Hamdan v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 390
•15 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Hamdan v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 390 |
| CLAIMANT: | Ali Hamdan |
INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 15 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident on 22 May 2021; assessment of threshold injury; Medical Assessor (MA) Wijetunga certified the back soft tissue injury was caused by the accident and was a threshold injury; she certified injury to the cervical spine, injury to the thoracic spine and discrete injury to the lower limbs were not caused by the accident; claimant submitted constant pain and nerve impingement constituted radiculopathy; Held – Panel considered David v Allianz Australia Ltd; claimant had pre-accident grade 1 anterolisthesis of L4/5 and a disc prolapse at L4/L5 exacerbated by the accident; Panel not convinced claimant demonstrated two signs of radiculopathy; even if clinical records of GP sufficient to demonstrate two signs of radiculopathy Panel notes those symptoms were exactly the same as those recorded in 2019 and not caused by the accident; Panel revokes certificate of MA; claimant sustained soft tissue injury to the lumbar spine, to the cervical spine, and to the thoracic spine which are threshold injuries; the claimant did not sustain injury to the right or left leg. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Nelukshi Wijetunga dated · cervical spine – soft tissue injury; · thoracic spine – soft tissue injury, and · lumbar spine – soft tissue injury. The Review Panel determines that the following injuries were not caused by the accident: · left leg injury, and · right leg injury. |
STATEMENT OF REASONS
INTRODUCTION
On 22 May 2021 Mr Ali Hamdan (the claimant) was driving his car [BG1] down Loscoe Street, Fairfield when a vehicle coming out of Hedges Street turned into Loscoe Street and collided with the left back corner of the claimant’s vehicle (the accident).
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Hamdan under the Motor Accident Injuries Act 2017 (MAI Act).
Under the provision of the MAI Act in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”.[1]
[1] Section 3.28 of the MAI Act.
Mr Hamdan submitted an Application for personal injury benefits dated 23 August 2021.
The insurer issued a Liability Notice – Benefits up to 26 weeks on 13 September 2021 accepting liability for payment of statutory benefits for a period of 26 weeks.
On 11 November 2021 the insurer determined that Mr Hamdan had sustained a minor injury and denied liability for statutory benefits beyond 26 weeks after the accident.
On 12 November 2021 Mr Hamdan sought an Internal Review of the minor injury decision and on 1 December 2021 the insurer affirmed the determination that the claimant’s injuries met the definition of a minor injury.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including whether the injury caused by the motor accident is a minor injury for the purposes of the Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
[2] Section 7.20 of the MAI Act.
THRESHOLD INJURY- STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the 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.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[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 threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) 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 MAI 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 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 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.
5.8 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.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In Briggs v IAG Limited trading as NRMA Insurance[3] his Honour Justice Wright stated at [35]:
[3] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“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
6.5An 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.
6.6Causation 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 judgement.
6.7There 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.”
ASSESSMENT UNDER REVIEW
Medical Assessor Wijetunga issued a certificate dated 26 October 2022 in which she certified lumbar spine and associated lower limbs was a soft tissue lumbar spine injury and a minor (threshold) injury for the purposes of the Act.
The injuries referred for assessment were the following:
· whether the cervical spine injury caused by the accident is a threshold injury;
· whether the thoracic spine injury caused by the accident is a threshold injury;
· whether the lumbar spine injury caused by the accident is a threshold injury, and
· whether the injury to both legs caused by the accident is a threshold injury.
Medical Assessor Wijetunga reported the claimant said he had recurrent episodes of lower back pain with referral down both legs from 2015 to 2019, with no back pain between 2019 and the accident on 22 May 2021.
She reported Mr Hamdan said he experienced the onset of neck and upper thoracic pain about one to two months after the accident although both had recovered. Medical Assessor Wijetunga found whiplash symptoms would onset over a couple of weeks at most and found the neck and thoracic spine symptoms were not causally related to the accident and were constitutional for his age and vocation.
On examination of the thoracic and lumbar spine Medical Assessor Wijetunga reported:
“There is normal spinal curvature of both the thoracic and lumbar spine. There is no muscle spasm or guarding of either thoracic or lumbar spine. There is no tenderness on palpation of the thoracic spine. There is mild tenderness with firm palpation over the paraspinal muscles of the lumbar spine.
He demonstrates a normal symmetrical range of movements of flexion, extension, lateral rotation and lateral flexion of both the thoracic and lumbar spine. He reports that on lateral flexion to his left he experiences pain extending down his left leg to his ankles.
The neurological examination of the lower extremities is normal in terms of tone and power. There was no reproducible altered sensibility of his lower limbs. He has symmetrical reflexes of the lower extremities.”
Medical Assessor Wijetunga did not observe any signs of radiculopathy and reported the investigations did not demonstrate any neural impingement. She noted there was no report of any localised injury to the lower limbs and concluded there was no discrete injury to the lower limbs.
Medical Assessor Wijetunga concluded the lumbar spine and lower limbs – soft tissue back injury was caused by the accident. She found the following injuries were not caused by the accident:
· cervical spine;
· thoracic spine, and
· discrete injury to lower limbs.
REVIEW PROCEDURE
The claimant lodged an application for review of the assessment of Medical Assessor Wijetunga on 25 October 2022 within 28 days of the date on which the certificate of Medical Assessor Wijetunga was made available to the parties.
On 11 January 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[4]
[4] AD2 p 9.
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 new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission). [5] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[5] 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.[6]
[6] 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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
EVIDENCE BEFORE THE REVIEW PANEL
The claimant’s documents are:
· A1- Index to documents and submissions as to the minor injury dispute;
· A2 – Documents as per the index in A1;
· A2 – Submissions in support of the review of Assessor’s Wijetunga’s certificate, and
· document tiled “Document sent via email from claimant’s legal rep” which is a referral to Dr Simon McKechnie dated 13 November 2022.
The insurer’s documents are:
· R1 – Insurer’s submissions re review application, and
· R1 - Index and insurers documents (81 pages).
Other relevant documents are the Certificate of Medical Assessor Wijetunga dated
26 October 2022, the Certificate of Medical Assessor Richard Haber dated
3 August 2022 and the decision of the President’s delegate dated 11 January 2023.In response to a Direction from the Panel the claimant uploaded to the portal the following additional records which are titled “paginated bundle”:
· updated clinical notes form Alpha-Cure Medical Centre, and
· clinical notes from Dr Simon McKechnie.
The claimant is now 44 years of age, and he was 42 years of age at the time of the accident on 22 May 2021.
Photographs of the vehicles
A photograph of the insured’s vehicle shows damage to the entire front of the vehicle and a photograph of the claimant’s vehicle shows damages to the left rear of the vehicle behind the wheel.[8]
[8] R1 p 80.
Application for personal injury benefits
In the Application for personal injury benefits dated 23 August 2021 Mr Hamdan reported he sustained lower back pain and pain in the middle of his back due to the accident.
Clinical notes of Alpha-Cure Medical Centre
Pre-accident clinical notes
The clinical notes refer to consultations from 20 November 2015 until 5 October 2021.
On 20 November 2015 Dr Abdalla, general practitioner (GP) reported “back pain worse lately, worse with standing”. On examination the slump test was positive at L4/5 and there were no focal neurological signs. She diagnosis a disc prolapse at L4/L5.[9]
[9] R1 p 14.
On 14 December 2015 Yasmin Sabsabi, chiropractor reported that Mr Hamdan’s major complaints were “Low back pain, Mid back pain, Neck and shoulder pain”.[10] On examination Mr Hamdan had pain and tenderness in the sacroiliac region of the cervical, thoracic and lumbar spine; stiffness in the sacroiliac joints of the cervical, lumbar and thoracic spine; decreased range of motion of the cervical, lumbar and thoracic spine and sacroiliac joints.
[10] R1 p 35.
On 29 February 2016 Dr Abdalla recorded that Mr Hamdan’s “Back pain worse since last week, stiffness worse while standing”. She recorded “chronic pain in his back”.[11]
[11] R1 p 15.
On 11 January 2017 it was reported Mr Hamdan had back pain after travelling from Lebanon. He had stiffness and a reduced range of movement.[12] In a referral to Jim Laikos Dr Abdalla reported that Mr Hamdan’s back pain was “worse since last year, noticed chronic pain, weak control with analgesia”.[13]
[12] R1 p 15.
[13] R1 p 48.
On 18 October 2019 Dr Abdalla reported that Mr Hamdan “Presented with deep dull ache lower back pain with moderate stiffness, relieves with rest and exacerbates with activity, pain diffuse, unilateral, worse by the end of the day”.[14] She recorded the reasons for visit as “Back pain radiating to buttock” and referred Mr Hamdan for physiotherapy. On examination it was recorded:
[14] R1 p 22.
“Slump test positive.
Specific nerve root tests (L4, L5, S1)
sensation, power, reflexes – knee jerk L3, L4.
L3 Femoral stretch test (prone, flex knee, extend hip)
motor – extension of knee
sensation – knee jerk.
L5
motor walking on heels.
sensation – middle three toes (dorsum)
eflex– nil
S1
motor walking on toes
sensation – little toe most of sole.
reflex – ankle jerk (s1, S2)”
On 1 November 2019, in a near identical entry, Dr Abdallah recorded the reason for visit as back pain.
There is no further complaint of back pain until after the accident.
Post-accident clinical notes
Following the accident on 22 May 2021 the claimant consulted Dr Abdalla on
27 May 2021 with a complaint of severe lower back pain.[15] The examination report stated:[15] R1 p 21.
“Slump test positive
Specific nerve root tests (L4, L5, S1)
Sensation, power, reflexes – knee jerk L3, L4
L3
Femoral stretch test (prone, flex knee, extend hip)
Motor – extension of knee
Sensation – knee jerk
L5
Motor walking on heels
Sensation – middle three toes (dorsum)
eflex – nil
S1
Motor walking on toes
Sensation -little toe, most of sole.
Reflex -ankle jerk (s1, s2)”
Mr Hamdan continued to consult Dr Abdalla in respect of ongoing back related symptoms with pain referred into the buttock.
On 6 July 2021 Dr Abdalla reported a history of lower back pain in the past but noted the pain was getting worse after the accident.[16] In a Certificate of capacity/certificate of fitness dated 6 July 2021 Dr Abdalla diagnosed a back injury.[17] She described pre-existing factors as “Back pain in the past at L4/5, there is an anterolisthesis of L4 on 5. There is broad based disc.”[18] Dr Abdalla referred the claimant to UniquePhysio in respect of severe lower back pain.
[16] R1 p 23.
[17] R1 p 55.
[18] A2 p 22.
On 17 August 2021 Dr Abdalla reported ongoing lower back pain and stiffness worse since the accident.[19] She recorded poor sleep at night and noted simple analgesia was not enough to control his pain. Her diagnosis was back pain radiating to buttock.
Dr Abdalla issued a medical certificate in which she noted the diagnosis was of a severe back injury with disc pathology at L4-5 and nerve impingement at the S1 nerve roots.[19] R1 p 23.
On 15 November 2021 Dr Abdalla reported Mr Hamdan presented with a dull ache pain in the neck, radiating to the occiput shoulder movement. She diagnosed neck pain with radiculopathy.[20]
[20] Paginated bundle p 26.
On 23 November 2021 Dr Abdalla described spondylotic changes particularly at C5/6 and C67 with narrowing of the neural exits.[21] Similarly on 13 November 2022
Dr Abdalla reported numbness, bilateral spondylotic changes, and neuropathic pain.[22]
Uniquephysio
[21] Paginated bundle p 26.
[22] Paginated bundle p 29.
In an Allied health recovery request (AHRR) dated 24 September 2021 Katy Luk of UniquePhysio diagnosed:
“L/Sp injury –
L4/5 anterolisthesis, disc bulge, severe exit foramen narrowing
L5/S1 disc sl contact S1 nerve root.”[23]
[23] A2 p 44.
Ms Luk listed the current signs and symptoms as follows:
“-Bilateral leg pain LT>RT
occasional numbness in toes
limited standing and sitting tolerance
Limited ROM – F mid shin; SF 2/3”
She reported Mr Hamdan was working but “taking it easy”, avoiding heavy lifting, was mostly independent with domestic duties and self-care and with driving, transport and leisure activities except for limited standing and sitting capacity.
Dr Renata Bazina, neurosurgeon
The claimant saw Dr Renata Bazina, neurosurgeon on 9 September 2021.[24] She reported:
“He is an electrician and air conditioner installer, he was involved in a motor vehicle accident this year. He says 3 hours after getting home and having a shower he had severe back pain and spasms. He has occasionally had back pain which self limited and usually put down to muscle spasm. The symptoms are unfortunately are only getting worse, he has now had to rely on help for work and for lifting air conditioning units performing the majority of light duties.”
[24] A2 p 43.
Dr Bazina read the CT report, explained the pathology of L4/5 anterolisthesis and recommended an MRI scan. She suggested a trial of Gabapentin for the leg symptoms which she stated, “sounded non-radicular”.
On 3 March 2022 Dr Bazina stated:
“He reports ongoing low back pain, …. He has a grade 1 anterolisthesis of L4/5 typically if patients are symptomatic before the age of 50 they end up requiring surgery. He was unaware of the pre-existing condition it sounds like it was asymptomatic until the motor vehicle accident. The nature of the accident on probability resulted in this condition becoming symptomatic. …
In regards to his cervical spine, we could not access scan but I interpreted his report which reported C5/6, C6/7 discovertebral disease and early foraminal stenosis….”[25]
Dr Alan Dao, orthopaedic surgeon
[25] Paginated bundle p 65.
Dr Dao saw the claimant on 21 June 2022.[26] He reported a 12 month history of left shoulder pain which started when he was on a ladder which slipped and he grabbed a bracket to try and support himself resulting in immediate pain in the left shoulder. He reported the pain had been getting worse lately and had been radiating up into the neck and scapular region.
[26] Paginated bundle p 66.
Dr Dao reviewed Mr Hamdan on 26 July 2022 when he reported the MRI scan confirmed a full thickness tear to the supraspinatus as well as a tear of the upper rolled edge of the subscapularis.[27] He also noted significant tendinopathy of the long head of biceps tendon as well as an unstable SLAP tear and medical subluxation of the biceps tendon. Mr Hamdan underwent left shoulder arthroscopic rotator cuff repair and biceps tenodesis on 15 August 2022.
[27] Paginated bundle p 67.
Dr Simon McKechnie, neurosurgeon
On 13 November 2022 Mr Hamdan was referred to Dr McKechnie, neurosurgeon.
Dr Abdalla referred to a history of lower back pain, concern for worsening neck and lower back pain.[28] She reported the pain had worsened after the accident and was not controlled with regular analgesia and physiotherapy.[28] Paginated bundle p 112.
On 23 February 2023 Dr McKechnie reported Mr Hamdan was complaining of back pain which he felt was largely mechanical in nature, aggravated by trying to return to work.[29] He recommended a CT guided left L4/5 facet joint cortisone injection.
[29] Paginated bundle p 88.
On 13 June 2023 Dr McKechnie reported the main issue was chronic lower back pain with occasional pain and numbness radiating through the anterolateral lower legs and feet consistent with the L5 dermatome.[30] He stated the main pathology was “a [BG2] L4/5 with a Grade 1 anterolisthesis and a broad-based disc protrusion with mild bilateral foraminal stenosis”.
[30] Paginated bundle p 152.
Imaging
CT scan of the thoracic spine dated 27 May 2021 reported:
“There is normal alignment of the thoracic spine. There is no crush fracture. The costovertebral and costotransverse joints show minor degenerative changes.
There is no adjacent lung or paravertebral mass.
The thyroid gland appears normal.
No lymphadenopathy seen in the mediastinum.”
CT scan of the lumbar spine dated 27 May 2021 reported:
“There is an exaggerated lumbar lordosis. There is anterolisthesis of L4 on L5.
At the L1/2 level, there is mild facet arthropathy.
At L2/3, mild facet arthropathy.
At L3/4 mild disc bulge, mild facet arthropathy.
At L4/5, there is anterolisthesis of L4 on 5. There is broad based disc protrusion and there is bilateral severe neural exit narrowing lateral recess and severe canal narrowing. The facets are grossly degenerative at this level.
At L5/S1 there is a minor disc bulge, slight contact with the S1 nerve roots in the lateral recesses. There is mild narrowing of the L5 neural exits.
The sacroiliac joints are within normal limits.
Impression:
Changes most severe at L4/5 with anterolisthesis and canal stenosis.[31]
[31] A2 p 28 and R1 p 64.
MRI of the lumbar spine dated 12 October 2021 concluded:
“There is prominent L4-5 facet joint arthropathy bilaterally.
This results in grade 1 anterolisthesis, and uncovering of the disc.
There is associated mild central canal narrowing, with mild-moderate bilateral neural exit foraminal narrowing. No signs of associated neural impingement.
No significant abnormality demonstrated at the other levels.” [32]
[32] A2 p 48.
CT scan of the neck dated 17 November 2021 reported a clinical history of neck pain, numbness affecting both hands and pins down both arms. The report concluded:
“Spondylotic changes particularly at C5/6 and C67 with narrowing of the neural exits.”[33]
Certificate of Medical Assessor Haber
[33] A2 p 51.
Medical Assessor Haber issued a certificate dated 3 August 2022 in which he found that chest discomfort/pain presumably from the seat belt was a soft tissue injury and therefore a threshold injury.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 12 April 2022 in respect of the minor (threshold) dispute. The claimant contends he has sustained non-threshold injuries.[34] The claimant refers to the CT scan of the cervical spine dated 15 November 2021 which reported neck pain with numbness affecting both hands.
[34] A1.
The CT scan of the cervical spine of 17 November 2021 reported spondylotic changes at C5/6 and C6/7 with narrowing of the neural exits. The CT scan of the thoracic spine reported the claimant was experiencing severe pain in his mid-thoracic area.
The claimant contends the constant pain and numbness in the neck radiating into both hands meets the definition of radiculopathy.
The claimant notes in her medical certificate dated 17 August 2021 Dr Abdalla noted the diagnosis was of a severe back injury with disc pathology at L4-5 and nerve impingement at the S1 nerve roots.
The claimant notes on 13 September 2021 Dr Bazina reported the claimant was experiencing severe back pain and spasms since the accident.
The claimant relies on the MRI scan of the lumbar spine of 12 October 2021 which reported the claimant had prominent L4/L5 facet joint arthropathy bilaterally resulting in grade 1 anterolisthesis and uncovering of the disc. Further the claimant notes there is associated canal narrowing and bilateral neural exit foraminal narrowing.
The claimant contends that he has constant pain and nerve impingement in his whole back/thoracic and lumbar spine which falls within the guideline definitions of radiculopathy.
The claimant reports bilateral leg pain and occasional numbness in the toes. He has limited standing and sitting tolerance and a limited range of motion.
The claimant provided submissions dated 23 November 2022 in support of the application for review.[35] The claimant asserts Medical Assessor Wijetunga failed to disclose her path of reasoning in finding the injury to the lumbar spine and lower limbs were soft tissue injuries.
[35] A2 Submissions.
Insurer’s submissions
The insurer provided submissions dated 12 December 2022 in response to the application for review.[36]
[36] R1.
The insurer refers to the imaging findings and submits it is clear Medical Assessor Wijetunga took them into consideration.
The insurer notes that the Medical Assessor documented her examination findings in relation to the cervicothoracic spine, the thoracic spine and the lumbar spine and her findings did not meet any of the clinical signs (a) to (e) listed for radiculopathy as per clause 5.8 of the Guidelines.
The insurer refers to the AHRR dated 24 September 2021 and notes the following “the claimant is experiencing bilateral leg pain and occasional numbness in his toes and notes that he has a limited standing and sitting tolerance and a limited range of motion” does not meet the definition of radiculopathy.
The insurer submits;
“Noting the lack of contemporaneous evidence of symptoms/injury to the cervical spine, thoracic spine or lower limbs, taking into consideration the available medical evidence and that the Claimant did not have any clinical examination findings that meets the definition of radiculopathy as per clause 5.8 of the Guidelines at any point in time since the date of subject accident or at time of PIC assessment, using her clinical expertise and judgment, the Assessor has provided a clear path of reasoning for her determination and clearly explained why the injury to the cervical spine, thoracic spine and discrete injury to the lower limbs is not causally to the subject accident, and has correctly determined that lumbar spine and lower limbs – soft tissue back injury is minor injury for the purpose of the Act.”
THE MEDICAL EXAMINATION
Medical Assessor Moloney examined Mr Hamdan at the medical suites of the Commission on 26 July 2023. Mr Hamdan attended unaccompanied.
Pre-accident history
Mr Hamdan states that he was working full-time as an electrician in his own business for the past 22 years. He was married and lives with his wife and four children aged 21, 19, 15, and 9. He states that prior to the accident he played soccer on a regular basis.
He states that there was a previous history of lower back ache which was treated successfully by a chiropractor and physiotherapist and that he was asymptomatic immediately prior to the accident.
History of the accident
Mr Hamdan was the driver of his car when another car collided with the rear passenger side of his car. He was wearing a seatbelt at the time and airbags were not deployed. He was able to drive home from the scene and states that at that time he had pain in the lower back, mid back and right leg pain. Ambulance or police officers did not attend the scene of the accident.
History of treatment after the accident
Due to COVID-19 restrictions, Mr Hamdan had a telehealth conference with his GP a few days after the accident. The GP organised a CT scan and advised Mr Hamdan that he would possibly need spinal surgery. He was referred to a neurosurgeon, Dr Bazina and the first consultation was on 9 September 2021. She gave an opinion that the motor vehicle accident had aggravated his previous spine condition and initially recommended physiotherapy and exercises.
Mr Hamdan sustained an injury to his left shoulder which was not related to the accident when he fell off a ladder and an ultrasound reported a supraspinatus tear. He was referred to an orthopaedic surgeon Dr Dao who subsequently undertook a rotator cuff repair and treated a biceps tenodesis.
His GP also referred him to Dr McKechnie, whom he consulted a month ago with persistent back pain. A cortisone injection to the lumbar spine was organised but gave no benefit.
Since the accident, Mr Hamdan was diagnosed with Type II diabetes and was treated by a strict diet which controlled the diabetes and resulted in the loss of 16 kg.
There was a second motor vehicle accident in December 2022 when he was a driver of his car which collided with the car in front of him. He states there was no changes in his symptoms after this accident and he consulted his GP.
Current symptoms
Mr Hamdan has persistent low back pain which radiates into both legs down to the toes and is aggravated by bending. Sometimes the pain is more severe in the right leg in a global distribution associated with pins and needles. He states that he is okay when seated. Driving a car also aggravates this pain after 10 to 15 minutes. Since the accident he also gets a midthoracic ache which occurs after driving. He is able to walk for 10 to 15 minutes but is limited by low back pain. He has no neck pain at present.
At present, Mr Hamdan continues to work as an electrician but mainly as a supervisor. He states that he does no domestic duties, and his wife and kids help with the gardening and putting out the garbage.
Present medication
Present medication is Nurofen two tablets three times a day, Panadol two tablets three times a day and Panadol forte one or two per week. He was taking pregabalin last year but stopped due to side-effects. His diabetes is controlled by diet alone. No manual therapy is being undertaken at present, but he does home stretches. He is due to follow-up with his GP next week and would also like to have another consultation with the neurosurgeon.
No radiological studies were available for inspection.
Clinical examination
Mr Hamdan stated that he is right-handed and walked with a normal gait into the rooms and sat comfortably during the interview. His height was measured at 167 cm and weight 85 kg.
Cervical spine
On inspection of the cervical spine, there was a normal contour and on testing range of movement, there was a full range of flexion/extension, side bending and rotation with no asymmetry. On palpation there was no tenderness or guarding in the cervical musculature.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the upper arms 29 cm bilaterally (10 cm above the olecranon process) and at the maximum circumference of the forearm 27 cm bilaterally.
Thoracic spine
On inspection of the thoracic spine, there was a normal contour and on testing range of movement, flexion/extension, side bending, and rotation were all 60% of expected range with no asymmetry. On palpation there was some tenderness over the lower thoracic spine, but no guarding or spasm was noted in the thoracic musculature.
There were no signs of non-verifiable radicular complaints of radiculopathy in the thoracic spine region.
Lumbar spine
Mr Hamdan walked with a normal gait and was able to walk on his heels and toes. He could squat to 60% of expected range which was limited due to low back pain. On testing range of movement flexion was 70% of expected range and extension was 40% of expected range. Side bending was 80% of expected range bilaterally. Straight leg raise when lying was 70° bilaterally and 80° when seated. Sciatic nerve root tension signs were negative.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power. No muscle wasting was apparent with the circumference of the lower thighs 43 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 37 cm bilaterally. On testing for sensation there was a decrease in sensation over the entire left calf compared to the right and during the examination he noted pins and needles limited to all toes which was more prominent in the right side. There was a full range of movement of the knees and hips.
Right and left leg
There is no specific injury to either leg except for referral of pain from the lumbar spine.
PANEL FINDINGS
Cervical spine
The Panel notes the claimant’s focus following the accident was on the lumbar spine. There was no reference to the neck in the application for personal injury benefits and Dr Abdalla did not report neck pain until 15 November 2021. On 9 September 2021
Dr Bazina referred only to back pain and spasms although on 3 March 2022 she referred to the cervical spine. Mr Hamdan underwent a CT scan of the neck on
17 November 2021 when a history of neck pain and numbness and pins and needles down both arms was recorded.Notwithstanding the lack of contemporaneous complaint, the Panel accepts the claimant sustained a soft tissue injury to the cervical spine caused by the accident.
However, the Panel does not accept the claimant’s submissions and is not satisfied there has been any evidence of the presence of two or more of the clinical signs mentioned in cl 5.9 of the Guidelines to satisfy the diagnosis of radiculopathy at any time since the accident. The soft tissue injury to the cervical spine is a threshold injury.
The Panel finds the claimant sustained a soft tissue injury to the cervical spine which by the time of the examination by Medical Assessor Moloney had resolved.
Thoracic spine – soft tissue injury
The Application for personal injury benefits dated 23 August 2021 refers to pain in the middle of the back consistent with the history provided to Medical Assessor Moloney.
Whilst Dr Abdalla did not specifically refer to injury to the thoracic spine the Panel notes the claimant underwent a CT scan of the thoracic spine on 27 May 2021. The Panel is satisfied the claimant sustained an injury to the thoracic spine caused by the accident.
On examination by Medical Assessor Moloney there was evidence of a soft tissue injury with tenderness over the lower thoracic spines. However, at the time of examination by Medical Assessor Moloney and at all times since the accident there has not been any evidence of the presence of two or more of the clinical signs mentioned in cl 5.9 of the Guidelines to satisfy the diagnosis of radiculopathy.
The Panel finds the claimant sustained a soft tissue injury to the thoracic spine which is classified as a threshold injury.
Lumbar spine
There is no dispute Mr Hamdan sustained injury to his lumbar spine caused by the accident. He reported severe lower back pain when he consulted Dr Abdalla on
27 May 2021, and he consistently complained of lower back pain thereafter. He also reported lower back pain in the Application for personal injury benefits dated
23 August 2021.However, whilst there were no signs of radiculopathy at the time of the examination by Medical Assessor Moloney the Panel notes in line with the reasoning in David v Allianz Australia Ltd that radiculopathy can be present at any time to satisfy the concept that the injury is not a threshold injury for the purposes of the MAI Act.[37]
[37] David v Allianz Australia Ltd [2021] NSWPICMP 227 at [84] – [104].
The CT scan of the lumbar spine of 27 May 2021 disclosed at the L4/5 level anterolistheses of L4 on 5 and a broad based disc protrusion. However, it is clear from the Guidelines that diagnostic imaging is not considered necessary to assess radiculopathy and that the diagnosis of radiculopathy for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner.
The Panel notes prior to the accident on 20 November 2015 Dr Abdalla reported “back pain worse lately, worse with standing”. On examination she reported a positive slump test at L4/5 with no focal neurological signs and diagnosed a disc prolapse at L4/L5. She also reported lower back pain and noted “slump test positive” on 18 October 2019 and 1 November 2019.
Considering those reports the Panel does not accept the opinion of Dr Bazina of
3 March 2022 that the claimant was asymptomatic until the accident and the nature of the accident resulted in the grade 1 anterolisthesis of L4/5 becoming symptomatic.On 13 June 2023 Dr McKechnie reported the main issue was chronic lower back pain with occasional pain and numbness radiating through the anterolateral lower legs and feet consistent with the L5 dermatome.[38] He diagnosed pathology at the L4/5 level [BG3] with a Grade 1 anterolisthesis and a broad-based disc protrusion with mild bilateral foraminal stenosis.
[38] Paginated bundle p 152.
Noting there is no record of complaint by Mr Hamdan between 1 November 2019 and 27 May 2021 the Panel accepts the accident has caused an exacerbation of the pre-existing grade 1 anterolisthesis of L4/5 and the disc prolapse at L4/L5 leading to the increased symptoms complained of by Mr Hamdan.
However, whilst Dr Abdallah has documented signs of radiculopathy post-accident it is apparent from her records that the signs of radiculopathy both pre and post-accident are exactly the same. The Panel notes Dr Bazina, on 9 September 2021 concluded the leg symptoms “sounded non-radicular”.
Dr McKechnie’s opinion is equivocal, on the one hand he suggested the pain was largely mechanical in nature and on the other he referred to occasional pain and numbness radiating through both lower legs and feet consistent with the L5 dermatome. These findings do not meet the definition of radiculopathy in clause 5.8 of the Guidelines where he has only found one and not two or more clinical signs of radiculopathy.
Medical Assessor Moloney was not able to establish the presence of radiculopathy at the time of his examination of the claimant.
The Panel is not convinced, the claimant, has at any time since the accident demonstrated two signs of radiculopathy caused by the accident. Even if the clinical notes of Dr Abdallah are sufficient to demonstrate two signs of radiculopathy the Panel notes the signs are exactly the same as those recorded in 2019 and therefore, are not caused by the accident.
Where the neurological symptoms caused by the accident do not meet the assessment criteria for radiculopathy the Panel finds the claimant has sustained a soft tissue injury to the lumbar spine which is assessed as a threshold injury.
Right and left leg
There is no evidence of any complaint of specific injury to either leg at the time of the accident. All complaints of leg pain relate to pain radiating from the lumbar spine.
The Panel accepts the opinion of Dr McKechnie that any pain and numbness radiating through the anterolateral lower legs is referrable to the chronic lower back pain and not by reference to any injury to either leg.
The Panel finds the claimant did not sustain injury to either the right or left leg in the accident.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Nelukshi Wijetunga dated
26 October 2022 and determines that the following injuries caused by the accident are threshold injuries:· cervical spine – soft tissue injury;
· thoracic spine – soft tissue injury, and
· lumbar spine – soft tissue injury.
The Panel determines that the following injuries were not caused by the accident:
· left leg injury, and
· right leg injury.
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