Gorgis v AAI Limited t/as GIO
[2023] NSWPICMP 263
•9 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Gorgis v AAI Limited t/as GIO [2023] NSWPICMP 263 |
| CLAIMANT: | Edmon Gorgis |
INSURER: | AAI Ltd t/as GIO |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 9 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act2017; threshold injury from sideswipe collision; short delay in onset of symptoms in right shoulder; greater delay in onset of left shoulder symptoms; claimant did not describe direct trauma to either shoulder from motor accident; claimant was regularly lifting very heavy weights at gym and otherwise lesser but repetitive weights at work; minimal force directed to right shoulder and none to the left shoulder from the motor accident; no injury to left shoulder; no aggravation of right shoulder pathology caused by motor accident; other injuries threshold injuries; Held – claimant suffered threshold injuries; original assessment confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury The Review Panel confirms the certificate dated 7 October 2022. Medical Assessment –Treatment and Care – Causation Review Panel Assessment of Treatment and Care and The Review Panel confirms the certificate dated 7 October 2022. Medical Assessment –Treatment and Care – Reasonable and Necessary Review Panel Assessment of Treatment and Care and The Review Panel revokes the certificate dated 7 October 2022 and issues a new certificate determining that: - Initial treatment with Dr Fred Nouh for the left shoulder IS REASONABLE AND NECESSARY IN THE CIRCUMSTANCES Medical Assessment –Treatment and Care Review Panel Assessment of Treatment and Care and The Review Panel issues a new certificate determining that: Initial treatment with Dr Balsam Darwish, neurosurgeon, for the neck injury IS NOT REASONABLE AND NECESSARY IN THE CIRCUMSTANCES |
REASONS
BACKGROUND
Mr Edmon Gorgis (the claimant) suffered injury in a motor accident on 9 December 2021. The insured veered into the claimant’s lane colliding with the driver’s side of the claimant’s vehicle several times (the motor accident).[1]
[1] Claimant’s bundle, p 5.
The insurer for the other vehicle is liable to pay Mr Gorgis any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issues presently in dispute are whether Mr Gorgis’ physical injuries caused by the motor accident are a “threshold injury” within the meaning of the MAI Act, whether certain treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of s 3.24 of the MAI Act.
The medical treatment was:
- initial treatment with Dr Fred Nouh for the left shoulder, and
- initial treatment with Dr Balsam Darwish, neurosurgeon, for the neck injury.
Pursuant to Schedule 2, cl 2 of the MAI Act, these matters are declared to be a medical assessment matters.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
Medical Assessment
The medical disputes were referred to Medical Assessor Shahzad who issued a Medical Assessment Certificate dated 7 October 2022 (the medical assessment).
Medical Assessor Shahzad noted that the claimant had a chronic history of cervical spine pain and had undergone an MRI scan of the right shoulder in November 2018.
The Medical Assessor recorded a history of no pain for three days after the motor accident after which there was an onset of headache and shoulder pain. Neurological examination of the upper and lower limbs showed was unremarkable with normal sensation, normal reflexes and normal power.
The Medical Assessor noted inconsistency and variability on presentation which was not rectified despite direct questioning of the claimant.
The Medical Assessor concluded that the injuries to the cervical spine, lumbar spine, right shoulder and left shoulder had resolved.
Amendment to legislation
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2023 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.
The Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as 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.
The assessment by the Medical Assessor and the parties’ submissions were made prior to 1 April 2023 when the correct term was “minor injury”. Accordingly, the term “minor injury” and “threshold injury” are used in this assessment interchangeably as it reflects the relevant wording at the time of the submission and/or the medical assessment.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days.
The President’s delegate referred the dispute to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The review provisions provide[4] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[4] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
All parties were advised that both medical disputes would be heard together and the evidence in one would be evidence in the other. There was no objection to that course.
The parties filed bundles of documents for the Panel’s consideration.
The Panel issued a further direction in the following terms:
“The Review Panel believes that a physical examination is unnecessary as the issues articulated in the written submissions relate to causation of the shoulder tears.
The Panel considers that it is sufficient that the claimant be questioned by audio-visual link on issues pertaining to causation.
Any objection to this course is to be notified to the Panel by close of business, 25 May 2023.”The parties did not file any objection to this course.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the 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.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)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.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines 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.”
Radiculopathy is defined in cl 5.8 of the Guidelines 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 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 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.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[8]
[8] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[9]
[9] See s 3B(2) of the Civil Liability Act 2002.
Section 3.24 of the MAI Act provides:
“(1) An injured person is entitled to statutory benefits for the following expenses (‘treatment and care expenses’) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
SUBMISSIONS
Claimant’s submissions dated 28 October 2022[10]
[10] Claimant’s bundle, p 1.
These submissions were filed seeking to review the medical assessment.
The claimant referred to a pre-motor accident MRI scan of the right shoulder which showed no significant pathology. The April 2020 X-ray of the right shoulder also showed no abnormality. An MRI scan of the right shoulder dated 30 March 2022 showed a slap tear or glenoid labral tear.
There was no pre-accident radiology of the left shoulder. However, the MRI of the left shoulder dated 30 March 2022 showed a posterosuperior and superior glenoid labral tear. The claimant submitted that the Medical Assessor found new pathology post-accident but otherwise concluded that the injuries to the shoulder injuries were minor injuries.
The claimant submitted that the presence of shoulder tears scanned four months after the accident in circumstances where there was no evidence of tears prior to the accident required an explanation by the Medical Assessor.
The claimant noted that he was working full-time prior to the motor accident involved in heavy duties which involved repetitive work and heavy lifting. Following the motor accident, the claimant was only able to work for short periods are not able to carry out his employment. The claimant was involved in two subsequent accidents on 19 January 2022 and 22 July 2022 tasks and his employment was terminated in February 2022.
The claimant submitted that the type of accident was consistent with causing tears in both shoulders.
Insurer’s submissions undated
These submissions were filed opposing the application for review of the medical assessment. The insurer submitted that the shoulder tears were not related to the accident for the following reasons:
- it is unusual to sustained tears to both shoulders especially in a motor accident where there was minimal damage;
- the claimant was involved in the motor accidents in 2018 and 2019 when he injured his shoulders;
- the claimant was involved in subsequent motor accidents in January 2022 and July 2022;
- the claimant works in a labour-intensive job as detailed in the statement the likely cause of the tears being caused by chronic overhead movement, and
- the mechanism of the motor accident was not consistent with causing tears to the shoulders.
The insurer otherwise referred to the detailed reasoning of the Medical Assessor and the opinion of Dr Andrew McIntosh that there was no mechanism for a shoulder injury to have occurred in the subject motor accident.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
A certificate of capacity dated 31 May 2018 referred to the recent motor accident caused neck, back and right shoulder pain.[11]
[11] Insurer’s bundle, p 3.
A certificate of capacity dated 25 October 2018 referred to the May 2018 motor accident which caused right shoulder, neck and back pain with numbness in the right fifth finger and forearm.[12] The clinical notes of the same date referred to right shoulder pain, neck pain and back pain.[13] The symptoms were repeated in a clinical note dated 17 November 2018.[14]
[12] Claimant’s bundle, p 34.
[13] Claimant’s bundle, p 107.
[14] Claimant’s bundle, p 106.
An MRI scan of the right shoulder dated 5 November 2018 noted a clinical history of chronic pain. The scan showed no tears with no clear cause for the symptoms.[15]
[15] Insurer’s bundle, p 18.
An MRI scan of the cervical spine dated 16 November 2018 showed no significant abnormality.[16] The MRI scan of the lumbar spine of the same date showed no significant abnormality apart from a minor posterior disc protrusion at L5/S1.
[16] Insurer’s bundle, p 7.
A certificate of capacity dated 6 June 2019 referred to the motor accident on 4 June 2019 causing injuries to the neck, back and right shoulder.[17] The clinical note at that time referred to right shoulder, neck and back pain.[18] The same symptoms were again mentioned in clinical records in August 2019.
[17] Claimant’s bundle, p 37.
[18] Claimant’s bundle, p 103.
On 2 April 2021 the general practitioner (GP) noted a tender clavicle and AC joint and referred the claimant for an ultrasound and x-ray of the right shoulder.[19]
[19] Claimant’s bundle, p 92.
An X-ray of the right shoulder dated 23 April 2021 referred to a clinical history of pain in the clavicle and the AC joint and showed no abnormality.[20]
[20] Claimant’s bundle, p 119.
A clinical note dated 15 August 2021 referred to a chronic history of back pain.[21]
[21] Claimant’s bundle, p 89.
Post-accident medical records
The clinical note dated 29 December 2021 referred to the motor accident and that right shoulder and low back pain commenced three to four days after the accident.[22]
[22] Claimant’s bundle, p 87.
A certificate of capacity dated 29 December 2021 referred to the motor accident causing right shoulder and lower back pain which was described as “undifferentiated”.[23]
[23] Claimant’s bundle, p 40.
The clinical note dated 7 January 2022 again referred to the low back and right shoulder pain which was “getting better”.[24]
[24] Claimant’s bundle, p 86.
The clinical note dated 22 January 2022 referred to neck, back and right shoulder pain.[25]
[25] Claimant’s bundle, p 85.
On 28 January 2022 the GP referred to neck pain which radiated down to the left and right shoulder with restricted range of movement in the right shoulder.[26]
[26] Claimant’s bundle, p 85.
On 1 February 2022 the GP noted that the claimant had to leave work due to neck pain.[27]
[27] Claimant’s bundle, p 84.
Clinical notes of the chiropractor in early February 2022 refer to neck pain radiating to both shoulders, right shoulder and low back pain.[28]
[28] Claimant’s bundle, p 83.
The clinical note dated 11 February 2022 referred to a recent motor accident and ongoing neck, back and right shoulder pain.[29] The clinical note dated 28 February 2022 again referred to neck, back and right shoulder pain.[30] On 29 March 2022 the GP recorded that the back, neck and right shoulder was getting worse.[31]
[29] Claimant’s bundle, p 82.
[30] Claimant’s bundle, p 80.
[31] Claimant’s bundle, p 77.
A certificate of capacity, probably dated 26 March 2022, noted injuries to the neck, lower back and right shoulder with associated depression and otherwise noted treatment for bilateral shoulder problems.[32]
[32] Claimant’s bundle, p 46.
A certificate of capacity also probably dated 26 March 2022, noted injuries as set out previously with descriptions of either SLAP tears or superior glenoid labral tears to both shoulders.[33]
[33] Claimant’s bundle, p 49.
An MRI scan of the lumbar spine dated 29 March 2022 showed no neural impingement and no significant disc degeneration or herniation.[34]
[34] Claimant’s bundle, p 110.
An MRI scan of the right shoulder dated 30 March 2022 showed a SLAP tear or glenoid labral tear.[35]
[35] Claimant’s bundle, p 109.
An MRI scan of the left shoulder dated 30 March 2022 showed a glenoid labral tear with AC arthropathy.[36]
[36] Claimant’s bundle, p 109.
An MRI scan of the cervical spine dated 1 April 2022 showed mild degeneration at C6/7 without nerve impingement.[37]
[37] Claimant’s bundle, p 108.
Subsequent injury
A certificate of capacity dated 25 July 2022 refers to a motor accident on 22 July 2022 when the claimant suffered injuries to the neck, lower back with reduced range of motion of the right shoulder.[38]
[38] Claimant’s bundle, p 52.
Qualified opinions
Dr Mastroianni was qualified by the claimant and provided a report dated 28 July 2022. The doctor noted that the claimant was a picker and packer at the time of the motor accident undertaking repetitive work and lifting. Dr Mastroianni noted onset of pain in the cervical spine, lumbar spine and right shoulder and the subsequent development of pain in the left shoulder.
Dr Mastroianni noted a history of no prior shoulder or back problems. The doctor opined that the motor accident caused soft tissue injuries to the cervical and lumbar spines and glenoid labral tears to the shoulders.
Dr Andrew McIntosh, biomechanical engineer, provided a report dated 25 May 2022.[39] The doctor referred to photographs showing scuff marks on the off-site front and rear doors with minor panel deformation. He described the change in velocity at 5km/h which was consistent with a low-speed collision.
[39] Insurer’s bundle, p 38.
Dr McIntosh opined that there was no mechanism for shoulder injury in the motor accident because the forces applied by the seatbelt and/or contact with the interior of the motor vehicle would have been of low magnitude.
Claimant’s statement
The claimant provided a statement dated 20 October 2022.[40] The claimant stated that he began work as a picker and packer in in October 2020. That work involved lifting weights up to 15 kgs and also involved moving heavy wooden pallets or cages.
[40] Claimant’s bundle, p 4.
The claimant had a prior motor accident on 26 May 2018 when he injured his right shoulder, back and neck. There was no lump sum settlement from that accident and the claimant stated that these symptoms resolved.
The claimant had a further motor accident on 4 June 2019 when he suffered injuries to the neck and back. Mr Gorgis said that he had no time off work and the insurer paid for some treatment expenses only.
The claimant injured his right shoulder in April 2021 when he hit his shoulder on a door. He had an X-ray, did not have any treatment nor time of work and the symptoms resolved.
The claimant referred to the motor accident and stated that he felt immediate pain to the neck, lower back and right shoulder. Pain in the left shoulder developed one to two weeks after the motor accident.
The claimant stated that following the motor accident the pain prevented him from working more than a couple of days and then he would have some days off work. His employment was terminated in February 2022 because he was having difficulties performing his preinjury duties.
The claimant returned to work for a short period in July 2022 but was unable to continue these duties.
The claimant stated that he had a further motor accident in January 2022 but did not suffer any injuries or symptoms following that accident. In July 2022 the claimant had a further injury to the right shoulder following a motor accident and he was paid benefits by the motor accident insurer. The claimant stated that the symptoms subsequently returned to the level they were before that motor accident.
Following the motor accident in December 2021 the claimant attended his GP and also had physiotherapy and chiropractic treatment at the same medical centre. Dr Fred Nouh, orthopaedic surgeon, subsequently administered a cortisone injection into the right shoulder.
EXAMINATION
The claimant was examined by Medical Assessor Gibson and Principal Member Harris on 2 June 2023. The claimant had the assistance of an interpreter who he used sparingly although he sought the interpreter’s assistance for some of the questioning and his responses.
The claimant agreed that he had prior right shoulder, back and neck pain following a motor accident in 2018. He said that he only had one week off work and basically recovered from that accident. He agreed that he had MRI scans after the earlier accident which he said were “clear”. The claimant acknowledged that he continued to suffer from back pain on occasions up until the motor accident.
The claimant said that at the time of the motor accident he was working full-time performing heavy lifting. He described the work as lifting and moving pallets and lifting various cartons which weighed approximately 15kg. The work involved both moving and lifting weights to his chest and also lifting above shoulder height. The claimant said that he continued to work following the motor accident in the period up until Christmas which was a particularly busy time. He said that he missed some time off work around Christmas but continued to work till February when he was terminated because he could not do his job. The claimant said that he was also off work around Christmas for a short period due to his condition and seeing doctors.
The claimant described the onset of pain in the right shoulder, neck and back as commencing either at the time of the motor accident or within a timeframe of two to three days. The claimant was informed that the initial clinical note with the GP recorded a delay in onset of right shoulder and back pain of two to three days following the motor accident. The claimant said that he was a little unclear as to when the pain commenced and at one point accepted that there was no immediate onset of pain.
The claimant said that he did not immediately see his general practitioner because he thought the pain would go away with medication. He said that he eventually consulted his doctor when the pain continued. He was unsure precisely when that was but accepted that it was around the Christmas period, either before Christmas, or between Christmas and the New Year.
The claimant described the motor accident as occurring when the insured vehicle came from the other lane and collided with his vehicle on the right-hand side. He said that he stopped his vehicle, exchanged details with the other driver and then drove home. In response to questions from Medical Assessor Gibson, the claimant stated during the accident his head was thrown forwards. He said that no body part impacted on the inside of the car, and he did not suffer any bruising following the motor accident.
Prior to the motor accident the claimant said that he worked out at the F45 gym almost daily and probably six times a week. He said that he could dead lift in the order of 80 to 100kg and lift in the order of 50 to 60kg above the shoulders. At one point the claimant said that he continued doing the gym work until January or February following the motor accident, but he was unsure. At another point Mr Gorgis said that he ceased the gym work at the time of the motor accident. It was then noted to the claimant that this was inconsistent with his statement to us earlier that the gym work continued until January or February 2022. The claimant then stated that he was unsure when he ceased going to the gym.
Mr Gorgis was asked about the onset of left shoulder pain. Initially he said that the left shoulder pain came on at the same time as the right shoulder. The clinical notes of the general practitioner were read out to the claimant in the context of an absence of left shoulder complaint until late January 2022 and then based on pain radiating from the neck to the left shoulder. The claimant’s statement was also read out, that is pain in the left shoulder developed “about one or two weeks after the accident”. In response to his prior statement, the claimant responded that he was unsure whether the left shoulder pain commenced at the time when the right shoulder pain commenced.
Mr Gorgis agreed that he had suffered a further motor accident in July 2022 when he again injured the same body parts.
The claimant stated that he has now obtained work because he had to support his wife and pay his mortgage. He said that he had no choice and had to be “hard on himself”. This included performing various jobs around the home although he had someone else mow his lawns.
The claimant said that he could not afford any medical treatment, but he takes one Panadol every night and has a Voltaren tablet once or twice every week. He said that he did not like taking Voltaren as that upset his stomach. The claimant also said that he uses a heat pack to ease his pain.
The claimant described ongoing pain at the back of the neck extending into the head and pain particularly over the right shoulder. He also said he gets pain in his right little finger.
The claimant was asked whether he wished to clarify or add anything. He said that he tries to push himself because he has to support his wife and that is why he is back at work. The claimant apologised for being unclear on dates and said that his memory was not clear.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The medical assessment related to whether the injuries sustained in the motor accident were minor or non-minor (now threshold or not threshold) as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[41] and Insurance Australia Ltd v Marsh.[42]
[41] [2021] NSWCA 287 at [40], [41] and [45].
[42] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[43] that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act.
[43] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[44] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[44] [2022] NSWPICMP 6 at [44]-[62].
The motor accident
The claimant was involved in a motor accident where the insured vehicle moved from the adjoining lane colliding with the side of the claimnat’s vehicle. The opinion of Dr McIntosh on the nature of the motor accident supports a low velocity impact as the vehicles were travelling in the same direction. The claimant otherwise described a minimal physical response during the motor accident limited to lurching forward with no impact against the interior of the vehicle.
The claimant continued to work doing reasonably heavy lifting work in what he described as a busy time at work. It is also likely that the claimant continued to do his gym exercises lifting very heavy weights.
Around two or three days after the motor accident the claimant developed low back and right shoulder pain. At some point later the claimant developed neck and left shoulder pain.
Lumbar spine injury
We accept that the initial clinical note, three weeks after the motor accident, refers to onset of back pain after two or three days following the motor accident. This onset of pain is in the context of an acknowledged pre-existing low back condition.
The MRI scan of the lumbar spine dated 29 March 2022 showed no neural impingement and no significant disc degeneration or herniation.[45]
[45] Claimant’s bundle, p 110.
The motor accident involved minor impact with little variation in change of velocity. The claimant’s description of the forces involved suggest minimal indirect trauma to the low back which is protected by the car seat.
We accept that there was probably a mild soft tissue injury to the low back. We otherwise observe that the claimant was lifting heavy weights at the gym and lesser but repetitive weights at work. Those activities placed significantly much greater stress on the low back than what would have been caused by the motor accident.
We are not satisfied that the motor accident involving a minor impact caused any aggravation of pathology of the lumbar spine.
There is otherwise no evidence of injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. There is no record of two signs of radiculopathy included in the examination findings of the original Medical Assessor.
The injury to the lumbar spine was a soft tissue injury.
Cervical spine injury
The claimant’s description of the mechanism of the impact suggested there was a likely whiplash effect on the cervical spine.
We note that there was no record by the GP of neck symptoms until late January 2022. We accept that the absence of recorded symptoms is not determinative of injury: The absence of record is relevant but not determinative of the question of causation: AAI Ltd v McGiffen.[46]
[46] [2016] NSWCA 229 at [64]-[66].
It is medically plausible that there was a whiplash injury to the cervical spine. However, the MRI scan of the cervical spine dated 1 April 2022 showed mild degeneration at C6/7 without nerve impingement.[47]
[47] Claimant’s bundle, p 108.
The delay in onset of symptomatology otherwise suggests an absence of acute trauma to that body part.
In these circumstances we accept, with some reservations, that there was a soft tissue injury to the neck. However, there is no evidence of injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage in the cervical spine.
There is otherwise no record of two signs of radiculopathy included in the examination findings of the original Medical Assessor.
Right shoulder injury
The claimant had a prior history of right shoulder symptoms although the pre-accident scans in November 2018 did not show abnormal right shoulder pathology.
We note the minor nature of the motor accident where there was no direct trauma to the right shoulder. The low-speed nature of the accident meant that there was minimal indirect trauma through the right shoulder which was restrained by a seatbelt.
Given the confusion in the claimant ‘s account to the Panel of the timing of the onset of symptoms and other matters, we consider it more likely based on the clinical note in late December that there was a delay in onset of right shoulder symptoms following the motor accident. The delay in onset of symptoms does not support a traumatic injury involving tearing of the glenoid or a SLAP lesion.
At that time the claimant was otherwise involved in lifting very heavy weights above shoulder height at the gym and repetitively lifting weights at work.
The claimant correctly noted that the right shoulder scan in late March 2022 showed abnormal shoulder pathology which was not present when the shoulder was scanned in November 2018. The explanation for the change in right shoulder pathology is likely the extremely heavy weights the claimant was lifting at the gym and/or the lesser but repetitive weights the claimant lifted at work.
The claimant’s case that the right shoulder tears were otherwise caused or aggravated by the motor accident is further diminished by the delay in onset of right shoulder symptoms following the accident and the minimal trauma indirectly through the seatbelt positioned over the right shoulder.
The claimant relied on the opinion of Dr Mastroianni as supporting the causal link between the shoulder tears and the motor accident. That opinion has not considered the minimal nature of the trauma to either shoulder from this motor accident in the context of far more likely causes (gym and/or work) for the shoulder tears. We do not accept that opinion.
Any injury to the right shoulder was minimal if at all. Noting that the motor accident need only be a contributing cause, we are not satisfied that the motor accident caused any injury or aggravation to the abnormal right shoulder pathology shown in the March 2022 MRI scan.
Left shoulder injury
We are not satisfied that the motor accident caused an injury to the left shoulder. There is no plausible medical reason why the unrestrained left shoulder would be injured from a side impact from the ride side.
The claimant otherwise did not describe any impact into the left shoulder.
The claimant initially stated that the left shoulder pain came on with the right shoulder pain. When the claimant’s statement was read out, he agreed that he was unsure when the left shoulder pain commenced. The delay in onset of pain is another reason why it is unlikely that the motor accident caused any left shoulder injury.
We accept that the MRI scan shows left shoulder abnormal pathology. Mr Gorgis regularly lifted heavy weights at the gym including weights above shoulder height. He was also involved in repetitive and heavy lifting at work including work above shoulder height.
The motor accident did not cause injury to the left shoulder. To the extent that the abnormal pathology in the left shoulder is explained, a much more likely explanation is the extremely heavy lifting at gym and/or the repetitive lifting at work.
Does the proposed treatment relate to the injury resulting from the motor accident
The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[48] These principles are well settled and equally apply to the causal relationship of treatment under the MAI Act by reasons of the same statutory language.
[48] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[49] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[49] [2018] NSWSC 1710 at [29] (Phillips).
We are not satisfied that the left shoulder was injured in the motor vehicle accident. Accordingly, there is no causal relationship between the motor accident and any treatment for the left shoulder.
The claimant otherwise seeks referral to a neurosurgeon for the cervical spine. The MRI scan of the cervical spine shows age related changes at C6/7 with no basis for a neurosurgeon’s opinion. We are not satisfied that the need for this treatment is caused by the motor accident.
Reasonable and necessary in the circumstances
Mr Gorgis is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW[50], Grove J stated:[51]
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[50] [2003] NSWCA 52 (Clampett).
[51] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[52]
[52] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[53] They include:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[53] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
We are not satisfied that referral to a neurosurgeon was necessary given the absence of neurological signs from the cervical spine.
The other treatment dispute was referral to an orthopaedic surgeon for the left shoulder pathology. The scan evidence showed abnormal pathology which warranted the opinion of an orthopaedic surgeon. However, that conclusion does not mean that the treatment was caused by the motor accident, only that it was reasonable and necessary.
CONCLUSION
For these reasons, the Panel agrees with the medical assessment that the claimant only sustained a minor (threshold) injury in the motor accident.
The certificates issued by the Medical Assessor are confirmed save that we accept that the treatment for the left shoulder was reasonable and necessary.
0
10
0