David v Allianz Australia Ltd
[2021] NSWPICMP 227
•25 November 2021
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227 |
| CLAIMANT: | Steve David |
| INSURER: | Allianz Australia Insurance Ltd |
| REVIEW PANEL: | Principal Member John Harris Dr Geoffrey Stubbs Dr Shane Moloney |
| DATE OF DECISION: | 25 November 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- This was a dispute about whether the claimant suffered a minor injury in the motor accident; the claimant complained of lumbar spine pain and left arm pain following the motor accident and submitted that he suffered from radiculopathy and/or sustained an annular tear or fissure in the motor accident which meant the injuries were classified as non-minor injuries; subsequent scan evidence otherwise showed a tear of the triangular fibrocartilage in the left wrist; Held- the Panel were not satisfied that the claimant suffered an annular tear or fissure in the motor accident as it was more likely that the pathology was degenerative and generally pre-existing and asymptomatic; the Panel were not satisfied that the claimant had two objective signs of radiculopathy at any time following the motor accident; observations that radiculopathy was established if it occurred at any time and not only during an examination by a Medical Assessor; the tear of the triangular fibrocartilage was caused by the motor accident and was a non-minor injury as defined by section 1.6 of the Motor Accident Injuries Act 2017; this finding was based on the complaint of pain in the left forearm at hospital, the fact that the claimant had a wrist x-ray at hospital, the subsequent MRI scan, the absence of prior wrist symptoms, the claimant’s history and the nature of the injury due to steering wheel kick back; finding made that the claimant suffered a non-minor injury to the left wrist. |
STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT
Medical Assessment – Minor injury
Review Panel Assessment of Minor Injury
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel revokes the certificate dated 1 March 2021 and issues a new certificate determining that:
The lumbar spine injury is a MINOR INJURY for the purposes of the Motor Accident Injuries Act 2017.
The left wrist injury is a NON-MINOR INJURY for the purposes of the Motor Accident Injuries Act 2017.
REASONS
Background
Mr Steve David (the claimant) suffered injury in a motor accident on 15 November 2019 when another vehicle travelled through a red light and collided with Mr David’s vehicle.
The insurer insured the owner and driver of the other motor vehicle for liability to pay to Mr David any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue presently in dispute is whether Mr David’s injury is classified as a “minor injury” within the meaning of the Act. Pursuant to Schedule 2, clause 2 of the Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Bodel who issued a medical assessment certificate dated 1 March 2021. Medical Assessor Bodel concluded that Mr David sustained a lumbar spine injury which is a minor injury for the purposes of the Act.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[2]. An injured person otherwise cannot recover damages under the Act if the “only injuries resulting from the motor accident were minor injuries”.[3]
[2] Sections 3.11 and 3.28 of the MAI Act.
[3] Section 4.4 of the MAI Act.
The review
The application for referral of the medical assessment to a review panel was made by Mr David within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
On 3 June 2021, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 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[6] that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a medical assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
The Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered.
The Panel issued a further Direction dated 13 July 2021 which provided:
“1. The Claimant is to be examined by Medical Assessor Stubbs and Medical Assessor Moloney on 10 August 2021 at 12 noon at:
South Maroubra Medical Practice
15/3 Meagher Ave
South Maroubra NSW 20352. The Claimant is to bring two copies of the two MRI scans to the examination.
3. The parties are referred to the examination findings of Dr Darwish in his report
dated 2 November 2020, concerning positive nerve stretch test and decreased sensation over the lateral aspect of left the leg and foot.4. We attach medical articles and otherwise refer to clause 6.121 of the Motor Accidents Guidelines which provides:
“While imaging and other studies may assist medical assessors in making a diagnosis, it is important to note that the presence of a morphological variation from what is called normal in an imaging study does not make the diagnosis. Several reports indicate that approximately 30% of people who have never had back pain will have an imaging study that can be interpreted as positive for a herniated disc, and 50% or more will have bulging discs. Further, the prevalence of degenerative changes, bulges and herniations increases with advancing age. To be of diagnostic value, imaging findings must be concordant with clinical symptoms and signs, and the history of injury. In other words, an imaging test is useful to confirm a diagnosis, but an imaging result alone is insufficient to qualify for a DRE category.”
5. The parties are advised that the RP will be independently reviewing the scans in the context of the attached articles for the purposes of determining the lumbar spine pathology and causation.
6. The parties are specifically referred to paragraph 3 herein and directed to make submissions on whether these examination findings establish radiculopathy as defined in clause 5.8 of the Guidelines.
7. Either party has liberty to file and serve material and submissions by close of business, 6 August 2021.
8. Either party has liberty to apply in respect of these Directions.”
The examination did not proceed because of restrictions due to the COVID-19 pandemic. That examination was rescheduled and held in November 2021.
Statutory provisions
A minor injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, clause 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
Clause 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.
Clause 5.7 of the Guidelines provides:
“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. “
Radiculopathy is defined in clause 5.8 of the Guidelines as follows:
“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.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[10]
[10] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the Act[11]. However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a minor injury, it is unclear and unlikely that the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment[12] apply. This is because Part 6 is specified as applying only to the assessment of Permanent Impairment.[13]
[11] See s 3B(2) of the Civil Liability Act, 2002.
[12] See clauses 6.5 - 6.7 of the Guidelines.
[13] See clause 6.3 of the Guidelines.
Assessment under review
Medical Assessor Bodel certified that Mr David sustained a lumbar spine injury which was a minor injury for the purposes of the Act. The symptoms on examination included low back pain radiating down the right leg to the knee and down the left leg to the foot, mostly in the 2nd, 3rd, 4th and 5th toes. The clinical findings on examination were:
“Straight leg raising is 70 degrees on each side and limited by hamstring tightness. There are no definite clinical signs of nerve root tension. There is no significant wasting in either thigh or calf, although his non-dominant left side is a few millimetres smaller than the left. He has a full range of hip, knee, ankle and subtalar movement. The reflexes are present and equal. There are no clinical signs of radiculopathy in the lower limbs. There is no measurable wasting. There is no weakness. There is no sensory loss in a dermatomal distribution.”
The Medical Assessor concluded that Mr David presented with mechanical symptoms in the back with non-verifiable complaints but no objective signs of radiculopathy. The doctor stated:
“The gentleman clinically appears to have suffered a soft tissue injury to the lower part of the back aggravating degenerative change at L4/5 and L5/S1. There are no clinical signs of radiculopathy on testing today.”
The Medical Assessor concluded that Mr David suffered a minor injury within the meaning of s 1.6(2) of the Act and Part 1, clause 4 of the Regulations.
Submissions
The claimant submitted that Medical Assessor Bodel incorrectly certified the lumbar spine injury as a minor injury. He submitted that there was “objectively verifiable structural damage to the L4/5 and L5/S1 in the form of an L5/S1 annular fissure with associated objectively verifiable radiculopathy”. This was not a minor injury within the meaning of s 1.6 of the Act and “in particular … Clause 4 of the Regulations”.
The claimant referred to passages of the clinical notes of Dr Albadran both prior to and after the motor vehicle accident, physiotherapy notes after the accident, the reports of Dr Balsam Darwish, Neurosurgeon and various scan report.
The claimant noted that there was no low back and radicular symptoms prior to the accident. It was submitted that there was constant low back and radicular complaints following the accident and this must be considered in the context of the “Claimant’s constant objectively verified post-accident complaints of lumbar pain and radicular pain”.
The claimant referred to authorities concerning the powers of the President’s delegate and to a decision relating to causation. There were no submissions as to how these decisions applied to the present case, and how they impacted on the reassessment undertaken by the Panel.
In his additional submissions the claimant referred to the MRI scan dated 20 January 2020 which reported a right paracentral annular fissure at L5/S1. He submitted that the “annular fissure in the lumbar spine refers to when the fibres of the tough outer covering of the intervertebral disc either break or separate”.[14] This constituted a non-minor injury in accordance with s 1.6(2) of the Act and SIRA case study 45.
[14] Claimant’s additional submissions, [7].
The further MRI scan dated 3 December 2020 which reported annular tears at L4/5 and L5/S1 and submitted that this was a non-minor injury “because it is a complete rupture of tendons, ligaments, menisci or cartilage and a disc protrusion”.[15]
[15] Claimant’s additional submissions, [12].
The claimant submitted that he did not have any pre-injury low back issues and did not previously require any radiological imaging.
In his further submissions the claimant submitted that he met criteria (d) and (e) in clause 5.8 of the Guidelines.[16] The clinical notes of Balsam Medical Centre record lower pain radiating into the left leg and numbness. A specific example is contained in the clinical notes dated 14 December 2019.
[16] Set out at [23] herein.
The claimant referred to the CT scan dated 4 December 2019 which noted a disc osteophyte complex at L5/S1 causing right foraminal narrowing with no nerve root compressions and submitted:[17]
“A disc osteophyte complex is the development of bone spurs which compress the intervertebral discs exerting pressure on the spinal cord. This finding in the imaging certainly verifies the sensory loss in the claimant’s leg which would be present upon examination.”
[17] Claimant’s further submissions, [8].
The claimant also referred to the findings in the CT scan at L4/5 showing “thecal sac indentation” and submitted that this “means that the disc bulge is exerting pressure onto the spinal cord” and confirms the “complaint of sensory loss” in the leg.[18] This complaint satisfied criteria (d).
[18] Claimant’s further submissions, [10].
The claimant referred to the notation in the Allied Health Recovery Report dated 7 December 2020 which indicated “muscle weakness at the site of the injury” and satisfied criteria (e).
The claimant referred to his submissions dated 19 May 2021 that an annular issue and annular tear fell outside the definition of a minor injury. It was submitted that an annular fissure in the spine occurred when “the fibres of the tough outer covering of the intervertebral disc either break or separate”[19]. This was “a complete rupture and “confirmed in SIRA Case Study 45”.[20]
[19] Claimant’s further submissions, [16].
[20] Claimant’s further submissions, [16] – [17].
It was submitted that an annular tear is a “complete separation of the cartilage fibres in the lumbar spine”[21] and was confirmed by Dr Darwish in his report dated 17 December 2020.
[21] Claimant’s further submissions, [18] – [19].
The insurer submitted that there were no errors made by Medical Assessor Bodel. It submitted that the AMA 4 Guides and permanent impairment Guidelines “have no relevance to the dispute of minor injury”[22] and this was determined in accordance with the s 1.6 of the Act and clause 4 of the Regulations.
[22] Insurer’s submissions, [5].
The insurer submitted that the Medical Assessor had complied with the requirements of clause 5.6 of the Guidelines. It further submitted that the “evidence provided to date does not support a finding of radiculopathy made in accordance with Clause 5.8 of the Motor Accident Guidelines and supports a finding of minor injury”.[23]
[23] Insurer’s submissions, [9].
The insurer submitted that the evidence provided to date “does not support a finding or radiculopathy”. The Medical Assessor undertook a clinical examination, considered various documentation, and did not make a finding of radiculopathy.
In its further submissions the respondent maintained its position that there is no error in Medical Assessor Bodel’s determination. The insurer disputed that “a finding of an annular fissure in an imaging report instantaneously means the claimant has sustained a non-minor injury”[24] and that the Medical Assessor found that the pathology identified in the various scans showed degenerative disc disease at L4/5 and L5/S1 with no signs of cartilaginous endplate damage or nerve root compression. The injury was an aggravation of the pre-existing degenerative disc disease.
[24] Insurer’s further submissions, [5].
The MRI scan dated 20 January 2020 confirmed degenerative disc disease. The annular fissure associated with disc bulging was “thereby degenerative in nature”.[25]
[25] Insurer’s further submissions, [7].
The insurer otherwise referred to the police report and the history recorded of “minor soft tissue damage”.
The insurer’s submissions filed in response to the claimant’s initial submissions contended that Mr David only sustained a soft tissue injury to the lumbar spine which was a minor injury for the purposes of the Act. It disputed that any incidental findings shown in the scans were as a result of the injury and that the changes are “degenerative in nature”.
The insurer otherwise submitted that the medical evidence does not support a finding of radiculopathy.
In subsequent submissions the insurer referred to clause 5.8 of the Guidelines and submitted that “this provision seems to suggest radiculopathy to be assessed at the time of the assessment”.[26] The Medical Assessor is required to consider all relevant records, a description of current symptoms and a comprehensive accurate history.
Dr Bodel adhered to clause 5.6 when conducting his assessment and made no finding of radiculopathy.[26] Insurer’s subsequent submissions, [1].
The insurer disputed that the complaints of left leg symptoms satisfied clause 5.8 of the Guidelines. It submitted that the pathology at L4/5 and/or L5/S1 did not satisfied criteria d and/or e of clause 5.8. The osteophyte complex is common amongst the population. That is consistent with Medical Assessor Bodel’s conclusion that the pathology at L4/5 and L5/S1 was degenerative disc disease with no signs of cartilaginous endplate damage or nerve root compression.
The insurer submitted the certificates of capacity, the Allied Health Recover Report request and the clinical notes of the general practitioner do not satisfy two or more clinical signs as set out in clause 5.8. The reference to muscle weakness in the Allied Health Recovery report was not in a strict anatomic distribution. The other references in the various material were not in a strict anatomic distribution.
The insurer submitted that the motor accident was minor, and that Mr David only complained of increasing back pain four days after the incident. Furthermore, there was an independent exacerbation of low back pain referenced in a clinical note dated 13 February 2020.
The insurer submitted that an annular fissure does not necessarily amount to a rupture. Even if there is a finding that an annular fissure equates to an annular tear, then the mere presence of such a common incidental finding “does not prove causation”. Consistent with other cases, annular tears are common in asymptomatic people of
Mr David’s age.[27] In the present case the pathology shown in the imaging studies were not causally related to the accident noting the “minor nature of the accident, absence of radiculopathy and finding of degenerative changes”.[28][27] This submission was made in reference to “Case study 46”.
[28] Insurer’s subsequent submissions, [3(d)].
The insurer provided further submissions dated 31 August 2019. It referred to the absence of left wrist injury in certificates of capacity, various general practitioner consultations, AHRR reports, and reports prepared by Dr Darwish.
The insurer noted that the left wrist injury was not referred to Dr Bodel who otherwise recorded a previous injury to the left hand from a work-related matter. It disputed that the motor accident has led to a non-minor injury of the left wrist “in the absence of any documented complaints surrounding the left wrist”.[29]
[29] Insurer’s submissions dated 31 August 2021 at [17].
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents in accordance with the initial Direction.
Following the first telephone conference the Panel provided the parties with literature pertinent to lumbar spine pathology.
The clinical notes of Balsam Medical Services commence on 17 May 2018. They show repeated attendances by Mr David at the medical practice. There is no reference to back pain in these notes and any associated radiology prior to the motor vehicle accident. The clinical notes include a reference to a motor vehicle accident on 21 September 2018 which caused right shoulder pain.
Immediately following the motor accident Mr David presented to the emergency department of Liverpool Hospital complaining of left forearm injury and right thumb pain. The history in the clinical notes record that the airbags were deployed. X rays of the left forearm, wrist and hand at that time did not show any obvious fracture.
Mr David consulted Dr Albadran on 19 November 2019 who recorded the following clinical note:
“has been involved in a MVA when somebody hit his car from rear
he injured his left forearm
he was taken to Liverpool Hospital
no discharge from hospital
he complained of shoulder pain, back pain and left arm pain, bruised
he will need Ultrasound scandiscuss treatment plan”
On 3 December 2019, the doctor noted low back pain radiating into the left leg and referred the claimant for a CT scan.
The CT scan dated 4 December 2019 recorded a clinical history of lower pain radiating down the left leg following a motor vehicle accident. Dr Masesa reported that the scan showed a shallow disc bulge at L4/5 and a shallow right disc osteophyte complex at L5/S1 causing right foraminal narrowing.
A certificate dated 9 December 2019 referred to the low back and left forearm being injured in the motor accident.
O 14 December 2019 Dr Albadran noted numbness radiating to the left lower leg. On 30 December 2019, the doctor referred to back pain “radiating to left foot”.
The MRI scan dated 20 January 2020 records a clinical history of low back pain radiating down to the left foot. Dr Masesa opined that the changes on the scan were degenerate disc dehydration at L4/5, a right sided disc bulge causing mild indentation with no radicular compression and, at L5/S1 degenerate disc dehydration with a right paracentral annular fissure with associated bulge causing mild indentation and mild right foraminal stenosis although no overt nerve root impingement.
Mr David commenced physiotherapy on 19 December 2019 with a report of low back pain and numbness into the left leg. The notes record references to intermittent left foot numbness. A pain diagram showed left-sided lumbosacral pin with an arrow pointing directly down the back of the left leg.
In a report dated 31 August 2020, Mr Vrataric, physiotherapist referred to reports of “persisting left leg numbness around the lateral shin” which had not changed with treatment.
Mr David consulted Dr Balsam Darwish, Neurosurgeon on 2 November 2020. The claimant provided a history of the development of “pain associated with paraesthesia over the lateral aspect of the left foot” following the motor vehicle accident. The examination findings were:
“On examination today his gait was normal. Straight leg raising test was 80 degrees on the left side with positive nerve stretch test. He had decreased sensation over the lateral aspect of the left leg and left foot. Muscular power was normal in both lower limbs. Both ankle reflexes were symmetrical.”
Dr Darwish commented that the CT scan of the lumbosacral spine showed mild disc bulges at L4/5 and L5/S1 with no obvious nerve root compression and organised an MRI scan.
The MRI scan dated 2 December 2020 is reported as showing a right annulus tear and broad-based bulge with no root impingement at L4/5 and a right paracentral and annulus tear and focal disc protrusion at L5/S1 with no impingement of the L5 or S1 nerve roots.
Mr David was reviewed by Dr Darwish on 17 December 2020 complaining of low back pain radiating into both lower limbs more on the left side. Dr Darwish viewed the MRI scan dated 3 December 2020 and observed that it showed L5/S1 disc dehydration and tear, a foraminal right L5/S1 disc protrusion with potential compression of the right L5 nerve root in the foramen and no obvious left sided compression.
An Allied Health recover report dated 18 December 2020[30] recorded “spasm L/spine paraspinal muscles and glutes, weak core/poor balance”.
[30] The Claimant in his submissions incorrectly referred to this report as dated 7 December 2020.
The police report of the motor vehicle accident included a reference to Mr David attending Liverpool Hospital, subsequently attending his general practitioner, and undergoing an ultrasound “which confirmed only minor soft tissue damage”. As of 9 December 2019, the claimant is reported as saying that he “had not had any further treatment”.
A subsequent statement by Mr David asserts that he sustained injuries to his lumbar spine, right thumb and left forearm/wrist. He stated that he was not admitted to hospital following the motor accident but underwent x-rays.
Mr David stated that he had a prior injury to his left hand in 2014 when he crushed four of the fingers, the worse being his middle finger. He also had an injury in a motor accident in September 2018 when he injured his right shoulder.
An MRI scan of the left wrist dated 26 August 2021 is reported by Dr Ramesh Cuganesan as showing a partial thickness sided tear of the proximal articular surface of the triangular fibrocartilage extending to involve the dorsal distal radioulnar ligament.
RE-EXAMINATION
The Panel determined that Mr David be re-examined by both Medical Assessors on 3 November 2021 given the factual issues in dispute.[31]
[31] See also the discussion by Leeming JA in Sydney Trains v Batshon [2021] NSWCA 143 at [41], White and McCallum JJA agreeing.
The re-examination report is as follows:
“Mr David is 43-year-old man who has worked as a courier driver since 2015. He came to Australia from Iraq via New Zealand in 2011. He is renting a 3- bedroom house and lives with his wife and 3 children aged between 7 and 14. His wife does not work.
His injury occurred when a range Rover crossed his path. He T-bones the range Rover at about 40 km an hour doing extensive damage to his car, a small Toyota Yaris. Police attended the accident but there were no apparent injuries at the scene. The police report notes that Mr David later tended to Liverpool Hospital.
Mr David spent the first 4 days after his injury at home with an extensively bruised left forearm. Low back pain began about a week after the accident. He was able to return to work on restricted hours and even now is only working 32 to 35 hours per week as against his usual 60 hours.
He is managing his symptoms with paracetamol/codeine a couple of times a week, ibuprofen 3 to 4 times a week and is on antidepressant medications. His regular medical practitioner is Dr Aldaran. Because of continuing low back and left lower limb pain he was referred to see Dr Darwish a neurosurgeon in November 2020 about 12 months after the MVA. He continues to have pain in the low back together with pain in the left wrist and a feeling of weakness. He complains of ongoing back discomfort and struggles with yard maintenance.
Dr Darwish reported in November that there was straight leg raising to 80° on the left-hand side but a positive nerve stretch-test and decreased sensation over the lateral aspect of his left leg and left foot. Dr Darwish does not describe where in the left the pain was and whether he is using the leg in the anatomical sense, that is below the knee, or merely as the lay term for left lower limb.
An MRI was performed in December 2020 which is interpreted as showing an L5/S1 disc degeneration tear. Dr Darwish’s interpretation was that there was a right paracentral annular tear but no obvious nerve root compression on the left side.
The contentious issue is whether the low back injury is a is or is not a minor tear. Only the lumbar spine was referred to Assessor Bodel who saw him on 1 March 2021. Assessor Bodel believes all this was a MINOR INJURY for the purposes of the act. No referral was made for the pain in the left distal forearm. Assessor Bodel recorded that the attendances at the hospital were about the left forearm rather than the low back.
Assessor Bodel reported symptoms as continuing pain in the lower part of the back which radiated down the back of the right thigh, not beyond the knee of an aching and burning character. There was also pain complained of in the lateral toes of the left foot.
Mr David told the Assessors the pain was in the small of the back predominantly on the right side spreading across to the posterior superior Ilac spine region and then spreading to the outer side of the posterior right thigh from the gluteal crease downwards to about mid-thigh level. There was no pain in the left thigh, left calf or ankle. What Mr David complained of was numbness and pain on both the dorsum and the sole of the 2-5 toes not the foot. The pain however was confined to these toes, it did not involve the sole or dorsum of the foot proper or either the medial or lateral borders. Nor did it involve the big toe. This description is the same as he gave to Assessor Bodel. The pain came and went without any particular reason and coughing and sneezing did not exacerbate pain in the toes but it did make the low back pain worse. Numbness developed in the toes (but not the foot) with constant posture. The courier job was reasonable since he alternated short periods of driving and walking.
Additionally, Mr David reported bruising across the ventral aspect of the left distal forearm. The bruising had gone but left him with tenderness and weakness of grip. He understood X-rays taken to Liverpool Hospital on his presentation (for left forearm arm) were normal. In recent months there has been clicking in the left wrist. He also had a right point of shoulder pain also complained of on his visit to Liverpool Hospital and the x-rays also turned out normal. He had some physiotherapy and acupuncture for this on the understanding it was from bruising from the seatbelt anchor. That pain has completely disappeared. The problem has persisted since the accident and eventually lead to the recent MRI study period
Clinical examination:
Mr David was 176 cm tall and weighed 64 kg. He had a good standing posture was normal spinal balance. He was cooperative throughout the clinical examination and undertook all the tasks the examiners requested. He can tip toe and heel toe walk. He bent forward fingertips to his knees complaining of some low back pain. His side bending was good, fingertips to the knees but he was hesitant to rotate the spine, only half range of symmetrical motion. There was well defined local tenderness around the L4 – S1 region without hypersensitivity and without spasm or guarding.
When sitting he showed brisk knee and ankle jerks on both sides and when lying medial hamstring jerks on both sides. Girth of the calf was 30 cm on the right and 29.5 cm on the left, within the normal measurement variation. The thigh was 34 cm on both sides. When lying his straight leg raising was 60° on both sides limited by tightness of the hamstring muscles not aggravated by ankle dorsiflexion. When sitting to perform a slump test he had nearly full knee extension on both sides whilst gripping the edge of the couch. (Nerve root traction sign performed by 2 different methods). Light touch sensation was perceived as slightly diminished on the top and bottom of the lateral toes but normal in the big toe. Proprioception was normal. Light touch sensation was unaffected in the foot and ankle the rest of the left lower limb and normal in the right lower limb.
Clinical diagnosis – soft tissue injury lumbar spine – minor injury. There is no radiculopathy. The area of pain and perceived numbness does not conform to a dermatomal distribution. Even assuming a less than normal distribution of the L5 nerve root the autonomous sensory areas would include the upper calf from the head of the fibula to just below and the web space between the 1st and 2nd toes. This is not the sensory distribution he reports. Likewise, this does not match the peripheral nerve distribution of the superficial peroneal nerve that might be found with a compression neuropathy.. He does not have positive nerve traction signs, the slump test is negative and so too is straight leg raising, pain is not provoked by ankle dorsiflexion. These are not non-verifiable radicular symptoms as they do not have a dermatomal distribution. The deep tendon reflex for L5, medial hamstring jerk is present and equal between the 2 limbs. The pain distribution, mid-low back spreading into the posterior right lateral thigh is typical of non-specific low-back pain.
Imaging – The MRI study of 3 December 2020 shows some typical age-related changes in the lower lumbar spine but no significant IV-disc lesions and no nerve root entrapment. It does show an outer annular hyper-intensity zone on the right-hand side in the para-foraminal region at L5 S1. The HIZ is limited to the outermost layers of the annulus only. Note is made that the reported radiculopathy is on the left-hand side and the high-intensity zone is on the right side.
All the upper limb joints are normal except the left wrist, this was uncomfortable to palpation across the ventral aspect of the wrist from the distal crease proximally for 5 cm. The wrist was slightly swollen. Sensation was normal. Clicking with rotation was reported but could not be reproduced. Sensation in all fingers to light touch is normal. Upper limb reflexes were brisk and symmetrical and there was no sign of cubital or carpal tunnel compression. He was however uncomfortable performing a carpal tunnel compression test (without release phenomenon) and also uncomfortable at end range of movement of flexion and extension in the wrist.
Clinical diagnosis – this is consistent with an intra-articular injury to the ligamentous structures of the wrist which is plausible as a steering feed back injury. The commonest clinical cause of this is a rupture of the triangular fibrocartilage at the wrist.
Imaging – The MRI study of 26 August 2021 which he bought with him confirms a partial thickness ulnar sided tear of the proximal articular surface of the triangular fibrocartilage and mild synovitis.”
REASONS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
Medical Assessor addressed that medical assessment in the context only of a lumbar spine injury. During the period from the original medical assessment and the decision of the Panel, the issues enlarged to include the left wrist injury.
The parties were given notice as to whether there was objection taken to the Panel considering the issue of the left wrist injury for purpose of determining whether
Mr David sustained a non-minor injury. The insurer consented to the left wrist being considered on the assessment. The claimant did not respond to the further direction.
The Panel adopts the examination findings and conclusions of the Medical Assessors.
Construction of the meaning of “minor injury”
The parties were directed to make any “submissions on the construction of ‘minor injury’ and whether an injury is not a minor injury if radiculopathy is present at any time following injury”.
The insurer referred to clause 5.7 of the Guidelines and submitted that this “seems to suggest radiculopathy [is] to be assessed at the time of the assessment”.
It is implicit in the claimant’s submissions that the presence of radiculopathy at any time meant that the injury was not a “minor injury” as defined in the Act.
The principles of statutory construction are well settled[32]. As the plurality stated in Military Rehabilitation CommissionvMay[33], the “question of construction is determined by reference to the text, context and purpose of the Act”, citing Project Blue Sky Inc v Australian Broadcasting Authority[34] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[35].
[32] See also Kirby v Health Care Complaints Commission [2021] NSWCA 139 at [55] per Gleeson JA, White JA and Emmett AJA agreeing.
[33] [2016] HCA 19 at [10].
[34] [1998] HCA 28 at [69]-[71].
[35] [2009] HCA 41 (Alcan).
In Ali v AAI Ltd[36] Leeming JA doubted that the Guidelines issued under s 65 of the Motor Accidents Compensation Act 1999 had the force of delegated legislation. His Honour’s reasons included the terms of the legislation which provided the basis upon which the Guidelines were issued. His Honour stated:[37]
“As presently advised, I incline to the view that s 65(1) lacks the force attributed to it in the insurer’s submissions. Far from a medical guideline having the force of delegated legislation, s 65(1) provides that medical assessments are “subject to” “relevant provisions of” the Guidelines. The relevant provisions are those “relating to” certain procedures: “the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment”. That picks up, almost precisely, the language of s 44(1)(d), which is also directed to procedures.”
[36] [2016] NSWCA 110 (Ali)
[37] Ali at [87].
Chapter 5 of the Guidelines further defines minor injury are issued pursuant to s 1.6(5) of the Act which provides that they “may make provision” with respect to the assessment of whether an injury is a minor injury. That section is lacking in “having the force” of delegated legislation.
The Court of Appeal has held that the Guidelines for assessment for permanent impairment issued under the Workplace Injury Management and Workers Compensation Act 1998 have the force of delegated legislation.[38]
[38] Ballas v Department of Education [2020] NSWCA 86 at [97].
The general principles of statutory construction apply with respect to interpreting subordinate legislation: Collector Customs v Agfa Gevaert Ltd[39] adopting Dixon J in King Gee Clothing Co Pty Ltd v The Commonwealth.[40]
[39] [1996] HCA 36.
[40] [1945] HCA 23; (1945) 71 CLR 184 at 195.
Leaving aside the notion of whether the relevant portion of the Guidelines are subordinate legislation, it is appropriate in our view to construe the relevant statutory provisions and the Guidelines in accordance with accepted principles of statutory construction.
The Panel notes that we are assessing whether an injury is a minor injury and not assessing permanent impairment. The extent of the permanent impairment is determined as at the date of assessment.[41] There is no provision that the extent and the effects of an injury are not so limited although the meaning of “radiculopathy” in Chapter 5 of the Guidelines refers to portions of Chapter 6, which pertains to the assessment of permanent impairment.
[41] Clause 6.21 of the Guidelines.
Some of the statutory and other provisions suggest a conclusion that the injury is determined over an indefinite period at or following the motor vehicle accident.
“Injury” is defined in s 1.4 of the Act and means personal or bodily injury and is defined to extend to other meanings not here relevant.
“Motor accident” is also defined in s 1.4 and means “an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused” during certain circumstances.
The requirement that the death or injury “is as a result of and is caused” by circumstances such as the driving of a vehicle directs attention to the motor accident rather than to the time of assessment.
Radiculopathy is an example where the symptoms fluctuate over time because the extent of the compression of the spinal nerve root may vary due to inflammation on the nerve root. Symptoms may subside if the inflammation reduces and return because the injured disc is exacerbated by innocuous activities.
Clause 4 of the Regulations broadens the definition of “minor injury” to include an injury to a spinal nerve root that “manifests in neurological signs (other than radiculopathy)”. There is no requirement in clause 4 that the radiculopathy be present at the time of the assessment by a Medical Assessor. The reference to “manifests in neurological signs (other than radiculopathy)” suggests that the radiculopathy occurred at some point but not necessarily at the time of the examination by the Medical Assessor or the Panel. That interpretation is consistent with radiculopathy being a fluctuating condition.
The Guidelines make provision for the assessment for soft tissue and minor psychological or psychiatric injuries and refer to both an examination, diagnosis, and the assessment process. Clause 5.5 of the Guidelines state that the diagnosis “must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the Insurer”.
There is no requirement in clause 5.5 that the assessment be undertaken by the Medical Assessor at first instance or, on review, by the Panel. The reference to “other suitably qualified person independent from the Insurer” suggests that the assessment can be undertaken by a treating doctor.
Clause 5.6 requires that the “the assessment of whether an injury caused by the accident is a minor injury” is based on many factors including prior records and assessments by treating doctors. There is no reason why the reference in clause 5.6(d) to a “through physical … examination” must be undertaken by a Medical Assessor. Presumably an insurer can make an admission that an injury is a non-minor injury without every case being disputed and referred for medical assessment. In those circumstances, the admission will be based on a thorough physical examination conducted by a treating doctor.
Clauses 5.7 notes that an “assessment of whether or not radiculopathy is present is essential”. However, clause 5.7 refers to both “assessing” and the “assessment” as it refers to “assessing whether an injury” and that an “assessment” is “essential”.
In our view clause 5.6 and the surrounding clauses do not require that the assessment be made by a Medical Assessor, and it is sufficient that it be based on a clinical assessment of a medical practitioner independent from the insurer. The meaning of Part 1, clause 4 of the Regulations is satisfied if the radiculopathy is present at any time, although to constitute radiculopathy, at least two clinical signs must be established as specified by clause 5.8.
Presence of radiculopathy
Mr David referred to various clinical notes that recorded leg pain as supporting a finding of radiculopathy. The references in the clinical notes are vague and do not precisely define whether the leg pain is localised to an appropriate nerve root distribution.
Similarly, the reference to muscle wasting in the Allied report does not identify muscle weakness anatomically localised to an appropriate spinal nerve root distribution. The symptoms reported in that the Allied report are consistent with localised lumbar spine injury rather than the presence of radiculopathy.
The parties were referred to the examination findings of Dr Darwish because they are the only relevant findings that may establish radiculopathy. The examination with
Dr Darwish occurred some 12 months after the motor accident. The doctor identified a positive sciatic nerve root tension sign and “decreased sensation over the lateral aspect of the left leg and left foot”.
As the Medical Assessors observed in their joint report:
“Dr Darwish does not describe where in the left the pain was and whether he is using the leg in the anatomical sense, that is below the knee, or merely as the lay term for left lower limb.”
In these circumstances the Panel is not satisfied that the findings made by Dr Darwish satisfy at least two of the criteria in clause 5.8 of the Guidelines.
We also observe that Dr Darwish’s second report after the MRI scan acknowledges that the foraminal disc protrusion is on the right side, but the symptoms are on the left.
Finally, we conclude, based on the examination findings of the Medical Assessors, that Mr David did not have radiculopathy when he was recently examined.
For these reasons we conclude that Mr David has not satisfied two clinical signs in clause 5.8 of the Guidelines.
Low back injury
The significance of annular tears in the relationship to low back pain, and in particular causation is complex.
The hyper intense focus is another way of saying High-intensity zone (HIZ). This has a bright signal on T2 weighted MRI images. These are sometimes called annular tears or annular fissures. The three terms are often used interchangeably, but HIZ refers only to bright signal seen on the T2-weighted images. It is a radiological finding with no assumptions about causation/pathology whereas the term annular tear is a histopathological diagnosis made on microscopic examination of tissues recovered at operation or at autopsy. An annular fissure is a finding made only on provocative discography of the intervertebral disc when the injected contrast into the nucleus of the disc penetrates the annulus.
Since the features referred on the lumbar spine MRI concerned the radiological appearance, the Panel will continue to refer to these as HIZ. The distinction is important since the histopathological findings of operative or autopsy specimens are associated with intervertebral disc degeneration, not trauma, and range from reactive calcification, mucoid degeneration and delamination, as well as structural disruption of the annulus.
High-intensity zone were originally described in spinal surgery candidates in whom provocative discography was the proposed preoperative investigation. Provocative discography was known to give unreliable results and had the possibility of accelerating degenerative changes in the discs tested. HIZ was proposed as a radiological sign that the intervertebral disc was the source of pathology producing low back pain and so discography would not be necessary. It should be appreciated that though there was a correlation this did not mean there was necessarily causation as the initial reports were in highly selected groups with chronic low back pain.
Over time HIZ were found in asymptomatic subjects either as part of a control group who did not have low back pain or as part of ongoing population studies of ageing changes in asymptomatic subjects. HIZ were common and part of normal spinal aging and thus unreliable predictors of low back pain. HIZ are common in asymptomatic spines between 30 and 60% depending on the age of the subject.
In MRIs performed on average 1.5 days after onset of low back pain, HIZ was found in 30% and T2 enhancement in the outer annulus (also regarded as an HIZ phenomenon as is seen in Mr David’s imaging) in a further 20%. Granulation tissue, the possible source of the enhanced signal, would not have developed in this timescale; therefore the “tears” are pre-existing.
The natural history of HIZ is for the lesion to mostly stay the same in appearance over a short timescale (12 months). Less than one in five enlarges, one in five gets smaller and one in five disappears. There is no correlation with changes in size of the HIZ and the presence or absence of symptoms of low back pain.
High-intensity zone are therefore common findings of normal spinal ageing and for the most part pre-date the onset of any episode of low back pain. They have a positive correlation with other features of intervertebral disc degeneration and are not necessarily caused by injury such as a motor accident. A HIZ is part of the natural history of disc degeneration but is not an independent source of low back pain.
These observations are consistent with clause 6.121 of the Guidelines which provides:
“While imaging and other studies may assist medical assessors in making a diagnosis, it is important to note that the presence of a morphological variation from what is called normal in an imaging study does not make the diagnosis. Several reports indicate that approximately 30% of people who have never had back pain will have an imaging study that can be interpreted as positive for a herniated disc, and 50% or more will have bulging discs. Further, the prevalence of degenerative changes, bulges and herniations increases with advancing age. To be of diagnostic value, imaging findings must be concordant with clinical symptoms and signs, and the history of injury. In other words, an imaging test is useful to confirm a diagnosis, but an imaging result alone is insufficient to qualify for a DRE category.”
The parties were provided with various documents and referred to clause 6.121 of the Guidelines. No submissions or documents were provided in reply.
The Panel in its medical expertise agrees with clause 6.121. We have earlier set out our previous findings concerning annular tears and fissures naturally occurring and often being unrelated to injury.
The claimant referred to the MRI and CT scans and submitted that the scan evidence established causation.
We accept the claimant’s submissions that there was an absence of low back complaint and any relevant scan evidence prior to the motor vehicle accident. We accept that shortly after the motor vehicle accident, Mr David complained of low back pain.
However, those matters do not of itself establish that the annular pathology was caused by the motor accident. Our reasons earlier discussed the prevalence of pathological changes in the spine caused by normal aging and degeneration over time. The fact that Mr David suffered back pain does not mean that it was due to any annular tear or fissure. The fact that he had no back pain prior to the accident does not mean that there were no annular tears because they are often asymptomatic. The low back pain is more likely attributable to soft tissue injury to the low back involving an aggravation of degenerative changes.
The Panel is not satisfied that the motor accident either caused or aggravated the annular tears and fissures described by the radiologist. For the reasons provided we are not satisfied that the pathology was caused by the motor accident. The scan evidence is consistent with degenerate disc pathology which would have been aggravated by the motor accident and caused low back pain. That aggravation constituted a minor injury within the meaning of the MAI Act.
Left wrist injury
Mr David attended hospital immediately following the injury and reported left forearm pain. The clinical notes are not detailed but they do disclose a left wrist x-ray was performed at that time which was reported as showing no abnormality. As a medical observation, the triangular fibrocartilage tear was ultimately shown on the MRI scan but would not have shown on an x-ray.
On his initial attendance at the general practitioner, Mr David reported left forearm pain and pain in the left arm. The clinical note does not precisely record the symptoms.
As the insurer submitted, there is an absence of reference to the left forearm in numerous notes. Indeed, the matter was not mentioned to Medical Assessor Bodel.
The MRI scan dated 26 August 2021 is reported as showing a partial thickness sided tear of the proximal articular surface of the triangular fibrocartilage extending to involve the dorsal distal radioulnar ligament.
The clinical examination undertaken by the Medical Assessors on the Panel showed symptoms consistent with the MRI scan. These symptoms are reported in the examination findings by the Medical Assessors.
Mr David reported symptoms following the motor accident and he stated to the Medical Assessors that these symptoms had not gone away. It is plausible and logical that the diagnosis was not made until an MRI scan was eventually undertaken earlier this year.
Steering wheel kick back is caused by sudden change of direction if the car hits an obstacle. It is known by expert medical practitioners to cause wrist injury through the force that feedbacks violently to the driver's hands and wrists as the steering wheel is forced to follow the front wheels.
This is precisely what occurred in the motor accident as described by Mr David. The motor accident could have been the precise mechanism in which an axial dislocation of the trapezoid region of the wrist could occur resulting in tearing of the triangular fibrocartilage.
The medical experts on the Panel make these observations from their years of clinical experience with working with trauma victims from motor accidents.
Mr David stated that he had the wrist symptoms since the accident and the Panel were not referred to contrary evidence.
The absence of subsequent recorded complaint does not mean that Mr David did not have the symptoms. Equally the absence of complaint is explicable because Mr David was more focused on the lumbar spine complaints. Indeed, the nature of the left wrist injury and pathology would not be particularly painful unless the left wrist was used. In this regard, Mr David is righthanded and would obviously use his left wrist significantly less than the right.
A precise examination, as was undertaken by the Medical Assessors, will identify the exact point of pain in the left wrist. Otherwise, it is understandable that Mr David did not complain about left wrist symptoms to a number of health practitioners.
The insurer referred to the prior hand injury which was reported by Medical Assessor Bodel. In the Panel’s view, noting the Medical Assessor’s joint examination of the left arm, the prior left-hand injury is distinct from the left wrist injury. Mr David otherwise explained the difference in his recent statement. That conclusion is consistent with the report of Ms Botros dated 18 February 2020 which described the pre-accident work injury as being a “left hand/middle finger injury” resulting in reduced extension to the middle finger.
The Panel has relied in part on the history provided by Mr David in reaching the conclusion that the pathology in the left wrist shown in the MRI scan was caused by the motor accident. The Medical Assessors did not see any exaggeration in the way
Mr David presented.
Based on the initial recorded symptoms at hospital, the absence of prior left wrist injury, the MRI scan findings, Mr David’s history and the medical examination undertaken by the Panel, we accept that Mr David suffered a tear of the triangular cartilage in the motor accident. The circumstances of the motor accident are otherwise consistent with a wrist injury having occurred.
The triangular fibrocartilage of the wrist performs the same mechanical function as the meniscal cartilage in the knees. A complete or partial rupture of the triangular cartilage is a non-minor injury as defined under clause 5.2.1 of the Guidelines.
Conclusion
For these reasons the Panel concludes that the left wrist injury is a non-minor injury for the purposes of the MAI Act.
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