Ennis v QBE Insurance (Australia) Limited
[2023] NSWPICMP 507
•11 October 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ennis v QBE Insurance (Australia) Limited [2023] NSWPICMP 507 |
| CLAIMANT: | Mairead Ennis |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Anthony Scarcella |
| MEDICAL ASSESSOR: | Ian Cameron |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 11 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of a threshold injury under section 1.6; claimant claimed she sustained physical injuries in a motor accident on 8 November 2029; Medical Assessor (MA) Home determined that the claimant sustained injuries to the cervical spine, lumbar spine, left shoulder and pelvis caused by the motor accident and were minor injuries; review sought by claimant under section 7.26; consideration and application of section 1.6 and clause 5.7, 5.8 and 5.9 of the Motor Accident Guidelines; Held – as a result of the motor accident, the claimant suffered a soft tissue injury to the cervical spine and an aggravation of underlying early degenerative change at C4/5 and C5/6; a soft tissue injury of the lumbar spine, which has resolved; a soft tissue injury of the left shoulder, which has resolved; and a soft tissue injury of the pelvis, which has resolved; the injuries sustained by the claimant were all threshold injuries; the certificate of MA Home dated 18 October 2022 is confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel confirms the certificate of Medical Assessor Alan Home dated 18 October 2022. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Mrs Mairead Ennis, was involved in a motor accident on 5 June 2019 (the motor accident). On 8 November 2019, Mrs Ennis made a claim for personal injury benefits on QBE Insurance (Australia) Limited (the insurer). On 22 May 2022, Mrs Ennis made an application for damages under common law. She claimed that she suffered injuries to her cervical spine, lumbar spine, left shoulder and pelvis as a result of the motor accident.
A dispute has arisen between Mrs Ennis and the insurer as to whether, for the purposes of the Motor Accident Injuries Act 2017 (MAI Act), the injuries caused by the motor accident were threshold injuries.
The dispute about whether the motor accident caused the claimed injuries are threshold injuries is a medical dispute, as defined by s 7.17 of the MAI Act and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The Motor Accident Injuries Amendment Act 2022 amended the MAI Act to omit the term ‘minor injury’ and insert the term ‘threshold injury’ from 1 April 2023. References in these reasons to ‘minor injury’ or ‘minor injuries’ are references taken from documents created prior to 1 April 2023.
The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Alan Home for assessment.
The medical dispute was assessed by Medical Assessor Home, who issued a certificate dated 18 October 2022 wherein he certified that the injuries to the cervical spine, lumbar spine, left shoulder and pelvis were caused by the motor accident and were minor injuries for the purposes of the MAI Act (the Medical Assessment).
REVIEW PROCEDURE
Mrs Ennis sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (the Review).
On 12 January 2023, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
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: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
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: Rule 128 of the PIC Rules.
On 17 February 2023, Mrs Ennis and the insurer were directed by the Panel to file and serve a paginated bundle of documents relied on in the Review.
On 18 May 2023, the Panel informed the parties that it considered a re-examination of the claimant was required. Arrangements were made for the claimant to be re-examined by Medical Assessor Ian Cameron on 20 June 2023. The Panel also directed the claimant to provide it with a copy of her Lane Cove Family Medical Practice clinical records by 6 June 2023.
STATUTORY PROVISIONS
Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
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 MAI Act defines a soft tissue injury to mean 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), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Section 1.6 of the MAI Act 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)”.
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 a motor accident is a threshold injury for the purposes of the MAI 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:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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.”
In respect of the assessment of threshold injury to the neck or spine, cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“Soft tissue assessment - injury to a spinal nerve root
5.7 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.
5.8 Radiculopathy means the impairment caused by dysfunction of the 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 six of the Motor Accident Guidelines: Permanent Impairment’:
(a)loss of symmetry 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.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.
In respect of causation of injuries, Wright J in Briggs v IAG Limited trading as NRMA Insurance[1] stated:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[1] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 at [35].
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines states:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
ASSESSMENT UNDER REVIEW
Medical Assessor Home examined Mrs Ennis on 14 October 2022 and issued a certificate under s 7.23(1) of the MAI Act dated 18 October 2022.
Medical Assessor Home was asked to assess the following:
(a) whether the cervical spine disc protrusions at C4/5 and C5/6 with ongoing radiculopathy caused by the motor accident is a minor injury for the purposes of the MAI Act;
(b) whether the lumbar spine soft tissue injury caused by the motor accident is a minor injury for the purposes of the MAI Act;
(c) whether the left shoulder strain injury caused by the motor accident is a minor injury for the purposes of the MAI Act, and
(d) whether the pelvic soft tissue injury caused by the motor accident is a minor injury for the purposes of the MAI Act.
Medical Assessor Home took a history that Mrs Ennis had no past history of neck or shoulder complaints.
Mrs Ennis provided a history that she sustained injuries in the motor accident as the unaccompanied seat-belted driver of a stationary sedan at traffic lights when her vehicle was struck from behind by a car. There was no secondary forward impact and her vehicle sustained rear-end damage and was later written off. Following the collision, she sat in shock for several minutes before alighting from her vehicle to exchange details. Neither the police nor ambulance paramedics attended the scene. She managed to drive to her home 1.5km away.
Mrs Ennis recalled the progressive onset of neck pain, bilateral shoulder pain and back pain on the evening of the motor accident. She consulted her general practitioner within 24 hours. She was subsequently referred to a chiropractor and physiotherapist, Ms Kylie Harris, from whom she had since received regular treatment, primarily directed towards her neck and right shoulder girdle complaints. The pain in her lower back settled within several months of the motor accident and there were no ongoing symptoms in the left shoulder.
Mrs Ennis stated that she has continued to experience neck and right shoulder girdle pain and discomfort. There is intermittent radiation of pain to the post-axial border of the right arm and a sensation of intermittent fatigue in the right thumb. There are no distal symptoms, paraesthesia or numbness.
Mrs Ennis stated that she undergoes chiropractic adjustment and deep tissue massage fortnightly which eases the symptoms for several days.
Mrs Ennis stated that she takes Voltaren four days per week and Panadol Osteo on the other days of the week. She underwent MRI scans of the cervical spine in May 2021.
In respect of current symptoms, Mrs Ennis described constant right-sided neck pain with an average intensity of 6 to 8/10. Pain was worse in the morning and on cold days. There was difficulty turning her neck to the left due to contralateral pain and there was ipsilateral pain when turning to the right. She experienced difficulty wearing a seatbelt when driving and turning her neck at intersections. She reported exacerbation of neck pain when reaching away from her body, such as when writing on a whiteboard. There was pain across the top of the shoulder which increased with activity. There was intermittent post-axial pain along the dorsum of the arm as far as the elbow. She described a sensation of fatigue in the right thumb with prolonged writing and writing on a whiteboard. Although not specifically nominated, it appeared that Medical Assessor Home was referring to the right shoulder and right arm in the above description.
In respect of activities of daily living, Mrs Ennis is right hand dominant. She described a fair sitting tolerance but is required to change posture frequently. Sleep pattern is disrupted and she is unable to lie comfortably in bed over her right side. She is independent for activities of self-care. She is able to lift and carry lightweights. Her husband has taken over the heavier chores such as bathroom cleaning, mopping, vacuuming and gardening. She has not been able to resume her pre-accident hobbies of fitness training four days per week, playing tennis and playing hockey. Following the motor accident, she lost one week from work before resuming her normal duties.
On examination of Mrs Ennis’ cervicothoracic spine, Medical Assessor Home observed normal spinal curvature without muscle spasm. There was reduced range of active motion. Cervical spine flexion was performed to three quarters of normal range; extension one quarter of normal range; rotation half of normal range; left rotation half of normal range; right lateral flexion one quarter of normal range; and left lateral flexion one third of normal range. There was muscle guarding during left-sided motion. Contralateral pain was declared during left-sided motion. Ipsilateral pain was declared during right-sided motion. Tenderness was elicited to palpation overlying the right-sided vertebral structures between C2 and C7, without localisation.
On neurological examination of the upper extremities, Medical Assessor Home observed normal upper limb power in all muscle groups; normal sensibility throughout; no muscle wasting; deep tendon reflexes were symmetrically preserved; and Spurling’s test was negative.
On examination of the right shoulder, Medical Assessor Home observed no muscle wasting; tenderness elicited to palpation overlying the shoulder girdle musculature; and no lateral tenderness. Active range of motion was restricted by neck pain measured by goniometer as follows:
Shoulder movements Active ROM measured right Flexion 100° Extension 40° Abduction 90° Adduction 30° Internal Rotation 60° External Rotation 80°
On examination of the left shoulder, Medical Assessor Home observed a full range of active motion of the left shoulder in all planes. Active range of motion was measured by goniometer as follows:
Shoulder movements Active ROM measured left Flexion 180° Extension 50° Abduction 170° Adduction 50° Internal Rotation 80° External Rotation 90°
On examination of the lumbar spine, Medical Assessor Home observed normal thoracolumbar spinal curvature; a full range of active pain free spinal motion in all planes; unimpeded straight leg raise in a long seated position; and a negative slump test.
Neurological examination of the lower extremities was normal in all respects.
Examination of the pelvis was normal.
In respect of consistency, Medical Assessor Home expressed the view that Mrs Ennis was consistent in her clinical presentation.
Medical Assessor Home listed and referred to the relevant documentation and medical imaging.
Medical Assessor Home noted that there was early documentation of complaints of neck and right shoulder girdle pain in the chiropractor’s clinical notes that had persisted. However, the Panel notes that Medical Assessor Home was not requested to assess whether the right shoulder girdle pain was caused by the motor accident and whether it was a minor injury for the purposes of the MAI Act.
Medical Assessor Home determined that the following injuries were caused by the motor accident:
(a) cervical spine: a soft tissue injury; aggravation of underlying early degenerative change at C4/5 and C5/6; post-axial pain but no radicular complaints in the upper extremities;
(b) lumbar spine: a soft tissue injury which had resolved;
(c) left shoulder: a soft tissue injury which had resolved, and
(d) pelvis: a soft tissue injury which had resolved.
Medical Assessor Home determined that all of the injuries referred to above were minor injuries, in that, he was satisfied that they met the definition of soft tissue injuries. There was no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
In respect of the cervical spine, Medical Assessor Home was satisfied that the injury met the definition of a soft tissue injury. He determined that the clinical presentation did not meet the criteria for cervical radiculopathy set out in cls 5.8 to 5.10 of the Guidelines in effect at the time of the assessment (now cls 5.7 to 5.9). None of the criteria were met. The MRI scan of Mrs Ennis’ cervical spine dated 18 May 2022 demonstrated shallow posterior disc protrusions at C4/5 and C5/6, without canal stenosis or nerve root compression.
In respect of the lumbar spine, Medical Assessor Home was satisfied that the injury met the definition of a soft tissue injury. He determined that the clinical presentation did not meet the criteria for lumbar radiculopathy set out in the Guidelines. None of the criteria were met.
In respect of the left shoulder, Medical Assessor Home was satisfied that the injury met the definition of a soft tissue injury. There was no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
In respect of the pelvis, Medical Assessor Home was satisfied that the injury met the definition of a soft tissue injury. There was no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
EVIDENCE BEFORE THE PANEL
The evidence before the Panel consisted of the following:
(a) Mrs Ennis’ indexed and paginated bundle of documents identified as AD1 on the Commission’s portal (Mrs Ennis’ documents);
(b) the insurer’s indexed and paginated bundle of documents identified as AD3 on the Commission’s portal (insurer’s documents), and
(c) the documents produced by Lane Cove Family Medical Practice on 15 June 2023 in response to the Panel’s Direction dated 18 May 2023 identified as AD4 on the Commission’s portal.
REVIEW OF THE EVIDENCE
Application for personal injury benefits
On 8 November 2019, Mrs Ennis completed an application for personal injury benefits (the application form) in respect of the motor accident.[2]
[2] Mrs Ennis' documents at pages 2-7.
The application form set out the basic particulars of the motor accident consistent with the history taken by Medical Assessor Home.
In the application form, Mrs Ennis described the injuries she received in the motor accident as follows:
“Whiplash causing pain to lower back, neck and shoulder. This pain was extremely bad in the initial few weeks after the accident, restricting me from normal activities such as picking up my children, exercising and pain during sleep.”[3]
[3] Mrs Ennis' documents at page 4.
In the application form, Mrs Ennis denied suffering an illness or injury affecting the same or similar parts of the body at the time of the motor accident.
Treating medical records and reports
In evidence, were Mrs Ennis’ Lane Cove Family Medical Practice (Lane Cove FMP) clinical records.[4] The first consultation entry in the clinical records was dated 18 April 2018 and the last consultation entry was dated 28 November 2019.
[4] Mrs Ennis' AALD dated 1 June 2023 at pages 1-19.
On 18 September 2018, some eight months prior to the motor accident, Mrs Ennis’ Lane Cove FMP clinical records disclosed that she attended on Dr Asher Hiddlestone complaining of shoulder pain that had been present for a few weeks and was not settling. Using her hand sent pain up her arm. The doctor noted a classic impingement pattern for rotator cuff. The clinical records did not specify which shoulder was being complained of. It was also noted that Mrs Ennis sustained a humeral head fracture years ago playing hockey. Mild left lateral epicondylitis was also recorded by the doctor. The reason for the consultation was described as rotator cuff syndrome.[5]
[5] Mrs Ennis' AALD dated 1 June 2023 at page 5.
On 6 June 2019, one day following the motor accident, Mrs Ennis’ Lane Cove FMP clinical records disclosed that she attended on Dr Eric Barlow advising that she had been involved in a motor accident on the previous day when slowing to stop at a red traffic light and was hit from behind. She had braced herself for the impact and had some pain across the shoulder blades and some back spasms in various areas in the neck, thoracic spine, lumbar spine and adjacent areas but not into the legs. She also complained of being a bit achy in the upper arms but there was no weakness. On examination, there was a full range of movement in the neck and spine. However, there was pain at the extremes. There was paraspinal pain with radiation laterally to both sides. Dr Barlow diagnosed a soft tissue injury. The reason for the consultation was described as soft tissue injury – neck, spine.[6]
[6] Mrs Ennis' AALD dated 1 June 2023 at page 7.
On 5 August 2019, Mrs Ennis’ Lane Cove FMP clinical records disclosed that she attended on Dr Lisa Hurrell complaining of ongoing pain in the neck, back, right side of the lower back and pelvis. She also complained of muscular spasm. She advised that she was receiving treatment from a chiropractor and physiotherapist. The pain prevented her from her daily activities at the gym and caused her difficulties in lifting her two young children. She was issued with a medical certificate. The reason for the consultation was described as “MVA”.[7] Dr Hurrell issued a medical certificate repeating the information referred to above and recording that Mrs Ennis was now wishing to commence a compulsory third-party insurance claim in respect of the motor accident.[8]
[7] Mrs Ennis' AALD dated 1 June 2023 at pages 7-8.
[8] Mrs Ennis' documents at page 59.
On 28 November 2019, Mrs Ennis’ Lane Cove FMP clinical records disclosed that she attended on Dr Sabrina Saldanha advising that she was involved in a motor accident and was consulting a chiropractor in Neutral Bay. This was the last consultation recorded in the clinical records.[9] There were no other notations in the entry other than a reference to a letter being printed, which may have been referring to the certificate of capacity issued by the doctor on 28 November 2019.[10] The certificate described the motor accident related injuries as whiplash in the neck, lower back and pelvis on the right side. The certificate certified Ms Ennis as fit for her pre-injury work from 28 November 2019.
[9] Mrs Ennis' AALD dated 1 June 2023 at page 8.
[10] Mrs Ennis' documents at pages 60-62.
In evidence, were Mrs Ennis’ Bay Chiropractic clinical records produced by Ms Kylie Harris, chiropractor, on 20 May 2022.[11] The first consultation entry in the clinical records was dated 7 June 2018 and the last consultation entry was dated 12 May 2022.
[11] Mrs Ennis' documents at pages 65-83.
On 7 June 2019, Mrs Ennis’ Bay Chiropractic clinical records disclosed her attendance and reporting of the motor accident. References were made to central lower back pain and hyper lordotic feeling/pulling into the right hip and left shoulder blade.[12]
[12] Mrs Ennis' documents at page 66.
On 12 June 2019, Mrs Ennis’ Bay Chiropractic clinical records disclosed her attendance and referred to the pain now having moved into the right shoulder blade. There was also a reference to low back pain.[13]
[13] Mrs Ennis' documents at page 66.
On 24 July 2019, Mrs Ennis’ Bay Chiropractic clinical records disclosed her attendance. There were references to right sided neck pain, right armpit pain and low back pain and stiffness.[14]
[14] Mrs Ennis' documents at page 67.
Thereafter, Mrs Ennis’ Bay Chiropractic clinical records disclosed a further 36 consultations for treatment in respect of her neck, lower back, right hip and shoulder symptoms.
On 18 May 2022, Mrs Ennis underwent MRI scans of her cervical spine by Dr Ursula Ridley, radiologist, on the referral of Dr Irena Al Muderis of Medclinic Medical Centre. The clinical notes in the MRI scan report referred to the motor accident three years earlier and right-sided chronic and left radiculopathy from C5 to T1. Dr Ridley reported a small disc protrusion at C4/5 and C6/7 without significant canal stenosis or nerve root compression.[15]
[15] Mrs Ennis' documents at pages 63-64.
The Panel notes that there were no medical imaging reports relating to Mrs Ennis’ shoulders, lumbar spine or pelvis in evidence.
The Panel notes that Mrs Ennis’ Medclinic Medical Centre clinical records were not in evidence.
On the available evidence, Mrs Ennis was not referred to a medical specialist for management and treatment.
Medico-legal reports
Dr Matthew Giblin
On 7 September 2022, Mrs Ennis consulted Dr Matthew Giblin, orthopaedic surgeon, at the request of her lawyers. Dr Giblin prepared a report dated 7 September 2022.[16]
[16] Mrs Ennis' documents at pages 31-35.
Dr Giblin took a history from Mrs Ennis that she had been involved in a motor accident on 5 June 2019 as a seat-belted driver of a car that was stationary when it was hit from behind. She consulted her family doctor with right-sided neck and shoulder discomfort. The doctor organised some tablets, physiotherapy and chiropractic treatment. Initially, she felt that her symptoms would go away with time. However, they did not and she eventually underwent MRI scans. Symptoms were managed conservatively. She had not been referred to a specialist. She remained under the care of a family doctor and continued to consult a chiropractor on an intermittent basis. She takes Voltaren and Panadol on an as needs basis. She continued at work.
In respect of Mrs Ennis’ present disabilities, Dr Giblin reported that her neck bothered her when looking around quickly or looking up for any period of time. Craning activities such as reading or writing aggravate her symptoms. When she drives, she is more reliant on mirrors than she used to be. Pain is moderately relieved by tablets. Lifting weights aggravates her symptoms as do standing or sitting for any period of time. She is currently working as a full-time teacher and experiences difficulty marking as she uses her right arm. Mrs Ennis experiences problems if she is sitting at a computer for any period of time, writing on a whiteboard or carrying a laptop computer or books. She manages personal care but it does cause her extra pain. She has difficulty with house work, particularly, vacuuming, mopping, cooking and cleaning the bath, the shower or the toilet. She has difficulty reaching up into high cupboards; taking down curtains; cleaning windows; and carrying heavy bags of shopping. She is assisted by a cleaner fortnightly and her husband also gives her a hand. Social life is restricted and she no longer does cross-fit.
On examination of the cervical spine, Dr Giblin observed that Mrs Ennis was able to put her chin near her chest; could extend to neutral; left lateral rotation was to 60°; and there were no significant peripheral neurological signs.
On examination of the left shoulder, Dr Giblin observed that Mrs Ennis had a full range of movement.
On examination of the right shoulder, Dr Giblin observed that Mrs Ennis could forward flex to 130°; extend to 30°; abduction was to 120°; adduction was to 30°; internal rotation was to 60°; external rotation was to 70°.
Dr Giblin noted that MRI scans on 18 May 2022 demonstrated a small disc protrusion at C4/5 and C5/6 with no significant canal stenosis or nerve root compression.
Dr Giblin opined that Mrs Ennis’ injuries were consistent with the motor accident described. He further opined that she sustained a soft tissue injury to the cervical spine. However, in respect of the right shoulder, he stated that it was unclear as to whether the symptoms were referred pain from the cervical spine or whether she had rotator cuff disease. In this regard, Dr Giblin recommended that Mrs Ennis undergo MRI scans of her right shoulder and that, if she had evidence of bursitis and if a steroid injection assisted her, then the right shoulder injury would be a rotator cuff injury rather than cervical spine referred pain.
There was no right shoulder MRI scan report in evidence.
SUBMISSIONS
Mrs Ennis’ submissions
Mrs Ennis, through her lawyers, provided written submissions dated 14 November 2022 in respect of the Review.[17] The submissions are summarised below.
[17] Mrs Ennis’ documents at pages 51-55.
Mrs Ennis had no past history or medical history of cervical spine or shoulder complaints. Other than the motor accident, there was no other explanation for the cervical spine injury and ensuing symptoms.
The MRI scan report dated 18 May 2022 confirmed that Mrs Ennis suffered disc protrusions at C4/5 and C5/6. There was no evidence that such protrusions existed prior to the motor accident or that if they did, that they were in any way symptomatic. The MRI scan did not identify degenerative disc disease or any problems with the other cervical discs. Therefore, it is open to accept that the motor accident was the cause of the disc protrusions.
Mrs Ennis’s self-reported symptoms to Medical Assessor Home of areas of increased pain and fatigue were consistent with the dermatomal distribution with C4/5 and C5/6.
Medical Assessor Home erred in dismissing his observations of Mrs Ennis as demonstrating non-radicular signs. In his certificate, Medical Assessor Home identified three of the five clinical signs of radiculopathy, namely, loss of reflexes; positive sciatic nerve tension signs; and muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution. There was verifiable radiculopathy and therefore, the injury is a non-minor injury.
Medical Assessor Home’s diagnosis of an aggravation of underlying degenerative changes at C4/5 and C5/6 and post axial pain does not satisfy the definition of minor injury.
Medical Assessor Home erred in not considering a clearly potential injury to the right shoulder arising from the motor accident.
Medical Assessor Home failed to disclose his path of reasoning in respect of the following:
(a) the diagnoses of injury;
(b) the diagnosis of an aggravation of underlying degenerative changes at C4/5 and C5/6 and their location (the discs, the annulus or the spinal joints), and
(c) concluding that the criteria for radiculopathy had not been met.
Insurer’s submissions
The insurer provided written submissions dated 6 December 2022 in respect of the Review.[18] The submissions are summarised below.
[18] Insurer's documents at pages 5-10.
Medical Assessor Home’s certificate dated 18 October 2022 should be confirmed.
Whether or not Mrs Ennis’ cervical spine injuries were wholly caused by the accident or aggravated by the accident is irrelevant. In order for her cervical spine injuries to be considered non-minor in nature, there would need to be the existence of neurological symptoms consistent with radiculopathy (cl 5.9 of the Guidelines). Medical Assessor Home expressly indicated in his report that Mrs Ennis’ clinical presentation did not meet the criteria for cervical radiculopathy.
The MRI findings reported on 18 May 2022 are consistent with degenerative change, contrary to the submissions of Mrs Ennis. More fundamentally, the cause of the abnormalities on imaging was of no material bearing on Medical Assessor Home’s conclusion, as Mrs Ennis’ symptoms clearly did not satisfy the criteria for radiculopathy and by extension, were minor in nature, whatever their cause.
Medical Assessor Home expressly stated in his certificate that none of the criteria for radiculopathy were met following his examination of Mrs Ennis. The certificate clearly set out the examination findings which revealed no signs of radiculopathy.
Medical Assessor Home’s examination findings were consistent with a soft tissue injury to the cervical spine and was so diagnosed in the certificate. Further, the negative Spurling’s test provided significant support to his conclusions.
Mrs Ennis’ complaints on examination were consistent with a soft tissue injury where no signs of radiculopathy were present.
Spinal discs are a type of fibrocartilage. Therefore, a shallow posterior disc protrusion at C4/5 and C5/6 is an injury to the cartilage, which meets the definition of a soft tissue injury set out in the MAI Act.
Post-axial pain is simply uncomplicated neck pain or neck strain. This diagnosis by Medical Assessor Home was clearly based on the complaints of neck pain and the observed restricted range of motion at examination.
Mrs Ellis lodged an application for minor injury dispute in respect of the cervical spine, the lumbar spine, left shoulder and the pelvis only. She did not particularise any injury or symptoms to the right shoulder and did not refer her right shoulder for assessment. Therefore, Medical Assessor Home was not required to make any assessment or diagnosis in respect of the right shoulder.
Notwithstanding this, Medical Assessor Home appropriately examined the right shoulder (in light of complaints regarding the left, for the purpose of benchmarking). He noted a complaint of pain intermittently radiating down the post-axial border of the right arm in line with the shoulder. He observed no muscle wasting; tenderness with palpitation; no lateral tenderness; and a restricted range of motion. These symptoms do not satisfy the diagnostic criteria of radiculopathy.
Medical Assessor Home clearly complied with cl 5.6 of the Guidelines by taking a comprehensive pre-accident history (noting the claimant did not suffer from pre-existing right shoulder injuries) and post-accident history of pain and treatment; reviewed all the relevant records; provided a description of Mrs Ennis’ current symptoms; conducted a thorough physical examination of the right shoulder; and based on this combined with his own clinical judgment and expertise, did not identify a diagnosable injury in the right shoulder.
By not diagnosing an injury to the right shoulder, Medical Assessor Home has not made a material error. In the alternative, if Mrs Ennis contends that he failed to assess the right shoulder (which he clearly did), then this would be grounds for the certificate to be referred back to the Medical Assessor to complete an incomplete certificate, in light of the fact that Mrs Ennis did not refer the right shoulder for assessment (PIC Procedural Direction 6, [69]).
Medical Assessor Home clearly set out his examination findings and the relevant law and in doing so, clearly and explicitly disclosed his actual path of reasoning.
THE RE-EXAMINATION
Medical Assessor Cameron re-examined Mrs Ennis in person on 20 June 2023. She attended unaccompanied.
Background
Mrs Ennis lives with her husband and children aged six and seven years.
Mrs Ennis is a high school teacher. Because of ongoing symptoms after the motor accident, she changed to an office job with the Department of Education in January 2023.
Mrs Ennis said her past health was good. In particular, she said that she did not have a history of neck or back pain. She was very active prior to the motor accident including running long distances.
History of injury
On 5 June 2019, Mrs Ennis was the driver of a motor vehicle. She was stopped at a traffic signal. She saw a vehicle approaching in the rear-view mirror and braced herself anticipating the collision. She said she was jolted forward.
Mrs Ennis consulted her general practitioner the next day. She had neck pain and other symptoms. She was off work for a time. Physiotherapy commenced and there were analgesics used.
Despite ongoing symptoms Mrs Ennis felt she would recover. However, she did not.
Mrs Ennis said she had some initial left shoulder pain, but this then changed early on to right shoulder and arm pain.
There were no subsequent injuries reported.
Current status
Mrs Ennis has right arm pain which is a pain radiating down her arm on the radial side of the forearm and into the right thumb.
Due to pain, it is difficult for her to write on a whiteboard and sometimes with pain, there is weakness in the right hand.
There is also right-sided neck pain, right shoulder pain and headaches.
As noted above, Mrs Ennis has had to move to an office-based job as a teacher due to her ongoing symptoms. She has interference with daily activities continuously due to the ongoing symptoms.
Mrs Ennis has ongoing physiotherapy. She is currently only able to pay for a small number of sessions.
Voltaren and paracetamol are taken intermittently. Some codeine has been taken in the past. Mrs Ennis' general practitioner is at Lane Cove Family Medical Practice.
Examination
Mrs Ennis is right-handed, 167cm in height and weighs 72kg.
Mrs Ennis was co-operative and provided a clear history. She was distressed by the ongoing symptoms.
At the cervical spine, there was moderately and asymmetrically reduced range of motion (to 70% normal generally and to 50% on rotation to left), with no muscle spasm, no muscle guarding, no dysmetria, and probable non-verifiable radicular complaints present.
There was a full range of motion at the left shoulder.
At the right shoulder, the maximum observed movements at both shoulders were abduction 100°, adduction 40°, flexion 120°, extension 20°, external rotation 80° and internal rotation 80°. There was a full range of motion at other upper extremity joints.
Upper extremity circumferences were right 25cm, left 24.5cm.
Reflexes in the upper extremities were present with both triceps reflexes difficult to elicit. No sensory deficit was detected.
No abnormality of the lumbar spine or pelvis was detected.
There were no imaging studies brought to the examination.
Summary of relevant documentation
The documents listed in [51] above.
DIAGNOSIS AND CAUSATION
The Panel is satisfied that Mrs Ennis sustained a soft tissue injury of the cervical spine in the motor accident, which can be termed a whiplash associated disorder and an aggravation of underlying early degenerative change at C4/5 and C5/6. Mrs Ennis has significant ongoing symptoms. There are limitations in the cervical spine and right upper extremity, including the right shoulder.
The examination suggests that there are non-verifiable radicular complaints present in the right upper extremity. No evidence of radiculopathy, as defined in the Guidelines, is present currently or at any time after the motor accident.
In respect of the MRI scan dated 18 May 2022, the imaging appearances showing degenerative changes in the cervical spine are common in asymptomatic people of Mrs Ennis’ age. There is not sufficient information to conclude medically that additional imaging “abnormalities”, specifically the reported “small disc protrusions”, could reasonably be attributable to the motor accident. Thus, it is concluded that there have not been specific intervertebral disc injuries sustained in the motor accident.
The Panel is satisfied that, based on the available information, Mrs Ennis sustained an injury to the right shoulder in the motor accident. There is no evidence based on the written information, imaging studies or the clinical assessment that establishes otherwise.
The right sided shoulder and right arm symptoms are not documented as injuries in the application. There are surprisingly limited general practitioner records. Based on the information from the re-examination, the right upper extremity problems are related to the motor accident but meet the threshold injury definition. There was no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments or cartilage.
The Panel is satisfied that Mrs Ennis sustained a soft tissue injury of the left shoulder in the motor accident, which has since resolved. No abnormality of the left shoulder was detected on clinical examination. There was no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments or cartilage.
The Panel is satisfied that Mrs Ennis sustained a soft tissue injury of the lumbar spine in the motor accident, which has since resolved. No abnormality of the lumbar spine was detected on clinical examination. No evidence of radiculopathy, as defined in the Guidelines, is present currently or at any time after the motor accident.
The Panel is satisfied that Mrs Ennis sustained a soft tissue injury of the pelvis in the motor accident, which has since resolved. No abnormality of the pelvis was detected on clinical examination. There was no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments or cartilage.
FINDINGS
The Panel adopts the re-examination findings and conclusions of Medical Assessor Cameron based on his examination and specific findings pertaining to diagnosis and adds the following further brief reasons and findings.
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[19] and Insurance Australia Ltd v Marsh.[20]
[19] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[20] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
Whilst Medical Assessor Cameron examined and assessed Mrs Ennis’ right shoulder, it was not included in the Commission’s referral for assessment to Medical Assessor Home. No steps were taken to refer the matter back to Medical Assessor Home under Rule 112 of the PIC Rules and Procedural Direction PIC6 to correct any alleged incomplete certificate. Accordingly, the Panel has not included the right shoulder in its certificate.
The Panel finds that, as a result of the motor accident, Mrs Ennis suffered a soft tissue injury to the cervical spine and an aggravation of underlying early degenerative change at C4/5 and C5/6; a soft tissue injury of the lumbar spine, which has since resolved; a soft tissue injury of the left shoulder, which has since resolved; and a soft tissue injury of the pelvis, which has since resolved. These conditions are all threshold injuries for the purposes of the MAI Act.
CONCLUSION
The certificate of Medical Assessor Home dated 18 October 2022 is confirmed.
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