Harris v QBE Insurance (Australia) Limited
[2024] NSWPICMP 598
•23 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Harris v QBE Insurance (Australia) Limited [2024] NSWPICMP 598 |
CLAIMANT: | Hala Harris |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Alan Home |
DATE OF DECISION: | 23 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Threshold injury; certificate and reasons; aggravation of pre-existing degenerative disease; compression fracture L2; no longer attending specialists; activities of daily living; signs of radiculopathy; delay in onset of symptoms; Held – Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment – Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate of Medical Assessor Philip Truskett dated |
STATEMENT OF REASONS
INTRODUCTION
Hala Harris (the claimant) is a 74-year-old woman who was involved in a motor vehicle accident on 10 September 2020. Following the accident the claimant sought a concession from the insurer that her injuries ought to be considered non-threshold injuries. The concession was declined. Following a request for a review the insurer confirmed their position that the claimant suffered a threshold injury for the purposes of the Motor Accident Injuries Act 2017 (MAI Act).
On 12 September 2023 the claimant lodged an application for an assessment of threshold injury with the Personal Injury Commission (Commission). The following injuries were referred to the Commission for assessment:
·shoulder – injury to the left shoulder traumatic impingement of the left shoulder without evidence of large full thickness supraspinatus tear;
·cervical spine – aggravation of pre-existing degenerative disease in the cervical spine;
·lumbar spine – degenerative change aggravation in the lumbar spine and compression fracture of L2;
·hip – injury to the left hip;
·eyes – vision problems to the right eye, and
·the claimant also sought an assessment of psychiatric injury of anxiety and depression which is not the subject of review by this Panel.
The claimant was examined by Medical Assessor Philip Truskett on 7 December 2023 who in a certificated dated 19 December 2023 determined that the injuries caused by the motor vehicle accident were threshold injuries. A review was sought of this determination and the President’s delegate, Stephanie Wigan, who in a decision dated 18 April 2024, determined that there was reasonable cause to suspect that the medical assessment was incorrect in the material respect. The matter was then referred to this Review Panel.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A (1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The Panel determined that an examination of the claimant was required.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
The threshold injury constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
The claimant was examined by Medical Assessor Michael Couch, with the assistance of a Lebanese interpreter, on 25 June 2024 at 1:00pm.
RE-EXAMINATION FINDINGS
Ms Harris was examined over a period of 95 minutes in the presence of her daughter, Gabrielle Harris and with the assistance of Arabic interpreter, Claudine Elbrihi, NAATI Number 59150. She was asked how she wished to use the interpreter – she said that she preferred to use the interpreter throughout.
The Medical Assessor asked Ms Harris if she understood why she had been asked to attend for re-examination. She said that she did not really understand. (Her daughter said that her mother appeared to have developed some short-term memory loss. The Medical Assessor briefly explained the completely independent role of the panel and of the current re-examination). Ms Harris also stated that at the previous examination by Medical Assessor Philip Truskett, the Arabic interpreter had attended by teleconference, and said that she was not sure if all communication had been clear.
HISTORY
Pre-accident medical history and relevant personal details
Ms Harris confirmed that she had grown up in Lebanon, where she had been a primary school teacher teaching the equivalent of Year 7 and 8. She had emigrated to Australia in 1975 at the age of 25. She was married but is now divorced. She has three daughters and three sons and eight grandchildren. At the time of Medical Assessor Truskett’s examination in December 2023 she was living with her youngest son in a Housing Department home. She said that since then she had moved to live with her daughter in Roselands, mainly because she is in worse health and the home is more convenient. At this stage of the interview, she was asked in what way her health was worse. She replied: “the pain is worse – back, shoulder, whole body”. She described a marked impact on her health and wellbeing since the accident.
Ms Harris described breast surgery some 11 years earlier, when “they found nothing wrong”. She also recalled a motor vehicle accident many years earlier when her children were young and said this did not affect her significantly. At the time of the subject accident, she was living with her son who was single and studying at university. They were living in a house with a yard. When asked about domestic tasks, she said that she was doing the shopping, cooking and cleaning. (Her daughter commented that “my brother doesn’t do anything!”). Ms Harris said that she had been driving her own car and had had a driver’s licence since the age of 18.
History of the motor vehicle accident
Ms Harris said that on 10 September 2020 she was alone driving her 2005 Toyota Yaris (a small car) along Canterbury Road in Campsie. She said that she had just had a tyre changed and was going home. She was wearing a seatbelt. Another car came out of a side road from her left and hit the passenger side of her car. When asked if any airbags had deployed, she could not recall this. (Her daughter again mentioned that her mother seems to have some short-term memory loss but does not realise that this is the case).
Although Ms Harris’ recall of the details seemed to be somewhat vague, I ascertained from her and her daughter that her daughter attended the scene and drove her mother to a general practitioner (GP) in the damaged car. Apparently, the car was just driveable but making odd noises and was subsequently written-off by the insurer.
When Ms Harris was asked about her initial symptoms after the crash, she remembered that she “got out of the car and felt unwell”. She could not recall whether any part of her body had struck the inside of the car. When asked about pain soon after the accident, she recalled pain in the left shoulder, low back and left lower limb/hip.
Records from Sherry Basily (GP) describe a visit on the day of the accident at 1:53 pm. “Driver today had a car accident on Canterbury Hospital (comment-presumably this should read ‘Road’) about two hours ago 11:30 am, the other car was coming out from a side street, thought she was going to turn so the other driver went onto Canterbury Road hit the patient car on the passenger side ... No LOC, no airbag, under the speed limit, around 50 km/hr, shocked, was nauseated, has neck and left hip pain, usually very active walks very fast and long distances”.
EXAMINATION
History of symptoms and treatment following the motor accident
Tender cervical spine, tender left hip, nil other bony tenderness, good ROM of shoulders, neuro intact, HSD, chest clear. She was referred for X-rays of the cervical spine, lumbosacral spine and left hip and prescribed Panadeine Forte.
Ms Harris CTP greenslip claim form was dated 28 February 2022 (17 months after the accident)-a sketch depicts the accident as described at this re-assessment. Injuries were described as “left side of my hip, left shoulder, my right eye”.
Imaging ordered by Dr Basily and performed on the day after the accident including X-ray of cervical spine which was reported to show straightening of the usual cervical lordosis – “which may be a sign of neck pain or muscle spasm”, no fractures or dislocations and some degenerative change at C4, C5/6 and C6/7 levels. X-ray of the lumbar spine was reported to show mild anterior wedging of the T11 and T12 vertebral bodies – “a common physiological appearance at these levels”, but no convincing fracture, and degenerative changes in the lower lumbar facet joints and disc space narrowing at L5/S1. The left hip was reported as normal with no significant degenerative change.
No further GP records have been seen by the Panel until she first attended Dr Wael Ghannoum at Dutton Street Medical Centre on 6 April 2022 (19 months after the accident). Records have been seen from this practice up until 10 October 2023.
At the first attendance as a new patient on 6 April 2022, Dr Ghannoum obtained a history of the accident on 10 September 2020, and of pain in the neck, left shoulder, back and left hip. He recorded “seen by other GPs, done x-rays, CT scans, C-spine, L-spine, L hip? Advised to bring next visit”. He also recorded: “1. Neck pain/tenderness, radiating into L shoulder/burning sensation, 2. L shoulder pain, tenderness ACJ, decreased ROM/sbsp elevation, 3. Low back pain/tenderness SLR 30, 4. L hip pain/mild tenderness, walking N/no limp, 5. Right eye vision issues ...” Treatment included analgesia as needed and Voltaren cream.
On 11 April 2022 Dr Ghannoum referred Ms Harris to Dr Vijay Maniam, orthopaedic surgeon. In a letter dated 21 June 2022 to QBE, Dr Maniam diagnosed: “1. Aggravation of pre-existing degenerative disease in the cervical spine with C2/3 anterolisthesis, 2. Impingement of the right C5, bilateral C6 and bilateral C7 nerve roots, 3. Degenerative change aggravation in the lumbar spine and compression fracture of L2, 4. Traumatic impingement left shoulder without evidence of large full thickness supraspinatus tear”. He recommended: “1. Physiotherapy for the cervical and lumbar spines, 2. Neurosurgical opinion in relation to the subluxation at C2/3, 3. PRP injections to the left shoulder, and arthroscopic surgery for repair of the rotator cuff tear”.
Ms Harris said that she had subsequently seen Prof George Murrell, specialist shoulder surgeon. She had some physiotherapy, but Prof Murrell apparently told her that was not likely to help her and recommended surgery to the shoulder. Ms Harris told the Assessor that she was not happy about the idea of shoulder surgery as she knew many people who had had this without success.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Harris described a recent accident on 29 April 2024. She was again driving a Toyota Yaris (2018 model) on Canterbury Road. Her car was almost stationary when a truck hit the rear of her vehicle. Her car was apparently repairable. She was taken to Royal Prince Alfred Hospital Emergency Department and apparently the discharge referral stated that her left shoulder had been injured by the seatbelt.
CURRENT STATUS
Ms Harris said that she was no longer attending any specialists in relation to injuries from the accident. She confirmed that she had been attending Dr Ghannoum in Yagoona over the past two years. (Her daughter added that her mother’s previous GP “had been struck off during COVID”). Ms Harris stated that she was “fed up with it all”. She went on to say that she had in fact not seen Dr Ghannoum for several months as she had travelled to Dubai to visit extended family. (She said that she had taken medication for six months with her on this trip).
She was asked what body parts currently troubled her most; she said that these were her left shoulder and low back. She described current symptoms in more detail as follows.
CURRENT SYMPTOMS
Left shoulder
Ms Harris pointed with her right hand to the region of the left trapezius and shoulder joint and said that she could not elevate her arm properly. (She spontaneously abducted her left shoulder to approximately 30 degrees when the Medical Assessor asked her what movements caused pain). She described constant pain in the shoulder, which improves somewhat with rest and is aggravated by left upper limb movements.
She has asked about driving (which she still does). She drives an automatic transmission vehicle and says that she does keep both hands on the wheel. In bed she sometimes tries to lie on her left side but cannot do this for long because of shoulder pain. She described using lots of pillows to try to get comfortable. (At this stage of the interview she was asked if she had had any injections to the left shoulder-she said she had not).
Low back pain
The Medical Assessor asked her to stand to point to the painful area – she pointed to the central lumbosacral area and described pain “like a fire”. She described radiation down the left lower limb. (She in fact indicated the area on her right lower limb with her right hand, explaining that it was difficult to use her left arm). Pain can sometimes radiate as far as the left foot.
Neck
When asked if she still had any symptoms in her neck, Ms Harris said that she did. She said that pain is mainly on the left side, but there is also some pain more centrally and to the right.
PRESENT ACTIVITIES
As mentioned above, Ms Harris said that since the accident she had moved from living with her son, where she apparently did a lot of the domestic duties, to staying with her daughter, who is not currently working. Her daughter apparently has a de-facto partner, but they live separately- she also has two older children who have left home. She said that she does not help her daughter around the home. On questioning she said that she does not do any cooking. She commented that “I’m trying to fill my time with television, etc”.
Ms Harris said that she is depressed and does cry at times. She was asked how often she leaves the home – she replied that it depended on her mood; she goes out perhaps every two or three days per week. She drives to a small extent only locally- she sometimes will drive to a local shop. She was asked about sleep and responded that this had been disturbed but had been better since taking Diazepam very recently.
Current and proposed treatment
As noted above, Ms Harris said that she is not attending any specialists. She takes Panadol or Nurofen for analgesia and also takes Lyrica (the antineuropathic pain drug Pregabalin) 150 mg, one or two tablets daily. Recently she had started taking Diazepam (Valium) to help with her sleep.
EXAMINATION
General presentation
Ms Harris presented as a sad and tired looking, rather anxious older woman. She appeared to understand and speak some English, but the interpreter was used throughout. She initially looked depressed, although she became somewhat more animated later in the 95-minute assessment and quite good rapport was established. She appeared to be fearful of exhibiting pain behaviours, but also gave the impression of being straightforward, giving as clear a history as she could, and without evidence of deliberate self-limitation or inconsistency.
Height was 159cm and weight 70kg giving a BMI of 27 (slightly overweight – she said that she had been taller at 165cm as a young woman). She was able to sit on a normal office chair during the prolonged interview. When asked to stand she was noted to do this slowly, pushing up with one hand on an adjacent cupboard. She was able to sit on the examination couch-which was lowered to an appropriate height for her.
When asked to lie supine (for examination of the lower limbs) she apparently found this very difficult – she appeared to develop a cramp or spasm in the left groin area. (At this stage of the examination, because she appeared to be in considerable discomfort, she was given two 500 mg Paracetamol tablets. She got up, walked around then sat in a chair and appeared to become more comfortable). Because of her apparent difficulty lying supine, lower limb examination was eventually completed with her sitting in a chair (including eliciting lower limb reflexes).
Cervical spine
There was a slight tendency to forward protrusion of the head and neck (“poke neck”). Active cervical spine flexion was half of normal, whereas extension was a quarter of normal. Rotation was a third as normal bilaterally. Lateral flexion was a half of normal to the right and a third of normal to the left. On gentle palpation she reported generalised tenderness over the posterior cervical spine, paraspinal muscles and both trapezius muscles, but there was no detectable muscle guarding or spasm.
Lumbosacral spine
Palpation of the lumbosacral spine with Ms Harris standing revealed slight tenderness only. Active range of movement (AROM) of the lumbosacral spine was measured with Ms Harris standing with knees straight. Forward flexion was limited to about a quarter of normal while active extension was minimal. Lateral flexion was a quarter of normal to both sides.
Upper extremities
Hands were warm, clean and soft without any callouses, consistent with her history of doing very little around the home. The right (dominant) upper arm measured 29cm in circumference and the left also measured 29cm. The right forearm measured 24cm and the left 23cm. Both upper limbs were neurologically normal, with intact and symmetrical biceps, triceps and brachioradialis reflexes. Power including grip strength was normal bilaterally, and light touch sensation was preserved in both upper limbs. Thus, there was no evidence of cervical radiculopathy.
There was no significant tenderness to palpation around the right shoulder joint, but there was moderate restriction of AROM-as tabulated below. In the left shoulder Ms Harris reported marked tenderness over the left glenohumeral joint. (At one stage when Ms Harris appeared to be anxious, the Medical Assessor reflexively put a hand very gently on her left shoulder to reassure her, and she apparently found this quite painful). Because of this tenderness, it was not possible to assess properly for crepitus on movement in the glenohumeral joint. There was very marked restriction of AROM in the left shoulder, as tabulated.
Right Left Flexion 110° 50° Extension 40° 0° Abduction 100° 50° Adduction 20° 0° External rotation 80° 30° Internal rotation 40° 50°
The Medical Assessor asked Ms Harris how she managed to fasten her bra –apparently her daughter needs to help her with this. (The clinical impression was consistent with a markedly abnormal left shoulder, consistent with rotator cuff disease and/or osteoarthritis).
Lower extremities
10 cm proximal to the patella both sides measured equally in girth at 44 cm. The right calf measured 39 cm and the left 38 cm. Ms Harris appeared to have some initial difficulty in relaxing for examination of the reflexes. These were carefully tested with her seated in a chair, and knee jerks and ankle jerks were present, normal and symmetrical.
She apparently found it difficult to understand instructions when testing muscle power, but eventually gave good effort when testing extensor hallucis longus (L5 nerve root). This was normal and symmetrical. As far as could be ascertained, there was no weakness in any lower limb muscle group. Light touch sensation was preserved bilaterally.
Straight-leg-raising was within normal limits on the right at 60 degrees, with complaint of slight low back pain. Straight-leg-raising was reduced at 40 degrees on the left, with complaint of rather worse low back pain, but no typical lower limb radicular symptoms on passive sciatic stretching.
AROM of the hips was measured with a goniometer as follows:
Right Left Flexion 90° 90° Abduction 30° 30° Adduction 30° 20° Internal rotation 20° 20° External rotation 30° 30°
On left hip movements Ms Harris described pain in the left buttock region but not in the groin. (Pain originating from the hip joint proper is usually felt in the groin region).
A few functional activities were observed: Ms Harris was able to take a few cautious steps, first with weight on the balls of her feet and heels off the floor, and then with weight on her heels and forefeet off the floor. She attempted to perform a squat using one hand on an adjacent chair back for support but was unable to do this.
IMPRESSION FOLLOWING RE-EXAMINATION
Ms Harris is a now 74-year-old woman who describes being in quite good health and being reasonably physically active (including doing most of the housework while living with her son) prior to the accident almost four years earlier.
She described what was probably a quite frightening accident when her older (2005) small Toyota Yaris was T-boned from the left, with sufficient damage to be subsequently written-off. There was probably the potential in the accident for significant injuries.
There was early documentation (by the GP about two hours after the accident) of pain and tenderness in the cervical spine and left hip. There was no mention by Dr Basily of low back pain or shoulder pain and good range of movement (ROM) of the shoulders was recorded.
At this re-examination her presentation was generally consistent, although with some fear avoidance and pain behaviours. Compared with the previous assessment of Medical Assessor Truskett, she showed reasonable effort when examining the left shoulder, which did appear to be quite abnormal.
DIAGNOSIS, CAUSATION AND REASONS
Cervical spine
She was complaining of mild symptoms in her cervical spine. Examination showed restricted AROM in the cervical spine and equivocal dysmetria. The Panel notes the findings on physical examination of the cervical spine being no detectible muscle guarding or spasm and no evidence of cervical radiculopathy. Any issues sustained in the cervical spine is a threshold injury.
Lumbar spine
The claimant was complaining of significant mechanical low back pain. Examination showed restricted AROM in the lumbar spine and equivocal dysmetria. There was no muscle guarding or spasm and no evidence of detectible lumbosacral radiculopathy. Any injuries sustained in the lumbar spine is a threshold injury.
Left shoulder
The left shoulder was clinically abnormal at this assessment. However, with the normal examination of the shoulders on the day of the accident and no subsequent records or investigations until 19 months later, causation of an injury to the left shoulder in the accident is not established.
The Panel is aware that it is a legal error to treat the absence of recorded complaints as decisive of the causation. However, the panel considers that if the claimant had sustained major trauma to the shoulder in the subject accident this would have been reflected in the post-accident medical record.
The Panel notes that ultrasound imaging on 14 November 2022 was reported as showing a “large full thickness supraspinatus tendon tear”.The panel is aware that ultrasound imaging is operator dependent and less specific than MRI imaging.
The subsequent MRI scans, which is more sensitive and specific investigation, demonstrated tendinosis but no cuff tear.
The Panel finds that the claimant did not suffer a traumatic tear to the supraspinatus tendon or the remaining rotator cuff tendons, considering the imaging findings as a whole.
The MRI scans revealed advanced osteoarthritis of the glenohumeral joint. This fits well with the clinical picture seen at the Panel re-examination.
The Panel also points out that an injury in the motor vehicle accident would not lead to post-traumatic osteoarthritis or aggravation of pre-existing osteoarthritis, without major trauma, which would have been accompanied by immediate symptoms and restricted shoulder motion.
The Panel finds that it is plausible that the claimant experienced referred pain from the neck or a soft tissue injury to the shoulder against a background of underlying osteoarthrosis. However, this does not represent injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
The Panel is not satisfied that the examination of the claimant and the material bears out any support of the allegation that the accident caused a large supraspinatus tendon tear. Accordingly, any injury to the left shoulder would be classified as a threshold injury.
Left hip
There was mention of left hip pain and tenderness by the GP on the day of the accident. X-ray of the left hip on the day of the accident was essentially normal. The Panel re-examination showed slight restriction of AROM in both hips, with complaint of pain in the left buttock on movement, but not in the groin area. Given her current level of physical inactivity and deconditioning, minor restriction of AROM is probably attributable to deconditioning, rather than a specific injury.
Ms Harris probably sustained a soft tissue injury to the left hip region, which after nearly four years has resolved. A soft tissue injury would be classified as a threshold injury.
CONCLUSION
On the evidence to date and as presented in examination, it would appear that threshold injuries incurred to Ms Hala Harris in the motor vehicle accident of 10 September 2020.
The following injuries are a threshold injury:
· left shoulder injury;
· cervical spine injury;
· lumbar spine injury, and
· left hip injury.
In the absence of any alternative information, it would appear that we, the Review Panel, confirm the certificate of Medical Assessor Philip Truskett dated 19 December 2023 in that there were threshold injuries for the cervical and lumbar spine, the left hip and left shoulder.
DOCUMENTS CONSIDERED
The Review Panel had available to it all the material which had been included in both the application and reply lodged by the parties. This was all the material which was before Medical Assessor Philip Truskett on 19 December 2023.
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