Green v QBE Insurance (Australia) Limited
[2024] NSWPICMP 179
•26 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Green v QBE Insurance (Australia) Limited [2024] NSWPICMP 179 |
| CLAIMANT: | Lisa Green |
| INSURER: | QBE |
| REVIEW PANEL | |
| MEMBER: | Maurice Castagnet |
| MEDICAL ASSESSOR: | Sophia Lahz |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 26 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a in rear end collision on 30 April 2022; claimant’s head hit the roof of her vehicle; Glasgow Coma Score of 15 recorded at the scene of the motor accident and at the emergency department of the hospital; diagnosis of post-concussion syndrome; whether injuries to head, cervical spine and left shoulder were threshold injuries; Held – original assessment of threshold injuries confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The issue determined by the Review Panel is whether the injuries caused by the motor accident are threshold injuries. Determination 2. The Review Panel confirms the certificate of the Medical Assessor Ian Cameron dated |
STATEMENT OF REASONS
BACKGROUND
On 30 April 2022, the claimant, Lisa Green, was injured in a motor accident when the vehicle in which she was travelling as a left-rear seat passenger, was rear ended by a vehicle insured by the insurer, QBE.
As a result of the accident, the claimant claimed that she sustained injuries to her head, neck, and left shoulder.
The insurer accepted liability to pay the claimant statutory benefits arising from her injuries, under the Motor Accident Injuries Act 2017 (the MAI Act), for the first 26 weeks.
Statutory benefits by way of loss of earnings and treatment and care expenses, cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[1] An injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[1] Sections 3.11 and 3.28 of the MAI Act. From motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks.
[2] Section 4.4 of the MAI Act.
The issue in dispute is whether the claimant’s injuries resulting from the accident were threshold injuries for the purposes of the MAI Act.
Schedule 2, cl 2 of the MAI Act provides that various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
The MAI Act was amended by the Motor Accident Injuries Amendment Act 2022 to provide that from 1 April 2023, the term “minor injury” is to be expressed as a “threshold injury” and “minor injuries” as “threshold injuries”. Accordingly, any reference in these reasons to a “minor injury” or “minor injuries” will be a reference taken from a document that existed prior to 1 April 2023.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
On 19 October 2022, the insurer issued a post-26 weeks liability decision, finding that the claimant sustained only minor injuries in the accident. On the same date, the claimant requested an internal review. On 1 December 2022, the insurer affirmed its original decision.
MEDICAL ASSESSMENT UNDER REVIEW
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.
The dispute was referred at first instance to Medical Assessor Ian Cameron who issued a Medical Assessment Certificate dated 19 June 2023 (the medical assessment).
Medical Assessor Cameron determined that the following injuries that were referred to him for assessment were caused by the accident, and were all minor threshold injuries for the purposes of the MAI Act:
· head – soft tissue injury;
· cervical spine– soft tissue injury, and
· left shoulder – soft tissue injury.
It is to be noted that there were no other injuries referred to the single Medical Assessor for assessment apart from those injuries listed above.
THE REVIEW APPLICATION
On 27 December 2022, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment to a review panel for review. The application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being 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.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Sophia Lahz, Medical Assessor Michael Couch and Member Maurice Castagnet (the Panel).
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.[4]
[4] Section 41(2) of the PIC Act.
Pursuant to Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[6]
RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
[6] Section 7.26(6) of the MAI Act.
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)” and an acute stress disorder and an adjustment disorder.
The Motor Accident Guidelines
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 1 December 2017 to 31 March 2023. 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 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.[7]
Causation of injury
[7] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[8]
[8] See s 3B(2) of the Civil Liability Act 2002.
It is convenient to also set out in full the observations made by Wright J in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of Injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and a non-medical informed judgment.
6.7 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.”
CLAIMANT’S SUBMISSIONS
Head injury
The claimant’s primary submission was that the single Medical Assessor did not place importance on the fact that there was a referral for a neuropsychological assessment to further investigate her post-concussion syndrome which included symptoms of headaches, dizziness, and cognitive fatigue.
As will become apparent later in these reasons, the Panel received and considered a report from the claimant’s treating neuropsychologist Dr Tanya Kerr who conducted a neuropsychological assessment in October 2023, after the certificate of the single Medical Assessor was issued.
Injury to cervical spine
The claimant submitted that the single Medical Assessor only performed an active range of motion visual assessment and did not perform a passive range of movement test or a neurological test. The claimant submitted on that basis, the single Medical Assessor was unable to determine issues such as muscle guarding, dysmetria, verifiable radicular complaints and nerve tension.
Left shoulder injury
The claimant submitted that the single Medical Assessor only performed an active range of motion visual assessment and did not perform a passive range of movement test or a neurological test.
The claimant submitted that the single Medical Assessor provided no reference points on anatomical range of motion for comparison to her right shoulder or what is considered anatomically normal.
INSURER’S SUBMISSIONS
The insurer submitted that the single Medical Assessor was entitled to form his own opinion upon review of the evidence and on clinical examination, to draw his own conclusions and make his own findings.
The insurer submitted that the single Medical Assessor’s task was to determine whether the cervical spine, left shoulder and head injuries were threshold injuries. These were the only injuries referred for assessment.
MATERIAL BEFORE THE REVIEW PANEL
The Panel considered the claimant’s bundle of documents that were before the single Medical Assessor and the President’s delegate. The Panel also received from the claimant and accepted into evidence as a late document, the report of neuropsychologist, Dr Tanya Kerr, dated 16 October 2023.
The evidence before the Panel may be conveniently summarised as follows.
The claimant’s personal injury claim form
The claimant described her injuries as follows:
“After the accident and for the week following I experienced persistent strong headaches; altered levels of conscious [sic], cognitive impairment, fatigue, inability to concentrate, perform basic tasks and poor memory; blurred vision; severe nausea and loss of appetite; Sore, sniff neck and low range of movement; Sore left shoulder, with tenderness and bruising from the seatbelt; tenderness on my tummy along the seatbelt line; pins and needles in both hands; sore lower back. I am still experiencing pain and stiffness in both my neck and left shoulder, sufficient to make it difficult to sleep; ongoing inability to concentrate, perform complex tasks or remember conversations making my work challenging and tiring.” [9]
[9] A5 – claimant’s bundle.
Pre-existing medical records
The clinical records of the general practitioners from Brightwater Medical Centre (the GP clinical records) were available from November 2021. They showed no evidence of any treatment for the neck, head or shoulders.[10]
[10] A8 – claimant’s bundle.
There was no other evidence of any pre-accident treatment of any injuries or conditions relating to the neck, head or shoulders before the Panel.
Post-accident medical records
The ambulance report referred to the claimant as a restrained rear seat passenger travelling in a vehicle that was hit in the rear by another vehicle traveling at 40 - 60kmph. The rear window was smashed and there was minor body damage to the vehicle.[11]
[11] A5 – claimant’s bundle.
The ambulance report recorded that the claimant was asleep but on impact, bounced and hit her head on the roof. At the scene of the accident, the claimant was alert, oriented and speaking sentences. The claimant complained of pain to the top of her head, mild headaches and high neck pain and mild nausea. The Glasgow Coma Score was recorded as 15.[12]
[12] A5 – claimant’s bundle.
The discharge summary of John Hunter Hospital recorded that on admission on
30 April 2022, there were complaints of pain to the top of the head and at head/neck junction, neck pain with collar in situ. On arrival the GCS was recorded at 15.[13]
[13] AD1 – claimant’s bundle.
In a medical certificate dated 11 May 2022, general practitioner, Dr Danielle Carter, recorded diagnoses of concussive syndrome (with headache, blurred vision, nausea, fatigue, cognitive impairment, secondary to hitting the head on roof of vehicle) and musculoskeletal pain and bruising to the neck and left shoulder as a result of seatbelt injury.[14]
[14] A7 – claimant’s bundle.
An MRI of the brain performed on 12 December 2022 showed that no acute intracranial pathology was identified.[15]
[15] A6 – claimant’s bundle.
An MRI of the cervical spine performed on 12 December 2022 concluded that there was Modic Type 1 degenerative endplate changes at C5/6, and that no definite acute cervical spinal pathology was identified.
The GP clinical records recorded the following consultations:[16]
(a) 11 May 2022 – head hit ceiling and window (of car) taken to hospital via ambulance; whiplash, concussion, bruise to left side coming across the hip from seat belt; severe headache, discharge with endone, then switched to paracetamol; needed to take off last week – blurred vision, fatigue, headache, minor cognitive impairment (post-concussion syndrome), sore. On examination – minor tenderness to neck and left shoulders; cranial nerves intact;
(b) 25 May 2022 – headaches have improved; neck pain is worse, muscular in nature, base of skull down to shoulder either side of midline; impacting sleep; still foggy in the head, describes it as cognitively slower – taken a little longer to comprehend/process things; has been able to go back to exercise; has not yet seen physiotherapist;
(c) 3 August 2022 – foggy head; poor short-term memory; loses concentration; has trouble processing information at times, asking people to repeat themselves; right sided deep ear pain; headaches – tension;
(d) 6 October 2022 – ongoing neck pain; slower cognition; no new symptoms;
(e) 1 November 2022 – referred to physiotherapy and MRIs of the cervical spine and brain;
(f) 13 December 2022 – referred to Dr Chris Levi, consultant neurologist for further management, and
(g) 27 April 2023 – no changes, awaiting neuropsychologist report.
[16] A8 and AD2 – claimant’s bundle.
In a report dated 1 March 2023, Dr Levi diagnosed post-concussion syndrome and possible contribution from post COVID-19 related symptom complex. He recommended a neuropsychological assessment to investigate cognitive difficulties.
In a report dated 9 May 2023 and after a further assessment that day, Dr Chris Levi found that there was some reduction in movement of the neck on the lateral flex, discomfort and tenderness in the sub occipital area and some scalp muscle tenderness. His diagnosis was revised to post-concussion syndrome with severe physical and cognitive fatigue and post-concussion headache, possibly largely cervicogenic.[17]
[17] AD1 – claimant’s bundle.
In a report dated 16 October 2023, clinical neuropsychologist, Dr Tanya Kerr referred to a neuropsychological assessment of the claimant at the outpatient clinic of the John Hunter Hospital.[18]
[18] Claimant’s late document.
Dr Kerr noted that the force of the collision caused the claimant to hit her head on the roof and the left side of her vehicle. Dr Kerr noted that the Glasgow Coma Score at the scene of the accident was 15 and the same score was recorded at the Emergency Department of the John Hunter Hospital.
The claimant reported to Dr Kerr that she had experienced significant neck pain and headaches, and significant levels of fatigue since the accident. Both the claimant and her husband have noticed that she struggles with attention regulation.[19]
[19] Claimant’s late document.
Dr Kerr concluded that there was evidence of attention fluctuations, contributing to various performances with cognitive domains. Dr Kerr believed that the pattern of cognitive and behavioural changes reported by the claimant was consistent with post-concussion symptoms. Dr Kerr commented that in most cases, these symptoms diminish spontaneously within days or weeks whilst with some individuals, these changes can be prolonged.[20]
[20] Claimant’s late document.
Dr Kerr noted in the claimant’s case, cognitive strengths identified on assessment would appear to be undermined by residual levels of anxiety, headache pain and fatigue, contributing to inattention and detracting from her ability to execute a broad range of tasks at consistent levels.[21]
[21] Claimant’s late document.
RE-EXAMINATION
The claimant was examined by Medical Assessor Lahz on behalf on the Panel on
18 December 2023 at the Commission’s medical suites.
History provided by the claimant
The claimant and her partner James attended punctually for the medical assessment.
She provided the following history. She is aged 44. She is right-handed. She had travelled from home on the Sunshine Coast, Queensland to Sydney for the assessment. They live there with their two daughters aged 18 and 21.
The claimant was born in the United Kingdom and came to Australia to live at age 9. She was brought up on the Central Coast and then lived in Newcastle for a while. Subsequently, she spent ten years in Sydney working in the “tech industry”. Seven years ago, she and her family moved to the Sunshine Coast.
The claimant’s past medical history includes well-controlled bipolar disorder, bariatric surgery (gastric sleeve) followed by 65kg weight loss, left anterior cruciate ligament repair and a long-standing lower back injury. She acknowledged that she has always been a hard driving, “type A” personality who regularly consulted a psychologist before the motor accident, to discuss her needs around “staying on top of everything”. A background of anxiety (as revealed in the evidence before the Panel) was also noted during her school years regarding examinations. Nonetheless, on leaving school and starting work, she found success, being quickly elevated to more senior roles. On specific enquiry, she said there was history of teenage migraines and long-standing motion sickness.
The claimant holds a senior executive position with Telstra and has been with the company for over nine years. She holds a bachelor’s degree in computer science and charged with the important role of implementing new AI technologies throughout Telstra. She spends long hours in front of a computer and mostly works from home although sometimes she is required to travel, mostly to Sydney and Melbourne.
The claimant said she had no problems with the head/brain, neck and left shoulder prior to the accident.
She confirmed her involvement in the accident. She was a restrained rear seat passenger in a small hatchback when a large Ute rear-ended her vehicle. The collision was forceful enough to lift the back of her vehicle from the road. With the impact, her head forcibly struck the car roof and then the window. There was no loss of consciousness, and she has full recollections of the events taking place at the scene. She recalls immediate sharp neck pain posteriorly at the skull base. There was a “ringing” in the ears. She was able to get out of the vehicle. An ambulance took her to John Hunter hospital where she stayed for a few hours.
A collar was applied until it was found that no neck fractures were present. She indicated some surprise that no x-rays or scans were undertaken at the hospital. Whilst in hospital, she was aware of ongoing neck pain and noted the onset of left shoulder girdle pain, referred from the neck. She was given a “mild head injury” information sheet and permitted home. She went initially to her sister’s home in the Hunter Valley. She had been staying there to visit her sister when the accident occurred.
Post-accident
The claimant reports that she was off work for approximately one week after the accident. She then made a graduated return to usual duties. She said that Telstra is a very flexible employer when it comes to return to work programmes. Her recovery was complicated by a bout of COVID-19 (her third) approximately two weeks after the accident. However, she managed to upgrade to usual work by several weeks after the accident.
Since the accident, the claimant reported that she has been very troubled by cognitive symptoms, notably pervasive fatigue, “cognitive fog”, reduced concentration/attention, blurred vision and poor memory. She also referred to ongoing circumferential band like headaches, and posterior neck pain with symptomatic referral to the left shoulder girdle. Within a few days of the accident, she developed episodic “pins and needles” in all left-sided fingertips, though most prominent in the ring and little fingers. There has never been any bowel or bladder dysfunction such as incontinence.
The claimant said there has been no improvement in the cognitive symptoms inclusive of fatigue although there has been about a 50% improvement in headaches and about 20% improvement in neck pain.
The claimant has been most concerned by the cognitive symptoms, given that she places high value on her intellectual prowess and perceives that the accident has served to remove/damage a key part of who she is. Her employer is aware of the accident and been flexible with permitting her attend physiotherapy treatment for headaches and neck pain.
The claimant said that she has not disclosed the cognitive concerns to her employer. She has been worried that lapses of concentration and memory could be noticeable at work. She laments that work tasks which used to be “really easy” are now “really hard” taking her much longer as well as being significantly more effortful. To date, on the positive side, no one in the workplace has expressed any specific concerns about her work performance. She appears to function at a similarly high level although this is coming at the cost of greater effort and mental energy.
The claimant consulted her general practitioner approximately ten days after the accident. The doctor sent her to a physiotherapist in Noosa. She said the therapy which included exercises, acupuncture and manual therapy, made her headaches worse. Nonetheless, she continued to attend physiotherapy for about eight months, targeting neck and the shoulders, the left more than the right. She reported that the left shoulder has remained the most symptomatic although the right shoulder has also been a “bit tight” since the accident.
After the 24-week mark, the insurer ceased funding for treatment. She then self-funded further interventions or else used her private health insurance, in particular, for the neurology reviews with Dr Levi (discussed below). She has not received any physiotherapy for several months. As previously noted, headaches have significantly improved, neck pain has slightly improved, though cognitive difficulties with fatigue persist without abatement.
Due to her persistent cognitive symptoms, she said a friend suggested that she see Dr Levi, a neurologist at Newcastle, with expertise in the management of post-concussive syndrome. She obtained a referral and travelled to Newcastle on two occasions for face-to-face consultations. She then had two consultations via video link. The first consultation was in February 2023, then a further consultation in March 2023, another in May 2023 and the last one since.
The claimant reported that Professor Levi suggested a trial of Modafanil for fatigue. She has not yet proceeded with this treatment, given concerns expressed about potential worsening of the long-standing very stable bipolar disorder. She thinks she will trial Modafanil in 2024 whilst closely monitoring her mental state, to see if the medication can boost her energy levels.
Dr Levi also suggested Botulinum Toxin injections for chronic headache. The claimant indicated that she might proceed with this treatment given the 50% improvement in her headache severity since May 2023.
The claimant continues to take Lamotrigine and Dothiepin (for stable bipolar disorder) and Paracetamol and Diclofenac for aches and pains “as required”. The claimant is a non-smoker who consumes 1-2 drinks per week.
The claimant reported that she has very recently undergone a neuropsychological assessment with Dr Tanya Kerr (at the request of Dr Levi). She understands that the assessment revealed no specific cognitive deficits such as “memory loss” which she found very reassuring. She was told that her attention levels were fluctuating depending on sleep/pain levels and causing the “instruments” (i.e. cognitive domains) in her brain to play out of sync” or in other words, the conductor of the latter “instruments” is a “bit off”.
Dr Kerr is reportedly planning to send the claimant some exercises to hone her attentional skills. Dr Kerr also suggested possible referral of the claimant to a “post-concussion clinic” and the claimant plans to see Professor Levi in early 2024 to discuss this. The claimant felt reassured after speaking with Dr Kerr that her “concussive syndrome” is treatable with potential for symptomatic improvement. This has been of great concern to her.
The claimant continues working full-time in her Telstra executive role. The days are long and by end of day, she feels exhausted. The fatigue has never abated since the accident.
The claimant’s partner, James, completes most chores, meal preparation, laundry, ironing, and yard work because the claimant prioritises her work and has no energy for other activities. She cooks a meal on average once weekly. She cannot hang out washing due to the onset of dizziness with arms raised. She used to enjoy hobbies such as reading, painting, cake decorating and bush walking although she has no time for these now because workplace activities are more effortful and more demanding in terms of time. She still drives although she does not go far. On long trips, James will accompany her. She is a nervous traveller especially in the back seat and generally feels happier if she is driving rather than someone else.
Current treatment
The claimant is not receiving any specific treatment for her injuries currently, apart from seeing the psychologist. She did see a psychologist before the motor accident in relation to her hard driving nature although the frequency of sessions increased after the accident. She reported that her partner James, a skilled masseuse, provides massage to her head, neck and shoulders when symptoms are more severe. The claimant continues to attend weekly Pilates, an activity she had been doing before the accident to maintain fitness and weight.
The claimant is concerned that she has been unable to resume her pre-accident exercise routine, including cardiovascular programme and weights (low impact/high intensity). As a consequence, she has gained about 15kg since the accident. There has been discussion as to whether revision surgery of the gastric bypass might be necessary. She had been taking Ozempic to stem weight gain until the latter became unavailable. She also experiences reflux symptoms (made worse by Diclofenac) for which she takes Pariet.
The claimant said that her general practitioner has also diagnosed “POTS” (postural orthostatic tachycardia syndrome). In this condition, heart rate increases with associated dizziness, on prolonged upright posture, especially if she is concurrently raising her arms. She explained that it is unclear whether this condition is due to the accident or whether it has stemmed from COVID-19. She said that her general practitioner does not think the condition is “bad enough” to warrant medication to slow her heart rate. She said her resting heart rate is elevated and that when she does provocative activities with arms in elevation, she receives all kinds of pulse rate warnings from her watch.
The claimant does not report any positional vertigo, for example, on rolling over in bed, or on arising from lying to seated position. She reported a lack of ease when visually tracking items as though her eyes were not “keeping up”.
She can now only do exercises “on the ground,” for example, static bike, rowing machine etc. If she attempts weightlifting in an upright position, she invariably becomes tachycardic and dizzy. The alerts on her watch remind her at least that she should sit down.
Current symptoms
Cognitive symptoms affecting concentration, attention, memory and energy levels predominate. Everything is more effortful, and fatigue persists. She takes no daytime naps on workdays although on weekends, she catches up with sleep and may spend part of the day in bed. However, the claimant never really feels that she catches up. Sleep at night is commonly disturbed by neck pain – it is difficult for her to get comfortable.
Headaches have eased, mostly mild, approximately 2/10 intensity with regular moderate intensity exacerbations. There has not been a severe exacerbation forcing her to lie down in the last two months. She is no longer taking Endone. Headache may be associated with nausea but not vomiting. Visual symptoms such as blur may precede the headache as well as continue during the headache. She also referred to light sensitivity preceding and persisting during the headache.
She complains of constant posterior neck pain ranging in intensity from 2-8/10 with symptom radiation to the left trapezius (6/10) and shoulder girdle (6/10). There are no symptoms spread beyond the left shoulder girdle.
The neck is generally stiff, and she has particular difficulty moving her head towards the right as well as bending forward.
There are now only occasional “pins and needles” in all the left-sided fingertips (still most marked in the ring and little fingers). Earlier, there were also paraesthesia affecting the medial left forearm.
She obtains symptomatic relief by lying down or else applying a heat pack. As previously noted, she also uses anti-inflammatory medication such as Diclofenac if necessary.
With prolonged standing and if raising her arms simultaneously, she experiences a “fast pulse” and dizziness/faintness. She reported that the room can “spin” for several minutes and there can be concurrent nausea but no vomiting. If she does not sit down quickly, she will fall down. If she is out shopping, she usually sits down after one hour on her feet.
The right shoulder girdle is pain free.
The claimant also reported that both lower limbs are swollen (the right more than the left) and that she has an upcoming ultrasound to investigate this. She is presently wearing off the shelf below knee compression garments.
Examination findings
On examination, the claimant was an informative historian without overt cognitive difficulties. The Panel Medical Assessors noted the results of the recent neuropsychological assessment of Dr Kerr, referring to fluctuations of attention in the context of pain, fatigue, and sleep disturbance.
Essentially, the claimant’s cognition is intact; the problem being her difficulty utilising preserved cognitive faculties optimally due to chronic pain, sleep disturbance and stress levels all of which exert adverse effects on powers of concentration and attention.
The Panel medical examiner found the claimant a tall woman (179cm height) with moderately overweight body habitus 93.5kg.
She was an informative historian who appeared to sit comfortably during the interview.
There was normal lordotic neck posture. Neck flexion was 1/2 normal range, extension 2/3 normal range, left lateral flexion ¾ normal range, left rotation ¾ normal range and right rotation and right lateral flexion 2/3 normal range. She indicated greater discomfort on neck flexion and rightward neck movement. Dysmetria was present.
There was no muscle spasm or else guarding at the cervical spine/trapezial regions.
There was tenderness at the neck most marked at junction of the neck and skull base. There was lesser tenderness at the left trapezial region.
There was no measurable wasting of the arms (30cm) 10cm above the elbow crease nor of the forearms 26cm (4cm below the elbow crease).
Biceps, triceps, brachioradialis, supinator and pronator jerks were present and symmetrical bilaterally.
She indicated reduced sensation for light touch and pinprick in the left lateral upper arm, lateral forearm, and tips of the middle, ring and little fingers. The latter is not an anatomical or else single dermatomal distribution and thus not a non-verifiable radicular complaint.
There was normal strength in the upper limbs other than mild reduction in left elbow extension due to proximal limb discomfort and perception of weakness.
Upper limb neural tension test on the right was mildly positive and more strongly positive on the left (she complained of pain spreading down to all of the fingertips).
There was no muscle wasting about the shoulder girdles.
Active shoulder movements are shown in the following table, measured thrice with a goniometer to check consistency. (Movements were consistent across repetitions.)
Right
Left
Flexion
170
120
Extension
80
60
Abduction
180
130
Adduction
50
50
External rotation
80
80
Internal rotation
90
50 (painful shoulder joint)
On history, she described pain mostly to the left trapezial region although on clinical examination, she indicated pain around the left shoulder convexity, posterior shoulder and deltoid region as causing the observed motion limitation.
There was mild tenderness at the left subacromial bursa and over the left anterior (shoulder) joint line. Impingement tests were notably positive at the left shoulder. (There have not been any investigations of the left shoulder since the motor accident.)
She could reach behind with both arms to the bra strap and she could also place her hands behind her head.
No X-rays were brought to the examination.
Conclusions
The Panel Medical Assessors acknowledge that the claimant has been diagnosed with “post concussive symptoms”. However, the latter constellation of symptoms does not automatically lead to the conclusion of occurrence of a traumatic brain injury, even one of mild severity. Persons subjected to significant/frightening trauma often complain of headaches, dizziness, fatigue, neck pain and cognitive difficulties without the occurrence of traumatic brain injury. In other words, the so-called post concussive symptoms are non-specific and not useful with respect to confirming a specific diagnosis of brain trauma.
The Panel Medical Assessors refer to the criteria set out at paragraphs 6.164 to 6.169 at page 113. Although there was a blow to the head in the motor accident, there was no loss of consciousness. GCS remained 15/15 at all times, and there is no medically verifiable duration of post-traumatic amnesia. AWPTAS (Abbreviated Westmead PTA Scale) was not done after the motor accident due to absence of confusion as well as the claimant’s full recollections of all events occurring during and after the motor accident. The claimant has undergone an MRI of the brain which has not demonstrated any stigmata suggestive of brain trauma. Thus, she does not meet the criteria set out in the SIRA Medical Assessment Guidelines paragraph 6.164 on page 113 for diagnosis of traumatic brain injury. The Panel accepts that she did hit her head in the accident with resultant head soft tissue injury.
The Panel Medical Assessors refer to paragraph 6.138, page 108 of the Guidelines which sets out the criteria for diagnosis of cervical radiculopathy. The only positive finding is positivity of the left-sided upper limb neural tension sign. There were no objective neurological abnormalities in the upper limbs, in which the Panel medical examiner found normal symmetrical reflexes, non-anatomical sensory loss of the left upper extremity, mostly normal left upper limb strength (not in the pattern of a single myotome) and no measurable muscle wasting of the arms or else forearms.
The Panel Medical Assessors conclude that criteria are not met for cervical radiculopathy. The claimant has incurred a soft tissue injury to the cervical spine (Whiplash Grade 2 Injury) with symptom referral to the left shoulder girdle and upper limb. It is recognised that Grade 2 Whiplash is sufficient to explain the claimant’s symptomatic complaints of headaches, dizziness, fatigue and cognitive symptoms (poor memory and concentration, even in the absence of a traumatic brain injury). As noted above, the latter symptoms are non-specific and their presence does not automatically confirm the presence of a traumatic brain injury.
Regarding the left shoulder, on history, the symptoms are referred from the cervical spine to the left shoulder girdle/trapezius although on clinical examination, the claimant localised pain/discomfort to the shoulder joint where there were mildly positive left shoulder impingement signs such as painful restriction of internal rotation.
The Panel noted that the claimant has not undergone any specific imaging of the left shoulder. The Panel notes however, that there was no specific mechanism of injury to the left shoulder apparent from the motor accident, in that there was no blow applied directly applied to that shoulder.
The Panel concludes that there is no evidence of anything more than a soft tissue injury to the left shoulder.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were threshold or non-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: See Insurance Australia Group Ltd v Keen[22] and Insurance Australia Ltd v Marsh.[23]
[22] [2021] NSWCA 287 at [40], [41] and [45].
[23] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination findings and conclusions of the Panel’s Medical Assessors.
CONCLUSION
The following injuries caused by the motor accident:
· head – soft tissue injury;
· cervical spine– soft tissue injury, and
· left shoulder – soft tissue injury.
are THRESHOLD INJURIES for the purposes of the MAI Act.
The Panel confirms the certificate of Medical Assessor Ian Cameron dated
19 June 2023.
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