeared to have considerable difficulty lying supine on the couch for any length of time and needed to sit up on several occasions. He was obviously in pain.
Upper extremities
His hands were soft and clean with no callouses at all (Mr Bennett laughed when comparing them with the state of his hands when working in the past). There was a scar from a previous left Dupuytren’s contracture release on the left palm. Grip strength was normal bilaterally. Mr Bennett stated that he was right-handed. The right upper arm measured 33cm in circumference, the left 32cm. The right forearm measured 28.5cm and the left 28cm. Biceps, triceps and brachioradialis reflexes were normal and symmetrical. There was no detectable weakness in either upper limb and light touch sensation was preserved bilaterally. Thus, there were no signs of cervical radiculopathy.
Turning to the shoulders, there was no wasting of the shoulder girdle muscles. Mr Bennett described moderate tenderness over the anterior and to a lesser extent lateral aspects of the left glenohumeral joint, but the right was not tender. Active range of movement (AROM) of the shoulders was recorded as follows:
Right Left Flexion 180° 140° Extension 60° 20° Abduction 170° 140° Adduction 30° 30° External rotation 90° 70° Internal rotation 60° 50°
Mr Bennett described pain at the limits of left shoulder movements, particularly flexion, abduction and internal rotation. On repeat abduction and recovery of the left shoulder there was a typical reproducible painful arc and clicking at 90 degrees indicating impingement. Impingement signs were on the right. Power of resisted shoulder movements was within normal limits bilaterally, although effort was accompanied by pain on the left.
Lower limbs
The right (dominant) thigh measured 42cm in circumference, 10cm proximal to the patella. The left measured 41.5cm. Both calves measured equally at 37cm. Knee jerks and ankle jerks were normal and symmetrical. Power of extensor hallucis longus (L5 nerve root) was full on the left. On the right it was somewhat reduced (grade 4/5), although effort was also accompanied by reported back pain. Power of ankle eversion (S1 nerve root) was normal bilaterally. Light touch sensation was reduced over the dorsum and lateral part of the left foot, but completely normal on the right.
Straight-leg-raising on the left was restricted to 40 degrees with low back pain, but no lower limb symptoms and negative sciatic stretch testing. On the right straight-leg-raising was restricted further to 30 degrees, initially with low back pain, but with definite lower limb pain reproduced by sciatic stretching – indicating positive nerve root tension.
Both knees were normal to appearance. The right knee measured 38cm in circumference, the left 37cm. Both knees showed a full AROM from 0 to 140 degrees. There was very slight crepitus on movement in the right knee and moderate crepitus on the left. In the right knee ligaments were all clinically intact, there was no significant joint tenderness, and no pain was reproduced with patellofemoral grinding. However, Clarke’s apprehension test was painful, suggesting a degree of patellofemoral pain.
In the left knee there was moderate localised tenderness to palpation over the medial joint line. Patellofemoral grinding on the left was painful and Mr Bennett was apparently unable to contract the left quadriceps properly for Clarke’s test.
At the end of the assessment, Medical Assessor Couch demonstrated various functional activities and invited Mr Bennett to copy these. He was unable to walk on tiptoes or heels although he was able to lean with his hands against the wall and rise up on his toes with both heels well off the floor (he explained that he did this as one of his exercises at home). Without using hand support, he was only able to squat down a third of the way to the floor and recover. Using both hands on adjacent furniture for support, he could squat fully and recover.
On Romberg’s test (standing to attention with eyes closed) he was unsteady but could just manage this. He was unable to perform a tandem walk (walking in a straight line heel to toe), being very unsteady.
Examining Medical Assessors impression
Steven Bennett is a 66-year-old man who retired from paid employment on the DSP at age 52, principally because of diverticular disease. He also had a history of low back pain but says that he continued to be reasonably physically active prior to the accident.
He was involved in a significant motorcycle accident when he was forced off the road and both he and his bike hit a metal shed at low to moderate speed, with the heavy bike ending up on his left side.
He reports a major change in symptoms, function and lifestyle since the accident.
Mr Bennett reports his main problem as low back pain, with right lower limb radicular symptoms. His right lower limb symptoms are suggestive of spinal claudication with increasing numbness and dragging of the leg/foot on walking. Examination of the right lower limb shows positive neural tension, diminution to light touch in the L5/S1 distribution and some right L5 (extensor hallucis longus) weakness. Gait is markedly abnormal.
He has typical impingement symptoms and signs in the left shoulder but reports little or no benefit from one previous injection.
He has some pain, tenderness and crepitus in the left knee.
Based on Mr Bennett’s history, he may have sustained undisplaced fractures of one or more fingers in the crash when his gloved hands hit the metal shed. No imaging was apparently performed which would confirm or disprove this.
DIAGNOSIS, CAUSATION AND THRESHOLD INJURY
Cervical spine
The Panel notes no prior history of neck pain. The Panel notes the significant impact whereby the claimant slid off his bike and crashed into a corrugated iron wall. The Panel notes Dr Woolgar identified soft tissue injury to the cervical spine following the accident and he underwent an X-ray and CT scan of the cervical spine on 15 October 2021 when no clear cause for the claimant’s worsening neck pain was identified. Medical Assessor Couch recorded complaints of neck stiffness from time to time but did not identify any signs of radiculopathy or non-verifiable complaints in the upper limbs.
The Panel finds the claimant sustained a soft tissue injury to the cervical spine caused by the accident.
In the absence of radiculopathy, the soft tissue injury to the cervical spine is assessed as a threshold injury.
Left shoulder
The Panel notes no prior history of left shoulder pain. The Panel notes the complaints of left shoulder pain reported by Dr Woolgar, the referral to Dr Tsai and the ultrasound performed on 17 September 2021. On examination Medical Assessor Couch reported pain in the glenohumeral joint, tenderness, reduced active range of movement of the left shoulder and signs of impingement.
The Panel finds the claimant sustained a left shoulder soft tissue injury with impingement caused by the accident.
In the absence of an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage the soft tissue injury to the left shoulder is assessed as a threshold injury.
Left knee
The Panel notes no prior history of left knee pain. The Panel notes the complaints of left knee pain reported by Dr Woolgar and Dr Tsai, the X-ray of 13 November 2021 and the MRI of 9 March 2022. The Panel also notes prior to the accident the claimant was physically active including walking his dogs some 7km to the beach. The Panel notes Medical Assessor Couch’s findings of pain, tenderness and crepitus on clinical examination.
The Panel finds the claimant sustained a soft tissue injury to the left knee.
In the absence of an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage the soft tissue injury to the left knee is assessed as a threshold injury.
Right shoulder
There was no specific complaint of injury to the right shoulder following the accident and the Panel notes on examination Mr Bennett indicated his right shoulder was okay, suggesting it was not injured.
The Panel finds the claimant did not sustain injury to the right shoulder caused by the accident.
Right knee
Whilst Mr Bennett complained of right leg symptoms, they relate to his lower back condition.
The Panel is not satisfied the claimant sustained injury to the right knee in the accident.
Lumbar spine
Whilst the Panel has regard to the history of low back pain which pre-dated the accident the Panel notes prior to the accident the claimant was physically active, able to walk his dogs 7km to the beach, ride his Harley Davidson motor bike, enjoy deep sea fishing and participate in mowing and housework on the property he shares with his partner. Following the accident the ambulance report noted stiffness in the lumbar region, and complaints to Dr Woolgar of lower back pain with referred pain and paraesthesia to the right leg.
Having regard to Briggs the Panel is satisfied the accident contributed to a worsening of the claimant’s pre-existing back condition and that the contribution was more than negligible. Medical Assessor Couch identified two or more signs of radiculopathy on examination. The Panel finds the claimant has sustained an aggravation of pre-existing degenerative change caused by the accident which has led to the development of right sided radiculopathy.
Whilst Dr Tsai recorded the “neurological examination of his lower limbs was unremarkable” the Panel adopts the reasoning in David v Allianz Australia Ltd[23] that the definition of threshold injury can be satisfied at any time following the accident for the purposes of the MAI Act.
[23] [2021] NSWPICMP 227 at [84]-[104].
At the time of his clinical examination by Medical Assessor Couch the claimant demonstrated two signs of radiculopathy and met the definition of a non-threshold injury.
In accordance with the Guidelines the injury, namely, lumbar spine – aggravation of degenerative change, with development of right-sided radiculopathy is assessed as a non-threshold injury.
PANEL FINDINGS
The Panel finds the following injury caused by the accident is not a threshold injury:
·lumbar spine – aggravation of degenerative change, with development of right-sided radiculopathy.
The Panel determines the following injuries caused by the accident are threshold injuries:
·cervical spine – soft tissue injury;
·left shoulder – soft tissue injury with impingement, and
·left knee – soft tissue injury.
The Panel determines the following injuries were not caused by the accident:
·right shoulder injury, and
·right knee injury.
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