Elammar v AAI Limited t/as AAMI
[2024] NSWPICMP 281
•8 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Elammar v AAI Limited t/as AAMI [2024] NSWPICMP 281 |
| CLAIMANT: | Hassan Elammar |
| INSURER: | AAMI |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 8 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant was driving home on 10 July 2020 on the M5 after work; he was travelling in the middle lane of three at approximately 100 kilometres per hour; the insured vehicle was travelling in the same direction; the two vehicles swerved into each other; altercation between the two drivers; insured driver intoxicated; claimant injured when struck by the insured vehicle as he tried to prevent it departing; incident captured on dash-cam footage taken by third vehicle; consideration of what constituted the motor accident; the insurer denied liability on the bases that the claimant was wholly at-fault and suffered only minor (now threshold physical injuries; claimant found to be 10% responsible for accident; Medical Assessor Alexander Woo certified that soft tissue injuries to the cervical and lumbar spine; both shoulders, right hip and right foot were all threshold injuries; Held – certificate confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The Review Panel confirms the certificate of Medical Assessor Alexander Woo dated |
STATEMENT OF REASONS
INTRODUCTION
Hassan Elammar (the claimant) was involved in a motor vehicle accident on 10 July 2020 when he was travelling home on the M5 after work. He was travelling in the middle lane of three at approximately 100kmph. The insured driver was travelling in the same direction in lane three closer to the median strip. The vehicles swerved into each other in circumstances that are contested. Both drivers pulled into the emergency lane at the side of the road and exchanged details. Another driver took dashcam footage of the incident. There was then an altercation between the claimant and the insured driver resulting in the claimant’s being on the bonnet of the insured vehicle as it moved forward. The insured driver then braked heavily causing the claimant to be propelled forward to the left on the side of the carriage way. The insured driver departed the scene. Police attended and subsequently interviewed both drivers and obtained footage from the M5 cameras at the scene. The claimant was issued with a Traffic Infringement Notice for causing the initial collision by not merging from one lane into the other safely. The insured driver was issued with a Traffic Infringement Notice for negligent driving.
Member Boyd-Boland certified on 22 September 2021, after conducting a fully-contested hearing, that the motor accident was caused by the insured driver and that the claimant’s statutory benefits should be reduced by 10% for his contributory negligence.
The claimant says that he suffered various physical injuries to his cervical spine, lumbar spine, both shoulders and right foot, as well as psychological injuries. He specifies severe shock, post-traumatic stress disorder, severe anxiety and depression.
AAMI (the insurer) indemnified the owner and/or the driver of the insured vehicle for liability to pay to the claimant damages and statutory compensation benefits under the Motor Accident Injuries Act2017 (the MAI Act). The insurer denied liability for the claim on the basis that the claimant was wholly at fault and that he suffered minor (now threshold) injuries in the accident.
The issue presently in dispute is whether the physical injuries caused by the accident relevantly are threshold injuries for the purposes of the MAI Act.
ASSESSMENT UNDER REVIEW
The present application is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor Alexander Woo for assessment:
(a) whether the cervical spine injury – at C4/C5 and C5/C6 levels, anterior endplate osteophytic lipping and/or radiculopathy caused by the motor accident is a threshold injury for the purposes of the MAI Act;
(b) whether the lumbar spine injury/contusion with radiating pain to legs caused by the motor accident is a threshold injury for the purposes of the MAI Act;
(c) whether the right hip injury – contusion caused by the motor accident is a threshold injury for the purposes of the MAI Act;
(d) whether the bilateral (especially the left) shoulder injuries – infringement/subacromial bursitis, with radiating pain to arms caused by the motor accident, is a threshold injury for the purposes of the MAI Act, and
(e) whether the right foot injury – fourth toe soft tissue contusion caused by the motor accident is a threshold injury for the purposes of the MAI Act.
Medical Assessor Woo certified on 5 February 2023 as follows:
The following injury caused by the motor accident:
is a THRESHOLD INJURY for the purposes of the MAI Act.
- Cervical spine – soft tissue injury
- Lumbar spine – soft tissue injury
- Right hip – soft tissue injury
- Bilateral shoulder – soft tissue injury
- Right foot – soft tissue injury
Medical Assessor Woo based his certificate upon the following findings:
· there is no fracture;
· there is no complete or partial rupture of tendons, ligaments, menisci or cartilage, and
· there are no two or more of the five signs required for the diagnosis of radiculopathy.
Medical Assessor Woo found that soft tissue injuries to both shoulders and the right foot have resolved.
The Review Panel has been made aware that Medical Assessor Alan Home certified on
1 September 2023 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 2% and IS NOT GREATER THAN 10%:
- Cervical spine – soft tissue injury
- Thoracic spine – soft tissue injury; resolved
- Lumbar spine – soft tissue injury; resolved
- Right hip: contusion
- Left shoulder – aggravation of pre-existing labral tear with lost of motion
Medical Assessor Home found 2% whole person impairment for the left shoulder and 0% whole person impairment for the other injuries. Medical Assessor Home also certified that an exercise physiology consultation will improve the recovery of the injured person. It is not known if either of those certificates are the subject of separate review applications.
Medical Assessor Wayne Mason certified on 5 December 2022 as follows:
The following injury caused by the motor accident:
- Adjustment disorder with mixed anxiety and depressed mood
is a MINOR INJURY for the purposes of the MAI Act.
Medical Assessor Mason also found that the claimant did not suffer post-traumatic stress disorder caused by the accident. Medical Assessor Mason’s certificate is the subject of a concurrent review by a differently constituted Panel.
THE REVIEW
The application for review of the medical assessment of Medical Assessor Alexander Woo was made by the claimant within 28 days after the parties were issued with the original Certificate of the medical assessment, for which the review is sought.
The claimant submits that Medical Assessor Woo’s certificate contains errors on a material ground pursuant to s 7.26 of the MAI Act. The claimant submits that Medical Assessor Woo fell into error when determining injuries to the following body parts:
(a) cervical spine;
(b) lumbar spine;
(c) right hip;
(d) bilateral shoulders, and
(e) right foot.
The claimant submits that the errors are not trivial, insignificant or immaterial.
The claimant submits that Medical Assessor Woo erroneously placed low probative value on significant medical material in finding the injuries to be threshold injuries which, it is submitted, is inconsistent with the medical evidence. Particulars are given.
The claimant submits that Medical Assessor Woo fell into error when determining the history of the motor accident, failed to consider footage relating to the accident and thereby denied the claimant procedural fairness.
The claimant submits that the motor accident caused all of the injuries referred. The claimant says that the cervical C5/C6 injury with annulus tear was not a minor injury for the purposes of the MAI Act. The claimant says that a ligamentous tear and labral injury to the shoulder is not a minor injury for the purposes of the MAI Act.
The claimant’s review application was opposed by the insurer. The insurer submitted that the complaints made by the claimant are no more than expressions of dissatisfaction with the Medical Assessor’s diagnosis and findings rather than being reviewable errors.
The insurer refers to s 1.6 of the MAI Act, cl 4 of the Motor Accident Injuries Regulations 2017 and paragraphs 5.7 to 5.9 of the Motor Accident Guidelines (the Guidelines) which relevantly define soft tissue injury and threshold injury for present purposes.
The insurer submits that the subject accident was of a severity that was well below the threshold for the physical injuries asserted by the claimant. The insurer further submits there is no evidence that the claimant’s alleged physical injuries were sufficient to be considered non-threshold injuries. It refers to diagnostic imaging, clinical notes, other medical material in the claimant’s bundle, Pharmaceutical Benefits Scheme (PBS) records, the claimant’s Medicare Patient History and PBS records.
The insurer also relies upon its qualified evidence from Dr Andrew Keller, occupational physician, who says that the claimant did not inform him of prior injuries in 2018 (motorbike accident, injury to left shoulder), on 11 February 2019 (injury suffered in an assault) and
26 February 2020 (further motorbike accident, injury to the left shoulder). The insurer submits that the claimant’s assertions ought to be verified by objective evidence.For all of the foregoing reasons, the insurer submitted that the claimant’s review application should be dismissed.
President’s delegate Jeremy Lum issued a Determination of an Application for Review of a Medical Assessment on 24 October 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated to be as follows:
“The Assessor’s causation finding, it is apparent that the assessor placed decisive weight on his understanding of the mechanism of injury at the time of the motor accident. There is very little by way of analysis of the live CCTV footage of the motor accident which appears to support the claimant’s assertion of acceleration/deceleration type forces applied by the driver of the utility. The claimant also refers to the report of Dr Conrad…. which refers to a MRI left shoulder dated 21 April 2021 which showed ‘Glenohumeral labral tear antero-inferiorly….’ It is not clear whether the actual investigation was before the assessor … I have a sense of unease regarding the apparent lack of detail regarding the mechanism of injury of which the assessor placed decisive weight in the causation finding with respect to the cervical spine injury. I also have a sense of unease regarding Dr Conrad’s reference to a labral tear in the left shoulder that the certificate is largely silent on.”
Accordingly, the application was accepted and was referred to the Panel, which is to assess all of the injuries referred to Medical Assessor Woo.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the Personal Injury Commission Act 2020 (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.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
[2] 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, unless the parties otherwise agree, or the Review Panel otherwise decides.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
THRESHOLD INJURY
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(2) of the Act defines a “soft tissue injury” as:
“(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 membrane), 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 threshold 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)”.
Part 5 of 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 accident is a threshold injury for the purposes of the Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold 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 threshold psychological or psychiatric injury caused by the motor accident.
5.4 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.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 threshold injury. An injury resulting in radiculopathy will not be classified as a threshold 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.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material:
(a) claimant’s submissions made to the President’s delegate (previously summarised);
(b) President’s delegate’s decision (previously summarised), and
(c) submissions made to Medical Assessor Woo.
In relation to cervical spine, the claimant complains of persistent and severe neck pain. Reference is made to the physiotherapist clinical notes, Certificates of Capacity issued by the treating general practitioner, Dr Nasr Ismail, and the
St George Hospital Discharge Referral. Reference also is made to an MRI scan of the cervical spine reported on 12 September 2020 which revealed disc desiccation, lipping, annular disc bulge and annular fissure. The claimant submitted that all of those conditions fall within the definition of non-minor. Reference is also made to the diagnosis of whiplash associated disorder grade II made by treating physiotherapist. It was submitted that restricted neck rotation and constant pain may be suggestive of radiculopathy.
In relation to the lumbar spine/lower back, it was submitted that the claimant suffers from persistent and severe pain in his lower back. Reference is made to Dr Ismail’s certificate of capacity dated 29 July 2020, the St George Hospital Discharge Referral, Dr Ismail’s MRI referral and the MRI scan of the lumbar spine reported on 7 October 2020, which stated that no specific abnormality was demonstrated. In particular, no canal or foraminal stenosis. Reference was made to various physiotherapy requests. It was submitted that constant and severe pain may be suggestive of radiculopathy and cannot be precluded without further investigation.
In relation to the shoulder, it was submitted that the claimant suffers from persistent and severe pain in the left shoulder, as noted in the clinical notes of Physiotherapy Interactive. Reference also was made to the St George Hospital Discharge referral, Dr Ismail’s Certificate of Capacity dated 29 July 2020 and various physiotherapy requests. It was submitted that this injury is suggestive of a tear in the shoulder tendon which cannot be precluded without further investigation.
In relation to the right foot, reference is made to the same documents. It was submitted that there is a right foot fracture which cannot be precluded without further investigation.(a) sealed Certificate of Medical Assessor Woo dated 5 February 2023 (previously summarised);
(b) clinical notes and discharge referral from St George Hospital;
(c) MRI of the cervical spine and lumbar spine (previously referenced);
(d) physiotherapy clinical notes (previously referenced);
(e) clinical notes of Al Zahraa Medical Centre;
(f) CCTV footage/surveillance footage/dashcam footage;
(g) updated clinical notes of Al Zahraa Medical Centre;
(h) MRI scan of the left shoulder;
(i) report dated 15 July 2022 by Dr Peter Conrad, surgeon, to the claimant’s lawyers.
Dr Conrad opined that the claimant sustained an injury to his cervical spine, in the motor accident, associated with discal injury at 2 to 3 levels according to the MRI scan. Dr Conrad said that the claimant also injured his left shoulder and back. He references a glenohumeral labral tear and thickening of the glenohumeral ligament. In a separate report, Dr Conrad assesses 5% whole person impairment for the neck, 5% whole person impairment for the back and 4% whole person impairment for the left shoulder, giving a combined 14% whole person impairment.’
Dr Conrad provided a SPECIAL NOTES as follows:
“In view of the fact that the MRI scans cervical spines shows discal injuries and the MRI left shoulder shows a ligamentus tear and labral injury, it cannot be said that the accident is a minor or soft tissue injury according to the Motor Accidents Act Guide 2017.”
Dr Conrad found no evidence of pre-existing degenerative disease or other accidents and related all of his assessed whole person impairment to the motor accident, and
(j) undated report by Dr Tony Antoun, general practitioner, to the claimant’s solicitor. Dr Antoun records that the claimant continues to suffer with neck, left shoulder, lower back and right hip/foot pain, as a direct result of the motor accident.
Dr Antoun opines that the claimant’s clinical signs were consistent with:· Cervical musculo ligamentous strain with discogenic irritation due to an annulus tear C5/C6, left shoulder functional limitation possible rotator cuff/labrum tear (to be confirmed), lumbosacral musculo ligamentous strain with right SIJ irritation, right hip soft tissue injury with possible labrum tear (to be confirmed) and suspected right foot heel fracture.
Dr Antoun opined that the C5/C6 disc desiccation and annular fissure (tear) is unlikely to be degenerative in a 22-year old, catapulted of the bonnet of the car with a mechanism of injury consistent with an acceleration/deceleration twisting shearing force. He opines that the cervical C5/C6 injury with annulus tear is considered non-minor. It does not appear that Dr Antoun had access to any of the diagnosis scans.
The insurer relied upon the following material:
(a) insurer’s submissions dated 26 February 2021 and undated further submissions. The insurer submitted that its internal review sets out the available evidence and the reasons why the insurer made its determination with respect to minor injury. The insurer further submitted that, considering the clinical findings by the claimant’s GP and physiotherapist, as well as the hospital records and imaging, the claimant does not meet the definition of a non-minor injury for the cervical spine, lumbar spine, shoulders or right foot. The insurer submitted the evidence discussed demonstrates there is no evidence of a fracture and no evidence of a complete or partial rapture of tendons, ligaments or cartilage. It says there is no evidence of verifiable radiculopathy signs arising from injury to or impingement of specific spinal nerves being assessed or noted. As such, the claimant’s physical injuries therefore fall under the definition of “minor” as per the MAI Act, the Guidelines, and the Regulations, in the insurer’s submissions;
(b) insurer’s review application reply submissions dated 5 October 2023 (previously summarised);
(c) documentation produced by Medicare/PBS;
(d) documentation produced by Al Zahraa Medical Centre;
(e) Certificate dated 3 October 2023 by Medical Assessor Alan Home (treatment – physical);
Medical Assessor Home certified that the initial exercise physiology consultation relates to the injuries caused by the motor accident and will improve recovery. He also certified that requested physiotherapy treatment will not improve recovery. Medical Assessor Home was not required to make findings about what injuries were caused by the motor accident and the nature of those injuries, and
(f) report by Dr Andrew Kellar, occupational physician, to the insurer’s lawyers.
Dr Kellar opines it is possible the motor accident caused the claimant to suffer soft tissue injuries affecting his back, right foot, left shoulder and right elbow.
Dr Kellar also opines that any soft tissue injuries caused by the motor accident would have recovered in the three years that elapsed prior to his examination.
Dr Kellar states that the claimant’s current complaints do not arise from the motor accident. He says that there are cervical spine symptoms but no signs. In the right hip, there is pain and clicking with a full range of motion and no evidence of fractures or ligament tears.
RE-EXAMINATION
The claimant was assessed on 28 February 2024 by Medical Assessor Shane Moloney whose report is as follows:
“Mr Hassan Elammar
MVA 10 July 2020
Mr Elammar attended the medical suites at PIC on 28 February 2024. He was unaccompanied.
Pre-accident history
Mr Elammar had been employed as a carpenter and had done 2 years of a four-year apprenticeship but lost his job and didn’t finish the final 2 years. However, he states that he was employed in the construction industry and had his first week in the new job at the time of the accident. He lives with his parents and undertakes no sporting activities. There was a previous accident on 11 February 2019 when Mr Elammar was a passenger in a car and injured his left elbow, neck and low back and in particular the T12 vertebra. There was another accident when he was a pillion passenger on a motorbike and fell off landing on his left shoulder and arm. He was assessed at St George Hospital at that time but says there was no follow-up treatment. Mr Elammar is very vague about any GP consultations prior to the accident.
History of motor accident
Mr Elammar was driving his car in the M5 on 10 July 2020 when he was sideswiped by another car and stopped in the emergency lane. He states that he was standing in front of the other car involved, trying to get his particulars when the other driver drove forward causing him to fall onto the bonnet. He states he held on briefly but when the other driver braked he fell off the bonnet. He states that he was confused at that time and limped back to his car. He called the police didn’t wait till they arrived and drove home.
History of symptoms and treatment following the motor accident
Mr Elammar states that the next day he had pain over all his body in particular the right leg and ankle and attended St George Hospital where he was assessed and discharged. He then attended his GP, Dr Ismail who noted neck pain, low back pain, right foot and left elbow soft tissue injuries. He prescribed an analgesic tramadol, organised MRIs and physiotherapy. He states that physiotherapy was of some benefit. He was also referred to a psychologist which have now ceased but he is unsure when that occurred. He also states that he became addicted to tramadol and has ceased this medication since. He can’t remember when the left shoulder became symptomatic.
There are no further injuries or conditions sustained since the motor accident.
Current symptoms
Mr Elammar states that he has diffuse neck pain which radiates into the occipital region of his skull and into both trapezius muscles. His right shoulder is now better and he had slight discomfort in the left shoulder. He states that his arms are asymptomatic. There is pain in the right hip region which he says clicks with certain movements and he has slight lower back pain on the right side which increases with prolonged sitting. He states that the ankles and knees are asymptomatic.
Since the accident he has not returned to any work and has no social contacts but drives without difficulty. His parents are keeping him busy by getting him to drive to his brother at work with his lunch and picking up and dropping his niece.
Current treatment
Mr Elammar has ceased any oral analgesic medication and states he does regular home stretches. He was seeing a chiropractor and hasn’t done so in the past year. He consults his GP if necessary.
Clinical examination
Mr Elammar walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is left-hand dominant and not right-handed. His height was measured at 182 cm without shoes and weight 80 kg.
Cervical spine
On inspection of the cervical spine there was a normal contour and on palpation tenderness on both trapezius muscles but no guarding or spasm was noted in the cervical musculature. On testing range of movement, flexion/extension was 70% of expected range, side bending 60% of expected range and rotation 80% of expected range with no asymmetry.
On neurological examination of the upper limbs, reflexes were equal bilaterally with no sensory changes and normal power. No muscle wasting was apparent with the circumference of the upper arms 27 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 26 cm bilaterally (5 cm below the olecranon process).
Lumbar spine
Mr Elammar walked with a normal gait and was able to walk on his heels and toes. Squatting was 80% of expected range and states that right hip pain reduced further movement. On palpation there was mild tenderness over the lower lumbar spine but no guarding or spasm was noted in lumbar musculature. Straight leg raise when lying was 70° bilaterally with limitation due to pain in the right hip region. When retested whilst sitting 90° was noted with negative sciatic nerve root tension signs. On testing range of movement flexion/extension was 80% of expected range as was side bending and rotation with no asymmetry.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the lower thighs 41 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 35 cm bilaterally.
Shoulders
On inspection of the shoulders no muscle wasting was apparent and on palpation there was tenderness over the anterior left glenohumeral joint but no tenderness over the acromioclavicular joints and no crepitus was noted on passive movement. Impingement tests were negative. Active movements were measured using a goniometer and repeated.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 170° 150° Extension 50° 50° Adduction 50° 50° Abduction 170° 150° Internal Rotation 80° 80° External rotation 90° 90° Hips
On palpation, there was tenderness over the right greater trochanter and middle zone of the right gluteus medius muscle. There was a slight clicking in the right hip, palpable over the greater trochanter on abduction with the right leg crossed over the left. Trendelenburg’s test was positive. This indicated possible trochanteric bursitis. There was a near normal range of active movement of the hips which were measured using a goniometer.
Hip Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 120° 130° Extension 0° 0° Adduction 20° 20° Abduction 30° 35° Internal Rotation 25° 30° External Rotation 40° 40° Right foot
Full range of movement of both ankles with no effusions or tenderness.
Comments
Mr Elammar stated me that he did not wait for the police officers to attend the scene of the accident but it is apparent that they did arrive there and talk to him.
Lumbar spine
The treating GP recorded low back pain the day after the accident and although it may have been chronic, there is no evidence of persistent pain at the time of the accident. This is a threshold injury with no signs of radiculopathy and no significant abnormalities showing on the MRI dated 7 October 2020.Cervical spine
the treating GP also reported a cervical spine soft tissue injury on 11 July 2020. This is also threshold injury with no signs of radiculopathy and on inspection of the MRI dated 12 September 2020, I could see no annular tears with minor disc bulge noted at C5/6. This is in agreement with the treating radiologist.
Shoulders
The day after the accident at ED, St George Hospital it was reported that there was some left shoulder pain but a full range of movement. The significant pre-accident injury was when Mr Elammar fell off a motorbike as a pillion passenger at speed and landed on his left shoulder with a probable dislocation. This was assessed at St George Hospital with a negative x-ray immediately after this accident. The treating GP reported the left shoulder pain on 18 March 2021 which is 8 months after the accident. In the personal injury claim form written by the claimant on 3 August 2020 he listed a right shoulder injury but not left. It is my view that the glenohumeral labral tear dated
21 April 2021 would have occurred in this more significant accident 3 months prior to the car accident. Therefore, as a result of the motor vehicle accident it remains a threshold injury.
Right hip
There was a mention of pain in the right hip and right gluteal muscle prior to the accident but at ED at St George Hospital one day after the accident they recorded tenderness in the right gluteal muscle. There may have been a soft tissue injury to the right hip with possible trochanteric bursitis but this still remains a threshold injury.
Right foot
It was documented at St George Hospital and by the treating GP that Mr Elammar had pain in the right foot immediately after the accident. Investigations were negative and this has since resolved. Therefore, this is also threshold injury.
Shane Moloney”
I viewed the actual films of the MRI scan of the left shoulder performed on 21 April 2021. I agree there was a labral tear but deem it would have been caused by the motor vehicle accident on 26 February 2020 when the claimant landed on his left shoulder after falling off a motorbike. This was a much more significant impact to his left shoulder than he suffered in the subject motor accident. The St George Hospital notes record that he felt a “pop” and probable dislocation of the left shoulder which relocated. I also viewed the MRI scans of the claimant’s cervical spine and lumbar spine which I have made comment. There was no radiculopathy. I agree with the radiologist who reported spondylotic changes and a tiny annular fissure at C5/C6 which I couldn’t see. The radiologist reported no focal disc protrusion with no significant abnormality in the lumbar spine.
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[4] The Review Panel adopts the examination findings and reasons of Medical Assessor Moloney with which Medical Assessor Dixon concurs.
[4] Section 7.26(6) of the MAI Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[5] The Medical Assessors have explained the basis of their assessment which are different to those provided by some other medical specialists. The Review Panel does not accept the opinions expressed by Dr Conrad and Dr Antoun for the reasons that have been explained.
[5] Insurance Australia Group Limited v Keen [2021] NSWCA 287.
CONCLUSIONS
For these reasons, the Review Panel concludes that the certificate issued on
5 February 2023 by Medical Assessor Alexader Woo should be confirmed.
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