Insurance Australia Limited t/as NRMA Insurance v Shoveller
[2023] NSWPICMP 589
•14 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Shoveller [2023] NSWPICMP 589 |
| CLAIMANT: | Alexander Shoveller |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Anthony Scarcella |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 14 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of a threshold injury under section 1.6; claimant claimed he sustained injuries to the cervical spine and a left arm nerve injury in a motor accident on 12 July 2022; Medical Assessor (MA) Cameron determined that the claimant sustained an injury to the cervical spine caused by the motor accident which was a non-threshold injury and that the left arm nerve injury was not caused by the motor accident; review sought by claimant under section 7.26; consideration and application of section 1.6 and clauses 5.7, 5.8 and 5.9 of the Motor Accident Guidelines; Held – as a result of the motor accident, the claimant sustained a soft tissue injury to the cervical spine with left C8 radiculopathy; the soft tissue injury to the cervical spine with left C8 radiculopathy is a non-threshold injury; there is no evidence of a left arm nerve injury (peripheral nerve injury); the certificate of MA Cameron dated 16 May 2023 is confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel confirms the certificate of Medical Assessor Ian Cameron dated 16 May 2023. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Mr Alexander Shoveller, is a 35-year-old man who was involved in a motor accident on 12 July 2022 (the motor accident). On 13 July 2022, Mr Shoveller made a claim for personal injury benefits on Insurance Australia Limited t/as NRMA Insurance (the insurer). He claimed that he suffered injuries to his neck and back as a result of the motor accident.
Mr Shoveller’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (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.
A dispute has arisen between Mr Shoveller and the insurer as to whether, for the purposes of the Motor Accident Injuries Act 2017 (MAI Act), the injuries caused by the motor accident were threshold injuries.
The dispute about whether the motor accident caused the claimed injuries are threshold injuries is a medical dispute, as defined by s 7.17 of the MAI Act and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The Motor Accident Injuries Amendment Act 2022 amended the MAI Act to omit the term ‘minor injury’ and insert the term ‘threshold injury’ from 1 April 2023. References in these reasons to ‘minor injury’ or ‘minor injuries’ are references taken from documents created prior to 1 April 2023.
The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Ian Cameron for assessment.
The medical dispute was assessed by Medical Assessor Cameron, who issued a certificate dated 16 May 2023 wherein he certified that the injury to the cervical spine was caused by the motor accident and was a non-threshold injury for the purposes of the MAI Act. Further, he certified that the left arm nerve injury was not caused by the motor accident (the Medical Assessment).
REVIEW PROCEDURE
The insurer sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (the Review).
On 13 June 2023, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
On 21 June 2023, Mr Shoveller and the insurer were directed by the Panel to file and serve an indexed and paginated bundle of documents relied on in the Review.
On 14 August 2023, the Panel informed the parties that it considered a re-examination of Mr Shoveller was required. Arrangements were made for Mr Shoveller to be re-examined by Medical Assessor Christopher Oates and Medical Assessor Michael Couch on 12 September 2023. The Panel also directed Mr Shoveller to provide it with a copy of his general practitioners’ clinical records by 5 September 2023 and provide access to electronic copies of all medical imaging studies of his injured parts of the body from 12 July 2021 (namely, one year prior to the motor accident) to date or ensure that the original imaging studies were made available at or before the time of the re-examination.
STATUTORY PROVISIONS
Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Whilst almost all injured persons are entitled to 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 available. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the MAI Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are ‘threshold’ injuries.
The Motor Accidents Injuries Amendment Act 2022 provided for a number of amendments to the scheme of statutory benefits including the payment of statutory benefits on a not at fault or no-fault basis being extended from 26 weeks to 52 weeks and the repeal of s 3.28(3) of the MAI Act, resulting in no statutory benefits being payable after 52 weeks if the injuries are threshold injuries or if the claimant is wholly or mostly at fault. These amendments only apply to a motor accident that occurred after 1 April 2023: Schedule 4, Part 7 of the MAI Act.
Further, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages.
A threshold injury is defined in s 1.6 of the MAI Act and includes a ‘soft tissue injury’.
Section 1.6(2) of the MAI Act defines a soft tissue injury to mean an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Section 1.6 of the MAI Act provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 10 November 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of the assessment of threshold injury to the neck or spine, cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“Soft tissue assessment - injury to a spinal nerve root
5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8 Radiculopathy means the impairment caused by dysfunction of the 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 six of the Motor Accident Guidelines: Permanent Impairment’:
(a)loss of symmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In respect of causation of injuries, Wright J in Briggs v IAG Limited trading as NRMA Insurance[1] stated:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[1] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 at [35].
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines states:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
ASSESSMENT UNDER REVIEW
Medical Assessor Cameron examined Mr Shoveller on 2 May 2023 and issued a certificate under s 7.23(1) of the MAI Act dated 16 May 2023.
Medical Assessor Cameron was asked to assess the cervical spine injury and the left arm nerve injury.
Medical Assessor Cameron took a history that, at the time of the motor accident, Mr Shoveller had been working as an intensive care paramedic for about 6.5 years. Prior to that he had worked as a registered nurse. He was previously in good health and very physically active.
Mr Shoveller provided a history that he sustained injuries in the motor accident as the driver of a stationary vehicle when it was hit from behind by a vehicle travelling at significant speed. Mr Shoveller’s vehicle was pushed across the road and hit another vehicle. He had just finished his shift at work. He suffered neck and back pain. He went home and consulted his general practitioner, Dr Latter, the following day.
Mr Shoveller provided a history of symptoms and treatment following the motor accident. Symptoms were ongoing. He returned to work after one week and had performed half a shift when he developed pain in his left arm in the left trapezial area and in the left little finger. He underwent significant treatment, including, ongoing physiotherapy, hydrotherapy and work in the gym. He had consulted Dr Sammons for pain management. He had undergone two injections into the left side of his neck, which were helpful and an injection to the left ulnar nerve region at the elbow. He was able to return to full-time work in about March 2023.
Mr Shoveller denied having sustained any injuries or experienced other conditions since the motor accident.
Mr Shoveller complained of continuing neck pain and significant pain in the left upper extremity, including the left hand and noted that heat helped his symptoms.
Mr Shoveller reported that his current medications consisted of paracetamol and Meloxicam.
On clinical examination, Medical Assessor Cameron observed that Mr Shoveller was right-handed, 183cm in height and weighed 79kg. He was co-operative and provided a clear history. In respect of the cervical spine, there was a full range of motion in all planes with no muscle spasm, no muscle guarding and no dysmetria. There was pain from the cervical spine on left lateral rotation and pain in the left arm with a Spurling manoeuvre. Medical Assessor Cameron noted that this was a nerve root tension sign. There was a full range of motion in both shoulders and pain on extremes of movement. There was a full range of motion at other upper extremity joints. There was sensory impairment in the left hand little finger. There was tenderness over the ulnar nerve at the left elbow. No asymmetry of reflexes was detected. Upper extremities circumferences were 30cm and 30cm above the elbow respectively and 27cm and 27cm below the elbow respectively. At the thoracic spine, there was full range of motion in all planes, with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints present. At the lumbar spine, there was full range of motion in all planes, with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints present. Nerve tension signs were negative. No abnormalities in the lower extremities were detected.
Medical Assessor Cameron opined that Mr Shoveller was consistent in his presentation.
Medical Assessor Cameron referred to and reviewed the documentation provided to him.
Medical Assessor Cameron concluded that Mr Shoveller sustained a soft tissue injury to his cervical spine, namely, a whiplash associated disorder caused by the motor accident. There was a clear history of the development of left upper extremity pain that was consistent with neuropathic pain due to nerve root irritation soon after the motor accident. Mr Shoveller had convincing sensory symptoms in the C8 dermatome and a positive nerve root tension test (the Spurling test). Accordingly, Medical Assessor Cameron opined that the soft tissue injury to Mr Shoveller’s cervical spine was a non-threshold injury because there were currently signs present that fitted the criteria for radiculopathy set out in the Guidelines, in that, there was a positive nerve root tension test appropriate for the cervical spine and there was reproducible sensory loss that was anatomically localised to an appropriate spinal nerve root distribution.
Medical Assessor Cameron concluded that the left arm nerve injury was not caused by the motor accident. Mr Shoveller had not sustained a specific injury to a nerve in his left arm. Investigations had not demonstrated evidence of a peripheral nerve injury in the left upper extremity.
EVIDENCE BEFORE THE PANEL
The evidence before the Panel consisted of the following:
(a) the insurer’s indexed and paginated bundle of documents dated 9 August 2023 lodged on the Commission’s portal (insurer’s documents);
(b) Mr Shoveller’s indexed and paginated bundle of documents dated
10 August 2023 lodged on the Commission’s portal (Mr Shoveller’s documents), and(c) Mr Shoveller’s Kincumber Doctors clinical records generated on 28 August 2023.
REVIEW OF THE EVIDENCE
Application for personal injury benefits
On 13 July 2022, Mr Shoveller completed an application for personal injury benefits in respect of the motor accident (the application form).[2]
[2] Insurer's documents at pages 30-35.
The application form set out the basic particulars of the motor accident consistent with the history taken by Medical Assessor Cameron.
In the application form, Mr Shoveller described the injuries he received in the motor accident as follows:
“I have neck and back pain, effectiving [sic: affecting] my range of motion in my neck with moderate-severe pain currently treated with both maximum dose paracetamol and ibuprofen. I am also using heat, however I am still in considerate (sic: considerable) discomfort.”[3]
[3] Insurer's documents at page 32.
In the application form, Mr Shoveller disclosed that he was born with a Chiari type I malformation. However, the condition was mild and did not create pain in his neck similar to that which followed the motor accident. Further, the pre-existing condition did not reduce his range of motion. Mr Shoveller denied any prior back injury.
Treating medical records and reports
In evidence, were Mr Shoveller’s Kincumber Doctors updated clinical records generated on 28 August 2023 for the period 26 August 2021 to 23 August 2023.
On 26 August 2021, prior to the motor accident, Dr Winston Latter, general practitioner, of Kincumber Doctors referred Mr Shoveller for MRI scans of the brain and cervical spine on the background of chronic posterior headache and neck pain for six months. Dr Latter queried intracranial pathology and cervical radiculopathy.[4]
[4] Mr Shoveller’s Kincumber Doctors clinical records at pages 4-6.
On 14 September 2021, Mr Shoveller consulted Dr Latter who explained the results of the MRI scans of the brain and cervical spine, namely, that a Chiari malformation type I was disclosed. Dr Latter referred Mr Shoveller to Royal North Shore Hospital for a specialist consultation.[5]
[5] Mr Shoveller’s Kincumber Doctors clinical records at page 7.
On 16 March 2022, Mr Shoveller underwent a whole spine MRI scan based on a clinical indication of Chiari malformation and occipital headaches by Dr Stephen Repse, radiologist. The MRI scan demonstrated cerebellar tonsillar ectopia of 5mm, borderline for Chiari I malformation, similar to the previous imaging from 2011 and 2021; no syrinx or abnormal cord signal; and a mild focal disc herniation at T7/8 mildly indenting the cord without myelomalacia.[6]
[6] Mr Shoveller’s Kincumber Doctors clinical records at pages 101-102.
On 13 July 2022, Mr Shoveller consulted Dr Latter advising that, on the previous day, he had been involved in a motor accident when his vehicle was rear-ended by a vehicle whilst he was stopped at an intersection. The vehicle that had struck him was travelling at about 80kmph. The impact was significant and his vehicle was knocked forward into a car in front of him. At the time of the motor accident, he was wearing a seatbelt. The airbag did not deploy. He self-extricated. Mr Shoveller complained of a mild headache; moderate to severe right-sided neck pain the previous night, which had improved; and some minor lumbar back pain. Dr Latter concluded that Mr Shoveller had sustained a whiplash injury to his neck with ongoing muscle spasm/strain on the right side. Dr Latter referred Mr Shoveller for MRI scans of the brain and cervical spine.[7]
[7] Mr Shoveller’s Kincumber Doctors clinical records at pages 9-10.
On 15 July 2022, Mr Shoveller consulted Dr Latter advising that his neck and back felt much better and that he wanted to return to work the following day. Dr Latter discussed the risks and benefits of a return to work.[8]
[8] Mr Shoveller's Kincumber Doctors clinical records at page 10.
On 19 July 2022, Mr Shoveller consulted Dr Latter advising that he had returned to work on Saturday and did not perform any heavy lifting or physical work but was seated for prolonged periods in the ambulance going over rough road surfaces. He complained that his back and neck pain became progressively worse during his shift and that he ended up leaving work and had not returned to work since. He now complained of some paraesthesia down the left arm as well as a burning/stinging pain in the lower back without radiation into his legs. Dr Latter certified him unfit for work for two weeks and recommended light activity only and bed rest. He prescribed Mobic 15mg tablets once daily for a period of 14 days and referred him to Aspire Physiotherapy Centre. He also referred Mr Shoveller for a lumbar spine MRI scan.[9]
[9] Mr Shoveller's Kincumber Doctors clinical records at pages 10-11.
On 30 July 2022, Mr Shoveller underwent MRI scans of his brain and cervical spine by Dr Brett Lyons, radiologist. Dr Lyons reported that, in respect of the brain, the MRI scan demonstrated stable appearances of the cerebellar tonsils and no acute intracranial lesion. In respect of the cervical spine, the MRI scan demonstrated a mild disc bulge at C5/6 without spinal canal compromise but mild foraminal narrowing and no interval change compared with March 2022. There was no fracture or malalignment and no cord contusion.[10]
[10] Insurer's documents at pages 285-286.
On 15 August 2022, Mr Matthew King, physiotherapist, of Aspire Physiotherapy Centre reported to Dr Latter. Mr King reported that Mr Shoveller continued to experience persistent cervical pain, mostly on the left side, with intermittent radiating pain and paraesthesia down the left arm following an ulnar distribution. Symptoms were still quite irritable and it did not take much activity to exacerbate them. Findings on examination included left rotation limited to 70% range of motion and reproduced left-sided neck pain; left lateral flexion was limited to 70% range of motion and reproduced left-sided neck pain; upper limb neurodynamic tension testing was positive on the left, reproducing left-sided neck pain and paraesthesia down the left arm; ulnar bias testing was the most positive; palpation of cervical facets were both stiff and symptomatic, especially on the left side at C2/3 and C5/6; and neurological examination was negative. Mr King opined that Mr Shoveller’s neck symptoms were consistent with a grade 3 whiplash associated disorder and resultant cervicogenic headache.[11]
[11] Insurer's documents at pages 305-306.
On 7 October 2022, Mr Shoveller underwent nerve conduction studies by Dr Yun Tae Hwang, consultant neurologist. Dr Hwang reported that the nerve conduction studies were within normal limits. There was no evidence of a median and/or ulnar nerve entrapment at the level of the wrist or elbow.[12]
[12] Insurer's documents at pages 292-293.
On 11 October 2022, Dr Latter referred Mr Shoveller to Dr Vanessa Sammons, neurosurgeon. Dr Latter reported to Dr Sammons that Mr Shoveller had suffered a whiplash injury in a motor accident where he was rear-ended and experienced persistent neck pain and paraesthesia from the left elbow down to the little finger. Mr Shoveller had been undergoing regular physiotherapy and experienced steady improvement in terms of neck pain and range of motion. However, the paraesthesia in the left little finger continued.
Dr Latter reported that, on examination, there was marked exacerbation of the paraesthesia during repeated palpation of the ulnar groove.[13][13] Insurer's documents at page 298.
On 28 October 2022, Mr Shoveller underwent a cervical spine MRI scan by Dr Lyons. Dr Lyons reported the clinical history as a whiplash injury with ongoing neck pain and paraesthesia. He reported mild foraminal narrowing from the far lateral disc and uncovertebral prominence at C5/6 and mild right and mild to moderate left foraminal narrowing from far lateral disc osteophyte at C6/7. There were stable interval appearances when compared with previous imaging; no fracture or malalignment; no evident haematoma; and no major disc protrusion.[14]
[14] Insurer's documents at pages 287-288.
On 4 November 2022, Dr Sammons reported to Dr Latter that Mr Shoveller had consulted her about ongoing neck pain, persistent numbness to his left little finger and occasional abnormal sensations to the medial forearm, elbow and medial arm following the motor accident. She opined that the MRI scan of Mr Shoveller’s cervical spine was essentially normal and that there was nothing to account for his ongoing symptoms. She also opined that Mr Shoveller had ongoing neck pain from the whiplash but in order to exclude an element of cervical facet arthropathy, she recommended a bone scan. Dr Sammons also recommended a left elbow MRI scan to assess any signal change or compression of the ulnar nerve.[15]
[15] Insurer's documents at pages 307-308.
On 10 November 2022, Mr Shoveller underwent a localised bone scan on the background of neck pain for three months following a high-speed motor accident. The bone scan identified minimal to mildly active left C2/3, left C5/6 and C6/7 facet joints with the remaining cervical facet joints being quiescent. There was normal cervical discovertebral activity and normal activity within the cervical vertebral bodies. There was mild arthritic uptake within the acromioclavicular joints and normal activity within the glenohumeral joints.[16]
[16] Insurer's documents at pages 289-290.
On 10 November 2022, Mr Shoveller also underwent a left elbow MRI scan on the background of ulnar distribution numbness, query nerve abnormality. The MRI scan revealed a normal study.[17]
[17] Insurer's documents at page 291.
In his clinical records, Mr King diagnosed Mr Shoveller as having suffered a whiplash associated disorder grade 3 with C7/T1 discogenic pain and C6/7 radiculopathy.[18]
[18] Insurer's documents at page 105.
On 18 November 2022, Mr Shoveller consulted Dr Sammons, who reported to Dr Latter. Dr Sammons noted that the MRI scan of the left elbow was normal and demonstrated no abnormality in the ulnar nerve. The bone scan demonstrated some mild uptake but nothing significant and nothing that accounted for the pain that Mr Shoveller had been experiencing. Dr Sammons also noted that Mr Shoveller had a Tinel’s sign over the ulnar nerve just proximal to the cubital tunnel. She was at a loss to explain Mr Shoveller’s pain. She recommended a referral to a pain physician, Dr Lewis Holford. She also recommended a brachial plexus MRI scan and an ultrasound of the ulnar nerve over its whole course to investigate this clinically suspicious nerve.[19]
[19] Insurer's documents at pages 309-310.
On 24 November 2022, Mr Shoveller underwent an ultrasound of his left brachial plexus and left ulnar nerve. The sonographer reported that the ulnar nerve was imaged from the left axilla to the wrist. It appeared normal in course and in calibre. There was no discrete or perineural lesion visible. On dynamic assessment, there was no subluxation of the ulnar nerve at the level of the left elbow. There were no further diagnostic features.[20]
[20] Insurer's documents at page 290.
On 24 November 2022, Mr Shoveller also underwent a left brachial plexus MRI scan. The MRI scan demonstrated that the left brachial plexus appeared normal. There was no thickening or abnormal signal within the nerve roots. There was no mass in the left superior sulcus. At the disc levels, there was no significant disc bulge, central canal or foraminal stenosis. The spinal cord was normal. There was no paravertebral abnormality.[21]
[21] Insurer's documents at page 295.
On 29 November 2022, Dr Latter referred Mr Shoveller to Dr Marc Coughlan, neurosurgeon and spinal surgeon, for a second opinion.[22] It is unclear whether Mr Shoveller consulted Dr Coughlan as there is no report from the latter in evidence.
[22] Insurer's documents at page 303.
On 7 December 2022, Mr Shoveller underwent a CT guided left-sided C6/7 facet joint injection by Dr Gordon Melville, radiologist, on the referral of Dr Latter.[23]
[23] Mr Shoveller’s Kincumber Doctors clinical records at pages 31-32.
On 14 December 2022, Mr Shoveller consulted Dr Nelson Martoo, general practitioner, of Kincumber Doctors advising that the CT guided left-sided C6/7 facet joint injection provided temporary pain relief.[24]
[24] Mr Shoveller’s Kincumber Doctors clinical records at page 15.
On 16 December 2022, Mr Shoveller consulted Dr Sammons, who reported to Dr Latter. Dr Sammons noted that the left-sided C6/7 corticosteroid facet injection gave Mr Shoveller quite significant improvement in his symptoms. Whilst she was still perplexed by Mr Shoveller’s symptoms of ulnar neuropathy despite normal nerve conduction studies and normal imaging, she pondered whether an ultrasound guided steroid injection may provide symptomatic improvement. Dr Sammons also thought it reasonable to repeat the facet injection and include C5/6 with the next injection and recommended that Mr Shoveller continue with physiotherapy.[25]
[25] Mr Shoveller’s Kincumber Doctors clinical records at page 56.
On 21 December 2022, Mr King reported to Dr Latter that Mr Shoveller continued to suffer with persistent left-sided neck and thoracic spine pain with radiating pain and paraesthesia down his C7 dermatome. He noted some early improvements following the C6/7 facet joint cortisone injection, which could be attributed to the effect on the nearby C7 nerve root. He recommended the consideration of a C7 perineural injection.[26]
[26] Mr Shoveller’s Kincumber Doctors clinical records at page 60.
On 6 January 2023, Mr Shoveller underwent a CT guided left-sided peri-C7 injection and an ultrasound guided peri-ulnar nerve injection in the left cubital tunnel by Dr Melville on the referral of Dr Latter.[27]
[27] Mr Shoveller’s Kincumber Doctors clinical records at pages 32-33.
On 27 January 2023, Mr Shoveller consulted Dr Latter advising that, initially, he had a poor response following the CT guided left-sided peri-C7 injection and an ultrasound guided peri-ulnar nerve injection in the left cubital tunnel. A few days later, there was rapid improvement and he had experienced minimal symptoms thereafter. Dr Latter noted that Mr Shoveller was keen to go back to work and that the physiotherapist had cleared him to do so.[28]
[28] Mr Shoveller’s Kincumber Doctors clinical records at pages 17-18.
On 24 February 2023, Mr Shoveller consulted Dr Sammons, who reported to Dr Latter. Dr Sammons noted that Mr Shoveller was doing extremely well with complete resolution of all the pain he was experiencing. She remained fairly convinced that he had some degree of ulnar neuropathy evidenced by still having some degree of numbness to the left little finger and also because of the improvement following injection. She opined that Mr Shoveller could engage in normal activities at work. If symptoms returned, she would gladly see him at short notice.[29]
[29] Mr Shoveller’s Kincumber Doctors clinical records at page 74.
On 16 March 2023, Mr Shoveller consulted Dr Latter and reported that he had experienced continued improvement and was doing normal hours and normal duties at work. On most days, he did not experience any neck issues but did get some neck pain after particularly demanding shifts which he managed with Mobic and neck stretching at the end of his shift.[30]
[30] Mr Shoveller’s Kincumber Doctors clinical records at pages 19-20.
On 13 April 2023, Mr Shoveller consulted Dr Latter and reported that he was tolerating work duties well but still experienced flare-ups on 50% of his work days, which he managed with Mobic. He also reported nil to minimal symptoms on non-work days. Physiotherapy visits had been reduced to fortnightly visits.[31]
[31] Mr Shoveller’s Kincumber Doctors clinical records at page 20.
On 9 May 2023, Mr Shoveller consulted Dr Latter and reported that he had experienced a regression in his symptoms over the past few weeks with worsening neck pain, increased radiation into the left shoulder, increased paraesthesia in the left fifth finger and now, paraesthesia in the fourth finger. Dr Latter referred Mr Shoveller for a CT guided left-sided C6/7 facet joint injection and prescribed amitriptyline.[32]
[32] Mr Shoveller’s Kincumber Doctors clinical records at page 20.
On 29 May 2023, Mr Shoveller underwent a CT guided left-sided C6/7 facet joint injection by Dr Melville on the referral of Dr Latter.[33]
[33] Mr Shoveller’s Kincumber Doctors clinical records at page 36-37.
On 30 June 2023, Mr Shoveller consulted Dr Latter and reported minimal change in his condition. He experienced ongoing flare-ups every three days or so. He found that the prescribed amitriptyline did not help his left arm radicular pain. He was taking Mobic on most days and having ongoing physiotherapy.[34]
[34] Mr Shoveller’s Kincumber Doctors clinical records at pages 21-22.
On 23 August 2023, Mr Shoveller consulted Dr Latter and reported minimal change in his condition. The CT guided left-sided C6/7 facet joint injection provided moderate improvement but faded over a few weeks/months. Symptoms remain variable most days and were exacerbated on difficult work days. At his request, Dr Latter referred Mr Shoveller to Living Well Exercise Physiology for an opinion and management of his whiplash associated disorder.[35]
SUBMISSIONS
[35] Mr Shoveller’s Kincumber Doctors clinical records at page 165.
Nerve conduction studies performed by Dr Hwang dated 7 October 2022 revealed the studies to be within normal limits. There was no evidence of a median or ulnar nerve entrapment at the level from the wrist to the elbow.
The available investigations did not demonstrate any significant organic pathology of the cervical and lumbar spine arising from trauma. There were no clinical signs on examination suggestive of radiculopathy.
Despite undergoing numerous radiological investigations, which were all reportedly normal, Dr Sammons was unable to provide a specific diagnosis and cause for Mr Shoveller’s continuing symptoms. Specifically, MRI investigations of Mr Shoveller’s cervical and lumbar spines have not indicated any pathology to account for his complaints.
The imaging scans were not consistent with an impingement of the C8 nerve root to account for the cervical origin of the sensory alteration reported in the left little finger, particularly, in the presence of tenderness over the ulnar nerve at the left elbow and Tinel sign proximal to the cubital tunnel.
Despite the persistence of symptoms, Mr Shoveller’s injuries did not satisfy the criterion of radiculopathy as set out in cl 5.8 of the Guidelines. The Guidelines indicate that for a diagnosis of radiculopathy to be satisfied, two or more of the clinical signs mentioned in cl 5.8 need to be found on examination.
There was, at most, one sign of radiculopathy in the form of altered sensory loss attributed to a C8 dermatomal distribution which may satisfy cl 5.8(e) of the Guidelines.
The test under cl 5.8(b) of the Guidelines is not “positive nerve root tension signs” but rather, “positive sciatic nerve root tension signs”. Thus, a positive nerve root tension sign in the cervical spine as evidenced by a positive Spurling test does not satisfy cl 5.8(b) of the Guidelines.
Mr Shoveller’s submissions
The use of a Spurling’s manoeuvre is best practice for diagnosing cervical radiculopathy with a specificity of 93%. Such proposition is supported by medical literature.
The injury to Mr Shoveller’s cervical spine was caused by the motor accident and is a non-threshold injury.
THE RE-EXAMINATION
Mr Shoveller attended the Commission’s medical suites on 12 September 2023 for a Panel re-examination with Medical Assessor Couch and Medical Assessor Oates as arranged.
HISTORY
Pre-accident medical history and relevant personal details
Mr Shoveller said he had a mild but persistent headache with no arm symptoms and no history of injury in September 2021.
Mr Shoveller underwent MRI scans of the cervical spine and brain ordered by his general practitioner, Dr Latter. The MRI brain scan showed a type 1 Chiari malformation with 5.5mm right cerebellar tonsillar descent, slightly less on the left. The cervical spine MRI scan showed no significant abnormality. There was mild bilateral C5/6 foraminal narrowing from slight uncovertebral joint spurring. Mr Shoveller told the Panel examiners that Dr Latter had written “? radiculopathy” on the referral form to reduce the fee for the MRI scan. The headaches subsequently settled without treatment.
Mr Shoveller has had no previous accidents or injuries and has never broken a bone. He had bilateral inguinal hernia repair at age one. At age 12, he had arthroscopic surgery for the right shoulder for dislocation. The operation was successful.
In 2011, Mr Shoveller had a possible viral encephalitis. He recovered in about two days. A scan was taken at this time but was not available.
Mr Shoveller worked as a registered nurse but became an ambulance paramedic about 6.5 years ago. His wife is a clinical nurse educator but is currently on maternity leave. They have a son aged nine months.
Mr Shoveller used to enjoy surfboard riding and had moved into a house about three years ago which he was in the process of renovating at the time of the motor accident.
Mr Shoveller is right hand dominant. He does not smoke.
History of the motor accident
On 12 July 2022 at 8.00pm, Mr Shoveller said he was the driver of a dual cab utility. He was stationary in a queue with four vehicles in front of him at roadworks. He was hit from behind by an XR6 Falcon travelling at high speed. His vehicle was pushed across the road and ended up on the traffic island, and the XR6 then hit the rear of his vehicle.
Mr Shoveller had a seatbelt on. Airbags did not deploy. He had an abrasion on one elbow but could not remember which one. He had immediate diffuse cervical spine pain and mid-line low back pain, with spasm in the paralumbar muscles and trapezius muscles bilaterally. Police attended.
History of symptoms and treatment following the motor accident
Mr Shoveller consulted Dr Latter the day following the motor accident. He was complaining of neck and back pain. Within days, he developed burning pain from the posterior left shoulder to the elbow but had no pain below the elbow but did develop numbness in the left little finger extending proximally to the wrist, through the palm of the hand.
Mr Shoveller underwent physiotherapy, hydrotherapy and did gymnasium-based exercises. He had three injections.
On 7 December 2022, Mr Shoveller underwent a CT-guided left C7 facet joint injection and on 6 January 2023, underwent a left C6/7 peri-radicular injection which gave the best result in reduction of symptoms for about three weeks. The left C7 facet joint injection was repeated on 29 May 2023. Each of the injections provided about three weeks of partial benefit. He found that during this period, the pain level was halved.
Mr Shoveller consulted Dr Sammons, neurosurgeon. She ordered a left ulnar nerve perineural injection on 6 January 2023 but this only aggravated the pain around the elbow and did not settle the numbness in the left hand.
Dr Latter prescribed Mr Shoveller amitriptyline 10mg at night, which helped him to sleep. He is also taking meloxicam, on a daily basis and paracetamol most days.
Mr Shoveller underwent a nerve conduction study and MRI scan of the brachial plexus and ulnar nerve, all of which showed no abnormality. Dr Sammons could not, therefore, justify her preferred option of exploring the ulnar nerve at the elbow, which she thought might be causing the left hand numbness.
Mr Shoveller found he was using his left hand less to avoid exacerbating the pain in the left shoulder and arm. The pain was particularly acute during cardiopulmonary resuscitation (CPR) training, which is required on a regular basis to maintain currency as a paramedic. He also found the left arm pain was worse with prolonged sitting. It is relieved by a heat pack applied to the base of the left side of the neck and the left trapezius, and doing gymnasium exercises mainly consisting of cardio work and stretches. He also finds a sauna very helpful.
At one stage, Mr Shoveller was in the sauna and a person, who turned out to be an exercise physiologist, observed him closely and told him he had atrophy of the left pectoralis muscle and increased tone in the left trapezius, and that he could help him. So, he has obtained a referral to an exercise physiologist.
Mr Shoveller has continued physiotherapy every two weeks at Aspire Physiotherapy Centre in Erina.
Over time, Mr Shoveller’s back settled with the exercise program but he has continuing neck pain and left arm symptoms.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Shoveller said he has not sustained any subsequent accident or relevant condition.
Current symptoms
Mr Shoveller has continuing neck pain radiating to the left shoulder and upper arm and numbness in the left little finger radiating proximally to the level of the wrist.
Current treatment consists of Mobic (meloxicam) and paracetamol.
Mr Shoveller says he can drive “OK” but his sleep is terrible because of left arm pain. He has a struggle picking up his 10kg nine-month-old son and uses his right arm for any lifting, pushing and pulling tasks.
Mr Shoveller says he can do most things at home but has difficulty sustaining things. He can no longer paddle his surfboard because it increases the pain. He finds prolonged neck extension hurts.
The physiotherapist put a weighted hat on his head to increase axial load as a form of exercise to strengthen neck muscles, but it increased the neck pain intolerably and exacerbated his left arm symptoms, such that he could not continue wearing it.
Mr Shoveller continues to have constant numbness in the left little finger with some intermittent pins and needles, especially if the finger is stroked.
Mr Shoveller does not do the yard work, as his wife enjoys doing this. He was not able to continue the home renovation, which had been his project prior to the motor accident.
Mr Shoveller is independent with personal care.
Financial pressures dictated Mr Shoveller’s return to work and he continues working as a paramedic full-time in his usual duties, although as team leader, he delegates heavier tasks such as CPR.
CLINICAL EXAMINATION
General presentation
Mr Shoveller was of slim muscular build with height 182cm and weight 82.3kg.
He sat comfortably whilst relating the history and stood erect and walked without a limp. He transferred freely from a chair and on and off the couch.
He was able to remove and replace upper clothing without difficulty.
Cervical spine
Normal contour. Flexion one-half normal range. Extension was full, although he complained of an increase in left upper extremity symptoms. Lateral flexion to the right two-thirds and to the left, two-thirds of normal range. Rotation to the right two-thirds and to the left, one-half normal range.
There was a positive Spurling test on the left side, which is a test for cervical nerve root irritation. There was no guarding. There was tightness in the upper trapezii bilaterally.
There was tenderness at C6/7 mid line and to the left side. There was a positive upper limb tension test with a left ulnar bias. This test is performed with the subject supine with scapular stabilisation and a combination of shoulder abduction and external rotation, with wrist and little finger extension, elbow flexion and then further shoulder abduction. This manoeuvre produced an increase of his usual symptoms in the left arm and left hand. Left hand symptoms were described as heaviness and numbness in the left little finger.
Reflex testing showed normal triceps, biceps and brachioradialis reflexes. Power was reduced at the left thumb interphalangeal joint extension and thumb adduction. The power of the hand intrinsic muscles was normal.
Sensation was reduced in a left C8 distribution, which is confined to the left little finger and adjacent ulnar border of the palm to the level of the wrist.
Upper arm girth: right 34cm, left 33cm. Forearm girth: right 30cm, left 28.5cm.
The left forearm wasting is greater than the normal 0.5cm to 1cm reduction expected in the non-dominant upper limb.
Right and left shoulders
There was 2cm down sloping of the left trapezial ridge compared with the right. There was early left deltoid wasting.
Shoulder movements Active ROM measured right Active ROM measured left Flexion 180° 160°
with complaint of increased left hand symptomsExtension 50° 50° Adduction 40° 40° Abduction 180° 160°
with complaint of increased left hand symptomsInternal Rotation 90° 70° External Rotation 90° 70°
Active range of movement was measured with a goniometer.
In the right and left elbows there was a full range of movement in flexion, extension, pronation and supination.
Tinel’s sign was negative over the ulnar nerve at both elbows and there was no subluxation of the ulnar nerve observed.
There were no abnormalities in the lower limbs and specifically, no reflex changes.
Comments on consistency
Mr Shoveller was consistent in his clinical presentation.
Imaging
The following reports of imaging were supplied to the Panel Medical Assessors at re-examination:
(a) 13 September 2021 – MRI brain and cervical spine (pre-motor accident). Chronic headache and neck pain. MRI brain scan showed Chiari malformation type I but no other abnormalities. MRI of cervical spine showed no significant abnormality. There was mild bilateral C5/6 foraminal narrowing from slight uncovertebral joint spurring but no evidence of space-occupying lesion of cervical cord, such as syrinx, no transverse myelopathy or myelomalacia, and no major disc protrusion, and
(b) 18 March 2022 – MRI whole spine (pre-motor accident). Consider Chiari malformation, occipital headaches warranting further investigation. Cerebellar tonsillar ectopia of 5mm, which is borderline for Chiari malformation type I, similar to the previous imaging from 2021 and 2011. No syrinx or abnormal cord signal. A mild focal disc herniation at T7/8 mildly indents the cord without myelomalacia.
DIAGNOSIS AND CAUSATION
The diagnosis is soft tissue injury to the cervical spine with left C8 radiculopathy.
The motor accident was the cause of this injury, as neck pain was mentioned in the early contemporaneous medical evidence (general practitioner, physiotherapy and treating neurosurgeon’s records) and has continued since the time of the motor accident. No other potentially causative factors were identified. A pre-accident MRI scan of the cervical spine was performed to investigate cervicogenic headache and the claimant explained that “?radiculopathy” written on the scan request form was done to reduce the fee for the scan and that no cervical radiculopathy was suspected at that time.
Based on the results of the clinical examination, there is no evidence of left arm nerve injury, interpreted by the Panel as a peripheral nerve injury.
THRESHOLD INJURY
The cervical spine injury is a non-threshold injury because clinical examination revealed evidence of two or more signs of radiculopathy, namely, altered sensation in the left C8 distribution and decreased power in left thumb interphalangeal joint extension, which is a reflection of a C8 lesion and also atrophy in the left forearm, which is the symptomatic side.
Clinical examination confirmatory tests involved a positive Spurling test and a positive upper limb tension test with a left ulnar bias. These latter tests are indicative of left cervical nerve root irritation. They help to confirm the diagnosis of left C8 radiculopathy, but they are not diagnostic criteria for cervical radiculopathy prescribed by the State Regulatory Insurance Authority (SIRA).
FINDINGS
The Panel adopts the re-examination findings and conclusions of Medical Assessor Oates and Medical Assessor Couch based on their examination and specific findings pertaining to diagnosis.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[36] and Insurance Australia Ltd v Marsh.[37]
[36] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[37] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel determines that there is no evidence of left arm nerve injury (peripheral nerve injury).
The Panel determines that Mr Shoveller sustained a soft tissue injury to the cervical spine with left C8 radiculopathy as a result of the motor accident.
The Panel determines that the soft tissue injury to the cervical spine with left C8 radiculopathy is a non-threshold injury for the purposes of the MAI Act.
CONCLUSION
The certificate of Medical Assessor Cameron dated 16 May 2023 is confirmed.
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