Forrest v QBE Insurance (Australia) Limited
[2024] NSWPICMP 15
•9 January 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Forrest v QBE Insurance (Australia) Limited [2024] NSWPICMP 15 |
| CLAIMANT: | Jeffrey Forrest |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 9 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of certificate and reasons of Medical Assessor (MA) Tamba-Lebbie dated 23 November 2021 about whether the claimant had suffered threshold injuries; claimant involved in a rear end motor vehicle accident on 25 February 2020; claimant injured his cervical spine, left shoulder, left arm and left hand; the MA had found that all injuries were threshold injuries; claimant had some pre-existing neck and back complaints from which the claimant submitted he had recovered from his pre-accident injury; Panel reviewed scans and investigations by way of comparison of pre and post-accident results; claimant examined by Panel and demonstrated C8 radiculopathy with weakness and wasting and sensory changes; Panel confirmed the claimants C8 radiculopathy was secondary to a traction injury; Panel concluded the claimant had suffered non-threshold injuries; Held – certificate of MA Tamba-Lebbie revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION DETERMINATION 1. The Panel revokes the decision of Medical Assessor Tamba-Lebbie dated 23 November 2021 going to the determination of threshold and non-threshold injuries suffered by the claimant in the accident of 25 February 2020. 2. The Panel finds that the claimant suffered the following injuries in the accident of (a) cervical spine – aggravation of whiplash injury with new whiplash; (b) left shoulder – aggravation of soft tissue injury; (c) left arm – aggravation of soft tissue injury, and (d) left hand – aggravation of soft tissue injury. 3. The Panel finds the following injuries; (a) cervical spine; (b) left shoulder; (c) left arm, and (d) left hand. are non-threshold injuries. |
STATEMENT OF REASONS
INTRODUCTION
This is an application by Jeffrey Forrest (the claimant) to review the certificate of Medical Assessor Tamba-Lebbie (the Medical Assessor) dated 23 November 2021.
The Medical Assessor made the finding that the following injuries are threshold injuries for the purposes of the Motor Accident Injuries Act 2017 (the Act):
(a) cervical spine – aggravation of whiplash injury with new whiplash;
(b) left shoulder – aggravation of soft tissue injury;
(c) left arm – aggravation of soft tissue injury, and
(d) left hand – aggravation of soft tissue injury.
It is submitted that the Medical Assessor has made impermissible and erroneous findings in the subject certificate, and accordingly the claimant’s injuries should be referred to the Review Panel for further consideration.
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
(a) whether the cervical spine – whiplash injury with radiculopathy/nerve damage/disc bulge at C3/4, C5/6, C6/7, C7/8 injury caused by the motor vehicle accident is a threshold injury for the purpose of the Act.
(b) Whether the left shoulder – rotator cuff injury/ tendon injury caused by the motor vehicle accident is a threshold injury for the purpose of the Act.
(c) Whether the left arm – soft tissue injury with radicular symptoms, weakness, loss of strength injury caused by the motor vehicle accident is a threshold injury for the purpose of the Act.
(d) Left hand – soft tissue injury with radicular symptoms, weakness, loss of strength, loss of grip in left hand injury caused by the motor vehicle accident is a threshold injury for the purpose of the Act.
Claimant’s submissions
The claimant submits that the Medical Assessor has erred in his assessment of the claimant’s injuries. The claimant makes the following submissions:
(a) the Medical Assessor has blatantly disregarded the medical evidence before him.
(b) Whether the claimant was under the care of a neurosurgeon before the subject accident in itself does not warrant the basis of the diagnosis/findings the Medical Assessor has reached.
(c) It is the claimant’s submission that prior to the subject accident, he had not suffered a loss of strength in either hand until the date of the subject accident.
(d) The claimant had consulted Professor Sheridan prior to the subject accident, and Professor Sheridan concluded that the claimant had osteoarthritis of the neck, it was not chronic, and that the paraesthesia the claimant had, that started in his upper thoracic spine radiated into his occiput and down both arms on three occasions, would not come back. The claimant says that these symptoms did not come back, and further says that this is supported by the medical evidence considered by the Medical Assessor.
(e) The neurosurgeon upon reviewing the claimant did not diagnose him with thoracic outlet syndrome, there was no confirmation of radiculopathy, and no ongoing care was recommended by Professor Sheridan.
(f) The Medical Assessor states in his certificate that the claimant has sustained a “previous more severe whiplash injury with disc problems”. The claimant submits that the statement made by the Medical Assessor creates a base of pre-existing symptoms and pathology by misconstruing the structure of events. The claimant says that the statement made by the Medical Assessor mentions two separate events some 14 years apart, with no established evidenced based link to each other, nor of any evidence-based link to this motor vehicle accident or my new symptoms thereafter. The claimant says that there is no mention of a pre-existing diagnosis made by Professor Sheridan that existed before the subject accident that now still exists and that is responsible for the symptoms the claimant is currently suffering from. The statement is misleadingly guiding the pretence of an ongoing issue from when the claimant was 17 years, leading to a neurosurgeon caring for him continually. The claimant says that this statement is not reflective of the treatment the claimant has undergone, or the change in his condition because of the subject accident.
(g) The claimant acknowledges that he did sustain a C2 disc injury when he was
17-years-old, however this injury was diagnosed by rheumatologist Dr Gotis Graham. The claimant says that there was no “multiple” disc injury as suggested by the Medical Assessor, the medical evidence confirms this, and the claimant did not go on to suffer from the symptoms he is suffering from now.(h) The claimant says that the Medical Assessor concluded that the claimant has now suffered a less severe whiplash injury in the subject accident.
(i) The claimant says that the Medical Assessor has had a complete disregard to the claimant’s medical evidence. The claimant says that there is no history in the medical evidence to indicate that the claimant suffered from an injury which caused him ongoing symptoms. The claimant submits that, as supported by the treating medical evidence, he had recovered from his previous injury, his current symptoms were not due to a chronic injury, but rather a new injury caused by the subject accident. The claimant says that he now suffers from severe and debilitating symptoms which were not recorded in his previous medical evidence. The claimant submits that the evidence considered by the Medical Assessor does not suggest or conclude that the claimant suffered from any weakness in his hands immediately before the subject accident.
(j) The claimant says that despite the Medical Assessor’s comments that the claimant’s symptoms are now more less frequent, the claimant submits that his symptoms are constant no matter if he is resting or moving. The claimant submits that this was pointed out to the Medical Assessor at the time of the assessment, namely in his shoulder abduction, external rotation and elbow flexion with opening and closing both his fists.
(k) The claimant says that the Medical Assessor has failed to identify that the claimant had never experienced hand weakness before the subject accident, and that his current symptoms are more common, and progressive in severity and frequency.
(l) The claimant says that he does not recall telling the Medical Assessor that he has contractures. The claimant says that he has pain on closing his left fist in his 4th and 5th digits, and it aches to the point that he has the tendency to open and close those fingers to relieve the ache.
(m) The claimant submits that in contradiction to his final diagnosis/findings, the Medical Assessor on page 5 of his certificate suggested at paragraph 17 that the claimant had suffered “chronic thoracic outlet problems”. The claimant submits that whilst he disputes that his condition is chronic as there is a lack of medical evidence to support this finding, the Medical Assessor’s commentary would indicate that the claimant does in fact suffer from a physical disorder where there is nerve compression/damage/injury. The claimant says that this would be consistent with the claimant’s complaints and symptoms as identified on page 3, paragraph 10 of the certificate which confirmed that the claimant experiences the following:
(i)weakness;
(ii)loss of grip strength;
(iii)paraesthesia;
(iv)loss of range of movement, and
(v)numbness.
(n) The claimant says that the fact that he has ongoing weakness in his hand, and he is weak in the power grip and 5th abduction with pain into the thenar eminence also suggests that this claimant’s injuries are more than just a threshold injury under the Act.
(o) The claimant submits that his symptoms are not chronic in nature and are directly related to the injuries sustained in the subject accident.
(p) With respect to the Medical Assessor’s comments on consistency, it is the claimant’s submission that this is a misleading statement of attribution of what is a very hard to diagnose and rare condition of multiple subtypes of either venous/arterial/neurogenic nature which the Medical Assessor does not have either current diagnostic modalities/information to make a current diagnosis for, nor does he have pre-existing data to establish a timeline of chronicity.
(q) The Medical Assessor’s statement concludes that the claimant’s symptoms are not related to whiplash but are consistent to this other process. The claimant says that the Medical Assessor does not further detail in any material fashion, his finding on the diagnosis or the premise of its pre-existence. The claimant submits that this is of material importance because if no link of pre-existence is made, and the history is taken properly, then a clear delineation of new onset muscle weakness in a nerve root distribution immediately following the accident and worsening over time would have been made that would have led to the inclusion of this other diagnosis of thoracic outlet to be included in the subsection summary of injuries not referred by the parties, but caused by the motor vehicle accident.
(r) The claimant says that despite the points addressed above, and his findings on clinical examination, the Medical Assessor determined that the claimant sustained a threshold injury.
(s) The claimant says that based on the certificate and the points raised above, it is submitted that the assessment criteria for radiculopathy has been met, noting that the following was present during the Commission’s examination and consistent in the claimant’s medical evidence:
(i)loss or asymmetry of reflexes;
(ii)muscle weakness;
(iii)reproducible sensory loss;
(iv)non-verifiable radicular complaints, and
(v)weakness and loss of sensation.
In addition to the above points, the claimant notes the following:
(a) during the assessment, the Medical Assessor mentioned to the claimant that he was there to assess whether the claimant suffered from carpal tunnel syndrome, which he noted during the assessment that the claimant did not suffer from carpal tunnel syndrome.
(b) The Medical Assessor did not objectively measure the claimant’s hand strength, nor did he test the two-point discrimination/ two-point sensation.
Regarding causation, the claimant says that the Medical Assessor has not formulated his findings on causation in accordance with the Act and the Motor Accident Guidelines (the Guidelines) with reference to the issue of causation, which has resulted in a material error with particular reference to the assessment of the claimant’s injury.
It is submitted that the reasons and findings set out in the certificate fail to conform with the requirements of the Guidelines as they fail the requirement that if a medical assessor is to make a negative finding on causation, that medical assessor must establish any such cause on the evidence and that cause must not be the product of mere speculation, as set out in the authority of Insurance Australia Limited trading as NRMA Insurance v Brown [2019] NSWSC 1236 where his Honour Button J stated:
“[76] no evidence placed before the Panel raised an alternative hypothesis about causation of that particular injury that rose above mere speculation; the reasons of the Panel were sufficient to regard its attribution of causation for the L5 injury to the accident in any event”.
Following this, the claimant submits that the reasons provided by Medical Assessor, as referred to are speculative at their highest and make no reference to any objective pre-existing evidence of injury or impairment, symptomatic or otherwise, which would justify a negative causation finding.
The claimant says that he has suffered non-threshold injuriesInsurers submissions
The insurer says that the Medical Assessor determined the following injuries are threshold injuries for the purposes of the Act:
(a) cervical spine – aggravation of whiplash injury with new whiplash;
(b) left shoulder – aggravation of soft tissue injury;
(c) left arm – aggravation of soft tissue injury, and
(d) left hand – aggravation of soft tissue injury.
The insurer submits that the assessment was not incorrect in a material respect.
Regarding pre-existing medical evidence, the insurer says that at paragraph 8 of the certificate, the Medical Assessor states:
“Dr Forrest had sustained a previous more severe whiplash injury with disc problems and was under the treatment of a Neurosurgeon before this motor vehicle accident”.
The insurer refers to paragraph 13(b) of the claimant’s submissions, where the following is stated:
“…whether the claimant was under the care of a neurosurgeon before the subject accident in itself does not warrant the basis of the diagnosis/finding the PIC Assessor has reached”.
The insurer says that presumably, the claimant’s solicitor is referring to the Medical Assessor’s pre-accident diagnosis of “severe whiplash injury with disc problems”.
The insurer notes the following:
(a) the claimant underwent an MRI of the cervical spine on 18 September 2019 which revealed spondylosis with severe bilateral foraminal stenosis and potential exiting nerve root impingement.
(b) The claimant then consulted Professor Mark Sheridan, neurosurgeon, who, on 11 October 2019, reported the claimant had a history of neck pain, interscapular pain, paraesthesia and numbness extending into both hands. On this occasion, Professor Sheridan reported that an MRI of the cervical spine had revealed:
(i)disc bulging and damage at C3-4, and
(ii)broad based disc at C6-7 which may be causing some mild nerve compression.
This was only four months prior to the subject accident.
(c) A/Prof Sheridan consulted the claimant again on 8 November 2019 where bone scan and nerve conduction studies were reviewed. He reported there was “discopathy at several levels in his neck entirely consistent with his symptoms”.
The insurer accepts that a mere consultation with a neurosurgeon does not create a diagnosis. However, the insurer says that the pre-accident assessment and reports of A/Prof Sheridan clearly provides the basis for a finding by the Medical Assessor that there was pre-existing history of neck pain, paraesthesia, numbness and various discopathy in the cervical spine which were symptomatic only four months prior to the subject accident.
The insurer says that any assertion by the claimant that the Medical Assessor was “misconstruing the structure of events” and that there is “no mention of a pre-existing diagnosis made by Professor Sheridan that existed before the subject accident” is simply incorrect.
Further the insurer says that the claimant’s submission at 13(g) that there “was a “multiple” disc injury as suggested by the PIC Assessor, the medical evidence confirms this” is inconsistent with the evidence of Professor Sheridan.
The insurer says that again, the claimant’s submission at 13(i) that the:
“PIC assessor has had a complete disregard to the claimant’s medical evidence. There is no history in the medical evidence to indicate that the claimant suffered from an injury which caused him ongoing symptoms…he had recovered from his previous injury.”
is incorrect.
The insurer says that the Medical Assessor has evidently had regard to the relevant, contemporaneous pre-accident records ProfessorSheridan and determined, correctly, that the claimant was suffering from cervical spine symptoms and injury only months before the subject accident.
The insurer refers to the claimant’s submission at paragraph 14(b) that the Medical Assessor “did not objectively measure hand strength nor did he test the two-point discrimination/two-point sensation”. The insurer says that this is incorrect.
The insurer says that at paragraph 16, page 4 of the certificate, the Medical Assessor explicitly states “he has normal strength in his hands and appears to have normal sensation. He has a negative Phalen’s test and a negative Tinel’s test. His two-point sensation in his hands is normal” (insurers emphasis added).
Regarding radiculopathy, the insurer refers to the claimant submission that the following criteria for radiculopathy was present in the examination by the Medical Assessor and “consistent in the claimant’s medical evidence”:
(a) loss or asymmetry of reflexes;
(b) muscle weakness;
(c) Reproducible sensory loss;
(d) non-verifiable radicular complaints, and
(e) weakness and loss of sensation.
The insurer says that the Medical Assessor recorded the following on examination:
(a) full cervical spine extension, able to touch chin on chest in flexion, and slightly limited rotation to left and right;
(b) no spasm;
(c) normal strength in hands and normal sensation;
(d) negative Phalen’s test and negative Tinel’s test, and
(e) two-point sensation in his hands is normal.
The insurer says that it is unclear what examination findings of the Medical Assessor the claimant believes constitutes a finding of radiculopathy. Evidently, the assessment did not result in two or more clinical findings of the abovementioned criteria of radiculopathy.
The insurer submits the Medical Assessor’s own examination clearly did not correlate with a diagnosis of radiculopathy and he had determined as such. It is essential for the Medical Assessor to differentiate between reported radicular complaints or symptoms and the clinical findings of radiculopathy found upon examination.
The insurer submits there is no error in the Medical Assessor’s determination that radiculopathy was not present.
Regarding causation, the insurer submits that it is evident from the Medical Assessor’s certificate that he has determined the claimant had pre-existing injuries on the basis of the objective medical evidence.
The insurer says that the Medical Assessor has referred to relevant documentation at paragraph 18 of his certificate and further summarised relevant radiological imaging at paragraph 19.
The insurer submits the Medical Assessor has adequately addressed any issue of causation.
Insurers initial submissions to the Medical Assessor for a threshold injury dispute
The insurer says that the dispute before the Medical Assessor is whether or not the following injuries are threshold injuries for the purposes of the Act:
(a) cervical spine – disc injury with radiculopathy in the left upper limbs (disc bulge at C3/4, C5/6, C6/7, C7/8);
(b) left shoulder – muscular tendon/nerve injury with radiculopathy, radicular symptoms, weakness, loss of strength;
(c) left arm – muscular and nerve injury with radiculopathy, radicular symptoms, weakness, loss of strength, and
(d) left hand – muscular and nerve injury with radiculopathy, radicular symptoms, weakness, loss of strength, loss of grip in left hand.
The insurer says that the collision/accident was minor.
The insurer submits that any alleged injuries to the cervical spine, left shoulder, left arm or left hand sustained in the subject accident, is a threshold injury for the purposes of the Act.
LEGISLATIVE BACKGROUND
The legislation
Part 7 of the Act contains provisions relevant to the resolution of disputes. Division 7.5 provides for the internal review by insurers of medical disputes before a matter can be referred for medical assessment, procedures for medical assessment and the ability for a party to seek one further medical assessment and the review of medical assessments.
The insurer’s application for review is made under s 7.26 of the Act. Pursuant to s 7.26(5A) the Panel is to be constituted of a Member of the Commission and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.
36.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 the Panel.
The Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act and Rule 128 provides that a Review Panel can determine how it conducts and determines the proceedings before it.
Consideration of the issues by the Panel
Clause 5.6 of the Guidelines provides guidance to treating practitioners, medico-legal practitioners and medical assessors as to how to conduct a medical assessment and is set out below:
“5.6 The assessment of whether an injury caused by the accident is a minor 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 cervical and/or lumbar radiculopathy?
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 minor injury assessments.
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.”
For the claimants injuries to fall outside the definition of minor 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.
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 1 April 2023, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52 week limitation period.
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 minor injury assessments. The claimant has raised this issue concerning a radiating injury from her neck to both arms.
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.”
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a 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.
The accident
The claimant was injured in a rear end collision on 25 February 2020.
The medical evidence
Pre-accident medical summary
In a report from Dr Shwartz, neurologist, dated 21 December 2016, it was noted that the claimant had vestibular migraines.
An MRI scan of the cervicothoracic spine dated 18 September 2019 revealed C6/7 spondylosis with severe bilateral foraminal stenosis and potential exiting nerve root impingement.
Before the accident, Associate Professor Sheridan, neurosurgeon, provided a report of 11 October 2019. The doctor examined the claimant due to his history of neck pain, with interscapular pain, paraesthesia and numbness extending into both hands. It was noted that the claimant’s neck pain limited his day to day activities.
Professor Sheridan prepared a further report dated 8 November 2019. He reviewed the bone scan and nerve conduction studies and noted that it showed discopathy at several levels in his neck “entirely consistent with his symptoms”. He recommended CT guided steroid injections and referred the claimant to an exercise physiologist.
Post-accident medical summary
A Certificate of Capacity dated 25 February 2020 noted the claimant’s diagnosis as “Neck and L arm pain shooting down into hand and headache after MVA”.
In a medical certificate completed by Dr Tuxford, general practitioner (GP), dated 27 February 2020, the claimant’s diagnosis was noted to be “stiff from neck namely left side with pain radiating down L arm to hand and L hand weakness and headaches”. It was noted the claimant had a history of C6/7 spondylosis with bilateral foraminal stenosis.
An MRI scan of the cervical spine dated 28 February 2020, three days post-accident, showed no evidence of ligamentous injury was demonstrated. When compared to a previous MRI study of 19 September 2019, the overall appearance of the cervical spine was unchanged. The conclusion was that of a stable appearance with no evidence of acute injury.
In a report by Dr Jomaa, specialist registrar in sports and exercise medicine at Active Recovery Clinics dated 19 March 2020, he noted that the claimant had “a more severe motor vehicle accident in 2017 when he was similarly struck from behind and describes having split a disc in his neck at the time”. Dr Jomaa provided a diagnosis of whiplash associated disorder Grade I-II, “in the context of more severe Grade III whiplash associated disorder in 2017”. He believed the claimant’s condition “best considered as a mild exacerbation of underlying symptoms since his 2017 motor vehicle accident”.
Dr Jomaa provided a further report of 11 June 2020. He said that the claimant agreed with his impression that it was extremely unlikely that his symptom cause was structural in nature. However, it was reported that in view of his then current presentation and persistence of symptoms, specifically relating to pain that woke him at night and exacerbation of his symptoms on ulnar nerve stretch, it could not be entirely excluded that his symptoms were a consequence of a possible lesion in the lower cords of the brachial plexus. The claimant was encouraged to explore increasing his neural glide exercises.
There is a treating orthopaedic surgeon’s report from Dr Singh dated 18 June 2020. The claimant demonstrated no spinal tenderness, normal coronal and sagittal balance, decreased sensation to fine touch in the C7 and C8 distributions of the left hand and a normal range of motion of the cervical spine in full flexion, extension, lateral rotation and lateral flexion. The claimant was described as having left arm pain and weakness following a low-speed car accident on 25 February 2020.
In an Allied Health Recovery Request for physiotherapy dated 21 April 2020, it was noted the claimant’s diagnosis was whiplash associated disorder (WAD) III.
In a further report from Dr Jomaa dated 30 April 2020, he noted that the claimant had an MRI post-injury which showed no evidence of any structural injury in the area of C7.
Dr Wallace, orthopaedic surgeon, provided a report dated 22 May 2020. Dr Wallace noted that the claimant had full range of movement in his cervical spine with no focal neurological deficit at this upper limbs. He provided a diagnosis of whiplash associated disorder grade I as a result of the subject motor vehicle accident.
Dr Griffith conducted a nerve conduction study on 24 June 2020. This concluded the claimant had a normal left ulnar nerve study with no evidence of ulnar nerve entrapment at the elbow or wrist, normal left median and ulnar sensory amplitudes with no features of lower brachial plexus abnormality.
In the Allied Health Recovery Request dated 21 April 2020, it was recorded that the claimant had reduced grip strength in his left hand, in comparison to the right hand.
On 18 June 2020, the claimant’s GP, Dr Tuxford provided a report. In this report, Dr Tuxford noted that the claimant suffered from a C6/7 disc bulge with left arm pain and weakness following the accident.
Dr Tuxford also stated the following:
“He has previously had some aching pain in the neck but has never had radicular symptoms in the arms.
Following the accident e noticed that he had significant weakness in the left hand and was dropping things. Rehabilitation has improved his grip strength, but two weeks ago he had pain shooting down the left arm.
He has neck pain and intrascapular and periscapular pain. The radicular symptoms in the left arm are in the C7 and C8 distributions.
An MRI scan of the cervical spine taken after the accident reveals that he has foraminal stenosis and disc bulging at C6/7.
He has displayed worrying symptoms of left arm weakness and numbness”.
On physical examination, Dr Tuxford noted the following:
“Demonstrates shade weakness of grip of strength and interossei in the left hand”
“sensory examination of the upper limbs demonstrates decreased sensation of fine touch in the C7 and C8 distributions on the left hand.”
Myhealth Medical Practice clinical notes report:
4 September 2019 long history of left knee issues ACL after injury playing soccer.
9 October 2019 upper limb/neck symptoms ongoing and progressive. Review once seen neuro team and update on plan.
6 November 2019 discussed sleep apnoea, mild, diagnosis and impact on life and options.
25 February 2020 CTP accident driving for which getting sought neck and electric shooting pain down left arm. No head trauma or loss of consciousness.
27 February, symptoms similar to last consultation.
28 April 2020 only getting threshold T1 radiculopathy and responding well to physio. No new issues CTP manager happy with his progress and authorising physio. Slightly weaker abduction little finger on left side compared to right.
Medical Assessor Tamba-Lebbie provided a certificate dated 17 November 2021.
The Medical Assessor reported that the claimant had sustained a previous more severe whiplash injury with disc problems and was under the treatment of a neurosurgeon before this motor vehicle accident. He said that the claimant had suffered a less severe whiplash injury in this motor vehicle accident. He continued to have symptoms. These symptoms were worse with movement of the head and position of the neck compared to the rest of the body.
The Medical Assessor reported that the claimant:
“…sustained an injury on 25th of February 2020. He was at a standstill on the bridge when someone hit his car from behind. He was looking at the rear-view mirror and saw the other car approach. He had a forceful flexion and extension of his c-spine. He felt a twinge on the left side of his c-spine. He suffered a second whiplash injury. He also tells me that there was a ‘jolt’ aspect to it. It felt like his c-spine had ‘translated forward and the back’. He arranged for the lady in the other car to be taken to hospital as she was heavily pregnant. Dr Forrest drove his own car to the wreckers. Two hours later he saw his GP”.
The following movements were recorded.
Shoulder Movements Active ROM Measured RIGHT Active ROM Measured LEFT Flexion 170° 150° Extension 60° 40° Adduction 160° 150° Abduction 40° 40° Internal Rotation 80° 30° External Rotation 90° 90°
Elbow Movements Active ROM Measured RIGHT Active ROM Measured LEFT Flexion 140° 140° Extension 0° 0° Pronation 90° 80° Supination 80° 80°
Wrist Movements Active ROM Measured RIGHT Active ROM Measured LEFT Flexion 60° 60° Extension 60° 60° Radial Deviation 20° 20° Ulnar Deviation 30° 30°
The Medical Assessor concluded that the claimant:
“…had a pre-existing whiplash injury. The new injury had aggravated the pre-existing injuries. The claimant was under the care of a Neurosurgeon before the injury. The reasons for this care pre-existed the new less severe whiplash. The new injuries do not meet the criteria for a non- threshold injury”.
Panel medical examination
The claimant was examined by Medical Assessor Dixon and Medical Assessor Stubbs on 2 June 2023. Their report follows.
“This 34 year old claimant was injured when his car was stationary on Camden bridge in Camden, NSW. His car was rear ended with force and he sustained a whiplash injury to his neck with pain radiating to the left and had paraesthesia in his left upper extremity extending to the little and ring fingers and ongoing weakness for holding things for prolonged periods of time. He had review by his GP followed by physiotherapy treatment and was referred to Dr Bisham Singh who advised surgery. He had a perineural cortisone injection at C6 nerve root on the left. He did have MRIs which showed C5/6 spondylosis.
He subsequently had exercise physiology with some bracing exercises but his symptoms of neck pain and stiffness and radicular complaint with pain extending from the neck through the shoulder to the forearm with paraesthesia in the little and ring fingers of the left hand persisting.
It was submitted by the insurer that any alleged injuries to the cervical spine, left shoulder, left arm and left hand were threshold injuries and the claimant submits that they were non-threshold injuries.
Additional late documents were received from the Insurer, QBE, where he had seen a Dr Russell Bourne, orthopaedic surgeon, on 10 December 2021 regarding persisting pain in his left knee where he had previous arthroscopies and ACL graft constructions on two occasions. This knee injury was not part of the brief today.
Dr Bourne eventually did arthroscopic debridement of the left knee and removed a loose body.
The more significant late documents were an ultrasound report performed as part of a bilateral arterial/venous thoracic outlet study which showed, on provocation manoeuvres on the right on 12 December 2021, that pain and numbness were induced with hyper abduction positions with mild compression at 90 degrees compressing to moderate compression at 180 degrees of the subclavian/axillary artery on the left, with pain and numbness and mild pain and numbness on the right.
Dr Rebecca Magee, Sunshine Coast vascular surgeon, in her letter of 14 December 2021, reported to the claimant’s GP, Dr Contractor on 14 December 2021 that the claimant had problems with paraesthesia affecting his left hand, usually the fourth and fifth digits and at times, the middle finger and now, some constant weakness in the left hand, which had been previously been intermittent. She also noted the claimant had a medical history of previous migraines that have been exacerbated since the subject motor vehicle accident, for which Botox injections have been trialled.
She noted that both radial arteries ablated with thoracic outlet provocation manoeuvres and the left hand went quite pale with the military manoeuvre.
She felt that the claimant may well have some arterial thoracic outlet symptoms although the main symptoms currently are neurogenic. She then arranged an MRI of the brachial plexus thoracic outlet which was performed on 17 March 2022 which showed no vertebral fractures and a normal cervical and upper thoracic cord and a small left foraminal disc osteophyte complex, resulting in mild foraminal narrowing and at C6/7 posterior disc bulge with central annular tear with bilateral uncovertebral osteophytes resulting in moderate foraminal narrowing and possible exiting C7 nerve impingement. There was normal appearance of the brachial plexus without evidence of neural or vascular compression and no cervical ribs.
The summary of her letter on 22 March 2022 was there was some evidence of moderate vascular compression, but this can be a finding in normal individuals and does not account for the majority of the claimant’s symptoms, which appear to be largely neurogenic in character. A CT angiogram of the thoracic outlet was performed on 16 March 2022 which showed 70% stenosis of the left subclavian artery in the arms, secondary to extrinsic compression related to the clavicle in the first rib.
On presentation today, 2 June 2023, the claimant indicated persistence of the radicular complaint down to the little and ring fingers, where he has had fairly consistent and recurrent paraesthesia and he had persisting brachalgia with pain radiating down the arm to the medial forearm to these two digits . He reports left sided neck pain as well as left sided occipital migrainous headaches. He indicated that his neck pain and stiffness impacted on his ability to drive, particularly to reverse park, change lanes and check the blind spots. His neck pain disturbs his sleep and at times he has had vertigo.
On examination the claimant presented in a straight forward manner and was consistent. He articulated his symptomatology well and reports that since the subject accident, the brachalgia in his left upper extremity has not resolved.
He noted there had been no significant change despite medication, peri-neural cortisone injection at C6, physiotherapy and exercise physiology.
He has difficulty sleeping on the left due to pain and finds it difficult to concentrate due to his occipital migraines. He finds it difficult to work as a general practitioner (he has moved to the Sunshine Coast and joined a practice there). He finds it difficult to do repetitive hand movements or sustained grip. He noted that the physiotherapist had done dynamometer studies on grip strength in his left hand and that it was substantially less than that on the right.
On examination he was 186cm tall and weighed 99.8kg. There was stiffness of his cervical spine with lateral rotation to the left decreased by one third and that to the right by one quarter. Flexion extension was decreased by one quarter and lateral flexion decreased by one third to the left and one quarter to the right. He had tenderness of the left trapezius muscle and the left supraclavicular brachial plexus and his brachial plexus stretch test was positive as was his cervical foraminal compression test. The reflexes were difficult to elicit in both upper extremities. He did have wasting of his left arm, 35cm above the elbow compared with 37cm on the right and 1cm of wasting of his left forearm, measuring 31cm on the left and 32cm on the right.
There was sensory alteration in the ring and little fingers of his left hand and his intrinsic power was grade 4 out of 5 with some wasting of the first dorsal interosseous space. His envelope test for intrinsic power was also reduced and his Froment’s sign was present. The ulnar nerve was not tender at the elbow and the Tinel’s sign was negative at the wrist.
He had a full range of motion of the digits of his left hand and left wrist and elbow but there was discomfort on elevating his left arm with flexion 150 degrees and abduction 130 degrees, associated with some brachalgia with extension 40 degrees, adduction 40 degrees and external rotation 80 degrees and internal rotation 80 degrees. On elevation of his arms, his left radial pulse diminished but that on his right arm on elevation was maintained in the hands up position.
His grip strength in the left hand was grade 4 out of 5 and thenar power was grade 5 out of 5. Flexion extension was grade 5 out of 5 and shoulder power was grade 4 plus out of 5, limited by pain. He had full power in his right upper extremity. There was no neurological deficit on the right.
His more recent investigations have been detailed above. The MRI of the cervical spine on 28 February 2020 showed mild dorsal disc bulge and mild right foraminal narrowing and at C5/6 mild loss of disc height with disc desiccation and disc bulge with mild foraminal narrowing due to uncovertebral hypertrophic and mild disc prolapse and mild loss of disc height at C6/7 with mild dorsal disc bulge and mild bilateral foraminal narrowing. There was no evidence of ligamentous injury. When compared with the previous MRI of 18 September 2019, the appearances were unchanged.
His diagnoses are C8 radiculopathy at the left upper extremity due to traction following the whiplash injury to his neck. His vascular surgeon, while demonstrating some vascular compression on outlet studies, was of the opinion his symptoms were mainly neurogenic and it appeared to the Assessors that this was the case clinically.
In conclusion, the injuries caused by the subject motor vehicle accident to the cervical spine, left shoulder, left arm and left hand are non-threshold injuries for the purposes of the Act, as he has C8 radiculopathy due to traction injury because of the following findings;
a)Change in circumference between the two arms and forearms accompanied by evidence of wasting of the hypothenar musculature on the left side (C8 distribution).
b)Reduced sensation in the ring and small fingers to sensory testing and weakness of the interosseous muscles in the hand (C8 distribution).
c)Positive nerve root tension sign Brachial Stretch Test and compression signs, Spurling’s manoeuvre – both indicative of a neuropathy on the left side in the lower left-sided nerve roots but not distinguishing between C7 and C8.
Summary of scans/investigations
MRI of the cervical spine and brachial plexus on 18 September 2019 showed straightening of the normal cervical lordosis and although there is no gross disc protrusion, at C3/4 there is an annular tear on the T2 weighted images. There are no cervical ribs and there is normal appearance of the brachial plexus and I can see no evidence of sculina anterior compression. There is mild foraminal narrowing at C5/6 and at C6/7 there is a disc bulge with an annular tear but with bilateral uncovertebral osteophytes resulting in moderate to foraminal narrowing and probable exiting C7 nerve root impingement. Although there is on abnormality at C7/T1, this does not preclude traction injury to the C8 nerve root. Although the alignment of the vertebra has been reported as normal, there is loss of proximal cervical lordosis and there appears to be, on image, SPL4.1 and SPL1.4 very mild retrolisthesis of C6 on C7. There is no evidence of avulsion of the brachial plexus nerve roots.
MRI of the cervical spine on 28 February 2020 showed disc bulge at C3/4 and C5/6 and there is no apparent syrinx of the cervical cord and no evidence of fracture. The conclusion is there is a stable appearance since the study of September 2019.
MRI of the cervical spine and brachial plexus on 17 March 2022 showed no change apart from a C5/6 small left foraminal zone disc osteophyte complex, without neural impingement and no brachial plexus/thoracic outlet syndrome nor spinal cord injury.
MRI of the neck and brachial plexus and thoracic outlet on 31 May 2023 with DSA (digital subtraction angiography) done with the arms elevated and adducted did show minor degenerative changes at C6/7 with mild foraminal stenosis. The brachial plexuses appeared normal bilaterally. The scalene muscles, particularly the anterior scalenus anticus, appeared normal and there did not appear to be a scalenus minimus, a detached part of the scalenus, which separates the subclavian artery from the brachial plexus. The subclavian appeared normal and the subclavian vessels had normal configuration although the vertebral artery on the left appears to be arising directly from the aortic arch. There is no apparent compression of these subclavian vessels with the arms elevated or adducted. This is consistent with there being a neurogenic origin to the claimant’s symptoms of a classic thoracic outlet syndrome and this is consistent with his C8 radiculopathy, as found on examination on 2 June 2023 at the PIC Suites in Oxford Street, Sydney.”
The Panel adopts the findings and report of Medical Assessor Dixon and Medical Assessor Stubbs.
Causation
The Motor Accident Guidelines
The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides).
The authorities
In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5-6.7 of the Motor Accident Guidelines, being clauses 1.7-1.9 of the Permanent Impairment Guidelines.
Campbell J in Owen v Motor Accidents Authority (NSW),[4] adopted Justice Johnson's approach with a caution touching upon the CLA:
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2)) of the Civil Liability Act (the CLA)."[5]
[4] [2012] 61 MVR 245; [2012] NSWSC 650.
[5] At [27].
As said by Justice Campbell in Owen, s 5D of the Civil Liability Act 2002 (CLA) also needs to be considered when assessing causation.
80.Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."
There are two elements to address when assessing causation under s 5D(1):
"factual causation";[6] and
[6] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
"scope of liability".[7]
[7] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing "factual causation" and "scope of liability" involves making value judgments.[8]
[8] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In the accident involving the claimant, his car was collided into from behind. It was sudden, and with some degree of force which would have thrown his neck and head in a whiplash action.
The Panel has viewed clinical notes of the claimant’s GP for the period both before and after the accident. There is evidence before the Panel of a pre-existing condition of the claimant for his cervical spine, thoracic spine, lumbar spine and right shoulder.
The Panel accepts that the claimant suffered an injury to his cervical, thoracic and lumbar spine as a result of the accident. It is reasonable to suspect that in a rear end collision there would be some forces in play which would throw a person forward and back to some extent, even if restrained. This initial impact was compounded by a subsequent impact when the claimant’s car was pushed into the car in front, resulting in two impacts in a very short space of time.
The Panel is satisfied that the accident has had a more than negligible impact on the claimant’s injuries. While he had sought treatment with neurologist before the accident, the accident caused an acute injury for which he has sought continuous and ongoing treatment.
The clinical notes of the claimant’s GP record complaints of pain in the claimant’s neck and back after the accident.
Before the accident, Professor Sheridan said there were disc lesions but did not say that there was radiculopathy. Rather, he said that there was the less specific, discopathy.
The Panel finds that the Medical Assessor has contradicted himself in his certificate when he suggested at paragraph 17 that the claimant had suffered chronic thoracic outlet problems. The claimant disputes that his condition is chronic and there is a lack of medical evidence to support this finding but furthermore, the Medical Assessor goes on to say that the claimant does in fact suffer from a physical disorder where there is nerve compression/damage/injury. The claimant says that this is consistent with his complaints and symptoms as identified on page 3, paragraph 10 of the certificate and which confirmed that the claimant experiences the following:
(a) weakness;
(b) loss of grip strength;
(c) paraesthesia;
(d) loss of range of movement, and
(e) numbness.
On examination of the claimant by the Panel, he demonstrated the following signs of radiculopathy;
(a) change in circumference between the two arms and forearms accompanied by evidence of wasting of the hypothenar musculature on the left side (C8 distribution).
(b) Reduced sensation in the ring and small fingers to sensory testing and weakness of the interosseous muscles in the hand (C8 distribution).
(c) Positive nerve root tension sign Brachial Stretch Test and compression signs, Spurling’s manoeuvre – both indicative of a neuropathy on the left side in the lower left-sided nerve roots.but not distinguishing between C7 and C8.
(d) Intrinsic weakness of his left hand.
(e) Wasting of the interossei muscles especially in the 1st dorsal interosseous muscle.
There were no signs of radiculopathy before the accident which were identified or commented upon by the claimant’s treating practitioners before the accident. It is only following the accident that these signs were identified.
Conclusion
The reason the claimant has C8 radiculopathy is that he has intrinsic weakness of his left hand with wasting of the first dorsal interosseous muscle and grade 4 out of 5 intrinsic power and has sensory change in the little finger and this is consistent with the C8 radiculopathy due to traction injury.
MRI findings of the cervical spine of MRI of 17 March 2022 did show an annular tear. A reason the Panel wanted to examine the imaging studies was to review the C8 nerve root exit at the C7/T1 level. If there is a compressive lesion causing the radiculopathy then this is where examination would focus. C8 radiculopathy is a typically associated with traction injuries.
The difficulty this claimant has is that his radicular complaint has been unrelenting and has not settled, despite extensive conservative management and there is no obvious surgical target in the cervical spine that would equate to this level of injury, with his main disc lesions being a C5/6 mild disc prolapse and bilateral bulge at C6/7 with foraminal narrowing.
The claimant does have the features of C8 radiculopathy clinically and it is therefore a non-threshold injury.
The C8 radiculopathy was confirmed by the Panel on examination secondary to traction injury.
Determination
The Panel revokes the decision of Medical Assessor Tamba-Lebbie dated 23 November 2021 going to the determination of threshold and non-threshold injuries suffered by the claimant in the accident of 25 February 2020.
The Panel finds that the claimant suffered the following injuries in the accident of
25 February 2020:(a) cervical spine – aggravation of whiplash injury with new whiplash;
(b) left shoulder – aggravation of soft tissue injury;
(c) left arm – aggravation of soft tissue injury, and
(d) left hand – aggravation of soft tissue injury.
The Panel finds the following injuries;
(a) cervical spine;
(b) left shoulder;
(c) left arm, and
(d) left hand.
are non-threshold injuries.
Clause 6.6 provides:
“Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
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