Forrester v AAI Limited t/as GIO
[2025] NSWPICMP 84
•12 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Forrester v AAI Limited t/as GIO [2025] NSWPICMP 84 |
CLAIMANT: | George Forrester |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Mohammed Assem |
MEDICAL ASSESSOR: | Les Barnsley |
DATE OF DECISION: | 12 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury; whether alleged injuries to the cervical spine, lumbar spine, and bilateral shoulders are caused by the motor accident and are threshold or non-threshold injuries; Held – lumbar spine injury not caused although mechanism of accident “could” have caused a lumbar spine injury; claimant denied any change to his pre-existing back symptoms following the motor accident; cervical spine and bilaterial shoulders causally related and are threshold injuries; David v Allianz Australia Insurance Ltd applied; Medical Assessment Certificate revoked; injury to the lumbar spine was not caused by the motor accident. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017. The Review Panel: 1. Revokes the certificate issued by Medical Assessor Home dated 18 June 2024. 2. Determines that the following injuries caused by the motor accident: (a) cervical spine: aggravation of underlying degenerative change; non-verifiable radicular complaints in the upper extremities; (b) right shoulder: referred pain from the neck, and (c) left shoulder: referred pain from the neck are threshold injuries for the purposes of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
George Forrester (the claimant) was involved in a motor accident on 1 June 2023. He was driving a car in the outside lane of a two laned roundabout when a car in the inside lane cut across his path and hit his car.
The claimant says he injured his cervical spine, lumbar spine, both shoulders and suffered psychiatric disorders in the accident.
He made a claim for statutory benefits with GIO, the third-party insurer of the vehicle that he says caused the accident.
A medical dispute arose about whether the claimant’s injuries were threshold or non-threshold injuries and the matter was referred to the Personal Injury Commission (Commission) for medical assessment.
On 18 June 2024, Medical Assessor Alan Home found the claimant’s physical injuries to be caused by the motor accident and that they were threshold injuries.
The claimant lodged an application with the Commission seeking review of the Medical Assessor’s decision. This was allowed by the President’s Delegate and this Review Panel was convened to conduct the review.[1]
[1] Section 7.26(5) of the Motor Accident Injuries Act 2017 (MAI Act).
THE REVIEW
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[2]
[2] Section 7.26(6) of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[3]
[3] Section 7.26(7) of the MAI Act.
A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the Personal Injury Commission Rules 2021.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Home was referred the following threshold injury dispute:
(a) cervical spine injury: discal injury with radiculopathy and numbness into upper limbs and fingers;
(b) lumbar spine injury: aggravated discal injury with referred pain to lower limbs;
(c) right shoulder injury: rotator cuff injury and referred pain from neck, and
(d) left shoulder injury: rotator cuff injury with referred pain from neck.
In relation to the cervical spine, Medical Assessor Home accepted that the claimant suffered a Whiplash Associated Disorder as there were early complaints of neck pain documented in the medical file and the CT scan investigation. The Medical Assessor examined the claimant and noted reduced sensibility in the right ring and left little finger tips. As there were no other clinical signs, the Medical Assessor found that the criteria for radiculopathy was not met.
For the claimant’s bilateral shoulder pain, the Medical Assessor found that this was likely due to referred pain from the cervical spine as it was not apparent that there was a discrete injury to either shoulder.
For the lumbar spine, Medical Assessor Home relied on a history given by the claimant that he had previously underwent extensive lumbar spinal fusion surgery, initially in 1989 and again in 2011. He also has a permanent spinal stimulator to manage low back pain. Following the surgeries, the claimant said he had bilateral shooting pain extending into his legs. The claimant could not recall any material aggravation to his pre-existing lower back pain. Medical Assessor Home concluded that the claimant likely sustained an exacerbation of his pre-existing back condition, from which he has since recovered.
Medical Assessor Home concluded that the claimant’s injuries were threshold injuries and issued the following certificate:[5]
(a) cervical spine: aggravation of underlying degenerative change; non-verifiable radicular complaints in the upper extremities;
(b) lumbar spine: pre-existing L3/S1 fusion, temporary exacerbation of symptoms of low back pain – resolved;
(c) right shoulder: referred pain from the neck, and
(d) left shoulder: referred pain from the neck.
[5] Issued under s 7.23(1) of the MAI Act.
Medical Assessor Home concluded that the claimant’s injuries were threshold injuries.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant lodged submissions with the original application for assessment of a threshold injury dispute dated 27 March 2023 as well as submissions made to the President’s Delegate dated 16 July 2024.
The claimant says the following evidence supports a finding of a non-threshold injury due to the presence of radiculopathy:
(a) clinical notes of Villawood Medical Centre (as at 15 March 2024): records that the claimant has been suffering from symptoms including “neck pain worse at night”, “numb fingers – both sides some times”, “neck pain with radiculopathy” and “sometimes pins and needles feeling on fingers”. It is further recorded that the claimant presented with “tender lower neck”, flexion and lower flexion “very limited due to pain” following the motor accident.
(b) Certificate of Capacity dated 9 June 2023: claimant had sustained “neck and back and shoulder pain” after the subject accident and has been experiencing numbness in his left hand and fingers.
(c) Physiotherapy Initial Assessment Report dated 7 July 2023: located within the clinical file of Rehab Solutions as at 9 March 2024, the claimant had neck pain that was “stiff and painful” with “numbness and nerve pain” at “all ten fingertips” and aggravation of lower back pain following the motor accident.
The claimant relies on the Review Panel decision of David v Allianz Australia Insurance Ltd (David).[6] The claimant says consistent with the decision in David, the claimant’s treating doctors confirmed the presence of at least two clinical signs of radiculopathy and accordingly the claimant has a non-threshold injury.
[6] [2021] NSWPICMP 227.
The claimant’s submissions on review essentially reproduce passages from Medical Assessor Home’s history, clinical findings on examination and the cervical spine radiology and assert that the criteria for radiculopathy were satisfied.
In short, the claimant’s argument is twofold. First, that there was medical evidence before Medical Assessor Home for a diagnosis of cervical spine radiculopathy and, second, that Medical Assessor Home should have diagnosed cervical spine radiculopathy based on his own clinical findings on the day of the assessment.
Insurer’s submissions
The insurer lodged submissions in reply to the original application for assessment of a threshold injury dispute dated 10 April 2024 as well as submissions made in reply to the Application for Review dated 2 August 2024.
The insurer acknowledges that the claimant has radicular symptoms in his cervical spine but that the criteria for radiculopathy are not met.
In relation to the back and shoulders, the insurer says the Certificate of Capacity dated 9 June 2023 noted complaints of pain but no diagnosis was made to these body parts. The insurer also refers to the clinical notes from Villawood Medical Centre and say they do not record any post-accident shoulder pain.
The insurer says the claimant had a pre-existing back injury and has undergone two surgeries which culminated in a spinal cord stimulator being inserted. The insurer also states that the claimant had a subsequent unrelated injury to his back due to a fall.
The insurer submits that the motor accident-related injuries to the back and bilateral shoulders should be omitted from assessment or, in the alternative, are soft tissue in nature.
The insurer’s review submissions note that the claimant does not make any submissions with respect to the Medical Assessor Home’s assessment of the lumbar spine or bilateral shoulders. The insurer disputes that the claimant’s cervical spine injury satisfies the criteria for radiculopathy.
REVIEW OF THE EVIDENCE
On 9 August 2024, the Review Panel issued a direction to the parties requiring indexed and paginated bundles of the information they relied upon. Both parties duly responded with the claimant’s bundle comprising of pages 1-580 and the insurer’s 1-8.
The Review Panel notes that the documentation is voluminous and at times, repetitive, and will only refer to the material that are relevant to the matters to be determined in the threshold injury dispute.
Claim form and claim documents
The claimant was born in 1946 and was 76 years of age at the time of the accident.
The Application for personal injury benefits (claim form) dated 11 June 2023 relies on Certificate of Capacity dated 9 June 2023 completed by Dr Samarasekera.
Dr Samarasekera provided the following description of the motor accident and the claimant symptoms:
“Motor vehicle accident due to car turn to Right in front of his care inside the roundabout. His car was right off (sic) and he was jerked and neck and back and shoulder pain after that. Feels numb on Left hand few fingers. He has flash back since then.”
Dr Samarasekera diagnosed “Whiplash-Associated Disorder Grade 2 due to MVA”. The doctor also stated the claimant had pre-existing back pain with two surgeries and has a spinal cord stimulator.
Villawood Medical Centre – clinical notes
Before the accident
The pre-accident notes refer predominately to the claimant’s longstanding work-related back injury that occurred in 1989 for which he has an ongoing workers compensation claim. The notes detail the spinal fusion surgery and the insertion of a spinal cord stimulator in 2018. The claimant also reported inactivity due to back pain and falls in June 2017 and October 2018.
On 30 January 2023, Dr Samarasekera referred to an ultrasound requested by a workers compensation doctor which noted “Left supraspinatus tendinosis/Left subacromial bursitis”. There was an administration of Prolia.
After the accident
Following the accident the claimant continued to see Dr Samarasekera with the relevant clinical entries detailed below:
(a) 5/06/2023 – neck pain – no numbness on the hands;
(b) 23/06/2023 – neck pain with radiculopathy. motor vehicle accident over three weeks. Neck pain worse at night. Numb fingers – both sides sometimes. Plan CT and MRI then physio. Imaging requested (Clear View Medical Imaging). CT Scan Cervical spine;
(c) 27/06/2023 – tender lower neck C6/7. Flexion and lateral flexion very limited due to pain. Extension 30 degrees. Muscle power both upper limbs 3/5. Sensation intact;
(d) 12/07/2023 – CT done, seen by physio once (neck pain worse on moving and numbness on finger), Lyrica and Panadol for nerve pain. To see physio in two days. Results of cervical spine CT given to patient;
(e) 9/08/2023 – numbness on fingers and pain sometimes. Physio weekly;
(f) 6/09/2023 – mild neck pain with radiculopathy. Neck pain worse when move. Sometimes pins and needles feeling on fingers. More on R side;
(g) 4/10/2023 – nil changes – neck pain with radiculopathy. SAME;
(h) 3/11/2023 – fall crossing road. Pain right side of groin, unable to stand up or walk more than 500 meters. Limping. Struggling to sit and stand up;
(i) 10/11/2023 – fall from bed. CT Lumbar 2022 and recent scan noted and compared;
(j) 19/12/2023 – neck pain 2-3/10. Numbness along fingers on and off. Physio two per week;
(k) 20/03/2024 – Whiplash-Associated Disorder Grade 2. Referral to neurosurgeon. C/O numbness on fingers 3-5 and pains. Sees Physio. More focused on lower neck. Sessions helping;
(l) 3/04/2024 – neck pain same. No numbness on hands. Headaches sometimes;
(m) 17/04/2024 – going to have bilateral C4/5 facet and transforaminal block, followed by bilateral C5/6 facet and transforaminal block, and
(n) 29/05/2024 – well. Neck issue better.
Rehab Solutions
Physiotherapy Initial Assessment Report from Rehab Solutions dated 7 July 2023. Report by treating physiotherapist Nadir Saadi. Mr Forrester reported intermittent dull ache neck pain with numbness and “nerve pain” at all 10 fingertips. On examination, there was moderate restrictions in cervical flexion (1/2 range), extension (1/2 range) and right lateral flexion (1/3 range) with intense pain at end of ranges. Grip strength right side 20kg, left side 12kg, limited by pain in hands and wrist (b/g of arthritis). Palpation. Tender over suboccipitals bilaterally, R>L. Also tender on palpation over right facets of C3/4/5/6 vertebrae. Pain in compression in extension/right lateral flexion on right side. Pain on palpation over 1st ribs bilaterally, palpation of right 1st rib caused shooting pains into right thumb.
Improvement Physiotherapy Progress Report 19 September 2023 and 17 November 2023. Physio treatment.
Sydney Spine & Pain
Sydney Spine & Pain – 9 April 2024, 17 October 2023, 27 April 2023, 24 January 2023, 22 December 2022, 25 October 2022 and 26 July 2022 – persistent lower back pain. No aggravation by motor vehicle accident reported? Neck pain. Left shoulder pain, bilateral hand pain, bilateral leg pain. Bilateral hip pain.
Radiology
CT Lumbar spine dated 27 July 2022 – previous L4/S1 fusion noted with spinal cord simulator.
X-Ray left shoulder and ultrasound left shoulder dated 17 November 2022 – there was mild osteoarthritic change in the glenohumeral and acromioclavicular (AC) joints. There was supraspinatus tendinitis with associated subacromial bursitis. No abnormality was seen in the tendon of the long head of biceps and the subscapularis and infraspinatus tendons appeared normal.
CT Cervical spine dated 29 June 2023 – anterolisthesis noted at C5/6 and mild borderline retrolisthesis at C4/5 on a background of advanced facet degeneration. No widened facet joints noted to suggest destruction injury. The C4/5 and C5/6 facets are degenerative. The vertebral body margins are intact. Posterior elements are intact. Paraspinal and vertebral soft tissues otherwise unremarkable.
No acute bony injury. Background of degenerative changes at C4/5 and C5/6 as described
CT Cervical spine dated 30 May 2024 –cervical lordosis is preserved. No vertebral fractures or bony lesions. No incidental soft tissue findings.
C1, C2 and craniocervical junction: No advanced facet arthrosis. No canal stenosis.
C2-3: There is unfused spinous process anatomical variant in C2. No evidence of disc or uncovertebral degeneration. No canal or foraminal stenosis. No facet arthropathy.
C3-4: No significant disc or uncovertebral abnormality. No canal or foraminal stenosis. No facet arthropathy.
C4-5: Advanced disc degeneration seen with loss of disc height and endplate osteophytes. There is moderate left and moderate to severe right foraminal stenosis secondary to uncovertebral degeneration and disc osteophyte complex. No significant canal stenosis. No facet arthropathy.
C5-6: There is mild spondylolisthesis with up to 2 mm anterior listhesis of C5 over C6 secondary to advanced left facet arthropathy. Degenerative disc disease with moderate loss of disc height and a broad-based disc osteophyte complex. There is severe left foraminal stenosis secondary to a disc osteophyte complex, facet arthropathy and uncovertebral degeneration. No canal or and right foraminal stenosis.
C6-7: No significant disc or uncovertebral abnormality. No canal or foraminal stenosis. No facet arthropathy.
C7-T1: No significant disc or uncovertebral abnormality. No canal or foraminal stenosis. No facet arthropathy.
Impression Foraminal stenosis at C4-5 and C5-6 as detailed above.
Whole Body Bone & SPECT/CT dated 15 August 2024 – lower spinal fusion appears unremarkable apart from residual biochemical reactive change at L3/L4 space device. Previous multiple rib fractures completely healed. No new rib stress fractures. Moderate arthritis in multiple periphery joints noted.
LEGISLATIVE FRAMEWORK
Threshold injury
Under the MAI Act, there is a scheme for statutory benefits (under Part 3) for persons injured in motor accidents in New South Wales. Such benefits can include treatment and care and weekly payments.
For injured persons who have “threshold injuries”, they cannot receive statutory benefits beyond 52 weeks after the accident and cannot recover damages.[7]
[7] The terminology for accidents that occurred before 1 April 2023 was “minor” injury and statutory benefits were only paid for up to 26 weeks.
For physical injuries, a threshold injury is defined as a “soft tissue injury”.[8]
[8] Section 1.6(1) of the MAI Act.
A “soft tissue injury” is defined as:
“An injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, facia, 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.”[9]
[9] Section 1.6(2) of the MAI Act.
A soft tissue injury includes an injury to a spinal nerve that manifests in neurological signs (other than radiculopathy).[10]
[10] Section 4(1) of the Motor Accident Injuries Regulation 2017.
The Motor Accident Guidelines (the Guidelines)[11] defines radiculopathy as:
“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 when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent Impairment’.
(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
(c) muscle atrophy and/or decreased limb circumference
(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.[12]
Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”[13]
[11] For motor accidents that occurred from 1 April 2023, the applicable version of the Guidelines is version 9.3.
[12] Clause 5.8 of the Guidelines.
[13] Clause 5.9 of the Guidelines.
Table 6.8 of the Guidelines provides definitions for the clinical signs in (a) to (e) above.
Causation
The provisions regarding causation of injury are contained in clauses 6.5 to 6.7 of the Guidelines and apply to both permanent impairment and threshold injury disputes.[14]
[14] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 per Wright J at [35].
Clauses 6.6 and 6.7 state:
“6.6 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 the worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination
This, therefore, involves a medical decision and a non-medical informed judgement.
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.”
RE-EXAMINATION FINDINGS
At the preliminary conference on 17October 2024, the Review Panel determined that a re-examination of the claimant was required. Below is the Review Panel’s re-examination report of Medical Assessors Barnsley and Assem:
“Mr Forrester was examined on 4 February 2025 by Medical Assessor Barnsley and Medical Assessor Assem at the Personal Injury Commission (PIC) rooms. The reason for the assessment was explained to the claimant. It was also explained that the assessment did not enjoy the same confidentiality as usual medical consultations, and it was also explained that the assessor would not be involved in any treatment or management of his conditions. The type of questions it would be asked and the extent of the physical examination required were also explained to the claimant.
Mr Forrester is a 78 year-old gentleman. He is right-handed. He is a retired production manager at Victa lawnmowers.
He has an extensive history of back problems with two previous spinal fusions and a spinal cord stimulator. He indicated the prior to the motor vehicle accident on 1 June 2023 he had been troubled by long-standing shooting pain and numbness in both legs as well as low back pain. He volunteered that he did not think these symptoms had changed since the motor vehicle accident, whichwas confirmed with direct questioning.
He said that he had some arthritis in his shoulders. He was unsure whether this was present before the accident. He specifically denied any neck pain or neurological symptoms in the upper limb before the motor vehicle accident.
He has the additional medical problems of hypertension, diabetes, hyperlipidaemia and COPD.
The motor vehicle accident in question was on 1 June 2023. He was the seatbelted driver of a 1989 model Range Rover. He was leaving a roundabout when another vehicle turned right across his path, resulting in a front-to-side collision.. His airbags did not deploy. He estimates the speed of impact as 40km/hr. He does not recall striking any particular part of the vehicle with any part of his body. He said he was in shock initially. The driver of the other vehicle offered to call an ambulance for Mr. Forrester, but he declined as he was reluctant to be transported to Liverpool hospital because of concerns over his care there in the past.
He repaired the vehicle himself as he has a special interest in Range Rovers. He was reimbursed $37,000 for the parts that he used.
He first developed neck pain the day after the accident when he was also troubled by clicking and stiffness in the neck. He again stated that his back was unchanged.
3 to 4 days after the accident he became aware of some tingling in the fingertips on both sides affecting the third fourth and fifth fingers.The neck pain and finger numbness have persisted. He did notice some improvement after facet joint injections directed at the C5 and C6 levels as well as some transforaminal steroid injections. He also had treatment with physiotherapy but he did not find this particularly helpful.
His neck pain is perceived along the course of the spinous processes from C2 to C6. He does not have any radiation of pain from this area. In particular he does not describe any shooting pains into the arms. He has some numbness in the tips of his fingers on the right. He experiences some occasional left-sided shoulder pain. He continues to experience low back pain with shooting pain into both legs which is unchanged from prior to the motor vehicle accident.
He is currently receiving treatment with Lyrica 75 mg twice a day and Panadol osteo on an as needed basis. He states that these are primarily for his long-standing low back pain.
On examination he was 175 cm tall. He weighed 83.5 kg.
On examination of the lumbar spine there was no guarding or spasm but there was tenderness over the lower paravertebral muscles. He had several surgical scars from his prior lumbar spinal operations.
He had significant restriction of lumbar spinal movement. Flexion and extension were limited to 25% of expected. Lateral flexion was 30% of expected and rotation to the left and right was limited to 50% of what would be expected.
Lower limb neurological examination revealed straight leg raising of 20° on both sides precipitating back pain, but with negative sciatic stretch tests. On examination of his power, he had a weak extensor hallucis longus on the right. Both of his knee jerks were present but the right ankle jerk was absent. sensory examination revealed patchy subjective sensory changes over the lower limbs, more marked on the right than the left. There was no dermatomal sensory loss.
The circumference of both thighs measured 10 cm above the upper pole of the patella was 39 cm. The maximum calf circumference on the right was 34.5 cm and on the left 36 cm.
Cervical spine examination revealed no guarding or spasm but there was tenderness in the midline along the spinous processes. Extension and flexion were limited to 50% of expected. Left rotation was severely limited to 25% of expected and right rotation was 50% of expected. Both right and left lateral flexion were limited to 25% of expected.
Upper limb neurological examination revealed normal power in all muscle groups. Light touch was intact over all dermatomes with some numbness restricted to the tips of the third, fourth and fifth fingers on the right hand. This did not extend onto the pulp of the fingers. Biceps, jerks, triceps jerks and supinator jerks were normal on both sides.
There was some wasting of the left upper arm measured 10 cm above the lateral epicondyle. The circumference was 29.5 cm on the right and 28cm on the left. The forearm circumferences measured 10cm below the lateral epicondyle were 27.5 cm on the right and 27 cm on the left.
Shoulder movements were measured in degrees with a goniometer and are tabulated below.
Flexion
Extension
Abduction
Adduction
External Rotation
Internal Rotation
Right
90
30
60
0
60
50
Left
90
30
60
10
60
50
Mr Forrester was forthright and straightforward in his presentation. There were no inconsistencies.”
CONSIDERATION OF THE ISSUES
Was the cervical spine injury causally related to the motor accident?
The accident involved a forward impact and it caused extensive damage to the claimant’s vehicle. Forward impact of this type causes abrupt uncontrolled forward flexion of the neck and the Review Panel consider that the accident could have caused a cervical spine injury. The Review Panel then considered whether the accident did cause an injury (in line with the motor accident guidelines for establishing causation in of injuries in motor vehicle accidents). The Review Panel noted that he had early significant symptoms with no prior history of any significant neck pain. The Review Panel notes that he did have significant pre-existing degenerative changes in the cervical spine noted on the CT scan of 23 June 2023, but these have been asymptomatic and have been materially aggravated by the motor vehicle accident. It was concluded that the accident did cause an injury to the cervical spine.
Is the cervical spine injury a threshold or non-threshold injury?
The Review Panel carefully considered the question as to whether or not the cervical spine injuries represented a non-threshold injury. The imaging did not demonstrate a partial or complete tear of cartilage, ligament or tendon. The decision therefore depends upon whether or not radiculopathy is present. Radiculopathy is only deemed to be present when specific clinical features are present as defined by the motor accident guidelines.
As noted above, for radiculopathy to be present, two or more of the following features need to be present:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
At re-examination by the Review Panel, the claimant did not have any reflex changes in the upper limb. There was some unilateral arm wasting on formal measurement of upper limb circumference. He did not have loss of sensation that met the criteria of reproducible sensory loss that is anatomically localised to an appropriate spinal nerve distribution. The altered sensation over his fingertips crosses different dermatomes, and is not consistent with the pattern of sensory loss expected in a radiculopathy. He did not have weakness in the upper limbs. The criteria of a positive sciatic nerve stretch test pertains only to radiculopathy in the lower limbs. Therefore, he has only one of two of the required clinical findings to diagnose radiculopathy as defined by the guidelines.
The Review Panel also considered the post-accident records from the claimant’s treating medical practitioners that documented neck symptoms with “radiculopathy” together with numbness and pain in the hands and fingertips. The Review Panel was not satisfied that reference to the word “radiculopathy” from the claimant’s general practitioner (GP) was an accurate reflection of radiculopathy as defined in the Guidelines. There was no reference to the satisfaction of the relevant signs of radiculopathy and the neck pain with referred sensory-type loss symptoms to the hands and fingers are non-specific and do not refer to the dermatomes affected. An example of this was the numbness in “all ten fingertips” reported in the physiotherapy notes.
In respect of Medical Assessor Home’s clinical findings, the Review Panel accepts there was muscle guarding and asymmetrical loss of range of motion (dysmetria). However, these are not signs of radiculopathy as defined in clause 5.8 of the Guidelines. The reduced sensibility in the tip of the right ring finger and the tip of the left little finger could be a sign of sensory loss, however this is but only one sign for a diagnosis of radiculopathy. The definition requires the presence of at least two signs.
The Review Panel therefore concluded that the cervical spine injury was a threshold injury.
Was the lumbar spine injury causally related to the motor accident?
Following the suggested approach in the motor accident guidelines, the Review Panel firstly considered whether or not the accident could have caused an injury to the lumbar spine. The impact was front to side and would therefore have been associated with flexion at the lumbar spine on account of the impact. The Review Panel therefore considered that the accident could have caused an injury to the lumbar spine.
The Review Panel then considered the question as to whether the accident did cause an injury to the lumbar spine. The Review Panel particularly noted the extensive past history of low back pain with radicular symptoms in the lower limbs. Had the motor vehicle accident caused a more than negligible exacerbation or aggravation of his underlying lumbar spinal problems the Review Panel would have expected a change in his symptoms. The Medical Assessors were impressed with the candour of the claimant in denying any change in his back or leg symptoms following the accident.
The Review Panel therefore determined that the lumbar spinal injury was not causally related to the subject accident. There was no evidence of temporary or permanent aggravation of his pre-existing back condition. There were no new neurological symptoms as a result of the accident.
Was the bilateral shoulder injury causally related to the motor accident?
The Review Panel considered whether bilateral shoulder injury was caused by the motor accident. It was considered the nature of the accident being a frontal accident could have caused an injury to the right shoulder through direct impact with the seatbelt.
The Review Panel then considered whether the accident did cause an injury to the shoulders. The claimant at examination was unsure whether there had been prior shoulder complaints but review of the documentation, including radiological evidence, suggested significant pre-existing symptoms. The description of symptoms to the Panel was pain referred from the cervical spine rather primary shoulder pathology, it was concluded that on balance, the motor accident did not cause primary shoulder injury.
The bilateral shoulder is, however, considered related to the injuries sustained in the motor accident by application of the principle in Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd (Nguyen).[15]
[15] [2011] NSWSC 351.
Is the bilateral shoulder injury a threshold or non-threshold injury?
While the claimant did have reproduction of neck pain by shoulder movements and could therefore have an impairment under the Nguyen principle, there was no evidence before the Review Panel of an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
The bilateral shoulder injury is therefore a threshold injury.
CONCLUSION
The Review Panel’s findings are largely consistent with those of Medical Assessor Home with the exception of causation of the lumbar spine. The Review Panel was not satisfied that the lumbar spine injury was causally related to the motor accident.
The certificate of Medical Assessor Home dated 18 June 2024 is therefore revoked and a new certificate is issued at the beginning of these reasons.
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