Chandab v Allianz Australia Insurance Limited
[2023] NSWPICMP 521
•17 October 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Chandab v Allianz Australia Insurance Limited [2023] NSWPICMP 521 |
| CLAIMANT: | Rouba Chandab |
INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Sophia Lahz |
| MEDICAL ASSESSOR: | Peter Yu |
| DATE OF DECISION: | 17 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; medical assessment of threshold injury by Medical Assessor Cameron (MA) and claimant’s review under section 7.26; claimant passenger in her husband’s car when it swerved to avoid a collision with another car and rolled; claimant alleged injuries to her head, back and neck and developed shoulder and psychological injuries after the accident; parties agreed that the issues requiring determination where whether an L5/S1 annular tear was caused by the accident (no record of low back pain for six months after the accident) and whether the claimant has had cervical radiculopathy at any time since the accident (no treating specialists or GP diagnosis – reference to radiculopathy in MRI images); Held – on examination, claimant did not have any of the five signs of radiculopathy as required by clause 5.8 of the Motor Accident Guidelines; review of medical notes and records did not reveal any of the signs of radiculopathy at any time; reference in the radiology scan was to pathology which might explain radiculopathy but was not a finding that there was radiculopathy; while a back injury could have occurred due to mechanism of the accident, the claimant’s back injury was not caused by the accident due to unexplained six-month gap between date of accident and first complaint of symptoms; certificate of MA Cameron confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate of Medical Assessor Cameron dated 5 March 2023. 2. Certifies that the injuries sustained by Ms Chandab in the accident of 23 September 2021 are threshold injuries for the purposes of the Act. A statement setting out the Panel’s reasons for the assessment is included with this certificate. |
INTRODUCTION
On 23 September 2021, Rouba Chandab was involved in a motor accident. She was the front seat passenger in the family car driven by her husband when they were involved in an incident with another vehicle. Ms Chandab’s husband swerved and lost control of the car which rolled.
The claimant says she injured her head, back and neck and developed shoulder pain and a psychological condition as a result of the accident in the accident. She made a claim for statutory benefits against Allianz, the third-party insurer of the vehicle Ms Chandab says caused her accident.
A medical dispute about whether any of the claimant’s injuries were not threshold injuries arose in connection with that claim and Ms Chandab referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 5 March 2023 Medical Assessor Cameron determined that all of Ms Chandab’s injuries were threshold injuries. The claimant then lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 1 May 2023, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review. On 4 May 2023 the President’s delegate convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Jurisdiction
Ms Chandab’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.
The statutory benefits available under the MAI Act are limited. One of these limitations is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 or 52 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.[1]
[1] The statutory benefits scheme was amended by legislation in 2022. The term “threshold” injury was introduced to replace the previous term “minor” injury and this amendment applies to all claims regardless of the date of the accident. The availability of statutory benefits was amended to allow benefits for 52 weeks (previously 26 weeks) but this amendment only applies to accidents occurring on or after 1 April 2023.
In a common law, fault-based claim, no damages are recoverable if the claimant’s only injuries are “threshold” injuries.[2]
[2] Section 4.4 of the MAI Act.
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.”
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, clause 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Relevantly to the matters in issue in this claim, clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines.[3]
[3] Chapter 6 of the Guidelines.
In summary:
(a) 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) (e.g. a nerve injury or a complete or partial rupture of a tendon, ligament, meniscus or cartilage), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act, and
(b) if the person injured in the car accident sustains a spinal nerve or nerve root injury this is a threshold injury unless the particular injury to the nerve or nerve root manifests in signs of radiculopathy in accordance with cl 4 of the MAI Regulation.
Radiculopathy
Clause 5.8 provides that a finding of radiculopathy can only be made when two or more of the following clinical signs are found on examination.
(a) loss or asymmetry of reflexes (see the definitions in Table 6.8 of the Guidelines);
(b) positive sciatic nerve root tension signs (see the definitions in Table 6.8 of the Guidelines);
(c) muscle atrophy and/or decreased limb circumference (see the definitions in Table 6.8 of the Guidelines);
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The two cases of David v Allianz Australia Insurance Ltd[4] and Lynch v AAI Limited t/as AAMI[5] establish that whether the claimant has a threshold or non-threshold injury on the day of any re-examination by a Panel is only one part of the assessment. The Panels found in those two cases that if, at any time after the accident, the claimant’s accident-related injury falls outside the definition of threshold injury contained within s 1.6 of the MAI Act, the claimant must be found to have non-threshold injuries regardless of the state of the injury (healed, recovered, in remission) at the time the Panel undertakes its assessment. The panel in Lynch gave the example of a simple fracture sustained in the accident that heals by the time of the assessment. The injury is a non-threshold injury even though the claimant may have recovered from it.
[4] 2021 NSWPICMP 227 (David).
[5] 2022 NSWPICMP 6 (Lynch).
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the MAI Act.[6] In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
“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.”
[6] The current version of the Guidelines I version 9.1 effective 1 April 2023.
The method of assessment in cl 5.6 appears to extend to medico-legal or other experts retained by the claimant and the insurer including treating practitioners.
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.[7]
[7] Schedule2, cl 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for original medical assessment such as Medical Assessor Cameron’s, further medical assessments and the Review of medical assessments by this Panel.[8]
[8] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Cameron examined the claimant on 21 February 2023. He issued his certificate on 5 March 2023.
At [2] he confirms the injuries he was asked to assess:
(a) head – closed head injury;
(b) cervical spine – injury to the cervical spine and cervical radiculopathy;
(c) shoulder – referred injuries from the cervical spine to both shoulders, and
(d) lumbar spine – back Injury and annular tear at L5/S1.
The Medical Assessor at [9] records a history of the claimant being in the front passenger seat of a vehicle being driven by her husband on the M4 freeway when there was a collision with a truck and “multiple rollovers”. The claimant was taken to Westmead Hospital reviewed and discharged following which she saw her general practitioner (GP) Dr Soliman.
The claimant complained (recorded at [12]) of neck pain with reduced movement, shoulder pain and headaches, low back pain with pain in the left leg. The claimant reported psychological symptoms including poor sleep, fear of driving further than locally, agitation and depressive feelings.
Medical Assessor Cameron says at [14] there was no evidence of cognitive impairment. On examination of the neck there was a reduction of movement which was symmetrical with no spasm, guarding or dysmetria or radicular complaints. Nerve tension signs were negative. Shoulder movement was inconsistent (due to pain) but no neurological abnormalities.
At the thoracic spine, all movements were reduced but symmetrically so, there was no muscle spasm, guarding or dysmetria.
In the lumbar spine, there was also symmetrical loss of motion with no spasm, guarding or non-verifiable radicular complaints and there were no neurological signs.
At [21], Medical Assessor Cameron says in respect of the claimant’s shoulder problems that “pain is a symptom not an injury” therefore pain radiating into the shoulders may be a symptom of an injury but there was no actual specific injury to the shoulders.
At [22], Medical Assessor Cameron says that radiculopathy is not currently present and has not been present since the accident. He said at [20] that the annular fissure reported at L5/S1 was not caused by the accident because it is a common finding the asymptomatic people.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant argues at [3] that the Medical Assessor did not give reasons or respond to a clearly articulated argument about the L5/S1 annular tear. The claimant says the Medical Assessor did not apply the proper test of causation.
The claimant also takes issue with the finding concerning radiculopathy and says that the Medical Assessor did not apply the principles in the David case.
The claimant argues that the Medical Assessor did not explain why the accident did not cause the L5/S1 tear and did not refer to the evidence about commonality and give the claimant the chance to respond. The claimant points out that the accident was a high-speed collision of considerable force where the vehicle rolled multiple times and the roof of the cabin was crushed.
The claimant says the test of causation is whether the accident was a contributing cause “more than negligible” to the injury.
The claimant relies on an MRI report of 7 December 2021 which refers to a C5 radiculopathy and says that, in accordance with David, if radiculopathy is present at any time, there must be a finding of non-minor injury.
Insurer’s submissions
The insurer notes that the Westmead Hospital records, and the records of Dr Soliman do not refer to lumbar spine symptoms and that the request for physiotherapy mentions only neck pain. The insurer says the lumbar spine condition was not caused by the accident.
The insurer says the Medical Assessor drew upon his clinical expertise when determining causation and decided two things that the annular fissure is a common finding and that there was no evidence to support a finding of causation of injury.
The insurer says that the reference to radiculopathy is in a radiological report referencing the possibility of radiculopathy. The insurer says there is nothing in the records of Westmead Hospital or the GP records to suggest any of the signs of radiculopathy.
Procedural matters
The Panel issued directions to the parties dated 15 May 2023 requesting confirmation that the two issues in the proceedings were the cause of the L5/S1 annular tear or fissure and whether the claimant has, or has had, radiculopathy in the cervical spine.
The Panel directed the parties to provide documents not already provided and invited final submissions. The Panel also requested access to the radiology.
The claimant responded to the directions in a message relayed to the Panel on 7 July 2023 as follows:
(a) “we confirm that the issues requiring determination are whether the annular tear at L5/S1 is causally related to the subject accident and whether the claimant has, or has had, cervical radiculopathy at any time since the subject accident which is causally related to the injuries she sustained in the subject accident”;
(b) “we do not have any further documents on which to rely, other than those which have been previously provided to the PIC”;
(c) “we do not wish to make any further submissions”, and
(d) “we attach the claimant’s signed authority to MRI Now which will enable the PIC to obtain copies of imaging and reports held by that entity”.
The insurer responded in a message relayed to the Panel on 17 July 2023 advising the Panel that it had no further documents to provide and did not wish to provide any further submissions.
REVIEW OF THE EVIDENCE
General matters
The claimant provided a bundle of documents comprising 89 pages with the original application for medical assessment.[9]
[9] This bundle is referred to as document A1 in these reasons.
The insurer provided a bundle of documents comprising 28 pages with its reply to the original application.[10]
[10] This document is referred to as document R1 in these reasons.
Neither party relies on any medico-legal reports and there are no other assessment decisions before the Panel. The Panel understands the psychiatric injury alleged by the claimant has not yet been assessed.
Claim form and claim documents
The Application for Personal Injury Benefits was signed and dated 8 November 2021.[11] The claimant was 46 at the time of the accident. The claimant provides this description of the accident:
“We were driving in the middle lane, the tow truck was in the far left and was trying to get to the othersie as there was an accident there as well. He took the middle lane and we moved away to the right lane and the tow truck kept going and we moved further away abut he turned all the way and ended up hitting us causing the 4WD to flip multiple times.”
[11] Page 5 of R1.
The claimant then describes her accident:
“Due to the accident hitting mainly passegner seat caused the roof to fall in on me, which caused my head to swell, including head, neck, shoulder and back pain. Till now the pain is still severe, I keep hearing cracks in my neck and unable to turn my head around, also still causing headaches and back, neck and shoulder pain.”
The claimant has provided a copy of the police report[12] which notes the accident occurring on the M4 where the speed limit was 110 kph. The pre-crash speed of the insured vehicle was said to be 50 kph and the claimant’s husband’s vehicle was being driven at 90 kph. The police record the following crash summary:
“[The tow truck] slowed and began turning into a U turn bay on the motorway from lane 2, curtting off all traffic including [the claimant’s husband’s] who swerved to avoid a collision with [the tow truck]. As a result, [the claimant’s husband’s vehicle] has turned into the median strip rolling a number of times.”
[12] Page 25 of A1.
A photograph of the family’s vehicle is provided which shows significant deformation damage to the passenger side roof, windscreen and bonnet. While the police report suggests the airbags in the claimant’s husband’s car did not deploy, one photograph shows the airbags, at least on the claimant’s side deployed (although it does not appear any deployed on the driver’s side of the vehicle).
Treating medical records and reports
The ambulance document[13] has this report of the event:
“[Patient] front passenger in 4WD which had near miss with tow truck at 80 kms ph veering into middle of freeway grass area, hitting a drain and rolling once. Car roof intrusion of [patient’s] side and windshield smashed. [Patient] denied [loss of consciousness, remembers all events. [Patient] complains of severe head and neck pain.”
[13] Page 37 of A1.
The discharge summary from Westmead Hospital notes the claimant was admitted and discharged on the day of the accident. It notes no loss of consciousness, no chest or abdominal pain, no limb injury, no paraesthesia or limb weakness. The claimant had some neck pain, had hit her head and had tenderness in the thoracic spine. CT scans of the cervical spine and chest were taken showing no abnormalities.
Records have been provided by Dr Soliman of the Granville Bridge Medical Centre.[14] The notes commence with an entry on 28 October 2009 and five entries before the car accident which do not document any musculoskeletal or other relevant injuries.
[14] Page 63 of A1.
After the accident, the claimant first attended Dr Soliman on 2 November 2021. A history of the accident is recorded of the claimant’s husband’s car hitting the tow truck and landing on its side. Dr Soliman records “Since the accident she sustained cervical spine pain, restricted movement, can’t sleep at night from the pain.” On examination the claimant had a very stiff and restricted neck with flexion and extension and sideways movement reduced. There is a “plan to repeat” her MRI.
On 5 November 2021, Dr Soliman records the claimant was seeking compensation to get physiotherapy and maybe a medical review.
Dr Soliman completed the certificate of fitness and capacity on 5 November 2021.[15] She diagnosed “whiplash cervical spine injury” and noted the claimant had restricted movement and headache. Other certificates of capacity repeat the “whiplash cervical spine injury” diagnosis.
[15] Page 75 of A1.
On 24 November 2021 the claimant attended again, and the neck pain was not getting better, and the claimant had pain and headache. Dr Soliman advised she had referred the claimant for an MRI, and she would then consider physiotherapy and imposed a lifting restriction of 5kg.
On 13 December 2021, Dr Soliman records:
“MRI cervical spine showing multiple disc prolapses
she did not have any pain or problem before the accident
she is hearing cracking every time she moves her neck the pain is getting worse, headache increasing can’t sleep well without pain killer
does not work she is a grandmother looking after her family
she is using Panadeine Forte before bed
during the day it makes her drowsy
physio next year
will give her Endep 10mg and paracetamol during the day
she is feeling scared driving too scared to change lanes ? having anxiety.”
On 9 February 2022, Dr Soliman records:
“Having neck pain and shoulder pain on the left side sleeping with pain killers been busy with her family going back to school so did not get any physio advise to start physio despite the long period having anxiety on driving having fear ? need to get CBT.”
A referral was given to Guildford Physiotherapy and to Dr Abu-Arab for psychiatric treatment.
The claimant was referred to Dr Abu-Arab by her GP Dr Soliman on 9 February 2022 due to fear of driving and anxiety.[16]
[16] Page 50 of A1.
The first Allied Health Recovery request dated 21 February 2022[17] notes a diagnosis of “musculoskeletal injury to neck – disc related” and the current signs and symptoms include:
(a) constant pain in the neck on both sides;
(b) referral into the shoulders and upper back (left more than right);
(c) no referral into upper limbs although “some pins and needles / numbness in tip of fingers if doesn’t move for a while”;
(d) limited sitting standing and walking and lifting restrictions;
(e) range of motion in neck limited, and
(f) shoulder range of motion limited.
[17] Page 23 of R1 and page 57 of A1.
The goal of the physiotherapy was stated to be, to improve the active range of neck and shoulder motion.
Radiology
A CT scan of the claimant’s cervical spine was performed on 7 December 2021[18] with a clinical history given of “after MVA. Restricted neck motion. ?whiplash injury.” This reported:
(a) protruding disc at C3-4, C4-5, C5-6 and C6-7;
(b) stenosed neural foramina, “which may account for C4 nerve root impingement”;
(c) right-sided foraminal stenosis with discophytes, which might explain C5 radiculopathy;
(d) stenosed neural foramina with discophyte formation and evidence of nerve root impingement, and
(e) stenosed neural foramina with evidence of C7 nerve root impingement on the left.
[18] Page 47 of A1.
There is an MRI of the cervical and lumbar spine dated 1 July 2022[19] which was undertaken due to a history of “MVA in December 2021, Whiplash injury. Cervical pain and left sciatica.” The scan shows:
(a) a small disc bulge at C3-4;
(b) degenerate changes (spurs) causing some stenosis, foraminal encroachment and indentation of the thecal sac, and
(c) disc desiccation at L5-S1 with “tiny central annulus tear with mild disc bulging” but no canal stenosis or neural impingement.
RE-EXAMINATION FINDINGS OF DR SOPHIA LAHZ
[19] Page 21 of R1.
Introduction
Ms Chandab arrived punctually at the Commission’s medical suites for physical re-examination on 16 August 2023. She was accompanied by her brother Robert who had collected Ms Chandab from her home in Mt Druitt and driven her to the appointment.
Ms Chandab presented in a distressed, physically disabled state, walking slowly with stooped posture, whilst holding onto her brother’s arm. It was several minutes before she could sufficiently compose herself to commence the interview and examination process. There was a lot of sighing associated with visible signs of discomfort. She complained of profuse neck and low back pain induced by the trip into the city. Medical Assessor Lahz fetched her a pillow and suggested that she alternate standing or sitting during the interview as necessary.
Ms Chandab repeatedly asked how long the interview and examination would take. When she was told it would take around 60-90 minutes, she was concerned as to whether she would be able to tolerate this. She was also concerned about the reason for the assessment. Medical Assessor Lahz explained that her solicitor had disputed the findings of the original assessor and that the medical dispute between her and the insurer had been referred to a three-person panel comprising two doctors and one legal member. She was concerned that she might have to speak with the other (two) Panel members and made it clear that she does not wish to see or speak with any other doctors due to her high pain levels and psychological distress. Medical Assessor Lahz said she appeared to be unaware of the Review which had been lodged in relation to the original assessment. Medical Assessor Lahz reassured Ms Chandab that she would do my best to make the examination process as easy for her as possible.
History of the accident and treatment
Ms Chandab provided the following history. Medical Assessor Lahz said that occasionally she had to ask Ms Chandab’s brother for clarification of some points. He remained silent and did not participate unless directly addressed.
Ms Chandab is aged 48, and right-handed. She was born in Australia of Lebanese parents. She is married and has three children aged 20, 16 and 9. Her husband works as a panel beater. Ms Chandab has not worked and described herself as a “homemaker” and full-time mother. She indicated in the claim form that she is in receipt of the carer’s payment. She did not indicate who she was caring for.
She reported no physical or psychological problems before the subject motor accident. She is a long-term smoker and says she is smoking significantly more since the motor accident. She does not consume alcohol. Before the subject motor accident, she said her only medication was the oral contraceptive pill. She said there were no problems with either her neck or back before the accident and that she did not suffer from any significant medical conditions.
Her brother said that she was the eldest of six, and the one the others looked to as the “role model”. Before the accident, there would be very regular family gatherings at her home which she organised.
Whilst Ms Chandab is concerned by high levels of spinal pain, she is also very concerned (even more worried) about the deterioration in her mental health since the motor accident. She volunteered that she has experienced sometimes suicidal ideation and she also referred to ongoing poor sleep, flashbacks and nightmares. Medical Assessor Lahz explained that she would be assessing only the physical injuries from the motor accident. Later on, she returned to the subject of her mental health about which she says she is extremely concerned.
Ms Chandab confirmed her involvement in the accident of 23 September 2021. She said that she does not like talking about it. It was agreed that Medical Assessor Lahz would provide a history from the documents and that she could amend any errors.
Ms Chandab was the restrained front seat passenger in a car driven by her husband, when a truck collided with them causing the vehicle in which she was travelling to roll on multiple occasions. She said her daughter aged 9 was also in the car. The car finished in the upright position and there was significant damage to the vehicle.
Ms Chandab said she recalled the events of the accident itself. She believes she hit her head on the cabin roof. She said the ambulance arrived and she was given drugs and then her memories became hazy. She said that she did not feel very much at all initially. After she returned home from the hospital, there was a lot of pain in her head, neck and lower back. The pain was so bad that she “couldn’t move and felt paralysed” she said.
Medical Assessor Lahz pointed out to her that neither the ambulance report nor the hospital records refer to any low back pain. Ms Chandab suggested that the “strong” pain tablets given to her by the ambulance and hospital may have “masked” the pain in the lower back. She could also not tell the Medical Assessor when it was after the motor accident that low back pain had first developed or when she first became aware of it. She remarked: “Well, I did not have any low back pain before the accident, so all of this, that is the persistent neck and low back pain, must be due to the accident”. She proceeded to explain that a scan of the lower back later on had shown a “disc” problem.
After the accident, she said she received intermittent physiotherapy targeting her neck only. The treatment which she said was mainly “the massage” provided short-term relief and her condition would worsen when the treatment ceased. The Panel notes this physiotherapy commenced in February 2022 four months after the accident.
Mrs Chandab said that she has recently resumed physiotherapy, now focusing on the lumbar spine. She has only had a few sessions which she described as “hands on” therapy so she thought it was too early to say whether it had been helpful or not.
Ms Chandab explained that the therapist had also given her exercises to do at home. She said these exercises stir up her neck and lower back symptoms, so she does not do them.
Ms Chandab said she is presently taking pain medication although she could not recall the name of it. She recalled that she had been prescribed Celebrex which caused gastrointestinal upset and the doctor had needed to change it. She reported that the present pain medication, which she takes at night also helps her to sleep.
Current symptoms
The claimant complains of constant posterior neck pain (on a scale of 9/10) which radiates into the trapezial regions with the left being worse than the right. She reported intermittent pain spreading down the left arm into the thumb. She was vague about the specific distribution of “sharp” pain in the left upper limb 8-9/10 aside from stating it reached as far as the thumb and the little finger. She says that sometimes, there are “pins and needles” in the left thumb only. She reported that her left upper limb pain was usually activity-related, developing with prolonged sitting or standing.
Ms Chandab also reported minimal, episodic pain in the right upper limb which was also activity-related although she later said there could sometimes be 7/10 pain in that location.
Neck pain is the worst pain over any pain felt in the upper extremities.
Mrs Chandab complained of constant low back pain (on a scale of 10/10) worsened by bending, lifting, and prolonged sitting and walking. This pain sometimes spreads down the left leg causing pain in the lateral calf and big toe. Sometimes there are “pins and needles” paralleling the distribution of this pain. She said the limb pain was more likely with prolonged sitting and standing.
She does little walking nowadays, being limited to simply walking around the house. She can neither sit nor stand for long and tends to alternate positions for comfort. Ms Chandab demonstrated this during the interview and examination frequently changing positions.
She does not report any symptoms in the middle back (thoracic spine).
She does not report any bowel or bladder problems.
Ms Chandab has not seen any medical specialists since the motor accident, as she says she unable to afford this. Her GP has continued to provide her with painkillers since the motor accident.
She reported feeling very depressed about her situation and lacking all motivation. She said that her daughter needs to “force” her to get up and even to eat because she has lost her appetite. She said however that a coffee can help pick her up whilst at the same time make her feel anxious. She also needs to be compelled to have a shower and days could go by without showering. She said that she had slept in the clothes she had worn to this appointment because it is too difficult to get dressed and if she does dress, her daughter needs to help. Ms Chandab explained that she spends much of the day lying down or else sitting down, whatever she can do to keep herself comfortable.
She says she has received psychological interventions and she reports it is recommended that she see a psychiatrist and have medication for depression and to aid sleep. The recommendation was reportedly sent to her case manager who so far has not replied. She said that the psychological interventions received were only beneficial whilst she was in the therapist’s office. She often falls asleep there. However, once she has left, her psychological symptoms return.
Ms Chandab also reported concerns about poor memory.
Many days, she struggles to get up and her activity levels are low. She no longer wants to see friends and said that she rarely leaves the house aside from having to attend appointments. She reiterated that she had been a very social person before the motor accident.
At home, her children and husband complete most chores such as vacuuming and mopping. She said that although the latter chores often induce complaints, she actually regrets that she is unable to do them. “You don’t know how important these things are until you can no longer do them…” she remarked.
She said that she no longer cooks or does the laundry. Other family members do these tasks and sometimes they get takeaway.
Ms Chandab has no hobbies or recreations. She is unable to read or watch television due to high levels of anxiety. Even cartoons are often too “violent”. Before the accident, her favourite activity was shopping although she no longer has the motivation for that either.
Ms Chandab no longer drives due to anxiety and says she is an extremely anxious passenger especially about trucks and vehicles on the left. She has driven since the accident although she has since stopped driving her children to school due to anxiety that she could cause harm or else be harmed. The psychologist has suggested that she drive locally though she feels currently that this is beyond her. She reported undue sensitivity and anxiety in response to noise.
She reported that her whole family is very supportive and helpful.
Presently, Ms Chandab sees the GP fortnightly and the physiotherapist weekly for hands on therapies and modalities.
Ms Chandab did not bring her X-rays or scans to the assessment as requested.
Clinical Examination
Ms Chandab’s brother left the room during the physical examination given that some removal of clothing would be required.
At the commencement of the physical examination, Medical Assessor Lahz asked the claimant to do the best she could so far as the requested movements were concerned.
She was very reluctant to remove any clothing aside from her hijab so the examination was conducted by rolling up sleeves and trouser legs. Medical Assessor Lahz had to remove and later replace her footwear (due to claimant’s absence of spinal bending) although at the end Ms Chandab decided not to replace her socks.
Throughout the examination, Ms Chandab was very reluctant to move any body parts at all. She often asked to sit down in order to rest.
There was normal body habitus (68kg, 168cm). Her posture was generally stooped. She spoke slowly and she walked slowly around the room. She declined to stand on her heels or her toes because this she said would induce significant low back pain.
Cervical spine and upper limbs
There was a “poke neck” (protracted) posture.
Neck movements were globally and symmetrically reduced in all planes of motion to one quarter of normal. There were peculiar “bobbing” movements made whilst trying to move the neck. She was encouraged to relax although the bobbing movements continued with no further advance in active neck range of motion made. There was no dysmetria.
There was no focal tenderness at the cervical spine although she reported trapezial tenderness (left more than right). There was no muscle spasm or guarding. There were possibly non-verifiable radicular symptoms taking in the thumb. Apart from stating the thumb was involved, Ms Chandab was otherwise extremely vague as to the distribution of symptoms elsewhere in the forearm and arm.
There was bilateral “giving way” weakness of all muscle groups, the left being worse than the right which was, in the clinical judgment of Medical Assessor Lahz, not of neurological origin.
There was no wasting of the arms. Both measured 26cm at 10cm above the elbow crease and both forearms measured 22cm at 5cm below the elbow crease.
There was normal sensation (pin prick testing) over both upper limbs.
Upper limb reflexes were present on both sides and symmetrical.
Shoulders
Active shoulder movements were very restricted, as noted in the table below. Movements were checked three times with a goniometer for consistency. There was variability in movement which Ms Chandab said was due to pain. She pointed to the site of this pain as variously the upper lateral arms and trapezial regions.
Movement
Right shoulder
Left shoulder
Flexion
50, 60, 50
50, 45, 50
Extension
30, 20, 20
20, 30, 30
Abduction
50, 40, 60
50, 30, 40
Adduction
20, 30, 20
15, 20, 30
Internal rotation (arm at side)
80
80
External rotation (arm at side)
20, 30, 30
20, 15, 20
There was no wasting about the shoulder girdles and there was no focal tenderness about the shoulder joints. Impingement signs were negative bilaterally. These findings indicate no abnormality in the shoulder joint.
Lumbar spine
On examination of Ms Chandab’s lumbar spine, there was mild flattening of the lumbar lordosis. There was no focal tenderness, rather a generalised sensitivity was reported, sometimes worse in the upper lumbar spine, other times more severe in the lowermost lumbar spine. There was no muscle guarding or spasm.
She declined to bend over and would not extend the spine in case of severe back pain.
Lateral flexion to either side was cautiously and slowly performed to one third normal on either side. Rotation was also one third normal range on either side.
There were possible non-verifiable radicular symptoms on the left although again, the claimant was vague as to the specific distribution except to say that the big toe and lateral calf were involved. There was generalised giving way weakness of left more than legs which in the clinical judgment of Medical Assessor Lahz was not of neurological origin. There were no sensory deficits over the lower limbs. Knee and ankle jerks were present and symmetrical and plantar responses normal.
There was no wasting of the thighs both were measured at 44cm, 10cm above the superior patella and both calves measured 31cm.
Ms Chandab could sit with her legs partly extended on the edge of the examination couch whilst complaining of profuse lower back pain. Lower limb neural tension tests were negative.
Medical Assessor Lahz notes it was difficult to assess hip, knee and ankle movement due to pain behaviour and reluctance to remain in the one position for very long.
Comment on consistency
There was significant pain behaviour and general reluctance to move during the physical examination.
There appeared to psychological distress.
There were bilaterally variable and inconsistent active shoulder movements due to high pain levels variably reported to be located in the upper arms, neck base and trapezial regions. It was the clinical judgment of Medical Assessor Lahz that the claimant was not applying her best effort during the course of the examination.
The Panel notes the allied health recovery request (AHRR) 1 includes measurements of shoulder motion including flexion 130 degrees, extension 30 degrees, abduction 100 degrees and external rotation 40 degrees. The second AHRR records flexion at 150 degrees and abduction at 130 degrees. These measurements are much greater than those demonstrated to Medical Assessor Lahz. The Panel is of the view there is no explanation for the significant apparent deterioration from these measurements to the measurements obtained by Medical Assessor Lahz. The Panel concurs with Medical Assessor Lahz that it appears the measurements obtained by Medical Assessor Lahz are not a true representation of the claimant’s range of motion.
The Panel notes that the claimant did not attend her GP for over four weeks after the accident. The claimant did not commence physiotherapy until four months after the accident. This is not, in the view of the Panel, behaviour consistent with pain as significant and severe as that currently complained of by the claimant.
ASSESSMENT AND CONSIDERATION OF THE ISSUES
The claimant confirmed that the issues requiring determination by the Panel were:
(a) whether the claimant has, or has had, cervical radiculopathy at any time since the accident as a result of the accident, and
(b) whether the annular tear at L5/S1 was sustained in the accident.
Is the claimant’s neck injury a threshold injury?
There is no dispute about causation in respect of the claimant’s cervical spine injury. The insurer concedes that Ms Chandab injured her neck in the accident. The issue between the parties is the nature of that injury. The claimant asserts she has or has had radiculopathy which means she has sustained an injury to a cervical nerve or nerve root manifesting in radiculopathy which, by operation of s 1.6(2) and cl 4 of the Regulation means she does have an injury that is not a threshold injury.
Clause 5.8 of the Guidelines provides that a finding of radiculopathy depends on their being two of the following five signs at an examination or assessment:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Does the claimant have radiculopathy?
In Ms Chandab’s case she did not demonstrate any of the five signs of radiculopathy at the examination with Medical Assessor Lahz:
(a) all reflexes were present and equal;
(b) there were no positive nerve root tension signs;
(c) upper arm and forearm measurements were equal and there was no muscle wasting or atrophy observed;
(d) Ms Chandab’s upper limb weakness was global and in the clinical judgment of Medical Assessor Lahz did not relate to an appropriate spinal nerve root distribution, and
(e) while Ms Chandab complained of altered sensation there was no sensory loss evident on testing.
At the examination with Medical Assessor Lahz, there was no evidence of nerve root injury manifesting in either upper or else lower limb radiculopathy within the meaning of Regulation 4 and cl 5.8 of the guidelines.
Has the claimant ever had radiculopathy?
For radiculopathy to be found, two of the five signs listed in cl 5.8 must be found in an assessment or examination that complies with cls 5.5, 5.6 and Part 6 of the Guidelines. Clause 5.6 requires there to be a comprehensive history, review of all records, careful examination and review of diagnosis tests.
There is no evidence that any of the five signs of upper limb radiculopathy were found at Westmead Hospital. There were no complaints of paraesthesia or limb weakness according to the discharge summary.
The GP notes do not record any neurological signs in either upper or lower limbs in any of the attendances since the accident.
The AHRR requests from the physiotherapist do not record any neurological signs and the claimant has not been referred to a neurosurgeon or other specialist.
Medical Assessor Cameron did not find any of the signs of radiculopathy.
The only reference to radiculopathy comes from the MRI report of 7 December 2021. At C4/5 there was a protruding disc with stenosis on the right “which may account for right C5 radiculopathy” and the conclusion refers to “radicular compression.” This document is a report of a radiologist undertaking a scan. He has found pathology which may explain signs of radiculopathy or radicular symptoms. He has not however written a report which satisfies the Panel that he found any of the clinical signs of radiculopathy and if so, which ones. He is only commenting on the appearance of an MRI scan, as opposed to undertaking a clinical examination and recording findings which is required when diagnosing radiculopathy according to the Guidelines.
Neck injury conclusion
While the Panel is satisfied that the claimant sustained a soft tissue neck injury in the accident, the Panel:
(a) is not satisfied that the claimant sustained a cervical nerve injury manifesting in radiculopathy, or
(b) that the claimant sustained a complete or partial rupture of any of the tendons, ligaments or cartilage in the cervical spine region.
The claimant’s neck injury is a threshold injury.
Is the claimant’s back injury a threshold injury?
Causation principles
In these proceedings there is a dispute about whether the lumbar spine pathology (central anulus tear and minor disc bulging at L5-S1 found on radiology after the accident was caused by the accident.
Justice Wright in Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 Briggs (no 2) 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.”
The test of causation set out in cl 6.6 of the Guidelines involves a 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-threshold (a medical determination), and
(b) did the accident in fact cause the injury alleged to be non-threshold (non-medical determination).
This is in keeping with the approach to causation in the permanent impairment chapter of the Guidelines, the provisions of the Civil Liability Act 2002 and the approach of the courts noting for example the High Court’s judgment in the lung cancer case of Amaca v Ellis.[20] In that case the Court determined that in circumstances where one substance 'can' (on the basis of epidemiological evidence) cause an injury, causation will only be established if it is shown that it 'did' cause the injury assessed on the balance of probabilities.
[20] Amaca Pty Limited v Ellis; The State of South Australia v Ellis; Millennium Inorganic Chemicals Limited v Ellis [2010] HCA 5.
Could the claimant have injured her lower back in the accident?
The Panel is of the view that the claimant could have injured her lower back in the accident. The mechanism of the accident was an 80kmph swerve and roll. While there is some evidence of a single roll (the ambulance report) there is other evidence (the police report and the claimant’s own evidence) that there were multiple rolls.
Whether it was one or many rolls of the car, while the claimant would have been held by the seatbelt and seat and received some protection from the side airbag, she is likely to have been moving inside the car and the Panel is satisfied her lower back could have been exposed to sufficient forces to cause injury.
While the mechanism of the accident could have caused a lower back injury, the issue is whether the accident did in fact cause a lower back injury.
Did the claimant injure her lower back in the accident?
Ms Chandab’s claim form dated 8 November 2021 refers to head, neck, shoulder and back pain but is not specific in respect of back pain as to whether it is upper (thoracic) back pain or lower (lumbar) back pain.
The ambulance report has a record of “severe head and neck pain” but not lower back pain. The Westmead Hospital discharge summary records “some neck pain … some thoracic spine tenderness” but no lower back pain. The claimant’s head and neck were scanned at the hospital but not her lower back.
The claimant’s GP, Dr Soliman referred the claimant for a cervical spine MRI on 7 December 2021 due to restriction neck motion. Dr Soliman did not refer the claimant for a lumbar spine MRI at that time.
The first physiotherapy AHRR dated 21 February 2022 seeks approval from the insurer for physiotherapy to the neck and upper back. The lower back is not mentioned. Two further AHRRs (the third dated 28 June 2022) also do not mention lower back issues.
The available GP records do not include any post-accident reference to lower back pain or symptoms.
The lumbar spine MRI of 1 July 2022 was requested more than six months after the accident and refers to left sided sciatica. There are no corresponding notes from the claimant’s GP or physiotherapist to explain why this MRI was requested but it could be reasonably assumed it was requested because of complaints of back pain and left sided radiating pain in particular.
The claimant was vague as to when her lower back pain developed. She implied the lower back pain came on later, as her explanation for the absence of lower back complaints in the records was because the lumbar pain was masked by the pain killers she had been prescribed. The Panel does not accept this as a credible explanation because Ms Chandab was reporting neck pain from the time of the motor accident. It is not medically plausible for pain killers to “mask” the lower back pain but not the neck pain.
When all of the medical evidence is considered, the Panel finds that the claimant did not have symptoms in her lower back from the time of the accident but that the first complaints of lower back pain must have occurred towards late June (although there is no mention of lower back pain in the third AHRR dated 28 June 2022).
It is the clinical judgment of the medical members of the Panel that it is not medically plausible for the claimant to have sustained a lower back injury causing the degree of injury and disability that the claimant now alleges, but for the symptoms of that injury to have a delayed onset of six months. The Panel is not therefore satisfied that the claimant did injure her lower back in the accident.
Back injury – conclusion
As the Panel is not satisfied the claimant injured her lower back in the accident, there is no need to consider whether she has a threshold lower back injury. However, the Panel makes the following observations with the aim of avoiding further disputation.
The Panel notes that the results of the 1 July 2022 MRI showed a “tiny central annulus tear with mild diffuse disc bulging” at the L5/S1 level. There was no neural compression seen. Clinically, Medical Assessor Lahz found no focal tenderness in the lower back to correspond with the site of the fissure or tear reported by the radiologist. This suggests therefore that the finding of a “tiny” tear is an incidental finding. It is the clinical judgment of the medical members of the Panel that such tiny tears (or fissures) occur in the general population with or without injury. The radiological report notes “diffuse bulging” at L5/S1 and “disc desiccation” which are signs of degeneration and not trauma. Therefore, if the Panel had been satisfied the claimant had injured her lower back in the accident, the Panel would not have found the disc tear or fissure was caused by the accident in any event.
CONCLUSION
The Panel has found that the claimant’s neck injury is a soft tissue injury and therefore a threshold injury. The Panel has found the claimant did not injure her lower back in the accident.
The Panel has come to the same conclusion as Medical Assessor Cameron and will therefore, confirm his certificate. Because of the wording in his certificate, the Panel will issue a fresh certificate adopting the new terminology.
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