Insurance Australia Limited t/as NRMA Insurance v Delaney
[2024] NSWPICMP 298
•DATE OF REPLACEMENT CERTIFICATE:
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Delaney [2024] NSWPICMP 298 |
| CLAIMANT: | Jeffrey Delaney |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Les Barnsley |
| MEDICAL ASSESSOR: | Clive Kenna |
| DATE OF DECISION: DATE OF REPLACEMENT CERTIFICATE: | 15 May 2024 19 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident on 18 June 2018; complaints of neck pain following the accident; no evidence of radiculopathy; on 8 December 2018 the claimant developed new symptoms in the neck when tackled whilst playing with children; cervical fusion surgery on 17 June 2019; Medical Assessor (MA) Nair certified injury to cervical spine was a threshold injury whilst the arm and shoulder conditions were residual cervical radiculopathy; Held – accident was capable of causing a disc prolapse that compromised the nerve; accident did not cause the C6 nerve compromise which caused by C5/6 disc bulge where the early MRI scan did not show evidence of marked foraminal encroachment on the right; there was no evidence of oedema, no complaint of pain and neurological symptoms in the distribution of the C6 dermatome between the accident and December 2018; a history of new symptoms developing after incident in December 2018; claimant sustained soft tissue injury to the cervical spine caused by the accident or threshold injury; soft tissue injury to both shoulders and both arms in accordance with the principle in Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd; certificate of MA Nair affirmed. |
| DETERMINATIONS MADE: | REPLACEMENT CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Anil Nair dated 30 October 2023 and determines that the following injuries caused by the accident are threshold injuries for the purpose of the MAI Act: · cervical spine – soft tissue injury; · left shoulder – soft tissue injury secondary to injury to the cervical spine; · right shoulder – soft tissue injury secondary to injury to the cervical spine; · left arm - soft tissue injury secondary to injury to the cervical spine; and · right arm - soft tissue injury secondary to injury to the cervical spine. |
STATEMENT OF REASONS
INTRODUCTION
On 18 June 2018 Mr Jeffrey Delaney (the claimant) was driving his motor vehicle motor approaching a roundabout when another vehicle collided with the rear of his vehicle (the accident).
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Delaney under the Motor Accident Injuries Act 2017 (MAI Act).
Under the provision of the MAI Act in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.[1]
[1] Section 3.28 of the MAI Act.
Mr Delaney submitted an Application for personal injury benefits dated 30 September 2020.[2] He outlined the injuries sustained in the accident as” whiplash – neck injury; shoulder; right; and left arm”.
[2] Insurer’s bundle p 31.
THRESHOLD INJURY DISPUTE
The insurer determined that Mr Delaney had sustained a minor (threshold) injury and denied liability for statutory benefits beyond 26 weeks after the accident.
On 30 April 2021 Mr Delaney sought an Internal Review of the minor (threshold) injury decision. The insurer affirmed the determination that the claimant’s injuries met the definition of a minor (threshold) injury.
On 17 June 2021 Mr Delaney filed an application in the Personal Injury Commission (Commission) in respect of the minor (threshold) injury dispute. A treatment dispute was also filed.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the motor accident is a threshold injury for the purposes of the Act and whether proposed treatment relates to the injury caused by the accident and is reasonable and necessary in the circumstances.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]
EVIDENCE BEFORE THE REVIEW PANEL
[3] Section 7.20 of the MAI Act.
The Review Panel (Panel) issued a Direction to the parties on 11 January 2024 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction on or about 24 January 2024 the solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 1551 (insurer’s bundle). On 25 January 2024 the solicitor for the claimant advised the claimant relied upon the material already filed. The only document filed by the claimant were submissions dated 25 January 2024 addressing the decision to be made by the Delegate of the President.
On 26 February 2024 the Panel issued a Review Panel Report and Directions notifying the parties the claimant was directed to attend a medical examination on 17 April 2024.
The report dated 26 February 2024 included the following:
“5. The documents to be considered by the Panel include the bundle uploaded by the insurer at the request of the Panel on or about 24 January 2024.
6. On 25 January 2024 the solicitor for the claimant advised the claimant relied upon the material already filed. The Panel notes only one document was uploaded by the claimant namely the submissions uploaded on 25 January 2024 addressing the decision to be determined by the Delegate of the President. In effect this means the documents before the Panel are limited to those in the insurer’s bundle. The Panel advises the claimant that any documents uploaded by the claimant in support of the initial dispute are not before the Panel including the report of Dr Hopcroft relied upon by the claimant.
7. Accordingly, the Panel directs the claimant to upload to the portal the report of Dr Hopcroft if it is sought to be relied upon and any other documents sought to be relied upon by the claimant in one indexed and paginated bundle by 11 March 2024.”
On 22 February 2024 the claimant’s solicitor uploaded a message to the portal stating the claimant relied on the material already filed.
THRESHOLD INJURY- STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented 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.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
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 that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[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 threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) 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 MAI Act. Version 9.2 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 threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold 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.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 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.
5.8 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.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In Briggs v IAG Limited trading as NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An 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 claims assessor) in considering such issues.
6.6Causation 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.
6.7There 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.”
ASSESSMENT UNDER REVIEW
The injuries referred for assessment to Medical Assessor Nair in respect of the dispute as to threshold injury were the following:
· left and right arm pain;
· neck sprain, and
· bilateral shoulder pain.
The claimant reported pain and stiffness in the subaxial cervical spine with radicular pain radiating into both upper extremities. Medical Assessor Nair concluded the accident resulted in permanent aggravation of the claimant’s cervical degenerative disc disease with radicular symptoms. He found the symptoms in the arms and shoulders were radicular in nature and stem from pathoanatomy in the cervical spine.
In a certificate dated 30 October 2023 Medical Assessor Nair certified the following injury caused by the accident was not a threshold injury:
· cervical spine injury: neck sprain.[5]
[5] Insurer’s bundle p 24.
Medical Assessor Nair stated the arm and shoulder conditions were not injuries, but rather residual cervical radiculopathy.
REVIEW PROCEDURE
The insurer lodged an application for review of the assessment of Medical Assessor Nair within 28 days of the date on which the certificate of Medical Assessor Nair was made available to the parties.
On 20 December 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[6]
[6] AD2 p 9.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (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 is by way of a new assessment of all matters with which the medical assessment is concerned.
Pre-accident treating medical evidence
In about 2003 Mr Delaney had surgery to shave the disc at the L5-S1 level.
Western Plains Medical Centre
On 15 May 2015 Mr Delaney consulted Dr Ei Mon Mon Paing complaining of pain in the lower neck.[8] Mr Delaney was referred for an X-ray.
[8] Insurer’s bundle p 808.
Dubbo Medical and Allied Health Group
On 11 June 2014 Mr Delaney reported he hurt his left shoulder because of a fall playing with his grandchild.[9] He complained the pain radiated to his upper arm, neck and back.
[9] Insurer’s bundle p 1,148.
On 1 December 2014 Mr Delaney reported ongoing left shoulder pain. Mr Delaney saw Ms Pandya on 3 December 2014, 6 December 2014, 9 December 2014, 15 December 2014, 22 December 2014, 2 January 2015, and 23 January 2015 in respect of left shoulder pain and on occasion left cervical spine pain.[10]
[10] Insurer’s bundle p 1,156-1,160.
On 17 August 2015 Mr Delaney complained of pain shooting from the right side of the neck up.[11]
[11] Insurer’s bundle p 1,165.
Dubbo Base Hospital
Mr Delaney was admitted to Dubbo Base Hospital from 23 July 2014 to 25 July 2014 complaining of bilateral proximal weakness. The examination report included the following:
“bilat shoulder abduction weakness, limited by pain, 3+/5 on right 3/5 on left
Shoulder adduction normal
Elbow flex/ext, wrist flex/ext normal bilat
Unable to make fist with left hand
Reflexes difficult to illicit bilat
Sensation – inconsistent exam, reports generally decreased sensation on left upper limb
Nil DDK, finger nose ok within limits of arm pain.”[12]
[12] Insurer’s bundle p 293.
Mr Delaney attended Dubbo Base Hospital on 11 December 2017 with bilateral proximal weakness and pain post left shoulder steroid injection. He was found to have hypokalaemic paralysis and subclinical hyperthyroidism. The notes of the examination included the following:
“Neck lateral rotation 5/5 but some trouble commencing the movement to the right Upper limb tone 2+, unable to elicit triceps, brachioradialis ++ bilaterally Shoulder abduction/adduction 5/5 with pain/grimacing Elbow flexion/extension/power grip 5/5.”[13]
Dr Benjamin Cass
[13] Insurer’s bundle p 620.
On 21 March 2017 Mr Delaney underwent debridement and left ulnar nerve neurolysis under the care of Dr Benjamin Cass after he hit his left elbow at work on 30 March 2016.[14]
Post-accident treating medical evidence.
Dubbo Base Hospital
[14] Insurer’s bundle p 1,370 -1,376.
Mr Delaney presented to Dubbo Base Hospital on 18 June 2018 several hours after the accident.[15] The assessment notes reads as follows:
“Self presents 2 hrs post low-speed MVA. Walked in. Restrained driver of a car pulling to a stop at a roundabout when another car has rear-ended him at low speed. Sudden hyperextensions of neck whilst head turned to the right, head hit headrest, then slammed breaks causing forward neck flexion. Rapid onset of midline neck pain radiating into R shoulder and arm. Self extricated. Reports onset of bilateral hand tingling/numbness for 5-10 minutes after this which has since resolved. Also complaining of ‘burning’ sensation over R side of face/head. No LOC. No nausea, vomiting, visual disturbance/diplopia. Nil other injuries.”
[15] Insurer’s bundle p 281.
On examination the hospital reported:
“Abdomen soft, non-tender
Midline c-spine tenderness C4-7
Spontaneously demonstrated rotation which was limited < 45 deg – advised nil movement thereafter. No other midline spine tenderness.? slight reduction in power of biceps flexion on RUL, otherwise full equal power bilateral
upper limbs. Sensation fully intact in all dermatomes bilateral UL to light touch – nil sensory disturbance at present.
No evidence of trauma to head. Reduced facial sensation across L cheek (longstanding from previous facial fractures), otherwise nil CN deficits noted.”An update recorded in the notes included the following:
“Patient reporting radicular pain into both shoulders – not directly tender to palpation of
paraspinal/posterior shoulder muscles.
No other pain or sensory disturbance reported.
? slight ongoing subtle weakness of biceps flexion on RImp: given background severe degenerative changes which correlate with possible new neurological symptoms, for orthopaedic review …”[16]
[16] Insurer’s bundle p 282.
And a further progress note the same day recorded:
“58M neck injury. Rear ended at low speed at 1pm today. Was stationary at round about, car behind accelerated. Describes hyperextension injury to neck whilst head turned to the right. Felt paraesthesia in entire R side of face ~ 5min after injury, still persistent to a lesser degree. Also reports bilateral hand paraesthesia from then, now resolved.”
Mr Delaney was discharged on 20 June 2018 to be followed up by the Orthopaedic Clinic and by physiotherapy.
Mr Delaney attended physiotherapy at the hospital initially on 9 July 2018 when he reported ‘crunching/crepitus’ when turning his head.[17] Neck pain was aggravated by flexion and rotation of the cervical spine. Mr Delaney complained of pins and needles/numbness over the right ear into the right side of the neck and pins and needles around the right eye sometimes.
[17] Insurer’s bundle p 518.
On 20 July 2018 the physiotherapy clinic reported Mr Delaney had returned to work four hours per day. He continued to experience headaches and a burning sensation in the middle of the neck.[18]
[18] Insurer’s bundle p 520.
Mr Delaney attended the orthopaedic clinic on 7 February 2019 when he saw Dr Kher. He recorded:
“8/12 post hyperextension/flexion injury from MVA.
Has been having ongoing right sided radicular symptoms.
Symptoms radiate down to right elbow. Intermittent paraesthesia to right hand.
Has not noticed any weakness in limbs.
Nil bladder bowel symptoms.
O/e
Power
UL
R L
C5 5 5
C6 5 5
C7 5 5
C8 4 5
T1 5 5
Tone normal bilaterally, no clonus
Triceps, biceps reflexes reduced
Inverted brachioradialis NAD
Hoffman negative
Sensation intact
… “[19][19] Insurer’s bundle p 540.
Dr Kher recommended Mr Delaney be reviewed by Dr Vasili at the next available clinic.
Mr Delaney attended the spinal clinic on 7 February 2019 where he was seen by Dr Vasili. The progress notes reports:
“59 yo with R sided cervical foraminal stenosis (disc protrusion)
Has been going on from 18/6/18 – (was driving a courtesy car – rear ended by another car)
O/E
No myelopathy signs
C6 root paraesthesia
Reduced biceps reflex r sideMRI – R sided foraminal stenosis due to disc protrusion, moderate left sided foraminal encroachment.”[20][20] Insurer’s bundle p 535.
At review on 20 February 2019 the Spinal Unit progress notes reports:
“S/B Dr Vasili.
56 [sic] yo with R sided cervical foraminal stenosis (disc protrusion). Has been going on
from 18/6/18 – (was driving a courtesy car – rear ended by another car).
O/E:
No Myelopathy signs
30 C6 root paraesthesia
Reduced biceps reflex r side
MRI – R sided foraminal stenosis due to disc protrusion, moderate left sided foraminal encroachment.”In his report dated 20 February 2019 Dr Vasili stated:
“… Jeffrey describes constant neck and right upper limb symptoms exacerbated by most activities, especially work.
- The physical examination demonstrates an undisturbed gait, a reasonable range of neck motion with a positive Spurling’s manoeuvre, mild global weakness in the right upper limb, likely secondary to pain, altered light touch sensation over the right thumb, present reflexes, and absent myelopathy signs.”[21][21] Insurer’s bundle p 537.
On 1 March 2019 Mr Delaney underwent a CT guided nerve root injection at C6.[22]
[22] Insurer’s bundle p 509.
On 20 March 2019 Dr Vasili reported a CT-guided right C6 perineural block provided moderate short-term relief.[23] He noted Mr Delaney was again bothered by neck and right arm pain and suggested he see Dr Suttor, spinal surgeon.
[23] Insurer’s bundle p 531.
Dubbo Medical and Allied Health Group
On 16 July 2018 Dr Lim-Delroy reported Mr Delaney had sustained a neck sprain associated with a low speed accident to the rear of his vehicle.[24] He reported Mr Delaney’s head was turned to the right when he was hit. He noted soreness in the right shoulder, neck and head. There was pain on turning the head to the right. There was disturbance of sleep. A trial return to work was planned and physiotherapy was recommended.
[24] Insurer’s bundle p 1,191.
On 30 July 2018 Dr Lim-Delroy reported the claimant was still sore with pain at the right trapezius. He was happy to increase to six hours per day five days per week. He referred Mr Delaney to Precision Healthcare for physiotherapy.
On 13 August 2018 Dr Lim-Delroy he reported Mr Delaney was “slowly getting better”. He recommended he continue physiotherapy and stay on six hours per day five days per week. On 27 August 2018 Dr Lim-Delroy reported Mr Delaney was getting better and could turn his head more. He was happy to increase to normal hours. On 7 September 2018 Dr Lim-Delroy reported that the neck pain was getting worse. He noted it settled on the weekend but worsened during the working week.
On 13 September 2018 Dr Lim-Delroy reported the pain was localising and reduced Mr Delaney’s hours to 4 hours per day 5 days per week.[25]
[25] Insurer’s bundle p 1,193.
On 27 September 2018 Mr Delaney was reportedly happy to increase his hours to six hours per day five days per week. On 11 October 2018 Dr Lim recommend he return to normal hours.
On 25 November 2018 Dr Lim-Delroy referred Mr Delaney to Dr Con Vasili in respect of his persistent left-sided neck and shoulder pain since the accident about four months earlier.[26]
[26] Insurer’s bundle p 1,460.
On 16 November 2018 Dr Lim-Delroy reported pain was ongoing.
On 7 December 2018 Dr Lim-Delroy referred the claimant to Nicholas Hurford of Orana Psychology in respect of pain management and stress.[27]
[27] Insurer’s bundle p 1,470.
On 10 December 2018 Dr Lim-Delroy reported Mr Delaney was kicking a ball with his grandchildren on Sunday when he had a click in his neck and since then he experienced bad pain at the right side of the neck, the side of his face felt numb, and he had right arm pins and needles.[28]
[28] Insurer’s bundle p 1,197.
On 4 January 2019 Dr Abdallah reported Mr Delaney had experienced ongoing pain since July, with pins and needles on the right side of his fact and tingling down the right arm. He was working 38 hours a week and attending physiotherapy on a weekly basis. He was taking Panadol and Brufen and Dr Abdullah prescribed Endep for nerve pain.[29]
[29] Insurer’s bundle p 1,198.
On 20 March 2019 Dr Abdullah noted Mr Delaney was off work. He provided a referral to Dr Suttor.
On 17 June 2019 Mr Delaney underwent a C5-C7 anterior cervical decompression and fusion (ACDF) fusion under the care of Dr Suttor.[30]
[30] Insurer’s bundle p 1,359.
The records disclose ongoing complaints of neck pain.
Precision Health Care - physiotherapy
Mr Delaney commenced physiotherapy on 2 August 2018 when he presented with right sided neck pain and tension headache which he reported increased after four to five hours at work.[31] He reported his symptoms were aggravated by repetitive lifting, turning the head rapidly, shovelling, sitting too long and driving in excess of two hours. Mr Delaney was not riding his motorbike at that time.
[31] Insurer’s bundle p 230.
On 23 August 2018 it was reported that Mr Delaney had experienced an exacerbation some days earlier when he turned his head quickly and looked down simultaneously to reverse, and he also reported sharp pain down “traps” to the shoulder. On 30 August 2018 he was reported to be slowly improving although it was reported the neck pain and headaches build up from 10.30 at work (Mr Delaney was back to normal hours).
On 12 September 2018 it was noted he was off work for one week after consulting his doctor the preceding Friday with worsening neck pain. The pain was noted to be localising to the right side of the mid-neck. In a report dated 12 September 2018 Mr Sparshott, physiotherapist reported the claimant experienced pain after two hours of work, stating he believed the claimant’s condition was aggravated by the continuous, repetitive use of his right arm while cleaning vehicles.[32]
[32] Insurer’s bundle p 236.
On 20 September 2018 it was reported the claimant had returned to work on four-hour days, but neck pain had returned. Complaints of neck pain and headaches were reported on 27 September 2018, on 4 October 2019 and on 11 October 2018 it was reported Mr Delaney felt he was generally improving, although it was up and down day to day.
Mr Delaney continued to attend physiotherapy weekly and whilst his symptoms fluctuated the continued. On 21 December 2018 Mr Delaney reported he had increased neck pain after sitting for a long period at a soccer game. On 3 January 2019 it was reported that the right neck pain and referred arm pain builds up at work, some nights his sleep was poor, and Mr Delaney had started seeing a psychologist regarding pain control.[33]
[33] Insurer’s bundle p 206.
On 15 January 2019 it was reported that Mr Delaney had been getting some numbness into the left medial palm and the 4th/5th fingers at night. On 8 February 2019 it was reported Mr Delaney was complaining of pain in the neck and traps, as well as weakness and clumsiness in the hand. Mr Delaney also complained of a right clamping feeling around his neck.
On 1 March 2019 Mr Delaney had a CT guided C6 nerve root block, although on 12 March 2019 he reported little improvement in his neck pain. On 21 March 2019 it was reported the neck and arm were more painful after activity such as vacuuming.
On 16 April 2019 it was recorded that a surgeon had suggested C5/6 and C6/7 fusion surgery. Mr Delaney was reportedly happy that he was allowed to right his motorbike.
Mr Delaney underwent surgery on 17 June 2019 but on 27 August 2019 he reported he had been having a hard time with his neck since the surgery, he did not feel the symptoms had improved and he had less function than prior to the surgery.[34]
[34] Insurer’s bundle p 193.
Mr Delaney continued to attend physiotherapy for continued neck and shoulder pain. On 17 December 2019 Mr Carey, physiotherapist reported the claimant had persistent neck and arm pain following surgery and on 19 February 2020 he recommended the claimant progress to a gym based strengthening program.[35]
[35] Insurer’s bundle p 241.
Dr Sean Suttor, spine surgeon
On 11 April 2019 Dr Suttor reported Mr Delaney presented ten months post motor vehicle accident in which he sustained a neck injury.[36] He reported Mr Delaney had experienced ongoing neck pain, right sided with right arm radiculopathy. He also noted he had started developing some left-sided neck symptoms. Further he noted any activity stirs up his symptoms and he develops paraesthesia in the hand. On examination he noted limited range of neck movements, grade 4 power diffusely in the right upper limb and symmetrically reduced reflexes. Myelopathy signs were negative. Dr Suttor reported neck pain and radiculopathy had not resolved with conservative measures over ten months and recommended Mr Delaney undergo an anterior discectomy and fusion from C5-C7.
[36] Insurer’s bundle p 1,340.
On 4 December 2019 Dr Suttor reported Mr Delaney had a flare of axial pain after moving furniture. The pain was localised to the neck with some symptoms in the arms to a lesser extent.[37]
[37] Insurer’s bundle p 1,344.
Imaging/investigations
Left shoulder X-ray 3 July 2014 – the report reads:
“Degenerative changes are noted at the acromioclavicular joint with marginal spurring.
There is slight irregularity of the acromion but no spur defined. The glenohumeral joint appears unremarkable. No obvious rotator cuff calcification or joint subluxation noted.”[38]
[38] Insurer’s bundle p 1,149.
Left shoulder ultrasound, 3 July 2014 – the report reads:
“A tiny insertional tear is defined of the subscapularis tendon anteriorly and in addition there does appear to be mild tendinosis of this tendon. In addition the patient has subacromial bursitis and mild degenerative changes at the acromioclavicular joint.”[39]
[39] Insurer’s bundle p 1,149.
X-ray cervical spine, 15 May 2015 – the report reads:
“There is loss of cervical lordosis.
Vertebral heights are preserved.
Moderate degenerative change involves C5/C6, C6/C7 and C7/T1 discs.
Early to mild degenerative change involves all cervical facets.
Mild stenosis involves right C3/C4, C4/C5 bilateral C5/C6 exit foraminae.
Remaining exit foraminae are relatively patent. No fracture seen.”[40]
[40] Insurer’s bundle p 884.
CT scan cervical spine, 18 June 2018 – the report states:
“The vertebral body alignment is satisfactory apart from straightening of the
normal cervical lordosis. There is degenerative disc disease from C5 through to
C7 with anterior and posterior endplate osteophytes. No fracture or dislocation
seen.
There are very large uncovertebral osteophytes causing mild spinal canal
stenosis at C5/6 and severe bony foraminal narrowing for the right C6, left C6
and C7 and moderate foraminal narrowing for the right C5-C7 nerves. No acute disc protrusion seen. There is mild canal stenosis present at C5/6.”[41]
[41] Insurer’s bundle p 250.
MRI cervical spine, 19 June 2018 – the report reads:
“History: Ongoing post-traumatic symptoms. Degenerative changes seen on CT. Exclude cord injury.
Findings:
There is some movement artefact.
… Degenerative disc disease most obvious C5-C6 followed by C6-C7.
C1/2: No significant abnormality.C2/3: Small noncompressive disc bulge.
C3/4: Small noncompressive disc protrusion.
C4/5: Small noncompressive disc protrusion.
C5/6: Broad-based disc protrusion. Bilateral foraminal extension left more than right.
C6/7: Broad-based disc protrusion. Left-sided foraminal extension.
C7/T1: No significant focal abnormality.
The fat-suppressed sequence does not show any evidence of a fracture. No significant soft tissue oedema is identified. The sagittal oblique imaging confirms foraminal extension by disc material and small osteophytes on the left side most obviously C5-C6 and C6-C7. On the right side it is at similar levels C5-C6 most affected.COMMENT:
Normal appearing signal in the spinal cord. Degenerative disc protrusions C5-C6 and C6-C7 with foraminal encroachment.”[42]
[42] Insurer’s bundle p 543.
MRI cervical spine, 19 December 2018
“History: Post whiplash symptoms
- Findings:
The spinal cord is normal in size shape and signal. The central canal is of generous
dimensions at all levels scanned.
C1/2: No significant abnormality.
C2/3: Small central noncompressive disc protrusion.
C3/4: Noncompressive broad-based small disc protrusion. Minimal endplate osteophyte formation.
C4/5: Broad-based disc protrusion no significant canal or foraminal narrowing.
C5/6: Moderate size disc protrusion with bilateral foraminal extension/encroachment. No central canal stenosis.
C6/7: Broad-based disc protrusion. Posterior left-sided component. Some left-sided
foraminal narrowing due to the disc protrusion.
C7/T1: No significant focal abnormality.
Sagittal oblique imaging confirms foraminal disc extension with some osteophytosis left side C5-C6 and C6-C7 and right side C5-C6.
- COMMENT:
Quite significant right-sided foraminal stenosis due to a disc protrusion and endplate
osteophytosis C5-C6. Moderate left-sided foraminal encroachment due to the same causes C5-C6 and C6-C7. No central canal stenosis. No evidence of a fracture or dislocation.”[43][43] Insurer’s bundle p 1,286.
X-ray cervical spine, 17 July 2019 – the report reads:
“Clinical notes:
Fusion at the levels of C5 and C6 and C7
Comparison:
None.
Findings:
Slight loss of disc space is seen at the level of C4-5 with minor osteophytic lipping at those levels.
The internal fixation of anterior body fusions of C5 and /C6 and C6-7 are noted with the plate and screws transfixing the vertebral bodies in stable satisfactory position.
The alignment of the vertebral bodies in the sagittal plane appearing normal. The prevertebral soft tissue shadow showing no abnormality.”[44]
[44] Insurer’s bundle p 1,286.
X-ray cervical spine, 26 August 2019 – the report reads:
“Status post C5-C7 ACDF
Satisfactory position of the implanted hardware.
No evidence of bony injury.
Mild left convey scoliosis.
Early multilevel spondylotic change.”[45]
[45] Insurer’s bundle p 1,287.
CT cervical spine, 12 December 2019 – the report reads:
“Findings: Anterior cervical discectomy and fusion from C5 to C7 is noted. Alignment is normal. No complication are visible. Interbody grafts appear complete and mature. Posterior discovertebral bars at these levels appears unchanged when compared with the preoperative MRI. /similarly, uncovertebral osteophytic encroachment upon the foramina appears stable.
At C2-C3, a small posterocentral protrusion is stable. There is no associated mass effect.
At C3-C4 and C4-C5, mild discovertebral bar formation is stable.
No significant abnormality can be identified at C70T1.
There is no facet arthropathy.
Comment: No complications related to C5-C7 ACDF are visible. Appearance at other levels are stable when compared with MRI performed in December 2018.”[46]
[46] Insurer’s bundle p 1,358.
MRI cervical spine, 25 January 2021 – the report concluded:
“There are significant generalised spondylitic changes with multilevel foraminal narrowing. The C5-6 and C6-7 ACDF is intact. There is a small right central disc protrusion at C5-6. The cervical canal and cord are intact.”[47]
Medico-legal reports
[47] Insurer’s bundle p 1,383.
Physical Work Performance Evaluation Summary
Ms Belinda Wood, occupational therapist undertook an assessment on 6 September 2019 to determine the claimant’s safe work abilities and limitations.[48] She concluded Mr Delaney self-limited on 29% of the 21 tasks.
[48] Insurer’s bundle p 168.
However, the Panel notes self-limiting behaviour means the claimant stopped the task before a maximum effort was reached. It also notes that possible causes of self-limiting behaviour include pain, fear of reinjury, anxiety or depression or attempts to manipulate test results. In the absence of any evidence as to the cause of the self-limiting behaviour at the time of this assessment the Panel is unable to rely upon these results to draw any inferences adverse to the claimant.
Associate Professor Michael Shatwell, orthopaedic surgeon
Associate Professor Shatwell provided a report dated 6 July 2021 at the request of the insurer.[49] He reported Mr Delaney continued to have pain in his neck which radiates to the shoulders, right more than the left. He also experienced headaches.
[49] Insurer’s bundle p 45.
In relation to causation Assoc Prof Shatwell stated:
“I consider that the degenerative change in Mr Delaney’s neck led to the need for surgical treatment. His symptoms were intermittent and of a minor nature according to the GP records which I have detailed extensively in the history section of this report. The low speed rear end collision in a car with a headrest would not cause any derangement of the cervical spine and none was found on investigations performed within hours of the incident.
It should be noted that Mr Delaney was able to drive from the accident scene and was admitted later that day because of faintness and alteration in sensation in the facial region and both upper limbs which was not in any dermatomal distribution.
These symptoms resolved within an hour or so of his admission. There was concern regarding these symptoms and appropriate investigations were performed but were normal.
Mr Delaney got back to full time duties working 38 hours per week. He later developed pain in his right shoulder region which was felt to be referred from nerve root irritation in the neck and neurosurgical treatment was carried out.
In my opinion Mr Delaney would have been likely to develop symptoms in his upper limbs from the extensive cervical spondylosis (degenerative disc disease) that was present in the neck prior to the accident in question.”
Report of Michael Griffiths, Bio-medical and mechanical engineer
Mr Griffiths provided a report dated 17 February 2022 at the request of the insurer.[50]
[50] Insurer’s bundle p 59.
Arna Kerklaan, the driver of the insured vehicle a Fiat Freemont sedan reported there was no damage to the front of her vehicle although in a statement dated 29 August 2019 the claimant said he examined the Fiat and noticed the plastic grill was cracked slight to the left. A photograph of the Fiat does not show any visually detectible damage.
In a statement dated 15 December 2020 Paul Cairncross, the Service Manager of Dubbo City Toyota reported after the 2018 Toyota Camry was returned to the dealership he inspected the car and “had to look closely to see a small scuff mark on the left of the plastic valence below the boot”.[51] Ms Kerklaan reported when she got out of her vehicle she noticed the plastic rear lower valence on the back of the other car had been dislodged from the clips to one side. Ms Kerklaan described the impact as more of a nudge than a hit. In his statement Mr Delaney stated: “…I then got out of my car and I walked to the back of it, I noticed cracks in the rear bumper bar, around the top edge roughly in the middle and the left-hand side”.
[51] Insurer’s bundle p 145.
In his statement dated 29 August 2019 Mr Delaney described the accident as follows:
“I stopped about one metre back from the edge of the roundabout. I was sitting forward in my seat … My backside was nested into the seat and my back was off the seat at an angle. I took my foot off the brake and the car started to move forward slightly. Just as I was about to apply my foot to the brakes I felt force from the back of the car and I heard the sound of plastic breaking and a thump. My body was jerked backwards into the seat and I was straining to keep my neck straight. My left hand slipped off the steering wheel, my head had been turned at a right angle to try and look at the car coming from my right, my vehicle was pushed forward into the roundabout. I cannot estimate how far the car had been pushed into the roundabout and I immediately slammed my brakes on. My body moved forwards. … I then got out of my car…”
In her statement dated 11 November 2020 Ms Kerklaan described the accident as follows:
“I slowed down following this car as it approached the roundabout. The other car proceeded onto the roundabout and I followed. I was a few metres behind this car and travelling really slowly – I think about 10-15 kph. Suddenly this other car braked extremely hard and came to a stop. As soon as I realised the car in front of me had stopped I also braked hard but could not avoid the front of my car just touching the rear of the other car.”[52]
[52] Insurer’s bundle p 140.
Mr Griffiths stated the evidence was that the energy exchanged was limited to being sufficient to displace the clips for the rear valence bumper cover, and possibly a scuff on the part of the rear bumper cover. He concluded the energy exchange could not have been sufficient to have caused any forward motion of the claimant’s vehicle and in the absence of any forward motion there could not have been any movement of the claimant relative to the vehicle interior, meaning there was no possible mechanism for injury.
Mr Griffiths reviewed the available medical evidence and concluded the claimant’s description of the incident as supplied to Dubbo Base Hospital where he reported hitting the headrest and forward flexion, was inconsistent with the minimal energy exchange in the incident. He concluded the exaggerated account of the event had the potential to lead to misdiagnosis and concluded the totality of the medical records indicated the abnormal pathology was pre-existing. Mr Griffiths concluded there was no possibility the claimant could have received any of the injuries alleged in the incident.
SUBMISSIONS
Insurer’s submissions
The insurer provided undated submissions in support of the threshold injury dispute.
The insurer notes the following:
(a) on 11 June 2014 the claimant attended Dubbo Medical and Allied Health complaining of back, neck and left shoulder pain. He had a history of a fall while playing with grandchildren and hurt left shoulder. Restriction of movement mainly internal rotation and adduction, tender in the acromial area;
(b) on 15 May 2015 the claimant sought treatment for neck pain;
(c) an X-ray of the cervical spine on 15 May 2015 found a loss of cervical lordosis with preserved vertebral heights. There were moderate degenerative changes in C5/C6, C6/C7 and C7/T1 discs. There was early to mild degenerative change in all cervical facets with mild stenosis involving the right C3/4, C4/5 bilateral C5/C6 exit foraminae, and
(d) the claimant had pre-accident shoulder complaints, with ultrasound findings of calcific tendinopathy involving the subscapularis tendon as well as a thickening of the subacromial bursa on 4 September 2009.
The insurer relies upon the opinions of Dr Shatwell and Michael Griffiths who both opine the claimant’s pathology and need for surgery are wholly pre-existing and unrelated to the accident. The insurer notes immediately following the accident a CT scan of the cervical spine was performed and showed normal appearances.
The Discharge Summary stated: “Mr Delaney had severe degeneration of the lower portion of the cervical spine, mild canal stenosis and severe foraminal stenosis at C5-7”. Thereafter his condition improved under the care of his general practitioner (GP) and physiotherapist with continued increases in his capacity for work.
The insurer notes the claimant reported a “click” to his neck with numbness on the right side of his face and pins and needles in his right arm after kicking a ball with his grandchildren on 8 December 2018. He ceased work in March 2019, consulted Dr Suttor 10 months after the accident and underwent successful fusion surgery on 17 June 2019. The insurer relies upon the opinion of Dr Shatwell who concluded the degenerative changes in the claimant’s neck led to the need for surgical treatment.
The insurer submits a low speed rear end collision in a car with a head rest would not cause any derangement of the cervical spine and none was found in the investigations performed within hours of the accident. The claimant was able to drive from the accident and whilst he was admitted to hospital later that day due to faintness and alteration of sensation (not in any dermatomal distribution) those symptoms resolved within an hour or so of his admission.
The insurer submits this opinion is supported by Michael Griffiths who also concluded the low sped accident did not cause the allege injuries. Mr Griffiths stated the claimant’s description of the accident to Dubbo Base Hospital where he reported hitting the headrest and forward flexion, was inconsistent with the minimal energy exchange in this incident. Mr Griffiths noted from the photographs and statements there was virtually no visible detectable damage to the front of the insured’s vehicle and similarly other than some displacement of clips fastening a section of the rear bumper cover virtually no visible damage for the vehicle driven by the claimant.
The insurer notes a statement of the insured driver confirmed the minor nature of the accident and vehicle damage.
The insurer also relies upon a Physical Work Performance Evaluation which found that the claimant self-limited on 29% of the 21 tasks indicating a potential attempt by the claimant to manipulate results.
The insurer relies upon the statement of the claimant’s former employer Paul Cairncross who stated he had received reports about the claimant’s alleged activities during his time off work including riding his motorcycle, dancing at a pub after a work function, carrying out repairs on his roof and repairs to his car. Mr Cairncross also alleges he saw the claimant working on his vehicle without apparent discomfort.
The insurer submits the claimant sustained minor soft tissue injuries in the accident which would have resolved over a matter of hours.
The insurer provided submissions in support of the application for review. The basis of the application was that Medical Assessor Nair failed to engage with the evidence before him, in particular with the extensive clinical records.[53]
[53] Insurer’s bundle p 1.
The insurer submits Medical Assessor Nair failed to have regard to the following:
(a) the clinical entry of Dubbo Hospital of 23 July 2014 which noted a history of pins and needles in the legs and left arm;
(b) the clinical record of Western Plains Medical Centre of 15 May 2015 when the claimant complained about pain in the lower neck;
(c) the X-ray of the cervical spine dated 15 May 2015 which noted a loss of cervical lordosis with preserved vertebral heights and moderate degenerative changes in C5/6, C6/7 and C7/T1. There was early to mild degenerative change in all cervical facets with mild stenosis involving the right C3/4, C4/5 and bilateral C5/6 exit foramen;
(d) the clinical records of Dubbo Base Hospital on the day of the accident where there was an initial report of bilateral hand paraesthesia which subsequently resolved;
(e) the initial consultation at Dubbo Medical and Allied Health Group on 16 July 2018 when the claimant reported a neck sprain following a low-speed rear end collision. He was sore on the right side of the shoulder, neck and head and there was pain on turning the head to the right. There was an absence of any complaint of referred neurological or radicular type complaints at the initial consultation or on 30 July, 13 August, 27 August, 7 September, 13 September, 27 September, 11 October, 25 October, 16 November and 7 December 2018;
(f) whilst there were some persisting complaints of neck pain for a period, with occasional exacerbations and remissions, the symptoms overall improved and Mr Delaney was able to increase his hours of work;
(g) a subsequent consultation on 10 December 2018 when the claimant presented reporting an incident which occurred the previous Sunday when he was kicking a ball with his grandchildren and experienced a “click in neck”. Following that he had a bad night, with right side neck pain with the right side of the face feeling numb and right arm pins and needles;
(h) following the incident on 10 December 2018 the claimant had pins and needles on the right side of the face with symptoms extending into the right upper limb. As a result, the claimant was referred for an MRI scan of the cervical spine and subsequently to Dr Suttor, and
(i) on 11 April 2019, Dr Suttor recorded ongoing neck pain which was predominately right sided together with right arm radiculopathy.
The insurer submits that the right upper limb radiculopathy complained of to Dr Suttor and which, presumably, formed the basis of doctor’s determination to proceed to cervical fusion, commenced following the incident in December 2018.
Claimant’s submissions
The claimant provided undated submissions addressing the determination to be made by the Delegate to the President, but not addressing the substantive dispute.
THE MEDICAL EXAMINATION
Mr Delaney was assessed in the Commission’s rooms on 17 April 2024 by Medical Assessors Les Barnsley and Clive Kenna.
The reasons for the assessment were explained to Mr Delaney, who attended alone. No interpreter was required.
The injuries in issue were:
· arm injury left and right;
· cervical spine injury – neck sprain, and
· shoulder injury – bilateral shoulder pain.
History
Past history
At the time of the accident Mr Delaney was working for a Toyota dealer in Dubbo as a car detailer and courtesy driver. He has not worked consistently since the accident. He denied neck or arm symptoms in the period before the accident.
History of the accident
The accident occurred on 18 June 2018. Mr Delaney was the seat belted driver of a car. He was approaching a roundabout whilst in the process of taking a client, who was a front seat passenger, back to the Toyota depot. He briefly paused before entering the roundabout, when his car was struck from behind by another vehicle.
He recalls he was looking to the right at the time of impact. His neck “snapped sideways” and he felt an immediate twinge in the neck.
He pulled over, inspected the car and acknowledged there wasn’t a lot of damage. He recalls feeling dizzy around this time. He exchanged details with the other driver at the time and returned to the dealership as his car was driveable.
History of symptoms and treatment following the accident
His neck pain flared up shortly afterwards. He was taken to Dubbo Base Hospital Emergency Department by a work colleague once he got back to the dealership.
At the hospital medical imaging was performed. He was observed overnight and subsequently he was also reviewed by a spinal surgeon, Dr Ruff, who recommended non-operative care and management.
Mr Delaney remembers at the time the main complaint was right-sided neck pain. On account of his dizziness, which later settled spontaneously over a few hours, he underwent further investigations.
He subsequently saw his general practitioner, Dr David Lim-Delroy who advised rest over the next few weeks and referred Mr Delaney to physiotherapy.
Mr Delaney noted the pain from the right side of the neck would spread or refer into the right shoulder, and he also experienced intermittent sharp pains on the right side of the neck, particularly if there was any quick rotation or movement of the neck. Intermittently, he had some tingling of the 4th and 5th fingers of both hands.
However, he noted a steady improvement in the severity and frequency of his symptoms over the next few months. He still had some neck discomfort from time to time and particularly with rapid or large amplitude movements.
The contemporary medical evidence confirms fluctuating symptoms in the two to three months post-accident, and he was referred to an orthopaedic specialist by his general practitioner on 25 October 2018.
After the accident Mr Delaney returned to part time work on restricted duties for some months, returning to normal duties on 11 October 2018.
Incident to cervical spine on 8 December 2018
On 8 December 2018 Mr Delaney was playing with his grandchild, when he was tackled (one report states he was kicking a ball, but he states he was tackled). He felt a click in his neck and immediately experienced very sharp pain in the right side of the neck with associated numbness, and pins and needles involving the right side of the face and the right upper limb.
Mr Delaney stated unequivocally that following this incident he had a marked increase in his neck pain compared to his prior symptoms and developed new symptoms of frequent persistent pins and needles and numbness in the right arm.
Mr Delaney then saw his GP, underwent an MRI scan and was referred to Dr Suttor, neurosurgeon of Westmead.
The tingling wasn’t constant, but he had difficulty with grip and he was unable to continue work, ceasing altogether in March 2019.
Subsequently, Mr Delaney underwent two-level fusion surgery by Dr Suttor on 17 June 2019. Unfortunately, he believes he hasn’t had a lot of benefit from the surgery.
Current symptoms
His current complaints are right sided neck pain and stiffness with pain radiating towards the right shoulder. He has some intermittent tingling involving particularly the right-hand 4th and 5th fingers.
In terms of treatment, Mr Delaney has undergone intermittent neck traction which he states is beneficial, particularly easing symptoms to the right shoulder.
Current and proposed treatment
Mr Delaney is currently taking Lyrica, Panadol Extra and Celebrex. He continues to smoke.
Clinical examination
General presentation
On general examination Mr Delaney was a fit-looking individual, well-muscled and lean. He had no difficulty with gait and no difficulty undressing.
Cervical spine (cervicothoracic)
On examination of the cervical spine, the shoulders were level, and the following movements were recorded.
MOVEMENTS RANGE EXHIBITED Flexion 20% restriction Extension 30% restriction Rotation to the right 40% restriction Rotation to the left 40% restriction Lateral bending to the right 30% restriction Lateral bending to the left 70% restriction
There was asymmetry of movement and overall, he had lost approximately 50% range of mobility.
He had tenderness over the posterior right side of the neck. He reported a “numbish” feeling over the upper thoracic spine.
Upper limb neurological examination
Mr Delaney had normal power in all muscle groups on both sides. Specifically, there was no weakness of finger flexion, finger abduction, thumb abduction, wrist extension and flexion, elbow flexion and extension and shoulder abduction and adduction.
Reflexes
His reflexes were symmetrical as detailed in the following table:
REFLEX LEFT RIGHT TRICEPS JERK 1+ 1+ BICEPS JERK 2+ 2+ BRACHIORADIALIS 2+ 2+
Sensation
Light touch was perceived over all dermatomes in both arms. He reported touch was perceived as lighter (ie subjectively decreased) over the right C5 and C6 dermatomes (that is, the area from the upper deltoid, down the lateral aspect of the arm and into the thumb and index finger).
Muscle wasting
The circumference of his arms was measured at equivalent levels in the upper and lower arms. There was no wasting or asymmetry.
LEFT (cm) RIGHT (cm) UPPER ARM 33 33 FOREARM 28 28
Dural tension tests
Dural tension tests were normal.
| TEST | RIGHT | LEFT |
| PASSIVE NECK FLEXION | Normal | Normal |
Upper extremity
Active range of motion of the shoulders was measured with a goniometer.
Right shoulder
Measurement
Normal
Flexion
180°
180°
Extension 50° 50° Adduction 50° 50° Abduction 180° 180° Internal Rotation 90° 90° External Rotation 70° 90°
Left shoulder
Measurement
Normal
Flexion
180°
180°
Extension 50° 50° Adduction 50° 50° Abduction 180° 180° Internal Rotation 90° 90° External Rotation 70° 90°
Range of movement of both shoulders was normal.
PANEL FINDINGS
Diagnosis and causation
Cervical spine
Having regard to the comments of Wright J in Briggs the Panel considers it is appropriate to apply the test as to causation set out in Part 6 of the Guidelines.
The Panel noted Mr Delaney had a significant level of degenerative change when a CT scan was taken of the cervical spine post-accident on 18 June 2018. This confirmed pre-existing degenerative disc disease from C5 through to C7 with anterior and posterior endplate osteophytes. No fractures or dislocation was seen, with very large uncovertebral osteophytes causing mild spinal canal stenosis at C5/6 and severe bony foraminal narrowing at the right C6 and left C6 and C7, and moderate foraminal narrowing for the right C5 to C7 nerves. No acute disc protrusion was seen. There was mild stenosis present at C5/6.
A subsequent MRI scan on 19 June 2018 reported a broad based disc protrusion at C5/6 and C6/7. There was noted to be extension of the disc material into the foramen, more marked on the left than the right (noting that his symptoms were on the right side). It is also pertinent to note that the reporting radiologist specifically noted the absence of any soft tissue oedema. The significance of this is that an acute soft tissue or disc injury would typically be accompanied by oedema on MRI. The radiologist also specifically states that the disc protrusions are degenerative.
The history elicited thereafter is of neck pain which was improving with intermittent flares. This was confirmed on the history obtained at re-examination and is consistent with the contemporaneous medical record. He had some intermittent paraesthesia in the 4th and 5th fingers, which would indicate some C8 or ulnar nerve abnormality, but there is no record of physical findings in the period between the accident and December 2018 that would indicate radiculopathy meeting the criteria detailed in clause 5.8 of the Guidelines.
On 8 December 2018 Mr Delaney developed new symptoms in the neck after the incident when he was tackled by his grandchild. There was acute onset of right-sided neck pain and radicular symptoms involving the right upper extremity which was more severe than anything he’d previously experienced.
It was only after the incident on 8 December 2018 that Mr Delaney saw a neurosurgeon, who ordered an MRI scan based on his clinical presentation.
The MRI scan of 19 December 2018 reported the presence of a broad-based disc protrusion at C4/5 but no significant canal or foraminal narrowing. At C5/6 there was a moderate sized disc protrusion with bilateral foraminal extension/ encroachment. There was no central canal stenosis. The presence of a broad-based disc protrusion with a posterior left-sided component was reported at C6/7, with some left-sided foraminal narrowing due to the disc protrusion.
The Panel notes the MRI scan of 19 December 2018 demonstrated quite significant right-sided foraminal stenosis due to disc protrusion, endplate osteophytosis at C5/6, moderate left-sided foraminal encroachment due to the same cause at C5/6 and C6/7. However, there was no central canal stenosis and no evidence of a fracture or dislocation.
The Panel notes that the report of the MRI scan of 19 December 2018 differs from the report of the MRI scan of 19 June 2018 in that the right C6 foramen is significantly narrowed by disc protrusion, whilst the left side is described as moderate. This would indicate an interval progression of the disc protrusion on the right, given that the left side was assessed as worse on the earlier MRI immediately following the accident. This change would have occurred after the accident.
The surgery was directed at the C5/6 and C6/7 levels. The indication for the surgery was persistent C6 radicular symptoms as documented by Dr Vasili in February 2019, and a failure to maintain an initial response to a right C6 perineural injection. It is pertinent to note that the response to the injection whilst brief would be consistent with C6 radicular pain.
The Panel carefully considered the issue of causation leading to the symptoms that were suggested to be arising from compromise of the C6 nerve, and hence the indication for the surgery.
The first step is to establish whether the accident was capable of causing a disc prolapse that compromised the nerve. The Panel notes the evidence that this was a low-speed impact, with minimal damage to the vehicle. However, Mr Delaney had his neck turned to the right, which would pretension his neck tissues, and he has evidence of extensive underlying degenerative change which might compromise the integrity of the disc and other tissues in the neck. The panel concludes that disc injury arising from the accident was unlikely but not impossible.
The second step is to establish whether the accident did cause the C6 nerve compromise, which would in turn be caused by the C5/6 disc bulge. If this were the case, one would have expected that the early MRI scan would show evidence of marked foraminal encroachment on the right, certainly more than on the asymptomatic left side. This was not the case. The Panel would have also expected that there would be evidence of acute injury by way of oedema which was notably absent.
The complaints of a C6 radiculopathy would be expected to be pain and neurological symptoms in the distribution of the C6 dermatome. Notwithstanding the persistent pain Mr Delaney did not complain of such symptoms between the accident and December 2018. His symptoms were at the 4th and 5th fingers, which would indicate C8 or ulnar nerve symptoms.
Finally, there is a history of new symptoms developing in December 2018 after the incident with the grandchild. His subsequent symptoms and MRI scan, as well as some of the physical findings noted by his treating doctors, suggested compromise of the C6 nerve root.
Therefore, on the balance of probabilities, the Panel did not find that the motor vehicle accident on 19 June 2018 caused a C6 radiculopathy or even non verifiable C6 radicular symptoms. It is far more likely that the incident in December was responsible for these symptoms.
Similarly, the Panel did not find evidence of the requisite signs of radiculopathy, required by clause 5.8 of the Guidelines, demonstrated at any stage prior to the incident in December 2018. Therefore, the Panel concludes that the claimant sustained a soft tissue injury to the neck caused by the motor vehicle accident. In accordance with s 1.6 a soft tissue injury is defined as a threshold injury for the purposes of the MAI Act.
Left and right shoulders
At Dubbo Base Hospital following the accident Mr Delaney complained of pain radiating into both shoulders, although Dr Lim-Delroy only reported soreness in the right shoulder when he assessed the claimant on 16 July 2018.
On examination Mr Delaney reported pain from the right side of the neck spreading into the right shoulder.
Other than the initial complaint relating to both shoulders reported at Dubbo Base Hospital there is no recorded complaint pertaining to the left shoulder.
More significant complaints of right shoulder pain occurred associated with radiculopathy following the incident on 8 December 2018
The Panel notes on examination Mr Delaney had normal range of movement of both the left and right shoulders.
The Panel finds there is no evidence of injury specifically to either shoulder. However, the Panel accepts Mr Delaney may have sustained soft tissue injury to both shoulders, more on the right than the left, secondary to the soft tissue injury sustained to the cervical spine in accordance with the principle enunciated in Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd.[54]
[54] Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
This is a threshold injury.
Left and right arm injury
Other than a complaint of bilateral hand paraesthesia at Dubbo Base Hospital there is otherwise no recorded complaint of left arm pain.
At Dubbo Base Hospital following the accident Mr Delaney reported the rapid onset of midline neck pain raiding into the right shoulder and arm. He also reported the onset of bilateral hand tingling/numbness for five to ten minutes which resolved.
Thereafter, there is very little complaint pertaining to either arm until after the incident on 8 December 2018. Thereafter, there were significant complaints of tingling down the right arm consistent with the disc prolapse which Mr Delaney sustained when he was tackled whilst playing with his grandchild.
The Panel finds there is no evidence of injury specifically to either arm. However, the Panel accepts Mr Delaney may have sustained soft tissue injury to both arms, more on the right than the left, secondary to the soft tissue injury sustained to the cervical spine in accordance with the principle enunciated in Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd.[55]
[55] Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
This is a threshold injury.
CONCLUSION
The Review Panel revokes the certificate of Medical Assessor Nair dated 30 October 2023 and determines that the following injuries caused by the accident are threshold injuries for the purpose of the MAI Act:
·cervical spine – soft tissue injury;
·left shoulder – soft tissue injury secondary to injury to the cervical spine;
·right shoulder – soft tissue injury secondary to injury to the cervical spine;
·left arm - soft tissue injury secondary to injury to the cervical spine; and
·right arm - soft tissue injury secondary to injury to the cervical spine.
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