Insurance Australia Limited t/as NRMA Insurance v Maraseh

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Maraseh [2024] NSWPICMP 693
CLAIMANT:	Areej Maraseh
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Alan Home
DATE OF DECISION:	4 October 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act; insurer’s application for review of threshold injury decision; injuries assessed by Medical Assessor Home were cervical spine, lumbar spine and a right shoulder tear; examination did not demonstrate cervical or lumbar radiculopathy at time of re-examination and review of records did not demonstrate radiculopathy at any time; claimant had previous right shoulder condition with tendon tear measured by ultrasound; post-accident MRI indicated a different measurement but Medical Review Panel not satisfied previous tear was further torn; Held – claimant’s injuries were threshold injuries; no matter of principle.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Nair dated 9 April 2024. 2. Certifies that the injuries sustained by Areej Maraseh in the accident of 10 March 2023 are threshold injuries for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

Areej Maraseh was involved in a rear-end motor accident collision on 10 March 2023.
Ms Maraseh says she injured her neck, back and shoulder in the accident and so she made a claim for statutory benefits against NRMA, the third-party insurer of the vehicle that she says caused her accident.
A medical dispute about the nature and extent of the claimant’s injuries (did she have threshold or any non-threshold injuries) arose in relation to that claim and the claimant referred the dispute to the Personal Injury Commission (Commission) for assessment.
Medical Assessor Nair determined on 9 April 2024 that the claimant sustained injuries that were not threshold injuries.
The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s decision. The claimant filed a reply to that application.
On 19 June 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review and on 21 June 2024 the President’s delegate convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Jurisdiction

Ms Maraseh’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (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 amount and extent of benefits and compensation available. One of these restrictions[1] is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26[2] weeks after the accident (for injuries before

1 April 2023) and cannot recover damages.
[1] Sections 3.11(1)(b) and 3.28(1)(b).
[2] For persons injured in accidents from 1 April 2023, they are entitled to 52 weeks of statutory benefits.

What is a threshold injury?

A physical threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”.
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.”
If a person injured in a car accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2) (highlighted in italics in the paragraph above), the injured person’s statutory benefits must cease, in this case 26 weeks after the accident.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.
Clause 5.8 of the Motor Accident Guidelines defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. 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 threshold injury.”
In other words, if the injured person sustains a nerve injury, this is a non-threshold injury. However if a person sustains an injury to a spinal nerve this is a threshold injury unless the particular nerve injury manifests in radiculopathy. If there is radiculopathy then the spinal nerve injury is a non-threshold injury.

What is radiculopathy?

Clause 5.8 of the Guidelines says that radiculopathy is “the impairment caused by dysfunction of a spinal nerve root or nerve roots” and requires two or more of the following five clinical signs to be found on an examination undertaken in accordance with the Guidelines:
(a)    loss or asymmetry of reflexes;
(b)    positive sciatic nerve root tension signs;
(c)    muscle atrophy and/or decreased limb circumference;
(d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

Dispute resolution

If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[3]
[3] Schedule2, clause 2(e) in the MAI 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, further medical assessments and the Review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Nair says at [2] that he was referred the following injuries to assess:
(a)    cervical spine - disc injury/radiculopathy/aggravation of degenerative change;
(b)    lumbar spine - disc injury/radiculopathy/aggravation of degenerative change, and
(c)    right shoulder – tear.
Medical Assessor Nair at [8] – [11] takes the following history:
(a)    the claimant had previous right shoulder problems treated with corticosteroid injections;
(b)    she was rear ended by a four-wheel drive with a bull bar while she was looking right to check for traffic;
(c)    she developed significant pain and was referred to Dr Jones, orthopaedic surgeon for further injections;
(d)    the claimant’s right shoulder symptoms have worsened, and she has symptoms now in her right arm as well as neck and back pain, and
(e)    the claimant had clinical evidence of lumbar spondylosis, cervical degenerative disease as well as radiological evidence of right shoulder supraspinatus tendinosis.
The claimant’s current symptoms are stated in [12] to include neck, lower back and right arms symptoms. She is said at [13] to have been recommended physiotherapy and is to be reviewed by her shoulder surgeon.
On examination of her neck, Medical Assessor Nair found at [15] no neurological deficit but restriction of motion (dysmetria) and guarding. In the thoracolumbar spine he found at [16] 10% restriction of motion, some guarding and dysmetria but no neurological deficits. At [17] he notes that shoulder motion was restricted on the right-hand side with a reduction of power in the rotator cuff.
He diagnosed cervical degenerative disease, lumbar degenerative disease and right shoulder rotator cuff tendinosis with an intrasubstance tear. He said there were no lower back or neck symptoms before the accident and that her shoulder symptoms had worsened.
Under the heading Conclusion – threshold injury he said the following injuries were not threshold injuries:
(a)    cervical spine - disc injury/radiculopathy/aggravation of degenerative change;
(b)    lumbar spine - disc injury/radiculopathy/aggravation of degenerative change, and
(c)    right shoulder – tear.

ISSUES FOR DETERMINATION

Insurer’s submissions

After setting out the stages of the claim, the post-accident radiology and bone scan in particular, and after summarising Dr Mastroianni’s opinions and the Medical Assessor’s decision, the insurer submits:
(a)
Medical Assessor Nair did not reference the bone scan or the report of

Dr Mastroianni and his record of a pre-accident right shoulder tendon tear and that the Medical Assessor has not engaged with the documents and the issue of causation;
(b)    Medical Assessor Nair has failed to provide sufficient reasons to explain why the cervical and lumbar spine injuries are not threshold injuries and what non-threshold pathology was caused by the accident. Medical Assessor Nair’s examination did not find radiculopathy;
(c)    The Medical Assessor has failed to expose his path of reasoning in relation to causation of the spine and shoulder injuries, and
(d)    the onus of proof rests with the claimant and in the light of the pre-existing tear the claimant has failed to discharge the burden of proof that the shoulder tears were further torn in the accident. The insurer also points to an absence of shoulder complaints in the acute phase after the accident.
The insurer provided a copy of the original submissions lodged with the application for assessment which include the following:
(a)    the claimant was 41 (she is now 42);
(b)    the claimant was involved in a rear end collision, emergency services were not required, and the claimant drove herself home after the accident;
(c)    the claimant saw her general practitioner (GP) who diagnosed neck and lower back injuries, and she had scans at that time, but shoulder investigations were not done until June 2023;
(d)    the claimant bears the onus of proof in establishing an injury is not a threshold injury, and
(e)    there is no evidence of radiculopathy.
The insurer lodged further submissions with additional documents on 12 July 2024.[5]
[5] Page 3 of the additional bundle.
The insurer notes:
(a)    the claim form does not disclose any pre-existing issues [2];
(b)    the claimant reported only right shoulder issues to Medical Assessor Nair [3];
(c)    the treating records indicate there were neck, lower back and right shoulder problems before the accident [4];
(d)    the radiology after the accident does not disclose traumatic changes [5];
(e)    the literature suggests pathology is commonly present in asymptomatic people but that as the claimant’s lumbar and cervical spine were symptomatic before the accident what is seen in the scans after the accident are “incidental findings consistent with the claimant’s age, occupation and previous symptomatology” [6];
(f)    the previous right shoulder ultrasounds evidence a tear [7] as does the post-accident MRI [8] and that on 13 February 2023 the claimant had a right subacromial steroid injection into the bursa;
(g)    any change in size of the tear is best accounted for by the passage of time and technological differences [9], and
(h)    the accident did not cause any tear or additional tear [10] and notes the lack of change in the right shoulder symptoms and the delay in reporting the right shoulder as a frank injury [11].

Claimant’s submissions

The claimant says the Medical Assessor has taken into account the pre-existing degenerative changes, has diagnosed a disc injury which is not a soft tissue injury, and the Medical Assessor has found there was a tear caused by the accident. The claimant says there is no error.

Procedural matters

The Panel issued directions to the parties on 27 June 2024. The Panel noted the insurer’s application comprised 178 pages and the Panel requested confirmation from the insurer that the Panel had all of the documents the insurer was relying on.
The Panel noted the claimant’s reply included only submissions and therefore the Panel may not have all of the documents the claimant relied on. The Panel directed the claimant to provide a bundle of documents by 26 July 2024.
On 12 July 2024 the Panel received a bundle of additional documents lodged by the insurer. These included GP notes, a Medicare record and a medico-legal report commissioned by the insurer.
The claimant subsequently advised that she had no additional documents to provide that had not already been provided.
The Panel met on 15 August 2024 and reported to the parties the same day. The Panel noted that the injuries assessed by Medical Assessor Nair were a neck, lower back and right shoulder injury. The Panel also said:
“[5.] It is the Panel’s preliminary view that the contemporaneous notes from

Dr Nguyen’s practice support a finding that the claimant sustained some form of neck and lower back injury in the accident. It would appear that the real issue in dispute in respect of those injuries is whether they are soft tissue threshold injuries or non-threshold disc injuries or nerve injuries manifesting in radiculopathy. Does the insurer agree with this?
[6.] The Panel also notes the claimant’s allegation that the claimant’s [pre-accident] right shoulder tear was further torn in the accident. The Panel notes that the insurer has raised an issue as to whether any right shoulder injury was caused by the accident noting the pre-existing condition and the delay in reporting symptoms after the accident.”
The Panel confirmed receipt of the insurer’s bundle and the claimant’s advice that she had no further documents. The Panel said:
“[9.] The Panel also notes the physiotherapist’s records of 18 and 28 September 2023 suggest the claimant was seeing a specialist apparently arranged by her lawyer. On 16 October 2023 there is a reference to the claimant having seen a specialist. This does not appear to be a reference to either Dr Mitchell or Medical Assessor Nair both of whom saw the claimant in 2024. Can the claimant confirm that she does not rely on any medico-legal reports including any reports from a specialist she saw in September / October 2023.
[10.] The Panel would be assisted by the provision of the following further documents:
(a) the referral letter from the claimant’s GP to Dr Jones and any letter from Dr Jones to the claimant’s GP (Dr Quan’s note of 1 September 2023 refers to a letter from Dr Jones), and
(b) the referral letter from the claimant’s GP to Dr Darwish and any letter from Dr Darwish to the claimant’s GP and any recent MRI scan (Dr Nguyen’s note of 17 May 2024 refers to an MRI and a referral to Dr Darwish).”
The claimant was advised about the medical examination and was directed to provide a response to the matters raised in the report by 2 September and the insurer was directed to provide a response by 6 September 2024.

Insurer’s response

The insurer confirmed on 10 September 2024 that the real issue in respect of the neck and back injuries “is whether these injuries are soft tissue threshold injuries or non-threshold disc injuries or nerve injuries manifesting in radiculopathy”. The insurer also said that the claimant’s spinal pathology is “consistent with degenerative changes present in the context of long standing [symptomatology] and that the subject accident did not change the character nor extend of the symptoms …”
The Panel took this response to mean that the insurer disputes any injury occurred to the neck or lower back as well as disputing threshold injury, if it is found that an injury occurred to the neck or lower back.

Claimant’s response

The claimant provided the documents that were requested (from Drs Jones and Darwish) but no further response or submissions and no medico-legal reports.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The claim form is dated 3 April 2023.[6] The claimant said she was waiting for traffic to stop so she could turn left. She was leaning toward the steering wheel looking over her right shoulder from time to time when she “heard a big crashing noise and all my body moved to hit the seat”.
[6] Called an application for personal injury benefits it is at 115 of the insurer’s original bundle.
In terms of her injury, she says that a couple of hours after the accident she experienced a headache and pain in her neck and lower back and that “for the whole period from the accident date until today I am suffering from neck and lower back pain, and I am currently on painkillers”.
She denied ever suffering “an illness or injury affecting the same or similar part of [her] body at the time of the accident”.
The first certificate of fitness was completed by Dr Nguyen of the St Andrews Medical Centre on 16 March 2023.[7] He diagnoses a soft tissue injury to the neck and lumbar spine. He recommended physiotherapy and Panadol and certified the claimant fit for her normal duties. He left blank the question on the form seeking information about any “pre-existing factors which may be relevant to this condition or injury (ies)”.
[7] Page 142 of the insurer’s bundle.
NRMA’s insured completed an accident report form on 2 May 2023.[8] He says he was stopped behind the claimant in a feeder lane waiting for traffic to clear so he could turn left into Campbelltown Road. The claimant started to drive, and he followed the claimant’s car looking to his right for oncoming traffic. The claimant’s vehicle then stopped “suddenly”, and the insured driver ran into the rear of her car.

Treating medical records and reports

[8] Page 139 of the insurer’s bundle.

GP notes – St Andrews Medical Centre

“Progress Notes” have been provided from St Andrews Medical Centre. These have been provided with one note per page. The Panel is of the view these are not a complete set of notes because the number of clinical note entries is limited and does not correspond with the claimant’s Medicare records which have also been provided.
Greenacre Medical records have been produced[9] which do not include any records of any relevance to the matters in dispute in this case.
[9] Page 91 of the insurer’s additional bundle.
Records from Farah Alashhab of the Family Holistic Medicine Clinic have been provided.[10] They appear to relate to acupuncture services provided to the claimant.
[10] Page 99 of the insurer’s additional bundle.
On 15 October 2019, the claimant attended Dr Tran complaining of two weeks of right shoulder pain radiating down the right wrist causing difficulties driving. Her neck was not tender. Ms Maraseh was prescribed Mobic and was to be reviewed in two weeks. Cervical impingement and right rotator cuff problems were suspected.
On 22 June 2020, the claimant attended with right sided neck pain, right shoulder blade pain and right shoulder pain. Symptoms were said to have emerged three years ago and she had an ultrasound at that time. The claimant had difficulty crossing her legs, complaining of lower back pain. X-ray and ultrasound scans were requested.
The scans were reviewed by Dr Oo with the claimant on 9 November 2020. More Mobic was prescribed and a referral to Kenny Vu, physiotherapist was provided.
On 8 July 2022 the claimant complained of right shoulder pain on movement present for one week and she was prescribed Mobic. The claimant returned on 12 July 2022 with lower neck strain and rotator cuff tendinitis suspected. Ultrasound was requested of the right shoulder.

On 22 July 2022 the ultrasound scans were reviewed by Dr Tran, and the claimant was again referred to Kenny Vu for physiotherapy. On 23 July 2022 the claimant was complaining of right shoulder pain with limited abduction and an injection under ultrasound guidance was recommended.
On 15 October 2022 the claimant returned to Dr Nguyen for her right shoulder which was “getting worse”. She had only one physiotherapy treatment and was taking Mobic regularly. The pain was affecting her sleep at night and a further ultrasound was requested.
The claimant returned on 4 February 2023 and saw Dr Nguyen. Her mother had passed away and she had stopped physiotherapy. Ms Maraseh complained of right sided neck pain but there was no radiculopathy. The Mobic was not helping. The claimant was tender on the right side of the cervical spine and right trapezius. Her right shoulder range of abduction motion was said to be 110 degrees. The claimant was counselled and prescribed Panadeine Forte and physiotherapy was recommended, and a further right shoulder steroid injection requested. The claimant saw Dr Nguyen again on 14 February 2023 and was advised that it takes a week for the full effect of the steroid injection to occur.
The claimant was next seen on 11 March 2023 which was the day after the accident.

Ms Maraseh reported headache after the accident and now neck pain and lower back pain on the left side. There is no mention of right shoulder pain and imaging was requested of the cervical and lumbar spine only.
On 16 March 2023 the claimant returned with neck and back pain “slowly improving”. There was no midline cervical tenderness, no lumbar spine tenderness and range of motion was full. She was referred for physiotherapy by Mendphysio.
The claimant first attended physiotherapy on 9 May 2023. The claimant reported pain in the right side of her lower neck and pain in her lower back. The physiotherapist noted a cortisone injection on 13 February 2023 into the shoulder had improved the claimant’s pain for two weeks. The physiotherapist reported “pain from 7 years ago was tolerable, now shoulder injury from overuse.”
On 10 May 2023 is an entry:
“pain in shoulder got cortisone injection on 13^th February used to take anti-inflammatories pain came back went to physio advised to go back on NSAID advised to try short term course only main goal is functioning.”
The claimant attended on 12 May 2023 to see Dr Quan and said her neck pain was slowly improving with no radiculopathy. She was said to be seeing the physiotherapist and there was said to be no indication for an MRI unless there were symptoms of radiculopathy. The right shoulder is also referred to and Ms Maraseh said she had three months of relief after the last [February] injection, and she was advised to continue Mobic.
The claimant’s initial attendance at the Family Holistic Medicine Clinic was on 1 June 2023 and there is reference to the car accident and the main complaint being neck pain and right shoulder pain. Nerve pain was said to radiate to the right shoulder and down through the arm. There is no reference to lower back pain.
A pain chart was completed indicating pain over the right side of the neck and the front of the right shoulder, the back of the neck, the middle back and down the back of the right arm to the elbow. No part of the back below the shoulder blades has been marked.
On 2 June 2023 the claimant told the physiotherapist her neck and back was getting better and the pain was not waking her up at night anymore. There is also this note, “Patient wants therapist to make it sound like she in more pain so insurance approves more physio sessions. Told her unable to do so and that approval should likely not be an issue anyway”.
On 7 June 2023 the claimant is reported to have told the physiotherapist she was no good and that she wakes up with pain and sleeps with pain.
On 7 June 2023 the claimant is reported to have told Dr Tran at St Andrews Medical Centre she had a car accident three weeks ago (the Panel suggests this is probably meant to be three months ago) and that she had a painful neck and lower back at the time. Her neck pain was said to be not better and in the last two weeks it was getting worse with pain radiating from the right side of her neck to her fingers. There was no weakness, and the claimant was taking Mobic. Radiology of the cervical spine was requested.
On 10 June 2023 Panadeine Forte was prescribed by Dr Tran due to worsening neck pain.
On 17 June 2023 the claimant’s CT scan results were reviewed by Dr Tran’s practice. The pain was still present but was said to be slowly improving.
On 19 June 2023 the claimant reported her right shoulder was painful and worse since the car accident. A referral to Dr Jones was given and an MRI requested. The referral seeks “an opinion and management of painful [right] shoulder – failed [corticosteroid injection]”.
On 20 June 2023 the claimant complained of more neck and shoulder pain and had taken Panadeine Forte which did not help. It is reported she had a full range of motion in both neck and shoulder with pain. On 26 June 2023 the pain was “mostly on and off” and she had a full range of motion in the shoulder.
On 5 July 2023, the claimant said her lower back pain was still there, but her shoulder pain overrides this, and her neck pain was better. The shoulder pain was said to be worsening.
On 31 July 2023 the claimant said she spoke to a solicitor “and has agreed to fight case long term”. On 7 August 2023 the right shoulder pain was there but overall, she said she was better. On 14 August 2023 it was reported she had seen Dr Jones who sent her for another corticosteroid injection and MRI to see if she needed a rotator cuff repair.
On 14 August 2023 the claimant reported to her physio that she had seen Dr Jones and was being referred for a further injection.
The letter from Dr Jones to Dr Nguyen is dated 14 August 2023. He has a history of previous right shoulder problems, and that the corticosteroid injection gave her temporary help but that the car accident “seemed to exacerbate her symptoms”. The claimant had antero-lateral shoulder pain with discomfort at night waking her and causing pain with lifting and use.

Dr Jones noted good active and passive range of motion with a painful arc. He recommended further injection and physiotherapy and wished to review her in six weeks. While he has a history of cervical spine symptoms, he does not record any symptoms or problem with the lower back.
On 1 September 2023 the claimant advised Dr Nguyen she had a flare up after the injection then the pain slowly improved, and she has ceased Mobic.
On 5 September 2023, the claimant reported to the physiotherapist she was “very bad yesterday” and she had the injection, and her neck was really sore.
On 18 September 2023 it is recorded in the physio notes that the claimant had an appointment with her lawyer and was informed she would see a doctor and that as a result of the injection three weeks previously “pain is minimised”. On 28 September 2023, the physiotherapist records the claimant was seeing a specialist the next week. On

16 October 2023 there is reference to a review with her solicitor and the specialist last week and that they will be disputing the “minor injury” classification. She reported a flare up of neck and shoulder pain the day before and is better, but she was scared to move.
Ms Maraseh’s last session at the Family Holistic Medical Centre appears to have been on

23 October 2023 with this note recorded:
“she is a lot better than her last session. She look better, headaches are less frequent, sleep is much better since the steroid injection as she isn’t in as much as pain before.”
On 9 November 2023, the claimant’s shoulder was reported by her physiotherapist to be better and on 16 November 2023 her neck and shoulder were said to be better. There was no mention of the back. On 11 December 2023, at her last session the pain had increased in her right shoulder and again there is no mention of the lower back.
On 23 January 2024 the claimant complained of her right shoulder pain returning and she was advised to have physiotherapy, nonsteroidal anti-inflammatories and a further appointment with Dr Jones.
On 7 March 2024 the claimant told Dr Nguyen her shoulder pain resolved for three months after the previous injection, and she had physiotherapy, but all payments had ceased from the insurer. She complained of right shoulder pain mainly at night, Mobic was not helping, and she was to see Dr Jones. Panadeine Forte was prescribed.
On 17 May 2024 the claimant was seen about a C6 disc bulge with nerve root irritation (MRI) and a referral to Dr Darwish was given. The referral seeks “opinion and management of neck pain with right shoulder referred pain. Please see MRI report ? nerve root irritation at C6 level”. Dr Darwish responded on 13 June 2024. He says:
“She presents with neck pain radiating to the right upper limb associated with paraesthesia in the right forearm. She had the pain for 2 years but became much worse after a motor accident on 10 March 2023.”
Dr Darwish records there were sensory changes over the lateral aspect of the right forearm in a C6 right sided dermatome. Muscular power was normal. There is no comment on atrophy or reflexes. He was to organise a right C6 perineural cortisone injection.
Dr Darwish does not mention the lower back or lumbar spine.

Other treatment records

Physiotherapy records

The referral for physiotherapy was dated 16 March 2023 and includes in the history a 2020 right subacromial bursitis, partial supraspinatus tendon tear and corticosteroid injection in 2023.
The insurer relies on six Allied Health Recovery Request (AHRR) forms[11] as follows:
(a)    the first is dated 9 May 2023 and seek eight sessions of physiotherapy from Andrew Cooke of MEND. The diagnosis is said to be cervical radiculopathy. At that time the claimant had attended one physiotherapy session. He records some pain mainly right side of lower neck into shoulder with no numbness but some tingling. It is also stated she had, “pain in lower back 4/10 but now is better”;
(b)    the second is dated 9 June 2023 and a further eight sessions were requested. The diagnosis had changed to whiplash associated disorder with mechanical lower back pain. The form reports neck and lower back soreness with pain going down the right shoulder and into the right hand “not compliant with home exercise program as reports too busy” and the claimant was unable to sleep on her right side;
(c)    the third is dated 21 July 2023 and a further eight sessions were requested. The form indicates the claimant benefits from physiotherapy and has pain in the lower neck area on both sides and right shoulder pain. She was having difficulty with domestic duties and cooking which caused pain. Compliance with home exercises was an issue and “pain behaviours present”;
(d)    the fourth is dated 22 August 2023 and contains the same diagnosis as before and similar signs and symptoms recorded as before. Non-compliance with home exercises and pain behaviours were mentioned along with foreshadowing that surgical management may be needed (although no details of what injury was to be the subject of this surgery);
(e)    the fifth is dated 28 September 2023 and seeks an additional eight sessions. It contains similar input as the previous form, and
(f)    the sixth is dated 26 February 2024. By this time 42 sessions of physiotherapy had been provided with a further eight sought. The details in the form are similar to the previous forms.
[11] The forms commence on page 17 of the insurer’s bundle.

Literature

The insurer provides seven items of medical literature[12] as follows:
(a)    a study of abnormal lower back MRI scans in 67 patients with no symptoms;
(b)    a study of the incidence and types of abnormal lower back MRI scans in persons with no symptoms;
(c)    an evaluation of the prevalence of annular tears and disk bulges or herniations in people with no low back pain or sciatica;
(d)    a literature review of imaging features for asymptomatic populations with spinal degeneration;
(e)    an article in “the Back letter” magazine from January 2004 with the headline “shock over disc degeneration in 10-Year old – but are disc abnormalities in this age group surprising?”;
(f)    a literature review of lumbar spine studies with the aim of understanding the terminology used and recommendations for standard terms and consistency, and
(g)    an article entitled “Does minor trauma cause serious low back illness?” which involved a five-year study of 200 persons.
[12] From pages 47 – 103 in the insurer’s original bundle.

Radiology

On 6 July 2020 the claimant had an ultrasound of her right shoulder with X-ray at the request of Dr Nguyen confirming subacromial bursitis and a small partial thickness partial width tear in the supraspinatus (measured at 7 x 4mm).[13]
[13] Page 146 of the insurer’s additional bundle.
On 20 July 2022 the claimant had another ultrasound of the right shoulder at the request of Dr Tran with a clinical history of “previous rotator cuff tear”.[14] The report indicated thickening of the supraspinatus tendon indicating tendinosis with a small articular surface tear measuring 4 x 5mm with thickening of the bursa indicating bursitis and bunching of the bursa with abduction indicating impingement.
[14] Page 147 of the insurer’s additional bundle.
The claimant had another ultrasound and X-ray of her right shoulder due to pain on

22 October 2022.[15] The report confirmed supraspinatus tendinosis with a small thickness tear measured at 3.8 x 2.9mm and impingement noted during abduction.
[15] Page 148 of the insurer’s additional bundle.
The claimant had a right subacromial bursal steroid injection done on 13 February 2023.[16]
[16] Page 149 of the insurer’s additional bundle.
The claimant was referred for an MRI of her cervical spine which was performed on

13 June 2023.[17] The history documented by the radiologist was “2 weeks of pain radiating from right neck to third and further fingers ? cervical radiculopathy”.
[17] Page 145 of the insurer’s original bundle.
The results reported were of an incidental right thyroid nodule which might require further investigation and mild spinal canal narrowing at C4/5 and C5/6 and mild right sided neural foraminal narrowing due to degenerative osteophytic development.
An MRI of the right shoulder was done on 29 June and reported on 30 June 2023 to the claimant’s GP.[18] The clinical history was given of pain in the right shoulder, partial supraspinatus tear on a background of tendinosis on a recent ultrasound scan and a failed cortisone injection. The results reported were there was supraspinatus tendinosis with a small intrasubstance type tear measured at 7mm long and subacromial bursal inflammation.
[18] Page 147 of the insurer’s original bundle.
A whole-body bone scan was done on 6 July 2023 at the request of the claimant’s GP and reported on 7 July 2023.[19] The history given was:
“40-year-old patient with neck and back shoulder pain. Had the right shoulder right hand dominant symptoms prior to motor car accident steroid injection to the right shoulder has not helped. Now has nocturnal pain and persistent symptoms particularly in the neck and right arm.”
[19] Page 148 of the insurer’s original bundle.
There was evidence of:
(a)    bilateral reactive facet joint periostitis (inflammation of the periosteum) at C5-6 and C6-7 right more than left;
(b)    asymmetrical right periostitis and shoulder girdle enthesopathy and right supraspinatus enthesopathy;
(c)    bilateral gluteus enthesopathy, trochanteric bursitis and left sacroiliac joint dysfunction;
(d)    overall early metabolic bone disease;
(e)    increased bone remodelling in the shoulder girdle and pelvis with no structural abnormality, and
(f)    early wear and tear periostitis in the hands, epicondylitis.
On 30 August 2023 the claimant had a right shoulder steroid injection for subacromial bursitis at the request of Dr Jones.[20]
[20] Page 151 of the insurer’s original bundle.

Medico-legal reports

The insurer relies on a report from Dr Mitchell, occupational physician dated 26 April 2024.[21]
[21] Page 6 of the additional bundle.
Dr Mitchell records a history of the accident consistent with the claim form (rear end, turning left, looking over her right shoulder) and notes the airbags did not deploy, she did not hit her head and Ms Maraseh did not lose consciousness. The claimant reported developing headache and neck pain, then lumbar spine pain. She had seen Dr Jones, orthopaedic surgeon for right subacromial / subdeltoid bursa injections which occurred on

30 August 2023 and 5 April 2024.
The claimant has continued to work as a maths teacher full time.
Dr Mitchell took a history from the claimant of previous pain in the right shoulder, investigations and she had been told it was inflammation and she had taken anti-inflammatories.
The claimant reported current lower neck pain, intermittent pain in the right shoulder (but can be pain free when she is active) and pain in the lower lumbar back.
On examination, Dr Mitchell records:
(a)    normal spinal alignment and normal neck and thoracolumbar back movements;
(b)    cervical spine lateral flexion was reduced but not equally;
(c)    muscle tone was normal, straight leg raising was normal;
(d)    the lower limbs were neurologically normal, and
(e)    shoulder motion was reduced in the right side in flexion, abduction and external rotation.
Dr Mitchell diagnosed soft tissue injuries with no objective clinical or radiological evidence of underlying injury. He says the findings in the shoulder pre-dated the accident.
Dr Mitchell assessed whole person impairment at 5% due to the dysmetria in cervical spine motion and 2% for the right shoulder loss of motion which he reduced by 2% for the pre-existing condition.

RE-EXAMINATION FINDINGS

The claimant attended the medical re-examination with Medical Assessor Home on

16 September 2023.

Past medical history

Ms Maraseh was read the history from the medical notes. She confirmed a past history of episodic right shoulder pain from October 2019 and again in June 2020, as recorded by her treating doctor.
She also confirmed that in June 2022, she experienced further shoulder pain for which she underwent ultrasound examination in July 2022. She agreed she had treatment with anti-inflammatory medication. She has been told there was a small tear in the supraspinatus tendon.
Ms Maraseh received a further period of treatment commencing in October 2022. She confirmed she discussed with her doctor that her shoulder pain was worsening and that she was having difficulty sleeping over her right side.
She confirmed that Dr Nguyen recommended a further ultrasound examination of the right shoulder. Ms Maraseh said she was again told that there was a small tear in the supraspinatus tendon.
She returned to her doctor in February 2023 and was then referred for a steroid injection to manage persisting shoulder pain. She said that following the injection administered around 14 February 2023, there was ongoing pain in the shoulder. She confirmed that the pain did not improve with the steroid injection. She continued to experience difficulty raising her right arm above the horizontal and with her sleep pattern. These symptoms persisted up until and past the time of the motor vehicle accident.
Ms Maraseh did not recall the history of neck pain recorded in the medical file. She also did not recall any past history of lower back pain.

History of the motor accident

The claimant said she was the seat belted driver of a Holden Viva sedan, her sister’s vehicle. She recalls that her own vehicle was undergoing repairs at the time. The vehicle was stationary at the intersection of Blaxland Road and Campbelltown Road awaiting to make a left-hand turn, such that she had turned her head to the right side, when she felt a loud noise and felt a crash from behind.
Her vehicle was pushed forward but there was no secondary forward collision. Her vehicle was struck from behind by a 4WD with a bull bar. She confirms damage to the boot of her vehicle.

Following the accident, she managed to alight from the vehicle. She exchanged details with the other driver. She recalls that the driver was quite pleasant. She was asked how she was. She could not recall any early physical symptoms. Ambulance and police did not attend.
She telephoned her husband and was encouraged to drive the car home, which she did. She recalls she was only several minutes from her home at the time.

History of the development of symptoms and treatment

Ms Maraseh recalls that later that day, she developed pain in her neck and lower back. The following day, she attended her GP, with complaints of neck and back pain.
She was referred for CT scan imaging of the cervical spine and lumbar spine, performed on 13 March 2023, three days post-accident.
She recalls that her pre-accident right shoulder pain intensified approximately two weeks after the subject accident.
When she later reported this to her physiotherapist and doctor, she was referred for MRI scans of the right shoulder, which were performed on 29 June 2023.
MRI scans of the cervical spine were performed on 13 June 2023. She also underwent technetium bone scan investigation in July 2023.
She recalls that she received physical therapy for six months directed to her neck, back and later to her right shoulder complaints. She recalls some mild benefit from this.
Due to persisting right shoulder pain, she underwent review by Dr Hugh Jones, who recommended a second corticosteroid injection. This was administered in August 2023. The first injection was administered before the accident.
She recalls that she had two months of improvement in her symptoms, after which the same symptoms returned.
She states that symptoms of intermittent distal pain in the right forearm commenced in early 2024. She was referred for further MRI scans of the cervical spine, performed in April 2024. She returned to Dr Jones, who told her that the pain was likely coming from her neck.
She was then referred to Dr Darwish, whom she attended on 13 June 2024. Dr Darwish was of the view that there may be pain coming from the C5/6 segment.
He recommended a nerve root sleeve injection to the right C6 nerve root.
She has been hesitant to undertake the injection but plans to do so tomorrow.
She is currently taking Meloxicam (Mobic) a few tablets per week, Panadeine Forte three evenings per week and a muscle relaxant containing Codeine.

Current symptoms

Ms Maraseh states that she is currently experiencing constant neck pain of intensity 8/10. There is difficulty turning her neck, particularly to the left side.
There is constant pain at the right shoulder, which she describes at 8-9/10. She cannot sleep comfortably over her right shoulder at night. There is limited motion at the shoulder.
She describes intermittent paraesthesia extending from the point of the shoulder to the tip of the elbow.
She estimates that once a fortnight, she experiences some mild paraesthesia in her right forearm. There are no neurological symptoms in the right hand.
She reports periodic pain in the lower back occurring for a few days every month. The pain is usually felt in the midline. When pain is present, there is difficulty with prolonged sitting. She denies any referred pain to the lower limbs.
There are no complaints of lower limb paraesthesia or numbness.

Functional capacity and reported tolerances

Ms Maraseh reports a sitting tolerance of 30 minutes and a standing and walking tolerance of 30 minutes. There is no difficulty with deep forward bending at the waist, crouching, kneeling or stairclimbing.
Her sleep pattern is disturbed.
She is independent for activities of self-care.
She estimates the capacity to lift 1kg or 2kg with her right hand and 4kg to 5kg with her left.

Social history

Ms Maraseh is married with four children aged between 8 and 19. She occasionally smokes a shisha.
At her home, she performs light domestic chores. She has difficulty with hanging washing. She performs occasional vacuuming with a stick vacuum cleaner but tries to delegate this task to others.
Her husband continues lawn mowing (which he did before the accident) and she has continued light gardening tasks which she enjoys. Her husband has taken over some of the grocery shopping.

Vocational history

The claimant works as a maths teacher at Casula High School. She has been employed by the school for three years.
She was initially employed on a casual basis before turning into permanent employment in 2023. She is working as a full-time maths teacher this year.
Following the accident, she was off work for a few days. She says that she could not afford to take time off work due to her casual status at the time.

Physical examination

The claimant is now 42 years of age. On examination, the claimant’s height was measured at 147cm and she weighed 60kg. She was cooperative throughout the assessment.

Cervical spine

Examination of the cervical spine reveals normal spinal curvature. There is no muscle spasm.
Cervical spine movements were measured as follows:
(a)    flexion is performed to 3/4 normal range, extension 1/2 normal range;
(b)    right rotation was 3/4 normal range and left rotation 2/3 normal range, and
(c)    right lateral flexion was 1/2 normal range and left lateral flexion 1/3 normal range.
Left sided motion was accompanied by contralateral right sided pain.
The neurological examination of the upper extremities revealed:
(a)    Spurling’s test is negative;
(b)    normal upper limb power in all muscle groups;
(c)    normal sensibility throughout forearms, upper arms, hands and fingers in both limbs;
(d)    the deep tendon reflexes were symmetrically preserved at the biceps; brachioradialis and triceps, and
(e)    there was no measurable muscle wasting and no sign of muscle atrophy.

Lumbar spine

On examination of the lumbosacral spine, there was normal spinal curvature.
Lumbar spine movements were measured and recorded as follows:
(a)    a full range of lumbosacral flexion and extension demonstrated;
(b)    right and left lateral flexion were performed to normal range, and
(c)    right and left rotation are performed to normal range.
The neurological examination of the lower extremities revealed:
(a)    straight leg raise was performed to 70° bilaterally and the sciatic sign was bilaterally negative;
(b)    normal lower limb power in all muscle groups;
(c)    normal sensibility throughout the feet, below the knee and above the knee;
(d)    the deep tendon reflexes were symmetrically preserved, and
(e)    calf measurements and thigh measurements were equal.

Right shoulder

The left shoulder was normal. At the right shoulder measurements were:
(a)    flexion 130 degrees;
(b)    extension 50 degrees;
(c)    abduction 130 degrees;
(d)    adduction 40 degrees;
(e)    external rotation 90 degrees, and
(f)    internal rotation 70 degrees.
There is local pain with right shoulder impingement tests and there is mild pain with resisted movements across the rotator cuff.

CONSIDERATION OF THE ISSUES

Did the claimant injure her cervical spine in the accident?

The Panel is satisfied that the mechanism of the accident (a rear-end collision with the claimant looking to her right) could have resulted in a whiplash injury to the claimant’s cervical spine. The contemporaneous notes, the claim form and the claimant’s own history satisfied the Panel that the claimant did sustain an injury to her spine.
The claimant has a past history of periodic right-sided neck pain, documented in the medical file, although she could not recall the history at this assessment. The Medical Assessor’s diagnosis is that the claimant sustained a soft tissue injury strain in the neck on a background of degenerative changes.

Did the claimant sustain a complete or partial rupture of cervical tissues?

The post-accident imaging reports describe degenerative changes throughout the cervical spine, greater at C5/6. There has been some progression of the C5/6 degenerative changes between the initial imaging of July 2023 and the more recent imaging of 29 April 2024. This progression is due to the underlying disease and has not been caused by or contributed to by the motor accident.
It is the clinical judgment of the medical members of the Panel that there is no evidence of a traumatic annular tear that could have resulted from the motor accident based upon the imaging findings of July 2023.

Did the claimant sustain a cervical nerve injury manifesting in radiculopathy?

Radiculopathy is defined in cl 5.6 of the Guidelines as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present two or more of the following signs should be found:
(a)    loss or asymmetry of reflexes;
(b)    positive sciatic nerve root tension signs;
(c)    muscle atrophy and/or decreased limb circumference;
(d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The claimant reports non-verifiable radicular complaints in the right upper extremity (pain in the distal right forearm commencing in early 2024) and there was dysmetria. However, there were no clinical signs of cervical radiculopathy assessment in accordance with the criteria set out in cl 5.8 at the re-examination with Medical Assessor Home.
The Panel adopts the reasoning in David vs Allianz Australia Ltd,[22] that radiculopathy can be present at any time to establish that an injury is not a threshold injury for the purposes of the MAI Act.
[22] (2021) NSWPICMP 227 at (84)-(104).
The panel has carefully reviewed the medical information in the medical file and there is no evidence in the GP or physiotherapy notes that the claimant’s presentation met the criteria for cervical radiculopathy at any of the clinical assessments conducted.
Dr Darwish records complaints of radiating pain. Radiating pain is not one of the five signs of radiculopathy provided for in the Guidelines. While Dr Darwish did find some sensory disturbance, Medical Assessor Home found none which is in keeping with the claimant’s history of intermittent symptoms. As Dr Darwish does not report any other signs of radiculopathy, the Panel is not satisfied that when examined by Dr Darwish, the claimant had cervical radiculopathy within the meaning of the Guidelines.

Did the claimant injure her lumbar spine in the accident?

The Panel is satisfied that the mechanism of the accident (a rear-end collision) could have resulted in an injury to Ms Maraseh’s lumbar spine. The contemporaneous notes, the claim form and the claimant’s own history satisfied the Panel that the claimant did sustain some form of injury to her lumbar spine.
The Panel notes one instance of lower back pain reported in the limited GP’s notes provided but no pre-accident radiology, investigations or referral for any lower back condition before the accident.
The GP and physiotherapy notes after the accident do not include consistent complaints of lower back pain and neither Dr Jones, orthopaedic specialist nor Dr Darwish, neurosurgeon record any lower back complaints. The claimant reported periodic back pain to Medical Assessor Home, but he found no objective abnormalities on examination.

Did the claimant sustain a complete or partial rupture of cervical soft tissues?

There has been no radiology of the lumbar spine undertaken since the accident and put before the Panel. There is therefore no evidence of the complete or partial rupture of tendons, ligaments, menisci or cartilage in the lumbar spine.

Did the claimant sustain a lumbar nerve injury manifesting in radiculopathy?

The claimant’s clinical presentation does not meet the criteria for lumbar radiculopathy set out in the Guidelines. There was no wasting or atrophy, normal reflexes and power, no sensory loss and no sciatic nerve root tension signs at the time of Medical Assessor Home’s examination.
Having reviewed the GP and physiotherapist’s notes, there are no clinical features of lumbar radiculopathy in the medical file at any time since the accident.

Did the claimant sustain a right shoulder injury in the accident?

It is the clinical judgment of the medical members of the Panel that a rear-end collision such as that experienced by the claimant could cause an injury to an already injured and vulnerable shoulder.
The question remains whether the claimant’s motor accident on 10 March 2023 did result in an injury to her right shoulder.
The GP’s records indicate complaints of right shoulder pain dating back to 15 October 2019 and that there have been regular complaints since then of right shoulder pain and occasional reports of restricted movement. While she denied in her claim form any pre-existing problems, Ms Maraseh did confirm at the re-examination that she was experiencing symptomatic right shoulder pain before the accident which had persisted despite corticosteroid injection administered in February 2023 a few weeks before the accident.
The Panel is of the view that the claimant did not sustain a further shoulder injury in the accident for the following reasons:
(a)    the shoulder condition was already well established and continued in the period immediately before the accident;
(b)    the claim form does not mention any right shoulder injury and the Panel would expect it to be mentioned if the claimant thought she had injured or further injured her shoulder;
(c)    the claimant said could not recall an increase in shoulder pain until at least two weeks after the accident. There is no mention in the GP records of shoulder pain two weeks after the accident and Dr Quan’s first record of right shoulder pain occurred two months after the accident on 10 May 2023, and
(d)    the Panel would expect immediate complaints of pain in the right shoulder and more contemporaneous complaints recorded in the GP notes if there had been a further injury such as a tear of tissue in the right shoulder.
The Panel is not satisfied that the claimant sustained a right shoulder injury in the motor accident. It is the clinical judgment of the medical members of the Panel that the claimant’s current right shoulder condition is a continuation of the pre-accident condition and pre-accident pathology.
If the claimant did sustain a right shoulder injury in the motor accident, it is the Panel view that the injury would have been a temporary exacerbation of the pre-existing condition but not a longer term aggravation.

Did the claimant sustain a further partial rupture of tissue in the shoulder?

The Medical Members of the Panel are of the view that a further tear of already torn ligaments or tendons in the shoulder is unlikely to occur where the claimant was the driver and a seat belt is over the right shoulder but, it is not impossible as she was leaning forward and looking to the right.
The Panel notes there is evidence of a pre-existing tear in the right shoulder, demonstrated on three ultrasound examinations as follows:
(a)    6 July 2020 - a 7mm x 4mm tear is recorded;
(b)    20 July 2022 - a 4mm x 5mm tear is recorded, and
(c)    22 October 2022 - a 3.8mm x 2.9mm tear is recorded.
It is the clinical experience of the medical members of the Review Panel that an ultrasound is highly operator-dependent (particularly with regards to measurements) which explains the differences in the measurements from the three pre-accident ultrasounds.
An MRI is more sensitive and sometimes more accurate. The claimant’s MRI dated 29 June 2023 records a 7mm long tear. This is not, in the Medical Assessor’s clinical judgment, evidence of significant new pathology when compared with the pre-accident ultrasound imaging because on 6 July 2020 the tear was also measured at 7mm.
Therefore the Panel is not satisfied on the radiological evidence currently before it that there was a further partial tear of the right supraspinatus resulting from the accident.

CONCLUSION

The Panel has found that the claimant did not sustain a complete or partial rupture of tissues such as ligaments, tendons or cartilage of the cervical spine. The Panel has also found that the claimant does not currently have two or more of the five signs of radiculopathy within the meaning of the Guidelines and the records reveal that she has not had at any time since the accident two of the five signs of radiculopathy. It is the Panel’s conclusion that the claimant has a soft tissue or threshold injury to her cervical spine aggravating pre-existing degenerative cervical spine changes.
There is no radiology to suggest the complete or partial rupture of tissues such as ligaments, tendons or cartilage of the lumbar spine. The Panel has also found that Ms Maraseh does not have two of the five signs of lumbar radiculopathy or that she has had any signs of lumbar radiculopathy since the accident. It is the Panel’s conclusion that the claimant has a soft tissue or threshold injury to her lumbar spine.
The Panel is not satisfied that the claimant sustained any, or any significant injury to the right shoulder. In particular the Panel is not satisfied on the radiological evidence that the claimant sustained the complete or further partial rupture of ligaments, tendons, cartilage or menisci in the right shoulder as a result of the accident.
It follows therefore that the Panel is of the view the claimant’s injuries sustained in the accident are threshold injuries. Medical Assessor Nair’s certificate must be revoked, and a fresh certificate issued.

[2024] NSWPICMP 693

4 October 2024