Harb v AAI Limited t/as AAMI

DETERMINATION OF REVIEW PANEL
CITATION:	Harb v AAI Limited t/as AAMI [2023] NSWPICMP 251
CLAIMANT:	Daad Harb
INSURER:	AAI Limited t/as AAMI
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Wing Chan
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	7 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of threshold (then minor) injury and insurer’s review of Medical Assessor (MA) Woo’s decision under section 7.26; claimant injured in T-bone collision from passenger side; claimant alleged injuries to neck, back, right arm and shoulder, left knee and thigh and chest; MA found all injuries to be threshold injuries; only injury in issue was the right shoulder injury; claimant had long standing shoulder injuries and before the accident was booked in for shoulder surgery which occurred after the accident; comparison of pre and post-accident radiology revealed pre-existing rotator cuff tear had further progressed; issue of causation of further tear; Held – no additional documents required and no re-examination necessary; Panel accepted evidence of claimant and satisfied claimant injured right shoulder in accident and that mechanism of accident could have and did cause a further tear of the rotator cuff; MA’s Medical Assessment Certificate revoked and new Certificate issued that right shoulder injury was a non-threshold injury.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Woo dated 15 October 2022. 2. Certifies that the claimant’s right shoulder injury is not a threshold injury for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

Ms Daad Harb was involved in t-bone type motor accident in an intersection, on 27 September 2019.
Ms Harb says she injured her neck, back, right shoulder and arm, left knee and thigh and chest wall in the accident. She lodged a claim for statutory benefits with AAMI, the third-party insurer of the vehicle that Ms Harb says caused her accident.
A medical dispute about whether any of the injuries sustained by the claimant in the accident were not minor (now threshold) injuries[1] arose in connection with that claim. Ms Harb referred that dispute to the Personal Injury Commission (the Commission) for assessment.
[1] The statutory benefits scheme was amended in 2022. The term “threshold” injury was introduced to replace the previous term “minor” injury and this amendment applies to all claims regardless of the date of the accident. While the medical dispute and submissions in respect of the dispute have referred to “minor” injuries. The decision made by this Panel will reflect the current terminology of “threshold” injuries.
On 15 October 2022, Medical Assessor Woo determined that all of the claimant’s injuries were minor injuries. The claimant then lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 15 December 2022, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 9 February 2023 the President convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Jurisdiction

Ms Harb’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (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.
The statutory benefits available under the MAI Act are limited for example, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.[2]
[2] The availability of statutory benefits was amended to allow benefits for 52 weeks (previously 26 weeks) but this amendment only applies to accidents occurring on or after 1 April 2023.
In a common law damages claim, no damages are recoverable if the claimant’s only injuries are “threshold” injuries.

Threshold injury

A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary, if a person injured in a car accident sustains injuries to the soft tissues of their body then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) for example says that, “an injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a soft tissue injury.

Dispute resolution

If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[3]
[3] 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 Woo’s, further medical assessment and the Review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Woo examined the claimant on 21 September 2022 and issued his certificate on 15 October 2022. He says he was asked to assess the following injuries:
(a)   cervical spine – musculoligamentous injury;
(b)   lumbar spine – musculoligamentous injury;
(c)   right shoulder – aggravation of pre-existing injury;
(d)   left knee injury – pain;
(e)   right arm injury – bruised;
(f)    chest wall injury, and
(g)   left thigh injury.
Medical Assessor Woo has the following history from the claimant:
(a)   she was 66 at the time of his examination, married with seven children;
(b)   she had worked as a cleaner and injured her lower back at work in 1994. Her workers compensation claim arising from that injury has settled;
(c)
she had right shoulder pain since 2016 and was under the care of

Dr Duckworth;
(d)   she was driving her Corolla and wearing a seat belt when she was t-boned (on the passenger side) by another car which failed to stop at a stop sign;
(e)   emergency services attended and she was taken to Concord Hospital where she was assessed and discharged without imaging being undertaken;
(f)    she had immediate pain in her neck, right shoulder and chest with bruising of her left thigh and knee;
(g)   she saw her general practitioner (GP) on 30 September 2019, was referred for scans, physiotherapy and prescribed medication;
(h)   she had right shoulder surgery (arthroscopy and mini-open biceps tenodesis) on 3 December 2019, and
(i)    she has seen Dr Maniam who has recommended sh proceed with CT guided injections to the left L5 nerve root and right C6 nerve root but has declined to proceed.
The claimant complained of constant neck pain on the left side with radiation into both upper arms and right shoulder pain with lifting.
The claimant complained of constant but fluctuating lower back pain and pain in both legs after 30 minutes of walking. There was no numbness.
She complained of residual chest pain, left knee pain but had not more symptoms and had recovered from the bruising on her right arm and her left thigh injury.
The claimant reported being prescribed Mobic, Panadol Osteo and Lyrica.
On examination of Ms Harb’s neck there was three quarter range of motion with pain on the left side of the neck, no dysmetria but non-verifiable radicular complains of radiating pain into the upper arms. There was no guarding and neurological examination was normal.
In the lumbar spine, there was normal flexion but loss of extension. While there were non-verifiable radicular complaints (radiating pain) there were no abnormal neurological symptoms.
There was some tenderness in the right shoulder but a normal range of motion in both shoulders.
There was no effusion and normal range of motion in both knees.
Medical Assessor Woo diagnosed musculoligamentous injuries to both the cervical and lumbar spine, an aggravation of a previous right shoulder injury and noted the injuries to the left knee, right arm, chest wall and left thigh.
He found there was no fracture, no complete or incomplete rupture of tendons ligaments, menisci or cartilage and that the degenerative rotator cuff tear was pre-existing. There were not two or more signs of radiculopathy in either the cervical or lumbar spine.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant acknowledges that the claimant’s right shoulder injury was an aggravation of a pre-existing rotator cuff tear but says the Medical Assessor did not determine if the aggravation was a minor injury or not. The claimant says her right rotator cuff tear was worsened, that is there was further damage or injury done to the rotator cuff in the accident. The Panel understands this submission to be that the claimant’s rotator cuff which was already torn at the time of the accident, was further torn in the accident.
The claimant’s submissions do not engage with any of the other injuries listed in the original application.

Insurer’s submissions

The insurer notes the claimant’s submissions deal only with the right shoulder injury and that the claimant accepts she had a pre-existing rotator cuff tear in the right shoulder and the insurer says there is no dispute that the claimant aggravated her shoulder injury in the accident.
The insurer says the Medical Assessor engaged with the claimant’s submissions and determined that there was an aggravation, and that the aggravation was a minor injury.

The first preliminary conference and report to the parties

The Panel met on 14 April 2023 and reported to the parties on 17 April 2023.
The Panel noted that of the seven injuries assessed by Medical Assessor Woo, the claimant’s submissions take issue with the assessment of the claimant’s right shoulder injury only. The claimant was asked to confirm whether she accepts that the other injuries assessed by Medical Assessor Woo are threshold injuries.
The Panel noted the issue of causation and sought to understand more about the mechanism of the accident to determine whether it was plausible for the claimant to have further torn her right rotator cuff in the accident. The Panel advised it would be assisted by additional records from either party about how the accident happened.
The Panel deferred its consideration of the matter.

The claimant’s further submissions

On 5 May 2023, the claimant provided additional submissions and documents.
The claimant confirmed that the only injury now in issue was the right shoulder injury. She accepts that all other injuries are minor or threshold injuries.
Ms Harb provided a statement and photographs of her car. The claimant says she has been unable to obtain documentation from the ambulance service or the fire and rescue service and invited the Commission to issue directions.
Ms Harb provided further submissions and says:
(a)   the mechanism of the accident involved more than one force on the claimant’s shoulder;
(b)   the door of her car was jammed shut;
(c)   the pictures of the car suggest “high” force;
(d)   she had a rotator cuff tear before the accident that has been worsened proved by the ultrasound which reported the tear had increased;
(e)   the surgery undertaken after the accident was to repair a biceps tendon and not the rotator cuff tear which the claimant says suggests “the pre-accident pathology in the rotator cuff was not seriousness enough to warrant any surgical intervention”;
(f)    the operation report noted a full thickness rotator cuff tear, and
(g)   the further tear of the rotator cuff is a non-minor injury.

Insurer’s further submissions

The insurer did not respond to the Panel’s directions in accordance with the timetable that was set. The Panel prompted the insurer and on 1 June 2023 the insurer provided additional submissions.
The insurer says:
(a)   the ultrasound of 9 October 2019, two weeks after the accident shows an apparent increase in the tear of the rotator cuff;
(b)   a rotator cuff tear is a progressive and degenerative condition and the increased or further tear is not necessarily caused by the accident;
(c)   the police report records the claimant complaining of pain to her left leg and left ribcage, not her shoulder;
(d)   the hospital discharge summary records “patient does not recall the crash itself but was panicking following the crash”, and
(e)   the hospital note also records upper arm issues but full range of motion in the upper limbs and normal sensation to touch, tone, reflexes and co-ordination which is not consistent with an acute exacerbation of a rotator cuff tear.
The insurer also says that the contemporaneous records should be preferred over the claimant’s statement from 2023 and that:
“… on the balance of probabilities, the increase in the rotator cuff tear was a result of the progressive nature of the condition rather than the subject accident.”
The insurer has provided no further documents in particular no statements or reports from the insured driver, witnesses or any property damage reports.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The application for personal injury benefits was dated 26 October 2019.[5] It includes little details of assistance to the Panel and refers to attachments. It is not clear whether the Panel has these attachments or not.
[5] Insurer’s bundle page 13.
The medical certificate signed by the Dr Girgis-Dawoud, the claimant’s GP diagnosed the following:
(a)   musculoligamentous (disc involvement) cervical spine and lumbar spine;
(b)   right shoulder injury;
(c)   left knee injury, and
(d)   bruised right arm, right chest wall and left thigh.
Dr Girgis-Dawood recommended investigation with a CT of the cervical spine and ultrasound of the right shoulder. He also advised she have physiotherapy and take non-steroidal anti-inflammatory medication and analgesia.
The insurer denied liability for the claim in a liability notice dated 6 February 2020.[6] While fault was accepted on the part of AAMI’s insured, the insurer informed the claimant that in its view, the claimant had only minor injuries within the statutory definition.
[6] Page 10 of the claimant’s bundle.
A request for an internal review was made by the claimant and the decision of AAMI was to affirm the original decision.[7]
[7] Page 17 of the claimant’s bundle.
In the additional documents provided by the claimant is a copy of the police report. This document suggests:
(a)   the speed limit was 50 kmph, the accident happened at 6.00pm it was dark, fine and the road surface was dry;
(b)   the insured driver was travelling in a Mazda CX7 hatchback at 30 kmph;
(c)   the claimant was driving a Toyota Corolla at 50 kmph;
(d)   both cars were extensively damaged and towed from the scene, and
(e)   the claimant was taken to Concord Hospital for further assessment of her injuries (pain to her left leg and left ribcage).
A photograph provided in the additional documents shows significant deformation damage to the doors and panels of the passenger side of the claimant’s vehicle.
The claimant provided a statement in the additional bundle of documents dated

5 May 2023. She says:
(a)   she had a previous right shoulder injury;
(b)   she had a right bicep problem and a rotator cuff issue and was booked in to have a bicep tendon repair before the accident but that the surgery happened after the accident;
(c)   she was driving her car wearing her seat belt in an intersection when the AAMI insured car hit the passenger side of her vehicle;
(d)   her arms were extended holding the steering wheel and after the impact her entire right side including her right shoulder were thrown against the door;
(e)   she felt immediate pain in her neck, right shoulder and chest and bruising developed on her left thigh and knee;
(f)    the driver’s side door was jammed, and emergency services had to extract her from the vehicle, and she was taken to Concord Hospital, and
(g)   she says she told the hospital staff about her neck, back and right shoulder and that she saw her GP on 30 September 2019.
Ms Harb complained of ongoing pain in her low back and pain in her legs after walking for 30 minutes.

Treating medical records and reports

Hospital and GP

The discharge summary from Concord Hospital has been provided.[8] Part of the recorded history of the accident was that the claimant’s car rotated through 180 degrees and the other car mounted a kerb. The passenger side airbag was deployed (but not the driver’s side).
[8] Page 35 of the claimant’s bundle.
The claimant was examined and there was no headache or neck pain or dizziness or visual changes reported. Ms Harb had pain at the lateral end of the left clavicle, left lower ribs and posterior aspect of the left hip bone as well as the proximal (closer to the shoulder) right upper arm. The claimant had a full range of motion in the upper limbs and lower limbs and normal power, sensation, touch, reflexes and coordination. She was discharged with paracetamol as required.
There is a handwritten referral to Merrylands Physiotherapy dated 30 October 2019[9] advising the claimant had a recent car accident and “patient sustained injuries to cervical spine and lumbar spine” and a request for assistance with physiotherapy was made.
[9] Page 71 of the claimant’s bundle.
There is a second handwritten referral to Merrylands Physiotherapy dated

16 December 2019 concerning the claimant’s right shoulder and referring to the car accident, the surgery and requesting physiotherapy start in January 2021.
The physiotherapist’s file including handwritten notes suggest physiotherapy started on 5 November 2019 and ceased on 12 March 2020. At the time the treatment ceased the claimant was still complaining of pain and restricted movements of her neck, back and right shoulder.
The GP notes are handwritten on pink cards.[10] They are difficult to read. The Panel has been able to ascertain the following:
[10] Commencing at page 117 of the claimant’s bundle.
(a)   an attendance on 11 April 2014 for low back pain without radiation;
(b)   on 29 January 2015 complaints of thoracic spine issues and possibly treatment by a chiropractor;
(c)   in October and November 2015 there were attendances for left metacarpal joint pain, left hand pain and lower back pain radiating into the left leg;
(d)   the claimant attended in May 2016 for right epicondylitis after what appears to be a fall on right elbow;
(e)   on 3 February 2017 there is a reference to an osteopath in Double Bay and a possible referral to Dr Mark Malouf (vascular surgeon);
(f)    the first clear reference to shoulder symptoms occurred on 7 December 2017 where the claimant attended with an ultrasound and X-ray of her right shoulder, and
(g)
there are then a series of attendances commencing 23 April 2018. The claimant had seen a sports doctor who gave an injection into the right shoulder and on 8 October 2018 there is mention of Dr Nathan Gibbs (a sports physician) who had some involvement with the claimant’s care and on 21 December 2018 it is noted that “Dr Nathan Gibbs wants right shoulder X-ray and ultrasound”. Ms Harb attended on 21 January 2019 and the ultrasound findings were reported as showing infraspinatus small tear and biceps tendon no tear, minor bursa. She was to see Dr Gibbs in four days. At the attendance on 28 February 2019 there is a note that

Dr Gibbs injected cortisone in the last month with no relief so Dr Gibbs requested a review by shoulder specialist Dr Duckworth. There are then regular attendances in May, June and August 2019 concerning the right shoulder.

The attendance three days after the accident is also hard to interpret however there is reference to left neck, clavicle, right chest wall (upper), bruise left chest wall and lower back pain and spasm left. No head injury was reported but right arm (upper) bruise and left knee pain were noted. It is the Panels view that this record is consistent with the hospital note.
On 4 October 2019 is an attendance with further reference to left sided neck pain and the right shoulder being bruised and with decreased range of motion. On 25 October 2019 there is a review of the ultrasound suggestion that the rotator cuff is “more than before”.
On 14 May 2020 is a reference to right shoulder physiotherapy post operation and on

4 June 2020 reference to a letter from Dr Maniam about the knee and neck. An

11 June 2020 attendance refers to the left knee and a further attendance on

Dr Maniam and another letter appears to have been received from Dr Maniam in

July 2020. There is a reference in August 2020 to an ultrasound of the left ankle and an attendance on Dr Peter Wu (for respiratory issues) and Dr Maniam. On 21 October 2020 is a reference to cholesterol and neck pain and back pain and chest wall pain. There does not appear to be a reference to right shoulder pain.
On 6 April 2021 there is a reference to three days of right shoulder pain recurring although after surgery the right should had been better. After the ultrasound and X-ray was done, a referral to Dr Duckworth was given at an attendance on 8 April 2021.
On 1 May 2021, the claimant attended the emergency department of Auburn Hospital.[11] The history of the presenting illness is stated as:
“Had operation on shoulder 2 years ago (?ligament repair). Recently increasing pain in her right shoulder, had a US performed which has shown a “tear” in her shoulder. Prsented to specialist yesterday for cortisone injectioninto right shoulder at 11.30am. Progressed well throughout the rest of the day.
Never had cortisone injection before.”
[11] Page 117 of the claimant’s bundle.
The claimant had developed a headache which was not responding to paracetamol and felt hot in the face, neck and chest and developed a rash. This responded to treatment and the claimant was discharged home to attend again if dizziness or other symptoms developed.

Specialists

While the GP records clearly refer to the claimant having seen Dr Maniam on several occasions in 2020, there are no copies of his letters in the GP notes that have been provided to the Panel.[12]
[12] The Panel notes this is standard practice and that many specialists have a notation on their letters to GPs that the letters are not to be provided to others without their express permission. The Panel notes that Dr Duckworth’s letters are also not in the GP records.
Dr Maniam provided a report to the insurer dated 15 May 2020.[13] He says he first saw the claimant on 12 March 2019 (clearly an error and meant to be 2020) and he has a history of the claimant developing pain in the spine, lumbar spine and right shoulder in the accident. He noted the claimant was on the waiting list for shoulder surgery which was performed on 3 December 2019.
[13] Page 24 of the insurer’s bundle.
The claimant complained to Dr Maniam of some improvement in the level of pain in her neck but ongoing restriction in neck movements, ongoing pain in her lower back with radiation in the right lower limb and aggravation of problems in the right shoulder where her movements had become even more restricted.
When the claimant was examined, neck and back movements were restricted but there were no neurological signs in the upper or lower limbs. When the right shoulder was examined, movements were restricted in all planes of motion.
He says the findings on the CT scan in the neck including the disc protrusions at C2/3 and C3/4 were caused by the accident as were protrusion at C5/6 and the C6 right nerve root impingement and disc osteophyte protrusion at C6/7.
He also was of the view that the claimant had aggravated a pre-existing shoulder condition and pre-existing lumbar spine issues.

Dr Duckworth[14]

[14] His records begin at page 36 of the claimant’s bundle.

Dr Duckworth is the claimant’s pre and post-accident shoulder specialist.
On 11 March 2019, the claimant reported to him that she had a painful right shoulder over the last eight months and she had a cortisone injection which did not help. She could elevate to 140 degrees and externally rotate to 60. He says the ultrasound was inconclusive and organised an MRI.
On 4 April 2019 Dr Duckworth reviewed the claimant with her MRI noting biceps subluxation and fraying and a degenerative near full thickness cuff tear.
When seen on 15 October 2019 he noted the claimant’s shoulder had been exacerbated by the car accident and her right shoulder remained problematic around the biceps and she wanted to proceed with the surgery.
The operation report is dated 3 December 2019. Dr Duckworth released the frayed biceps tendon. He noted a near full thickness rotator cuff tear which he left alone.
The claimant attended on 14 January 2020. Her surgery had occurred six weeks ago her shoulder was stiff, and she could only elevate to 90 degrees and external rotation was to 20 and he recommended physiotherapy.
By 17 March 2020, Ms Harb’s shoulder was reported to “feel a lot better since her biceps tenodesis”. She had a better range of motion (120 and 50) degrees, and her biceps was intact. Dr Duckworth advised he did not need to see her again unless her shoulder deteriorated.
The claimant returned to see Dr Duckworth on 20 April 2021. She said she had recovered well but had developed pain in the last month with swelling and heaviness and pain at night. He said she “presents with an ongoing degenerative problem affecting her right shoulder due to her cuff”. The claimant’s range of motion was elevation to 150 degrees, external rotation to 60 degrees and abduction to 120 degrees with rotator cuff pain and weakness. He said:
“Mrs Harb presents with an ongoing degenerative problem affecting her right shoulder due to her cuff.”
He organised a cortisone injection under ultrasound which she had. On 1 June 2021

Dr Duckworth advised that the cortisone injection gave his patient some relief from pain however she has pain laterally and if she sleeps on her right shoulder, she also had pain. He organised an MRI.
On 15 June 2021 Dr Duckworth reviewed the MRI of the claimant’s shoulder which showed a chronic supraspinatus tear and a thin retracted tendon which he said could not be repaired. He recommended physiotherapy, cortisone injections and avoiding overhead activities.
In a letter to the claimant’s solicitors dated 25 October 2021 Dr Duckworth said:
“…[the accident] did cause an aggravation to Ms Harb’s pre-existing shoulder injury but it was not the cause of [her] underlying problem. The underlying problem was already pre-existing but the accident exacerbated it. This exacerbation would have lasted for 4 – 5 weeks but would not have lasted any longer than this.”

Radiology

In the claimant’s bundle is the MRI of the claimant’s right shoulder dated

28 March 2019.[15] It shows:
[15] Page 39 of the claimant’s bundle.
(a)   moderate grade articular surface tear of the supraspinatus tendon;
(b)   focal bursal surface partial thickness tear;
(c)   background of moderate supraspinatus tendinosis;
(d)   moderate grade articular surface tear of the infraspinatus tendon;
(e)   severe tendinosis of the long head of biceps tendon;
(f)    fissures in the bicipital groove;
(g)   degeneration involving the superior labrum;
(h)   small effusion in the subacromial /subdeltoid bursa, and
(i)    moderate AC joint arthrosis.
There is an ultrasound of the right shoulder undertaken on 9 October 2019, two weeks after the accident.[16] There was a complex full thickness tear of the supraspinatus tendon. The radiologist concludes that, when compared with the previous MRI findings from March 2019 “the amount of injury to the rotator cuff appears to have increased”.
[16] Page 18 of the insurer’s bundle.
A cervical spine CT scan dated 4 October 2019[17] found central focal disc protrusions at C2-3 and C3-4 compressing the thecal sac but without nerve compression. There was foraminal stenosis on the right side at C5-6 caused by osteophyte and disc protrusion with possible compromise of the right C6 nerve root. At the C6-7 level there was also a broad-based osteophyte with disc protrusion compressing the thecal sac.

CONSIDERATION OF THE ISSUES

[17] Page 19 of the insurer’s bundle.

Does the panel require additional documents?

In the report following the preliminary conference, the Panel advised the parties that in order to better understand the mechanics of the accident:
“The Panel would be assisted by:
(a)   police and ambulance reports;
(b)   any statement made by the claimant, the insured driver and any witnesses about the accident and the movement of the vehicles, and
(c)   any photographs of the damage to the claimant’s car and any property damage reports.”
The insurer did not provide any documentation in response to the request from the Panel.
The claimant provided a statement from the claimant, photographs of her car and the police report. Ms Harb proposed the Commission issues directions to the Ambulance Service and the NSW Fire Brigade. The Panel has no power to issue third party directions (see Tran v Insurance Australia Limited t/as NRMA Insurance[18]).
[18] [2022] NSWPICMP 485 (8 November 2022).
The Panel has been assisted by the additional material and is not of the view that it will be further assisted by material from the emergency services.

Does the panel require a re-examination

In the report following the first preliminary conference, the Panel advised the parties:
“The Panel considers a re-examination of the claimant is not required at this time due to the outstanding documentation and the relatively limited issue for determination.”
Neither party has provided submissions in respect of whether a re-examination should take place or not.
The issue between the parties is a discrete one. The insurer’s submissions acknowledge that the post-accident radiology confirms that the claimant’s pre-accident rotator cuff tear has worsened. The insurer maintains that this worsening is not due to the accident but is due to the general progression of the degenerative arthropathy in the shoulder.
The issue between the parties cannot be resolved by taking a history from the claimant beyond the history that has already been provided. A physical re-examination is also not going to resolve the real issue in dispute. The issue of causation of the worsening of the rotator cuff tear is to be determined by a review of the medical evidence, radiological reports and the exercise of the expertise and clinical judgment of the medical members of the Panel.
The Panel is therefore of the view that nothing is to be gained by having a

re-examination of the claimant and in the interest of furthering the guiding principle of the Commission as set out in s 42 of the Personal Injury Commission Act 2020,[19] the Panel has determined to undertake the assessment of the medical assessment matter on the papers.
[19] “… to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings.”

What evidence should be accepted?

The insurer submits at [6] of the further submissions that the contemporaneous evidence (from the police and hospital records) should be preferred over the claimant’s statement made in May 2023. The insurer relies on a sentence in the discharge summary from the hospital that Ms Harb, “does not recall the crash itself but was panicking following the crash”.
The claimant’s statement includes details of her holding the steering wheel in the moments before the collision and that after the collision her right side (and right shoulder) were thrown against the driver side door. She then details her removal from the car and her transport to hospital.
The hospital records include the following details of the accident:
(a)   it was a t-bone collision and the claimant’s vehicle was struck on the passenger side;
(b)   the other car came from the left but did not stop;
(c)   the other car was driven by a young woman with her mother who were not harmed;
(d)   the claimant’s car turned 180 degrees;
(e)   the other car went onto the kerb, and
(f)    the passenger side air bag deployed.
It is the medical members of the Panel’s experience that this information would have been obtained from the claimant during triage and when she was being examined. The claimant may not have had a recall of the accident in terms of the moment of impact, but she appears to have a clear recollection of many of the details of the accident which she has communicated to the staff at the hospital.
The Panel notes that there is no evidence from AAMI’s insured driver to challenge the evidence that the claimant’s car spun 180 degrees and the insured vehicle went onto the kerb.
The Panel therefore accepts the evidence from the hospital records with the details of the mechanism of the accident and accepts the evidence of the claimant in her statement with regards to what happened to her and her body in the accident.

Did the claimant injure her right shoulder in the accident?

The insurer notes that the police report records the claimant complaining of pain to her left leg and left ribcage (noting no reference to the right shoulder). The Panel’s notes that police officers are generally not medically trained, and it is not clear whether the police spoke with the ambulance officers or attended the hospital to obtain details of the injury. The Panel prefers the evidence of the medical personnel who have treated the claimant.
The Panel notes that the hospital record the claimant reported muscular tenderness at the proximal (towards the shoulder) of the right arm and that the GP note of

30 September 2019 records what appears to be an upper right arm bruise which supports the claimant’s evidence that her right shoulder hit the inside of the car.
The GP note of 4 October 2019 also refers to the right shoulder bruise and that there is pain and reduced range of motion. The claimant had an ultrasound of her right shoulder on 9 October 2019 which indicated the rotator cuff injury had increased.

Dr Duckworth saw the claimant on 15 October 2019 noting the exacerbation of her right shoulder.
It is the clinical judgment of the medical members of the Panel that the mechanism of this particular accident, could have resulted in a further injury to the claimant’s right shoulder and a further tearing of the rotator cuff. This was not a rear end collision but a collision from the side which the photographs suggest occurred with some force. The claimant’s vehicle was said to have spun 180 degrees which suggest there was considerable force in the collision. It would therefore be possible for the claimant to have been thrown around inside the car and for forces to be applied to her shoulder particularly as she was holding the steering wheel at the time.
The Panel accepts the evidence of the claimant which is supported by both the hospital notes on the day of the accident and the GP’s notes which record shoulder bruising and pain in the first week after the accident. The Panel is satisfied that the claimant did sustain an injury to her right shoulder in the accident.

Was the claimant’s torn rotator cuff, further torn in the accident?

The insurer also submits that the hospital recorded a full range of movement in the upper limb which is not consistent with an acute exacerbation of the rotator cuff tear. The Panel notes that Dr Duckworth recorded in March 2019 the claimant’s range of motion at 140 degrees of flexion (normal is 180) and external rotation of 50 degrees (normal is 90). The medical members of the Panel doubt that the claimant would have had a full range of motion when examined by the hospital due to her pre-existing condition.
Dr Duckworth in his letter to Dr Dawoud of 15 October 2019 says that the accident exacerbated the claimant’s right shoulder condition. In his report to the claimant’s solicitors of 25 October 2021, Dr Duckworth suggests the exacerbation “would have lasted 4 – 5 weeks but would not have lasted any longer than this”. Dr Duckworth was not asked, and does not answer, the question of whether the torn rotator cuff was further torn in the accident.
The evidence of the radiologist says that the ultrasound of 8 October 2019 when compared to the March MRI findings showed, “the amount of injury to the rotator cuff appears to have increased”.
The claimant’s GP records bruising of the upper right arm and shoulder and a reduction of range of motion within a week of the accident. This is consistent with the claimant sustaining an aggravation injury to her shoulder and the record of a reduction of range of motion in particular supports a finding that there was further damage done to the shoulder joint in the accident.
It is the clinical judgment of the medical members of the Panel that the mechanism of the accident could have and did cause an injury to the claimant’s right shoulder including the further tearing of the claimant’s right rotator cuff as reported in the ultrasound of 8 October 2019.

CONCLUSION

As the Panel has found that the claimant has further torn her right rotator cuff in the accident, it follows that she has sustained a further “partial rupture of tendons, ligaments, menisci or cartilage” within the meaning of s 1.6(2) of the MAI Act.
It therefore follows that the claimant has sustained an injury that is not a threshold injury and that the certificate of Medical Assessor Woo should be revoked.

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Citations

Harb v AAI Limited t/as AAMI [2023] NSWPICMP 251

Cases Citing This Decision

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Cases Cited

1

Statutory Material Cited

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Tran v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 485

[2023] NSWPICMP 251

7 June 2023