Falgunee v QBE Insurance (Australia) Limited

[2024] NSWPICMP 496

DETERMINATION OF REVIEW PANEL

CITATION:

Falgunee v QBE Insurance (Australia) Limited [2024] NSWPICMP 496

CLAIMANT:

Jescie Shobnam Falgunee

INSURER:

QBE Insurance (Australia) Limited

REVIEW PANEL

MEMBER:

Alexander Bolton

MEDICAL ASSESSOR:

Leslie Barnsley

MEDICAL ASSESSOR:

Mohammed Assem

DATE OF DECISION:

22 July 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury dispute; claimant injured in a high speed sideswipe impact; Medical Assessor found that all injuries are soft tissue injuries and not threshold injuries; Medical Review Panel considered the concerns raised by the claimant in her submissions that a lumbar CT scan showed changes that might be associated with radiculopathy, specifically the contact with the S1 nerve roots by the L5/S1 disc; Medical Review Panel did not consider that this changes the conclusion that no radiculopathy was present;  any pain in the legs was not in the distribution of the S1 nerve roots; normal neurological findings for the reflexes, muscles and sensation supplied of the S1 nerve roots; Medical Review Panel noted the directions of the Guidelines regarding imaging; Held – there were no signs of radiculopathy;  claimant had suffered threshold injuries to her cervical spine, lumbar spine and her left and right shoulders; Medical Assessment Certificate confirmed.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

DETERMINATION

1.     The Review Panel affirms the certificate and reasons of Medical Assessor McGrath dated 21 January 2024.

2.     The Review Panel finds that the following injuries caused by the motor accident:

(a)    spine – soft tissue Injury;

(b)    lumbar spine – soft tissue Injury, and

(c)    left and right shoulders – soft tissue Injury

are threshold injuries for the purposes of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

INTRODUCTION

1. Jescie Shobnam Falgunee (the claimant) has sought a review of a certificate and reasons of Medical Assessor McGrath (the Medical Assessor) dated 21 January 2024.

2. The Medical Assessor found that the following injuries caused by the motor accident:

   (a)    spine – soft tissue Injury;

   (b)    lumbar spine – soft tissue Injury, and

   (c)    left and right shoulders – soft tissue Injury

   were threshold injuries for the purposes of the Motor Accident Injuries Act 2017 (the Act)

3. There is a dispute between the claimant and the insurer about: whether the injury caused by the motor accident is a threshold injury under Schedule 2, s 2(e) of the Act.

4. The following injuries were referred by the Personal Injury Commission (the Commission) for assessment.

   (a)    cervical spine injury;

   (b)    lumbar spine injury, and

   (c)    left and right shoulders injury.

The accident

1. The claimant was involved in a motor vehicle accident on 10 August 2022 around 7.00pm. She was the front seat passenger in a vehicle driven by her husband. They were on the Hume Highway when they were side-swiped by the insured car on the right hand side.

2. There was a secondary collision when the car in which the claimant was travelling was pushed sideways striking another car with the impact being on the front left.

Bundles of documents

1. The parties have each presented their respective bundles of documents upon which they rely. The Review Panel have read all the documentation. If a particular document is not referred to by the Review Panel, this does not mean that the Review Panel or a Review Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.

2. The Review Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Review Panel is to come to its own conclusion and to take its own history.

Threshold injury

1. A threshold injury is defined in s 1.6 of the Act as a “soft tissue injury” and a “threshold psychological or psychiatric 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.”

2. In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(4) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will be a non-threshold injury.

3. Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).

4. Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Relevantly to the matters in issue in the claimant’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 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.”

5. Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:

   “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”.

6. Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.

Method of assessment

1. Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the Act. In respect of the medical assessment of whether an injury is a threshold injury or not, the Guidelines relevantly provide:

   “5.3   The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.

   5.5   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.”

Does the claimant have radiculopathy?

1. Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in threshold injury assessments.

2. In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in clause 5.6 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 ...

   (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.”

3. For the claimant’s injury to fall outside the definition of threshold injury in s 1.6, she would need to have two of the above signs. Pain is not one of the five signs of radiculopathy which might indicate an injury to a spinal nerve root.

Claimant’s submissions

1. The claimant submits that she was denied natural justice and procedural fairness as a result of the Medical Assessor’s failure to provide a consistent analysis and transparent reasoning in respect of her injuries to the cervical spine, lumbar spine, and both shoulders.

2. Regarding the claimant’s injuries to both shoulders the claimant submits the Medical Assessor failed to explain why he assessed the claimants shoulder injuries as threshold injuries and did not provide a transparent explanation for his reasoning.

3. The claimant also submitted that the Medical Assessor failed to address why the claimant continues to experience the constant pain to her shoulders after the subject accident.

4. Going to the claimant’s injury to her cervical spine, the claimant submits the Medical Assessor failed to assess the claimant in accordance with clause 5.9 of the Guidelines. The claimant says that the Medical Assessor failed and overlooked to conduct a proper assessment of the clinical symptoms reported by the claimant.

5. The claimant says that the Medical Assessor noted on page 4 of his assessment that the claimant “was asked to sketch out her pains onto a body diagram. She indicated that she had neck pain with bilateral shoulder girdle pains. She has unusual sensations into both arms.” The claimant says that similarly, the CT scan of the cervical spine from South West Radiology dated 18 August 2022 stated: “…there is possible contact of bilateral descending S1 nerve roots”

6. The claimant submits that the Medical Assessor also states on page 4 of his certificate dated 21 January 2024 that she did not have non verifiable radicular complaints. The claimant submits that the Medical Assessor failed to correctly take the CT scan of 18 August 2022 into consideration and failed to address why the claimant continues to experience the constant pain to her neck after the accident.

7. As to the claimant’s lumbar spine the claimant says that during the assessment, the claimant complained, as recorded by the Medical Assessor on page 4 of his reasons, that: "She also has pain towards the lower back with some radiation to the posterior leg aspect. She also finds that both knees have become achy since the accident.”

8. The claimant referred to the CT scan of the lumbar spine from South West Radiology dated 18 August 2022 which reported: “There is a posterior disc bulge with osteophytes at L5 S1 with mild bilateral facet joint arthropathy causing mild spinal canal stenosis with no significant neural exit foramina stenosis. There is possible contact of bilateral descending S1 nerve roots”. The claimant says that upon examination, the Medical Assessor noted the following on page 5 of his reasons: “Ms Falgunee had a normal range of lumbar spinal movements without any signs of dysmetria, muscle guarding or spasm. She did not have non verifiableradicular complaints”.

9. The claimant referred to clause 5.8 of the Guidelines and that for radiculopathy to be present, there must be present two or more of the following;

   (a)    loss of asymmetry of reflexes;

   (b)    positive sciatic nerve root tension signs;

   (c)    muscle atrophy and/or decreased limb circumference;

   (d)    muscle weakness that is anatomically localised to an appropriate nerve root distribution, or

   (e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

10. Having referred to clause 5.8 however, the claimant did not elaborate nor make any submissions about this. Rather, the claimant said that when referring to the comments made by the Medical Assessor during the claimant's examination of her neck, back and shoulders as well as the medical records. the Medical Assessor has failed to make a proper assessment, and has failed to provide a consistent analysis, and failed to provide a transparent reasoning as to why the claimants injury to her lumbar spine was assessed as being a threshold injury.

11. The claimant submits that it appears that the Medical Assessor has not made a proper assessment of the claimant in accordance with her current clinical symptoms along with the medical records. The claimant submits that the Medical Assessor did not consider radicular symptoms that are set out in Clause 5.8 of the Guidelines which is relevant for the claimant's neck, back and shoulder injuries.

12. The claimant says that during the assessment, she demonstrated signs of reduced range of movement some localising signs and tenderness to her neck, back and shoulders. The claimant says that as such, the Medical Assessor was incorrect in a material respect in assessing the injury to her neck, back and both shoulders as threshold injuries.

Insurers submissions

1. The Insurer submits that there has been no material error that might alter the Medical Assessor's decision, nor was there an error in the process the Medical Assessor undertook to determine whether or not the claimant sustained threshold injuries as a result of the subject accident.

Cervical spine

1. The insurer referred to the submission of the claimant that the Medical Assessor McGrath failed to assess the claimant’s cervical spine in accordance with clause 5.6 of the Guidelines. The insurer noted that clause 5.9 reads:

   “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.”

2. The insurer says that clause 6.138 of the Guidelines (in the same terms as clause 5.8(a-e) provides that for radiculopathy to be present, two or more of the following signs should be found:

   (a)     loss or asymmetry of reflexes;

   (b)     positive sciatic nerve root tension signs;

   (c)     muscle atrophy and/or decreased limb circumference;

   (d)     muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, or

   (e)     reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

3. The insurer says that additionally, it is stated that:

   “6.140 Note that complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings do not by themselves constitute radiculopathy. They are described as non-verifiable radicular complaints in the definitions of clinical findings…

   6.141global weakness of a limb related to pain or inhibition or other factors does not constitute weakness due to spinal nerve malfunction.”

4. The insurer referred to table 6.8 of the Guidelines which defines non-verifiable radicular complaints as:

   “Non-verifiable radicular complaints are symptoms (for example, shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root (for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes).”

5. The insurer says that although the claimant reported neck pain and an unusual sensation in both arms, clause 5.5 of the guidelines provide that:

   “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.”

6. The insurer noted that the Medical Assessor elicited the following from his clinical examination of the cervical spine:

   “Ms Falgunee has a complete and full range of neck movements without any signs of muscle spasm or guarding. She did not have non-verifiable radicular complaints.

   Neurological examination of the upper limbs was normal. That is, she had normal deep tendon reflexes, power and sensation. There were no signs of muscle atrophy. She did not have radiculopathy.”

7. The insurer noted that the Medical Assessor reviewed a CT of the cervical spine dated 18 August 2022 which revealed:

   “Mild multilevel degenerative change of the cervical and lumbar spine…there is possible contact of bilateral descending S1 nerve roots – correlate clinically.”

8. The insurer referred to the claimant alleging that the “Assessor failed to correctly take this CT scan into consideration”. The insurer submits that the claimant’s allegation is factually incorrect on the basis that:

   (a)    the S1 level refers to the sacral vertebrae, not the cervical vertebrae;

   (b)    even so, the CT report clearly states “possible contact” and “correlate clinically”, and

   (c)    an MRI of the cervical spine dated 22 October 2022 which was clearly highlighted and considered by the Medical Assessor in formulating his decision, revealed:

   “…The spinal cord is of normal signal and calibre throughout.

   There is no posterior disc herniation or central canal stenosis.

   The neural exit foramina remain adequate throughout…

   …No evidence of cervical spine bone or ligament injury.”

9. The insurer says that additionally, the Medical Assessor reviewed records from Minto Family Medical Centre which revealed:

   (a)    on 30 September 2022, 20 October 2022, 5 December 2022, 3 January 2023, 23  January 2023, 20 February 2023, and 19 March 2023, the claimant reported that her neck pain continued to improve.

   (b)    On 20 February 2023, Dr Karim Nahim recorded, “‘no c/u of neck pain this last [week]”.

10. The insurer submits that accordingly, based on the clinical evidence, and the clinical examination of the claimant, the Medical Assessor concluded that the claimant sustained threshold injuries to her cervical spine for the purposes of the Act.

Lumbar spine

1. The insurer refers to claimant’s submission that the Medical Assessor had failed to make a proper assessment, provide a consistent analysis, and provide a transparent reasoning about why the claimant’s lumbar spine injury was assessed as a threshold injury.

2. The insurer noted that as previously discussed, the assessment criteria for radiculopathy need to be met for a spinal injury to be assessed as a non-threshold injury. A diagnosis of radiculopathy must be based on a clinical assessment by a Medical Assessor.

3. The insurer noted that with respect to her lumbar spine, the claimant reported lower back pain with some radiation to the posterior of her legs, and that she found that both knees had become “achy”.

4. The insurer referred to the Medical Assessor eliciting the following from his clinical examination:

   “Ms Falgunee had a normal range of lumbar spinal movements without any signs of dysmetria, muscle guarding or spasm. She did not have non-verifiable radicular complaints.

   Neurological examination of the lower limbs was normal. That is, she had normal deep tendon reflexes, power and sensation. There were no signs of muscle atrophy.

   There were no dural tension signs and straight leg raising was normal. There were some localising signs with tenderness over the lumbar spine associated with acute skin roll tenderness. She was also tender to deep palpation in the right buttock region and palpation of the right sacroiliac joint was uncomfortable.”

1. The Medical Assessor referred to a CT of the lumbar spine dated 18 August 2022 which revealed:

   “There is mild posterior disc bulge with osteophytes at L5 S1 with mild bilateral facet joint arthropathy causing mild spinal canal stenosis with no significant neural exit foramina stenosis. There is possible contact of bilateral descending S1 nerve roots.”

2. The insurer noted the S1 level is a part of the sacral vertebrae. It is not a part of the lumbar vertebrae.

3. The insurer referred to the comment by the Medical Assessor about an examination on 21 August 2022 by Dr Nahim who reviewed the above CT scan and made the following notes:

   (a)    the claimant likely has old arthropathy which the accident likely aggravated.

   (b)    A clinical examination revealed:

   “Lumbar Spine - Nil [tenderness]. Nil wasting of muscles. Gait –normal Straight leg raise  Tripod Sign negative Neurologically intact with intact sensation, nil saddle anaesthesia. Equal power with foot and knee extension. Function - able to bend and [touch] toes/able to pick up things.”

4. The insurer noted that the Medical Assessor referred to the records of Minto Family Medical Centre which overall, revealed:

   (a)    The claimant has a significant history of chronic back pain, specifically, lumbar disc herniation, and

   (b)     Dr Nahim reported that the claimant continued to improve from any back pain.

5. The insurer noted that further, the Medical Assessor referred to a report by sports physician Dr Jomaa dated 1 December 2022 which stated:

   “On examination she can manage full neck range of motion but describes stiffness and discomfort throughout the entirety of range and was so at end ranges. She has full low back range of motion but similarly this is painful and stiff, particularly when laterally and forward flexing. There is no focal pain no radiculopathy and upper and lower limb neurology is normal.

   I suspect that Jescie has sustained a whiplash mechanism of injury. My impression is that she has a common pain picture in her neck and lower back which is most likely due to increased apprehension and a heightened pain response after the accident, rather than any focal underlying structural injury.”

6. The insurer submits that based on the clinical evidence, and the clinical examination of the claimant, the Medical Assessor concluded that the claimant sustained threshold injuries in her lumbar spine for the purpose of the Act.

7. As such, the insurer disagrees with the claimant’s allegation on the basis that the Medical Assessor has clearly:

   (a)    conducted a proper assessment to assess a threshold injury in accordance with the Guidelines;

   (b)    provided a consistent analysis that is contemporaneous with the available treating evidence, and

   (c)    provided a clear path of reasoning as to why he concluded that the Claimant sustained threshold injuries to her lumbar spine.

Bilateral shoulders

1. The insurer referred to the claimant submission that the Medical Assessor failed to explain why he assessed the claimant’s shoulder injuries as a threshold injuries and did not provide a transparent explanation for his reasoning.

2. The insurer referred to the claimant reporting neck pain with “bilateral shoulder girdle pains”. The insurer noted that in his clinical examination, the Medical Assessor obtained the following:

   “Ms Falgunee has a reduced range of active shoulder movement due to tension in the trapezius muscles of the neck and shoulder girdle. The passive range of motion in the shoulders was normal.

   The active range of motion of the shoulders was observed, measured with a goniometer and tabulated below. There was a symmetrical loss, through muscular upper shoulder blade tension.”

3. The insurer noted that the Medical Assessor referred to the clinical records from Minto Family Medical Centre which revealed that the last complaint of shoulder pain was made on 25 September 2022.

4. The insurer submits that correctly, based on the clinical evidence, and the clinical examination of the claimant, the Medical Assessor concluded that the claimant sustained threshold injuries in her bilateral shoulders for the purpose of the Act.

5. The Insurer submits that the claimant’s injuries are threshold injuries for the purpose of the Act.

Medical evidence

1. The Medical Assessor provided his certificate dated 21 January 2024.

2. On examination, he recorded:

   Cervical Spine

   “Ms Falgunee has a complete and full range of neck movements without any signs of muscle spasm or guarding. She did not have non-verifiable radicular complaints.

   Neurological examination of the upper limbs was normal. That is, she had normal deep tendon reflexes, power and sensation. There were no signs of muscle atrophy. She did not have radiculopathy.

   Lumbar Spine

   Ms Falgunee had a normal range of lumbar spinal movements without any signs of dysmetria, muscle guarding or spasm. She did not have non-verifiable radicular complaints.

   Neurological examination of the lower limbs was normal. That is, she had normal deep tendon reflexes, power and sensation. There were no signs of muscle atrophy. There were no dural tension signs and straight leg raising was normal. There were some localising signs with tenderness over the lumbar spine associated with acute skin roll tenderness. She was also tender to deep palpation in the right buttock region and palpation of the right sacroiliac joint was uncomfortable.

   Upper Extremity

   Ms Falgunee has a reduced range of active shoulder movement due to tension in the trapezius muscles of the neck and shoulder girdle. The passive range of motion in the shoulders was normal.

   The active range of motion of the shoulders was observed, measured with a goniometer and tabulated below. There was a symmetrical loss, through muscular upper shoulder blade tension.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	160°	160°
Extension	50°	50°
Adduction	40°	40°
Abduction	150°	150°
Internal Rotation	80°	80°
External Rotation	60°	60°

Lower Extremity

Examination of both knees was normal apart from some tenderness over the inferior quadriceps insertion.

The Medical Assessor concluded that on examination the claimant had a normal range of motion of the joints except the shoulder girdles where muscle tension and pain reduced movement in that region.”

1. The Medical Assessor said that there were no clinical signs or investigations which would suggest a non-threshold injury for any of the listed injuries. That is, there was no injury to nerves or a complete or partial rupture of tendons,

2. The Medical Assessor said that there was no clinical radiculopathy. He said that the claimant had threshold injuries.

3. Campbelltown Hospital. discharge notes dated 13 August 2022 confirmed a diagnosis of back pain.

4. Dr Nahim examined and provided a Certificate of Capacity/Fitness dated 21 August 2022 with a diagnosis of soft tissue injuries to the neck, lumbar spine (aggravation of previous lumbar arthropathy), headache, acute stress disorder, emotional shock, crying tearing, sense of doom, poor motivation.

5. Dr Nahim provided answers to a GP Questionnaire dated 3 October 2022 confirming a diagnosis of whiplash/neck strain, lumbar back strain and L3/L4 and L5/S1 disc bulges with stenosis.

6. Dr Jomaa, sports physician provided a consultation report dated 1 December 2022 at the request of Dr Nahim which stated the following:

   “I was shown images of the collision, it is clear that the entire door and right side of the car was destroyed. The car was written off in the collision. Regrettably, the driver of the offending vehicle sped away from the scene and could not be located.

   She did not become aware of any pain until the next day. Since then she has had pain and stiffness in her neck which radiates to the top of her shoulders on both sides. She also describes low back pain which is most flared up when coming up from a flexed position. She had a recent flair whilst lifting some files from a low drawer at work recently.

   She denies any radiculopathy features or leg pain. She has had difficulty concentrating and felt more irritable and emotional since the incident.

   On examination she can manage full neck range of motion but describes stiffness and discomfort throughout the entirety of range and was so at end ranges. She has full low back range of motion but similarly this is painful and stiff, particularly when laterally and forward flexing. There is no focal pain no radiculopathy and upper and lower limb neurology is normal.

   I suspect that Jescie has sustained a whiplash mechanism of injury. My impression is that she has a common pain picture in her neck and lower back which is most likely due to increased apprehension and a heightened pain response after the accident, rather than any focal underlying structural injury.”

7. A further report from Dr Jomaa dated 18 May 2024 was lodged by the insurer. The report followed a request by the insurer to Dr Jomaa for updated information. As Dr Jomaa had not seen the claimant since early 2023, his assistance was limited and he said as much.

8. The claimant had established osteoarthritic changes in her left knee which flared up after her accident.

9. Dr Jomaa provided a diagnosis of chronic neck pain which was likely a whiplash associated disorder, grade 2.

10. There are clinical notes up to 30 October 2023 from Dr Nazma Alam. These do not assist and go predominantly to the claimant’s pre-accident medical history, unrelated to her injuries arising from the accident.

31 October 2023, St George Hospital clinical records.

1. These are irrelevant to the claim in part and deal with treatment of the claimant when she had a fishbone lodged in her tongue and dental issues. The notes do record the following entry:

   “07/12/16 Previously admitted with similar symptoms in 2011

   X- ray lumbar spine done during admission with nil evidence of crush fractures

   Referred to LMO for MRI back however not carried out

   Background

   1.      Lower back pain 2011

   - normal xray lumbar spine

   - referred to LMO for MRI, however symptoms improved, not carried out

   2.     Type 2 diabetes

   - managed by GP, oral hypoglycaemics

   Medications: Janumet 50/500 BD

   Allergies

   seafood - hives

   Summary of Care

   Jescie presented to St George Emergency Department overnight with lower back pain. The pain was described as midline in the lumbar region with onset after lifting her child. During assessment she was determined to have no concerning features or red flags and likely has a musculoskeletal cause for her pain. There were no neurological deficits.

   Jescie was monitored in short stay unit overnight to ensure she could pass urine (with normal post void Bladder scan) and her pain better controlled. She was noted to be quite drowsy after her initial 10mg of morphine which improved over time. Bloods were unremarkable. She was reviewed this morning by physiotherpy, who cleared her for discharge.

   Discharge plan:

   1. Regular paracetamol, PRN diclofenac

   2. Gentle activity, avoid bed rest or heavy lifting

   3. Outpatient physiotherapy for rehabilitation/core strength exercises/lifting education

   4. GP review if symptoms not improving or insufficient analgesia”

2. The claimant had also been admitted to hospital in 2011 complaining of acute lumber back pain at 10/10 radiating to her legs. The pain was noted to be typical of sciatica like pain. She was discharged the following day with analgesics. The claimant continued to complain of pain and seek treatment as noted in hospital notes of 20 October 2011.

Clinical notes of Minto Family Medical Centre as at 12 October 2023

1. These are limited and contain mainly, copies of various certificates of capacity. Following the accident the claimant was first seen for treatment on 14 August 2022 but it was noted that she presented to the Emergency Department on 11 August 2022.

2. There was reference to the claimant having had an MRI and being advised that she could have an old injury and old arthropathy but the accident could have aggravated this.

3. On 20 October 2022 the claimant was complaining of cervical and lumbar pain.

Summary of relevant radiological and medical imaging and other investigations

1. The CT Cervical and lumbar spine of 18 August 2022 revealed no acute fracture or vertebral subluxation dislocation.

2. No paraspinal haematoma. Mild multilevel degenerative change of the cervical and lumbar spine as described above, there is possible contact of bilateral descending S1 nerve roots - correlate clinically.

3. The MRI lumber spine of 21 October 2022  revealed:

   “There is a shallow circumferential disc bulge at L3 L4 with associated mild bilateral facet joint arthropathy causing mild spinal canal stenosis with no significant neural exit foramina stenosis.

   There is a posterior disc bulge with osteophytes at L5 S1 with mild bilateral facet joint arthropathy causing mild spinal canal stenosis with no significant neural exit foramina stenosis.”

4. There is possible contact of bilateral descending S1 nerve roots.

5. The MRI of the cervical spine of 22 October 2022 revealed no injury or prolapse recorded. No evidence of cervical spine bone or ligament injury.

6. The claimant attended Campbelltown Hospital emergency department on 13 August 2022 and was given a diagnosis of back pain.

7. The insurer produced clinical notes of Kogarah Medical Centre on 5 July 2024. There was an entry on 10 August 2017 of low back pain, had it a few times before and has had two hospital admissions.

8. The notes record complaints of back pain on 13 November 2017, 23 July 2020, 10 March 2021 and 27 October 2021, all before the accident. Earlier notes from the practice have also been viewed, noting the accident and treatment thereafter.

9. Photographs of the claimants damaged car have been provided. Some, evidencing the damage, are below:

   [IMAGE UNABLE TO RENDER]

   [IMAGE UNABLE TO RENDER]

   [IMAGE UNABLE TO RENDER]

Medical examination

1. The claimant was examined by Medical Assessor Barnsley and Medical Assessor Assem on 9 July 2024. Their report follows.

“Details of who attended the Assessment

Ms Falgunee attended an assessment with Medical Assessor Assem and Medical Assessor Barnsley as arranged at the PIC rooms on 9/07/2024.

HISTORY

Pre-accident medical history and relevant personal details

Ms Falgunee is a 45-year-old lady originally from Bangladesh, moved to Australia in 2006. Despite holding a Master’s in Accounting from Bangladesh, she faced challenges in getting her qualifications recognised in Australia and commenced working in the medical records department of Prince of Wales Hospital. After the accident, she lost 4-6 weeks off work before resuming her pre-injury duties. She had difficulty lifting heavy files due to her neck and shoulder pain. In November 2023, she obtained less physically demanding administrative work at St George Hospital. She is married with two daughters aged 20 and 10. She was diagnosed with diabetes in 2009, for which she takes Janumet.

Past History

Before the motor vehicle accident on 10 August 2022, Ms Falgunee had experienced an episode of back pain in 2011 that required hospitalisation for two to three days and around five physiotherapy sessions. She underwent an MRI scan of the lumbar spine and understands that there was a ‘disc problem’.

After the birth of her second daughter, she had a further episode of lower back pain. There was no radiation to her lower extremities, paraesthesia or weakness. She has continued to experience occasional symptoms that are relieved with simple analgesia. She denied any previous neck or shoulder complaints. There were no other relevant medical or surgical conditions reported. She had no back pain or other musculoskeletal symptoms immediately prior to the accident.

History of the motor accident

On 10 August 2022, at around 7:00 PM, Ms Falgunee was involved in a motor vehicle accident while traveling as the front seat passenger in a vehicle driven by her husband. They were on the Hume Highway near Ingleburn, moving at a relatively high speed in the second lane when an offending vehicle side-swiped their car on the right-hand side. This initial impact caused significant damage to the right side of their vehicle. The force of the collision pushed their car sideways, leading to a secondary collision with another vehicle, with the impact occurring on the front left side of their car.

Despite the severity of the collisions, Ms Falgunee was primarily concerned about their children at home. They were attended to by police and ambulance personnel who arrived at the scene. The offending vehicle did not stop and sped away from the scene.

Their vehicle sustained considerable damage, particularly to the right side and the front left, due to the two collisions. The air bag facility was not deployed. She said she ‘blacked out’ and could not recall any direct impact to any part of her body within the cabin of the vehicle. She did not experience any discomfort immediately after the accident.

The photographs provided show significant damage to their vehicle. Their vehicle was towed away and later written off for insurance purposes.

History of symptoms and treatment following the motor accident

The next morning, she was shaking, perspiring and feeling unwell. She gradually began experiencing aches and pain in her neck and right shoulder. She presented to Campbelltown Private Hospital where she underwent a plain x-ray of the cervical spine and prescribed simple analgesia. The hospital records document lateral neck pain and lower back discomfort. In addition, she had tonsilitis.

She initially consulted Dr Nahim on 14 August 2022 who documented pain in her right shoulder. On 15 August 2022, Dr Nahim noted neck discomfort that appeared to be radiating to her right trapezius and shoulder. She later noticed that the pain in her back was radiating to the lateral aspect of her left knee.

She continued physiotherapy for six months until the treatment was ceased by the insurer. Physiotherapy provided short-term relief but did not resolve her symptoms. She was also referred to Dr Jomaa, a sports physician, who administered an injection into her left quadriceps tendon that provided temporary relief. An MRI of the lumbar spine on 22 October 2022 revealed mild posterior disc bulge with osteophytes at L5 S1, mild bilateral facet joint arthropathy causing mild spinal canal stenosis, and possible contact of bilateral descending S1 nerve roots.

Current symptoms

Ms Falgunee experiences constant right sided neck pain, which radiated to her right shoulder, arm and entire right hand. Her symptoms are worse when elevating her right arm above chest level. She has unusual sensations in both of her arms. She has similar symptoms involving her left shoulder that are less intense. The right sided neck pain radiates down her entire spine to her lower back and anterolateral aspect of her left thigh to her left knee.

Ms Falgunee lives with her husband and their two daughters, aged 20 and 10. Before the accident, Ms Falgunee managed a range of household activities, including cooking, cleaning, and other chores. After the accident, she has found it challenging to perform these tasks due to pain and stiffness in her neck, shoulders, and lower back. Simple tasks like bending, lifting, and reaching have become difficult, requiring her to rely more on her family members for support.

Current and proposed treatment

She takes Mersyndol Forte when needed and Valdoxan.

EXAMINATION

She appeared well and in no apparent distress. She was cooperative during the examination. She was informed at the time of the examination, not to engage in any manoeuvre beyond what he could tolerate, or which may cause harm or injury.

All movements performed in today’s examination were active and voluntary. No movements were undertaken to the point that they would have caused or inflicted any further injury or pain. All measurements were done with a goniometer.

Cervical Spine (Cervicothoracic)

There was tenderness over the upper trapezius. Cervical movements were symmetrically reduced to ¾ of normal range in flexion, extension, lateral flexion and rotation. There was no muscle guarding, spasm, asymmetry of motion or spinal dysmetria. Neurological examination of her upper extremities was normal with normal power, tone and reflexes. There was a global diminution of sensation involving her right arm that did not correspond with a specific dermatomal pattern. There was no significant measurable difference in the circumference of her upper arms or forearms. Neural tension signs were negative.

Lumbar Spine (Lumbosacral)

She ambulated with a normal gait pattern. She was able to stand on her heels and toes. In forward flexion she was able to reach just above her ankle. Lumbar extension was accompanied by pain at the lumbosacral junction. Lateral flexion was symmetrically reduced to half normal range. Rotation restricted to half normal range on the right and three-quarters of normal range on the left. There was asymmetry of motion or spinal dysmetria.

The circumference of the left thigh was 1cm less than an equivalent level on the right thigh. This is within measurement error. There was no measurable difference in the circumference of her calves.

Upper Extremities

Her shoulders were tender on palpation with equivocal signs of impingement. She demonstrated a normal range of shoulder motion as follows

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	180°	180°
Extension	50°	50°
Adduction	50°	50°
Abduction	180°	180°
Internal Rotation	80°	80°
External Rotation	60°	60°

DETERMINATIONS

Diagnosis, causation and reasons

Ms Falgunee is a 45-year-old lady who was involved a motor vehicle accident on 10 August 2022. , The accident involved a high-speed side-swipe that caused significant vehicle damage, though she did not feel immediate discomfort. The following day, she experienced neck, back and shoulder pain.

Cervical Spine:

The injury to Ms. Falgunee's cervical spine was documented in hospital records and subsequent medical evaluations by Dr Nahim and other healthcare professionals. Consistent reports of neck pain were noted in her medical records, including consultations with physiotherapists and specialists, establishing a causal relationship to the motor vehicle accident.

She experiences neck pain and stiffness, reduced range of motion, and unusual sensations in both arms that do not correspond to any specific dermatomal distribution. She did not exhibit objective clinical features meeting the diagnostic criteria for radiculopathy as outlined in the Guidelines, nor did radiological imaging reveal significant new pathology. The injury to her cervical spine injury is therefore classified as a soft tissue injury. This classification is based on the involvement of tissue that connects, supports, or surrounds other body structures without injury to nerves or complete or partial rupture of tendons, ligaments, menisci, or cartilage.

Lumbar Spine:

Ms. Falgunee's lower back complaints were documented in hospital records, clinical records of her treating doctor, and Allied Health Recovery Requests (AHRR), confirming their causal relationship to the motor vehicle accident. Her lower limb neurological examination was normal. Despite MRI findings indicating a mild posterior disc bulge with osteophytes at L5/S1, causing mild spinal canal stenosis and potential contact with bilateral descending S1 nerve roots, she did not exhibit objective clinical features meeting the diagnostic criteria for radiculopathy. Thus, her lumbar spine injury is classified as a soft tissue injury, which is a threshold injury according to the Act.

Shoulders:

Ms. Falgunee’s shoulder complaints were consistently documented in early GP records, AHRR, APIB form and subsequent visits to her general practitioner. She reported persistent pain and reduced range of motion in both shoulders, exacerbated by certain movements. Dr Jomaa conducted a detailed examination, noting reduced active range of motion in both shoulders due to muscular tension, particularly in the trapezius muscles, while the passive range of motion remained normal. Today, she demonstrated a normal range of shoulder motion despite reported pain when elevating her arm above 90 degrees. The clinical findings did not support reclassification of these injuries beyond soft tissue. There is no imaging or clinical evidence to classify these injuries as non-threshold.

Does the claimant have non-verifiable radicular symptoms arising from her cervical or lumbar spines?

Non -verifiable radicular complaints are defined in the Guidelines as:

‘symptoms (for example, shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root (for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes).’

The Panel carefully considered whether the claimant manifested these clinical features. Based on the history obtained at re-examination, she has radiating pain in the right arm, but it does not follow a specific nerve root, and therefore fails to meet the criteria required to be defined as non-verifiable radicular complaints. Similarly, there were no symptoms in the lower limbs that matched these criteria. The Panel therefore considered that she did not have non verifiable radicular symptoms.

The Panel notes the claimant’s concerns regarding the findings on the CT scans of the lumbar and cervical spines. Changes on CT scans are not included in any of the definitions of non-verifiable radicular complaints. Moreover, section 6.121 of the Guidelines states

‘To be of diagnostic value, imaging findings must be concordant with clinical symptoms and signs, and the history of injury. In other words, an imaging test is useful to confirm a diagnosis, but an imaging result alone is insufficient to qualify for a DRE category.’

Therefore, any changes in the imaging do not inform the presence or absence of non-verifiable radicular complaints and the extant findings, whilst considered by the Panel, do not change the view that there are no non-verifiable radicular complaints.

The Panel also notes that the claimant raises concerns that the prior assessment ‘failed to address why the claimant continues to experience the constant pain in the neck after the accident’. The absence of non-verifiable radicular complaints in no way diminishes the symptoms from which Mrs Falungee suffers. These can be explained by soft tissue injuries. The presence or absence of a non-threshold injury is not an indication of the severity or persistence of symptoms.

1.     Does the claimant have radiculopathy?

The criteria for radiculopathy are clearly set out in the Motor Accident Guidelines.

To conclude that a radiculopathy is present two or more of the following signs should be found:

·Loss or asymmetry of reflexes

·Positive sciatic nerve root tension signs

·Muscle atrophy and/or decreased limb

·Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution

·Reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

The Panel deliberately sought these signs at physical examination, and they were not present in either the upper or lower limb. Moreover, there were no records in the available documents of these signs being detected. Therefore, the Panel concluded that the claimant did not have any radiculopathy.

The Panel noted the concerns raised by the claimant in her submissions that the lumbar CT scan showed changes that might be associated with radiculopathy, specifically the contact with the S1 nerve roots by the L5/S1 disc. The Panel did not consider this changed the conclusions that no radiculopathy was present on the basis that any pain in the legs was not in the distribution of the S1 nerve roots, there were normal neurological findings for the reflexes, muscles and sensation supplied of the S1 nerve roots and finally the Panel again noted the directions of the Guidelines regarding imaging quoted above.”

1. The Review Panel adopts the report of Medical Assessors Barnsley and Assem.

Causation

1. On the understanding of the Review Panel, it considers that the impact occurring on 10 August 2022 would have involved some force on the claimant’s right side, where her husband was driving. That would have been the first impact.

2. The second impact was to the front left of the car when it impacted with another car.

3. In the experience of the Medical Assessors forming this Review Panel, it would not be unreasonable for the claimant to suffer the injuries claimed by her as arising from the accident at speed in a side swipe collision with a heavy vehicle.

CONCLUSION

1. On examination of the claimant by the Medical Assessors, the claimant demonstrated no signs of radiculopathy.

2. The claimant has suffered soft tissue injuries caused by the accident to her;

   (a)    spine;

   (b)    lumbar spine, and

   (c)    left and right shoulders.

DETERMINATION

1. The Review Panel affirms the certificate and reasons of Medical Assessor McGrath dated 21 January 2024.

2. The Review Panel finds that the following injuries caused by the motor accident:

   (a)    spine – soft tissue Injury

   (b)    lumbar spine – soft tissue Injury

   (c)    left and right shoulders – soft tissue Injury

   are threshold injuries for the purposes of the MAI Act.