Fayad v AAI Limited t/as GIO
[2024] NSWPICMP 533
•2 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Fayad v AAI Limited t/as GIO [2024] NSWPICMP 533 |
CLAIMANT: | Hussein Fayad |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
GENERAL MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Mohammed Assem |
DATE OF DECISION: | 2 August 2024 |
DATE OF AMENDMENT: | 15 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insured vehicle crossed onto the incorrect side of the road, resulting in a head-on collision with the claimant’s vehicle; insurer admitted liability; medical dispute as to threshold physical injuries; Medical Assessor certified that soft tissue injuries to the cervical, thoracic and lumbar spine, both shoulders and left leg, all caused by the motor accident, were threshold injuries; Held – labral tear was caused by the accident and is a non-threshold injury; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | AMENDED CERTIFICATE REVIEW PANEL ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 (the MAI Act) 1. The Review Panel revokes the certificate of Medical Assessor David Gorman issued on 3 June 2022. (a) The following injuries caused by the motor accident: · Cervical spine – soft tissue injury · Thoracic spine – soft tissue injury · Lumbar spine – soft tissue injury · Left shoulder – soft tissue injury · Left knee/leg – soft tissue injury |
STATEMENT OF REASONS
INTRODUCTION
Hussein Fayad (the claimant) was injured in a motor accident on 25 September 2020 when he was driving in a line of traffic. The insured vehicle was travelling in the opposite direction. It turned across the path of the claimant’s vehicle which caused a “T-bone” impact. The claimant’s vehicle then struck another vehicle, the kerb and a light pole. The claimant was wearing a seatbelt. He did not lose consciousness. He was able to alight from his vehicle unassisted. The claimant was conveyed to St George Hospital by ambulance. He self-discharged before any investigations were performed. He consulted his local medical officer a few days later. The insurer admitted liability for the claim.
NRMA (the insurer) indemnified the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant damages and statutory compensation benefits under the Motor Accident Injuries Act 2017 (the Act).
The issue in dispute is whether each of the claimant’s physical injuries, caused by the motor accident, was a minor (now threshold) injury for the purposes of the Act.
ASSESSMENT UNDER REVIEW
As there is a dispute between the claimant and the insurer whether each injury is a threshold injury under Schedule 2, s 2(e) of the Act, the claimant was referred for assessment by Medical Assessor David Gorman, who certified as follows:
The following injuries caused by the motor accident:
· cervical spine – soft tissue injury;
· thoracic spine – soft tissue injury;
· lumbar spine – soft tissue injury;
· right shoulder – soft tissue injury;
· left shoulder – soft tissue injury, and
· left knee/leg – soft tissue injury,
are THRESHOLD INJURIES for the purposes of the Act.
Medical Assessor Gorman stated that the following injuries WERE NOT caused by the accident:
· Cervical Spine – Grade III Whiplash injury with nerve root radiculopathy – there is no radiculopathy.
· Thoracic spine – L4/L5 disc loss and desiccation, L4/L5 central and focal disc bulge with radiculopathy, annular tear – there is no radiculopathy and the changes seen on scanning are degenerative.
· Lumbar spine – L4/L5 disc loss and desiccation, L4/L5 central and focal disc bulge with radiculopathy, annular tear – there is no radiculopathy and the changes seen on scanning are degenerative.
· Right shoulder – tear of labrum (labral tear) the shoulder is now normal on examination suggesting that the labral tear was degenerative.
· Left knee/leg – meniscal and radiculopathy – there is no evidence of meniscal injury – the knee examination is normal – there is no radiculopathy.
Although he made those findings, Medical Assessor Gorman did not so certify.
The claimant sought a review of Medical Assessor Gorman’s certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The claimant brought the application within the time prescribed by s 7.26(10) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant submitted that Medical Assessor Gorman erred in his assessment on the following bases:
(a)the brevity of the reasons provided by Medical Assessor Gorman notwithstanding that his certificate was not issued until more than five months after his re-examination of the claimant;
(b)lack of reasons for finding that a small tear of the right posterior inferior labrum and a small annular tear in the lumbosacral spine are degenerative rather than post-traumatic, and
(c)lack of reasons for finding that the various injuries listed in paragraph 24 of Medical Assessor Gorman’s reasons were not caused by the accident and are degenerative.
The claimant submitted that Medical Assessor Gorman’s assessment was incorrect in a material respect.
The claimant’s application for review was opposed by the insurer. The insurer’s submissions can be stated briefly as follows:
(a)Delay in issuing the Certificate in and of itself does not constitute a basis to find that the Certificate is incorrect in a material respect.
(b)Medical Assessor Gorman was clear in his Certificate that:
(i)there was no radiculopathy relating to the claimant’s lumbar spine, and
(ii)the radiological findings of a labral tear of the right shoulder and an annular tear of the lumbar spine were degenerative.
(c)The insurer submits that Medical Assessor Gorman provided sufficient reasoning for his diagnosis and conclusions.
(d)The Medical Assessor took a comprehensive history from the claimant, conducted his own examination and, as a qualified expert within his field, was entitled to make findings that were within his expert professional judgment.
For those reasons, the insurer submitted that the claimant failed to establish reasonable cause to suspect that the assessment was incorrect in a material respect and ought to be dismissed.
President’s delegate Ratula Gupta issued a Determination of an Application for Review of a Medical Assessment on 7 August 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that Medical Assessor Gorman’s assessment was incorrect in a material respect. The basis of that decision was stated to be Medical Assessor Gorman’s failure to explain why various lesions, which appear to be non-threshold injuries, are degenerative, including an annular tear to the lumbar spine.
Accordingly, the application was accepted and was referred to the Panel, which is to assess the following injuries:
· Cervical spine – Grade III. Whiplash injury with nerve root radiculopathy (requires further updated MRI investigation declined by the insurer).
· Thoracic spine – L4/L5 disc loss and desiccation, L4/L5 central and focal disc bulge with radiculopathy, annular tear.
· Lumbar spine – L4/L5 disc loss and desiccation, L4/L5 central and focal disc bulge with radiculopathy, annular tear.
· Right shoulder – tear of labrum (labral tear) tendinosis and bursitis and radiculopathy.
· Left shoulder – bursitis and radiculopathy.
· Left knee/leg – meniscal and radiculopathy.
The parties agree that annular tears and labral tears are excluded from the statutory definition of threshold injury. See below and the discussion in Toomey v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 209. That leaves for determination the issue of causation of those injuries.
The Review Panel is aware that the claimant bears the onus of proving injury and that it is not a threshold injury.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application. [2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned. [3]
[3] Section 7.26(6) of the Act.
All members of the Panel had no previous involvement with the claimant or with this matter.
THRESHOLD INJURY
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
A threshold injury is defined in s 1.6(1) of the Act as a “soft tissue injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“An injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In other words, a soft tissue injury is a threshold injury, unless that soft tissue injury comes within the exclusion highlighted in italics above.
In this case, it does not appear to be disputed that a tear (or further tear) to the labrum of the right shoulder would be a complete or partial rapture of cartilage and therefore a non-threshold injury if that tear (or further tear) were found to exist and be caused by the accident. The same condition applies to the alleged tear (or partial tear) of the annulus fibrosus (annular tear).
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft-tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
a.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.”
CAUSATION OF INJURY
Sections 5D and 5E of the Civil Liability Act2002 apply to the Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“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. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
‘Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination’.
This, therefore, involves a medical decision and a non-medical informed judgment.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause, as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material:
(a) Claimant’s submissions made to the President’s delegate (previously summarised).
(b) Decision of the President’s delegate (previously summarised).
(c) Claimant’s submissions made to Medical Assessor Gorman.
The claimant submitted that his physical injuries do not meet the criteria for soft tissue injury. In relation to the cervical spine, it was submitted there was aggravation and radiculopathy. In relation to the thoracic and lumbar spine, it was submitted that radiculopathy was present. In relation to both shoulders, it was submitted that radiculopathy was present. In relation to the left lower limb, the claimant acknowledged he had a history of leg pain travelling from his neck to his leg, prior to the accident. However, it was submitted that pain was asymptomatic at the time of the accident, and was aggravated by the accident.
(d) Clinical file of Dr Awada.
(e) MRI of both shoulders reported by Dr Jeff Kuan on 2 February 2021.
Right shoulder: there is a small tear of the posteroinferior labrum with an associated para labral cyst. No slap tear detected. No evidence of capsulitis or a rotator cuff tear. There is mild supraspinatus tendinosis and subacromial bursitis.
Left shoulder: no evidence of a labral tear or rotator cuff tear. No significant tendinosis. There is mild subacromial bursitis.
(f) Certificate of capacity/Certificate of fitness dated 16 December 2020.
(g) Allied health Recovery Request dated 9 December 2020.
(h) Referral of Dr Awada to Dr Diwan dated 7 December 2020.
(i) MRI report of cervical spine and lumbar spine reported on 7 December 2020 by Dr John Rusli.
Cervical spine: no significant traumatic injury has been demonstrated. No disc bulge or protrusion. No intrinsic cord abnormality. There is only minimal facet joint arthrosis as described.
Lumbosacral spine: there is only minimal disc desiccation at L4/L5 with minimal loss of disc height associated with minimal central disc bulge and small annular tear without canal, lateral recess or foraminal stenosis. Minimal fact joint arthrosis of the mid and lower lumbar spine. No intrinsic cord abnormality. No marrow or soft tissue oedema.
The insurer relied upon the following material:
(a) Submissions to the President’s delegate dated 24 July 2023 (previously summarised).
(b) Insurer’s summary of issues in dispute – injury dated 16 June 2022:
(i)the insurer disputes that the alleged injury to the left leg was caused by the motor accident. It observes that the claimant suffered a pre-existing injury to his left leg and submits there is no medical evidence to support an accident-related injury to the left leg. In the alternative, the insurer disputes that such injury is non-minor, and
(ii)the insurer disputes that the claimant sustained non-minor injuries to his cervical spine, lumbar spine, left shoulder and right shoulder.
(c) Liability notice dated 19 November 2021.
The insurer denied liability to make statutory benefits payments beyond the first 26 weeks for the reason that all of the claimant’s alleged injuries were regarded as “minor injuries” by the insurer.
(d) Referrals of Dr Awada dated 7 December 2020 and 1 March 2021.
(e) Report dated 25 March 2021 by Dr Stephen Rimmer, orthopaedic surgeon, to GIO.
Dr Rimmer noted that the claimant said he suffered injuries to his cervical spine, lumbar spine, both shoulders and both wrists in the motor accident. He took a history of a prior injury to the lumbar spine in approximately 2017 whilst at the gym. Dr Rimmer reported that his examination of the cervical spine, lumbar spine, both shoulders and both wrists was essentially normal. Dr Rimmer stated that he had not been provided with the diagnostic investigations.
(f) Refresher report dated 11 November 2021 by Dr Rimmer to GIO.
Dr Rimmer viewed the MRI scan dated 4 April 2021 of both shoulders. He opined that the following injuries had resolved:
(i)musculoskeletal strain cervical spine;
(ii)musculoskeletal strain lumbar spine;
(iii)soft tissue injuries right and left shoulders, and
(iv)soft tissue injuries right and left wrists.
Dr Rimmer stated that the MRI scan of the right shoulder “at most shows a small degenerative tear of the labrum which is now asymptomatic” and that “the MRI scan of the left shoulder shows no abnormality”. Dr Rimmer made no mention of the left lower extremity.
(g) Certificates of capacity of various dates.
(h) Allied Health Recovery Requests for physiotherapy from 3 November 2020 to
2 August 2021.(i) Allied Health Recovery Requests – exercise physiology (3 August 2021 and
16 September 2021.(j) X-ray performed on 6 November 2017 of the lumbosacral spine:
There is a minimal lumbar scoliosis convex to the right side. There is no pars defect or spondylolistheses. Lumbar disc spaces are preserved. No bony lesion. No crush fracture.
(k) Clinical records of BlueCross Medical Centre.
(l) Clinical records of Dr Awada.
RE-EXAMINATION
The report of Medical Assessor Michael Couch is as follows:
Claimant: Hussain FAYAD
Mr Fayad was examined by Assessor Michael Couch at the PIC rooms over a period of 65 minutes on 30 October 2023.
Pre-Accident Medical History and Relevant Personal Details
Mr Fayad said that he grew up in Sydney and lives in Liverpool. He had worked in concreting since leaving school. I understood that he had started concreting and later had trained as a formworker.
He explained that he is now self-employed and has a concreting licence. He hopes later to obtain a builder’s licence as well. He described mainly doing supervisory duties (‘running jobs’). He described these as mainly smaller jobs such as driveways and house slabs. He does not do multi-storey construction. He said that he mainly relies on subcontracting tradesmen to do the hands-on work and that he was ‘pretty much off the tools’. He definitely attributed his difficulty with working hands-on to injuries sustained in the subject accident, stating that ‘if I have to go onto the tools – within one or two minutes I’m in pain’.
When I asked him about any injuries or conditions prior to the subject accident, he mentioned a low back injury some four years earlier (this is mentioned in Assessor Gorman’s certificate and in a report from 2021 by Dr Stephen Rimmer, Orthopaedic Surgeon). He said he was using a squat machine in a gym and developed immediate low back pain. He could not recall if he had imaging then or not. He had about six months off work. This was not the subject of a compensation claim. He then returned to his previous type of duties as a subcontractor.
History of the Motor Accident
Mr Fayad said that on 25 September 2020 he was driving a Mercedes C180 sedan with his girlfriend as the front seat passenger. He had just driven out of a carpark. He was proceeding through traffic lights on the green signal at perhaps 60 km/hr, when a car travelling in the opposite direction suddenly turned right across his path.
His car ‘T-boned’ the other car, then bounced into another vehicle, struck the kerb and ended up striking a traffic light pole. He said that his car (possibly a 2004 model) was written-off by its insurer. He was wearing a seatbelt and his airbags activated. He was able to alight from the vehicle and recalled getting out to check on the driver of the other car. He recalled that ‘all his windows were red – I thought they were dead – there was a woman and kid in the car and they had vomited everywhere’. Ambulance and police attended. He was assessed by paramedics, put on a stretcher and transported to St George Hospital Emergency Department.
History of Symptoms and Treatment following the Motor Accident
Mr Fayad said that after about half an hour in the Emergency Department, he was offered Endone for pain relief and was told that he would have to wait several hours to be examined by a doctor – he left prior to complete assessment.
Mr Fayad said that he consulted his GP, Dr Camille Awada, three days later. I asked him what were the main symptoms he recalled from that period, and he replied these were pain in both shoulders, the low back radiating into the lower limbs, and the neck.
The handwritten notes of Dr Awada three days after the accident, on 28 September 2020, state: ‘MVA: 25.09.2020. Other party was making a right hand turn. Hit another car (second car). Airbag deployed. Injuries: Back pain, neck pain, bilateral shoulder pain, bilateral wrist pain, anxious. Exam ?M/L strain of cervical and lumbar spine/shoulders.’ On 21 October 2020, Dr Awada recorded ongoing pain in the back, neck and both shoulders with, significant impact on his activities of daily living, and noted that he also looked anxious.
Mr Fayad recalled that prior to this accident, he had been doing subcontracting work for the local council, for example concreting driveways. He recalled being off work for some time because of his injuries – he thought a period of weeks. He initially received wages compensation from the insurer but returned to work when these ceased – again doing concreting, stating ‘I had to force myself to pay my bills – and manage myself and the pain’.
Assessing Mr Fayad some three years after the accident, I asked him if he thought related symptoms had improved. He said they had not. When I asked if there had been a small amount of improvement, he again said there had not. He said he had not attended his GP for about two months and was no longer having physiotherapy or any specific treatment. He said he only took occasional Panadol or Advil.
Details of any Relevant Injuries or Conditions sustained since the Motor Accident
Mr Fayad denied any subsequent injuries or conditions.
Current Symptoms
Mr Fayad described ongoing symptoms in his low back, neck, shoulders and left knee. He said that of these, his back was the worst. He described current symptoms in more detail as follows:
1. Back Pain
He described pain, pointing to the thoracolumbar junction and lumbosacral area. This is present most of the time and occurs every day. He said that he tried to ignore it and it feels worse as soon as he talks about it. He described ‘I imagine a pressure bubble about to pop’. He described pain radiating into both buttocks and posterolateral thighs, with in addition pain shooting down to both feet, including the heels. I asked him if coughing or sneezing aggravated the pain. He replied, ‘a strong sneeze does it – not a light one’.
His back generally feels slightly better if he is moving around, and worse when he stops moving. I asked him about concreting duties which are demanding on the back, such as screeding or raking – he said that he could only try such duties for a very brief period, and has to stop because of back pain.
2. Neck Pain
Mr Fayad described pain pointing to the right side of the neck. This is more intermittent than the back pain and does not occur every day. It does not radiate to the upper limbs but he did describe associated headaches – he said that he was not prone to headaches prior to the accident.
3. Shoulders
He said that the shoulders were ‘not a massive problem’, but added that the right shoulder ‘pops’ with sharp pain with some activities, such as reaching.
4. Left knee
Mr Fayad said he was no longer aware of any symptoms in the left knee.
Present Activities
As noted above, Mr Fayad said that he had resumed self-employed concreting duties, mainly supervising jobs and using subcontractors for the hands-on work. He has a girlfriend; he commented. ‘I want to get my work and my sex life, etc, back to normal’.
He described very poor sleep and is restless in bed. Typically he will go to bed at 11 - 11.30 pm, but wakes two to three times in the night and eventually rises at 5 am. He described sleep quality as ‘shocking’ and wakes feeling very tired. When I asked him if he ever wakes up ‘ready to go’, he said he did not, and smiled at this.
Physical Examination
Mr Fayad presented as a tall, well-spoken young man with short hair and a neat beard. Height was 195 cm and weight 108 kg. He had a pleasant manner and could smile appropriately. He said that he was worried about his ongoing symptoms and restrictions, but also realised that he needed to remain active and get on with life. He appeared to be quite intelligent. There was no apparent exaggeration or dramatization of symptoms, but he was somewhat pain-focussed. He was cooperative during examination and showed good effort. There were no significant abnormal pain behaviours, nor evidence of self-limitation or inconsistency, but he did appear to be fearful of causing pain.
Cervical Spine
Posture of the head and neck was within normal limits. On palpation he reported slight tenderness to the right of the proximal cervical spine. Trapezius muscles were normal to palpation and not tender.
AROM of the cervical spine showed some restriction with asymmetry: flexion was only one-quarter of normal, whereas extension was three-quarters of normal – when I asked him to try flexing the neck further, he replied ‘it won’t do it, it will hurt’. Rotation was approximately half of normal bilaterally, although reported as rather more comfortable to the left. Lateral flexion was half of normal to the left and only quarter of normal to the right, although Mr Fayad reported right lateral flexion as more comfortable. He was not describing non-verifiable radicular complaints in the upper limbs and as can be seen below, under ‘Upper Extremities’, there were no objective signs of cervical radiculopathy.
Thoracic and Lumbosacral Spine
Posture of the remainder of the spine with Mr Fayad standing was within normal limits. On palpation with him lying prone on the couch, he reported slight to moderate tenderness from T9 down to S1, in the midline and to both sides of the midline. This was more marked distally. There was no evidence of muscle guarding or spasm. Spinal rotation (which mainly occurs in the thoracic spine) was tested with Mr Fayad seated in a chair to stabilise the pelvis. Rotation was completely full bilaterally and symmetrical, although he described slight back pain at the limits in both directions.
AROM of the lumbosacral spine was tested with Mr Fayad standing with knees straight. He could flex forward with fingertips to the knees with a 5 cm expansion over a measured 15 cm lumbar segment, complaining of some low back pain. (The lower limit for this MacRae-Wright movement is 5 cm.) Lumbar extension was only half of normal – during this movement, Mr Fayad described ‘heaps of pressure’. Lateral flexion was one-third of normal bilaterally.
Thus there was some evidence of dysmetria in the lumbosacral spine. He was not describing non-verifiable radicular complaints in the lower limbs and as can be seen under ‘Lower Extremities’, below, there were no objective signs of lumbosacral radiculopathy.
Upper Extremities
Hands were clean with only a few small callouses over the metacarpal heads (I considered his hands to be quite soft for someone working in the construction industry – particularly someone doing concreting work).
The right (dominant) upper arm measured 36 cm in circumference, the left 35, the right forearm 40.5 and the left 30 (slight asymmetry, consistent with right side dominance). Biceps, triceps and brachioradialis reflexes were normal and symmetrical. Power of resisted movements was normal and symmetrical in all muscle groups in both upper limbs, although he did complain of some secondary pain in the shoulders when exerting maximum effort. Sensation was normal in both upper limbs. (I noted that while I was examining his upper limbs with him seated, he stood up to move around, saying that his low back was sore.)
Both shoulders were normal in appearance. There was no tenderness to palpation over either glenohumeral joint. AROM of both shoulders was measured with repetition with the goniometer, as tabulated.
Right
Left
Flexion
180°
180°
Extension
40°
40°
Abduction
170°
170°
Adduction
30°
40°
External Rotation
90°
90°
Internal Rotation
50°
60°
Mr Fayad described discomfort at the limits of internal rotation bilaterally. On the left at the limit, he described ‘feeling it will pop’.
Impingement signs were positive in both shoulders, more markedly so on the right. (Mr Fayad also asked me to look at his right shoulder, stating that it ‘feels like it’s a different angle.’ I detected no visible difference).
Lower Extremities
Both lower limbs were normal in appearance. Both calves measured equally in girth at 41 cm. The ankle jerks were normal and equal, but I was not able to obtain either knee jerk, even with reinforcement. (This can occur in normal subjects.) Plantar responses were both flexor (normal). Power of extensor hallucis longus (L5 nerve roots) and ankle eversion (S1 nerve roots) was normal and symmetrical, and light touch sensation was preserved in both lower limbs. Straight-leg-raising was 50 degrees on the right and 40 on the left with complaint of low back pain, but no lower limb radicular symptoms on sciatic stretching.
I observed a few functional activities. Mr Fayad could take a few steps normally with weight on his forefeet and heels off the floor. He did not want to try walking on his heels with forefeet off the floor, saying it would cause leg pain. He said that he avoids squatting and I did not ask him to try this. Gait when walking in bare feet on the carpeted floor of the examination room was normal.
Examining Assessor’s Impression
1. Mr Fayad is a now 26-year-old young man who has worked in concreting/formwork since leaving school. He was involved in a moderate severity ‘T-bone’ crash three years ago, in which his older Mercedes was written-off. Airbags activated.
2. Three days after the accident, his GP recorded symptoms in neck, low back and both shoulders and noted that he was anxious. He was off work probably for a period of months but has since returned to work in a self-employed capacity, avoiding hands-on duties where possible – the state of his hands supported this claim.
3. History and examination are consistent with whiplash associated disorder grade 2 (WAD2) of the cervical spine, with dysmetria but no other abnormal signs. There was certainly no evidence of radiculopathy.
4. He reported minor symptoms in the lower thoracic spine and examination of the thoracic spine was essentially normal.
5. He reported ongoing low back pain and examination showed some dysmetria without radiculopathy. The past history of a low back injury in a gym some years earlier was noted.
6. He reported quite minor symptoms in the shoulders. Examination was normal apart from some apparently painful restriction of internal rotation and positive impingement signs bilaterally.
7. He presented in a straightforward manner and appeared to realise that despite ongoing symptoms, he needed to get on with his life. He was somewhat fearful of provoking pain and did appear to be pain-focussed.
8. I consider that all the referred injuries are soft tissue and threshold injuries, for the purposes of the Act, with the exception of the labral tear.
9. I have not seen any documentation of objective signs of radiculopathy at any time since the motor accident.
10. I consider that all of the referred injuries, with the exception of the annular tear, were caused by the accident.
Are the labral and annular tears caused by the accident?
Right Shoulder:
Mr. Hussein did not report any shoulder complaints prior to the motor vehicle accident, making a purely degenerative tear less likely despite his relatively young age. His occupation as a concreter, which involves repetitive heavy lifting, and his history of lifting heavy weights, could contribute to such injuries. However, there were no shoulder complaints reported until soon after the motor vehicle accident.
While the clinical records of his treating physiotherapist initially focus on his left shoulder complaints, the reports also highlight shoulder impingement that is worse on the right side. This impingement is unrelated to the labral tears but indicates persistent symptoms involving his shoulders.
Given Mr. Hussein’s age and the traumatic mechanism of the motor accident, it is more plausible that the labral tear in the right shoulder is of traumatic origin rather than purely degenerative. The clinical history and findings suggest that the tear was either caused or aggravated by the accident, rather than being solely due to degenerative processes. Particularly is this so having regard to the proximity of the motor accident to the onset of symptoms in the right shoulder. With great respect to Dr Rimmer, who is of the contrary opinion, the Panel notes that he is not a specialist radiologist.
Therefore, considering the physiotherapy records, MRI findings, and Mr. Hussein's occupational background, the labral tear in the right shoulder is more likely to be traumatic.
Lumbar spine:
Mr. Hussein experienced a lower back injury with pain radiating to his right leg around 2018. He was off work for approximately six months following this injury. CT Scan findings (13 July 2018) identified a mild disc prolapse at L4/5 posteriorly close to the L5 nerve roots and a mild L5/S1 disc prolapse posteriorly close to the S1 nerve roots. The written records from his treating doctor appear to show a consultation for back pain radiating to the left leg on 8 July 2020.
Although his lower back symptoms were documented soon after the motor vehicle accident on 25 September 2020. The MRI Scan (7 December 2020) showed a small focal disc bulge at L4/5, similar to what was observed on the 2018 CT scan. The MRI also noted a small associated annular tear.
The MRI findings from December 2020 show similar changes to those observed in 2018, indicating that the disc pathology at L4/5 and L5/S1 had not significantly progressed or changed structurally. Annular tears can be a part of the degenerative process of the intervertebral disc, often associated with disc bulges or prolapses. These tears are common in individuals with a history of disc pathology and may not necessarily be a result of acute trauma.
Given the objective evidence, including the similar radiological findings before and after the motor vehicle accident, and the absence of new pathology or structural derangement, the small associated annular tear is most likely related to Mr. Hussein's pre-existing disc pathology rather than being a result of acute trauma from the motor vehicle accident.
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[5] The Review Panel adopts the examination findings and reasons of Medical Assessor Couch with which Medical Assessor Assem concurs.
[5] Section 7.26(6) of the Act.
The Panel is satisfied that most of the injuries, caused by the motor accident, are soft tissue injuries. As such, they are threshold injuries, for the purposes of the Act. Based upon the evidence, the clinical experience and judgment of the medical assessors, the Review Panel is satisfied that there has been no radiculopathy affecting the cervical, thoracic or lumbar spine, nor the left lower extremity, at any time since the motor accident.
The Panel is not satisfied, on the balance of probabilities, that the small annular tear was caused by the accident. The reasons are stated in the examination report.
The Panel is satisfied, on the balance of probabilities, that the labral tear could have been caused by the accident, as a matter of medical determination, and did cause the labral tear, or an aggravation of it, as a matter of factual non-medical determination, for the reasons stated.
CONCLUSIONS
For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor David Gorman on 3 June 2022 should be revoked. The new certificate appears at the beginning of these reasons.
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