Elia v Allianz Australia Insurance Limited
[2023] NSWPICMP 114
•28 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Elia v Allianz Australia Insurance Limited [2023] NSWPICMP 114 |
| CLAIMANT: | Deniz Elia |
| INSURER: | Allianz Australia Insurance Ltd |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 28 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act2017; the claimant was a passenger and suffered injury from a rear-end collision; the dispute related to whether the injury was a minor injury and whether recent shoulder surgery was caused by the accident and reasonable and necessary; claimant re-examined; no evidence that the back and neck injury were other than a minor injury; claimant’s history that there were no pre-existing right shoulder symptoms rejected; inconsistent with objective evidence and statement in claim form; reliance on contemporaneous notes; Nominal Defendant v Corbin applied; right shoulder injury or aggravation otherwise inconsistent with nature of accident; QBE Insurance v Shah applied; Held – claimant only suffered minor injuries; original assessment confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Minor injury Review Panel Assessment of Minor Injury The Review Panel confirms the certificate dated 8 April 2022. Medical Assessment –Treatment and Care Review Panel Assessment of Treatment and Care and The Review Panel revokes the certificate dated 8 April 2022 and issues a new certificate determining that: · right shoulder arthroscopy with Dr George Murrell. IS REASONABLE AND NECESSARY in the circumstances. The following treatment and care: · right shoulder arthroscopy with Dr George Murrell. DOES NOT RELATE TO THE INJURY CAUSED BY THE MOTOR ACCIDENT. |
REASONS
BACKGROUND
Ms Deniz Elia (the claimant) suffered injury in a motor accident on 28 August 2020 when the insured vehicle failed to stop and collided with the rear of the claimant’s vehicle (the motor accident). Ms Elia was the front seat passenger in a vehicle driven by her husband. In the claim form Ms Elia alleges that the motor accident caused injuries to the neck, back, right shoulder and a psychological condition.[1]
[1] Claimant’s bundle, p 28.
The insurer is liable to pay to Ms Elia any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issues presently in dispute are whether Ms Elia’s physical injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act and whether shoulder surgery is reasonable and necessary in the circumstances and caused by the motor accident.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”, whether “any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24” and whether, for the purposes of s 3.28 of the MAI Act, treatment and care will improve the recovery of an injured person.
A medical assessment matter is determined in accordance with division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Giblin who issued a Medical Assessment Certificate dated 8 April 2022. Medical Assessor Giblin concluded that Ms Elia sustained soft tissue injuries which are a minor injury for the purposes of the MAI Act and that the proposed surgery was not reasonable and necessary and not caused by the motor accident.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”.[3] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[4]
[3] Sections 3.11 and 3.28 of the MAI Act.
[4] Section 4.4 of the MAI Act.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by Ms Elia within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.The review provisions provide[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[6] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
The parties filed respective bundles of documents for the Panel’s consideration.
The claimant filed additional documents that the right shoulder surgery had been undertaken. A report by Mr Daher, physiotherapist dated 20 February 2023 noted Professor Murrell had performed the surgery on 28 November 2022 and noted a full partial thickness tear of the supraspinatus measuring 10 x 5 mm.
The Panel then issued a further Direction dated 27 February which was in the following terms:
“The Panel notes that the claimant has recently served a report from Professor Murrell dated 20 February 2023 relating to recent shoulder surgery.
It is understood, though not expressed, that the claimant is seeking to admit the material as evidence on the Review.
The Panel is aware of the issues concerning causation of any right shoulder injury and whether the injury is classified as a minor injury as defined in the Motor Accident Injuries Act 2017.
The Panel also notes that in Reed v Allianz Australia Insurance Ltd [2022] NSWPICMP 287 at [140]-[146] a Review Panel held that the surgery caused by the accident meant that the injury was not classified as a ‘minor injury’.The insurer has leave to file any submissions in response to the evidence including whether it is prejudiced, and what evidence, if any, it wishes to file in response. Any submissions should be filed by close of business, 7 March 2023.
The insurer otherwise has leave to urgently list the matter before myself.”The insurer’s submission in response to the further report were that it did not consent nor oppose to the admission but sought to make the following submissions in response. These submissions were:
(a) Medical Assessor Giblin explained his reasoning why shoulder tear was unrelated including notes of symptomatology prior to the accident;
(b) the claimant had an extensive pre-accident history of shoulder symptoms including an ultrasound in September 2016 identifying a full thickness tear of the supraspinatus tendon, and
(c) that the claimant had pre-existing pathology not aggravated by the motor accident.
The Panel admits the report given it is obviously relevant as the surgery has been undertaken, the insurer’s position and the absence of prejudice.
STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the MAI 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) are made pursuant to s 10.2 of the MAI 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 9 of the Guidelines commenced on 15 January 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 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 these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[10]
[10] Clause 5.9 of the Guidelines.
Section 3.24 of the MAI Act relates to the provision of treatment and care. The section relevantly provides:
“(1) An injured person is entitled to statutory benefits for the following expenses (‘treatment and care expenses’) incurred in connection with providing treatment and care for the injured person—
(a)the reasonable cost of treatment and care,
….
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Section 3.24 provides that the issues of “reasonable and necessary in the circumstances” and whether any such treatment “did not relate to the injury resulting from the motor accident” are different concepts.
That conclusion is consistent with Schedule 2 of the MAI Act which defines a medical assessment matter as “whether any treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)” (emphasis added).
Clause 2 (b) of Schedule 2 of the MAI Act was recently amended with the inclusion of the words “or to be provided” into the provision. That amendment followed a previous Review Panel decision rejecting the proposition that there was power under the MAI Act to determine a claim for future treatment.[11] Accordingly, there is a clear statutory intention of a power due to the recent amendment.
[11] Obeid v AAI Ltd [2022] NSWPICMP 76 (Obeid).
Section 3.28 of the MAI Act provides that treatment and care ceases after 26 weeks where the person was mostly at fault or otherwise only received minor injuries. However, an exception to the cessation of payments is provided by s 3.28(3) which provides:
“(1) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[12]
SUBMISSIONS
Claimant’s submissions undated[13]
[12] See s 3B(2) of the Civil Liability Act 2002.
[13] Claimant’s bundle, p 19.
These submissions summarised the evidence in support of the claimant’s submissions that she sustained a non-minor injury within the meaning of the MAI Act.
The evidence pertaining to the right shoulder injury included:
(a) certificates of capacity dated 6 October 2020 (and subsequently) and Centrelink certificiate dated 29 October 2020;
(b) letter from Dr Tsang dated 26 October 2020;
(c) scans dated 2 September 2020 and 4 November 2020;
(d) physiotherapy notes commencing 7 September 2020 with ongoing complaints in subsequent attendances;
(e) physiotherapy request dated 21 September 2020, and
(f) referral to Dr Murrell dated 22 October 2020 and series of reports from the specialist commencing 4 November 2020 to 3 February 2021.
It was submitted that prior to the motor accident the right shoulder was asymptomatic, and the shoulder had been treated conservatively. The motor accident aggravated the right shoulder condition causing an increase in symptoms and the subsequent recommendation of surgery.
The neck injury is evidenced by:
(a) certificate dated 6 October 2020, and
(b) clinical notes of Dr Tsang.
The clinical notes for the cervical spine showed persistent sharp pain which “may be suggestive of radiculopathy” and further investigations were required.
The lumbar back injury was causally connected and the ongoing complaints “suggest that this is a non-minor injury”. The lumbar spine should be “assessed and investigated further in order to determine extent of injury”.
Claimant’s submissions undated[14]
[14] Claimant’s bundle, p 1.
These submissions were filed seeking leave to review the certificate. The claimant submitted that Medical Assessor Giblin erred in stating that she complained of right shoulder symptoms immediately prior to the motor accident. There was no complaint of right shoulder symptoms since the scan in September 2016.
The claimant submitted that there was an aggravation of a pre-existing tear with increased symptoms such as a reduction in functional capacity and restriction in movement. Further the post-accident ultrasound dated 2 September 2020 makes comparison with the previous pathology and it should be inferred that the further diagnostic findings were an aggravation of pre-existing pathology.
Dr Murrell in a report dated 3 February 2021 found a relationship between the motor accident and the shoulder problem.
The claimant referred to the “egg-shell skull rule” and submitted that the right shoulder was aggravated, accelerated and/or exacerbated by the motor accident resulting in the need for surgery.
The claimant referred to the complaints of neck symptoms with referred pain suggestive of nerve impingement with radiculopathy. There were no proper findings of radiculopathy[15] although there was a finding of one sign of very minor dysmetria.
Insurer’s submissions dated 25 May 2021[16]
[15] The claimant incorrectly referred to the test in AMA 5 – see claimant’s bundle, p 4, para 18.
[16] Insurer’s bundle, p 492.
The insurer referred to the claim form and the claimant’s admission that she had a right shoulder injury at the time of the motor accident.
The insurer referred to the certificate of capacity dated 6 October 2020 which diagnosed “whiplash” and indicated that “the claimant previously suffered from a right rotator cuff tear”.[17]
[17] Insurer’s bundle, p 493.
The insurer relied on the “entire file of Dr Tsang” which showed longstanding evidence of right shoulder and neck symptoms. The various consultations are:
“(a) 6 January 2004 – reference made to right intrascapular muscle pain.
(b) 16 May 2005 – reference made to a shoulder x-ray, swelling, and depression felt at the ‘clav-acrom joint’. The claimant required a right shoulder ultrasound.
(c) 22 April 2005 – ‘MVA driver 20/4, car rolled, tender ant shoulder R, neck OK, tende [sic] mild muscle scapular’.
(d) 15 August 2005 – reference made to right shoulder and plan for Mobic and physiotherapy.
(e) 10 June 2005 – ‘physio not help to see Goldberg’.
(f) 18 July 2011 – reference made to left side paralumbar muscle pain.
(g) 5 September 2011 – reference made to right infrascapular muscle pain.
(h) 9 November 2012 – ‘2 x episodes, woke up trembling shaky, palpitations, anxious… thoughts racing’.
(i) 13 November 2012 – claimant counselled about anxiety and mood.
(j) 4 September 2014 – the claimant reported numbness in both hands when stretching her shoulders. ‘Neck stiff on rotation worse to R… claim previous OA neck… known shoulder R lig inj’ [sic].
(k) 10 September 2014 – ‘x-ray C5/6 disc, loss, lordosis, prominent cervical ribs…’.
(l) 6 May 2016 – the claimant complained of left paralumbar muscle pain after completing housework.
(m) 9 September 2016 – ‘pain neck with OA as well, MVA 11 yrs ago, need U/S before physio’ [sic].
(n) 17 September 2016 – full thickness tear of supraspinatus and bursitis identified on ultrasound.
(o) 19 March 2019 – ‘cervical spine stiffness and clicking since 2/12… O/E cervical spine stiffness/OA… pt wishes to get EPC for neck stiffness/pain. EPC osteopath given’.
(p) 2 May 2019 – acute torticollis of the right neck and trapezius reported.
(q) 17 December 2019 – ‘R neck strain tender muscular’.”
The insurer referred to the records of the general practitioner (GP) on 1 and
3 September 2020 and 6 October 2020 including the reference on 1 September 2020 that the claimant was previously told she may need an operation.The insurer noted the history recorded by Mr Abdallah in a report dated 8 September 2020 of the claimant suffering right shoulder pain “for a significant time now”. The certificate dated
29 October 2020 noted that the right shoulder tear was “triggered by MVA”.The insurer submitted that Professor Murrell “made no comment on the claimant’s extensive history” of right shoulder problems. The report should be given no weight in light of the absence of the pre-accident history.
The insurer referred to the right shoulder ultrasound dated 14 September 2016 which showed a 11mm full thickness tear of the anterior fibres of the supraspinatus tendon. The scan dated 2 September 2020 noted “old trauma to the distal right clavicle”.
The treatment notes of the physiotherapist dated 7 September 2020 noted pain “present for several years”. Subsequent consultations (16 September 2020 and 28 October 2020) noted improvement in symptoms.
The insurer submitted that there is no diagnostic evidence of pathology establishing a non-minor injury of either the back or neck. With respect to the right shoulder, there was a significant pre-existing condition shown by the 2016 scan and the subsequent scan only identified a partial tear. Both the GP and physiotherapist record histories of pre-existing symptoms.
Insurer’s submissions dated 20 January 2022[18]
[18] Insurer’s bundle, p 824.
These submissions are largely repetitive of the earlier submissions. They also address issues pertaining to psychiatric injury which is not relevant to the present dispute.
The insurer otherwise submitted that there was “no objective evidence” that the claimant sustained a lumbar spine injury. This submission was based on the absence contemporaneous reference to the lumbar spine.
Insurer’s submissions dated 23 August 2022[19]
[19] Insurer’s bundle, p 844.
These submissions opposed the application to review the medical assessment.
The insurer submitted that the Medical Assessor considered the evidence including the pre-existing condition.
The insurer submitted that the claimant’s submissions on “functionality” are misconceived as this is not a test for minor injury. The Medical Assessor otherwise found no evidence of radiculopathy.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
The claimant’s pre-accident medical history is summarised in the insurer’s submission.[20]
[20] See [47] herein
The X-ray of the cervical spine dated 5 September 2014 showed mild degenerative changes at C5/6 and prominent transverse processes at C7.[21]
[21] Insurer’s bundle, p 527.
The ultrasound of the right shoulder dated 14 September 2016 referred to a history of chronic right shoulder pain and noted “a 11mm full thickness tear of the anterior fibres of the supraspinatus and on a background of tendinosis”.[22]
[22] Claimant’s bundle, p 278.
Contemporaneous evidence
On 1 September 2020 the GP noted a right shoulder injury from 15 years ago and “prev told may need op”.[23]
[23] Claimant’s bundle, p 203.
On 3 September 2020 the GP noted:[24]
“Missing R lat clavicle ? old injury
Pt no recall of any operation”
[24] Claimant’s bundle, p 204.
Michael Abdallah, physiotherapist noted on 8 September 2020 that the claimant “has been suffering from right shoulder pain for a significant time now” which was aggravated by various activities.[25] An attached note referred to right shoulder pain present for several years pain which was worsening over time.[26]
[25] Claimant’s bundle, p 397.
[26] Claimant’s bundle, p 398.
Subsequent physiotherapy notes refer to improvement in right shoulder symptoms.[27]
[27] Insurer’s bundle, p 508.
The clinical note dated 6 October 2020 referred to the motor accident and right interscapular pain, neck and back pain.[28] A certificate of capacity dated 6 October 2020 referred to a right rotator cuff tear.[29]
[28] Claimant’s bundle, p 205.
[29] Claimant’s bundle, p 394.
In a report dated 26 October 2020 Dr Tsang observed that the “torn muscles” in the right shoulder “was made worse with a motor vehicle accident in August 2020”.[30]
[30] Insurer’s bundle, p 631.
A further certificate dated 29 October 2020 referred to severe right shoulder pain.[31]
[31] Claimant’s bundle, p 401.
Medical evidence
Professor Murrell, surgeon provided a report dated 3 February 2021 noting an initial examination on 4 November 2020.[32] The doctor noted that the right shoulder problem “began” after the motor accident with severe pain the following day. Examination showed a positive impingement sign with weakness on supraspinatus testing.
[32] Claimant’s bundle, p 32.
The doctor opined that the shoulder problem was “100% causally associated with that accident” and recommended rotator cuff repair.
The quote for the surgeon’s fees for the operation was in the order of $5,500.[33]
[33] Claimant’s bundle, p 34.
Dr Conrad was qualified by the claimant and provided a report dated 22 June 2021.[34] The doctor referred to the motor accident causing severe pain in the back, neck and right shoulder.
[34] Claimant’s bundle, p 39.
Symptoms were low back pain with no radiation to the legs, pain in the neck and right shoulder radiating down the right arm. History included right shoulder injury in 2005 from which the claimant made a good recovery following conservative treatment.
Examination showed no neurological signs in the upper or lower extremities.
Dr Conrad opined that the claimant sustained a whiplash injury to the cervical spine, an injury to the lumbar spine and a partial thickness tear of the supraspinatus. He agreed with Professor Murrell’s suggestion of right shoulder surgery.
Radiology
The X-ray and ultrasound of the right shoulder dated 2 September 2020 showed a partial thickness tear and tendonitis of the supraspinatus tendon measuring 6 x 1 x 8mm, subacromial and subdeltoid bursitis with shoulder impingement. The X-ray is reported as showing an absent distal right clavicle probably due to previous resection.[35]
[35] Claimant’s bundle, p 329.
The diagnostic ultrasound dated 4 November 2020 reported a partial thickness tear (10mm x 7mm) of the under surface of the rotator cuff.[36]
[36] Claimant’s bundle, p 38.
Statement
The claimant provided a statement dated March 2021.[37] Ms Elia stated that she had general aches and pains over the years prior to the accident but this did not preclude her from performing normal activities. Following the motor accident Ms Elia said that she felt immediate pain in her shoulders, neck and back.
[37] Claimant’s bundle, p 506.
Ms Elia stated that she told Dr Tsang about the motor accident at the initial consultation. It was her intention to proceed with the operation if it is approved as the pain and restriction of movement is unbearable.
RE-EXAMINATION
The Panel determined that Ms Elia be re-examined by Medical Assessor Stubbs on
14 March 2023.The examination report is as follows:
“Medical examination carried out at the PIC rooms by Assessor Stubbs on 14 March 2023. Zahrraa Aeabic an interpreter accompanied Mrs Elia throughout the interview and examination.
History:
Mrs Elia is now 55 years old. She was born in Lebanon and is a Marionite Christian. She married at age 21 and moved to Australia with her husband. She has four adult daughters and seven grandchildren. She lives with her husband in what she describes as a large home in Yagoona West. The home is owned outright. Her husband is 67 years old and now retired. Formerly he was a manager of the local RSL club. He did not return to work after the accident and also pursued a claim (Mrs Elia is uncertain whether this is a CTP or WC) and received an insurance payout allowing the residual mortgage to be discharged. The younger two daughters live in the family home to gather with a grandchild of her youngest daughter.
She had been involved in a prior motor vehicle accident in 2005. She was the driver of a four-wheel-drive that lost control and rolled over. She confirmed the account given to assessor Peter Giblin mentioned in his MAC.
Otherwise, she was in excellent health, fully able to manage all activities of daily living and the running of her house.
The motor accident occurred on the evening of Friday 28th of August 2020. She and her husband were returning from a social function in their 2019 Mercedes sedan. It was stationary when hit from behind by a small sedan. No air bags deployed, nor does it seem that the active head restraint fitted to this car was triggered either. Details were exchanged and neither police nor ambulance attended the scene. Mr Elia drove the vehicle home. The car was repaired and later sold.
She attended her family doctor the following Monday. The initial medical certificate October listed neck and back pain. Mrs Elia described this back pain as between the shoulder blades. The neck was stiff pain was spread to both shoulders neck but additionally pain in the low back the right shoulder. It was pointed out to Mrs Elia that the descriptions on the claim form and medical certificate are a pain across the neck spreading into the shoulders right equals left but do not include pain in the right shoulder or low back. Mrs Elia reported that she complained of the right shoulder pain and low back pain from the beginning. She thought that Dr Tsang failed to adequately record her symptoms.
She was sent for an ultrasound on plain x-ray of the right shoulder examination of the right shoulder on 2 September 2020 which supports her belief that there was right shoulder pain very soon after the motor vehicle accident. The ultrasound done by Medical Imaging Bankstown notes prior fracture of the right clavicle on x-rays (from the 2005 rollover accident?) and on the ultrasound report a partial thickness tear of the right supraspinatus.
She was referred Prof George Murrell in his rooms. He saw her on 4 November and wrote back to Dr Tang ‘… Presents with the right shoulder problem. The problem began on 28 August 2020. There was initiating event. She was a passenger in a car from behind. She noted severe pain the next day’. Prof George Murrell did an arthroscopic shoulder repair at St George hospital on 28 November 2022. He found there was a full-thickness tear measuring approximately 5 x 10 mm in the anterior supraspinatus. The operative findings are those of the 2016 ultrasound which also reports full-thickness tear of about the same size.
Mrs Elia is disappointed in the results of the surgery. In her view of the shoulder is still painful and weak. She requires regular paracetamol sleep and is only at the yellow (least resistance) level in the post-operative rehabilitation.
Mrs Elia was asked if she had told Prof Murrell about the prior problems in the right shoulder and the ultrasound of 2016 which found a full thickness tear of the right rotator cuff. She had not, she said there was never a problem with the right shoulder and that no ultrasound had been performed.
There has been no improvement in pain or general mobility and usefulness the right shoulder since the surgery. Likewise, there is continued back and neck pain. She only required opiate 10 days after the surgery now continues to use over-the-counter analgesics as required just as he did before the surgery.
The ultrasound findings of 14 September 2016 as quoted by Medical Assessor Giblin is “a full thickness tear of the anterior fibres of the supraspinatus tendon with mild subacromial bursitis”. Dr Giblin had access to the report but not the actual imaging. Further the GP notes 19 September 2016 were shown to Mrs Elia “ultrasound full thickness tears supraspinatus”. This was put to Mrs Elia’s attention.
Mrs Elia said that no one had ever told her that she had had a rotator cuff tear before the motor vehicle accident, and that she had no recollection any prior right shoulder problems and no remembrance of ever having an ultrasound of the right shoulder being performed before the ultrasound of 2 September.
Mrs Elia was also asked about other injuries recorded in the GP notes – prior left shoulder pain in 2011, low back pain in 2011, and note of September 2014 noting the prior shoulder x-rays the comment ‘no right shoulder right ligamentous injury’. She was also reference to prior neck x-ray September 2014, other episodes of low back pain including an episode in May 2019 recorded as ‘acute corticolus of the right neck trapezius’ and then in December ‘right neck strain’. Mrs Elia did not remember these episodes.
Dr Tsang’s entry of 1 September 2020 was read to her. ‘Daughter moving house, patient twisted left ankle, pain immediately’. He thought there was a strain the anterior talofibular ligament. Mrs Elia was asked had she fallen over or strain her shoulder in helping her daughter move. She said she had not fallen and could not help a daughter because of shoulder pain. The second notation by Dr Tsang on that day, noting her complaints of right shoulder pain and stiffness, is ‘right shoulder previously fractured 15 years ago. Told previously she may need to go onto an operation…’. Mrs Elia cannot recall having told Dr Tsang this.
It was further pointed out that the first reference in the general practitioner notes to her motor vehicle accident is on 6 October 2020 when Dr Tsang writes ‘MVA passenger, husband driving was stationary hit from behind… Right interscapular pain right para-cervical tenderness no midline tenderness, lower lumbar tenderness, CTP forms filled in the referral to physiotherapy’.
Further on 17 September 2016 Dr Tang noted the positive ultrasound findings and refers her. He further says that there was ‘right knee pain after a trip to Melbourne’ with a finding of tenderness in the right knee with no swelling.
It was further noted that the physiotherapy records in September 2020 referred to longstanding right shoulder pain.
Medical examination:
General:
Mrs Elia is a pleasant woman of neat presentation. She moves about without difficulty. She stood 159 cm tall and weighed 75 kg. She has a well-balanced standing posture with a straight spine on rearward view and slight dowager’s hump curvature on side view. This is able to dress and undress herself but did seek assistance in getting off the examination couch. She undressed to her underwear and was examined wearing a medical gown. She declined to tip toe and heel toe walk hop or squat as she was concerned this will hurt her. She can rise from chair without arms and sits comfortably. She has a good command of English and only rarely required clarification by the interpreter.
Cervical spine:
She has good balance in the spine. Forward flexion is to half normal range, extension is to half normal range. Side bending was 2/5 normal range and was commented to cause discomfort across the shoulders if she tried to go further. Rotation was 4/5 normal range. There was mild tenderness to firm pressure over both trapezii and whole of the cervical spine posteriorly but no spasm or guarding. Reflexes in the upper limb are of modest amplitude but are symmetrical. Traction signs are negative Valsalva manoeuvre and compression signs though she reported discomfort generally during these manoeuvres.
Dermatomal mapping shows no change in perception of light pressure and two point assessed with a pinwheel on either arm. Non-specific pain down the outside borders of both arms to the whole of each and that all the fingers is complained of. Grip strength is 4/5 in all upper limb muscle groups (probably sub- maximal effort). Girth of the arms is right equals left. There is no difference in bulk in the deltoid between the sides.
There is no obvious difference in the supraspinatus fossa between the two sides Carpal and cubital tunnel compression tests are negative. There is no spasm or guarding, range of motion is restricted in formal examination compared informal examination. This was pointed out to Mrs Elia who reported that she was concerned that pushing her movements to the further would cause injury.
Thoracic spine:
The modest increase in upper thoracic kyphosis is noted but is well-balanced in the midline. In the face forward position some mild extension cervical spine is required to compensate. Rotation is right equals left but is performed to three quarters range with caution.
Lumbar spine: the spine is straight midline without any postural curvature or rotation. Lumbar spine seems to be well-balanced in the centre of the trunk over the hips. Movement is limited because of perceived pain. There is again discrepancy between the observed movement in formal examination and in informal examination. For instance, she can sit comfortably on the side of the couch and flex forward but you can only flex fingertips to knees when standing. Side bending is also limited fingertips to knees and extension is very limited on examination of the lumbar spine though it was better than when the cervical spine was examined. Knee extension is full when the slump test is performed on the patient leaning forwards. When supine straight leg raising is 50° and resisted right equals left. The nerve root traction signs are negative. Girth is equal at 10 cm on the thighs and midcalf on both sides. Pain is complained of in a referred pattern that is to the back of the buttocks and the back of the thighs but not beyond the knees. Dermatomal mapping with a pinwheel shows good sensation nerve roots. There is generalised lumbar tenderness to palpation but no spasm or guarding. When asked to perform an unassisted sit up Mrs Elia is able to comfortably raise her neck from the pillows cannot complete the sit up as she lacks abdominal strength.
Upper limbs:
There is full range of movement at the elbows wrists hands and fingers. Grip strength is 4/5 (probably not maximal effort). Range of motion in the shoulders as recorded below in the table. Neurological examination is given in the cervical
Right
Left
Flexion
140°
140°
Extension
50°
50°
Abduction
Adduction
ER
90°
40°
IR
60° lumbosacral junction
60° thoraco- lumbar junction
The active range of motion of the left shoulder is only a little less than recorded by Prof Murrell’s physiotherapist 12 weeks after the surgery. He notes there is full passive flexion to 180°. Range of motion 12 weeks post-surgery is good and very predictive of a good long-term outcome. Right shoulder motion is not recorded by the physiotherapist.
Lower limbs:
Hip flexion better than 130° , Mrs Elia is able to pull both knees on to the chest with her arms lying supine. Rotation is normal as is abduction and adduction. The knees flexed to 130 ° and fully extended. The knees are stable, there is retro patella discomfort but no crepitus.
When standing though some mild planovalgus flat-footed when standing. As Mrs Elia does not stand on tiptoes so this cannot be assessed dynamically but the midfoot seems to be normally mobile. Both ankles are fully mobile and stable.
Clinical grading is 5/5 muscle strength in all groups. There are no sensory changes, and the reflexes are brisk and symmetrical though the medial hamstring reflex could not be elicited.
Comments on consistency:
Mrs Eli is inconsistent in her history. Her description of the accident does not agree with the notes made by Dr Tsang nor the physiotherapist. He records he first saw her for ankle injury suffered helping her daughter move house on the weekend following the motor vehicle accident. He does not record the motor vehicle accident the following week. The Assessor cannot reconcile the differences of events she recalls them; immediate right shoulder pain after the accident and no prior right shoulder problems with her assisting her daughter move house and concluded while an ultrasound of the right shoulder was performed on 2 September it was not for anything arising from the motor vehicle accident (which is not recorded by the GP until the following month).
Mrs Elia’s version of the events is inconsistent with the contemporary record, and she cannot be taken as reliably reporting events.
The conclusions made by her treating doctors are therefore skewed by a failure to mention prior right shoulder problems and investigations. Though the imaging studies have not been provided for review by the assessors the report of the 2016 ultrasound, it very closely matches Professor Murrell’s operative findings. In short – there is no evidence of any new injury.
Similarly, the Assessors must look at the associated complaints. Rear end motor vehicle accidents do not cause injuries to the low back, this is pushed back into the seat squab and very well cushioned when the vehicle moves forward. The reader should remember that driver/passenger are stationary, and it is the seat attached to the vehicle that moves. The right shoulder is unrestrained in someone in the passenger seat. There is no plausible mechanism why the right shoulder could be injured. The knees do not move forward in relation to the passenger cabin, they return to the same position they were before the impact. They do not move forward and hit the dash; even minor knee injuries are rare in rear impact accidents. Indeed, the contemporary record does not support these injuries. For instance, the soreness in the knee is attributed to a motor vehicle accident follows a trip to Melbourne two weeks after the accident.
The Panel is of the view that a soft tissue injury to the cervical spine is plausible and indeed, expected after rear impacts. This should resolve fully, and it cannot have been of great consequence, even initially, given the history recorded by the general practitioner.
As for the other injuries the panel does not accept that they have any relationship to the motor vehicle accident and would determine them as not caused by the motor vehicle accident. In any case there are no physical findings in the assessment of the low back or lower limb injuries.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[38] and Insurance Australia Ltd v Marsh.[39]
[38] [2021] NSWCA 287 at [40], [41] and [45].
[39] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[40] that radiculopathy can be present at any time to establish that the injury is not minor for the purposes of the MAI Act.
[40] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[41] that the claimant bears the onus of proof in establishing that any injury is not a minor injury for the purposes of the MAI Act.
[41] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report of the Medical Assessor and adds the following reasons.
Neck and Low back injury
We agree with the insurer’s submissions that there is an absence of evidence establishing that there was a non-minor injury to the back or neck.
There was also an absence of contemporaneous evidence of neck and low back symptoms although they are mentioned in a clinical note dated 6 October 2020.
The claimant was not referred for any scans to these body parts and there was an absence of treatment to these body parts in the period after the motor accident.
Accepting the delay in complaint favourable to the claimant, there is otherwise no evidence of traumatic injury involving an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage in respect of any back or neck injury. The claimant’s submission that there should be further investigations does not assist in our determination. The claimant bears the onus of proof, and the Panel does not organise investigations to prove or disproof a claim.
There is no evidence of radiculopathy as defined in cl 5.8 in the clinical notes, any medical report or in the examination recorded by the original Medical Assessor and Medical Assessor Stubbs.
We accept that any injury to the neck and low back was a minor injury as it was a soft tissue as defined in the MAI Act.
Right shoulder
There is a significant pre-accident history of right shoulder problems. The notes following the motor accident confirm the pre-existing history as does the claimant’s declaration in the claim form that she was suffering from injury to the right shoulder at the time of the accident.[42]
[42] Claimant’s bundle, p 29.
The clinical notes of the GP following the accident are specific and reference a chronic condition. This observation also applies to the physiotherapist in September 2020.
We do not accept the claimant’s history to Medical Assessor Stubbs that there were no pre-existing right shoulder symptoms. Either the claimant was being intentionally reckless with her history or otherwise has an extremely bad recollection. We otherwise note that the fact that the pre-existing condition of the right shoulder was disclosed in the claim form is markedly inconsistent with the claimant’s present version that there was no relevant pre-existing condition.
Both the contemporaneous notes of the GP and the physiotherapist provide support for a pre-existing chronic right shoulder condition. The explanation by Ms Elia of error in the clinical notes may be an explanation.[43] However, in this case any suggestion of an error of misreporting of a pre-existing condition by the GP is otherwise independently confirmed within a week by the physiotherapist. It is highly unlikely that both medical practitioners would repeat the same error.
[43] See for example the discussion in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35].
The pre-existing history is otherwise confirmed by the claimant’s declaration in the claim form.
The suggestion by the claimant that she had no right shoulder ultrasound in 2016 is otherwise unbelievable.
The claimant submitted that there was no recent evidence of a pre-existing condition and referred to the absence of clinical note between the 2016 ultrasound and the date of the motor accident. Whilst there is an absence of reference in the notes, the clinical history of a pre-existing condition is supported by the history contained in the notes of the GP and the physiotherapist following the accident and the claimant’s declaration in the claim form. The pre-existing condition is otherwise supported by the significant right shoulder pathology shown in the 2016 ultrasound of a full thickness tear. Indeed, it was the same pathology in 2016 that ultimate came to surgery in late 2022.
In these circumstances we are satisfied that the claimant had a significant right shoulder condition prior to the motor accident.
Given the unreliability of the claimant’s evidence, we consider the contemporaneous records to be extremely relevant to the issue of causation.
The accuracy and reliability of contemporaneous records are referenced in numerous decisions. In Nominal Defendant v Corbin, Davies J stated:[44]
“One reason that contemporaneous statements and documents are likely to be more accurate than a recollection of events is that a statement made at the time of an event, particularly when relatively spontaneous, is likely to be more accurate than a later statement made at a time when false memories can intrude. In a minority of cases the false memories are deliberately so because of the contrivance of the maker of the statement. In the majority of cases the false memories are honestly believed either for the reasons such as those outlined by Leggatt J in Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) or because the person recalling the events has tried to assemble recollections logically so that what happened can have some rational explanation in the person’s mind. As Leggatt J noted at [17] memories are fluid and malleable, being constantly rewritten whenever they are retrieved.”
[44] [2017] NSWCA 6 at [167], Emmett JA agreeing at [156].
The fallibility of human recollection and the importance of contemporaneous records are also referenced in numerous cases including Coote v Kelly,[45] Onassis v Vergottis,[46] Gestmin SGPS S.A. v Credit Suisse (UK) Limited,[47] Campbell v Campbell[48] and Watson v Foxman.[49]
[45] [2016] NSWSC 1447.
[46] [1968] 2 Li Rep 403 at 431.
[47] [2013] EWHC 3560 (Comm) at [15]-[22].
[48] [2015] NSWSC 784 at [73]-[76].
[49] (1995) 49 NSWLR 315 at 319 per McLelland CJ in Eq.
We accept that a matter weighing in the claimant’s favour is the reference to right shoulder symptoms immediately following the motor accident which caused the GP to refer the claimant for a further ultrasound. The contemporality of complaint of symptoms is a relevant factor in support of the claimant’s claim despite the absence of reference in those notes to the motor accident which was first recorded in October 2020.
There is otherwise no plausible medical explanation why the right shoulder would be injured as the claimant was a passenger and the shoulder was not restrained by the seatbelt. There is otherwise no medical explanation proffered by either Dr Conrad or Professor Murrell as to why the right shoulder would be injured in these circumstances.
In this respect we note the observations QBE Insurance (Australia) Ltd v Shah[50] of an absence of any discussion of a “biomechanical, anatomical, orthopaedic or other scientific reasoning to support the putative traumatic causation”.[51] The Panel, including two medical experts, does not support the causative link based on an anatomically or orthopaedic basis for the reason stated in the preceding paragraph.
[50] [2021] NSWSC 288 (Shah).
[51] Shah at [36].
The absence of a proper history in the second report undermines the value of the supplementary opinion. Those errors greatly undercut the value of the opinions provided by Professor Murrell and Dr Conrad as they are not based on a fair climate.[52]
[52] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [14].
Dr Conrad recorded a history of injury in 2005 with good recovery. Professor Murrell had no relevant history of a right shoulder condition.
For these reasons we are not satisfied that there was any right shoulder injury caused by the motor accident.
Reasonable and necessary in the circumstances
Ms Elia is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[53], Grove J stated:[54]
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”[53] [2003] NSWCA 52 (Clampett).
[54] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[55]
[55] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[56] They include:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[56] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
The surgery was appropriate for the right shoulder pathology. It is a medically recognised procedure and usually effective particularly in cases involving full thickness tears.
The fact that the Panel considers the treatment to be “reasonable and necessary” is not an endorsement of the independent question of whether the treatment is causally related to the motor accident.
Does the proposed treatment relate to the injury resulting from the motor accident
The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[57] These principles are well settled and equally apply by reasons of the words used in the treatment issue.
[57] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[58] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the MAC Act. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[58] [2018] NSWSC 1710 at [29] (Phillips).
We do not accept that there was any injury to the right shoulder caused by the motor accident including whether by way of aggravation of pathology or exacerbation of any symptoms. Accordingly, we do not accept that the treatment relates to the injury caused by the motor accident.
CONCLUSION
For these reasons the Panel concludes that certificate issued by Medical Assessor Giblin concerning minor injury is confirmed. The treatment dispute is revoked because of the error made with respect to the issue of reasonable and necessary. The new certificate is attached at the commencement of these Reasons.
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