Dordevic v AAI Limited trading as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Dordevic v AAI Limited trading as GIO [2022] NSWPICMP 279
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:	8 July 2022
CATCHWORDS:	MOTOR ACCIDENTS – Claimant aged 46 years and involved in two accidents; car versus bicycle on 19 February 2019 and front seat passenger in car on 5 February 2020; same CTP insurer on risk for both accidents; first accident causing injury to cervical spine with disc protrusion and an annular tear amongst other injuries; Panel satisfied that disc protrusion and annular tear not age-related; no issue about decision of Medical Assessor that the claimant suffered injuries to her left shoulder, left hand, lower back, right hip and right leg and that all of these are minor injuries and this decision adopted by the Panel; review undertaken only to whether the injury to the claimant’s cervical spine was not a minor injury; scan of cervical spine of 4 August 2020 and claimant’s submissions not referred to by Medical Assessor; scan confirmed disc protrusion and an annular fissure; Held – Medical Review Panel concluded that the claimant suffered a disc protrusion and an annular tear as a result of and causally related to the accident of 19 February 2019.
DETERMINATIONS MADE:	i) The Panel revokes the certificate of Medical Assessor Wijetunga dated 24 June 2021. ii) As there is no dispute by the parties about the findings of Medical Assessor Wijetunga that the claimants left and right shoulder injuries are minor and that the injuries to the claimants thoracic and lumbar spine are minor, the Panel adopts the findings of the Medical Assessor about this. iii) The Panel finds that the injury to the claimant’s cervical spine was a non-minor injury. Effective date: 4 July 2022

Background

There is a dispute between Snezana Dordevic (the claimant) and the insurer about whether an injury to the claimant’s cervical spine was a minor or non-minor injury.
On 5 May 2021, the claimant was assessed by Personal Injury Commission Medical Assessor Nel Wijetunga (the assessor) for injuries arising from two motor vehicle accidents on 19 February 2019 and 5 February 2020.
The same CTP insurer is on risk with respect to both accidents.
The assessor issued a certificate dated 24 June 2021.
The assessor determined that the claimant sustained minor injuries in both accidents.
This dispute was lodged by the claimant, requesting a review of the assessor’s Medical Assessment Certificate, dated 24 June 2021. The claimant submits that the assessor erred in determining that the claimant’s cervical spine injury was minor.
In her Medical Assessment Certificate, the 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.
Whilst this is a new review, the claimant has only put in issue the determination of the assessor going to her assessment of the claimant’s injury to her cervical spine. The Panel adopts the findings of the assessor that injuries to the claimants left and right shoulder are minor and that the injuries to the claimants thoracic and lumbar spine are minor.
The assessor was provided a description of the two accidents by the claimant. The first accident was when the claimant was riding 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 of her left shoulder, left hand, neck, lower back, right hip and right leg pain.
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 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 car from the right side street attempted to turn right into the outer lane but oversteered and collided with their car. From this accident the claimant recalled immediate pain in both shoulders in the back of her neck and head.
After the first accident, the claimant did not undergo any specific treatment other than the use of analgesia. The claimant said to the assessor that she continued to experience symptoms at the time of the second accident but they had subsided in intensity. The assessor said that after the first accident, the claimant had investigations of the knee, wrist, left hand and left and right shoulders, all of which did not show any tears to cartilage, ligaments, tendons or menisci. The assessor did not mention, nor did she discuss an MRI scan of the cervical spine dated 4 August 2020. This scan showed a generalised disc bulging with postero-central disc protrusion and associated annular fissure at C6/7 of the cervical spine indenting the ventral thecal sac. The assessor said that the left wrist, left and right shoulder, neck and lower back were considered soft tissue in nature.
With the claimant’s neck injury, the assessor said that this was most probably a whiplash associated disorder extending into the left and right shoulders.
Arising out of the first accident, the clinical notes – page 67 of the insurer’s bundle, confirm that the claimant reported that she was hit by a car on her right side when riding a bike on the footpath.
The 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,
c.     thoracic and lumbar spine – musculoligamentous sprain.
The claimant submits that the assessor failed to properly consider and engage all relevant material, including an MRI of the cervical spine dated 4 August 2020 and the claimant’s submissions dated 11 September 2020. This
The issue in dispute is whether the claimant’s neck injury is classified as a “minor injury” within the meaning of the Motor Accident Injuries Act 2017 (the Act). Pursuant to Schedule 2, cl 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 and, pursuant to s 7.26 of the Act, on review by a Review Panel.
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 vehicle accident were minor injuries” - s 4.1 the Act.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned - see s 7.26(6) of the Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Act. A review panel determines how it conducts and determines the proceedings and they determine the proceeding solely based on the written application – see Rule 128 of the PIC Rules.

Submissions

The claimants submissions

The claimant submits that the assessor failed to properly consider and engage all relevant material. This includes an MRI of the cervical spine dated 4 August 2020 and the claimant’s submissions dated 11 September 2020.
The claimant submits that the determination of the assessor that the claimant’s cervical spine injury was minor is incorrect in a material respect.
On page 10 of the assessor’s certificate in the section headed “Summary of relevant radiological and medical imaging and other investigations”, the claimant submits that assessor did not record the existence of the claimant’s MRI of her cervical spine dated 4 August 2020. This document was document A11 in the claimant’s application and document A3 in the review application bundle.
The claimant submitted to the insurer that in the Allied Health Recovery Request reports of the claimant’s treating medical practitioners (Annexures A21-A23) a diagnosis is noted of cervical disc bulges with referred pain, namely radiculopathy, down into both shoulders.
In the claimant’s initial submissions to the insurer, reference was also made there to the MRI report of the cervical spine dated 4 August 2020. It was submitted that the claimant had sustained more than a soft tissue injury and/or minor injury in the accident in respect of her physical injuries.
With respect to the claimant’s application for medical assessment – minor injury, the claimant specifically referred to the MRI scan report of the cervical spine dated 4 August 2020. The scan confirmed complaints, the claimant submitted, of radicular symptoms by the claimant and diagnosed a focal C6/7 spondylosis with a posterocentral disc protrusion and an annular fissure with ventral thecal sac indentation.
The claimant submitted in her submissions of 11 September 2020, that it was clear from the medical evidence, and in particular the MRI report of the cervical spine dated 4 August 2020, that the claimant had suffered a spinal injury with radiculopathy. The claimant submitted that she had sustained more than a soft tissue injury and/or minor injury in the “subject” accident in respect of her physical injuries. The claimant does not specifically say whether the “subject” accident is the first or second accident.
The claimant submits that given her complaints of nerve symptoms then these findings support a diagnosis of radiculopathy and as such the claimant cervical spine injury does not fall under the definition of a soft tissue injury under s 1.62(a) of the Act.
In the claimant’s initial treatment dispute application it was submitted that the claimant sought to make an application for assessment by the Dispute Resolution Service, as it then was, in relation to the insurer’s minor injury assessment as outlined in their internal review decision of 14 August 2020.
It was submitted by the claimant that the injuries sustained by her in the accident are not soft tissue injuries or minor psychological injuries and as such are non-minor injuries.
Specifically, it was submitted that the presence of radiculopathy as a result of the claimant’s accident related spinal injury meant that her injuries fell outside the scope of a minor injury determination. It was submitted that such a diagnosis is confirmed in the medical evidence submitted and in particular the radiological findings and the findings of the claimant’s treating general practitioner (GP), Dr Tomka and her physiotherapist, Luka Kaluderovic.

The insurer’s submissions

The insurer says that there were no verifiable radiculopathy signs arising from the injury.
The insurer says that neither the claimant’s GP nor physiotherapist reported two or more verifiable signs of genuine radiculopathy to the lumbar spine according to the criteria outlined in the Guidelines.
With respect to the cervical spine, and the reported scan, the insurer said that the annular fissures/tears are a compromise in the outer ring of fibres of the intervertebral disc. The insurer noted that although most annular tears are caused by a natural degeneration over time, traumatic injury can also be a cause of an annular tear. If the annular tear was caused as a result of the accident the insurer concedes that this would fall under the definition of a non-minor injury.
The insurer says that given the claimant’s age and background of degeneration in the cervical spine at that level (spondylosis) then it is more than likely that the cause of the annular fissure is natural degeneration rather than trauma.
The insurer says that the claimant was diagnosed with a cervical spine injury by her GP but with no radiculopathy signs arising from injury to or impingement of specific cervical spine nerves being assessed or noted. The insurer says that the claimant’s cervical spine injury falls under the definition of a minor injury.
The insurer submits that the assessor was best placed to make the determination pertaining to the diagnosis given the plethora of evidence before her. The insurer submits there is no indication throughout the certificate that the assessor was incorrect in a material respect.
The insurer says that it is also abundantly clear that the assessor noted her consideration of the medical evidence and the information therein.
The insurer further submits that the Court of Appeal decisions in Ali v AAI Ltd (2016) NSWCA 110 and Insurance Australia v Milton (2016) NSWCA 156, demonstrate the established requirement to construe the obligations of medical assessors to provide reasons for their determinations very narrowly. The insurer says that in both cases it was indicated that as long as the reasoning provided establishes that the Assessor considered relevant issues, the Court can infer that the Assessor exercised his/her professional judgment in arriving at the ultimate conclusion without the need for further explanation.
The insurer considered the claimant had suffered soft tissue injuries only to her back, neck, shoulders, right hip, left knee and both ankles. On that basis the insurer says that any injury suffered by the claimant is a minor injury.

Re-examination

The Panel considers that the issues raised by the claimant do not require a re-examination. Her injuries have been extensively investigated and reported. Further, the question of causation of injury is not one that can be determined in this instance by a physical examination. The Panel has proceeded to assess the review application on the papers.
This review is by way of a new assessment of all the matters with which the medical assessment of Medical Assessor Wijetunga is concerned. All relevant documentation forming the respective bundles of the claimant and the insurer have been considered by the Panel.

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, cl 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) is 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 8.1 of the Guidelines commenced on 1 December 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.
Clauses 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 cl 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 the Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in the Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in the 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.”
Sections 5D and 5E of the Civil Liability Act 2002 (Civil Liability Act) apply to the Act - see s 3B of the Civil Liability Act. 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 apply – see cls 6.5-6.7 of the Guidelines. This is because Part 6 is specified as applying only to the assessment of Permanent Impairment.

Material before the Review Panel

The parties each filed their respective bundles of documents in accordance with the initial Review Panel direction.
The panel has had the benefit of the claimant’s various submissions and documentation forming A1-A32 of its review application.
The Panel has had the benefit of the insurer’s submissions and documentation forming
R1-R32 of its reply.

Reasons

The MRI scan of 4 August 2020, under the heading of Findings, reports that:
“The cervical spine aligns normally. There is no vertebral wedge compression. No vertebral bone marrow oedema. The prevertebral soft tissues appeared unremarkable. Images through the posterior cranial fossa appeared normal.
At C6/7, there is a degenerative disc desiccation. Generalised posterior disc bulging with a posterior central disc protrusion associated with an annular fissure. This results in ventral thecal sac indentation. There is no central spinal canal stenosis. No foraminal narrowing. No radicular compression.
COMMENT
There is focal C6/7 spondylosis characterised by a posterocentral disc protrusion with an annular fissure causing ventral thecal sac indentation with no neural compression.”

Clause 5.6 of the Guidelines 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 cl 5.6(d) to a “through physical … examination” must be undertaken by a medical assessor. The Panel is satisfied that it can make a reasonable assessment based on records and reports of a physical examination conducted by a treating doctor.
Clauses 5.7 of the Guidelines notes that an “assessment of whether or not radiculopathy is present is essential”. However, cl 5.7 refers to both “assessing” and the “assessment” as it refers to “assessing whether an injury to the neck or spine is a soft tissue injury” and that an “assessment of whether or not radiculopathy is present” is “essential”.
In the opinion of the Panel, an assessment for the purposes of cl 5.6 of the Guidelines does not require that the assessment be made by a Medical Assessor. It is sufficient that the assessment is based on a clinical assessment of a medical practitioner independent from the insurer. The meaning of Part 1, cl 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 cl 5.8.
The Panel is satisfied that the assessor failed to consider and engage all relevant material particularly including the MRI of the cervical spine dated 4 August 2020 and the claimant’s submissions dated 11 September 2020. The assessor has not referred to the MRI of 4 August 2020 in her certificate.
The MRI of 4 August 2020 noted a ”generalised posterior disc bulging with a posterior row central disc protrusion associated with an annular fissure”. The submissions are to the effect that given the complaints by the claimant of nerve symptoms then these findings support a diagnosis of radiculopathy and as such the claimant’s cervical spine injury does not fall under the definition of a soft tissue injury under s 1.62(a) of the Act. The panel does not agree with that submission. The complaint of nerve symptoms is not automatically evidence of radiculopathy.
While the assessor has not specifically referred to the claimant’s submissions nor the relevant MRI scan of the cervical spine, she did conclude that arising out of the first accident, the claimant suffered a whiplash associated disorder of the cervical spine and that arising out of the second accident, she suffered an aggravation of injury to the cervical spine.
In the Allied Health Recovery request reports of the claimant’s treating medical practitioner, annexures A4 to A6, a diagnosis is noted of cervical disc bulges with referred pain, namely radiculopathy down into both shoulders.
In the MRI scan of 4 August 2020 of the cervical spine, A10, it is said in the initial submission for the dispute that there is confirmation of complaints of radicular symptoms. The result of the scan is said to be a focal C6/7 spondylosis with a posterocentral disc protrusion and an annular fissure with ventral thecal sac indentation.
The GP clinical notes make no reference to radiculopathy.

The Panel accepts that the assessor did not cite or mention the claimant’s MRI scan of the cervical spine dated 4 August 2020.
The Panel says that as the claimant had a known whiplash injury in the first accident, this constitutes disruption of the tissue, that is the annulus that supports and surrounds the nucleus pulposis and is therefore a non-minor injury under section 1.6(2) of the Act. The claimant may have had radicular complaint without radiculopathy but for the purposes of the Act, the cervical spine strain is not just a soft tissue injury but an annular tear which is non-minor.
Once a person has a disc protrusion, it follows that it has split the annulus skin. With flexion/extension (whiplash) injuries to the cervical spine, the disc space posteriorly opens up on flexion making it easier for the disc to protrude posteriorly which is more likely in the first accident of 19 February 2019. In that accident the claimant was riding a bicycle which collided with a car, causing the claimant to be dislodged from the bike and fall to the ground. The second accident appears to have been of lesser impact and did not result in the airbags and the claimant’s car being deployed.
The claimant is 46-years-old. It might not be unreasonably argued, as the insurer has, that her condition arises by way of degeneration but against that, she suffered what might be considered a violent accident when she was riding her pushbike on a footpath and a car reversed into her and sent her onto the ground and off her bike.
There are no medical records before the Panel to indicate that the claimant had made complaints with respect to her cervical spine prior to the first accident.
The original assessor said that there was no serious injury but did not record that she had seen or considered both the MRI of 4 August 2020 and the claimant’s submissions on the non-minor point as she did not mention them in her assessment. The main issue for consideration however is the tear of the annulus.
The cellular makeup of the disc changes as a person ages. The Panel is cognisant of needing to be satisfied that any disc protrusion should be considered as arising from either (1) age related circumstances or from (2) trauma.
In the Allied Health Recovery request reports of the claimant’s treating medical practitioner, annexures A4 to A6, a diagnosis is noted of cervical disc bulges with referred pain, namely radiculopathy down into both shoulders. A diagnosis of a shoulder tendon tear and left and right shoulder bursitis is also made.
There is an entry in the clinical records of the claimant’s GP, Dr Tomka, of 16 June 2020 about an MRI of the cervical spine and lumbar spine. Dr Tomko made two imaging requests for MRIs of the cervical and lumbar spine with respect to radiculopathy and possible disc prolapse on 16 June 2020 and 27 July 2021 with an MRI scan taking place on 4 August 2020 and also on 13 January 2022 by way of comparison of the first scan of 4 August 2020. The scan of 13 January 2022 with respect to the C6/C7 level referred to a mild posterior broad based disc bulging with an annular fissure posterior early which has resulted in mild central canal narrowing and thecal sac indentation.
There was also an ultrasound scan to both shoulders, annexure A9, by Dr Cohen, dated 29 July 2020 in which there was a diagnosis of subscapularis tendon tear on the left with tendinosis and bursitis in both shoulders with impingement.
The claimant not only has a disc protrusion but also has an annular tear. This combination is associated with radicular complaint and in some, causes radiculopathy. The Panel is satisfied on the basis of the evidence of the MRI scan of 4 August 2020, that this is a
non-minor injury and the suggestion that this is an aged related change is not supported by the evidence. That is to say the claimant has a disc protrusion and an underlying tear which is causally related to the subject accident and remains symptomatic and is as clearly defined as a ligamentous tear with no pre-accident complaint about this by the claimant.
As there is no evidence before the Panel to suggest that the claimant complained about her cervical spine before the first accident, the Panel accepts that the claimant has suffered a whiplash injury on 19 February 2019 which constituted a disruption of the tissue, that is the annulus that surrounds and supports the nucleus pulposus. The claimant may have had radicular complaint without radiculopathy but for the purposes of the Act, the cervical spine strain is not just a soft tissue injury, but an annular tear.
An annular fissure is the same as an annular tear and radiological evidence establishes causation. The annular fibrosis is the ligament that contains the nucleus pulposis which in this claimant’s case has ruptured and torn through the annulus. The reason the annular tear is associated with the accident is that the disc has protruded through it. As a result of the subject collision.

Conclusion

Because of the C6/7 disc protrusion with annular tear, the claimant’s cervical spine injury is a non-minor injury.

Determination

The Panel revokes the certificate of Medical Assessor Wijetunga dated 24 June 2021.
As there is no dispute by the parties about the findings of Medical Assessor Wijetunga that the claimant’s left and right shoulder injuries are minor and that the injuries to the claimant’s thoracic and lumbar spine are minor, the Panel adopts the findings of the assessor about this.
The Panel finds that the injury to the claimant’s cervical spine was a non-minor injury.
Effective date: 4 July 2022

Member Alexander Bolton

Medical Assessor Drew Dixon

Medical Assessor Neil Berry

Personal Injury Commission

[2022] NSWPICMP 279

8 July 2022