Hulks v Allianz Australia Insurance Limited
[2023] NSWPICMP 675
•15 December 2023
| DETERMINATION OF REVIEW PANEL | |||
| CITATION: | Hulks v Allianz Australia Insurance Limited [2023] NSWPICMP 675 | ||
| CLAIMANT: | Andrew Hulks | ||
| INSURER: | Allianz Australia Insurance Limited | ||
| REVIEW PANEL | |||
| MEMBER: | Terence Stern OAM | ||
| MEDICAL ASSESSOR: | Alan Home | ||
| MEDICAL ASSESSOR: | Michael Couch | ||
| DATE OF DECISION: | 15 December 2023 | ||
| CATCHWORDS: | MOTOR ACCIDENTS – Review of determination of injuries as threshold and non-threshold; assessment by Medical Assessor (MA) certifying that two injuries, both soft-tissue, were threshold injuries; Held – revocation of determination by MA that a left shoulder rotator-cuff tear was a non-threshold injury, for the reason that the Panel certified that the left shoulder rotator-cuff tear was not caused by the accident and that any incidental injury to the left shoulder was a threshold injury; section 5D Civil Liability Act 2002 considered; Peet v NRMA Insurance Limited applied; Wallace v Kam followed. | ||
| DETERMINATIONS MADE: |
CERTIFICATE OF DETERMINATION 1. The Panel confirms that part of the certificate of Medical Assessor Jonathan Herald, as certified that: · left knee soft tissue injury, and · left arm soft tissue injury are threshold injuries for the purposes of the Motor Accident Injuries Act 2017 (the Act). 2. The Panel revokes so much of the certificate of Medical Assessor Jonathan Herald as certified that: · left shoulder rotator cuff tear is not a threshold injury for the purposes of the Act. 3. The Panel certifies that the left shoulder rotator cuff tear was not caused by the accident and any incidental injury to the rotator cuff is a threshold injury. | ||
STATEMENT OF REASONS
INTRODUCTION
Andrew Hulks (the claimant) was born in June 1971, and he was injured in a motor vehicle accident on 1 November 2021.
Medical Assessor Jonathan Herald assessed the claimant (misdescribed on the front sheet as ‘Sylvia Thompson’) as having sustained soft tissue injuries to the left knee and left arm, both threshold injuries for the purposes of the Motor Accident Injuries Act 2017 (the Act).
The claimant lodged an application for a Review and the delegate of the President, having determined that Medical Assessor Herald’s assessment of the left shoulder was incorrect in a material respect, referred the said assessment for Review by a Panel, pursuant to s 7.26 of the Act.
LEGISLATIVE FRAMEWORK
JURISDICTION
This claim is governed by the provisions of the Act. This legislation provides a scheme of compulsory third-party insurance for all motor vehicles registered in New South Wales and a scheme of statutory benefits and compensation by way of lump sum damages for persons injured in motor accidents in New South Wales.
A ‘threshold injury’ is defined in the Act ss 1.6(1)(a) and 1.6(2):
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury
(2) A soft tissue injury is (subject to this section) an 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.”
The insurer’s application for review is made under s 7.26 of the Act. Pursuant to s 7.26(5A) the Panel is to be constituted of a Member of the Personal Injury Commission (the Commission) and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original Medical Assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.
CAUSATION
Guidelines
With respect to causation, the Motor Accident Injuries Guidelines (the Guidelines) provide:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Commission) in considering such issues.
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 nonmedical informed judgement.
6.7 There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
Legislation on causation
Section 5D of the Civil Liability Act 2002 (CLA) provides:
“(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Case law on causation
The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd [2015] NSWSC 558, where Hidden J notes:
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
Hidden J refers to the High Court’s judgement in Wallace v Kam [2013] HCA 19, where Allsop P explained the tests of causation under s 5D(1)(a) of the CLA, at [16]:
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”
The ‘but-for’ test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
THE ASSESSMENT UNDER REVIEW
The Panel summarises the Certificate and Reasons of Medical Assessor Herald of 3 May 2023 by reference to paragraph number:
[2]Medical Assessor Herald assessed:
· Left shoulder;
· Left arm; and
· Left knee.
[3]-[4]Medical Assessor Herald summarised the submissions by the claimant and the insurer.
[8]-[9]Medical Assessor Herald set out the pre-accident history [8] and the history of the accident itself [9]. Medical Assessor Herald noted that the claimant’s vehicle was stationary at lights, rear-ended from behind, there was minor damage to the Suzuki which the clamant was in, the airbags did not deploy, and police and ambulance were not called. Over the subsequent weekend he developed increasing left shoulder and left knee pain (the left knee had hit the glove box and the corner of the door during the accident and now seemed to be giving way).
[10]Medical Assessor Herald set out the history of the symptoms and treatment after the accident. The claimant had seen his general practitioner (GP). He was given Voltaren, had an allergic reaction to it, went to Mount Druitt Hospital, developed a blood clot in his left arm while in Hospital, took some time to recover, and during this period had some symptoms of ulnar nerve, and of cubital tunnel symptoms. Following this, there was concern about the claimant’s left knee giving way and he was also administered an ultrasound of his shoulder. Initially, it was thought he had a frozen shoulder, but a subsequent ultrasound showed a partial victus-tear which was subsequently treated with subacromial injection, cortisone and local anaesthetic. His latter condition gradually recovered, but his knee continued to give way.
Medical Assessor Herald conducted a clinical examination, the results of which are set out at [14]-[15].
Medical Assessor Herald summarised the imaging on page 5, including 2 November 2021 ultrasound left shoulder – supraspinatus tendinosis and possible adhesive capsulitis.
Medical Assessor Herald set out his diagnosis and reasons at [21], noting that the claimant’s condition was consistent with a partial-thickness rotator cuff tear of the left supraspinatus tendon. The claimant’s only ongoing symptoms seemed to be related to patellofemoral maltracking and possible chondromalacia patella.
At [22], Medical Assessor Herald concluded:
“Of all the injuries identified, the only non-threshold injury would be the left shoulder rotator cuff tear which was inadequately diagnosed in the first ultrasound which diagnosed adhesive capsulitis or frozen shoulder, and it was most likely incorrect and the second ultrasound was more likely to be correct in identifying a partial-thickness rotator cuff tear. This, however, has subsequently healed over time. His ongoing problems include his patellofemoral maltracking and chondromalacia patella which is a threshold injury.”
Medical Assessor Herald concluded at [24] that the left shoulder rotator cuff tear was not a threshold injury.
The insurer’s submissions of 1 December 2023
The Panel reproduces the insurer’s substantive submissions to Medical Assessor Herald of 1 December 2022:
“2. Subject accident
2.1. The circumstances of the subject accident are such that the Claimant’s vehicle was stationary at a red traffic signal when it was rear-ended by the Insured vehicle… The Claimant was a passenger.
2.2. The Insurer highlights that the impact itself so minor that the Claimant was not aware that an accident had even occurred, a position elucidated by the Claimant in his Application for Personal Injury Benefits … ‘I thought the driver [of the Claimant’s vehicle] had taken her foot off brake and moved forward, but then she said we had been hit’ (A1, p20).
2.3. The impact was not sufficient to cause the airbags to deploy, nor were Police or Ambulance Officers called to attend (A1, p20). …the accident was not reported to Police for almost one week and … described as a ‘noninjury/non-fatal’ incident and no injury was reported with regard to the Claimant (R5).
2.4. In support of the position that the incident was minor, the Insurer relies on the photograph of the Claimant’s vehicle taken following the accident which demonstrates minimal, if any, damage was sustained (R11).
2.5. The Insurer further highlights the Claimant returned to work as a Care Support Worker after only a minor period of absence, itself a functionally demanding and at times physically arduous role, denoting that he shortly regained a reasonable level of capacity which he has maintained to date (A1, p20).
2.6. … the Insurer submits the [accident] and subsequent injuries [were] relatively minor in nature, noting emergency services did not attend, he was able to self-extricate after the accident, the airbags did not deploy, he was not so much as aware that an accident had occurred, he has not required hospitalisation at any time and has required limited treatment following.
3. Minor Injury
3.1. The Insurer submits that the physical injuries sustained in the subject accident are minor for the purposes of MAIA.
3.2. Section 1.6(2) of MAIA defines a minor injury as follows:
1.6(2) A soft tissue injury – an injury to tissue that connects supports or surrounds other structure 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.
3.3. The Claimant refers a number of physical injuries arising as a result of the subject accident which the very action of making the subject application infers that he alleges are ‘non-minor’ injuries. …he has not produced substantive submissions that would substantiate his claim that these injuries fall outside the definition of a minor injury extracted above (A1).
3.4. …the Claimant has not produced any medical evidence after February 2022. There is nothing on the available evidence to indicate that he has sought any treatment since March 2022 or has otherwise been diagnosed with a non-minor injury…
3.5. …the Insurer submits that the available evidence supports that the Claimant [had] sustained soft tissue injuries to his left shoulder and left knee…
3.6. As the Claimant’s injuries satisfy the definition of ‘soft tissue injuries’ only, s 1.6(1) confirms that he [had] sustained minor injuries for the purposes of MAIA.
…
Pre-Existing Complaints
3.8. Whilst on his claim form, the Claimant denied pre-existing injuries and conditions to his body which overlapped with injuries alleged as a result of the subject accident (A1, p20), the Insurer highlights that the Claimant underwent a left arm Venous Doppler ultrasound at 12.30pm on the day of the accident, only 90 minutes prior to the accident occurring at 2pm (A1, p85; A1, p20).
3.9. This study was requested as the Claimant had pain and bruising in his left arm (A1, p85; A1 p88) and is notable as he now alleges overlapping injuries to his left upper limb as occurring in the subject accident (A1).
3.10. Further, the Insurer queries whether there is a pre-existing left shoulder injury, highlighting the record of ‘chronic shoulder pain’ (emphasis added) on consultations dated 8 November 2021 and 15 November 2021 (R8).
3.11. The Insurer refers to cl 5.6(a) of the Guidelines wherein a Medical Assessor is directed to consider the relevant pre-accident history and pre-existing conditions when making determinations for the purposes of a minor injury dispute.
3.12. It is the Insurer’s submission that at least some of the Claimant’s ongoing pain in the left arm, if any, is related to the mild oedematous changes observed on left elbow imaging (A1, p88) and that the subject accident has resulted in, at most, minor injuries that have long since resolved.
3.13. Noting the Claimant’s failure to disclose this history, the Insurer requests any history subjectively taken from this Claimant and/or weight placed on the medical conclusions reached by his GP be cautiously considered as it is unlikely to be full or accurate.
Alleged Injuries to the Left Shoulder and Left Arm
3.14. Whilst the Claimant alleges separate injuries to his left arm and left shoulder as a result of the accident in the subject Application (A1), it is highlighted that:
a) Until this Application, the Claimant had not complained of an independent injury to his left arm, including on his Application for Personal Injury Benefits … (A1, p20).
b) The totality of medical evidence contains no diagnosis of an independent injury to the left arm.
…
3.16. The Application also lists a ‘derived’ injury to the cervical spine, though the Claimant [had] never previously indicated that a cervical injury was sustained nor has this been diagnosed by treating practitioners at any time. … the [insurer submits] that this injury is unsubstantiated and is more appropriately addressed in the context of the left shoulder…
3.17. …the Claimant has categorised the intrasubstance tear as a left knee injury, the Insurer accepts that this is an error and addresses it as it relates to the left shoulder below.
3.18. …the Insurer accepts that the intrasubstance tear, if substantiated, accepted by a Medical Assessor and considered related to the subject accident, would satisfy the definition of a non-minor injury, however the Insurer submits that any left shoulder injury sustained in the subject accident, if any, was soft tissue in nature.
3.19. …the effects of this injury are likely to have long resolved and are not the cause of ongoing complaint, in light of the pre-accident complaints…
a) The accident itself was minor, the Claimant has not required hospitalisation at any time since and has sought only minimal treatment to date, of which has remained wholly conservative.
b) All clinical examinations that have been conducted resulted in findings that satisfy the definition of a minor injury, being range of motion limited by pain.
c) The Claimant presented to his GP, Dr Simon Ng, on 6 November 2021 and 17 November 2021 wherein the diagnosis of supraspinatus tendinosis and bursitis was confirmed (R8). It is reiterated that this is a minor injury for the purposes of MAIA.
a) Critically, the Insurer highlights that the Claimant’s GP consistently reported throughout consultations in November and December 2021 that there was ‘no injury’ and specifically, ‘No neck pain. No back pain. No shoulder pain…’ (emphasis added) (R14).
b) Subsequent consultations clarify that the Claimant has attended throughout 2022 with no mention of accident-related complaints (R14).
c) Further consistent with a temporary soft tissue injury that has since resolved, the Claimant reported benefit in function and pain only a limited number of physiotherapy sessions (A1, p94).
d) As a result, on 8 December 2021 the Claimant attended his GP and reported improvement in his left shoulder. He returned to unrestricted hours in his role as a Care Support Worker (R8) and has maintained this capacity to date.
e) He demonstrated almost full range of active shoulder flexion and abduction on 13 March 2022 (R12) and full and unimpaired range of motion on examination on 28 April 2022 (R13).
f) Consequently, the Claimant returned to his pre-accident role, hours and duties and was discharged from physiotherapy in April 2022 (R13).
3.20. The Insurer submits that the Claimant has made a complete recovery as consistent with the determination that he sustained only a minor and temporary soft tissue aggravation injury to the left shoulder.
3.21. As to imaging, a left shoulder ultrasound taken on 2 November 2021 (A1, p87) reported findings consistent with a minor injury, that is, there was no evidence of fracture, rupture of tendons, ligaments, cartilage or injury to nerve roots so as to satisfy a non-minor injury determination.
3.22. Whilst it is acknowledged that an intrasubstance tear was mentioned on a subsequent ultrasound (A1, p90), the Insurer submits that this has not [been] verified on further imaging. …this diagnosis was made in error as it is not reflected in contemporaneous reporting by the physiotherapist (R9-10, R12-13).
3.23. In all, the Insurer submits that the concurrence of medical evidence supports the finding that any injury sustained to left upper limb in the subject accident was soft tissue in nature, of which is minor for the purposes of MAIA.
…
Injury to Left Knee
…
3.26. …the Insurer highlights that the available medical evidence supports that the Claimant has sustained a soft tissue injury to the left knee only, highlighting that:
a) An ultrasound taken on 2 November 2021 revealed a small joint effusion (A1).
b) The Claimant’s GP diagnosed left knee effusion on consultation on 6 November 2021 and again on 17 November 2021 (R8), whereas the physiotherapist diagnosed left meniscal irritation (R9-10). Both of these diagnoses satisfy the definition of a minor injury for the purposes of MAIA.
c) …it was described as not significant on subsequent imaging (A1, p94).
d) …the Insurer highlights that the Claimant’s GP consistently reported throughout consultations in November and December 2021 that there was ‘no injury’ and specifically, ‘…No elbow pain. No knee pain…’ (emphasis added).
e) Consistent with the finding of a soft tissue minor injury, the complaints were temporary and were improved with minimal conservative physiotherapy (R9-10; A1, p94).
f) Most recently, the Claimant demonstrated range of motion consistent with the uninjured right knee on consultation with his physiotherapist on 13 March 2022 (R12).
g) With regard to the available GP records, the Insurer highlights that the Claimant has not reported any accident-related complaints in recent time (R14).
3.27. Paying heed to the above, the Insurer is satisfied that an Assessor will reasonably conclude on the limited evidence available, notably absent of recent medical records that would support that there any ongoing complaint or a non-minor diagnosis, that any injury to the left knee sustained in the subject accident was soft tissue in nature and satisfies the definition of ‘minor’ for the purposes of the Act.”
Claimant’s submissions in reply of 18 July 2023
The Panel reproduces the relevant parts of the claimant’s submissions of 18 July 2023:
“Failure to attend to general provisions of assessment
3. The insurer submits that Assessor Herald erred in his assessment of the claimant’s left shoulder for not having based it upon the evidence available.
4. Assessor Herald has stated in his certificate, on page 3 of his report, that he has reviewed the documentation provided in the application and the reply. The Assessor also refers to the insurer’s submissions in detail on page 2 of his report.
5. The claimant submits that the insurer’s assertion that the Assessor has not based his decision on the evidence available is unfounded. The Assessor is not required to set out and discuss each piece of evidence individually and in detail: Golijan v Motor Accidents Authority of New South Wales [2012] NSWSC 1106. It is enough that the Assessor states he has considered the evidence available to him, which he has done so.
6. In relation to the insurer’s specific submission that the Assessor has failed to properly account for any pre-accident conditions, the claimant again notes that Assessor Herald has stated in his report that he has considered the evidence before him which includes the claimant’s clinical history and preaccident conditions (if any).
7. In any event, should the Assessor have felt that he needed to specifically address each individual document beyond stating that he had considered them in his assessment — which he is not obliged to do — the claimant submits that there is no pre-accident history that, if addressed, would materially change the outcome of his assessment as regards the left rotator cuff tear.
8. In relation to the insurer’s specific submission that the Assessor failed to question the claimant when advised he was uncertain which shoulder was injured, the claimant submits that this is not an inconsistency which was required to have been put to the claimant, nor is it an inconsistency at all. Not being able to recall which shoulder was injured is not inconsistent with the evidence before the Assessor.
9. The claimant submits that Assessor Herald adhered to the general provisions for assessment and that this ground has not been made out by the insurer.
Failure to adequately consider causation and duty to give reasons
10. In the absence of material evidence in support of the insurer’s contention that the claimant suffered the injury at any time other than the subject accident, it was reasonable for Assessor Herald make the findings that he did regarding causation. It must be accepted that the claimant sustained the injury in the subject accident.
11. The claimant submits that causation was not a live issue for the following reasons, in response to the insurer’s submissions at para 5.10:
a. The Assessor to listed ‘aggravation of degenerative changes’ as referred for assessment because the claimant’s solicitors did so in their original application. This is not conclusive of the existence aggravation of degenerative changes — the Assessor is also required to consider the material before him in coming to his decision, which he is stated to have done so on page 2 of his report.
b. The claimant agrees that Assessor Herald referred to the insurer’s argument that there are ‘features of pre-existing left shoulder injury which has been described as chronic’ however notes that this argument is based on consultation notes post-dating the accident date. The claimant submits it is reasonable, in the absence of any clinical evidence before the Assessor to the contrary, for the Assessor to have found against the insurer.
c. The claimant not being able to recall which shoulder may have been problematic in the past is irrelevant to causation. The Assessor had the benefit of clinical records before him to satisfy himself as to this question.
12. In relation to the insurer’s submission that Assessor Herald was required to discuss the ‘conflicting evidence’ of the claimant’s two ultrasound scans, the claimant submits that the Assessor has given sufficient reasons as to his acceptance of the second scan’s accuracy in identifying the tear.
13. The Assessor physically examined the claimant and reviewed the material before him. In light of his examination and review, it was open to him to find that the claimant suffered a partial-thickness rotator cuff tear. The Assessor notes that the claimant’s condition is consistent with same on page 5 of his report.
14. Further, it was not open to the Assessor to conclude that the tear was not caused by the subject accident in the absence of any evidence before him indicating that the claimant sustained it after the first ultrasound scan on 2 November 2021.
15. The weighing and balancing of the evidence concerning causation of injury was a matter for the Assessor in the exercise of his statutory duty to form and give his own opinion on the medical questions referred to him: Wingfoot Australia Pty Ltd v Kocak (2013) 252 CLR 480.
16. Lastly, the claimant submits that no weight should be given to the insurer’s submission that there is no specific paragraph or heading in the Assessor’s certificate dealing with causation. Such paragraphs or headings are not necessary even when causation is a live issue, which the claimant submits it is not in this case.
Conclusion
17. For the reasons above, the claimant submits that there is no reasonable cause to suspect that material errors have been made in Assessor Herald’s certificate.
18. Assessor Herald has correctly identified that the claimant’s left shoulder rotator cuff tear falls outside the definition of a threshold injury under s 1.6 of the Act.”
THE REVIEW PANEL’S EXAMINATION OF THE CLAIMANT OF 5 DECEMBER 2023
On 5 December 2023, the claimant was examined by Medical Assessor Alan Home.
Past medical history
The claimant reports no prior history of left shoulder or left knee pain.
He had experienced pain in the cubital fossa at his left elbow in the days leading up to the subject accident. This complaint arose due to several failed attempts at intravenous cannulation during a previous hospital visit. Consequently, on the morning of the motor vehicle accident, he underwent a doppler ultrasound of the left elbow to exclude a local vein thrombosis. One week after the subject accident, he also underwent an ultrasound examination of the left elbow and ulna nerve to exclude ulna nerve damage.
He has no prior history of left shoulder or left knee complaints.
He has a pre-diabetic metabolic disorder managed with Diabex, one tablet daily.
Details of subject accident
At the time of the accident, the claimant was the front seat passenger in a Suzuki two door hatchback. He was being driven by his partner’s daughter towards his own vehicle, that was in need of repairs. He explains that the NRMA had recommended that there was damage such that the car needed to be towed. He was returning to the site to deliver a spare set of keys to the NRMA officer to pass onto the tow truck driver.
During the journey, he was the seat-belted front seat passenger in a Suzuki two door hatchback, driven by his partner’s daughter along Bungaraby Road at the intersection of Balmoral Road in Blacktown. He states that their car was stationary.
He recalls that he felt a slight judder in the car. He thought that his partner’s daughter had taken her foot off the brake, allowing the car to roll forward and then reapplied the brake forcefully.
However, when he turned to his partner’s daughter, she advised him that they had been hit from behind.
He recalls that his partner’s daughter alighted from the car to exchange details with the other driver. She then returned to the vehicle, and they drove onto the destination.
Subsequently, his partner’s daughter drove them home.
History of symptoms and treatment
He recalls that on the evening of the crash, he developed a local pain at the medial aspect of his left knee. He explains that due to the confined cabin of the Suzuki hatchback, his left knee had been positioned between the passenger’s side door and the dashboard. After the impact he had experienced a mild contusion to the medial aspect of his left knee.
He also recalls experiencing pain at the top of his left shoulder that evening. He indicates the trapezius muscle, between the base of his neck and left shoulder, as the site of pain.
He confirms that he attended his general practitioner the day after the accident and was then referred for ultrasound examination of the left shoulder and left knee.
The scans were performed at MD Imaging on 2 November 2021.
The ultrasound examination of the left shoulder demonstrated supraspinatus tendinosis and subacromial bursitis with some limitation of motion, thought to be a sign of early capsulitis.
The ultrasound of the left knee demonstrated a small joint effusion. He returned to his general practitioner on 6 November 2021 when a diagnosis of supraspinatus tendinosis and bursitis was made.
He confirms that he underwent a second ultrasound examination on 16 December 2021.
At that examination, there was a documented intrasubstance tear anteriorly measuring 7mm, and at a dynamic assessment, there was bunching at 60° of abduction.
He cannot recall undergoing an ultrasound guided injection to the left shoulder on 18 December 2021, nor his response to the injection.
He attended a physiotherapist on 21 December 2021. An initial diagnosis of adhesive capsulitis was considered.
He tells me that the physiotherapist excluded that diagnosis after several treatment sessions, as his range of motion improved and, according to his therapist, exceeded that anticipated in a case of capsulitis.
Thereafter, he was treated for bursitis and supraspinatus tendinopathy.
He states that his physiotherapy treatment continued until late April 2022, by which date he had regained full motion at the left shoulder.
He recalls that funding for the physiotherapy treatment ceased at approximately six months post-accident.
He recalls that he may have attended one or two further sessions of therapy funded through his health insurer.
There has been no treatment since mid-2022. He had also received some physical therapy directed towards his left knee complaints, including advice regarding home exercise.
Current symptoms
The claimant states that he experiences occasional mild discomfort to the left shoulder. He has regained a full range of shoulder motion. He is now able to perform overhead activities and heavy lifting.
There are no symptoms in the cervical spine.
There are no symptoms at the right shoulder.
At the left knee, he describes no residual pain symptoms. He said that his left knee sometimes feels unstable and wobbles, but he does not fall over. He feels that his left thigh is slightly weaker than the right.
Functional capacity and reported tolerances
He is right hand dominant.
He reports a normal tolerance for sitting, standing, walking, forward bending at the waist, crouching, kneeling and stairclimbing. He is able to lift moderate weight. He is careful to avoid very heavy lifting.
Vocational history
He has resumed work as a carer. He says that his work is primarily involves driving clients to various appointments and providing social support for patient with mental health complaints. He says that he does not engage in heavy domestic chores, and he is not required to perform transfers or lifting of clients.
CLINICAL EXAMINATION
The claimant is a 52-year-old standing at 181cm and weighing 103kg with a heavy build.
Cervical spine
Examination of the cervical spine reveals normal spinal curvature. There is no muscle spasm. There was a full range of active spinal motion in all planes.
Shoulders
At the right shoulder, there is no abnormality to inspection or palpation. Active motion is measured by goniometer methods as follows:
| Shoulder Movements | Active ROM Measured RIGHT ° |
| Flexion | 180 |
| Extension | 50 |
| Adduction | 50 |
| Abduction | 150 |
| Internal Rotation | 90 |
| External Rotation | 90 |
At the left shoulder, active motion is measured by goniometer methods as follows:
| Shoulder Movements | Active ROM Measured LEFT° |
| Flexion | 180 |
| Extension | 50 |
| Adduction | 50 |
| Abduction | 150 |
| Internal Rotation | 90 |
| External Rotation | 90 |
[TR1]
Impingement signs are bilaterally negative. There is no pain declared with resisted movements across the rotator cuff. There is MRC grade 5/5 power of resisted movements across the rotator cuff. There are no clinical signs of shoulder instability on either side.
Left arm
There is no abnormality on examination of the left arm. Distally, there was a full range of active pain free motion at the left elbow and left wrist. There is no neurovascular abnormality.
Left knee
On examination of the left knee, there is no joint effusion. There is no muscle wasting in the thighs. The thighs measure symmetrically at 54cm. There is mild anterior joint crepitus. Active motion is measured at 0° extension to 130° flexion, symmetrical with the right side. There is no AP or lateral instability.
However, the patella is mobile within the patellofemoral groove. Clarke’s manoeuvre is negative, that is compression of the patella against the femur during quadriceps contraction does not reproduce anterior knee pain.
DIAGNOSIS AND CAUSATION
The claimant was involved in a motor vehicle accident in which he was the front seat belted passenger.
His history is that his left knee was positioned between the edge of the passenger’s side door and the dashboard in a confined position. He was wearing a seatbelt over his left shoulder.
The vehicle in which he was travelling was struck from behind. He was unaware of the accident and had rather thought that the driver of his vehicle had applied her brakes forcibly after rolling forward.
There is early documentation of pain in the left knee and left shoulder. He attended his general practitioner the day after the accident with these complaints. He was sent for ultrasound examination of both joints.
The Medical Assessor was satisfied that he sustained a contusion to the left knee. The diagnosis is of mild knee joint synovitis, which has since resolved.
At the Panel assessment, there is a finding of increased lateral laxity at the left patellofemoral joint, which appears constitutional. CT scan imaging of the knee demonstrated no abnormality.
The further diagnosis is a soft tissue injury to the patella femoral joint, which has resolved.
At the left shoulder, the Panel notes that the claimant reported pain on the day after the accident. The claimant was wearing a seatbelt over his left shoulder and it is plausible that the accident could cause a contusion to the left shoulder from the seat belt impact. This would be consistent with the subsequent ultrasound scan evidence of mild bursitis.
The Panel notes that a second ultrasound of the shoulder demonstrated an intrinsic tear in the supraspinatus tendon. The medical members of the panel are aware that such tendon abnormalities are very common findings in ultrasound investigations in the general population and are not necessarily traumatic in aetiology.
The accident as described could not reasonably cause damage to the supraspinatus tendon or other rotator cuff structures, as the shoulder was positioned by his side at the time of the impact.
There was no medical or other evidence of an abnormal sudden abduction or traction force on the shoulder of a kind that would be required to cause a rotator cuff tear. The claimant’s history is that he was wearing his seatbelt at all times. The impact was from the rear and not the side.
A supraspinatus tear could not arise from a rear end impact in which the shoulder is not forcibly abducted against resistance or subjected to a severe transmitted force with the arm either abducted or flexed away from the body. The supraspinatus tendon is not engaged with the arm dependent by the side and therefore a traumatic tear is medically implausible.
The Panel finds that in these circumstances, the accident cannot be considered even a negligible cause of the supraspinatus tear.
The Panel notes that there is a disparity between the initial ultrasound findings and those documented in December 2021. The Panel has formed the view that there is likely underlying supraspinatus tendinosis. Accepting that the second ultrasound is correctly reported, as accepted by Assessor Herald, the Panel do not find that this tendon tear represents a non-threshold injury for the reasons set out at paragraphs [70] to [73].
The Panel finds that the claimant did suffer a left shoulder subacromial bursitis condition caused by the subject accident.
The Panel note that symptoms improved rapidly following a subacromial corticosteroid injection, which is also consistent with the diagnosis of subacromial bursitis.
The Panel disagree with the finding of Medical Assessor Herald with regard to causation. Dr Herald has not provided reasons as to how the diagnosis of a supraspinatus tear was caused by the subject accident. Indeed, Medical Assessor Herald had not addressed the issue of causation in his Certificate.
The Panel find that the claimant did not suffer a separate injury to the left arm in the subject accident.
There were no subsequent complaints of left arm pain or paraesthesia except for that arising from a separate injury at the level of the left elbow due to a failed attempt at intravenous cannulation a week prior to the subject accident.
The left elbow condition was subject to ultrasound examination prior to the subject accident to investigate that condition.
Summary of injuries caused by the accident:
· left knee contusion, synovitis, patellofemoral contusion, and
· left shoulder soft tissue injury, subacromial bursitis, underlying cuff tendinopathy.
Summary of injuries NOT caused by the accident:
· left arm.
THRESHOLD INJURY
Section 1.6(2) of the Act states:
“A soft tissue injury is (subject to this section) an 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.”
Schedule 1 [2] clause 4 of the Motor Accident Injuries Regulation 2017 states:
“1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.”
The Panel adopts the reasoning in David vs Allianz Australia Ltd (2021) NSWPICMP 227 at [84]-[104], that radiculopathy can be present at any time to establish that the injury is not threshold for the purposes of the Act.
Left knee
The injuries listed above are threshold injuries. The Medical Assessor was satisfied that the injuries meet the definition of soft tissue injuries.
There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci, or cartilage.
Left shoulder
The injuries listed above are threshold injuries. The Medical Assessor was satisfied the injuries meet the definition of soft tissue injuries.
There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci, or cartilage.
OTHER MEDICAL EVIDENCE
The Panel notes the summary of the diagnostic investigations, as recorded by Medical Assessor Herald at [20]:
Date Investigation Result 28/09/2021 Ultrasound right elbow Acute on chronic lateral epicondylitis. 01/11/2021 Ultrasound left arm No deep or superficial thrombosis. 02/11/2021 Ultrasound left shoulder Supraspinatus tendinosis and possible adhesive capsulitis. 02/11/2021 Ultrasound left knee Small joint effusion. 08/11/2021 Ultrasound left elbow Mild oedematous change over the ulnar nerve. 07/12/2021 CT scan left knee No fracture identified, no joint effusion. 16/12/2021 Ultrasound left shoulder Supraspinatus tendinosis with intrasubstance
tear, partial thickness in nature18/12/2021 Injection left shoulder Subacromial injection of cortisone and local anaesthetic. 31/12/2021 CT scan lumbar spine L4/5 and L5/S1 disc prolapse and associated degenerative changes. 10/01/2022 X-ray lumbar spine No fractures identified.
Statement of Sarah Hooper of 19 January 2022
The Panel had available the statement of Sarah Hooper of 19 January 2022:
“…
21. About 2pm, I was travelling in an easterly direction along Bungarrabie Road at Blacktown and approaching the intersection of Balmoral Street in the number two lane at a speed of 55 kilometres per hour. At the time the traffic flow was medium in the same direction I was travelling and medium in the other direction. At the time it was day and the weather conditions were fine and the roadway was dry. I was wearing a seat belt. I was not using a mobile telephone. I did have the car radio on and I was not distracted by anything. Andrew Hulks was seated in the front passenger seat and he also had his seat belt on.
22. I approached the intersection of Balmoral Street and there was a red light and stopped behind two vehicles in the same lane. There were vehicles also stopped in the other two lanes. I was stationary and looking directly ahead and I was stationary for about one minute when I felt a big impact with the rear of my vehicle. I had my foot on the brake at the time. My vehicle did not impact with the vehicle in front. I recall that at the time of the accident the right hand turn arrow had turned green.
23. The vehicle that I collided with was silver 2001 Toyota Avalon sedan bearing New South Wales registration number DZU-89R. The vehicle was driven by a Himanshu Gupta.
24. After the accident I got out of my vehicle and the other driver and he said he was sorry and he did not know what happened. There were no other persons in his vehicle.
25. The Police and Ambulance were not contacted because I just wanted to get to Andrews car because we were meeting the tow truck. I exchanged details with the other driver and I then got back into my vehicle and left the scene. I was at the scene for about 5 to 10 minutes.
26. My vehicle sustained damage to the rear and bumper. The other vehicle sustained damage to the bumper. I do not have photographs of the damage.”
The Panel had available photographs of the vehicle in which the claimant was travelling, taken by Sarah Hooper, taken on 19 January 2022.
Accident investigation report of M & A Investigations dated 7 January 2022
The panel noted the report of M & A Investigations dated 7 January 2022. It noted the attached statements, photos, and other material.
The Panel noted that the accident was clearly not a major one but takes into account the statement of the driver, Sarah Hooper, where she says that she felt “…a big impact with the rear of my vehicle.”
Clinical notes of the Plumpton Medical Centre
The Panel had available the clinical notes pertaining to the claimant of the Plumpton Medical Centre.
The Panel noted the following entries:
“Surgery consultation
Recorded by: Dr Saw Kywe Visit date: 02/11/2021
Recorded on: 02/11/2021
US LEFT ARM VEINS 01/11/2021 Reference: 262712
VENOUS DOPPLER LEFT ARM
Clinical Notes: Left cubital fossa? blood clot.
Findings:
No deep or superficial venous thrombus identified in the major veins
of the left upper limb.
went to MD hospital for chocking feeling last Thu
cannula unsuccessful L forearm
L forearm -bruise+
nil erythema
adv to keep and eye
return for rev if symptoms persists,he develops pain or erythema
L knee hit with the car dashboard yesterday due to MVA
he was on front seat
his step daughter was driving
a car hit from rear
weight bearing fine
L knee tenderness medial joint line and posterior
limitation of ROM
L shoulder pain since yesterday
L shoulder limitation of ROM
Reason for visit:
Follow up
L knee and L shoulder pain
Actions:
Imaging request printed to MD Imaging: US L knee. (L knee hit with the car dashboard yesterday
L knee tenderness medial joint line and posterior
)[TR2]
Imaging request printed to MD Imaging: US L shoulder. (L shoulder pain since yesterday
nil injury
L shoulder limitation of ROM
)[TR3]
Medical Certificate given.
Surgery consultation
Recorded by: Jiann Estigoy Visit date: 02/11/2021
Recorded on: 02/11/2021
Actions:
Letter printed.
Letter written re. Fax request to Blacktown/Mt Druitt Hospital.
Surgery consultation
Recorded by: Dr Win Moe Visit date: 02/11/2021
Recorded on: 02/11/2021
ph conult
for ultrasound reports
Diagnosis:
Supraspinatus tendinosis
Subacromial bursitis
Knee effusion
Reason for visit:
Supraspinatus tendinosis
Subacromial bursitis
Knee effusion
Management:
advised rest
topical and oral NSAIDS
ice
elevation of feet
steroid injection
and
regular follow up until he recovers completely”
“L shoulder US
1. Supraspinatus tendinosis.
2. Subacromial bursitis.
3. Appearances indicative of associated developing adhesive
capsulitis.
L knee
ULTRASOUND LEFT KNEE
Clinical Notes: Hit by a car. Tenderness medial joint line, ?
ligament, ? tendon.
Findings:
There is a small joint effusion: The medial and lateral collateral ligaments are normal. Tendons are normal. Popliteal fossa are normal.
No other abnormality evident.”
“Surgery consultation
Recorded by: Dr Simon Ng Visit date: 08/11/2021
Recorded on: 08/11/2021
History:
chronic shoulder pain
not W/C
refer physic under CP
General:
No lethargy. No malaise. No fevers. No recent overseas travel. No anorexia.
Musculo-skeletal:
No neck pain. No back pain. No shoulder pain. No hip pain. No elbow pain. No knee pain. No wrist pain. No ankle pain.
No hand pain. No foot pain. No injury.
Lt shoulder
stiffness
reduce ROM
Examination:
General:
Hydration: Not dehydrated.
Not clinically anaemic. No jaundice.”
THE PANEL’S CONCLUSION
The Panel finds that the following injuries are threshold injuries:
· left knee,and
· left shoulder.
[TR1]All the hard returns (manual returns) need to be removed - otherwise can cause issues when decisions are uploaded.
[TR2]No sure why there is a 'close bracket' here??
[TR3]As previous comment
0
4
0