Gorgiovski v QBE Insurance (Australia) Limited
[2023] NSWPICMP 476
•26 September 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Gorgiovski v QBE Insurance (Australia) Limited [2023] NSWPICMP 476 |
| CLAIMANT: | Dejan Gorgiovski |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Tai-Tak Wan |
MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 26 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of a certificate and reasons of Medical Assessor (MA) Cameron dated 14 December 2021; MA had found that injuries to the cervical spine, shoulders, lumbar spine and head were all threshold injuries; claimant was involved in an accident on 2 September 2018 when a car to his left tried to enter the road without stopping; claimant submits that he suffered a traumatic brain injury with a loss of consciousness which should be classified as a non-threshold injury; MA Wan examined the claimant and found no evidence of a significant head injury on testing; Held – in light of no documented loss of consciousness, and no evidence of radiculopathy in lumbar spine and cervical spine, the Panel confirmed the decision of MA Cameron and was satisfied that the claimant had suffered threshold injuries to his cervical spine, lumbar spine, head, right shoulder and left shoulder. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Determination 1. The Panel affirms the certificate of Medical Assessor Cameron dated 14 December 2021. 2. The Panel finds that the claimant has suffered threshold injuries to his: (a) cervical spine – soft tissue injury; (b) lumbar spine – soft tissue injury; (c) head – soft tissue injury; (d) left shoulder – soft tissue injury, and (e) right shoulder – soft tissue injury. |
STATEMENT OF REASONS
BACKGROUND
This is a review of a decision of Medical Assessor Cameron (the Medical Assessor) dated
14 December 2021.At issue is whether the claimant has suffered a minor injury.
The Medical Assessor found that the following injuries caused by the accident were minor injuries:
(a) cervical spine – soft tissue injury;
(b) shoulders- soft tissue injury;
(c) lumbar spine – soft tissue injury, and
(d) head- soft tissue injury.
The claimant has made an application for review of the certificate and reasons of the Medical Assessor.
The following injuries have been referred by the Personal Injury Commission (Commission) for assessment:
(a) brain – closed head injury;
(b) cervical spine - injury to the neck (disc injury and radiculopathy);
(c) shoulders - injury to the bilateral shoulders (rupture of ligaments), and
(d) lumbar spine - injury to the lumbar spine (disc injury and radiculopathy).
The accident
The accident occurred on 2 September 2019.
The claimant was the driver of his car when a car to his left tried to enter the motorway and collided with the left passenger side of his car. The claimant says that he hit his head on the pillar of his car and was unconscious for a short period of time. The impact caused the claimant’s car to spin.
The claimant has reported that his car was written off for insurance purposes.
LEGISLATIVE BACKGROUND
Jurisdiction
The claim of the claimant is governed by the provisions of the Motor Accident Injuries Act 2017 (the Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of which is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “minor” injuries.
In a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
Pursuant to Schedule 2, cl 2 of the Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
Threshold/Minor injury
A minor injury is defined in s 1.6 of the Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulation) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a minor injury. Clauses 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury.”
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.
This is a dispute about whether the applicant’s injury caused by the accident was a minor injury for the purposes of the Act. The dispute was referred to the Commission. The Medical Assessor conducted a medical assessment and determined in a certificate dated 14 December 2021 that the injuries caused by the accident were minor injuries for the purposes of the Act and the treatment and care in dispute is reasonable and necessary.
The claimant sought a review of the decision of the Medical Assessor and the delegate of the President considered that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect pursuant to s 7.26 of the Act.
Whilst the terminology of a minor injury has changed recently, for the purposes of this application, a minor injury is now referred to as a threshold injury and will continue to be referred to by the Panel as a threshold/non-threshold injury for the purposes of assessment.
Method of assessment
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.
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the Act. In respect of the medical assessment of whether an injury is a threshold injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor 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 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.”
Radiculopathy
Does the claimant have cervical and lumbar spine 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.”
Claimant’s submissions
The claimant submits that the Medical Assessor erred in relying on absence of contemporaneous evidence as being determinative of the question of whether the claimant suffered a closed head injury which is 'non-minor'.
The claimant submits that this is apparent from the following excerpts of the Medical Assessor’s certificate, in particular:
(a) under 'Summary of injuries referred by the parties' on page 5, the Medical Assessor records that "there is no evidence of an injury to the brain that has been confirmed with medical verification", and
(b) the Medical Assessor goes on to record on page 5 under paragraph 21 ("Minor injury") that "There is no documented brain injury because there is no recorded abnormality in Glasgow Coma Score or other medically verified information to confirm that a brain injury has occurred" (claimants emphasis added).
The claimant submits that it is plain that the Medical Assessor has relied on the absence of contemporaneous medical evidence (in particular a Glasgow Coma Scale (GCS)) as being decisive of the question of whether the claimant's head injury was 'minor'. Relying on the perceived absence of contemporaneous evidence as decisive on the question of injury amounts to error.
The claimant says that the Medical Assessor has failed to have regard to the claimant's report of a loss of consciousness and the record of this made by Dr Bui. The claimant submits that this evidence is in stark contrast to the Medical Assessor's conclusion that there is "no evidence" of a brain injury.
The claimant says that the Medical Assessor records on page 3 the following:
"Mr Gorgiovski does not have clear memories of this incident. He hit his head on the
pillar in his car and he felt he was unconscious for a short time. His vehicle spun”.The claimant says that the Medical Assessor does not appear to make a conclusion about the veracity of the claimant's account.
The claimant says that the Medical Assessor does not refer to the claimant's loss of consciousness in his consideration of whether the accident caused a non-minor injury.
The claimant highlights that his loss of consciousness and symptoms of concussion are also recorded by Dr Bui who on 5 September 2019 (only 3 days after the subject accident) records as follows:
"History: 4 days ago had MVA, was hit to driver's side, lost the teeth, he LOC about 10 seconds, little concussion symptoms after that, no ambulance involved. Since then, ongoing headache, no blurred vision, no nausea, no peripheral neuropathy…”
The claimant reiterates that the record of Dr Bui of a loss of consciousness and concussion symptoms were not considered by the Medical Assessor.
The claimant submits that where the Medical Assessor has declined to diagnose a non-minor injury based on the absence of a "medically verified" head injury or as demonstrated by evidence such as a GCS, he has fallen into error.
The claimant submits that nowhere in the Act, Guidelines or Regulations is it provided that a head injury must be verified by an abnormal GCS, or be so severe to result in an abnormal GCS, in order to be a non-minor injury.
The claimant submits that any injury to the brain sufficient to cause a loss of consciousness is not a soft tissue injury and cannot be a 'minor injury'.
Insurer’s submissions
The insurer submits in reply that;
(a) the Medical Assessor used his clinical judgement in circumstances where there are no specific guidelines for the diagnosis of a closed head injury for minor injury dispute purposes, and
(b) the absence of a GCS or other medically verified information was not a decisive factor in the assessment and the Medical Assessor did not consider that the claimant's self-reporting disclosed a closed head injury.
The insurer noted that the claimant asserted that the Medical Assessor concluded that the accident did not cause a closed head (non-minor) injury based upon the absence of contemporaneous evidence. The insurer says that this interpretation of his reasons is not wholly correct.
The insurer referred to the claimant’s submission that in taking the claimant’s history about the accident, the Medical Assessor recorded the following relevant histories:
(a) Page 3: Mr Gorgiovski does not have clear memories of the incident. He hit his head on the pillar in his car and he felt he was unconscious for a short time;
(b) Page 4: Mr Gorgiovski was well oriented in time and place. His mood was appropriate. There was no evidence of cognitive impairment. He scored 29/30 on mini mental state examination, and
(c) in reviewing the evidence available before him, the Medical Assessor, on page 4 of his Certificate, referred to general practitioner (GP) Dr Bui’s records, and other material.
The insurer says that it is clear from a reading of the entirety of the Certificate that the Medical Assessor did not rely solely upon the absence or presence of contemporaneous evidence to reach a conclusion as to whether the accident caused a closed head injury. Under the heading ‘Causation and reasons’, the insurer notes that the Medical Assessor said:
“Causation for the listed injuries is established based on the report provided by
Mr Gorgiovski and the contemporaneous clinical information.”Following on from this, the insurer says that in reaching a conclusion on diagnosis, the Medical Assessor relied upon both the contemporaneous medical evidence and the claimant’s self-reporting. Having taken both matters into account, the insurer says that the Medical Assessor concluded that the claimant’s head injury was soft tissue in nature and thus minor.
The insurer noted that the claimant also took issue with the Medical Assessor’s failure to explain the term ‘other medically verified information’. However, the insurer says that it is clear from the Medical Assessor’s reference to the absence of a GCS score that he was referring to cl 6.164 of the Motor Accident Guidelines. That clause says that:
“For an assessment of mental status impairment and emotional and behavioural impairment there should be:
evidence of a significant impact to the head or a cerebral insult, or that the motor
accident involved a high-velocity vehicle impact, and
(b) one or more significant, medically verified abnormalities such as an abnormal initial post-injury Glasgow Coma Scale score, or post traumatic amnesia, or brain imaging abnormality.”The insurer says that whilst that clause only directly applies for the purposes of permanent impairment assessment, there is no clause or other legislative provision which precluded the Medical Assessor from being guided by it. The insurer says it was appropriate for the Medical Assessor to have done so in circumstances where the Guidelines do not specify what specific criteria needs to be taken into account for the purposes of assessing whether a head injury is minor or non-minor.
The insurer submits that in any event, it cannot be said that the absence of a GCS score or other medically verified information was a determinative factor in the Medical Assessor’s assessment. As above, he took into account both the written evidence and the claimant’s self-reporting in reaching his conclusions.
Medical evidence
In the respective bundles of documents, medical records have been produced as follows;
(a) Dr Bui clinical records;
(b) Canley Vale Dental Clinic clinical records;
(c) Certificate of Capacity/Fitness of Dr Bui, and
(d) clinical records of Edward Medical Service.
The claimant was also assessed by Medical Assessor Cameron whose certificate is dated
14 December 2021.The Medical Assessor recorded the following;
“Mr Gorgiovski consulted general practitioner, Dr Bui, on 5 September 2019.
Mr Gorgiovski said that he had injuries to multiple parts of his body and broke one tooth and injured others.
Mr Gorgiovski has had ongoing symptoms. Mr Gorgiovski said he had low back pain with some radiation to the left leg. He also said he had some neck pain and left arm pain. There was pain in the left trapezial region.
Mr Gorgiovski is right-handed, 176cm in height and weighs 130kg. This is a BMI of approximately 41.
Mr Gorgiovski was well oriented in time and place. His mood was appropriate. There was no evidence of cognitive impairment. He scored 29/30 on Mini Mental State Examination.
At the cervical spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both shoulders.
There was a full range of motion at other upper extremity joints.
There were no neurological abnormalities in the upper extremities.
Circumferences of the upper extremities were right 32cm and left 32cm.
At the thoracic spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
At the lumbar spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both knees. There was no crepitus or instability.
There was a full range of motion at other lower extremity joints.
There were no neurological abnormalities in the lower extremities.
Circumferences of the lower extremities were right 32cm and left 32cm.
Mr Gorgiovski walked with a normal gait.
Diagnosis and reasons
In the motor vehicle crash on 2 September 2019, Mr Gorgiovski sustained a soft tissue injury to his head, probable soft tissue injuries to his cervical and lumbar spines, and possibly soft tissue injury to the shoulders.”
The clinical records of Dr Bui have been provided. The initial consultation after the motor vehicle accident was on 5 September 2019. The report of dental injury and disturbance of consciousness were noted, as were headaches. There were treatments provided. There were some subsequent consultations.
Clinical records of Canley Vale Dental Practice, where the claimant attends, have been produced but these do not assist in the overall assessment of the claimant’s injuries. The claimant attended the practice the day following the accident and twice more that month.
Panel medical examination
The claimant was medically examined on behalf of the Panel by Medical Assessor Wan. His report follows.
The claimant had been directed to take to his appointment with Medical Assessor Wan, all relevant imaging studies including particularly a CT scan referred to by Dr Bui following his consultation of the claimant or around 24 November 2019 and any MRI scan. However, no imaging was produced by the claimant;
“Medical examination by Medical Assessor Wan
The claimant is 37 years old. He attended the assessment again alone. The assessment, including history taking, cognitive functions assessment and physical examination, lasted for 2 hours.
The Panel is to review the certificate of Ian Cameron dated 14/2/2022 for minor injury disputes.
Date of accident: 2/9/2019
The following injuries were referred by the Personal Injury Commission for assessment:
·Brain – closed head injury
·Cervical spine - injury to the neck (disc injury; radiculopathy)
·Shoulder - injury to the bilateral shoulders (rupture of ligaments)
·Lumbar spine - injury to the lumbar spine (disc injury; radiculopathy)
History as Given by the Injured person
Pre-Accident Medical History and Relevant Personal Details
Ms Dejan Gorgiovski is 37 years old working in the office of a logistics company. He works full time (38 hours per week in 5 days). He sits in the office and using computer most of the time, but can get up regularly doing stretching. He denied having any work-related injuries.
Past Health
Ms Gorgiovski has the following significant history:
·Sport injury to the lower back 10 years ago. He said he was diagnosed ‘slipped disc L1 to L5’, and treated by physiotherapy and massages for few years. He played a lot of sports, including soccer, basketball, and football before the injury. He still has pain aggravated from time to time and usually improve with physiotherapy. He said he can ‘live with it’
·Left shoulder pain since 10 years ago. He was told that his ‘AC joints bones rubbing each other’. He was treated conservatively. Apparently he had not seen any specialists.
·15 years ago he was a driver involved in a motor vehicle accident (MVA). His car was hit by another car from behind. He was wearing seatbelt at the time of accident, and the airbag deployed. He did not consult medical advices after the accident, and apparently he had not sustained many injuries from this MVA. He did put in a claim, but mainly for repair of the car.
·18 years ago, he had a fracture of right ankle while playing soccer. He was taken to St George Hospital, and treated with ORIF. He still has a metal pin in the right ankle. Sometimes it may cause pain, but most of time he walks normally. He has stopped playing professional soccer since.
He told me that he has no known history of allergy.
Social History
Ms Gorgiovski was born in Macedonia. He came to Australia in 2000 (at the age of 14). He studied up to year 10, then started working. He stated that his academic performance was above average, with the best subject in History, and worst subject in mathematics. He attended TAFE and obtained a certificate in ‘Help Desk and computer technician’
He then worked in different jobs, mainly as warehouse worker or office worker, for about 2 years. Then he started his current logistics job (for last 17 years). He has no problem in doing his current job as a ‘customer service/client manager’.
He lives with his wife (34 years old primary school teacher) and a son (21 months old), in a 2 storey townhouse with 20 steps. He said sometimes he may have problems with his back as that may aggravate his back pain.
He is a non-smoker and a non-drinker.
He drives an manual car
He used to play basketball or soccer once a week before the subject MVA but has stopped playing since the accident.
He said he shares the housework with his wife.
History of the Motor Accident (from the claimant)
Ms Gorgiovski said on 2 September 2019, at about 6pm, he drove home from work. There was no passenger. He was wearing the seat belt, and there was headrest on the car seat. While he was travelling on the Belmore Road, Riverwood, at a speed of 50 km/hr, a car on the opposite lane turned right hit the driver side of his car, and his car spun and the stopped when hitting a wall. The airbag was deployed. The accident occurred only 100m from his previous home (he lived with his parents at the time; he has moved out recently). No police or ambulance attended the scene. He did not go to the hospital or seek medical advice on the day. He said the car was later written off.
He said there was a brief loss of consciousness for an unknown period. He remembered the impact when the cars collided. The next thing he could remember after he regained consciousness was that he was still in the car and passers-by (a gentleman around 40 years old) helped him getting out the car. He recalled that his face and tooth hit the pillar of the car. He then exchanged details with the other driver (‘an old man’). He recalled both the police and ambulance came to the scene soon after the accident. All these suggested there was no significant retrograde amnesia, brief anterograde amnesia (for a few seconds to minutes), and the ‘blackout’ was very brief if ever present.
History of Symptoms and Treatment Following the Motor Accident
He recalled that he had some headache, neck pain and back pain, so he consulted his GP the following day (However GP notes showed that he consulted the GP 3 days after the subject MVA. He could not explain the discrepancy.)
He said he returned to work 3 or 4 days after the subject MVA, borrowing a car for several days as his car was written off. He continues to work since the accident.
He could not recall seeing any brain injury specialist, neurologist or neuropsychologist.
He consulted his dentist for some dental injury.
He said he some physiotherapy but could not give me the details. He said most of time he received ‘Thai’ or ‘Chinese’ massage treatments, which give some brief relief.
He could not recall seeing any occupational therapist, psychologist or vocational rehabilitation provider in assisting return to work (RTW).
Details of Any Relevant Injuries or Conditions Sustained Since the Motor Accident
Ms Gorgiovski denied any history of significant accidents, injuries or other relevant conditions sustained since the subject MVA.
Current Symptoms
Her current complaints are as follows:
· Headache – bitemporal, 7/10 in visual analogue scale (VAS). It is an intermittent sharp pain, and aggravated by prolong sitting. It often leads to stiffness in left shoulder.
· Left shoulder pain. It is 5/10 in VAS. It is a sharp intermittent pain. It is aggravated by prolong sitting and reduced by moving around.
· Low Back pain, 4/10 in VAS. It is an intermittent pain, sometimes sharp, sometimes dull ache. It may radiate to both legs. It is aggravated by bending or working.
He said sometimes there are “cramps” in the back, and his cramps in his legs also become more often after the subject MVA.
· Sleep is alright, although sometime pain can be hurting. He may take some ‘pills’ for sleep but he could not elaborate further.
· Memory is alright. When asked about any change in personality, he said he goes out less with friends because of pains.
He reported no problem in the bowel and bladder functions.
He said at most he can sit for 2 hours, stand for 2 hours and walk for 2 hours. He can drive for 2 hours.
He is independent in the personal hygiene care and most activities of daily living (ADL). He said he still does most of the housework, although less than before the subject MVA, which is now done by the family.
Current and Proposed Treatment
Ms Gorgiovski stated that He has been taking the following medication:
· Duloxetine 60 mg nocte
· Nurofen 1 tab when necessary
· Panadol 2 tab 6 hourly when necessary
· Olmesartan 20 mg daily
· Topical physio cream or Voltaren cream
He said he once received physiotherapy, but has ceased it now. He may resume it after seeing a pain specialist. He has hydrotherapy before.
He sees her psychologist monthly.
He might see an occupational therapist once before regarding return to work (RTW). He tried to RTW once for a few months but stopped because “too much pain”.
Findings on Clinical Examination
Clinical Examination
Examination on 30 January 2023 showed that Ms Gorgiovski was orientated and alert. He said He is 179 cm tall, and weighs 140 Kg, which gave a BMI of 43, in the ‘obese’ range. Significant pain behaviours were observed during the interview. He walked independently without walking aid in a normal symmetrical gait. He could walk on tip-toes, on heels, and in tandem (heel-toes) way. He had no problem in squatting, He could dress and undress independently. He could get on the examination couch independently.
He is right hand dominant.
Examination of the head showed no conspicuous scars, swellings, or deformities. Smell sensation was normal. Visual fields tested by confrontation were normal on both eyes. There was no nystagmus or diplopia. Pupils were equal and reactive. Visual acuity was grossly normal. There was no gross hearing loss. There were no other motor or sensory deficits in the face and head. All the cranial nerves were intact. There was no difficulty in communication, both in expression and comprehension. There were no cerebellar signs found. Romberg test was normal.
The claimant showed the examiner some defect in his left upper teeth. However dental injury is not on the list of the injury to be assessed.
Mental State Screening
He scored 30/30 in Folstein Mini Mental test (MMSE). He scored 5/5 in both serial 7 test and reverse spelling test. He had no problem in copying figures including 3-dimensional cubes. He had no problem in alternating sequences. He drew a clock showing the current time well. Regarding written arithmetic tests, He got the correct answer for addition, wrong answer for subtraction, but refused to try multiplication and division, saying that he normally uses a calculator for calculation. He gave correct answers quickly when asked to give 3 differences and 3 similarities between apple and orange.
In summary, there was no evidence of cognitive impairment detected clinically in the mental state screening tests. The arithmetic test results most likely due to inadequate effort but could also reflect his usual ability (mathematics was her worst subject in school), work experience, and the fact he has not worked for a long time. Abstract thinking and executive function were within normal limits. Clinically there was no evidence of any cognitive impairment sustained from the subject MVA.
Mental screening may not detect subtle change in mild traumatic brain injury, and a comprehensive neuropsychological assessment may clarify the situation.
However, with the current evidence available, considering the circumstances of the accident, no or brief retrograde amnesia and anterograde amnesia, no or very brief reported but unwitnessed loss of consciousness (LOC), no documented abnormal GCS score or PTA score, and no documented abnormal brain scan finding, it is unlikely that Ms Gorgiovski has sustained any brain injury in the subject MVA.
CERVICAL SPINE (Cervicothoracic)
Examination of the neck showed mild tenderness over the occipital area but no muscle spasm or guarding. There was no evidence of non-verifiable radicular complaints, and there were no features of radiculopathy. Active movements of the cervical spine were symmetrical and normal. All the active ranges of movements (ROM) of the spine were measured using a inclinometer and a goniometer:
Cervical spine
Flexion
Extension
Rotation to right
Rotation to left
Lateral flexion to right
Lateral flexion to left
ROM found
normal
normal
normal
normal
normal
normal
There was no evidence of dysmetria (asymmetrical loss of motion).
THORACIC SPINE (Thoracolumbar)
Examination of the upper back showed no tenderness, muscle spasm or guarding. Active movements of the thoracic spine were symmetrical and within normal limits. There was no evidence of any non-verifiable radicular complaints nor radiculopathy:
Thoracic spine
Flexion
Extension
Rotation to right
Rotation to left
Lateral flexion to right
Lateral flexion to left
ROM found
Normal
Normal
Normal
Normal
Normal
Normal
LUMBAR SPINE (Lumbosacral)
Examination of the lower back showed mild tenderness in the lumber region, but no muscle spasm or guarding. Active movements of the lumbar spine were symmetrical and within normal limits. There was no evidence of dysmetria. There was no evidence of radiculopathy nor non-verifiable radicular complaints:
| Lumbar spine | Flexion | Extension | Rotation to right | Rotation to left | Lateral flexion to right | Lateral flexion to left |
| ROM found | Normal | Normal | Normal | Normal | Normal | Normal |
Straight leg raising was 60° in on both sides in supine position but 85° in on both sides in sitting position.
UPPER EXTREMITY
Examination of the upper limbs showed no gross muscle wasting. Measurements of mid-arm circumference showed that the right side was 0.5 cm larger than the left side which was within the normal limits, given that he is right hand dominant. Measurement of mid-forearm circumferences also showed that the right side was 0.5 cm larger than the left side which was within the normal limits. Muscle power was grade normal in both upper limbs, both proximally and distally. Reflexes were normal and symmetrical in the upper limbs. Sensation was normal in both upper limbs.
Examination of the shoulders showed tenderness in the trapezius muscle region on both sides. No crepitation was found on moving shoulders. Active movements of left shoulders were slightly restricted in the formal examination, [All the measurements are those of active movements. All the active ranges of movements (ROM) of the limbs were measured using a goniometer:
Shoulder
Flexion
Extension
Abduction
Adduction
Internal Rotation
External rotation
Right °
180
60
180
60
85
85
Left °
175
50
175
50
80
80
Examination of the elbows showed no tenderness or swelling. Active movements of the elbows were symmetrical and within normal limits.
Examination of the wrists and hands showed no deformity or swelling. Active movements of the wrists, hands and fingers were all symmetrical and within normal limits.
LOWER EXTREMITY
Examination of the lower limbs showed no gross muscle wasting. Measurements of mid-thigh circumference and mid-calf circumference were equal on both sides. Muscle power was normal and symmetrical, both proximally and distally. Reflexes were normal and symmetrical on both lower limbs. There was no sensory impairment in lower limbs.
Examination of the hips showed no deformity or swelling. There was no tenderness over the hip regions. FABER test was normal on both sides. Active movements of the hips were within normal limits:
Examination of the knees showed no deformity, swelling or effusion. There was occasional crepitations on moving both knees. There was no excessive antero-posterior or medio-lateral laxity or anterior-posterior laxity of the knees suggesting the cruciate and collateral ligaments were intact. McMurray’s test was normal on both sides, suggesting the menisci were intact. Active movements of both knees were symmetrical and within normal limits.
Examination of the ankles showed a well healed scar on the right ankle, about 12 cm long. Otherwise there was no deformity or swelling. Active movements of the ankles and feet were symmetrical and largely within normal limits.
Plantar Flexion Dorsi-flexion Inversion Eversion Right ankle ° 40 20 10 10 Left ankle ° 50 20 20 10 Examination of the chest and the abdomen was unremarkable.
Consistency of Presentation
The clinical presentation was largely consistent with the complaints.
5. Review of Documentation
Relevant Imaging Studies and Other Investigations
The claimant did not bring any X-ray films or reports to the assessment, because “no one told me to do so”.
Clinical records did refer to imaging being requested however, no reports were to be seen.
Summary of Relevant Documentation Provided for the Initial Assessment
·The Police report dated 24 February 2020 showed that the accident occurred on 2/9/2019, and was reported on 26/11/2019 (more than 2 ½ months after the MVA). It is classified as ‘actual minor traffic crash’. However there is not much information about the circumstances of the accident.
·There was no ambulance report or ED notes or discharge referral available.
·In a ‘Complete Record as at 6/4/2021’, apparently the clinical notes of “Edward Medical Service” which was printed in reverse chronological order, the first entry was recorded by Dr Van Thang Bui, dated 5/9/2019. It was stated, ‘… 4 days ago had MVA, was hit to the driver side, lost the teeth, he LOC about 10 seconds, little concussion symptoms after that, no ambulance involved. Since then ongoing headache, no blurred vision, no nausea, no peripheral neuropathy. Bowel motion and urination is OK…’. No physical finding was recorded, so the Panel assumed that there was no abnormal physical findings. Dr Bui request a CT-Brain.
In the next entry, dated 24/11/2019 (2 month after the subject MVA), Dr Bui stated that, ‘… Pt had the CT head with no abnormality, the headache persists, seen by solicitor for the capacity work. Seen by dentist for broken teeth.…Examination: Neuro – central and [no abnormality detected], peripheral no deficit. Vision acuity 6/5 BE…’.
There were entries on 24/1/2020, 20/4/2020, and 8/6/2021 showing no new active treatment. The entry dated 6/4/2021 was the last entry in this printout.
·There was also a ‘Complete Record as at 20/4/2020’, showing similar information.
·The Panel has reviewed the Certificate of capacity dated 24/11/2019 issued by Dr Bui. The diagnosis was ‘Headache’. Treatment was ‘Head CT and analgesia’
Summary of Other Relevant Documentation
·In a PIC certificate dated 30/12/2021, Assessor Ian Cameron stated that he examined the claimant on 14/12/2021. He assessed that:
o Head- soft tissue Injury
o Cervical spine – soft tissue injury
o Shoulder - soft tissue injury
o Lumbar spine - soft tissue injury
Are all minor injury. There was no evidence of brain injury, and no evidence of radiculopathy a the cervical or lumbar regions. There was n o evidence of ligament rupture of the shoulders.
· The panel has noted the submission from the Claimant’s solicitor dated 21 January 2022.
The panel has noted the submission from the Insurer’s solicitor 2 March 2022.
6. Conclusions
Diagnosis and Causation
· Head injury/Brain injury
There is no evidence of a significant head injury: there is no documented loss of consciousness (although the claimant reported to the GP 4 days after the accident about LOC for 10 seconds), no documented post-traumatic amnesia, and no evidence of brain imaging abnormalities. There is no evidence of retrograde amnesia and very brief anterograde amnesia (if ever present). The GP did not report any change in mental status or memory problem, and the only symptom was headache. Mental status screening tests do not show objective signs of cognitive impairment, memory impairment or executive function impairment.
There is no documented or clinical evidence of concussion or post-concussion syndrome. The GP recorded the CT head was normal (although the Panel has not sighted the CT report).
Therefore, there is no evidence of brain injury.
Furthermore, the pre-requisite criteria of assessment of mental status impairment and emotional and behavioural impairment have not been satisfied: there is no evidence of a significant impact to the head or a cerebral insult, and there is no medically verified abnormalities such as abnormal initial post-injury Glasgow Coma Scale score, or post traumatic amnesia, or brain imaging abnormality.
However, it is possible that he might have soft tissue injury of the head, but it is not documented. Therefor the Panel accepts there might be head soft tissue injury but clinically it has all resolved. The Panel therefore assesses that there was a soft tissue injury to the head but that has resolved.
· Cervical spine injury
There is no evidence of cervical radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 8.2. There is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
There is also no evidence of non-verifiable radicular complaint.
There is no muscle spasm, guarding or wasting.
There is no radiological evidence of any damage to spine, disc or ligaments.
However, considering the history and complaint, it is possible there was soft tissue injury to cervical spine.
Therefore, the Panel assesses the cervical spine injury is a threshold injury
· Lumbar spine injury
There is no evidence of lumbar radiculopathy. Using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 8.2: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. There is also no evidence of non-verifiable radicular complaint.
However, considering the history and complaint, it is possible there was soft tissue injury to lthe lumbar spine, which is a threshold injury.
· Right shoulder injury
Considering the circumstances of the accident, it may be possible that the claimant sustained some soft tissue injury to the left shoulder. However, it is not documented in any GP notes.
Furthermore the physical examination showed that active movements of the right shoulder is normal. There is no radiological evidence to show that there was tendon, ligament or muscle injury to the right shoulder.
Therefore, the Panel assess that there may be soft tissue injury to the right shoulder which is a minor injury, and has resolved.
· Left shoulder injury
Considering the circumstances of the accident, it may be possible that the claimant sustained some soft tissue injury to the left shoulder. However, it is not documented in any GP notes.
Furthermore the physical examination showed that active movements of the right shoulder were largely within normal limits. There is no radiological evidence to show that there was tendon, ligament or muscle injury to the left shoulder.
Therefore, the Panel assess that there may be soft tissue injury to the left shoulder which is a threshold injury.
Summary of Injuries Listed by the Parties and Caused by the Accident
The following injuries WERE caused by the motor accident:
· Cervical spine – soft tissue injury
· Right Shoulder – soft tissue injury
· Left Shoulder – soft tissue injury
· Lumbar spine – soft tissue injury
· Head – soft tissue injury
Summary of Injuries Listed by the Parties and Not Caused by the Accident
The following injuries WERE NOT caused by the motor accident:
·n/a
Threshold injury
The following injuries are a threshold injury:
· Cervical spine – soft tissue injury
· Lumbar spine – soft tissue injury
· Head – soft tissue injury
· Left shoulder – soft tissue injury
· Right Shoulder – soft tissue injury”
The Panel adopts the findings of Medical Assessor Wan.
Causation
In light of the circumstances of the motor vehicle accident described by the claimant, the Panel accepts that it would not be unreasonable for the claimant to have suffered injuries of the nature complained of by him.
The accident was sudden and unexpected with no time for the claimant to take evasive action.
The Panel notes that the claimant said that upon the collision occurring, he hit his head on the pillar of his car. Whilst this would have been forceful and painful, testing as administered by Medical Assessor Wan did not indicate that a brain injury had been suffered. Whilst the claimant said that he had a brief period of loss of consciousness, there was no documented abnormal GCS.
Conclusion
On clinical examination by Medical Assessor Wan, the claimant did not demonstrate signs of cervical spine and lumbar spine radiculopathy.
The claimant did not demonstrate two or more signs of radiculopathy following clinical examination and as set out in Chapter 5 of the Guidelines.
The Panel finds that the claimant’s injuries fall within the definition of a soft tissue injury in
s 1.6 the MAI Act.The Panel finds that the claimant has suffered threshold injuries.
Determination
The Panel affirms the certificate of Medical Assessor Cameron dated 14 December 2021.
The Panel finds that the claimant has suffered threshold injuries to his:
(a) cervical spine – soft tissue injury;
(b) lumbar spine – soft tissue injury;
(c) head – soft tissue injury;
(d) left shoulder – soft tissue injury, and
(e) right shoulder – soft tissue injury.
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