Elizondo v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 245
•5 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Elizondo v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 245 |
| CLAIMANT: | Judith Elizondo |
INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 5 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act2017; the claimant suffered injury when the insured vehicle ran into the right-hand door; issue whether claimant suffered only threshold injuries; initial clinical note did not refer to right shoulder pain; initial clinical note by physiotherapist one week later referred to right shoulder pain; initial absence of complaint may be an omission; post-accident scan showed full thickness tear of the supraspinatus tendon; pre-accident right shoulder scan did not show a tear; trauma from accident involving a history of impact into the right shoulder capable of tearing or aggravating a pre-existing condition; clinical examination consistent with right shoulder tear and in accordance with the opinion of the treating specialist; finding made that claimant either tore or aggravated a pre-existing tear of the supraspinatus tendon; held to be not a threshold injury; Held – right shoulder injury not a threshold injury; original assessment revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury The Review Panel revokes the certificate dated 5 April 2022 and certifies that the right shoulder injury caused by the motor accident is not a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017. |
REASONS
BACKGROUND
Ms Judith Elizondo (the claimant) suffered injury in a motor accident on 26 May 2021 when the insured vehicle ran into the side of her vehicle on the right-hand passenger door[1] and then collided a second time with rear side of the claimant’s vehicle (the motor accident).
[1] Claimant’s bundle, p 92.
The insurer liable to pay to Ms Elizondo any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether Ms Elizondo’s injury is classified as a “threshold injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
The claimant asserted that she sustained physical injuries caused by the motor accident to the right shoulder, thoracic spine, lumbar spine with radiating pain into both legs and the cervical spine injury with radiating pain into the right arm and hand and a rib injury.[2]
[2] Claimant’s bundle, p 1.
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[3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.
Whether a person has only suffered threshold 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 threshold injuries”[4]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[5]
[4] Sections 3.11 and 3.28 of the MAI Act.
[5] Section 4.4 of the MAI Act.
The dispute was referred to Medical Assessor Harrington who issued a Medical Assessment Certificate dated 5 April 2022 (the medical assessment). Medical Assessor Harrington determined that Ms Elizondo sustained soft tissue injuries to the cervical, thoracic and lumbar spines, right shoulder and ribs which are minor injuries for the purposes of the MAI Act.
AMENDMENT to LEGISLATION
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2023 with various amendments commencing on 1 April 2023. From 1 April 2023 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 constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury. The submissions were otherwise filed when the term was minor injury. Accordingly, the term “minor injury” is used in these Reasons as it was used by the Medical Assessor and/or the parties.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by Ms Elizondo 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.[6]
[6] 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[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[7] 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.[8]
[8] Section 41(2) of the PIC Act.
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 proceedings solely based on the written application.[9]
[9] 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.[10]
[10] Section 7.26(6) of the MAI Act.
The parties filed respective bundles of documents for the Panel’s consideration.[11]
[11] The numbering in the claimant’s bundle was either non-existent or partial for some of the pages and that numbering was inconsistent with the bundle.
The Panel then requested the parties to advise whether the claimant had undergone an MRI scan of the right shoulder (as recommended by Dr Kumar) and provide:
- photographs of vehicle damage from the motor accident;
- clinical records of any general practitioner for the period from five years before the motor accident to date, and
- any reports of any scans both before and after the motor accident.
In a short submission dated 12 December 2022 the claimant advised that she was not in a position to fund and had not undergone the MRI scan recommended by Dr Kumar.
Further materials were filed in response to the Panel’s further direction. On 30 March 2023 the claimant filed further clinical notes of the general practitioner.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue 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 psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
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 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 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)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.”
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 threshold injury.[12]
[12] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[13]
SUBMISSIONS
Claimant’s submissions dated 2 May 2022[14]
[13] See s 3B(2) of the Civil Liability Act 2002.
[14] Claimant’s bundle, p 28.
These submissions were filed seeking leave to review the certificate. The claimant submitted that Medical Assessor Harrington failed to articulate how the right shoulder tear was not causatively related to the accident in circumstances where the condition was asymptomatic, symptoms immediately occurred following the accident and there was impact with the right shoulder.
The claimant further submitted that there have been consistent complaints of right shoulder pain since the motor accident. A detailed summary of these complaints was set out in the submissions.
Insurer’s review dated 1 October 2021[15]
[15] Claimant’s bundle, p 10.
The insurer described in detail the medical evidence. It submitted:
- The general practitioner did not include the finding of the right shoulder ultrasound dated 8 July 2021 in the documented diagnosis of the injuries sustained in the motor accident.
- Dr Kumar did not refer in his opinion to “an absence in the timeline” of right shoulder complaint to the general practitioner. No clinical and objective findings were reported by Dr Kumar. This is contrasted with the physiotherapist records which show “substantial improvements in your right shoulder range of motion”.
- The right shoulder tear was unrelated to the motor accident.
- There was no evidence of injury to any part of the spine that satisfied a non-minor injury. There were no two signs of radiculopathy.
Insurer’s submissions dated 25 November 2021[16]
[16] Insurer’s bundle, p 12.
These submissions summarised the medical evidence in some detail. The insurer submitted that the injury to the cervical and lumbar spines were an aggravation of pre-existing pathology which constituted a minor injury. There was no evidence of two signs of radiculopathy as defined in the Guidelines.
Insurer’s submissions dated 12 September 2022[17]
[17] Insurer’s bundle, p 3.
The insurer submitted that a clinical examination is essential in making a diagnosis and that imaging findings need to correspond with symptoms and findings on examination. It submitted that the Medical Assessor used his clinical skill and judgement in deciding that the pathology on the ultrasound report did not correspond with the findings made on clinical examination.
The insurer submitted that the shoulder pathology was an incidental finding in that the symptoms did not correspond with the shoulder pathology. The Medical Assessor considered the mechanism of the accident, current report symptoms, conducted a thorough medical examination and used his clinical skills in determining the issue.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
A clinical note dated 17 April 2018 referred to a trolley getting stuck in the gap in a lift causing strain to the “neck/shoulders/lower back”.[18] On 23 May 2018 the general practitioner (GP) referred to “ongoing pain in shoulders and neck”. On 20 June 2018 the GP noted the pain was “almost back to baseline”.[19]
[18] Claimant’s further bundle, p 42.
[19] Claimant’s further bundle, p 43.
In July 2018 the GP noted the claimant had a “flare of back pain the other day”.
An X-ray of the right shoulder dated 27 June 2019 is reported as normal with joint OA noted. The ultrasound showed normal long head of the biceps tendon and small articular surface tear of the subscapularis. The impression was of bursitis causing impingement on abduction.[20]
[20] Claimant’s further bundle, p 76.
On 18 July 2019 the ultrasound is reported as showing no underlying soft tissue abnormality of the right scapula and infrascapular region.[21]
[21] Claimant’s further bundle, p 77.
Various certificates of capacity for the April 2018 work injury refer to neck and low back strain.[22]
[22] Claimant’s further bundle, pp 119-138.
Medical evidence
The initial certificate of capacity dated 9 June 2021 refers to “Whiplash injury to C-spine + lumbar back strain” and does not refer to right shoulder injury.[23] However the referral from the GP to the physiotherapist on that day provides:[24]
“Thank you for seeing Judith Elizondo for an opinion and management. She had a car accident on the 26thMay where she was T boned when attempting to merge into traffic. She sustained a mild whip lash injury and some soft tissue injuries where the seatbelt was wrapping around her.”
[23] Insurer’s bundle, p 51.
[24] Claimant’s further bundle, p 171.
The Allied recovery health request dated 16 June 2021 noted various injuries including “right shoulder 50 degrees flexion and abduction and unable to put hand behind back”.[25]
[25] Claimant’s bundle, p 36.
A report from Peak physiotherapy dated 18 June 2021[26] noted the following symptoms at the initial assessment:
- right sided neck pain with right hand tingling;
- right shoulder pain with inability to lift 50 degrees into flexion or abduction and unable to place hand behind the head;
- right flank and rib pain from the seatbelt, and
- anterior left hip and bilateral top of feet.
At the second assessment the claimant reported low back pain.
[26] Claimant’s bundle, p 21.
The clinical notes of the physiotherapist commence on 10 June 2021.[27] Those notes refer to pain on the right side of the neck, right flank and right shoulder.
[27] Insurer’s bundle, p 169.
In a referral for psychological treatment dated 6 July 2021, Dr Oliver Williams, general practitioner, noted ongoing pain in the shoulder and neck.[28] The certificate of capacity dated 6 July 2021 noted “whiplash injury to C-spine + lumbar back strain” suggested referral for MRI scans of the spine and referral for a right shoulder X-ray and ultrasound.[29] An imaging request for a right shoulder scan on that day noted “ongoing pain and management signs in the R shoulder since car accident 6 weeks ago”.[30]
[28] Claimant’s bundle, p 20.
[29] Claimant’s bundle, p 42.
[30] Insurer’s bundle, p 188.
Subsequent certificates generally repeat that certificate although the results of the right shoulder scan were subsequently added.[31]
[31] See claimant’s bundle, p 53.
A benchmark initial needs assessment report dated 28 July 2021[32] noted lower back pain, right shoulder and neck pain and occasional numbness and tingling in bilateral hands and feet.
[32] Claimant’s bundle, p 50.
In a referral dated 2 September 2021, Dr Williams noted that the claimant developed “R side T-spine, shoulder and neck pain after the accident that persisted”.[33] There had been gradual improvement with physiotherapy, but the claimant had “persisting R shoulder pain with impingement”.
[33] Claimant’s bundle, p 69.
Dr Kumar, orthopaedic surgeon, provided a treating report dated 20 September 2021.[34] The doctor noted that the claimant’s “signs and symptomatology are consistent with a rotator cuff tear” and recommended an MRI scan to assess the tear in three dimensions.
[34] Claimant’s bundle, p 17.
A further Allied health recovery request dated 28 September 2021 noted non-specific lower back and cervical pain and a supraspinatus tear and bursitis of the right shoulder.[35]
[35] Claimant’s bundle, p 78.
A further referral from Dr Williams dated 21 October 2021 noted ongoing right shoulder pain.[36]
[36] Insurer’s bundle, p 133.
Updated clinical notes refer to right shoulder problems and no improvement from an injection.[37]
[37] Clinical note dated 15 November 2022.
Radiology
An MRI scan of the lumbar spine dated 18 June 2021 showed foraminal narrowing at L5/S1 due to degenerative changes.[38] A history was noted of lumbar back pain and radiculopathy in the L5-S1 distribution.
[38] Claimant’s bundle, p 70.
The X-ray and ultrasound of the right shoulder dated 8 July 2021 noted a clinical history of ongoing pain and impingement signs in the right shoulder since the motor accident.[39] The scan showed a full thickness tear of the supraspinatus tendon described as relatively echogenic which may represent a “chronic tear”. The AC joint appeared mildly degenerative.
[39] Claimant’s bundle, p 19.
The MRI scan of the cervical spine showed age related degenerative changes and no evidence of neural compression.[40]
[40] Claimant’s bundle, p 72.
The claimant underwent an ultrasound and injection of the right shoulder on 31 August 2022. The ultrasound showed supraspinatus, infraspinatus and subscapularis tendinopathies and symptomatic bursal impingement.
Statement
The claimant provided a statement dated 29 April 2022.[41] Ms Elizondo referred to the motor accident and stated that she “hit my right shoulder against the side of my motor vehicle” and “felt immediate pain to my right shoulder”. Prior to the motor accident the claimant stated that did not have any pain in her right shoulder. Since the motor accident, Ms Elizondo has struggled with various activities due to her right shoulder injury.
[41] Claimant’s bundle, p 92.
The claim form was undated and did not describe the injuries sustained in the motor accident.[42]
[42] Insurer’s bundle, p 20.
Photographs
Photographs of the vehicle show minor damage to the driver’s side on one vehicle and the passenger side on the other vehicle.[43]
[43] Claimant’s further bundle, pp 4-10.
RE-EXAMINATION
The Panel determined that Ms Elizondo be re-examined by Medical Assessor Gibson on 14 April 2023.
The re-examination report is as follows:
“Ms Elizondo attended as arranged and was unaccompanied to the assessment. She had brought no imaging studies with her to the assessment. She advised that she had arrived in Sydney this morning after a flight from her home in Tasmania.
Pre-accident Medical History and Relevant Personal Details:
Ms Elizondo denied having had any history of injury or any symptoms affecting her neck, back, or shoulders prior to the subject accident. When asked specifically about the report of general practitioner, Dr Williams (17 August 2021) where he mentions prior low back strain, she said that there had been a work injury in 2011 or 2012. She said she had been pinned by a trolley against a wall at work. She said that she had suffered injury to her right loin region/right kidney. She said she had some imaging performed which she understood had shown there was some scarring of the right kidney. She was only off work for a few weeks before resuming full normal duties with no ongoing symptoms.
Since the original assessment of Medical Assessor Harrington on 30 March 2022, Ms Elizondo has moved from her unit in North Lambton near Newcastle. She is now living with her eldest daughter, and her husband in their single-storey house in Tasmania. She said the reason for the move was that she could no longer afford to pay the rent after she had been forced to resign from work. She explained that her job had been very physically demanding duties which she could no longer manage due to her accident-related injuries.
Prior to the subject accident, Ms Elizondo had been working full-time as a sterilisation technician at John Hunter Hospital. She had been in the role for about 15 years. Although there had been an attempt to return her to work, no suitable duties were identified.
Around the same time, she had also been diagnosed with Bell’s Palsy which had temporarily affected her speech.
History of the Subject Accident:
Ms Elizondo had been driving home from work on the day of the subject accident (25 May 2021). It was soon after 3 pm in the afternoon. She had her seatbelt fastened. She was in the middle lane approaching a T-intersection with the Pacific Highway. She had attempted to cross into the right lane to get through the intersection, when another vehicle. approaching from behind had tried to squeeze in front of her. There were two impacts to the driver’s side of her car at the level of her door and further back. She said she was jolted around in her seatbelt and thrown violently from side-to-side. Her right shoulder had hit against the inside of her car. There was no airbag deployment.
She said the driver of the other vehicle had initially attempted to leave the scene, and then had become angry when she asked him to move to the side of the road so that details could be exchanged.
Police and ambulance had not attended the accident.
Ms Elizondo had initially driven the car to her son’s place before driving back home.
She reported the accident to the police following day and also contacted the insurer. The insurer had later written her car off.
Initial Symptoms:
Ms Elizondo said that she had a lot of pain over her right lower ribs and there was right-sided neck pain and headache. Then, a day or two so later, there was pain in the right loin region and her right shoulder had become very uncomfortable.
She said that at that time, her general practitioner, Dr Oliver was on six weeks leave, and she was reluctant to see anyone else. However, she finally relented and visited general practitioner near to home.
Referral was made for imaging, although she stated there were difficulties in obtaining approval from the insurer, hence delays in having this imaging performed.
She was referred to physiotherapy and had between 30 and 40 sessions of treatment to her right shoulder and low back. This was followed by some sessions with an exercise physiologist. She said the physiotherapist was also suggesting that she have an MRI scan of her right shoulder.
She was referred to Dr Jai Kumar, orthopaedic surgeon, but due to the COVID pandemic, the consultation was conducted via video conference. She said the doctor had advised her she had a rotator cuff tear and had recommended an MRI scan be performed. However, the insurer refused to pay.
Current Complaints:
Ms Elizondo said her right shoulder continues to be her most difficult problem. She indicated the pain as being felt predominantly over the right deltoid, trapezius and infrascapular region, and the anterior aspect of the shoulder. The pain is there most of the time but increases with any activity, even tasks such as slicing vegetables. She finds dressing painful, especially doing up belts. She said she generally sits on a stool in the shower and pulls her bra up over her legs. She chooses loose clothing. She added needs assistance from her daughter for some tasks, such as colouring her hair.
She tries to help with the laundry, including hanging washing on a clothes airer, but has difficulty with any overhead reaching, and even folding small items of clothing.
Ms Elizondo said her neck is uncomfortable, especially at night. The pain is central and right-sided and extends to the back of her head. The pain is present most of the time, averaging 8/10 severity (0 being no pain, 10 being severe pain). She volunteered that she had taken analgesic medication this morning prior to the assessment, so she felt more comfortable than she would otherwise be.
There is constant numbness over most of her right upper arm and also over the tips of all her fingers and thumb in both hands.
There is central low back pain which spreads to the right buttock and sometimes to the outer aspect of her right thigh, but not beyond the knee. She added that she also has osteoarthritis of her right knee and she gets confused whether the pain about the knee region relates to her back or knee.
When asked about any upper back pain, she indicated occasional pain felt just below the right shoulder blade.
Current Treatment:
Ms Elizondo takes Targin, Norflex and ibuprofen tablets for pain. She takes a medication for anxiety. She was previously taking the antidepressant Sertraline.
She hasn’t had any physiotherapy treatment for some months. Her last session was in early May, prior to her moving to Tasmania. She was paying for the treatment herself, but towards the end was concerned the treatment was making her shoulder pain worse.
She said she was on the waiting list for the orthopaedic outpatient clinics at the hospital for assessment of both her right shoulder and right knee.
Physical Examination:
Ms Elizondo was pleasant and cooperative and appeared consistent in her presentation today. She had a normal gait. She could walk on heels and toes.
On examination of the cervical spine, there was tenderness over the upper-to-mid cervical region, right side of her neck, and right trapezial region. Flexion and extension were to three-quarters normal, lateral flexion was to three-quarters normal and rotation three-quarters normal. There was no asymmetry, muscle spasm or guarding.
On examination of the upper limbs, there was normal and symmetrical power and reflexes and there was normal sensation, apart from non-dermatomal dysesthesia in all the fingertips and thumbs, over the dorsum of the right forearm and entire dorsum of right hand.
Circumferential measurements of right arm 34 cm, left arm 35 cm, right forearm 29 cm, left forearm 28 cm, therefore, there was some muscle wasting at the right arm above the elbow, consistent with her description of right shoulder restriction.
On examination of both shoulders, there was tenderness over the anterior aspect of the right shoulder, the subacromial region, and trapezius. There was no crepitus on shoulder movements, but impingement was positive on the right.
Active shoulder movements were consistent on repetition and maximal as follows:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 80 ° 170 ° Extension 30 ° 50 ° Internal Rotation 50 ° 70 ° External Rotation 70 ° 70 ° Abduction 70 ° 170 ° Adduction 40 ° 50 ° On examination of the lumbar spine, there was central and right sided paravertebral tenderness. Flexion and extension were to three-quarters normal, lateral flexion was to three-quarters normal, rotation was to normal range bilaterally. There was no asymmetry, muscle spasm or guarding.
Circumferential measurements of lower limbs were equivalent. Therefore, there was no muscle wasting. There was normal power, sensation, and reflexes bilaterally.
Diagnoses and Reasons:
Ms Elizondo is a 64-year-old woman who was involved in the subject accident on 25 May 2021. She described severe side-to-side jolting with the impact with her right shoulder hitting the inside of her car. She said she had noticed some bruising in the same distribution some days later. She offered to show me some photographs of this bruising, but I could not accept any additional information on the day of the assessment. She had said that her right shoulder symptoms were delayed for a few days but had definitely come on the period after the subject accident, so she could not account for the shoulder not being mentioned in the initial certificate. Given the subsequent mentions of ongoing post subject accident right shoulder pain and restriction, this could well have been an omission on the part of the general practitioner. She had also indicated that there had also been delays in seeing her regular general practitioner and obtaining approvals for imaging.
The ultrasound on 8 July 2021 had demonstrated a right sided rotator cuff tear, with the referral noting history of ongoing pain and impingement signs in the right shoulder since the motor accident. There was no evidence, either clinical or radiological that Ms Elizondo had any structural damage to her shoulder prior to the subject accident. Whilst, at her age, there was certainly potential for there being degenerative changes, possibly even a rotator cuff tear, this is supposition. I could also not exclude the possibility that a pre-existing tear was extended as a consequence of the subject accident. As such, the right shoulder injury would be a non-minor injury according to the definition as this is an 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)’.
Ms Elizondo had sustained soft tissue injuries to her cervical, thoracic, and lumbar spine. These were all minor injuries as per the definition, as there was no imaging evidence to support a non-minor injury and there was no radiculopathy on clinical examination.
There had been injury to the right lower ribs but no proven fracture.”
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 threshold or non-threshold 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[44] and Insurance Australia Ltd v Marsh.[45]
[44] [2021] NSWCA 287 at [40], [41] and [45].
[45] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[46] that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act.
[46] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[47] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[47] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessor Gibson and adds the following reasons.
Low back injury
We accept that the low back was injured in the motor accident based on the claimant’s evidence and the initial report to the general practitioner.
There is no evidence of traumatic injury involving an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The MRI scan of the lumbar spine shows degenerative changes. The reference to previous history of some back pain does not alter our view that there was injury to this body part.
The notes in July 2021 such as the history in the lumbar spine scan refer to radiculopathy in the L5/S1 distribution but do not refer to the precise symptoms. Accordingly, it is unclear why that diagnosis was made.
We are not satisfied that there is evidence of radiculopathy as defined in cl 5.8 in either the clinical notes or on the examination findings of Medical Assessor Gibson.
Cervical spine injury
We accept there was a soft tissue injury to the cervical spine probably involving an aggravation of degenerative changes in keeping with the scans which show degenerative changes. We do not accept that there was traumatic injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The conclusion of neck injury is based on the claimant’s evidence and the early reporting of symptoms.
There are no recorded observations of two signs of radiculopathy as defined in cl 5.8 of the Guidelines. The clinical notes refer to symptoms of radicular pain. These are not signs of radiculopathy as defined because they are not described as relating to a specific dermatome nor do they describe symptoms as required by cl 5.8 of the Guidelines.
Based on the examination findings of Medical Assessor Gibson, Ms Elizondo did not have radiculopathy at the recent examination.
For these reasons we conclude that Mr Elizondo has not satisfied, at any time, two clinical signs of radiculopathy pursuant to the Guidelines.
Right shoulder
The initial certificate provided by the general practitioner dated 9 June 2021 did not refer to the right shoulder. The insurer relied on this omission as indicating a delay in onset of right shoulder symptomatology. Subsequent certificates repeat the earlier diagnosis but include reference to scans of the right shoulder.
The subsequent reports by the general practitioner dated 6 July 2021 and 2 September 2021 indicates that there had been right shoulder pain since the motor accident. Dr Williams was the author of both the subsequent reports and the initial certificiate that did not refer to the right shoulder.
The detail in the certificate is brief and the absence of reference to the right shoulder may be an omission.
The absence of reference to complaint is relevant but not determinative of injury.[48] That absence should be contrasted with the referral by the GP to the physiotherapist written on 9 June 2021 which refers to “some soft tissue injuries where the seatbelt was wrapping around her” which is a likely reference to right shoulder symptoms as the claimant was driving and the seatbelt wraps around the right shoulder.
[48] AAI Ltd v McGiffen [2016] NSWCA 229 at [64]-[66].
Further, the physiotherapist in the initial clinical note on the day following the initial general practitioner consultation referred to right shoulder pain. The initial physiotherapy report dated 18 June 2021 otherwise referred to right shoulder pain since the motor accident.
In these circumstances we do not accept that the absence of reference to the right shoulder by the general practitioner in the certificate dated 9 June 2021 is significant as there is a description of signs and treatment to the right shoulder in the period shortly after the accident
The scan dated 11 July 2021 of the right shoulder shows a full thickness tear of the supraspinatus tendon. The AC joint is described as mildly degenerative. This scan is contrasted with the prior scan dated 27 June 2019 which showed a normal long head of the biceps tendon and small articular surface tear of the subscapularis. We note that the radiologist otherwise said the tear “may be chronic” but this is hardly a definitive statement.
We are satisfied that there were degenerative changes in the right shoulder joint prior to the motor accident. Indeed, this underlying condition made the claimant susceptible to further injury.
The initial treatment by the physiotherapist including treatment of the right shoulder injury rather than referred pain from the neck. This is consistent with recent traumatic injury to the right shoulder.
The motor accident involving a collision into the right side of the vehicle with trauma through the seatbelt over the right shoulder and some impact on the right side.
The insurer questioned the lack of detail in Dr Kumar’s report. That opinion was contained in a treating report and the relevant principles concerning the admissibility of qualified reports probably do not apply.[49] In any event, the reports are admissible, and any deficiencies would go to weight.[50]
[49] See Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at [93] referring to Rich v ASIC [2005] NSWCA 233 at [13].
[50] Brambles Industries Ltd v Bell [2010] NSWCA 162.
Dr Kumar stated that the “signs and symptomatology are consistent with a rotator cuff tear”. There is no reason to doubt that opinion. We accept the treating specialist’s opinion which is obviously based on his clinical examination.
The scan evidence showed a full thickness tear of the supraspinatus tendon. This is a new finding compared to the previous scan. It is medically plausible that the supraspinatus tendon could be torn or at least aggravated by the nature of this motor accident.
The examination conducted by Medical Assessor Gibson is consistent with the observations of Dr Kumar that the impingement signs suggested a right rotator cuff tear. We accept that this conclusion differs from that provided by Medical Assessor Harrington. However, we are obliged to form our own opinion, and, in this respect, we were alive to this issue and have relied on the clinical expertise of Medical Assessor Gibson who examined the claimant on behalf of the Panel. Again, we note that the clinical examination is consistent with the opinion of a treating specialist.
For these reasons we accept that the motor accident probably aggravated a tear of the supraspinatus tendon. This is not a threshold injury as defined by the MAI Act.
Other injuries
The claimant sustained a right rib/flank injury. There is no evidence that this injury was anything other than a soft tissue injury as defined by the MAI Act.
CONCLUSION
For these reasons the Panel concludes that the certificate issued by Medical Assessor Harrington is revoked. The new certificate is attached at the commencement of these Reasons.
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