Insurance Australia Limited t/as NRMA Insurance v Gveric
[2023] NSWPICMP 55
•22 February 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Gveric [2023] NSWPICMP 55 |
| CLAIMANT: | Merril Gveric |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | Les Barnsley |
| DATE OF DECISION: | 22 February 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; medical dispute about minor injury and review of assessment under section 7.26; claimant alleged injuries to cervical spine and left shoulder; claimant alleged she had radiculopathy and a disc protrusion and tear of the annulus fibrosis at C6/7; Held – claimant injured her left shoulder in the accident causing bursitis but no evidence of a non-minor injury; radiology three months after accident did not demonstrate tear; radiology a year later demonstrated tear therefore tear not caused; claimant did not have two signs of radiculopathy (as per clause 5.8 of the Motor Accident Guidelines Version 9, 25 November 2022) at the time of assessment; report of claimant’s expert did not satisfy Panel claimant had two signs of radiculopathy when examined by him. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Herald dated 9 July 2022. 2. Certifies that the injuries sustained by Ms Gveric in the motor accident on 23 December 2020 are minor injuries for the purposes of the Act. |
STATEMENT OF REASONS
Introduction
On 23 December 2020, Merril Gveric was a passenger in a vehicle which collided with another vehicle at an intersection in Bradbury near Campbelltown.
On or about 19 January 2021, Ms Gveric made a claim against NRMA the third-party insurer of the vehicle she says was most at fault in causing the accident.
A medical dispute has arisen in the claim about whether any of the claimant’s injuries were “minor” injuries within the statutory definition.
The claimant referred the medical dispute to the Personal Injury Commission (the Commission) for assessment and on 9 July 2022, Medical Assessor Herald determined the dispute against the insurer.
NRMA then sought a review of the decision and on 23 September 2022 a delegate of the President of the Commission determined that there was reasonable cause to suspect a material error in the decision and on 2 November 2022, the President convened this Panel to conduct the review.
Legislative framework
Jurisdiction
Ms Gveric’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the benefits and compensation available. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “minor” injuries. In a claim for damages, no damages are recoverable if the claimant’s only accident-related injuries are “minor” injuries.
Minor injury
A minor injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”[1]. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
[1] Section 1.6 also provides for a “minor psychological or psychiatric injury”. As the issue before the Panel is Ms Gveric’s physical injuries, the provisions surrounding psychological or psychiatric injuries will not be discussed further.
If a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 and they are unable to recover damages.
Section 1.6(4) provides that the Motor Accident Injuries Regulation 2017 (the MAI Regulation) may exclude or include a specified injury from being a minor injury. For example, cl 4 says that minor injury includes “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”. Therefore, if Ms Gveric has a cervical spine radiculopathy, she will have an injury that is not a “minor injury”.
Minor injury at any time
In David v Allianz Australia Insurance Ltd[2] and Lynch v AAI Limited t/as AAMI[3] the Medical Review Panels found that whether the claimant has a minor or non-minor is certainly a matter to be determined on the day of any re-examination by the Panel. However, they also found that if, at any time after the accident, the claimant’s accident-related injury fell outside the definition of “minor injury” contained within s 1.6 of the MAI Act, the claimant must be found to have non-minor injuries regardless of the state of the injury (healed, recovered or in remission) at the time the Panel undertakes its assessment.
[2] 2021 NSWPICMP 227.
[3] 2022 NSWPICMP 6.
The Panel in David gave the example of a simple fracture sustained in the accident that heals by the time of the assessment. The injury is a non-minor injury even though the claimant may have recovered from it at the time the Panel assessed the injury.
Assessment of minor injury
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a minor injury. Relevantly to the matters in issue in Ms Gveric’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy as follows and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines[4]. Clause 5.9 then provides:
“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 minor injury”.
[4] Chapter 6 of the Guidelines.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the MAI Act[5] as follows:
[5] The current version of the Guidelines I version 8.2 effective 8 April 2022.
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor 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.”
The method of assessment prescribed by Part 5 does not appear to be limited to the assessment of minor injury disputes by medical assessors and Panel members but would appear to extend to medico-legal or other experts retained by the claimant and the insurer upon which the insurer’s liability notices are based.
Dispute resolution
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Herald’s, further medical assessments, and the review of medical assessments by this Review Panel[6].
[6] Sections 7.20, 7.24 and 7.26 of the MAI Act.
Assessment under review
Medical Assessor Herald examined the claimant on 20 May 2022 and issued his certificate on 6 July 2022. Medical Assessor Herald was asked to assess the following injuries:
(a) cervical spine, and
(b) shoulder.
Medical Assessor Herald obtains the following history from the claimant:
(a) the claimant denied any relevant accident or medical history, and says she has been her husband’s carer for 20 years;
(b) the claimant says she was a front seat passenger at an intersection when a utility vehicle came from the left and hit the claimant’s vehicle from the left side. Ms Gveric said she held on to the handle (above the window) when she knew the accident was going to happen and was “thrown around like a rag doll”;
(c) she twisted her neck, left shoulder and had immediate neck pain and left shoulder pain with tingling and numbness down her left arm, and
(d) she saw her general practitioner (GP) on the day of the accident, had an ultrasound of her left shoulder, analgesics, anti-inflammatory tablets and physiotherapy. She says she now has neck pain with symptoms of radiculopathy radiating to her left upper limb as well as left shoulder pain.
On examination of the neck there was tenderness and asymmetrical range of motion loss to the left. There was a positive Spurling test (indicating cervical nerve root compression) to the left upper limb. There was normal tone power and reflexes in the upper limbs.
Left shoulder examination revealed positive impingement signs and restricted range of motion. Medical Assessor Herald reviewed the radiology and found an effusion in the shoulder joint which could indicate intra-articular pathology but that the only definite pathology was an impingement syndrome. He found the impingement syndrome was a minor injury as there was no definite evidence of tears in the shoulder.
Medical Assessor Herald remarked the claimant was consistent and while she had symptoms of radiculopathy, she did not satisfy the criteria of radiculopathy set out in the Guidelines.
Medical Assessor Herald said the radiology of the cervical spine showed an annular tear at C6/7 which might be contributing to the neck pain and symptoms of radiculopathy and said:
“There is a C6/7 focal annular tear being a tear of the surrounding fibrocartilage layer of the disc resulting in a disc protrusion which has been identified as the cause of the neck symptoms. Thus, her cervical spine condition is considered non-minor …”
Issues for determination
Insurer’s submissions
The insurer says Medical Assessor Herald’s statement that medical records have been reviewed is a “formulaic recitation” because he has said the claimant had no previously relevant conditions yet her claim form discloses “left arm pain” as a pre-existing condition.
The insurer also says the Medical Assessor did not explain why the cervical pathology was caused by the accident and has in fact provided no findings on causation in any event.
The insurer repeats the submissions made in the application for medical assessment that a “focal annular tear” is an incidental finding more likely than not to be pre-existing. The insurer also says the disc is not cartilage and thus a “fissure” would not be a non-minor injury.
The insurer annexes and summarises literature about the prevalence of disc degeneration in the population and says that it is possible the disc was an incidental finding and a pre-existing degenerative change.
Claimant’s submissions
The claimant says the insurer has presented no evidence of the history of “left arm pain” before the accident being relevant to the injuries from the accident. The insurer says the left shoulder and left upper extremity injury have been found to be minor in any event.
The claimant says pain is usually a temporary phenomenon and is not material to the assessment of the left upper extremity.
The claimant also says the insurer did not make any submissions to Medical Assessor Herald in the original assessment about the significance of the left arm pain.
The claimant submits that Medical Assessor Herald has explained his views on causation of the neck symptoms (the disc protrusion) and explained why he says that was caused by the accident. The claimant is critical of the insurer for including medical literature that was not before Assessor Herald and which is not specific to the claimant’s injury and of no probative value.
Procedural matters
The Panel met on 12 December 2022 to discuss the review proceedings and reported to the parties the same day.
The Panel noted that the claimant’s submissions in answer to the insurer’s review application, suggest the claimant does not dispute that her left shoulder injury is a minor injury. Subject to submissions, the Panel advised it intended to proceed on the basis it is considering the cervical spine injury only.
The Panel also noted that there had been a number of cases determined by the Commission that have held that if two or more of the signs of radiculopathy (as set out in cl 5.8 of the Motor Accident Guidelines) are found in an assessment (that complies with cl 5.6 of the Motor Accident Guidelines) at any time after the accident, the claimant must be found to have a non-minor injury. The Panel suggested that the assessment by Dr Mastroianni does not appear to have conclusively found two of the five signs of radiculopathy.
The Panel suggested that the other issue in relation to the cervical spine appeared to be:
(a) whether the disc protrusion and apparent tear at C6/7 was caused by the accident, and
(b) if the disc protrusion was caused by the accident whether this a minor injury within the statutory definition.
The Panel noted that the insurer provided articles and research in relation to disc bulges and degenerative changes. The claimant had objected to this material going before the President’s delegate however it was now before the Panel. The claimant was invited to provide evidence in response to that material.
The insurer noted that Medical Assessor Herald had radiology from February 2021 which reported no disc protrusion and radiology from February 2022 which apparently reported a focal tear and a disc protrusion. The Panel did not have the MRI report from February 2022. The Panel therefore directed the claimant to provide copies of the 2021 and 2022 scans and films to the Commission and any final submissions by 18 January 2023. The insurer was directed to provide the claimant’s GP notes for the five years before the accident along with any final submissions by 25 January 2023.
Claimant’s final submissions
The claimant’s submissions dated 9 January 2023 deal exclusively with the claimant’s cervical spine injury and the issue of the disc bulge. The claimant’s submissions are silent in respect of the shoulder injury.
The claimant notes that the medical literature is relied on by the insurer to refute that the claimant’s disc degeneration and bulges are not caused by the accident. The claimant says that the literature is generalised survey data and does not comply with the “assessment” required by cl 5.6 in the Guidelines.
The claimant says the insurer is attempting to suggest that the claimant had a pre-existing cervical spine condition without adducing any of the claimant’s medical records.
The claimant says that Dr Herald, in an assessment which does comply with cl 5.6 found the claimant to be suffering from cervical radiculopathy which is a non-minor injury and that the current case law establishes that radiculopathy at any time since the accident must result in a finding of non-minor injury.
The Panel notes that with respect to the claimant’s submissions, Medical Assessor Herald did not make a finding that the claimant had radiculopathy within the definition in the Guidelines. He found at [18] “the neurological features were consistent with radiculopathic symptoms rather than actual radiculopathy as they do not fulfil the diagnostic criteria for radiculopathy”. The Panel notes that Medical Assessor Herald found there was a non-minor injury namely a C6/7 tear of the fibrocartilage layer (annulus fibrosis) surrounding the inner layer (nucleus pulposis) of the disc.
Insurer’s final submissions
The insurer advised the Panel it did not wish to make any further submissions.
Review of the evidence
Claim form and claim documents
The claimant signed the claim form on 19 January 2021 complaining of neck, left arm and shoulder injuries and headache. In answer to a question “were you suffering an illness or injury affecting the same or similar parts of your body at the time of the accident?”, the claimant has said she was suffering from “left arm pain”.
In the certificate of fitness supporting the claim for statutory benefits signed by Dr Tosson and dated 21 January 2021, the diagnosis was stated to be, “Whiplash injury left shoulder flare up of pain and soft tissue injury”. Pre-existing factors relevant to the condition were said to be “left shoulder bursitis”.
Treating medical records and reports
The claimant’s treating GP practice, St Luke The Physician has produced Ms Gveric’s medical records which commence in 2005. Of relevance to the matters in issue are the following entries[7]:
[7] The entries have been summarised, with abbreviations expanded and typographical errors corrected.
(a) 5 January 2015 – tender lump over right shoulder with a history of trauma and request for an ultrasound. A further attendance occurred the next day. An attendance on 12 January 2015 referred to a lump on the left shoulder but the day after there was another attendance referencing the right shoulder;
(b) 18 February 2016 – skin lesion on the left shoulder which was said to be “clinically benign” and had been there for years;
(c) 13 September 2018 – “anxiety, poor sleep, assaulted by group of boys at her home 3am yesterday”;
(d) 22 August 2019 – head injury yesterday when car door hit her forehead;
(e) 22 October 2020 – left shoulder pain on abduction and internal rotation. A referral for an ultrasound was given with the suspicion of a left rotator cuff syndrome;
(f) 12 November 2020 – right shoulder pain, ultrasound report discussed – supraspinatus tendonitis, subacromial bursitis for exercises and non-steroidal anti-inflammatories (NSAID);
(g) 22 December 2020 – left shoulder pain ultrasound reviewed, tendonitis and NSAID’s not helping image request printed with steroid injection under ultrasound guidance;
(h) 23 December 2020 – came in with husband – “hit on the front passenger side” and “hit head inside window wearing seat belt, airbag did not deploy, injured left shoulder”. The claimant had very limited range of motion due to pain and she was referred for an X-ray and ultrasound to shoulder;
(i) 29 December 2020 – cervical spine pain, upper thoracic pain, pins and needles down the left forearm. Ms Gveric was tender with decrease range of motion in all directions but there were no “gross neurological signs”;
(j) 17 January 2021 – the note reads that the claimant had left shoulder pain after her car accident and had a steroid injection. Her pain was intense and there was a marked decrease in range of motion in the left shoulder;
(k) 21 January 2021 – the claimant complained of cervical spine and upper thoracic pain, pins and needles and was advised to see a physiotherapist;
(l) 28 January 2021 – Ms Gveric has pain over left arm and headache, she complained that her left arm felt like a dead arm. Clinically her cervical spine was stiff and she had a decrease in the range of motion and there was a slight impairment of left arm muscles but sensation and reflexes were intact;
(m) 5 February 2021 – again the claimant attended with cervical and upper thoracic pain and pins and needles down the left forearm;
(n) 12 February 2021 – cervical spine pain with stiffness and headache;
(o) 23 February 2021 – cervical spine pain with stiffness. The pain was said to travel to the shoulder right side. She was referred for an MRI of cervical spine and given a referral to physiotherapy;
(p) 4 March 2021 – cervical spine pain and stiffness;
(q) 26 March 2021 – cervical spine pain and stiffness with a decrease in the range of motion in all directions. There were no neurological signs in the limbs;
(r) 2 June 2021 – left shoulder pain, clinically better range of motion in all directions, cervical spine stiff and tender. The diagnosis apparently offered was of soft tissue injury;
(s) 23 July 2021 – cervical spine was stiff and tender and the claimant was advised “soft tissue for stretching”;
(t) 19 September 2021 – cervical spine, pain and headache;
(u) 8 October 2021 – shoulder and arm pain, pins and needles, cervical spine pain with stiffness, tender on manipulation. The doctor also noted no gross neurological signs in the upper limb, and
(v) 11 November 2021 – cervical spine pain and stiffness.
Medico-legal reports
Dr Mastroianni provided a report to the claimant’s solicitors dated 1 December 2021. He has a history of the clamant putting her hand up to hold onto the handle in the car when she saw the collision was about to happen. As a result, doctor records that Ms Gveric developed pain in the neck and left shoulder. Dr Mastroianni has a history of Ms Gveric seeing a doctor on the day of the accident and being referred for shoulder ultrasound and MRI of the cervical spine.
Ms Gveric complained to the doctor of constant pain in the neck with pins and needles radiating down the left arm and affecting the forearm fourth and fifth digits. She also complained of a painful and restricted left shoulder. She disclosed a painful left shoulder in November (presumably 2020 before the accident) and says she was given exercises. After the accident she said she had an injection into the shoulder as her pain was worse and this has not helped.
On examination the claimant had restricted and painful neck movements and her left shoulder was tender with restricted movements. There was also numbness in the lower forearm and fourth and fifth fingers and lateral aspect of the hand. While reflexes were normal and symmetrical there was a reduction in power (from grade 5 to 4) in adduction and abduction of the fingers.
Dr Mastroianni diagnoses an aggravation of cervical spondylosis and left shoulder tendonitis with no disc protrusion. He says there is no rotator cuff tear but that the claimant has either a left arm neuropathy or radiculopathy with abnormal sensation and weakness in the hand.
Radiology
An ultrasound of the left shoulder undertaken on 11 November 2020 showed no tears and some bursitis.
An X-ray of the claimant’s left shoulder was undertaken on 24 December 2020 showing no abnormality. An ultrasound done on the same date demonstrates mild tendinosis in the subscapularis and tendinosis in the supraspinatus but no tears were visible. There was evidence of bursitis in the subacromial /subdeltoid bursa.
An ultrasound guided steroid injection into the left subacromial bursa was undertaken on 11 January 2021.
There is an MRI of the claimant’s spine dated 17 February 2021. It identifies spondylosis at the levels of C5-6 and C6-7 with moderate bilateral neural exit foraminal stenosis due to osteophytes likely impinging the left C6 nerve root. There was no significant disc herniation or central canal stenosis seen at that level and no disc herniation or bulge mentioned at the C6-7 level.
On 4 February 2022, a further MRI was undertaken which showed a disc protrusion at C6-7 with an annular tear.
Re-examination findings
Ms Gveric was examined by Medical Assessor Home in his rooms on 6 February 2023. The claimant’s husband, Michael Gveric was present during the assessment.
Past history
Ms Gveric confirmed a past history of bilateral shoulder pain, for which she had previously undergone review by her GP, as documented in the records.
History of subject accident
Ms Gveric, said that she was involved in a motor vehicle accident on 23 February 2020 as the front seat passenger in a Subaru, driven by her husband. As her husband made a right-hand turn, the driver of a utility driving in the opposite direction made a left hand turn onto the same slip road, impacting the left passenger’s side of her vehicle.
She recalls that she was thrown to the left and hit her head on the door. She recalls that she was subsequently in shock. Her husband managed to alight from the vehicle and forced open her door from outside.
Ms Gveric said that police and ambulance did not attend the accident and that her husband drove her to her doctor’s surgery. She recalls that later that day she developed neck pain, left shoulder pain and pain extending to her left arm. She recalls that she subsequently experienced intermittent paraesthesia (pins and needles) in her left arm.
Treatment
Ms Gveric saw her GP on the day of the accident. She was referred for ultrasound of her left shoulder. She confirmed that she had undergone an ultrasound of the left shoulder to investigate left shoulder pain just before the accident, but her pain was worse after the accident.
She returned to her GP and subsequently underwent a long period of physical therapy. Ms Gveric had an MRI scan of her cervical spine in February 2021.
She recalls that she did subsequently undergo an ultrasound guided injection of a corticosteroid into her left subacromial bursa, which provided her with anaesthetic but not durable benefit, with the symptom improvement resolving within two or three days.
Subsequently, she continued to attend her physiotherapist. She received treatment with analgesia.
In mid-2022, she developed further pain in her right shoulder, for which she underwent a further ultrasound examination. She also had an ultrasound guided injection to the right shoulder with transient benefit. She undertook regular exercises of her neck and shoulders including the use of TheraBand elastic to strengthen her shoulders.
Ms Gveric said that her symptoms have plateaued. She takes Mersyndol two tablets daily to control her pain symptoms but avoids other medications due to previous side effects of constipation.
Current symptoms
The claimant says that she experiences intermittent neck pain, present most of the day, most days of the week. She describes the severity of pain at 7/10, the pain is worse on the left side. She describes radiation of pain to the left shoulder girdle.
There is prominent pain at the lateral aspect of the left shoulder, increased with activity. She has difficulty raising her left arm above horizontal. There is difficulty sleeping over her left side at night.
Ms Gveric describes intermittent radiation of pain to the distal left arm which occurs for up to half an hour, once or twice weekly. There is a shooting pain extending to all of the fingers of the left hand. She describes intermittent paraesthesia in the index, middle, ring and little fingers of the left hand, but sparing her thumb. There is no permanent numbness.
Ms Gveric describes intermittent pain at the right shoulder and restriction motion of the right shoulder, increasing over the last few months. There are no complaints of distal pain in the right upper extremity. There are no complaints of right upper limb paraesthesia or numbness.
She states that since late 2021, she has developed additional pain in the mid back. This is exacerbated by coughing and sneezing. There are no distal radicular symptoms in the lower extremities.
Ms Gveric is right hand dominant. She describes a fair sitting tolerance. There is no disability for standing, walking, crouching, kneeling or stair climbing. She says her sleep pattern is broken by bilateral shoulder pain.
She describes difficulty dressing in tops. She has difficulty managing her hair. Her husband helps her with these activities.
She is able to lift light weight in both hands. She avoids any overhead activity.
Ms Gveric is married with four children aged between 23 and 33. She smokes 10 cigarettes daily.
At home, she undertakes light domestic chores. Her husband helps her with bathroom cleaning, mopping and vacuuming.
Ms Gveric has been the nominated carer for her husband since 2004.
Physical examination
Ms Gveric is a 56-year-old female, standing at 157cm and weighing 50kg.
Examination of the cervical spine reveals normal spinal curvature without muscle spasm. There is a fair range of active motion in all planes, flexion normal, extension normal, right rotation four fifths of normal range, left rotation four fifths of normal range, lateral flexion two thirds of normal range on each side. There ipsilateral pain declared during left sided motion. There is no muscle guarding.
The neurological examination of the upper extremities reveals no muscle wasting and measurements of circumference were equal above and below the elbow. There was normal myotomal power in all muscle groups. There is normal sensibility throughout the upper extremities. The deep tendon reflexes are symmetrically preserved. Spurling’s test is negative.
Examination of the right shoulder reveals no muscle wasting. Active motion was restricted and measured as follows. Flexion 90 degrees, extension 50 degrees, abduction 70 degrees, adduction 50 degrees, external rotation 45 degrees and internal rotation 40 degrees.
At the left shoulder, there was also no muscle wasting. Active motion restricted in all planes, measured by goniometer methods as follows. Flexion 80 degrees, extension 40 degrees, abduction 80 degrees, adduction 40 degrees, external rotation 20 degrees and internal rotation 40 degrees.
There are clinical signs of capsulitis bilaterally with restricted external rotation by the side. There is early scapular movement during shoulder elevation.
FINDINGS AS TO MINOR INJURY
Causation of injury
The claimant was involved in a motor vehicle accident in which she was a front seat passenger in a vehicle struck on the passenger’s side. She recalls left sided motion, striking her head on the window at the time of the accident.
There is early documentation of neck and left shoulder pain following the subject accident.
The Panel accepts that the claimant injured her neck and left shoulder in the accident.
Is the claimant’s left shoulder injury a minor injury?
The X-ray and ultrasound of the left shoulder, performed on 3 February 2021, demonstrate no traumatic abnormality by way of fracture or dislocation. Ultrasound of the left shoulder demonstrates mild subscapularis tendinosis without a tear. Supraspinatus tendon demonstrates tendinosis and enthesopathy without a tear. The infraspinatus and teres minor tendons are intact. There is thickening at the subacromial subdeltoid bursa.[8]
[8] A left shoulder ultrasound guided injection was performed on 3 February 2021 into the subacromial space.
It is the Medical Assessor’s clinical judgment that Ms Gveric suffered an episode of subacromial bursitis aggravating a pre-existing condition. Bursitis is an inflammatory condition affecting the sac full of synovial fluid in the left shoulder.
There is no radiological or other evidence of an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage in the claimant’s left shoulder.
The Panel is satisfied that the claimant’s left shoulder injury is a minor injury for the purposes of the MAI Act.
Did the claimant sustain a tear of her C6/7 annulus fibrosis in the accident?
The post-accident MRI scans of the cervical spine dated 17 February 2021 have been carefully reviewed. The scans demonstrate underlying degenerative changes with disc desiccation evident at C5/6 and C6/7. There are shallow annulus bulges bilaterally at both C5/6 and C6/7 levels. There is no evidence of nerve root compression and these or other levels. There is no critical spinal canal stenosis.
These initial post-accident MRI scans do not show an annulus fissure in the intervertebral discs at any level.
The repeat MRI scans of the cervical spine dated 4 February 2022 were also carefully reviewed. Again, there is a C5/6 disc bulge and a C6/7 disc bulge. On this occasion however, there is a focal annulus fissure to the right and midline of the C6/7 level. The degree of bilateral foraminal stenosis has not changed.
Comparing the MRI scans of the cervical spine performed on 4 February 2022 with those performed in the post-accident period on 17 February 2021, there has been development of an annulus fissure toward the right at the C6/7 level during the 12 month interval between the scans.
As this fissure was not present at the time of the initial MRI scans undertaken two months after the accident, it could not have arisen as a traumatic tear or injury caused by the subject motor vehicle accident. Rather, the fissure at the C6/7 level is a degenerative “tear” reflecting the interval development of a pre-existing condition.
There is no radiological evidence of a complete or partial rupture of tendons, ligaments, menisci or cartilage caused by the motor accident. The annulus fissure seen on the MRI scan of 2022 was not present at the post accident MRI scan and therefore, developed well after the subject injury.
It is the clinical judgment of the medical members of that Panel that the fissure seen on the MRI scan of 2022 was not caused by the accident and that the diagnosis of Ms Gveric’s accident-related cervical spine injury is a soft tissue injury.
Ms Gveric has underlying degenerative changes in her cervical spine particularly at C5/6 and C6/7 which may have been aggravated or exacerbated by the forces involved in the accident. But the accident did not cause the “tear” of the annulus fibrosis at the C6/7 level visible on the February 2022 MRI.
The Panel is therefore satisfied that any injury to the claimant’s C5/6 or C6/7 intervertebral discs is a minor injury for the purposes of the MAI Act.
Does the claimant have a cervical spine nerve root injury?
The heading to cl 5.7 in the Guidelines is “soft tissue assessment – injury to a spinal nerve root”. The heading is important because injury to a nerve generally is a non-minor injury (s 1.6(1) of the MAI Act) and as a nerve root is part of the nerve if the legislative provision only was considered this would suggest a spinal nerve or nerve root would be a non-minor injury.
Injury to a spinal nerve root manifests in neurological signs and symptoms. The distinction between minor and non-minor injuries in respect of spinal nerves and nerve roots is based on the presence of neurological signs that constitute radiculopathy. Injury to a spinal nerve root that results in radicular complaints or symptoms, such as pain radiating into one of the limbs of the body, is a soft tissue, minor injury within the statutory definition (cl 4 of the Regulation). As cl 5.7 of the Guidelines says, “as assessment of whether or not radiculopathy is present is essential”.
Clause 5.8 of the Guidelines says:
“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.”
At the examination undertaken by Medical Assessor Home there was no current evidence of cervical radiculopathy:
(a) there was no loss of reflexes. The upper limb reflexes were preserved;
(b) there were no nerve root tension signs, Spurling’s test was negative;
(c) there was no sign of atrophy or muscle wasting;
(d) there was normal power in the left upper limb, and
(e) there was normal sensation found by formal examination of the left upper limb.
Ms Gveric currently describes intermittent shooting pain in the left upper limb and intermittent paraesthesia in four digits of the left upper limb. These are non-verifiable radicular complaints but not signs of radiculopathy as required by the Guidelines.
The Panel is satisfied that the claimant’s cervical spine injury is not currently resulting in radiculopathy within the meaning of the guidelines and therefore she has a minor injury.
Has the claimant every had radiculopathy?
The claimant’s GP’s notes include a number of post-accident entries that document “pins and needles” in the left arm. But on 29 December 2020, 26 March 2021 and 8 October 2021 the GP records “no gross neurological signs”. While it is not clear whether the claimant’s GP undertook an examination that would satisfy cl 5.8 of the Guidelines, the GP’s findings do not satisfy the Panel that the definition of radiculopathy in the Guidelines has been met.
The claimant relies on the report of Dr Mastroianni who does appear to have undertaken an assessment that complies with cl 5.8 of the Guidelines.
The Panel is not satisfied that this report satisfies a finding of accident-related radiculopathy according to cl 5.6 of the Guidelines for the following reasons:
(a) Dr Mastroianni recorded[9] complaints from the claimant of pain and paraesthesia in the ulnar (the side of the fingers) aspect of the forearm and the fourth and fifth digits of the left hand. The ulnar aspect of the forearm and fingers are supplied by nerves at the C7 and C8 level. The Panel notes that symptoms of intermittent paraesthesia in the fourth and fifth fingers may also occur due to ulnar neuritis.
(b) on examination, Dr Mastroianni found a reduction of abduction and adduction power in the claimant’s fingers which could represent a sign of C8 radiculopathy or alternatively ulnar nerve weakness, and
(c) on examination, Dr Mastroianni identified numbness over the distal forearm (the wrist end) but “predominantly” over the fourth and fifth fingers and also over the “lateral aspect of the hand” which would be a reference to the radial or thumb side of the hand. This represents a non-dermatomal pattern of numbness as, in the clinical judgment of the medical members of the Panel, the area of numbness is not “anatomically localised to an appropriate spinal nerve root distribution”.
[9] Under the heading “present complaints / symptoms”.
The Panel notes that Dr Mastroianni said:
“Clinically she has left arm neuropathy / radiculopathy with abnormal sensation and weakness in the hand … whether the neuropathy is the result of the neck injury or a brachial plexus injury needs further investigation. I recommend review by a neurologist to investigate and treat.”
Dr Mastroianni did not make a final diagnosis of radiculopathy and there is nothing before the Panel to suggest the claimant has had the further investigations recommended by Dr Mastroianni.
In the two years since the motor accident, no other clinician has found myotomal weakness or reduced sensibility at examination. Medical Assessor Herald found normal sensibility and power in the hand and found radiculopathy was not present when he examined Ms Gveric. This fact highlights to the Panel the clinical uncertainty of Dr Mastroianni’s conclusions.
On the information before it, this Panel is not satisfied that the report of Dr Mastroianni evidences a finding of radiculopathy at that time within the meaning of the definition in the Guidelines.
The Panel notes that symptoms of intermittent paraesthesia in the ring and little fingers may also occur due to ulnar neuritis.
Conclusion
As the Panel has come to a different view to Medical Assessor Herald it follows that his certificate must be revoked.
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