Hanna v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Hanna v QBE Insurance (Australia) Limited [2023] NSWPICMP 101
CLAIMANT:	Edward Hanna
INSURER:	QBE Insurance (Australia) Limited
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Shane Moloney
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	21 March 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claim for statutory benefits; dispute about minor injuries; assessment by Medical Assessor Truskett that all injuries were minor injuries; claimant 71-years-old; injured in T-bone type collision on 24 December 2019; injuries to be assessed were cervical and lumbar spine, chest, right and left shoulder and right hip; Held – Panel satisfied claimant injured his neck and back in the accident, but no radiculopathy present or at any time since the accident; claimant denied any previous condition in the shoulders and denied any pre-accident radiology to his shoulders; General Practitioner notes reveal complaints of shoulder pains in 2017 and 2019 before the accident resulting in investigations and radiology; 2021 radiology revealed small tears in the soft tissues of the right shoulder but Panel not satisfied these were caused by the accident; Panel satisfied there was an injury to the right hip but no evidence of anything other than soft tissue injury; radiology post-accident revealed “old” sternal fracture; claimant did not recall previous chest fracture but accepted he had memory problems; radiology report indicated fractured sternum was pre-existing and no signs of acute injury visible; Certificate of Assessor Truskett confirmed; all injuries minor injuries.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate of Medical Assessor Truskett dated 9 June 2022. 2. Certifies that the injuries sustained by Mr Hanna on 24 December 2019 are minor injuries for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

On 24 December 2019, Edward Hanna, then aged 71, was involved in a motor accident. Mr Hanna was driving in Smithfield when a vehicle turned right from a side street at the left, directly into the path of Mr Hanna’s vehicle. A “T-bone” type collision occurred between the front of Mr Hanna’s vehicle and the other vehicle.
Mr Hanna made a claim for statutory benefits against QBE, the third-party insurer of the at-fault vehicle. QBE accepted the claim and started paying Mr Hanna his statutory benefits.
On 14 May 2021, QBE wrote to Mr Hanna terminating his benefits on the basis his only injuries sustained in the accident were “minor” injuries within the statutory definition.

Mr Hanna was disappointed with that result and, through his lawyers applied for an internal review and on 15 June 2021 QBE issued their internal review decision affirming the original decision.
Mr Hanna has, through his lawyer, then referred the medical dispute about “minor” injuries to the Personal Injury Commission (the Commission) and that dispute was referred to Medical Assessor Truskett to determine. The Medical Assessor issued a certificate on 9 June 2022 finding all of the claimant’s injuries to be minor injuries.
The claimant then lodged an application for review of that assessment and on

2 September 2022, the President’s delegate determined there was reasonable cause to suspect a material error in the assessment and the President convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr Hanna’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of the restrictions is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained in the accident are “minor” injuries. It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.

Minor injury

A minor injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”.[1] Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
[1] The legislative scheme also provides for psychological or psychiatric injuries and which of those are “minor” however as the matter in issue before the Panel relate only to the claimant’s physical injuries, those provisions will not be referred to.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Clause 4 of the Motor Accident Injuries Regulation 2017 (the Regulation) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a minor injury. Relevantly to the matters in issue in Mr Hanna’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines.[2] Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury.”
[2] Chapter 6 of the Guidelines.
In David v Allianz Australia Insurance Ltd (David)[3] at [84 – 105] a medical review panel considered the issue of “whether an injury is not a minor injury if radiculopathy is present at any time following injury”. At [98] the panel observed:
“Radiculopathy is an example where the symptoms fluctuate over time because the extent of the compression of the spinal nerve root may vary due to inflammation on the nerve root. Symptoms may subside if the inflammation reduces and return because the injured disc is exacerbated by innocuous activities.”
[3] 2021 NSWPICMP 227.
The Panel found at [104] that if it is established (in an assessment that complies with cl 5.5 of the Guidelines) that there are at least two clinical signs of radiculopathy (as set out in cl 5.6) present at any time, the injured person falls outside the definition of “minor injury”. The assessment of a minor injury dispute by a Medical Assessor or a review panel requires both an assessment of the claimant and the injuries on the day as well as a review of the records to determine whether the claimant had a non-minor injury sustained in the accident, regardless of the state of the injury (healed, recovered, in remission) at the time of the assessment.

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the MAI Act.[4] In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
[4] The current version of the Guidelines I version 8.2 effective 8 April 2022.
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4    Diagnostic imaging is not considered necessary to assess minor injury.
5.5    A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
The method of assessment in Part 5 does not appear to be limited to the assessment of minor injury disputes by Medical Assessors and Panel Members but would appear to extend to medico-legal or other experts retained by the claimant and the insurer upon which the insurer’s liability notices are based under s 6.19(2).

Dispute resolution

If there is a dispute about whether an injured person’s injuries are minor injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[5]
[5] Schedule2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Truskett’s, further medical assessments and the review of medical assessments by a review panel.[6]
[6] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Truskett undertook an assessment on 3 June 2022 issuing his certificate and reasons on 9 June 2022. The Medical Assessor was asked to assess injuries to the claimant’s:
(a)    cervical spine (with dysmetria);
(b)    lumbar spine (with dysmetria and right radicular symptoms);
(c)    right shoulder (rotator cuff pathology with pain, decreased range of motion and rotator cuff pathology);
(d)    left shoulder (soft tissue injury with pain, decreased range of motion and rotator cuff pathology), and
(e)    right hip.

Medical Assessor Truskett takes a history of the accident noting the claimant’s car was towed and later written off ($4,000 in value). The claimant recalled he was bleeding from the head, and he was taken to hospital where he was treated in emergency and discharged.
A few days after the accident the claimant attended his treating doctor, was referred for physiotherapy and eventually referred to Dr Van Gelder who advised him to have surgery to his neck and right shoulder which he declined.
In terms of symptoms the claimant told Medical Assessor Truskett the following:
(a)    neck – pain in both sides, present all the time which is moderate and worsens with activity and improves with rest and medication. The claimant said the pain radiates to the top of both shoulders and he has clicking;
(b)    lower back – pain in the mid lumbar area all the time exacerbated with activity. The pain radiates to the buttocks and improves with medication;
(c)    right hip – this pain was noted by Medical Assessor Truskett to be pelvic pain not hip pain and was said to be worse after five minutes of walking;
(d)    right shoulder – pain at the front of the shoulder, present at rest and worse with movement;
(e)    left shoulder – pain which is not as bad as the right at the front of the shoulder always present and worse with movement, and
(f)    chest – pain where he hit the steering wheel, present all the time but with no breathlessness.
Medical Assessor Truskett records the claimant takes Panadol Osteo three times a day, a stronger narcotic analgesic twice a day, Lyrica twice a day and Lipitor (for high blood pressure). He sees his general practitioner (GP) regularly.
Medical Assessor Truskett says the claimant was a poor historian in terms of dates and events. He was observed to walk normally getting on and off the examination couch without assistance. On examination the Medical Assessor reports:
(a)    neck – no muscle guarding, global reduction of all movements with no dysmetria. Power and tone were normal. There were sensory changes in both upper limbs which “could not be explained by an anatomical lesion”;
(b)    arms – all reflexes were present. There was no muscle wasting. Measurements of the arm circumference were equal on both sides;
(c)    back – no muscle guarding. Power, tone and sensations were normal. Movements of the back were reduced but equal (no dysmetria) and there was no muscle wasting;
(d)    hips – the claimant would not perform hip movements actively and range of motion was “impossible to measure”, and
(e)    shoulders – no wasting of the shoulder muscles but marked reduction of shoulder movement.
Medical Assessor Truskett lists at [20] a number of inconsistencies in the claimant’s presentation between the observations and the formal examination.
At [21], Medical Assessor Truskett undertook a review of the documentation and at [22] conducted a review of the radiology noting that a 2 March 2020 CT scan showed “evidence of an old sternal fracture, non-displaced”.
The Medical Assessor determined the claimant may have received soft tissue injuries to his neck, lumbar spine, shoulders but said there was no evidence of any hip injury. He says at [24] on page 8 “there may have been a sternal fracture based on a subsequent CT scan which is now resolved”. This was not considered by Medical Assessor Truskett as it was not on the list of injuries to be assessed.
Medical Assessor Truskett also says:
“There are marked degenerative changes demonstrated on imaging in his neck and lumbar spine and left shoulder. There are changes relating to partial muscle tears described and he had a fracture to his right shoulder, and in essence degenerative disorder and not considered to be traumatic for the purpose of this assessment. His symptoms and signs that he demonstrates in relation to neck, shoulder and back movement are not consistent with his injuries or observation of movement which would tend to suggest significant inconsistencies with his presentation.
In relation to his right hip, the pain he describes does not relate to hip pain and is more in keeping with pain relating to the superior lateral aspect of his right pelvis. The pain is not really described. No specific injury to his hip that has been demonstrated or documented.”
Medical Assessor Truskett found at [27] no evidence of radiculopathy and that therefore there was a minor injury to the neck and lower back. Although there were some structural changes in the rotator cuff in the right shoulder, he says these are degenerative, and not acute and therefore not accident related. He also found no evidence of hip injury.

ISSUES FOR DETERMINATION

Claimant’s submissions

In the claimant’s submissions to the President’s delegate, the claimant refers to the Medical Assessor’s findings of soft tissue injuries and his finding that dysmetria, radicular symptoms, rotator cuff pathology and a right hip injury were not caused by the accident. The claimant says the opinions of Dr Gehr (for the claimant) and

Dr Harrington (for the insurer) make findings of a number of injuries and quotes

Dr Gehr’s opinion that the claimant was asymptomatic before the accident.
The claimant notes that Professor Van Gelder is proposing surgery to alleviate the claimant’s radicular symptoms caused by a nerve root compromise.
The claimant refers to the Guidelines and the requirement for there to be two of the five signs of radiculopathy present and says that the claimant does have two or more signs in his cervical and lumbar spine relying on:
(a) Dr Sanki who said there was “myelomalacia and numbness in the fingers”, and
(b) Professor Van Gelder who says the claimant has radiological change consistent with cervical radicular symptoms.
The claimant points to some passages in the determination of Medical Assessor Truskett which the claimant submits “do not make sense” and which appears to the Panel to be due to a series of typographical or uncorrected dictation errors made by Medical Assessor Truskett.

Insurer’s submissions[7]

[7] The insurer’s submissions are presented by way of numbered paragraphs however the numbering is repetitive and out of order in places (e.g. between paragraphs 63 and 64).

In the submissions to the President’s delegate in respect of the review, the insurer says:
(a)    the Medical Assessor considered the differing opinions in the medical evidence and made his own determination of causation and diagnosis;
(b)    Medical Assessor Truskett observed the claimant’s movements which were inconsistent with the range of movement in the formal examination. The Medical Assessor put the inconsistency to the claimant who did not respond;
(c)    Medical Assessor Truskett made findings about the right shoulder pathology that it was degenerative and not acute and traumatic and he referred to pre-accident radiology, and
(d)    the Medical Assessor did not comment on what caused the alleged radiculopathy and dysmetria on the basis of inconsistency and did engage with the issue of aggravation saying that any aggravation caused by the accident had ceased.
The insurer sets out a procedural chronology and background to the dispute. The insurer sets out some features of the claimant’s prior medical history noting radiology of the lower back on 12 June 2009 (page 215 of the claimant’s bundle addressed to Teresa Wong), 23 December 2010 (page 246 addressed to Dr Renato Di Mascio) and X-rays of the neck and right shoulder in April 2019. The insurer refers to the GP’s notes which include entries dated 15 June 2017 (pain in the right shoulder, lumbar spine and back of the neck), 13 July 2019 (came in for back pain), 24 April 2019 (shoulder pain), 18 April 2019 (shoulder pain radiating to neck), and 22 February 2019 (back pain).
The insurer reviewed the hospital notes which refer to occipital pain and neck pain. The insurer did not refer to the entry on page 108 which refers to “ongoing mild tenderness along thoracic spine and more notable midline tenderness along lumbar spine” and the note that the claimant “states he does have lower back pain issues”. It appears this note is what prompted the hospital to undertake a lumbar spine X-ray.
The insurer refers to the GP’s questionnaire dated 8 March 2020 which listed the claimant’s injuries as including fractures of the left ribs, aggravation of cervical and lumbar spine injuries, left inguinal hernia, right occipital neuralgia, shock and possible sternum fracture. The Panel notes there is no reference to shoulder symptoms or injury in this list.
The insurer refers to other reports and summarises the medico-legal evidence.
The substantive submissions and arguments commence at paragraph 64. The insurer notes the findings of causation and says there is a “longstanding history of neck, lower back and shoulder complaints” before the accident. The insurer says the test of causation is set out in s 5E of the Civil Liability Act 2002 and says the applicant (claimant) bears the onus of proof and says the claimant has not satisfied the onus.

Procedural matters

Following its first meeting on 13 October 2022, the Panel issued a report to the parties and requested:
(a)    the parties investigate and consider the possibility of the sternal fracture noting that this is likely to be a non-minor injury if caused by the accident;
(b)    the claimant consider whether the claimant’s hip injury is a minor injury;
(c)    the parties consider whether at least two of the five signs of radiculopathy have been present at any assessment which complies with cl 5.6 since the date of the accident;
(d)    the insurer make enquires of the claimant’s GP to enquire whether there are any missing notes corresponding to the dates of the radiology obtained in 2009 and 2010;
(e)    the claimant provide the Panel (care of the Commission) with the radiological films (not just the report) available in respect of the claimant’s neck, back and shoulders, and
(f)    the parties to provide a bundle of all the documents they rely on with submissions noting that the Panel is undertaking a de novo assessment and the current submissions were aimed at satisfying the President’s delegate of a material error.

Claimant’s response

The claimant responded by providing a bundle of documents[8] and submissions dated 29 November 2022[9] addressing the matters above.
[8] Document AD5 in the Commission’s file.
[9] Document AD6 in the Commission’s file.
In complying with point (e) above, the claimant uploaded a document[10] which comprises 471 separate radiological images including a cervical spine X-ray of

10 February 2021, ultrasound images of the left groin / abdomen (7 January 2020,

1 October 2021 and 7 July 2022), MRIs of the cervical spine (10 February 2021), thoracic and lumbar spine (23 March 2021).
[10] Document AD3 in the Commission’s file. Document AD4 appears to be a duplicate of all 471 images.
The 2 March 2020 CT scan of the chest, abdomen and pelvis does not appear to be in either document AD3 or AD4 and there are no images from the claimant’s pre-accident radiology for the Panel to review.
In relation to the other points above, the claimant says:
(a)    the claimant does not concede his hip injury is a minor injury but offers no submission or explanation why that injury would not be a minor injury;
(b)
the Panel has been provided with all of the claimant’s GP records in

Mr Hanna’s possession;
(c)    the “old sternal fracture” was caused by the accident because the claimant denies any previous sternal fracture and has only had chest / sternum pain since the accident. This fracture is a non-minor injury, and
(d)
the Panel’s request for submissions as to the “signs” of radiculopathy present has been addressed by the claimant saying he has “kinds” of radiculopathy and “symptoms” of radiculopathy. The claimant refers to

Dr Sanki’s report which says the clamant has “myelomalacia and numbness in fingers” and submits that these are two symptoms of radiculopathy and therefore indicative of non-minor injury.

Insurer’s response

The insurer’s submissions (AD7) dated 14 December 2022 provides documents from Westmead Hospital (AD8). The insurer includes in its revised bundle the claimant’s handwritten GP notes including entries from 2009 and 2010.
The insurer submits:
(a)    the sternal fracture was not evident on the X-ray on the date of the accident and that the 2 March 2020 CT scan showed an old fracture not an acute fracture and is therefore not caused by the accident;
(b)    the claimant has not provided evidence of two or more signs of radiculopathy and that myelomalacia (as identified by Dr Sanki) is not a symptom of radiculopathy. There is no current cervical cord compression and it was a pre-existing condition, and
(c)    the claimant has long-term cervical and lumbar symptomatology dating back to 2009. The insurer says if there is radiculopathy it was not caused by the accident but was caused by a pre-existing condition.

REVIEW OF THE EVIDENCE

The insurer’s bundle is replete with duplications. For example, there are four copies of a report from Dr Sanki dated 26 March 2021 and four copies of the related radiology and hospital notes within the first 150 pages of the bundle.
The claimant’s bundle also contains similar internal duplications.
There is duplication between both bundles (for example both parties provide Dr Sanki’s letters and the records from the GP practice).

Claim form and claim documents

The application for personal injury benefits (claim form) was declared as correct by the claimant and signed on 23 January 2020. It describes “injuries to my neck, back, hip (right), the back of my head, my chest and the left ribs”. The Panel notes there is no reference to shoulders in this document.
The certificate of fitness signed by Dr Sanki on 6 February 2020 includes the following detail:
(a)    diagnosis was “fracture left rib 6^th – 9^th; chest pain, left inguinal hernia; abdominal pain ? splenic injury; back injury; bleeding right occipital area head”. The Panel notes there is no mention of shoulders;
(b)    “wearing seat belt, head on collision, car driver, shocked”;
(c)    previous history listed by the doctor was, “appendectomy, dizzy spell, gastrointestinal reflux disorder (GORD), dermatitis, asthma, hyper??”. The Panel notes there is no mention of the previous issues of neck, back or right shoulder and no reference to the claimant’s diabetes and kidney problems;
(d)    the management plan included analgesics for fractured ribs and back pain and a CT scan was requested, and
(e)    investigations were pending in relation to the abdominal pain.

Treating medical records and reports

Hospital notes

Westmead hospital notes include[11] a report of an X-ray of the sternum performed on

24 December 2019 where no fracture was seen and the X-ray of the chest performed had a “history of MVA with chest pain noted – with chest hitting the steering wheel”.
[11] The first copy of these is found at page 2 of the insurer’s bundle.
The claimant was admitted and discharged the same day. At triage he complained of tenderness over the thoracic spine and said that he had lower back pain issues. Later[12] additional detail of the accident is included “face going into the airbag and chin and chest hitting the steering wheel”. The claimant said he was wearing his seatbelt and had pain in his neck, back and chest.
[12] Page 30 of the insurer’s bundle.
The ambulance report[13] noted the claimant’s poor English. The report says the claimant’s impact speed was 50 kmph, the airbags deployed hitting the claimant head and forcing his neck backwards and his chest then hit the steering wheel. The clamant complained of chest pain.
[13] Page 8 of the insurer’s bundle.

Treatment records

The claimant is a patient of the Fairfield District Medical Centre (FDMC) and his usual GP is Dr Patel. Dr Sanki whose letterhead suggests he is a general surgeon who has trained in impairment assessment for the workers compensation and motor accident schemes is also a practitioner at FDMC. The notes of this practice along with other documents have been examined for the purpose of this chronology[14]:
[14] The chronology is not exhaustive and does not include every attendance, only those attendances the Panel considers of significance to the issues in dispute.
(a)    22 October 2008 – complains of backache – lumbosacral tender and Panadeine forte was provided;
(b)    24 October 2008 – X-ray showed mild osteoarthritis and what appears to be medication prescribed;
(c)    12 June 2009 – “after shower yesterday, without any incidences [increased] pain in lumbar low … hard to bend. History of diabetes only. On examination spinal tenderness”. Voltaren Rapid was prescribed and physiotherapy arranged;
(d)    17 June 2009 – “on Voltaren 50% better”. The X-ray revealed osteoarthritis in the lumbar spine;
(e)    15 December 2010 – increased lower back pain over the last three days. Previous lower back pains. Radiating (or radicular). Antalgic gait. Tender paraspinal and strait leg raise 30 degrees bilaterally. Knee jerks and sensation normal. Hot packs, range of motion exercises, Panadeine forte prescribed;
(f)    11 January 2011 – back much improved. X-ray degenerative changes L4/5, L5/S1 facet joints – stretching exercises;
(g)    15 June 2017 - “pain in right shoulder, lumbosacral pain and pain in back of neck under care of Dr A Sanki”. On examination there was tenderness all over the lumbosacral and cervical spine but no neurological deficits. A referral was given to Dr Sanki and Panadeine Forte prescribed[15];
[15] Panadeine Forte was first prescribed in October 2008 and throughout the intervening years. It is not clear from the typed or handwritten notes why or for what condition. The notes are particularly brief.
(h)    11 December 2018 – letter Dr Hoffman endocrinologist to GP regarding claimant’s deterioration in glycaemic control and notes “absent ankle jerks but normal peripheral sensation”;
(i)    20 February 2019 – low back pain reported but no radiation. The claimant wanted physiotherapy under a care plan. No sphincter problem and no neurological signs were reported. The referral was given and Panadol osteo prescribed;
(j)    22 February 2019 – “not much improvement, tenderness of lumbar sacral spine”. No neurological deficit or bladder problems;
(k)    18 February 2019 – Mr Hanna complains of right shoulder pain radiating to neck and an X-ray or CT scan was requested;
(l)    24 April 2019 - shoulder pain X-rays normal except for C4/5/6 degeneration and shoulder capsulitis, home exercises and Panadeine forte prescribed;
(m)     13 July 2019 – came in for his back pain and given advice about medications and effect on kidneys;
(n)    23 August 2019 – referral to Dr Sanki;
(o)    2 September 2019 – letter Dr Haloob nephrologist to GP notes history of chronic kidney disease, type 2 diabetes and hypertension. Creatinine 115 (decreased from 125 in March 2019). Similar results in previous reports and a note of retinopathy in July 2017;
(p)    6 January 2020 – attended for car accident left sided lower chest pain, pain in the back of the neck. Left inguinal hernia noticed after the accident. On examination tender left lower back, back of neck and lower back and left inguinal region;
(q)    17 February 2020 – referral from Dr Patel to Dr Sanki referring to cervical, lumbar spine and chest wall pain following car accident;
(r)    23 February 2020 – referral from Dr Al-Attor to Dr Sanki referring to back and neck pain;
(s)    25 February 2020 – letter to QBE from Dr Sanki. Mr Hanna was very sore in the lower back, neck and shoulders. He had tenderness in the right iliac crest, bruising and tenderness in the left ribcage “especially upon breathing due to fractured ribs” and moderate tenderness in the left upper quadrant. He requested radiology;
(t)    11 March 2020 – allied health recovery request number 1 for physiotherapy to soft tissue injuries to neck, back, chest wall and right hip;
(u)    20 March 2020 – letter Dr Sanki to QBE stating the claimant’s pain in his lower back and neck is not improving and his fingers are numb. Pain in the neck radiates to the occipital area. Spasm in the paravertebral muscles however absent reflexes. Tinel’s sign was negative;
(v)    23 April 2020 – letter Dr Sanki requesting QBE approve a referral to Professor Van Gelder;
(w)   4 June 2020 - letter Dr Sanki to QBE minimal improvement with physiotherapy;
(x)    6 June 2020 – allied health recovery request number 2 for physiotherapy to soft tissue injuries to neck, back, chest wall and right hip;
(y)    18 December 2020 – letter Dr Sanki to QBE – moderately severe pain in the shoulders and neck;
(z)    11 January 2021 – letter Dr Sanki to QBE regarding Dr Van Gelder’s request;
(aa)    3 February 2021 – letter Dr Sanki to QBE enclosing the copy of Dr Van Gelder’s request and making his own request for investigations;
(bb)    12 March 2021 – letter Dr Sanki to QBE says the claimant reports severe pain in his shoulders and lower back and into his lower limbs. He was reporting numbness in his fingers, pain in his neck had not improved. There was restricted movement in the neck and shoulders. Dr Sanki sought approval for MRIs of the shoulders and lower back, and
(cc)     26 March 2021[16] - Dr Sanki to QBE he refers to “focal mylomalacia at C4/5/6”, which he describes as a “significant change in his spinal cord” and suggested a referral to Professor Van Gelder. He refers to the right hip MRI saying this showed a “lesion of non-specific nature” which “got displaced” and a hip joint effusion and irregular cartilage loss in the femoral head”. He also refers to degenerative changes in the shoulders and requested approval for cortisone injections, physiotherapy, and home assistance.
[16] Page 39 of the insurer’s bundle.
There is a letter from Professor Van Gelder dated 1 October 2020 to Dr Sanki[17] which reports the following complaints:
(a)    back pain radiating into the legs;
(b)    hip pain;
(c)    neck pain radiating into both arms to the fingers with numbness in the fingers;
(d)    restricted range of cervical spine motion, decreased biceps jerk both sides, decreased strength in all arm movements due to pain and reduced effort. No sign of myelopathy, and
(e)    stiff tender low back with normal strength and reflexes but decreased ankle jerks.
[17] Page 169 of the insurer’s bundle.
There are no further reports or letters or records from Professor Van Gelder of any significance.

Radiology

There are several scans and reports:
(a)    18 April 2019[18] Superscan:
[18] Page 211 insurer’s bundle.
(i)X-ray cervical spine – loss of disc space height C4/5 and C5/6 facet joints show mild degenerative changes throughout, and
(i)X-ray right shoulder – features of mild degenerative change affecting articular surfaces.
(b)    7 January 2020 – ultrasound left groin – normal examination no sign of inguinal or femoral hernia.
(c)    2 March 2020 – CT chest abdomen and pelvis – vertebral body height in thoracic spine maintained. “There is irregularity and sclerosis involving the superior aspect of the sternum which is suggestive of an old fracture, nondisplaced. No surrounding fluid density or haematoma is seen”. No injury to the organs, no mass seen.
(d)    7 April 2020 – Superscan MRI has a history of neck pain and the conclusion was “multilevel spondylitic changes”. There was narrowing of the exit foramen at C2/3(on the right only) and C3/4, 4/5 and 5/6 on both sides. It was most severe at C3/4. Multilevel facet joint degenerative changes on both sides.
(e)    10 February 2021 Superscan imaging:
(i)X-ray cervical spine – mild arthritic change but facet joints appear normal, and
(i)MRI lumbar spine – history of bilateral sciatica – broad based disc bulges.
(f)    23 March 2021 Superscan MRI includes:
(i)right hip – early degenerative changes in the hip joint but refers to a small lesion possibly a displaced labrum (ring of cartilage on the outside rim of the hip joint socket). An MR arthrogram was recommended;
(i)left shoulder – early glenohumeral joint degenerative changes with a possible posterior labral tear, and
(i)right shoulder – minor low-grade under surface partial thickness tear in the insertional aspect of the subscapularis and a high grade under surface partial thickness tear in the supraspinatus tendon and a further bursal surface anterior insertional tear.

Medico-legal reports

Dr Cochrane - insurer

Dr Cochrane neurosurgeon wrote to QBE on 23 February 2020. Dr Cochrane appears to have undertaken a file review rather than a face to face examination.
He could not find a direct causal link between any need for surgery and the accident and he refers to symptomatology back to 2010 and well established multilevel lumbar spondylosis.
He did suggest there was evidence of radiculopathy supported by radiological studies.

Dr Harrington - insurer

Dr Harrington provided a report to QBE dated 12 May 2021[19] following an examination on 30 April 2021.
[19] Page 426 of the insurer’s bundle.
The claimant gave a consistent history of the car accident and his immediate treatment and says he complained of neck, back, shoulder and hip pain as well as headaches.
The claimant reported having physiotherapy and injections into his right shoulder but says these have not improved his condition. Mr Hanna was taking codeine based medication and Lyrica.
The claimant complained of current neck pain and headache radiating into his shoulders with numbness that is permanent in all fingers of his hand. He said he had difficulty opening jars and turning on taps due to reduced strength. He has pain in his shoulders and difficulty lying down, washing his hair and so on. He said he had lower back pain radiating down both legs but no bladder or bowel problems.
He identified previous conditions of kidney and blood pressure and an accident 40 years ago.
Dr Harrington noted inconsistency between formal examination (none or very limited movement of his neck) and informal observation (while examining the shoulders).
There was restricted thoracic movement and allegations of significant sensory changes.
Both shoulders had a “full passive range of shoulder movement”. The lumbar spine was tender, and all movements were “hesitant”.
Dr Harrington diagnosed an aggravation of pre-existing cervical and lumbar spine pain and considers all the symptoms (including shoulder and hip pain) are based on his underlying pre-existing spine changes but that any aggravation has ceased. He says there is no impairment but does not address minor injury.

Dr Gehr - claimant

Dr Gehr provided a report for the claimant’s solicitor dated 23 September 2021. He undertook his examination by Zoom and noted “there are challenges … with providing [an assessment] via video”.
Dr Gehr reviewed the documentation and noted the claimant’s pre-accident problems with kidneys and blood pressure.
The claimant told Dr Gehr that before the accident he had “no previous problems with cervical spine, thoracic spine, lumbar spine, upper extremities or lower extremities”.
The claimant said immediately after the accident the claimant had pain in his neck and lower back and he developed pain radiating down both legs to his knee. He also experienced chest pain and neck pain with numbness and headaches.
Despite the examination being by zoom, Dr Gehr says he used a goniometer and inclinometer and a tape measure. Dr Gehr obtained measurements that suggested very significant shoulder restriction.
He noted Dr Harrington’s assessment but said “it was quite clear to me as per the history that he was asymptomatic in these regions at the time of subject accident”. The Panel notes that Dr Gehr was relying on the history from the claimant. He may not have had or considered the treating GP’s notes or the very detailed report from

Dr Sanki dated 28 June 2021.
Dr Gehr undertook a permanent impairment assessment (23%) and provided opinions as to treatment and care but no opinion on minor injury.

Dr Sanki

Dr Sanki provided a medico-legal report to the claimant’s solicitor dated 28 June 2021. He acknowledges a pre-accident issue in April 2019 with the claimant’s neck and shoulder and previous low back pain dating back to 2010. He says:
(a)    the claimant was seen by Dr Werdi with left chest pain and neck and back pain and a suspected inguinal hernia but that an ultrasound showed no hernia;
(b)    the claimant was next seen by Dr Patel with tenderness in the left lower chest, cervical spine and lumbar spine;
(c)    on 20 January 2020 Dr Sanki saw the claimant who at that time was complaining of severe pain in the back, neck and right iliac crest region with bruising in the left ribcage and difficulty breathing;
(d)    Dr Sanki recites the radiological findings and says he diagnosed “moderately aggravated degenerative changes in his cervical and lumbosacral region with enlarged prostate”;
(e)    On 6 March Dr Sanki said his examination revealed absent reflexes in both upper limbs and negative Tinel’s signs at the wrists (that is no tingling when his nerve was tapped). There was spasm;
(f)    Professor Van Gelder confirmed radiological changes were consistent with radiculopathy and surgery has been discussed, and
(g)    when radiology was compared to April 2019, Dr Sanki suggests moderate changes, and the claimant’s numb fingers was a new symptom.
The claimant’s shoulders worsened when examined on 12 March 2021 and he could flex to 50 degrees and abduct to 40 degrees. The Panel notes that six weeks later when examined by Dr Harrington the claimant demonstrated a full range of passive shoulder movement, and lumbar spine movements were restricted and there were absent reflexes in the lower limbs although a left ankle reflex was present and sluggish.

RE-EXAMINATION FINDINGS

Mr Hanna attended a re-examination with Medical Assessor Berry on
23 February 2023. An interpreter attended to facilitate the re-examination.

Social history

The claimant is now 72 years of age, born in Lebanon. He is dominantly left-handed and is in receipt of the age pension.
Mr Hanna is a married man and he has three children. The younger two live at home in a split-level house.

Past history

Mr Hanna said he was involved in a motor vehicle accident some 40 years ago. He was off work for two days and then returned to full time work and had no further problems arising from that accident.

Work history

Mr Hanna told me that he was born in Lebanon and completed high school and then trained as a carpenter and worked in this field before immigrating to Australia in 1974. After arriving in Australia he obtained employment at Miele and worked there for many years, but could not recall how long and he then worked for a carpentry company where he worked until he retired.

History of the accident and treatment

The claimant confirmed he was involved in a motor vehicle accident on
24 December 2019. He was the driver of a Honda Jazz sedan wearing a seatbelt and he was travelling from home to Fairfield to go to the pharmacy. He was proceeding along Polding Street, Smithfield, when a vehicle turned right from Oxford Street from his left turning in front of him resulting in a collision.
Mr Hanna says he was shocked and dazed by the accident but as far as he recalls he was not knocked unconscious. He was assisted from his vehicle by passers-by. His vehicle was towed from the scene and subsequently written off. Emergency personnel attended the accident scene, and he was transported to Westmead Hospital by ambulance where he was discharged the same day. He was advised to see his GP.
Mr Hanna said that at the time of the accident he was bleeding from the right side of his head. The Panel has considered the hospital notes and cannot find any reference to a laceration or other source of bleeding. He had pain in the right shoulder, the neck and in the back and shortly after the accident he experienced pain in his left shoulder and right hip.
He was subsequently referred for physiotherapy and had 40 sessions without benefit. He was then referred to Dr James van Gelder, neurosurgeon, who advised him to undergo surgery to his right shoulder, but he has declined to have it.

Current symptoms

Mr Hanna said that his condition has not improved. He gets headaches and he is aware of his neck clicking when he moves it. He continues to have pain in both shoulders, the back and in the right hip.
He added that he gets a feeling of numbness in the fingers of both hands.

Current treatment

Mr Hanna said that his treatment consists of medications only which include Osteomol, Comfarol Forte and Lyrica. He also takes tablets for diabetes.

General health

Mr Hanna indicated that he suffers from diabetes type 2 for which he takes tablets. He also has memory problems. He denied any prior neck or back problems and said that before the accident he had never had any X-rays or investigations for any problems, apart for diabetes.

Physical examination

Mr Hanna moved with normal posture and gait. He was noted to be 165cm in height and 66kg in weight.

Cervical spine

Mr Hanna was diffusely tender to palpation. He showed less than one third of the normal range of movement equally in:
(a)    rotation to the left and right;
(b)    flexion and extension, and
(c)    lateral flexion to the left and right.
There was no guarding or paraspinal muscle spasm and no alteration of spinal contour.

Upper extremities

The claimant demonstrated a restricted range of movement in both upper extremities. Flexion and abduction were to 40 degrees, the other movements were also markedly reduced.
There were no sensory changes evident on testing in the upper limbs in particular in the hands and fingers.
All reflexes were intact, and there was no weakness evident in either limb and there was no muscle wasting. Measurements of the forearm circumference above and below the elbow were equal on both sides.
There was no evidence of a nerve root tension sign.

Lumbar spine

Mr Hanna demonstrated:
(a) less than a third of the normal range of flexion and virtually no extension, and
(b) half the normal range of rotation both left and right.
There was some flattening of the lumbar lordosis but no paraspinal muscle spasm.

Lower extremities

Mr Hanna demonstrated 30 degrees of straight leg raising on both sides with no sign of nerve root tension. All reflexes of the lower limbs were present and equal. Both the thigh and the calf measurements were equal in both limbs and there was no sign of bilateral muscle atrophy. There was no evidence on testing of weakness in the legs and there was no loss of sensation on testing.
All movements of both hips were markedly reduced.

Inconsistency

It was put to the claimant by Medical Assessor Berry that his range of movement in the neck, shoulders and back was much less than would be expected from the imaging.

Mr Hanna said he was in a great deal of pain in his neck, shoulders and back.

Special investigations

The claimant was asked what X-rays he had had before the motor accident and he stated that he had no problems, apart from his diabetes and therefore had had no imaging done.
He brought to the examination a copy of plain X-rays for the cervical spine and right shoulder carried out on 18 April 2019 some eight months before his motor vehicle accident. He was adamant he had not problems before the accident.
The claimant brought a copy of the post-accident MRI of the shoulders and hips.

PANEL’S CONSIDERATION OF THE ISSUES

Introduction

Under s 1.6(1), if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease and they have no entitlement to recover damages. An injury to a nerve is one of those injuries excluded by s 1.6(2) and therefore not a minor injury. However, in accordance with cl 4 of the Regulation, in the case of an injury to a spinal nerve or nerve root, that is a “minor” injury unless the injury manifests in signs of radiculopathy.
Clause 5.8 of the Guidelines provides as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination …
(a)     loss or asymmetry of reflexes …;
(b)     positive sciatic nerve root tension …;
(c)     muscle atrophy and/or decreased limb circumference …;
(d)     muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)     reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution”

Did the claimant injure his neck and is the claimant’s neck injury a minor injury?

The Panel is satisfied that the claimant injured his neck in the accident. There are contemporaneous complaints at the hospital on the day of the accident, a report to the GP two weeks after the accident and the claim form, signed as true and correct neck injury.

Does the claimant currently have cervical radiculopathy?

On examination by Medical Assessor Berry there was no evidence of any of the five signs of radiculopathy:
(a)    all reflexes were present and equal;
(b)    there were no nerve root tension signs;
(c)    there was no evidence of muscle atrophy or decreased limb circumference in either upper limb;
(d)    there was no muscle weakness at all, and
(e)    there was no reproducible sensory loss.
The claimant told Medical Assessor Berry he felt pain from his neck into his left shoulder. He told Dr Sanki he has pain radiating into his head. Radiating pain is not a sign of radiculopathy under the Guidelines.
Mr Hanna also gives a history of a sensation of numbness in both hands only, but this is not in a dermatomal distribution and the alleged loss of sensation could not be reproduced on testing.

Has the claimant ever had two or more signs of cervical radiculopathy?

Neither Dr Gehr (for the claimant) not Dr Harrington (for the insurer) diagnosed the claimant with radiculopathy. Dr Gehr recorded bilateral sensory symptoms in both hands, consistent with Medical Assessor Berry’s clinical findings however both examiners found these symptoms did not follow an appropriate dermatomal distribution as required by cl 5.8(e) of the Guidelines.
The Panel is of the view that two signs of radiculopathy must be present at the same examination and that the two signs should correlate to the same nerve or nerve root.
The claimant says that he has had two or more signs in his cervical and lumbar spine in the past and relies on Dr Sanki’s report of 28 June 2021. Dr Sanki says:
(a) on 6 March 2020, the claimant had absent reflexes (a sign of radiculopathy) and negative Tinel’s signs in the upper limbs (indicating no neurological signs), and
(b) Professor Van Gelder was recommending surgery due to the presence of myelomalacia and numbness in the fingers. The Panel notes that myelomalacia is not a sign of radiculopathy specified in the Guidelines but is a term referring to the softening of the spinal cord. The Panel also notes Dr Sanki may have been mistaken in that Professor Van Gelder has said there were no signs of myelopathy. The Panel also notes that numbness in the fingers alone does not satisfy the requirement of sensory loss in an appropriate dermatomal distribution.
The claimant also relies on the reports of Professor Van Gelder who said that the claimant has radicular symptoms in the cervical spine. The Panel notes that there is a distinction between radicular symptoms and signs of radiculopathy. Radiculopathy is both a general medical term used by treating doctors to include symptoms such as radiating pain as well as a specific defined term in the Guidelines. Professor Van Gelder noted on examination:
(a)    restricted range of motion in the cervical spine (not a sign of radiculopathy);
(b)    decreased biceps jerk on both sides (a sign of radiculopathy);
(c)    decreased strength in all movements in the arms and this seemed to be pain related and from reduced efforts (decreased strength was not due to a neurological cause and therefore not a sign of radiculopathy), and
(d)    there are no clear signs of myelopathy.
There is nothing in Dr Sanki’s records or Professor Van Gelder’s reports which convinces the medical members of the Panel that Mr Hanna has had at any stage since the accident had two of the five signs of radiculopathy evident during the course of an examination.
The Panel is satisfied that the claimant’s accident-related neck injury is a soft tissue injury which is a minor injury for the purposes of the Act.

Did the claimant injure his back and is the claimant’s back injury a minor injury?

The claimant gives a history of injuring his back to the hospital on the day of the accident, complained to his GP on 6 January 2020 and signed his claim form saying he injured his lower back.
The Panel is satisfied the claimant did injure his back in the accident.

Does the claimant currently have lumbar radiculopathy?

On examination by Medical Assessor Berry there was no evidence of any of the five signs of radiculopathy in the claimant’s lumbar spine:
(a)    all reflexes were present in the lower limbs;
(b)    there were no nerve root tension signs;
(c)    there was no evidence of muscle atrophy or decreased limb circumference in either of the lower limbs;
(d)    there was no muscle weakness, and
(e)    there was no reproducible sensory loss.
Mr Hanna did not complain to Medical Assessor Berry of pain in the lumbar spine during the course of his examination. He did complain of pain in the right hip which he did not relate to his lower back. Even if the pain was radiating from the claimant’s lower back to his right hip, radiating pain is not a sign of radiculopathy according to cl 5.8 of the Guidelines.
The Panel is not therefore satisfied that at the time of the examination with Medical Assessor Berry the claimant had any of the five signs of radiculopathy.

Has the claimant ever had two or more signs of lumbar radiculopathy?

Professor Van Gelder says in his letter of 1 October 2020 that:
(a)    the claimant has a stiff and tender low back;
(b)    he had normal strength in his legs, and
(c)    he had normal reflexes but decreased ankle jerks.
On the basis of that examination the Panel is not satisfied the claimant has two or more signs of radiculopathy.
There is nothing in the report of Dr Sanki dated 28 June 2021 to suggest any of the signs of radiculopathy were present at any time in the claimant’s lower back.
When examined by Dr Gehr on 23 September 2021, by audio-visual means, there were no clear positive nerve tension signs, no difference in motor power, no apparent muscle wasting and deep tendon reflexes absent on both sides (one possible sign of radiculopathy). Dr Gehr took a report of decreased sensation in L5/S1 on the right side but could not test for this due to the fact that the examination was not a face to face assessment. Therefore, there was only one sign of radiculopathy present.
Dr Harrington did not diagnose a lumbar spine radiculopathy.
There is nothing in the material provided to the Panel which convinces the medical members of the Panel that Mr Hanna has had at any stage since the accident had two of the five signs of radiculopathy evident in his lumbar spine.
The Panel is satisfied that the claimant’s accident-related lower back injury is therefore a soft tissue injury which is a minor injury for the purposes of the Act.

Did the claimant injure his shoulders in the accident, if so, what was the injury?

Medical Assessor Truskett suggests there was a fracture of the shoulder shown by the radiology. The Panel has considered all the available films and radiological reports and can find no evidence of any fracture to any bone of the claimant’s left or right shoulder.

Right shoulder

The claimant alleges right shoulder rotator cuff pathology caused by the accident.
The insurer says the claimant did not list an injury to the right shoulder in his claim form and has a long history of right shoulder complaints.
At the examination with Medical Assessor Berry, the claimant was adamant that the pain in his right shoulder came on immediately after the accident and he developed pain in the left shoulder shortly thereafter. Mr Hanna could not be more specific than that.
The claimant acknowledges he has memory problems which makes relying on his history problematic and the Panel has therefore had to carefully consider the documentary evidence.
There is no record of shoulder complaints in the hospital records on the day of the accident. The claim form completed within a month of the accident does not record any injury to the shoulders. There is no complaint of shoulder symptoms in the GP records of 6 January 2020 or in referrals dated 17 and 23 February 2020. In the certificate of capacity accompanying the claim form, Dr Sanki did not mention left or right shoulder. Dr Sanki does mention “shoulders” in a letter to QBE dated 25 February 2020 and in another letter dated 18 December 2020 however there is no record of shoulder complaints in the corresponding clinical record or in the requests for physiotherapy or in referrals which would support Dr Sanki’s correspondence.
Dr Sanki’s long report to QBE dated 28 June 2021 does not mention shoulder symptoms until he refers to an attendance on 12 March 2021 suggesting this was when shoulder symptoms “worsened”. Radiology for the shoulders was first requested in March 2021.
The Panel is not satisfied that the claimant sustained a frank or actual right or left shoulder injury in this accident. If he had, then the Panel would have expected the hospital to record it, the GP to have noted it in the records, particularly on
6 January 2020 when the claimant first attended. In addition, that Panel would have expected a shoulder injury to have been included in the certificate of capacity and more importantly the Panel would have expected the claimant to allege the fact in his claim form.
The Panel notes that before the accident, shoulder symptoms were complained of in June 2017 and again in February 2019 at which time the right shoulder was investigated with referrals for X-ray and CT. The X-ray report has been provided suggesting degenerative changes in the sternoclavicular, acromioclavicular and glenohumeral joints. No CT scans have been provided which may be because no CT scan was undertaken despite the referral. The claimant could not shed any light on the issue denying any pre-accident shoulder symptoms or need for radiology in any event.
On 28 June 2021, Dr Sanki the claimant’s long-standing GP expressed the view to the insurer that the right shoulder radiology reflected degenerative changes. Dr Sanki does not mention in the report any left shoulder symptoms with any specificity.
The Panel notes the significant loss of motion demonstrated by the claimant at the re-examination with Medical Assessor Berry. The medical members of the Panel are of the view that an injury causing such significant restriction of motion would be accompanied by complaints of severe pain immediately after the accident.
The March 2021 MRI does show disruption of the right rotator cuff being three areas of “tearing” which would, if caused, suggest a non-minor injury. However, the Panel is not satisfied that these tears were caused by the accident based on the pre-accident documented history, Dr Sanki’s views that the radiological findings were degenerative and the medical members of the Panel’s own clinical judgment.

Left shoulder

The claimant alleges a “soft tissue” injury to his left shoulder which would appear to be an admission that any left shoulder injury is a minor injury within the statutory definition however the claimant did not concede this. There is radiology which suggests a “possible” left shoulder labral tear, but this is certainly not a conclusive finding.
If Mr Hanna had a left shoulder injury caused by the accident, it would be, in the Panel’s view a minor injury.

Did the claimant injure his right hip in the accident?

In terms of the claimant’s right hip, the claimant says he developed pain after the accident in his right hip.
While there is no mention of either hip in the Westmead hospital records, the claimant did allege an injury to his right hip in the claim form. At the 6 January 2020 attendance on Dr Sanki, the claimant complained of left inguinal pain and on 25 February right iliac crest pain. A referral for physiotherapy including to the right hip was written on
11 March 2020. The Panel is therefore satisfied that the claimant did injure his right hip in the accident.
The Panel has reviewed the documentation and the radiology and there is nothing before it to suggest there has been an injury to the nerves in or supplying the hip or a complete or partial rupture of tendons, ligaments, menisci or cartilage in the hip joint.
The Panel is of the view the claimant sustained a soft tissue injury to the hip and is not therefore satisfied that the claimant has any hip injury that is not a minor injury.

Did Mr Hanna fracture his sternum on 24 December 2019?

The Panel notes that Dr Sanki’s first certificate of capacity suggested the claimant had fractures to his ribs 6 – 9. No radiological evidence has been provided to confirm this. A CT scan of the claimant’s chest, abdomen and pelvis dated 2 March 2020 reported that:
“There is irregularity and sclerosis involving the superior aspect of the sternum which is suggestive of an old fracture nondisplaced. No surrounding fluid density or haematoma is seen.”
The insurer submits that the sternal fracture was not evident on X-rays taken on the day of the accident and that the report refers to an “old” fracture not an acute fracture and therefore is not caused by the accident.
The claimant submits that this “old sternal fracture” was caused by the accident because the claimant denied a previous sternal fracture and says he only had chest pain after the accident.
The claimant complained at the examination of pain in his chest and denied to Medical Assessor Berry having any pre-accident complaints of any physical injuries or conditions other than diabetes. This is not borne out in the medical records before the Panel. The Panel also notes that the claimant concedes he has a poor memory which suggests his history of no previous chest injury (leading to sternal fracture) may not be reliable.
The Panel notes there is no record in Dr Sanki’s notes of any chest pain or injury before the car accident and that the claimant did complain of chest pain soon after the accident.

The Panel has not seen the March 2020 CT scan. It has not been provided by the claimant’s solicitor and it was not brought to the re-examination by the claimant. The Panel must therefore rely on the report from the radiologist.
The radiologist says that the sternal fracture is “old”. The medical members of the Panel are of the view that in their clinical experience, “old” would be a reference to something happening long before the relevant radiology was taken and certainly a fracture much more than three months old. In addition, the additional commentary from the radiologist is that there was no fluid density or haematoma seen. That suggests there was no bruising or other signs of acute injury. If the fracture was sustained in the car accident, the medical members of the Panel would expect to see a buildup of fluid around the fracture or evidence of a haematoma usually associated with a seat belt or airbag injury.
While the Panel accepts the claimant sustained a chest injury in the accident, the Panel is of the view it is a soft tissue injury and therefore a minor injury within the statutory definition.

CONCLUSION

The Panel is of the view the claimant sustained soft tissue injuries to his neck, lower back and chest in the accident. The Panel is not satisfied that the claimant sustained a right or left shoulder injury in the accident but that if he did, any such injury would be a soft tissue injury.
The Panel is not satisfied that its examination or the documentation demonstrates that the claimant is currently assessed as having an injury that is not minor or that at any time since the accident, he has had an injury that is non-minor.
It follows therefore that the certificate of Medical Assessor Truskett must be confirmed.

[2023] NSWPICMP 101

21 March 2023