Eid v AAI Limited t/as AAMI
[2024] NSWPICMP 366
•6 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Eid v AAI Limited t/as AAMI [2024] NSWPICMP 366 |
| CLAIMANT: | Simone Eid |
| INSURER: | AAMI |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 6 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; assessment of treatment and care; causation; certificate under section 7.23(1); whether physiotherapy is reasonable and necessary; path of reasoning; Personal Injury Commission Rules; circumstances of accident; pre-existing medical conditions; injury arising out of the motor accident; diagnostic imaging; bilateral knee surgery; Valgus Osteoarthritis; secondary meniscal degeneration; Held – Panel not satisfied that the claimant sustained an injury to either shoulder in the motor vehicle accident; physiotherapy twice weekly to the shoulder is not reasonable and necessary in the circumstances. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The following treatment and care: (a) physiotherapy twice weekly to the shoulder DOES NOT RELATE TO THE INJURY caused by the motor accident. 2. The following treatment and care: (a) physiotherapy twice weekly to the shoulder IS NOT REASONABLE AND NECESSARY in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
Simone Eid (the claimant) is a 55-year-old woman who was injured in a motor vehicle accident which occurred on 5 June 2021. She was the passenger, wearing a seat belt in a vehicle which was struck on the right-hand side by the insured’s vehicle. On 31 August 2021 the insurer advised the claimant that the claimant’s injuries for outside the definition of a minor injury (now referred to as a threshold injury) primarily as a consequence of the rib fractures she suffered in the accident.
Following this the claimant has undergone a significant amount of treatment including physiotherapy treatment. The claimant sought physiotherapy twice weekly to her shoulder. The insurer has declined to pay this physiotherapy. Following a review the insurer affirmed this decision and accordingly the assessment of treatment and care – causation and assessment of treatment and care – reasonable and necessary, dispute was referred to the Personal Injury Commission (Commission).
In a certificate dated 14 November 2022 Medical Assessor Doron Sher noted that at the time the diagnosis of the shoulder problem is not clear and went on to say:
“Until such time as the diagnosis is known further face to face physiotherapy for the shoulder is not reasonable nor necessary”.
Following the obtaining of an MRI report dated 11 January 2023 the matter was again remitted to Medical Assessor Sher who assessed the claimant on the 28 November 2023. In a certificate of the same date he determined that physiotherapy twice weekly to the shoulder does not relate to the injury caused by the motor accident and accordingly is not reasonable and necessary in the circumstances.
The claimant sought a review of this determination and in a decision dated 8 February 2024 the President’s delegate, Jeremy Lum, agreed with the claimant’s submissions that whilst the certificate reasons provide a diagnosis they do not set out a path of reasoning for the causation decision with respect to the treatment dispute and accordingly the matter has been referred to this Review Panel.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the 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 provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
The Review Panel (Panel) met by Teams on 2 April 2023 and thereafter directed that the claimant be examined on 17 April 2024 by Medical Assessor Geoffrey Stubbs.
The claimant attended with her husband. She is presently 55 years of age. They have two sons aged 23 and 20 who live independently. Mr Eid suffered an injury in 2006 as a forklift driver and consequently had surgery to his back 2019 the form of the spinal fusion. He has been out of the workforce and in 2015. Mrs Eid went on a carers benefit. She says that prior to the motor vehicle accident she was looking for part-time work as she no longer received a parenting allowance. She has a school certificate and some experience in low-level administration with GIO prior to leaving in 1995 to start a family. Mrs Eid lives in a New South Wales housing commission ground floor unit which has 10 steps at the front.
The motor vehicle accident occurred on 5 June 2021 in the early afternoon. Mrs Eid was a front seat passenger in a 2004 Toyota Corolla driven by her son. The point of impact was on the passenger front side of the car. Her son assisted her out of the vehicle and the ambulance took her to Westmead Hospital where was she was assessed overnight but discharged home. There were no airbags deployed and passenger airbags may not have been fitted in any case. She reports being jolted forwards in the accident and believe she hit her knees on the dashboard.
She convalescent home and subsequent investigations revealed that she had suffered a seat belt injury including bruising in the groin across the right shoulder and injuries to the ribs on CT scanning. The Toyota was towed away and not repaired. She saw her family practitioner Dr Golder who prescribed a variety of medications for anxiety depression and panic attacks including Endone and later Targin (both opiate analgesics). She is less active since the accident and says she has put on 10kg weight and lost her enthusiasm to do any housework or socialise. Since the accident she has had ongoing right sided neck pain that spreads from the base of the skull into the back of the scapula but not the glenohumeral join region. She has had heat and massage from the physiotherapist without benefit. She continues to complain of pain on the right side at the neck musculature that spreads into the scapula. Physical therapy has not helped any of the injuries.
The seat belt injury across the chest as resolved without long-term problems.
She felt herself physically well prior to the motor vehicle accident did not report any restrictions in her activities.
Physical examination Ms Eid is [TR1] 159cm tall and weighs 80kg. She has a hesitant manner and is very concerned about her injuries.
Cervical spine she has 4/5 flexion and extension and 4/5 rotation right equals left. Side bending to the right is not painful at 4/5 range but side bending to the left is at 4/5 range. There is tenderness to light pressure over the right sided para scapular musculature but no guarding or spasm. On examination the upper limbs show an otherwise full range of movement, brisk symmetrical reflexes (she is very anxious). Grip strength is only 4/5. Brachial stretch test, the Valsalva manoeuvre and compression testing is normal. She is diagnosis-related estimate (DRE) grade 1.
Lumbar Spine – she complains of central low back pain with hypersensitivity to light touch but no guarding or spasm. Voluntary range of movement is poor. She is anxious about further injury. Forward flexion is fingertips to the lower pole of the patella but side bending restricted the proximal pole of the patella right equals left. She fears extending the spine will increase her pain and refuses to do this. Rotation of the lumbar and thoracic spine is half normal range, right equals left without apparent difficulty and voluntarily restricted. The knees can fully extend when sitting but straight leg raising is 60° right equals left with a negative traction sign. The reflexes are brisk and symmetrical when tested with the same comment about anxiety. There is no anatomical sensory disturbance but there are complaints of burning and numbness without any known provoking factors. She is DRE grade 1.
MRI cervical spine 27 May 2023 – normal study. There is some modest age changes at multiple levels consistent with her age. There is no sign of canal stenosis, foraminal entrapment or any recent injury. The reporting radiologist makes the same interpretation.
MRI right shoulder 11 November 2023 – moderate tendinosis and some intrasubstance tears of the supraspinatous. Study is compounded by some degenerative change acromioclavicular joint, fatty atrophy in supraspinatous musculature together with bursitis and a number of intraosseous cysts in the greater tuberosity some of which communicate with the joint. These are age-related degenerative changes though the interosseous cysts are more pronounced than usual. There is no signs of recent trauma – the reporting radiologist makes the same interpretation.
CT chest and abdomen and pelvis 19 July 2021 – this is six weeks after the motor vehicle accident. There are healing fractures of ribs 3,4 and 5 laterally and a little basal atelectasis (mucus retention but otherwise the study is unremarkable – radiologist makes the same interpretation.
MRI lumbosacral spine 22 September 2021 – normal age-related changes but no evidence of recent injury – radiologist makes the same interpretation.
Upper limbs – as wrist and elbow is sure full range of movement. The reflexes are noted above. There is no sensory disturbance and negative carpal or cubital tunnel compression tests grip strength is symmetrical. She is very cautious about moving either shoulder. The range of motion is summarised in the table below with the average range given. Shoulder movement is very variable. All motor groups in the upper limb are 4/5. There is no crepitus and no provocative signs in either shoulder.
Right left Flexion 90° 110° Extension 40° 40° Abduction 70° 90° Adduction 40° 40° External rotation 60° 60° Internal rotation 60° 60°
MRI right shoulder 11 November 2023 – moderate tendinosis and some intrasubstance tears of the supraspinatous. Study is compounded by some degenerative change acromioclavicular joint, fatty atrophy in supraspinatous musculature together with bursitis and a number of intraosseous cysts in the greater tuberosity some of which communicate with the joint. These are age-related degenerative changes though the interosseous cysts are more pronounced than usual. There are no signs of recent trauma – the reporting radiologist makes the same interpretation.
Mrs Eid has poor movement in both shoulders. There is no injury to the left shoulder in the motor vehicle accident and no other injury to either shoulder in the history taken. In this circumstance the panel feels that a deduction should be made the uninjured left shoulder leaving a difference of 2% upper extremity impairment (UEI) which Table 3 translates into a 1% whole person impairment (WPI). The MRI of the right shoulder is 2½ years after the motor vehicle accident. This shows no evidence of traumatic injury but widespread degenerative changes consistent with ageing exacerbated by a low level of physical activity. Physical therapy in the form regular resistance exercise program (TheraBand exercises) would help both shoulders. The benefit of these exercises depends on the value the exerciser puts on them. If done regularly with occasional supervision there will be a gradual improvement in shoulder strength and range of movement and a corresponding increase in activities of daily living (similarly regular exercise will improve her knees) but this requires understanding and commitment. Passive treatment will be of no benefit. Although the Panel notes that the shoulder problem is basically one of lack of regular activity the panel have taken the view that the difference between two shoulders may represent the effect of the accident but only the difference should be assessed as impairment which is 1% WPI. That said, the Panel is not satisfied that the motor vehicle accident has caused any injury to either shoulder and accordingly any physiotherapy treatment to the shoulders cannot be considered to be an injury arising out of the motor vehicle accident and accordingly is not reasonable and necessary.
Lower limbs. Full range of hip, ankle, and feet movement. Valgus deformity is noted at the knees but both knees have full extension and flexed beyond 130°. The knees showed varus-valgus instability suggesting that the valgus deformity may actually be increasing. There is no anteroposterior draw to testing, no crepitus and no effusion, McMurray sign is negative.
Apart from the valgus deformity and mild bony tenderness in the lateral compartment the knees are unremarkable. Clinical diagnosis – mild constitutional lateral compartment osteoarthritis.
Plain X-rays including weight-bearing films right and left knees to November 2022 – mild valgus osteoarthritis with lateral compartment’s reduction in joint space of about 50%. Small marginal osteophytes. Both patella is track laterally especially on the left side with articular cartilage damage and some marginal osteophytes.
MRI of the right knee shows great[TR2] 2-3 chondral damage in the lateral compartment with a degenerative horizontal tear of the lateral meniscus and marked degenerative lateral extrusion. There is a large cartilage interosseous tumour in the proximal tibia well separated from the joint surface representing a benign fibrochondroma (a lifelong developmental anomaly} with a much smaller fibrochondroma in the distal femur. There is a mild effusion. Conclusion early lateralcompartment osteoarthritis and meniscal degeneration is no traumatic features – the radiologist reaches the same conclusion.
MRI left knee 29 July 2021 – a benign fibrochondroma is seen in the proximal tibia but is much smaller than in the right knee. There is no fibrohondroma in the femur, a degenerative horizontal cleavage tear in the lateral meniscus and some extrusion. Otherwise, the left knee is a mirror image of the right.
Knee studies show constitutional valgus osteoarthritis of moderate nature with associated chondral damage and secondary degenerative tears in the lateral menisci. There is no evidence of trauma. The radiologist reaches the same conclusion.
Conclusion
The Panel is not satisfied that the claimant sustained an injury to either shoulder in the motor vehicle accident. The claimant’s problems with her shoulder are not caused by trauma but it is possible that upper body and soft tissue injuries may have increased the already existing problems caused by her disuse of her shoulders generally. The claimant would benefit from some arm and shoulder exercises. The Panel does not consider that physiotherapy twice weekly to the shoulder is reasonable and necessary in the circumstances. The Panel does not consider that the claimant suffered an injury to her shoulders in the motor vehicle accident nor the physiotherapy likely create any clinical benefit to the claimant.
The claimant is a very anxious lady. She has constitutional valgus osteoarthritis and secondary meniscal degeneration in both knees to an equal degree. There is no evidence of trauma. There is no reason to think these changes are the consequence of the motor vehicle accident. There is no causal relationship. The bilateral knee arthroscopy will not help her. The lateral meniscal tears are the consequences of degenerative change and surgical removal of the meniscus will accelerate the development of the osteoarthritis. Further physical therapy in the form of heat and massage is palliative at best. She would benefit from remedial exercises in both knees (and shoulders) but is very much persuaded that these are injuries from the accident and most reluctant to carry out self-directed exercise.
[TR1]Wording needs to be checked
[TR2]Grade?
0
0
0