Hattar v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 206
•12 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Hattar v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 206 |
| CLAIMANT: | Mark Hattar |
| INSURER: | NRMA |
| REVIEW PANEL | |
| MEMBER: | Cameron Thompson |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 12 May 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injuries in a motor accident on 21 June 2018 when he was a front seat passenger in a motor vehicle which was stationary in traffic and was struck in the rear by a 4-wheel-drive; assessment of threshold injury under section 1.6 and the degree of permanent impairment of physical injuries caused by the accident; original medical assessment issued when the relevant term was “minor injury”; Motor Accident Injuries Amendment Act 2022; minor injury now described as a threshold injury; Medical Assessor (MA) determined that the injuries to the cervical spine, thoracic spine and lumbar spine caused by the accident are minor injuries and give rise to a permanent impairment of 0%; claimant sought review; David v Allianz Australia Limited – whether two of the clinical signs of radiculopathy were found on examination of the claimant at any time following the accident; principle in Nguyen v Motor Accidents Authority of New South Wales & Anor; Held – claimant sustained soft tissue injuries to the cervical and thoracic spine caused by the accident but Panel not satisfied that at least two of the clinical signs of radiculopathy were found on examination of the claimant at any time following the accident; injuries to the cervical spine and thoracic spine are threshold injuries; the accident caused an annular fissure at the L5/S1 disc; injury to the lumbar spine is not a threshold injury and assessed at 5% WPI; the degree of permanent impairment of the claimant as a result of the injury caused by the accident is not greater than 10%; certificate of MA revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold Injury and Permanent Impairment Review Panel Assessment of Threshold Injury and Permanent Impairment Replacement Certificate issued under section 7.23(1) of the 1. The Review Panel revokes the certificate of Assessor Truskett dated 1 April 2022. 2. The Review Panel certifies that the following injuries caused by the motor accident are threshold injuries : a) Cervical spine b) Thoracic spine 3. The Review Panel certifies that the injury to the lumbar spine caused by the motor accident is not a threshold injury. The Review Panel certifies that the degree of permanent impairment of the Claimant as a result of the injury caused by the motor accident is not greater than 10%. |
REASONS
BACKGROUND
The Claimant, Mark Hattar, suffered injuries in a motor accident on 21 June 2018, when he was a front seat passenger in a motor vehicle which was stationary in traffic on the M4 in Sydney when it was struck in the rear by a four-wheel-drive (the accident).
The Claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
NRMA (the Insurer), insured the owner and/or driver of the motor vehicle for liability to pay the Claimant any damages and/or statutory benefits under the MIA Act.
The issues in dispute are:
(a)Whether the Claimant’s injuries are classified as a “minor injury” within the meaning of the MAI Act; and
(b)Whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”.
Both issues constitute a medical dispute within the meaning of the MAI Act[1].
[1] See Division 7.5 and Schedule 2 clause 2(a) of the MAI Act.
The Claimant alleges that he suffered impairment to the following body parts caused by the accident:
a)cervical spine;
b)left shoulder;
c)lumbar spine;
d)right shoulder; and
e)thoracic spine.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to ongoing statutory benefits and an entitlement to bring an action for damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[2]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[3]
[2] Sections 3.11 and 3.28 of the MAI Act.
[3] Section 4.4 of the MAI Act.
THE ASSESSMENT UNDER REVIEW
This is a review lodged by the Claimant of a medical assessment pursuant to s.7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Truskett (Assessor Truskett) and dated 1 April 2022. Assessor Truskett determined that:
a)The injury to the Claimant’s cervical spine, thoracic spine and lumbar spine is a minor injury for the purposes of the MAI Act;
b)The injuries to the Claimant’s left shoulder and right shoulder were not caused by the motor accident; and
c)The injuries to the Claimant’s cervical spine, thoracic spine and lumbar spine caused by the motor accident give rise to a permanent impairment of 0% and is not greater than 10%.
THE REVIEW
It is not in issue that the application for review of the medical assessment to a Review Panel (the Panel) was made by the Claimant within 28 days after the parties were issued with the original certificate of the medical assessment for which the review is sought[4].
[4] Section 7.26(10) of the MAI Act
On 21 July 2022, the President’s Delegate referred the medical assessment to the Panel as he was satisfied that there was reasonable cause to suspect that the medical assessment is incorrect in a material respect having regard to the particulars set out in the application[5].
[5] Section 7.26(5) of the MAI Act; Insurer’s bundle p.1
Pursuant to s.7.26(5)(A) of the MAI Act and Schedule 1, clause 14(F)(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two medical assessors and a member of the Motor Accident’s Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a medical assessor[6].
[6] Section 41(2) of the PIC Act
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application[7].
[7] Rule 128 of the PIC Rules
The review of the medical assessment is by way of new assessment of all the matters in which the medical assessment is concerned[8].
[8] Section 7.26(6) of the MAI Act
On 11 October 2022, the Claimant was examined by Medical Assessor Oates.
STATUTORY PROVISIONS AND GUIDELINES
Threshold injury
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a 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 threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
Radiculopathy is defined in clause 5.8 of the Guidelines as follows:
Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[9]
[9] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[10]
[10] See s.3B(2) of the Civil Liability Act 2002.
Amendment to legislation
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented to on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The original Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury. The submissions and original medical assessment were written at a time when the term was “minor injury”. We have used the term in these reasons as it was used by the parties or the Medical Assessor.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.
Permanent impairment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s.10.2 of the MAI Act. They adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive[11].
[11] Clause 6.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides
as follows:'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the
impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment,
which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MATERIAL BEFORE THE PANEL
The Panel issued directions dated 4 August 2022 requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in the Review.
In response to these directions, the Claimant uploaded to the portal at AD2 a bundle of documents paginated from pages 1 to 774 (CB). The Insurer uploaded to the portal at AD1 a bundle of documents paginated from pages 1 to 467 (IB).
The Panel also issued a direction dated 6 October 2022 requiring the Claimant to upload to the portal imaging (film and/or digital) of MRI scans of the Claimant’s lumbar spine taken during the period from 1 June 2013 to date. However, the Claimant did not upload to the portal any documents in response to that direction.
The Panel has read and considered the documentation relied upon by the parties on this Review as identified in paragraphs 29 to 32 above in making its findings and determinations.
SUBMISSIONS
Claimant’s Submissions to the President’s Delegate[12]
[12] CB p.2
These submissions were relied upon by the Claimant in support of the Application for Review of the Certificate of Assessor Truskett.
In relation to the minor injury dispute, the Claimant refers to section 1.6 of the MAI Act, section 4 of the Motor Accident Injuries Regulations 2017 (the Regulations), clauses 5.8 to 5.10 of the Guidelines and the decision in David v Allianz Australia Insurance Limited [2021] NSW PICMP 227 (David).
The Claimant submits that the decision in David confirms that when determining whether an individual has a minor injury or a non-minor injury, the Assessor must consider the medical evidence, and if there has been observation of radiculopathy by another practitioner, whether it be at the time of the medical assessment conducted by the PIC assessor, or at any time.
The Claimant also refers to the test for causation in the Guidelines and submits that Assessor Truskett clearly ignored that causation test, and in particular, the principles enunciated in Nguyen v The Motor Accidents Authority NSW and Zurich Australian Insurance Limited [2011] NSWSC 351 (Nguyen) where it was held that whether the plaintiff has not sustained a direct injury to a body part but goes on to experience referred pain to that body part as a result of an injury sustained in the accident, then the referred pain is assessable and should be considered in the medical assessment.
The Claimant submits that Assessor Truskett confirmed that the Claimant went on to experience referred pain in both his shoulders and that the impairment of the left and right shoulders was considered by Assessor Truskett to be directly related to the cervical spine injury and that such a direct connection satisfies both the common law principles of causation and the statutory formulation “as a result of” (the injury).
The Claimant further submits that Assessor Truskett has incorrectly determined that the clinical presentation of the Claimant does not meet the criteria for radiculopathy as set out in clauses 5.8 to 5.10 of the Guidelines, particularly in reference to the lumbar spine injury.
The Claimant refers to Assessor Truskett’s clinical examination of the Claimant and submits that it is evident that non-radicular symptoms were present and observed by other medical practitioners “at any time” and accordingly submits that Assessor Truskett has not applied the principles set out in David.
The Claimant notes from the Certificate and Reasons of Assessor Truskett that Assessor Truskett states that the Claimant was referred to Dr Matthew Giblin (orthopaedic surgeon) who advised him that he would always have back problems because of disc injury, but did not advise surgery. The Claimant also refers to Assessor Truskett’s finding on clinical examination of the Claimant’s neck, thoracic spine and lumbar spine, the statement by the Claimant dated 9 November 2020, the discharge summary from Westmead Hospital in June 2018, the report of Dr Matthew Giblin dated 27 August 2018 and Assessor Truskett’s summary of relevant medical imaging and other investigation and his diagnosis and reasons. The Claimant submits that on the basis of this material, it is evident that non-radicular symptoms were present and observed by other medical practitioners “at any time”, and in addition to this the Claimant submits that the clinical records of Liverpool Family Medical Centre confirm that following the subject accident, the Claimant was observed to have suffered from at least two clinical signs of radiculopathy, and further submits that the medical report of Dr Sikander Khan dated 17 September 2019 confirms that the Claimant’s condition in the lumbar spine with history of injury causing disc trauma at the L4/5 and L5/S1 level resulted in radiculopathy affecting the lower limb.
The Claimant submits that based upon the examination/clinical findings of Assessor Truskett, and the decision in David, the Claimant satisfies the requirement of at least two clinical signs of radiculopathy and he has sustained a non-minor physical injury.
In conclusion the Claimant submits that based on the above submissions, the assessment criteria for radiculopathy has been met, noting that radiculopathy has been observed by at least one other medical examiner. The Claimant submits that when considering the medical evidence provided to the Assessor at the time of assessment and the Assessor’s findings, it is clear that the criteria set out in the relevant legislation, the Regulations and the Guidelines, has been met to establish that the Claimant has a non-minor injury as a result of the subject accident.
The Claimant therefore submits that Assessor Truskett has failed to adequately apply the relevant legislative framework when determining the minor injury dispute.
Claimant’s Submissions made to Assessor Truskett’s WPI Dispute[13]
[13] CB p.12
These submissions were relied upon by the Claimant seeking a review by the PIC of the Insurer’s Decision on Internal Review confirming its original decision that the Claimant’s physical and psychological injuries do not exceed the 10% whole person impairment threshold.
The Claimant refers to various medical assessments of whole person impairment in relation to his physical and psychological injuries and contends that on the basis of this medical evidence, it is evident that the Claimant’s physical and psychological injuries exceed the 10% whole person impairment threshold.
Claimant’s Submissions made to Assessor Truskett’s Minor Injury Dispute[14]
[14] CB p.15
These submissions were relied upon by the Claimant in his application relating to the Insurer’s liability notice and minor injury determination dated 20 December 2019 and its internal review decisions dated 9 July 2021.
The Claimant submits that the Insurer’s liability decision was not performed in accordance with the Motor Accidents Guidelines 2021 and is therefore invalid and the Insurer has erred in its interpretation of the Guidelines when considering whether the Claimant’s injuries fall within the definition of a “minor injury” under the Guidelines and the MAI Act.
In respect of the minor injury dispute, the Claimant refers to clauses 5.5 to 5.6 of the Guidelines and submits that the Insurer has not properly considered the Claimant’s medical evidence when it considered the nature of the Claimant’s injuries and that therefore the Insurer’s internal review is patently inefficient and non-compliant with the Guidelines.
With regards to the Claimant’s physical injuries, the Claimant refers to the definition of a minor injury in section 1.6 of the MAI Act and also section 4(1) of the Regulations and clause 5.8 of the Guidelines in relation to radiculopathy. The Claimant refers to the MRI Lumbar Spine Reports dated 18 July 2018 and 7 February 2019 and the report of Dr Khan dated 17 September 2019, and submits that the Claimant meets the criteria for radiculopathy and therefore has not sustained a “minor injury”. Further, the Claimant disagrees with the Insurer’s allegation that his injuries were pre-existing and is therefore a minor injury referring to certificates of capacity/certificates of fitness from the Claimant’s treating general practitioner, Dr Zaki, which noted nil relevant pre-existing factors. It is further submitted that the Claimant’s most recent complaint of back pain prior to the subject accident as reported in Dr Zaki’s clinical file in September 2017, confirms that the Claimant’s back pain had resolved and further that there were no complaints reported in those clinical notes prior to the subject accident in relation to neck pain.
The Claimant submits that the Insurer has not properly considered the Claimant’s physical injuries in accordance with the Guidelines, and that had it done so and considered the medical evidence, it would have found that there is objective evidence that demonstrates that the Claimant has sustained a non-minor injury.
With regards to the Claimant’s psychological injury, the Claimant also disputes the Insurer’s decision that psychological injury as a result of the subject accident is of minor determination.
Claimant’s PIC Submissions – Medical Assessment (Minor Injury Dispute)[15]
[15] CB p.43
These submissions duplicate the Claimant’s submissions at CB p.15.
Claimant’s Submissions – Medical Assessment (WPI Dispute)[16]
[16] CB p.388
These submissions duplicate the Claimant’s submissions at CB p.12.
Insurer’s Submissions made to the President’s Delegate dated 5 July 2022[17]
[17] IB p.5
These submissions were relied upon by the Insurer in reply to the Claimant’s application for review of the assessment of Assessor Truskett.
In relation to causation of the Claimant’s shoulder injuries, the Insurer advised that it does not propose to make any submissions concerning this issue and will accept the findings made in determination of the dispute.
The Insurer refers to the Claimant’s reliance on the decision in David in support of a submission that the Claimant only needs to show that he had at least two signs of radiculopathy which meet the criteria of clause 5.8 of the Guidelines at any time after the subject accident.
The Insurer submits that at paragraphs 23 and 25 of the Claimant’s submissions, the Claimant refers to non-radicular symptoms and submits that non-radicular symptoms, by definition, are symptoms that do not conform with any particular nerve root distribution and therefore would not meet the criteria for radiculopathy set out in clause 5.8 of the Guidelines.
The Insurer further submits that in order to satisfy the criteria of clause 5.8 of the Guidelines and the conclusion made in David, the Claimant would need to show that at any time, he was assessed to have two or more radicular features identified in clause 5.8 of the Guidelines.
It submits that Assessor Truskett’s finding of non-radicular features means that the Claimant’s symptoms were not localised to an appropriate spinal nerve root distribution.
In response to the Claimant’s submissions at paragraphs 24 to 27 which highlights Assessor Truskett’s acceptance of non-radicular complaints, the Insurer submits that the definition of clause 5.8 of the Guidelines is not met simply because Assessor Truskett accepted that there were non-radicular complaints.
The Insurer notes that the Claimant highlighted findings of tenderness in the quote relating to the discharge from Westmead Hospital, but submits that the Claimant failed to highlight that there were no neurological signs.
The Insurer refers to the Claimant’s reference to reports of symptoms by Dr Giblin including radiation to the left leg intermittently, but notes that Dr Giblin also stated that there was no significant neurological deficit.
With regards to Assessor Truskett’s summary of imaging of the cervical spine, the Insurer submits that this imaging also confirmed that there was no evidence of any nerve root impingement in either the cervical or lumbar spine.
The Insurer refers to the Claimant’s reference to a diagnosis of radiculopathy affecting the lower limb in the report of Dr Khan dated 17 September 2019, and submits that there is absolutely no analysis or explanation as to whether that diagnosis made by Dr Khan meets the criteria set out in Clause 5.8 of the Guidelines.
The Insurer submits that it is abundantly clear that on the assessment of Dr Khan, the Claimant does not meet those criteria and that the quote provided by the Claimant of Dr Khan is out of context and should not be accepted as a finding that there was true radiculopathy within the meaning of clause 5.8 of the Guidelines.
Insurer’s Minor Injury Submissions Reply dated 1 September 2021[18]
[18] IB p.11
The Insurer submits that the Claimant’s indication in his application for personal injury benefits that he did not have any pre-existing illness or injuries prior to the accident is not accurate or correct and says that the Claimant has a history of complaints of lower back pain, noting that the Claimant complained of mild lower back pain on 22 April 2014 after lifting objects causing acute pain.
The Insurer submits that the Claimant’s injuries are minor injuries within the meaning of section 1.6 of the MAI Act.
Under the heading “Cervical spine with radiculopathy into the upper limbs”, the Insurer refers to the following evidence:
a)The police and ambulance were not called to the scene of the accident and the Claimant did not attend a hospital for his injuries and the Queensland Police Service Report stated that the Claimant suffered “minor injuries, discomfort in right shoulder and whiplash”.
b)The whole body scan dated 31 August 2018 revealed degenerative changes at C3/4, C5/6 and C/7.
c)The MRI scan of the cervical spine on 6 August 2018 revealed the C3/4 discs were narrowed with mild canal stenosis but no protrusion, the C5/6 disc was narrowed and degenerative with a mild disc bulge and endplate osteophytes causing mild canal stenosis, and there was minimal disc trauma at C6/7 not causing significant canal stenosis.
d)The initial certificate of capacity issued on 25 June 2018 diagnosed an acute sprain injury with secondary spasm of the cervicodorsal and lumbar spine paravertebral muscles and by October 2019 all formal restrictions were removed and the Claimant was certified fit for normal duties as tolerated, and later certified fit for pre-injury duties as at 13 January 2020.
The Insurer notes that the Claimant relies upon the report of Dr Khan who reported “there are no radicular symptoms in the arms” and also refers to the fact that on examination, Dr Giblin found slight reduction on left and right rotation of the cervical spine without spasm or guarding, full shoulder movements and no neurological defects in the upper limbs. It submits that there is no evidence which supports muscle atrophy or decreased limb circumference and that the radiology reports showed no impingement, and further, that the Claimant has not undergone a nerve conduction study.
The Insurer submits that when considering the entirety of the records, there is no evidence of radiculopathy.
With regards to the left and right shoulders, the Insurer notes that the Claimant’s application for personal injury benefits dated 25 June 2018 does not list any injury to the left or right shoulder and nor do the certificates of capacity diagnose any injury to the shoulder.
It notes that the report of Dr Khan does not diagnose any injury to the shoulders and that the report of Dr Giblin also did not find any injury to the shoulders and upon examination found full shoulder movements.
The Insurer further notes that the Claimant has not undergone any radiological scans or testing in relation to his shoulders and that there is no evidence of any radiculopathy going into the upper limbs and therefore there is no evidence that would suggest any injury, let alone a non-minor injury, to the shoulders.
With regards to the thoracic spine, the Insurer notes that the certificates of capacity do not list any diagnosis or injury to the thoracic spine and that an MRI of the thoracic spine dated 6 August 2018 revealed normal alignment with widespread desiccation narrowing with Schmorl’s nodes, likely due to Scheuermann’s disease, and that there was no significant disc bulge in the thoracic spine. The Insurer submits that the MRI scan does not reveal any evidence of a fracture, verified radiculopathy or any injury to the spinal nerve root as a result of the accident and submits that the injury to the Claimant’s thoracic spine is minor in nature.
Under the heading “Lumbar spine with radiculopathy into the lower limbs”, the Insurer notes that the Claimant’s application for personal injury benefits lists no pre-existing illnesses or injuries to the lumbar spine, but that the clinical records of Liverpool Family Medical Centre show his lower back pain in 2014 and 2017, and that the chronic disease management report dated 1 December 2017, six months prior to the accident, lists chronic lower back pain and that the Claimant was referred to physiotherapy for his symptoms. The Insurer submits that the evidence suggests that the Claimant’s pain was chronic in nature and was present at the time of the accident.
The Insurer refers to the MRI of the lumbar spine on 7 February 2019 which revealed multilevel degenerative disc disease, L5/S1 central broad based protrusion and no evidence of nerve root impingement, and submits that when compared to the MRI scan dated 18 July 2018, approximately one month after the accident, the repeat scan does not report the presence of the annular tear at L5/S1.
The Insurer notes that the whole body scan dated 31 August 2018 revealed arthritis at L4/5 and L5/S1. It further refers to the initial certificate of capacity issued on 25 June 2018 which diagnoses an acute sprain injury with secondary spasm of the cervicodorsal and lumbar spine paravertebral muscles and that the Claimant was certified fit for pre-injury duties as at 13 January 2020.
The Insurer notes that upon clinical examination of the lumbar spine, Dr Smith found no muscle spasm, no movement to limitations, a normal SLR and a normal neurological examination and that Dr Khan also conducted a sciatic stretch test which revealed negative results, no evidence of muscle wasting, and that reflexes were present in both lower limbs and were normal.
The Insurer submits that the radiology reports show no impingement, and the Claimant has not undergone a nerve conduction study, and that when considering the entirety of the records, there is no evidence of radiculopathy.
RE-EXAMINATION
The Claimant was examined by Assessor Oates on 11 October 2022. The examination report is as follows:
MARK HATTAR – PANEL EXAMINATION
MEDICAL ASSESSOR – Dr Chris Oates
11 October 2022 at PIC rooms in Sydney.
DOB: 18/05/1971
DOA: 21/06/2018
HISTORY
Pre-accident medical history and relevant personal details
Mr Hattar came from Jordan in October 1996. He worked as a keyboard musician there and when he came to Australia until 2015. Thereafter, he was working as a truck driver and now he plays the organ in church.
He was working for Hansens as a cement truck driver for one year before the accident.
He has two dependent daughters aged 11 and 17 who live with the mother. He was divorced in 2018 but has since remarried. He now lives in Melbourne with his second wife, who does not work, and her daughter aged 18 and twin sons aged 14.
Before the accident he did social soccer and went swimming with the kids and attended the gym and was quite bulked up physically. He does not do any pastimes since the accident. He tried the gym, but it increased his back pain.
History of the motor accident
Mr Hattar stated he is right hand dominant.
He said on 21 June 2018, he and a work colleague were returning to the depot in a small car after dropping the cement trucks off for service. He was a front seat passenger with his colleague as driver. They were stationary in traffic in lane 1 on the M4 westbound. A following 4WD rear-ended them at about 80kph. They did not hear a screech of brakes. He had a seatbelt on. They did not hit the car in front but moved forward about half a car length from the impact.
A head restraint was fitted to the seat. He felt himself being thrown forward and back three times. No airbags were deployed. He felt pain at the base of the neck and in the interscapular thoracic back and the lower back. He was not knocked out and self-extricated through the passenger door.
The ambulance and police attended, and ambulance records refer to bilateral lumbar pain but no neck pain or tenderness, with a GCS of 15/15.
Westmead Hospital notes refer to midline cervical, thoracic and lumbar tenderness and a right forehead abrasion. Mr Hattar did not remember having an abrasion on the head. A CT trauma series showed no fractures. He was kept in a neck collar and wore this for about four weeks.
He saw his GP, Dr Zaki, at Liverpool, on 23 June 2018 when his neck was still in the collar, so was not examined. There was mild tenderness in the lumbar spine with minimal muscle spasm and normal neurology of the upper and lower limbs.
Mr Hattar said he had no significant problems with the arms or legs but when the back was very sore, he would have some referred symptoms into the posterior left thigh and leg. He was treated with Panadol and Nurofen but there was no benefit, so he was switched to Panadeine Forte.
He had an MRI scan lumbar spine on 18 July 2018 showing severe degenerative changes with disc height loss in L5/S1 with a posterolateral disc bulge and annular tear. He later had MRI scans of the cervical and thoracic spine and was referred to Dr Matthew Giblin, orthopaedic surgeon, whom he saw on 27 August 2018, complaining of neck, mid back and lower back pain with intermittent left leg pain and pins and needles.
Dr Giblin found normal neurology in the upper and lower limbs with slight restriction of neck rotation, tightness of the left thoracic lateral flexion and restriction of lumbar flexion to fingertips just below the knees. He ordered a bone scan which showed right-sided mid lumbar facet joint changes.
At specialist review on 5 September 2018, Dr Giblin noted the left leg symptoms had improved and Mr Hattar was advised to have physiotherapy. He was advised he could return to work on light duties as from September 2018. After the accident on 21 June 2018, he was off work for three months because of back pain and neck pain, and then did a graduated return to work on light duties, first in the office and then light yard duties such as hosing, and returned to work on truck driving about 12 months after the accident.
He left Hansens at the end of October 2021 and moved to Melbourne in November 2021. He drives a cement truck there for Midway full-time.
He had temporary benefit from physiotherapy, which he continued on and off for a total of 12 months.
At one stage, he attended a chiropractor from which he derived temporary benefit. It was then decided he should try a gymnasium strengthening program with a trainer, but this increased back pain so was ceased. He did not have any therapy after this but continued taking Panadeine Forte.
Current symptoms
He has low back pain on bending and lifting, and soreness in the neck with sitting and driving the truck or playing the keyboard longer than 15 minutes at a time. Walking is OK. He is able to get out of the truck about every 20 minutes when he is driving between jobs, which is helpful for his back and neck pain.
He sleeps with a pillow between his legs to help back comfort. He has no arm and leg symptoms. His wife and children do the housework where he lives now, and there is no lawn or garden to look after. He does not drink alcohol. He does not smoke cigarettes, but he does vape.
Current treatment consists of Panadeine Forte. He takes two every day after work, as he cannot drive the truck with medication in his system.
Since he has moved to Melbourne, his GP is Dr Galeb at Broadmeadows.
Past history
He has had no previous accidents and no significant problems with neck, back, arms or legs. He may have been sore in the neck or back after a hard day’s work, but never required any treatment and it would settle with overnight rest.
He was fit and did weight training at the gym and was about 30kg heavier than at present because of his increased muscle mass.
He had had no operations before the motor vehicle accident.
He was under stress and was treated with Avanza prescribed by the GP. Not long ago, Pristiq was added to the Avanza.
He developed bilateral inguinal hernias, which he was told was from pressure from forcing micturition owing to prostate problems, and he had bilateral hernia repair surgery by Dr Das in August 2019. He is on a medication for his prostate problem.
Investigations
21 June 2018 – CT trauma series: Chest, aortogram, abdomen and pelvis – No acute injury or thoracic or lumbar spinal fracture.
CT brain and CT cervical spine – No acute intracranial pathology and no acute cervical spine fracture or dislocation, but ligamentous injury is not excluded.
The following imaging was brought to the assessment:
18 July 2018 – MRI lumbar spine.
31 August 2018 – Bone scan.
6 August 2018 – MRI scan cervical and thoracic spine.
7 February 2019 – MRI lumbar spine.
The reports from these investigations are in the Claimant’s Bundle.
I viewed the MRI scan of the lumbar spine dated 18 July 2018 which showed marked thinning of the L5/S1 disc from chronic degenerative changes and there was a posterocentral disc protrusion with a small anterior annular fissure at L5/S1 disc.
EXAMINATION
He was of tall slim build with height 180cm and weight 88.4kg. He stood erect and walked without a limp. He sat with some back discomfort evident after about 45 minutes of interview. He leaned against a wall to take his shoes off and sat to replace his shoes. Otherwise, he was able to remove top and trousers whilst standing. He transferred without difficulty on and off the examination couch.
Lumbar spine – Lordosis was slightly reduced. Flexion was one-half normal range with complaint of low back pain and left posterior thigh discomfort. Extension one-half normal range. Lateral flexion to the right two-thirds and to the left one-half, and this was consistent on repetitions. Rotation three-quarters bilaterally.
He could squat fully and walk on the heels and toes. Reflexes were symmetrical, plantar responses were both flexor. Power and sensation in the lower limbs were normal.
Supine straight leg raising: right equals left equals 60° with tight hamstrings but negative stretch test. No muscle spasm or guarding and no tenderness in the lumbar area. No guarding or tenderness in the thoracic area.
Thigh girth: right 45cm, left 44cm at 10cm above the superior patellar pole. Leg girth: right 38.5cm, left 38cm at 15cm below the inferior patellar pole.
Cervical spine – Normal contour. Full range of flexion and extension. He complained of some neck discomfort when he stands erect and pulls the chin inwards, but this is relieved by neck protraction with the chin jutting forward. Lateral flexion one-half bilaterally normal range and rotation full.
No muscle spasm or guarding and no tenderness in the cervical area. Reflexes, power and sensation in the upper limbs were normal.
Upper arm girth: right 28cm, left 29cm at 10cm above the elbow crease. Forearm girth: right equals left equals 29cm at 5cm below the elbow crease.
Right and left shoulders – No wasting. No tenderness. No swelling or deformity. There was full active range of movement in flexion bilaterally 180°, extension bilaterally 50°, external rotation bilaterally 90°, internal rotation bilaterally 90°, adduction bilaterally 40° and abduction was 170° bilaterally. Range of movement when not full was measured with a goniometer.
CONSISTENCY
Mr Hattar presented in a consistent manner.
THRESHOLD INJURY
Radiculopathy
Clause 6.138 of the Guidelines provides that to conclude that a radiculopathy is present, two or more of the following signs should be found:
(a)loss or asymmetry of reflexes
(b)positive sciatic nerve root tension signs
(c)muscle atrophy and/or decreased limb circumference
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The hospital discharge summary dated 22 June 2018 does not mention any neurological findings.
The GP records from Dr Zaki dated 23 June 2018 states that upper limb neurology was normal and lower limb neurology normal.
The treating specialist report from Dr Giblin dated 27 August 2018 indicates no significant peripheral neurological signs in the upper or lower extremities. Dr Giblin notes that the MRI of the lumbar spine confirmed disc desiccation at L4/5 and L5/S1 and felt that there was some slight effacement of the nerve roots at L5/S1, but was not convinced that there was any significant nerve root impingement.
The two IME reports of Dr Khan dated 17 September 2019, which diagnosed radiculopathy of the lumbar spine, do not indicate two or more of the above mentioned signs. On examination, Dr Khan found no radicular symptoms in the arms, and the upper limbs revealed normal neurology. There was no evidence at examination of cervical radiculopathy, and Dr Khan’s reports do not mention any signs which would indicate thoracic radiculopathy.
Lumbar spine
The injury to the lumbar spine is not a threshold injury, as an annular tear was demonstrated on MRI scan. There is no pre-accident imaging to compare it with and apart from temporary minor back discomfort after a hard day’s work, there was no evidence of significant or continuing symptomatology to indicate that the lumbar spine was the site of any significant problem pre-accident. There was no lumbar radiculopathy.
Cervical Spine
The injury to the cervical spine is a threshold injury. There was no disruption of connecting soft tissues on scans and there was no cervical radiculopathy.
Thoracic spine
The injury to the thoracic spine is a threshold injury as there was no evidence of partial or full rupture of connecting soft tissues on scan and no radiculopathy.
Right and left shoulders
There was no evidence of direct injury to right or left shoulders. There was no history given to the Panel examiner of referred symptoms from the cervical spine to the shoulders. However other examiners, for example Dr Smith (14 February 2019), Dr Khan (17 September 2019), Dr Breit (24 March 2020) and Assessor Truskett (1 April 2022), reported symptoms radiating from the neck to the trapezii. The Panel therefore accepts that referred symptoms from the cervical spine towards the upper extremities have existed at various times, and that the principle in Nguyen applies. However, the findings on the Panel re-examination of range of movement in all six planes in the right and left shoulders result in 0% whole person impairment for the right and left shoulders when assessed according to Nguyen.
PERMANENT IMPAIRMENT
Lumbar spine
There was dysmetria of lateral flexion which was reproducible when repeated but no guarding, no non-verifiable radicular complaints and no radiculopathy.
Dysmetria is a differentiator for DRE Lumbosacral Category II giving 5% whole person impairment.
Thoracic and cervical spine
The findings on examination of the cervical and thoracic spines of no guarding, no dysmetria, no non-verifiable radicular complaints and no radiculopathy place these spine regions in DRE Category I giving 0% whole person impairment.
Right and left shoulders
The right and left shoulders were not the site of direct injury and had active range of movement which resulted in no assessable permanent impairment applying the principle in Ngyuen.
Body part or system
AMA guides/ guidelines references chapter/ page/ table
Permanent yes/ no
Current percent WPI
Percent WPI from pre-existing or subsequent causes
Percent WPI due to motor accident
1
Lumbar spine
AMA 4, CH3, T72, P110. DRE II
Yes
5
0
5
2
Thoracic spine
AMA 4, CH3, T74, P111. DRE I
Yes
0
0
0
3
Cervical spine
AMA 4, CH3, T 73, P110. DRE I
Yes
0
0
0
4
Right shoulder (Nguyen)
Yes
0
0
0
5
Left shoulder (Nguyen)
Yes
0
0
0
The resulting combined WPI equals 5%.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[19] and Insurance Australia Ltd v Marsh.[20]
[19] [2021] NSWCA 287 at [40], [41] and [45].
[20] [2022] NSWCA 31 at [11], [21], and [64]
The Panel adopts the reasoning in David v Allianz Australia Ltd[21] that radiculopathy can be present at any time to establish a non threshold injury for the purposes of the MAI Act.
[21] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[22] that the Claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[22] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessor Oates in its reasons and adds the following further reasons.
Diagnosis
The Claimant sustained soft tissue injuries to the cervical spine and thoracic spine. There was evidence of a posterolateral disc bulge and annular fissure at the L5/S1 disc. There was no evidence of direct injury to the right or left shoulders, but rather referred symptoms from the cervical spine towards the upper extremities. These diagnoses are based on the documents relied upon by the parties in their respective bundles of documents (CB and IB), results of clinical examination and radiological investigations.
Causation
The Panel notes that the Claimant was a front seat passenger in a stationary vehicle at the time of the accident and that there was a substantial impact with the rear of that vehicle by a 4WD vehicle. The Claimant gave a history on re-examination by Assessor Oates on 11 October 2022 that the Claimant’s vehicle moved forward from impact and that he felt himself being thrown forward and back three times, and felt pain at the base of his neck, the interscapular thoracic back and lower back.
The Panel is satisfied that on the basis of the history of the accident provided to Assessor Oates and the clinical and treating records relied upon by the parties, that the circumstances of the accident was sufficient to cause the soft tissue injuries to the Claimant’s cervical spine and thoracic spine as well as the annular fissure in the L5/S1 disc. The MRI scan of the lumbar spine performed after the accident on 18 July 2018 revealed a posterolateral disc bulge and the annular fissure at the L5/S1 disc. There is no pre-accident imaging in evidence suggesting that these issues were pre-existing, and the evidence does not establish continuing symptomatology in the lumbar spine to indicate that the Claimant had significant problems in that region before the accident.
Threshold injury
Cervical spine
This area was affected by soft tissue injury, but not an injury to the nerves or a complete or partial rupture of tendons, ligaments, menisci, or cartilage. The Panel is not satisfied that at least two of the clinical signs of radiculopathy specified in Clause 5.8 of the Guidelines were found on examination of the Claimant at any time following the accident. The injury to the cervical spine is a threshold injury.
Thoracic spine
This area was affected by soft tissue injury, but not an injury to the nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The Panel is not satisfied that at least two of the clinical signs of radiculopathy specified in Clause 5.8 of the Guidelines were found on examination of the Claimant at any time following the accident. The injury to the thoracic spine is a threshold injury.
Lumbar spine
The Panel is satisfied that the accident caused the annular fissure at the L5/S1 disc. The injury to the lumbar spine is not a threshold injury.
Permanent impairment
The Panel has determined that the degree of permanent of the Claimant as a result of the injury caused by the accident is as follows:
a) Cervical spine - 0%
b) Right shoulder (Nguyen) – 0%
c) Left shoulder (Nguyen) – 0%
d) Thoracic spine - 0%
e) Lumbar spine - 5% (with no reduction for pre-existing or subsequent causes)
CONCLUSION
The Certificate of Assessor Truskett dated 1 April 2022 is revoked. A replacement Certificate is attached at the commencement of these Reasons.
0
5
0