Fajloun v Allianz Australia Insurance Limited
[2023] NSWPICMP 534
•24 October 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Fajloun v Allianz Australia Insurance Limited [2023] NSWPICMP 534 |
| CLAIMANT: | Bassim Fajloun |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Mohammed Assem |
| MEDICAL ASSESSOR: | Tania Rogers |
| DATE OF DECISION: | 24 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury dispute and review of medical assessment under section 7.26; claimant claimed injuries to neck, both shoulders and both hips in a rear end collision; Medical Assessor (MA) Wijetunga found all injuries were threshold injuries; parties agreed that the only injuries to be assessed were the claimant’s left and right shoulder injuries; claimant was 57 at the time of the accident and a council worker; ultrasound after the accident showed tears to the claimant’s soft tissues in both shoulders (including a SLAP tear in the right); no tears found on MRI in left shoulder; two labral tears to labrum found on MRI of right shoulder; insurer alleged tears were degenerative not traumatic; Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance an Briggs v IAG Limited t/as NRMA Insurance cited; Held – MRI preferred over ultrasound; mechanism of accident could have caused tears to the labrum; accident did cause tears because no shoulder complaints in GP notes before accident, consistent complaints after accident, no subsequent injury; labrum is a fibrocartilaginous structure; tear of labrum is a “partial rupture of tendons, ligaments, menisci or cartilage” within the meaning of section 1.6(2); certificate of MA Wijetunga revoked; |
| DETERMINATIONS MADE: | REPLACEMENT CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Wijetunga dated 26 October 2022. 2. Certifies that the claimant’s right shoulder injury caused by the motor accident of A statement setting out the Panel’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Bassim Fajloun was involved in a rear end motor accident collision at an intersection in Guildford on 11 March 2020.
The claimant says he injured his neck, both shoulders and both hips in the accident and made a claim for statutory benefits against Allianz, the third-party insurer of the vehicle that ran into his car.
A medical dispute about whether any of the claimant’s injuries were minor injuries (now known as threshold injuries) arose in the claim and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 26 October 2022, Medical Assessor Wijetunga determined that none of
Mr Fajloun’s injuries fell outside the definition of minor (now threshold) injury. The claimant then lodged this application with the Commission seeking a review of the Medical Assessor’s decision.
On 19 December 2022, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 14 February 2023 the President convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
General
Mr Fajloun’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.
The Motor Accidents Injuries Amendment Act 2022 provided for a number of adjustments to the scheme of statutory benefits as follows:
(a) the payment of statutory benefits on a not at fault or no-fault basis has been extended from 26 weeks to 52 weeks;
(b) section 3.28(3) has been repealed which means no benefits at all are payable after 52 weeks (if injuries are threshold injuries or if the claimant is wholly or mostly at fault), and
(c) the terminology of “minor” injuries in ss 1.6, 3.11 and 3.28 has been changed to “threshold” injuries.
The amendments in respect of (a) and (b) above only apply to a motor accident occurring after 1 April 2023[1] however the change in terminology applies to all claims regardless of when the accident took place. To avoid confusion the terminology of “threshold” injury has been adopted in these reasons.
[1] See Schedule 4, Part 7, MAI Act.
Threshold injury
A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”. Section 1.6(2) of the MAI 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” (emphasis added).
In summary, if a person injured in a car accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding part clause of s 1.6(2) (the part in italics) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28.
Dispute resolution
If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[2]
[2] Schedule 2, clause 2(e), MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Wijetunga’s, further medical assessments and the Review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Wijetunga examined the claimant on 20 October 2022 and issued her certificate on 26 October 2022. She confirms at [2] that she was asked to assess injuries to the:
(a) cervical spine;
(b) left and right shoulders, and
(c) both hips.
Mr Fajloun was 57 at the time of the accident and is now 61 years of age. At the time of the accident was working for the local council. The claimant disclosed previous knee and shoulder problems and diabetes.
The claimant gave a history of a significant rear end force. He said his vehicle was pushed 10m ahead, he lost consciousness and his seat had broken. He says his back tyre was split in half and his car was written off.
The claimant said he saw his general practitioner (GP) the day after the accident, has had 10 sessions of physiotherapy and saw a specialist.
The claimant said his neck pain was on both sides and extended into the back of the shoulders with numbness. He also had hip pain.
Mr Fajloun reported constant neck pain, intermittent pain in both shoulders and pain in the outer lumbar area near the iliac crest. He was taking pain killers but could not remember the name of them.
On examination of the neck there was no muscle spasm or guarding, he had full range of flexion and extension movements but a symmetrically reduced rate of rotation and lateral flexion. He had normal tone and muscle strength, symmetrical reflexes and did not describe any area of altered sensibility.
On examination of the lower back there was also no muscle spasm or guarding and he demonstrated normal movements of the spine. He could straight leg raise to
80 degrees and sciatic stretch test is negative. Neurologically the lower limbs were normal.
The claimant had a full range of shoulder movements with pain at the extreme end of right shoulder abduction.
Medical Assessor Wijetunga said that radiological scanning did not show signs of acute injury and that there were previous episodes of back pain, carpal tunnel pain and hip pain in the available GP records.
A CT scan of the neck showed osteophytes compressing the C6 nerve root. Ultrasound of the right shoulder on 18 March 2020 showed partial surface tears and thickening of the bursa.
CT scans of the lumbosacral spine showed degenerative changes.
Medical Assessor Wijetunga accepted the accident was a major one because the vehicle moved forward 10m and the claimant’s seat was broken. She said the mechanism of accident was sufficient to injure his neck, both shoulders and lower back. She was not satisfied there was a discrete injury to the hip but a lower back problem with pain referred into the hip.
She diagnosed whiplash associated disorder. She was not of the view that the shoulder tears shown in the scans were traumatic. She therefore found all injuries were minor.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant takes issue with the assessment of the left and right shoulder injuries only. The claimant’s submissions do not take issue with the lower back, hip or neck assessment.
The claimant notes the Medical Assessor described the accident as a major collision and said this could have caused injury to the neck, shoulders and lower back.
The claimant has complained of pain in the shoulder specifically pain in the area of the shoulder where the tear would be.
The claimant says the Medical Assessor has not explained sufficiently why the claimant’s superior labral tear from anterior to posterior (SLAP) tear was not caused by the accident.
Insurer’s submissions
The insurer says the Medical Assessor has explained her reasons and considered all the evidence including:
(a) a previous right shoulder injury;
(b) no airbags deployed, no police or ambulance attended;
(c) the claimant took only a day off work;
(d) the claimant complained of intermittent shoulder pain;
(e) the claimant had a normal range of motion in both shoulders;
(f) the claimant exacerbated his shoulder pain on 17 June 2020;
(g) Dr Michael Griffiths was of the view the likelihood of shoulder injuries was less likely due to the design of the seat;
(h) some of the shoulder pain is due to the whiplash of the neck;
(i) the area of the pain was not over the acromio-clavicular (AC) joint or greater tuberosity;
(j) because there is tendinosis in both shoulders which is a degenerative change, the tears in the right shoulder are most probably constitutional;
(k) there was no direct trauma to the shoulders;
(l) both shoulders present of similar intensity, and
(m) partial thickness tears are common findings found in this age group.
The insurer says there is no reasonable cause to suspect an error or complain about the reasons.
Procedural matters
The Panel met on 25 May 2023 and reported to the parties on the same day.
The Panel confirmed receipt of the bundles and determined that there would be a medical examination and advised the parties of the details of that examination.
The Panel noted that Medical Assessor Wijetunga was asked to assess injuries to the cervical spine, left and right shoulders and both hips. The Panel observed that the submissions lodged by the parties raised issues only with the shoulder injuries. The Panel advised the parties that subject to any further submissions, the Panel did not intend to consider the injuries to the claimant’s cervical spine and hips and would focus on the issue of the left and right shoulders.
The Panel summarised the issues for the Panel to determine as:
(a) is there evidence of “… a complete or partial rupture of tendons, ligaments, menisci or cartilage” in either of the claimant’s shoulders, and
(b) and if so, was that complete or partial rupture caused by the accident.
The Panel received no further submissions from either party. On 21 August 2023, the Panel caused a message to be sent to the parties confirming that the Panel was only considering the claimant’s left and right shoulders and that the claimant did not dispute that the injuries to his neck, back and hip were threshold injuries and need not be assessed. No response was received to that message.
REVIEW OF THE EVIDENCE
On 17 February 2023, the Panel issued directions to the parties for bundles of documents. The claimant provided a bundle of documents (identified as AD1 in the Commission’s electronic file) comprising 245 pages and the insurer has provided a bundle of documents (identified in the electronic file as AD2) comprising 219 pages.
Claim form and claim documents
The claimant’s application for personal injury benefits was dated 11 August 2020.[4] He denies making any previous claims for injuries in a car accident. He describes the rear end collision and says, “my car was pushed forwards and my seat broke from the railings”. He lists his injuries as:
(a) concussive head injury;
(b) neck injury including referred injuries to both shoulders and arms;
(c) injuries to both shoulders including partial thickness articular surface tears of the right subscapularis and anterior supraspinatus in the right shoulder and left anterior supraspinatus tendon, and
(d) injuries to both hips and referred injuries to both legs.
[4] Page 16 of AD1.
Mr Fajloun says he did not receive treatment at hospital and had been off work for five days in total.
The police report[5] was a late report (29 July 2020) said to have been made at the request of the claimant’s solicitors and contains little additional information. The report suggests there was no damage to the insured vehicle but damage to the back boot, bumper and left wheel of the claimant’s vehicle.
[5] Page 23 of AD1.
The claimant has provided photographs of his car[6] showing substantial rear end deformation damage including to the boot and back bumper. There was also a tow bar affixed to the rear of his vehicle.
Treating medical records and reports
[6] Pages 28 to 34 of AD1.
GP – Greenoaks Medical Centre
The claimant’s records[7] commence in May 2011 with attendances for diet and smoking advice, colds and flu, high blood pressure, headaches and similar issues.
[7] Page 105 AD1.
Mr Fajloun had a lacerated left thumb and in June 2013 he was to have surgery.
In November 2013 he was diagnosed with diabetes and there have been several attendances about this. He appears to have been in the care of an endocrinologist and his diabetes appears to be not well controlled with fluctuating and high blood sugar levels from time to time.
On 23 December 2013 the claimant attended for “severe lower back pains, pains sharp radiating down his legs associated with numbness”. The pain was said to be unrelieved by Panadeine Forte (not prescribed at that practice), Nurofen and resting. He was prescribed Lyrica.
On 12 May 2014 he attended having fallen off a stepladder on Saturday and landed on the kitchen bench. The record says, “pain is worse” and this might be chest pain as he was tender over the right rib cage. He had an ultrasound of his ribs which was normal. The claimant reattended on 30 May 2014 and 11 June 2014 for continued chest pain.
On 9 October 2014 there is an entry about “prev carpal tunnel syndrome felt it yesterday very painful overnight happened before”. On examination, Mr Fajloun tested positive for carpal tunnel syndrome.
On 20 April 2015 there was a reference to being treated for urinary tract issues by another GP for “similar symptoms”. On 22 May 2015 the notes suggest he was seen by a specialist about this in 1996.
There were several attendances for depression in late 2015 and on 14 November 2015 the claimant was said to be having difficulty walking due to hip pains and he was assessed with right trochanteric bursitis and given the option of a cortisone injection.
There are many attendances for diabetes and cardiac management and vertigo. In August 2018 his control of his diabetes was worsening.
Mr Fajloun attended his GP on 12 March 2020 saying he had been in an accident, his seat broke, and he lost consciousness for about 15 seconds. He complained of severe headache, shoulder pain, neck pain, “shrug pain” and hand numbness. He was referred for an MRI of the cervical spine and CT of his brain and prescribed Panadeine Forte and Naproxen. There is no mention of lower back pain.
On 16 March 2020 he reattended with “significant neuropathic symptoms including weakness, numbness, electric shooting pain down the arms and severe headache”.
On 21 March 2020 Mr Fajloun complained of bilateral upper limb pain, persisting shoulder pain and lower back pain. Similar complaints were made on 26 March 2020 and again on 14 April 2020. There were several attendances thereafter for usual non-accident-related matters.
On 17 June 2020 the claimant attended having sustained an exacerbation of shoulder pain that morning. The claimant was given a medical certificate as he was unable to work.
On 4 August 2020 the claimant attended with the police event number for the purposes of obtaining a medical certificate for the claim form. He was experiencing “bilateral hip pain, back pain, bilateral shoulder pain, upper limbs to neck, pain, paraesthesia worsening lately [especially] shoulder”.
On 7 September 2020 he was experiencing chronic pain with ongoing neck and shoulder pain.
The claimant was referred to Dr McKechnie, neurosurgeon who wrote to Dr Youssef after seeing the claimant on 17 November 2020.[8] He had a history from the claimant of neck pain radiating across both shoulders with intermittent numbness in the hands and stiffness. There had been lower back pain radiating across the hips, but he did not complain of symptoms in those areas. Dr McKechnie reviewed the MRI and advised physiotherapy at first and a further review.
[8] Page 80 of AD1.
Nothing had changed by 25 February 2021[9] and Dr McKechnie reported to Dr Youssef that the claimant was reluctant to trial cortisone injections and surgery was suggested if conservative measures failed.
[9] Page 81 of AD1.
The first allied health recovery request (AHRR) for physiotherapy was dated
30 December 2020 and was for the neck (right more so than left) with radiating right arm pain and headaches and also for a separate right shoulder pain.[10] The second AHRR is dated 23 February 2021 and is in very similar terms.[11]
[10] Page 82 of AD1.
[11] Page 87 of AD1.
The claimant was then referred to Dr Chan, orthopaedic surgeon and Dr Chan wrote a letter to Dr Youssef dated 22 February 2021.[12] Mr Fajloun complained of bilateral shoulder pain, neck pain and bilateral hip pain. The claimant complained of shoulder pain on both sides radiating to his hands with numbness especially at night. He had no pain at rest.
[12] Page 92 of AD1.
On examination the claimant had a full range of motion in the shoulders. There was tenderness over the acromioclavicular joint and in the bicipital groove. Power was to grade four (out of five). The claimant tested positive for carpal tunnel syndrome.
Dr Chan sent the claimant for MRI and X-rays of his shoulder, referral to a hip surgeon and wanted to review the claimant after the steroid injection in his neck. There is no further report from Dr Chan.
Radiology
The claimant had a CT scan of his brain which was reported on 12 March 2020 as showing no fracture or haemorrhage.[13] An MRI of the cervical spine of the same date showed degenerative changes at theC5/6 level with compression of both exiting C6 nerve roots.[14]
[13] Page 94 of AD1.
[14] Page 95 of AD1.
On 18 March 2020 the claimant had a lumbar spine CT scan showing degenerative changes and disc bulges with some foraminal stenosis. Also on that day, and contained within the same report,[15] are the results of the claimant’s bilateral shoulder ultrasound which revealed:
(a) degenerative changes within both AC joints;
(b) subacromial bursitis on both sides;
(c) supraspinatus tendinosis on both sides;
(d) partial thickness tears within the supraspinatus tendons on both sides, and
(e) subscapularis tendinosis on the right side and a partial thickness tear of the right subscapularis.
[15] Page 97 of AD1.
On 23 March 2020 the claimant had an ultrasound of his right hip[16] which did not reveal any significant problems.
[16] Page 99 of AD1.
X-rays of both shoulders were done on 21 April 2021 showing AC joint arthropathy with osteophytic lipping on both sides.
An MRI of the left shoulder also on 21 April 2021[17] confirmed the presence of left shoulder arthropathy with synovitis and articular surface oedema, some mild subacromial and subdeltoid inflammation of the bursa, tendinosis of the subscapularis and supraspinatus tendinosis but no “high-grade” cuff tear and minimal adhesive capsulitis.
[17] Page 101 of AD1.
The right shoulder MRI of the same date showed:
(a) a SLAP tear involving the biceps anchor with the radiologist commenting, “I question whether there may in fact be an anterior intra-articular paralabral cyst”;
(b) bony irregularity with notching of the superior glenoid at the level of the tear;
(c) a posterior inferior labral tear “which may be partially scarred down”;
(d) AC joint arthropathy, and
(e) mild subacromial and subdeltoid bursal inflammation.
Expert reports
Dr Peter Giblin - claimant
Dr Peter Giblin, orthopaedic surgeon provided a report dated 1 November 2021 to the claimant’s solicitor.[18] The claimant gave a consistent history of the accident although he stated the insured was driving a vehicle with a bull bar and the impact speed was
60 kmph. Police and ambulance did not attend, and the insured drove the claimant home.
[18] Page 71 of AD1.
Mr Fajloun reported he saw his GP the next day with neck and shoulder pain, numbness in his hands, discomfort in his right ankle and severe headaches. The claimant reported having had a day off work. He had physiotherapy and was prescribed medication including Panadeine Forte. Mr Fajloun told Dr Giblin that in August 2020 he went to his GP complaining of hip and back pain as well as neck and shoulder symptoms.
The claimant was still working as a groundsperson for the local council and was not having treatment but took Panadol and saw his GP every couple of weeks.
The claimant’s main complaint was neck pain with stiffness and headaches and shoulder discomfort with some hip pain.
Mr Fajloun gave the doctor a history of his medical conditions and denied any accidents or injuries.
In his cervical spine there were absent deep tendon reflexes in the biceps, triceps and supinator jerks but muscle strength was preserved. In the lumbar spine there were also absent reflexes.
In terms of the upper limbs:
(a) right shoulder - there was no sign of adhesive capsulitis and a small reduction of motion (totalling 2% WPI) and there was a weak positive rotator cuff impingement test, and
(b) left shoulder – there was identical restriction of motion in the left shoulder and although there was no adhesive capsulitis, there was a positive compression test for rotator cuff impingement.
There were no neurological findings in the lower limbs but absent reflexes.
Dr Giblin noted the radiology and diagnosed soft tissue injuries to the neck, shoulders, low back and hips. He offered a guarded prognosis and said the claimant remained fit to work but with restrictions.
In a separate report dated 23 November 2021[19] Dr Giblin expressed the opinion that the MRI scan of the right shoulder on 19 April 2021 reported a SLAP tear which he said is a non-minor injury. He expressed the view the cervical spine injury was minor on the basis there was no radiculopathy.
[19] Page 78 of AD1.
Dr Michael Griffiths - insurer
The insurer has not retained a medico-legal expert to answer the report of Dr Giblin but relies on a biomechanical report dated 11 March 2021 from Dr Michael Griffiths, a road safety expert. At section 3 of his report, Dr Griffiths lists the documents he has considered and these include the claim form, police report, photographs, medical records which the Panel has seen. Dr Griffiths has also considered a factual investigation report and statement from the insured driver which the Panel has not seen.
Dr Griffiths comments on a photograph of the insured’s car and the driver’s statement which firstly does not indicate there was a bull bar present on the vehicle (contrary to the history recorded by Dr Giblin) but secondly it does suggest there was damage to the front of the insured’s vehicle in particular a missing section of the front bumper bar (contrary to the police report).
Dr Griffiths suggests the change in velocity of the insured vehicle was 15 to 20 kmph. He notes that the rear of motor vehicles is not as strong as the front (which has to protect the engine of the car and so on which explains why there was less damage to the insured vehicle and more damage to the claimant’s vehicle. Dr Griffith then considers the research and concludes that the thighs, buttocks, back, shoulders and head have support from modern car seats.
He says there is no suggestion of any impact to Mr Fajloun’s head and if there was, it would be expected to be to the ear or the side of the head and he would expect a record in the GP’s notes of bruising or abrasions.
Dr Griffiths expresses the view that it would have been possible for the claimant to have sustained an aggravation injury to pre-existing degenerative changes.
Dr Griffiths notes there are no records of pre-existing shoulder pathology and a record of shoulder complaints the day after the accident. He says:
“Noting that these changes were observed a week after the event, and that they are of a chornic degenerative nature, rather than acute, then they are not consistent with been [sic] an outcome of this event.”
Dr Griffiths also concedes the loads applied to the claimant’s body in this accident could have changed an asymptomatic pre-existing shoulder pathology into a symptomatic condition.
In terms of the lower back, Dr Griffiths notes the pre-existing complaints and the pattern of complaints after the accident. He says, “there is no possible injury mechanism for damage to ligaments or bony surfaces.” He has a similar opinion in respect of the hips.
RE-EXAMINATION FINDINGS
Mr Fajloun was re-examined by Medical Assessor Rogers on 14 September 2023.
History provided by the claimant
Social history
Mr Fajloun does not smoke or drink alcohol. He is divorced from his wife and has four adult children. Currently, he lives alone.
Occupational history
Mr Fajloun stated that he has worked in numerous occupations including:
(a) as a Telecom second class machinist making above ground posts in 1983. This required Mr Fajloun to fasten panels on brackets;
(b) at ACI in glass manufacturing from 1973 to 1990;
(c) as a process worker in plastic factories at Redfern and Kingsgrove, and
(d) as a process worker doing injection moulding at Sunbeam in 1997.
Mr Fajloun said that he started work for Canterbury Bankstown Council 21 years ago as a “sideliner” mowing nature strips. Subsequently he became a council groundsperson. As a groundsperson he helped mark lines for soccer fields with a machine, operated a whipper snipper, pruned small trees, sprayed weedkiller and used a ride on mower. While this involves physical labour, the nature of the work is not hard or strenuous work.
Mr Fajloun has recently been redeployed as crew leader for the sideliners after a meeting with the General Manager. Currently he mows nature strips with an offsider and works on a full-time basis. He has had some time off after the accident due to flare ups of his injuries (and in particular his shoulder pain) but has otherwise continued to work.
Medical history
Mr Fajloun reports the following:
(a) a hernia operation;
(b) he injured his right shoulder about 16 years ago and had some treatment taking two weeks sick leave before returning to his usual occupation;
(c) in 1986 when working at AGI he had surgery to remove a ganglion in the right wrist, and
(d) he underwent right carpal tunnel surgery in 1986.
Mr Fajloun has type 2 diabetes mellitus, hypertension and high cholesterol.
History of the car accident
Mr Fajloun stated that he was driving a 2005 Ford Falcon along Guildford Road. After crossing the lights on Woodville Road, he was waiting to turn right when a four-wheel drive hit the back of his car. He said his seat was “broken”. Mr Fajloun stated that the car was pushed forward 10m. He said he hit the steering wheel on impact then was pushed back against the seat, which broke. He stated that he was pushed / slid slightly under the dash while he continued holding onto the steering wheel with some force. He stated that he lost consciousness momentarily and then recovered, self-extricated and a bystander fetched a chair for him to sit down.
The car was later towed and eventually written off.
The driver of the other vehicle drove Mr Fajloun home.
History of symptoms and treatment given by the claimant
When Mr Fajloun arrived home he said he was experiencing pain in the hips, shoulders and neck.
He reported the accident to the police the following day but claimed the police were not interested. He attended the police station at a later date at the request of his solicitors.
Mr Fajloun reported that he has attended Dr Youssef at Greenacre Medical Centre for many years. He could not recall consulting other GPs. He was referred to specialist doctors with regards to his injuries in the subject motor accident, including Dr Matthew Giblin, Dr Simon McKechnie and Dr John Trantalis. The Panel notes it does not have any records or reports from Dr Trantalis.
CURRENT COMPLAINTS
Current symptoms
Mr Fajloun reports the following symptoms:
(a) constant neck pain which can radiate over his shoulders and down his arms and hands;
(b) separate and constant shoulder pain (the right worse than the left), and
(c) clicking sensation over the region of the iliac crests in the hips.
Mr Fajloun reported no subsequent accidents or injuries. He has had flare ups recorded in Dr Youssef’s notes but these are flare ups of the accident related symptoms which have continued.
Current medications
With regards to pain medications, Mr Fajloun reported that he took Panadeine Forte early on however this caused him constipation, so he ceased. He has been purchasing marijuana on the street and smoking it before bed to reduce his pain.
Mr Fajloun also takes the following medications:
(a) Zoltan for heartburn;
(b) Diabex for diabetes;
(c) Janumet for diabetes;
(d) medication for cholesterol, and
(e) Noten for hypertension.
IMAGING BROUGHT TO ASSESSMENT
The following scans and imaging studies were reviewed and considered:
(a) MRI Cervical Spine 12 March 2020;
(b) CT Brain 12 March 2020;
(c) CT Lumbar Spine, ultrasound right and left shoulders 18 March 2020;
(d) Ultrasound right and left hips 23 March 2020, and
(e) X-ray right and left shoulders, MRI right and left shoulder 21 April 2021.
CLINICAL EXAMINATION
Mr Fajloun attended the re-examination on his own and with no assistive devices. His gait was normal with no abnormality of velocity, stability, posture or stance. He walked on toes and heels without complaint of pain.
Upper limbs
Mr Fajloun’s upper arm circumference measured 29 cm in the left and 30 cm in the right at a point 12 cm proximal to the olecranon was. This difference is not clinically significant and reflects the claimant’s right hand dominance.
Forearm circumference measured 27 cm in the right and 27 cm in the left arm at a point 10 cm distal to the olecranon.
There was no wasting or asymmetry of shoulder contour. Range of motion of the shoulders was assessed with a goniometer and the results are as follows:
Shoulder Movement
Active ROM right
Active ROM left
Normal
Flexion
90°
90°
180°
Extension
50°
50°
50°
Abduction
180°
170°
170°
Adduction
40°
40°
40°
Internal Rotation
80°
80°
80°
External Rotation
70°
70°
60°
CONSIDERATION OF THE ISSUES
What shoulder injuries does the claimant have?
In the light of the claimant’s medico-legal evidence in particular, the parties have sensibly narrowed the issues to be determined by the Panel. The claimant has conceded that all injuries other than his shoulder injuries are threshold injuries. The Panel is therefore considering only the claimant’s left and right shoulder injuries.
The medical assessment matter referred to a Panel under schedule 2(2)(e) of the MAI Act is about “whether the [left or right shoulder] injury caused by the motor accident is a threshold injury”. The Panel must therefore:
(a) identify the particular shoulder injuries caused by the motor accident, and
(b) determine whether each of those injuries is a threshold injury.
When the definition of threshold injury in s 1.6(2) of the MAI Act is applied to
Mr Fajloun’s shoulder injuries, if he has a complete or partial rupture of tendons, ligaments, menisci or cartilage in either his left or his right shoulder then he has a non-threshold injury in that shoulder, subject of course to the issue of causation.The Panel notes the ultrasound of March 2020 which suggested the claimant had partial thickness tears of the supraspinatus tendons in both his left and right shoulder and a partial thickness tear of the right subscapularis tendon.
The Panel also notes the MRIs of both shoulders from April 2021. This showed no tears in the left shoulder but in the right, a possible SLAP tear or paralabral cyst and a posterior inferior labral tear.
It is the clinical judgment of the medical members of the Panel that an MRI is a more accurate diagnostic tool for labral tears than an ultrasound. It is therefore the Panel’s view that the claimant’s MRI scan results of April 2021 should be preferred over the ultrasound results from March 2020.
The claimant’s left shoulder
On the basis of the left shoulder MRI viewed by Medical Assessor Rogers and reported on 21 April 2021, it is the clinical judgment of the medical members of the Panel that there are no tears of tissue in the left shoulder and therefore no complete or partial rupture of ligaments, tendons, menisci or cartilage in the left shoulder.
Because of this finding, the Panel does not intend to engage further with the issue of causation of the left shoulder injury. Any left shoulder accident-related injury is a soft tissue injury and therefore a threshold injury.
The claimant’s right shoulder
It is the clinical judgment of the medical members of the Panel that the claimant’s right shoulder MRI viewed by Medical Assessor Rogers and reported on 21 April 2021 reveals a SLAP tear as well as a further labral tear.
The SLAP tear is a partial rupture of the glenoid labrum (superior from anterior to posterior) and the posterior inferior labral tear is also a partial rupture of another part of the labrum.
As the labrum is a fibrocartilaginous structure, it is the Panel’s view that either of these tears would be a partial rupture of a soft tissue within the definition of s 1.6(2) and therefore either would be a non-threshold injury.
The real issue in Mr Fajloun’s case is whether the partial ruptures of the right shoulder labral tissue were caused by the accident.
Causation of injuries - general
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[20]. Justice Walton set aside the decision of a Medical Review Panel in a “minor injury” dispute involving a question of causation in respect of an amputated to. At [40], his Honour said:
“The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
[20] [2021] NSWSC 804 (Kinchela).
The relevant Guidelines referred to by Justice Walton are the Motor Accident Guidelines, a single volume of 9 Parts governing all aspects of the motor accident scheme including premium determination, treatment and care, permanent impairment and threshold injury.
While Part 5 of the Guidelines addresses the assessment of whether an injury is a threshold injury, there is no definition of, or guidance for the assessment of “causation” in determining what injury (threshold or non-threshold) was caused by the accident in that part of the Guidelines. There are provisions concerning causation of injury in Part 6 of the Guidelines[21] which is that part concerned with the assessment of permanent impairment.
[21] Clauses 6.5-6.7.
Justice Wright in Briggs v IAG Limited t/as NRMA Insurance[22] said at [141] in a judicial review application concerning a medical review of a “minor” injury assessment:
“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.”
[22] [2022] NSWSC 372 (Briggs (no 2)).
The test therefore to be applied as set out in Part 6 of the Guidelines and the questions to be answered by this Panel is whether Mr Fajloun’s right shoulder injuries were “caused by the accident” and the approach to that should be a consideration of a medical decision and a non-medical informed judgment as follows:
(a) could the accident have caused either or both of the labral tears in the right shoulder (medical determination), and
(b) did the accident in fact cause either or both of the labral tears in the right shoulder (non-medical determination).
Could the accident have caused either or both of the right shoulder tears?
SLAP tears and labral tears generally can be traumatic or degenerative.
The insurer argued in its submissions (paragraph 8(c)) that the claimant did not sustain a direct blow or trauma to the shoulders. The insurer suggests the accident was not severe, “noting the airbags were not deployed”.
Dr Griffiths said that the photographs show the claimant’s seat was semi-reclined which is consistent with some rearward deflection of the seat frame, although the seat had not actually “collapsed” in that there was no separation of structural component. He concluded that that the velocity change was 15 – 20 kmph which the Panel notes is more than the “low speed consumer crash tests conducted at 10 – 15 kmph”.
Dr Griffiths also stated that the loads applied may have involved a mechanism of injury that could have rendered asymptomatic pre-existing degenerative pathology symptomatic.
The claimant was the driver of a motor car with the seat belt over his right shoulder. He gave Medical Assessor Rogers a history of his car moving 10m forwards after impact and that his body hit the steering wheel. He also told Medical Assessor Rogers that he was hanging onto the steering wheel with some force as his seat back collapsed and his body slid forwards under the dash. It is the clinical judgment of the medical members of the Panel that the motor accident involved force and that this mechanism of injury (the tight gripping of the steering wheel while he moved backwards against the collapsing seat and slid down in the seat) could have caused either or both of the two tears in the claimant’s right shoulder.
Did the accident in fact cause either or both of the labral tears?
There is a past history given by Mr Fajloun to Medical Assessors Wijetunga and Rogers of a right shoulder injury (16 years earlier) however there is no documentation in the GP notes about it (the notes only go back to 2011). The claimant said he had two weeks off work and then returned to work with no further symptoms in his right shoulder.
In the GP records that the Panel has, there is no record of any shoulder complaints in the nearly 10 years before the accident.
The GP records note the claimant has had diabetes for a number of years and the records suggest it has not been well controlled. The medical members of the Panel note that shoulder problems, in particular adhesive capsulitis, are common in diabetics. In Mr Fajloun’s case, the April 2021 MRIs found no significant features of adhesive capsulitis in the right shoulder albeit possibly some mild capsulitis in the left.
The claimant has had several jobs but has for the last 21 years worked in a physical job as a council groundsperson. The work that he does was described to Medical Assessor Rogers. The Panel notes while it was physical work, it is not hard manual labour or particularly strenuous. Mr Fajloun is currently 61 years of age and was, at the time of the accident, 57 years of age. In addition to the tears, the X-rays and scans reveal degenerative changes in both the claimant’s shoulders. It is the clinical judgment of the medical members of the Panel that because of his age and his occupational history Mr Fajloun would have had a right shoulder vulnerable to injury at the time of the accident.
The claimant attended his GP the day after the accident and reported shoulder pain. While he has also reported pain radiating from his neck to his shoulders and into his arms (see the reports of Dr McKechnie and Dr Chan), he has made complaints of specific or direct shoulder pain to his GP and the physiotherapist since the date of the accident.
While the GP records record worsening shoulder pain in June and August 2020 (which prompted the claimant to pursue this claim) Mr Fajloun says these were aggravations of the pain and injury sustained in the accident which have continued since the date of the accident.
When all of the medical evidence, the radiology and the history from the claimant given to Medical Assessor Rogers is considered, it is the clinical judgment of the Panel that the claimant partially tore his labrum in this accident or further tore an already partially torn labrum in this accident.
CONCLUSION
As the Panel is satisfied that Mr Fajloun tore or further tore his right shoulder labrum in the accident of 11 March 2020, and as the labrum is a fibrocartilaginous structure in the shoulder, it follows that Mr Fajloun has a “partial rupture of tendons, ligaments, menisci or cartilage” within the meaning of s 1.6(2) of the MAI Act.
Mr Fajloun’s right shoulder injury is therefore not a threshold injury for the purposes of the MAI Act.
As the Panel has come to a different conclusion to Medical Assessor Wijetunga, it follows that her certificate must be revoked, and a fresh certificate issued.
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