Dordevic v AAI Limited t/as GIO
[2023] NSWPICMP 175
•23 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Dordevic v AAI Limited t/as GIO [2023] NSWPICMP 175 |
| CLAIMANT: | Snezana Dordevic |
INSURER: | AAI Limited trading as GIO |
| REVIEW Panel | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 23 May 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Dispute about whether an MRI scan of the claimants thoracic spine is reasonable and necessary; claimant had been involved in two accidents; first accident on 19 February 2019 and second accident on 5 February 2020; first accident involved a car colliding with claimant on pushbike and knocking her to the ground and second accident was regarded as a minor collision with no airbags being deployed; claimant’s immediate complaints post-accident were pain in both shoulders and in the back of her neck and head; limited complaint of treatment of back; insurer disputed that request for an MRI scan of the lumbar spine was consistent with the guidelines for imaging referral and said that this was not clinically appropriate; Held – Panel satisfied that the mechanism of the second accident resulted in a lateral force to the left and was an aggravation of injury suffered from the first accident but complaints of pain were intermittent; Panel agreed with the findings of the original Assessor and concluded that an MRI scan of the claimants thoracic spine was not reasonable and necessary in the circumstances. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Panel has previously revoked the decision of Medical Assessor Wijetunga. 2. The Panel determines that an MRI scan of the claimant’s thoracic spine is not reasonable and is not necessary in the circumstances. 3. The injury to the claimant’s cervical spine is a threshold injury. |
STATEMENT OF REASONS
The claimant has made two applications for review.
The first application was concerning whether or not the claimant had suffered a minor or non-threshold injury. The Panel has provided reasons for that, finding that the injury to the claimant’s cervical spine was a non-threshold injury.
The claimant has been involved in two accidents. The first motor vehicle accident occurred on 19 February 2019, and the second motor vehicle accident occurred on
5 February 2020.The same CTP insurer is on risk for both accidents.
On 5 May 2021, the claimant was assessed by Medical Assessor Nel Wijetunga (the Medical Assessor) for injuries arising from two motor vehicle accidents on
19 February 2019 and 5 February 2020.The Medical Assessor issued a certificate dated 24 June 2021.
The Medical Assessor determined that the claimant sustained minor injuries in both accidents.
The claimant lodged this dispute, requesting a review of the Medical Assessor’s Medical Assessment Certificate, dated 24 June 2021. The claimant submits that the Medical Assessor erred in determining that the claimant’s cervical spine injury was minor.
In her Medical Assessment Certificate, the Medical Assessor determined the following:
“The following injuries caused by the motor accident:
• Cervical spine – whiplash-associated disorder
• Left and right shoulder – whiplash-associated disorder
• Thoracic and lumbar spine – musculoligamentous strain
are MINOR INJURIES for the purposes of the Act.
The following treatment and care:• MRI of the lumbar spine
is reasonable and necessary in the circumstances and will improve recovery in the circumstances.
The following treatment and care:• MRI of the thoracic spine
is not reasonable and necessary in the circumstances and will not improve recovery in the circumstances.”
The Medical Assessor provided a description of the two accidents by the claimant. The first accident was when the claimant rode her pushbike and collided with a car. This caused an impact injury to her right hip. Consequently, she fell on her left side. She complained of immediate onset of pain in her left shoulder, left hand, neck, lower back, right hip and right leg.
The claimant reported that up until the second accident, she continued to experience neck pain which on a visual analogue scale was estimated at a level of 6/10, left shoulder pain at 5/10 and lower back pain at 4-5/10 with right leg and wrist pain at 7-8/10
In the second accident, no airbags were deployed. The claimant described this accident to the Medical Assessor as occurring when she was a passenger in a car driven by her daughter on L-plates. They were travelling in the middle lane when a vehicle from the right side of a street attempted to turn right into the outer lane but oversteered and collided with their vehicle. From this accident, the claimant recalled immediate pain in both shoulders, the back of her neck and her head.
The Medical Assessor found the following injuries were caused by the first accident:
(a) cervical spine – whiplash-associated disorder;
(b) left and right shoulder – whiplash-associated disorder, and
(c) thoracic and lumbar spine – musculoligamentous sprain.
There was no dispute by the parties about the findings of the Medical Assessor that the claimant’s left and right shoulder injuries were minor and that the injuries to the claimant’s thoracic and lumbar spine were also minor injuries.
With the first accident, the Panel determined that the injury to the claimant’s cervical spine was a non-threshold injury.
This application for review is to determine whether a referral by Dr Tomka for the claimant to undergo an MRI scan of her thoracic spine is reasonable and necessary in the circumstances.
Insurer’s submissions
The insurer notes that the claimant requested a review of the insurer’s internal review decision about the request for an MRI of the lumbar spine and thoracic spine, issued on 28 January 2020.
The insurer notes the claimant’s solicitor’s submissions, on behalf of the claimant, that the insurer should fund these treatments on the basis that they are reasonable and necessary and that they will assist with clarification and diagnosis of her ongoing neck and back symptoms and improve the claimant's recovery.
The insurer submits that Medical Assessor Wijetunga was not incorrect in a material respect regarding the threshold injury and treatment assessment, and accordingly this application has been brought without merit.
The insurer submits that there is no indication that Medical Assessor Wijetunga has failed to consider the mechanism of injury, treatment and investigations, history and documentation before her. The Medical Assessor noted that she considered the submissions of both parties and the documentation before her.
The insurer submits that the findings supported by Medical Assessor Wijetunga were commensurate with the degenerative nature of the pre-existing injuries. Accordingly, the Medical Assessor did not fall into error and was correct in her determination.
Notwithstanding the claimant’s submissions summarising the evidence already considered in the first instance, the insurer submits that the claimant’s contentions are merely a difference of opinion to that of the qualified Medical Assessor, and, essentially, have no merit. The insurer submits that a difference of opinion does not constitute a material error.
Claimant’s submissions
Notwithstanding that this is the claimant’s application for review, no submissions have been made by the claimant regarding whether or not a decision is required about an MRI scan of the thoracic spine being reasonable and necessary the circumstances. Instead, the claimant would appear to rely on submissions made to the Medical Assessor.
Statutory Provisions/Guidelines
Section 7.17 of the Motor Accident Injuries Act 2017 (the MAI Act) defines a “medical dispute” as “a dispute between a claimant and an insurer about a medical assessment matter, or an issue arising about a medical assessment matter in proceedings before a court for damages or in connection with the assessment of a claim by the Commission”.
Reasons
The claimant was not physically examined by the Panel. The parties did not require this, and an assessment has been undertaken on the papers.
The claimant’s general practitioner (GP), Dr Tomka, diagnosed an upper and lower back injury and recommended physiotherapy and analgesics. Subsequent treatment by a physiotherapist was based on a diagnosis of a lumbar disc bulge with referral below the gluteal muscles.
The Panel notes that in the first accident of 19 February 2019, the claimant was riding a bicycle which collided with a car, causing her to be dislodged from her bike and to fall to the ground. The second accident appears to have been of lesser impact when the claimant was a passenger in a car and did not result in the airbags in the claimant’s car being deployed.
The claimant’s GP requested an MRI of the cervical, thoracic and lumbar spines on
17 September 2019, citing in his clinical notes radiculopathy and disc prolapse, although these notes would appear to relate to the cervical spine only. No other reasons were provided. The insurer refused to fund the request citing that the accident occurred eight months earlier, there appeared to be no conservative treatment to date, and it did not consider the proposal was consistent with the guidelines for imaging referral and was not clinically appropriate.There is an entry in the clinical records of Dr Tomka of 16 June 2020 about an MRI scan of the cervical spine and lumbar spine. The claimant’s GP made two imaging requests for MRIs of the cervical and lumbar spine concerning radiculopathy and possible disc prolapse on 16 June 2020 and 27 July 2021. A subsequent MRI scan took place on 4 August 2020, and then again by way of comparison on
13 January 2022 but only concerning the claimant’s cervical spine.Dr Patrick provided a medico-legal report for the claimant. The claimant informed
Dr Patrick said she had low back pain but was not constant.In his report, Dr Patrick only referred to the first accident, which occurred on
19 February 2019 and did not refer to the second accident on 5 February 2020, with his report issued on 19 August 2021.Regarding the physical examination by Dr Patrick, he only discussed the claimant’s cervical spine, her left and right shoulders and wrists in detail. Concerning the claimant’s lumbar spine, Dr Patrick said only that there was muscular guarding in the low lumbar region of the claimant’s spine. Based on this muscular guarding, Dr Patrick said that he believed it was important to obtain an MRI scan of the lumbar spine. Dr Patrick said that he thought this had been suggested by the claimant’s treating orthopaedic surgeon, Dr Giblin, but had not been acted upon. The Panel notes that in the claimant’s bundle of documents, there is no report from
Dr Giblin nor any records of his.Dr Patrick did not analyse or discuss the claimant’s thoracic spine.
This review by the Panel goes to whether an MRI scan of the claimant’s thoracic spine is reasonable and necessary in the circumstances.
Apart from the injury to the claimant’s cervical spine, which the Panel has found to be non-minor in its determination of 4 July 2022, the injuries suffered by the claimant as a consequence of the two accidents on 19 January 2019 and 5 February 2020 are musculoligamentous.
The Medical Assessor said that the claimant stated that in the second accident, which was not considered significant by the Medical Assessor, there were no airbags deployed, no police or ambulance attended, and she was not taken to hospital. However, it was said that the accident resulted in a lateral force to the left, which is considered a mechanism sufficient to exacerbate her neck pain, thoracic and lumbar pain.
The Medical Assessor said that from the second accident, this involved a lateral force and the mechanism was sufficient to result in a forced lateral flexion of the cervical, thoracic and lumbar spine to the extent that it aggravated the conditions from the first motor vehicle accident. The Medical Assessor said that the diagnoses were the same as for the first motor vehicle accident, with an aggravation from the second.
The Medical Assessor determined that an MRI scan of the thoracic spine was not considered relevant as the findings are intermittent and there was no radicular nature of the thoracic spine. The Panel also determines this and does not disagree with the Medical Assessor’s findings.
39.The claimant was involved in two motor vehicle accidents. The first accident occurred on 19 February 2019 and the second accident almost one year later on 5 February 2020.
40.The Panel informed the parties that it did not intend to medically examine the claimant and to make an assessment on the papers. The parties were given time to inform the Panel if they did require a physical medical examination of the claimant, but this invitation was accepted by either party. The Panel proceeded to assess the claimant on the papers.
41.The claimant was reported to have informed Medical Assessor Wijetunga that the second accident there were no airbags deployed, no police or ambulance attended and the claimant was not taken to hospital.
42.The first accident involved the claimant riding a bicycle which collided with a car. There was no external barrier to protect the claimant and she was exposed potentially to a more significant injury by being dislodged from the bike and forward to the ground.
43.The claimant did not go and have an MRI scan investigation of her lumbar spine until 26 April 2022. This is over two years after the second accident. That MRI scan revealed a broad-based disc protrusion at L4/5 level. This MRI document was not initially part of the claimants documents and was admitted late to the application..
44.In the normal course of events, the Panel would have expected there to be acute complaint of injury close to the time of the accident on 5 February 2020. There is however no record of any complaint or acute injury and pain to the lumbar spine of note although there was complaint of lower back pain following the first accident at various times after that event.
45.As the Panel discussed in its reasons with respect to the determination of the claimants’ injuries from the first accident on 19 February 2019, once a person has a disc protrusion it follows that it has split the annulus skin. With flexion/extension (whiplash) injuries the disc space opens up on flexion making it easier for the disc to protrude posteriorly which is more likely in the first accident of 19th February 2019 when the claimant was riding her bicycle and was dislodged by a collision with the insured car.
46.The second accident however appears to have been of lesser impact with the claimant being a passenger in a car and with the air bags not being deployed.
47.The claimant has described that second accident when it occurred, as one giving her immediate pain in both shoulders in the back of her neck and head. There was no reference to acute lower back pain.
48.The claimant did not have an investigation of her lumbar spine following the first accident but, as noted above, she has also not had investigation of her lumbar spine by way of an MRI scan until two years and two months after the accident. This is without treatment or complaint apparently concerning her lumbar spine until that time.
49.Medical Assessor Wijetunga found that the claimant’s left and right shoulder injuries were minor and that the injuries to the claimants thoracic and lumbar spines were also minor injuries. This was confirmed in the reasons of the Panel R-M1043863/21 concerning the first accident which took place on 19 February 2019.
50.The claimant’s submissions with respect to the review, only make reference to the claimant’s cervical spine. The Panel dealt with that issue in its decision in that related matter and determined that the injury to the claimant’s cervical spine was a non-threshold injury (non-threshold injury).
51.Subsequently, on 20 October 2022, the claimant solicitors communicated that on 13 September 2021, the delegated officer of the President issued two separate decisions regarding the claimant’s applications for review of a medical assessment. The claimant solicitors confirmed that there are two review applications pending before the panel for determination.
52.The claimant’s solicitors said that the review panel will be required to review the further medical evidence relied upon by the claimant relevant to the issue of minor/non-threshold injury as outlined in the decision of the delegated officer of the President dated 27 July 2022.
53.As Medical Assessor Wijetunga found that the injuries to the claimant’s thoracic spine and lumbar spine were minor injuries and as the claimant’s submissions only dealt with the decision of Medical Assessor Wijetunga going to her cervical spine, the determination of the Medical Assessor did not appear in dispute. Belatedly, the claimant has raised this issue.
LEGISLATIVE BACKGROUND
Jurisdiction
54.The claimant’s claim is governed by the provisions of 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.
55.While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of which is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “minor” injuries.
56.It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
57.Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
Minor injury
58.A threshold injury is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “minor psychological or psychiatric 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.”
59.In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will not be a non-threshold injury.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold 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 (in terms of psychiatric or psychological injuries).
61.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 the claimant’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 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.”
62.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. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury”.
63.Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.
Method of assessment
64.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. In respect of the medical assessment of whether an injury is a threshold injury or not, 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.
Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Does the claimant have radiculopathy?
65.Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in threshold injury assessments.
66.In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in clause 5.6 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 ...
(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.”67.For the claimant’s injury to fall outside the definition of threshold injury in s 1.6, she would need to have two of the above signs. Pain is not one of the five signs of radiculopathy which might indicate an injury to a spinal nerve root. The Panel has not seen any medical evidence to indicate two any of the above signs as evidence of radiculopathy.
68.The Panel has already certified that arising out of the first accident, the claimant suffered a non-threshold injury to her cervical spine. The Panel is not satisfied that the MRI scan of 26 April 2022 shows a worsening of her condition to the extent that this can be attributable as an outcome of the second accident. There is no evidence of this. The Panel has expressed its view that the nature of the first accident and its circumstances would have been more substantial than the second accident.
69.The Panel does not find that the injury to the claimant’s cervical spine in the second accident is a non-threshold injury. The Panel is satisfied that the injury to the claimant’s cervical spine is a threshold injury.
Conclusion
The Panel has previously revoked the decision of Medical Assessor Wijetunga.
The Panel determines that an MRI scan of the claimant’s thoracic spine is not reasonable and is not necessary in the circumstances.
The injury to the claimants cervical spine is a threshold injury.
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