Insurance Australia Limited t/as NRMA Insurance v Smolovic
[2023] NSWPICMP 409
•24 August 2023
| DETERMINATION OF REVIEW PANEL | ||||
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Smolovic [2023] NSWPICMP 409 | |||
| CLAIMANT: | Veselin Smolovic | |||
INSURER: | Insurance Australia Limited t/as NRMA | |||
| REVIEW PANEL | ||||
| MEMBER: | Gary Victor Patterson | |||
| MEDICAL ASSESSOR: | Margaret Gibson | |||
| MEDICAL ASSESSOR: | Wing Chan | |||
| DATE OF DECISION: | 24 August 2023 | |||
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 18 February 2021; the dispute related to causation of injury and whether any of the injuries suffered are not threshold injuries, injury to neck, back, both shoulders and both knees; claimant’s vehicle was struck from behind in a multi-vehicle motor accident; direct impacts to head, right shoulder and both knees; whether changes shown by diagnostic scanning of right shoulder and/or right knee are merely degenerative or likely accident-related; principals of causation; application of clinical judgment; Briggs v IAG Limited applied; Held – original certificate confirmed. | |||
| DETERMINATIONS MADE: | CERTIFICATE Certificate is issued under s 7.23(1) of the Motor Accident Injuries Act2017 The Review Panel confirms the Certificate dated 22 October 2022 by Medical Assessor David Gorman and certifies as follows:
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STATEMENT OF REASONS
INTRODUCTION
Veselin Smolovic (the claimant), was 60 years of age at the time of the motor accident. The claimant is married with two adult children. He is working full-time as forklift driver. He has a history of hypertension but otherwise was in good health at the time of the motor accident.
On 18 February 2021, while driving home from work, the claimant was involved in a four-car motor accident (the accident). His car was hit from behind. It was raining and there was heavy traffic. The claimant’s Honda Civic was written off.
The claimant says that he suffered injuries to his neck, back, both shoulders and both knees. The claimant recalls that he hit his right shoulder on the side of the driver’s door, his head hit the headrest and both knees hit the interior of the car on impact.
On 16 March 2021, the insurer accepted liability for statutory benefits, for 26 weeks from the date of the motor accident. The insurer subsequently denied liability for benefits after
26 weeks from the motor accident, as the claimant was assessed as having minor injuries, despite not being at fault. The insurer confirmed that decision on 30 September 2021 upon internal review. The insurer also declined a full body scan as not being reasonable and necessary.
The claimant’s legal representatives lodged an application with the Personal Injury Commission (Commission) for determination of whether the claimant’s injuries relevantly are minor (threshold) injuries for the purposes of Motor Accident Injuries Act2017 (the Act).
NRMA (the insurer) insured the owner and/or the driver of the vehicle at fault for liability to pay to the claimant any damages and/or statutory compensation entitlements under the Act.
The issue presently in dispute is whether or not any of the injuries caused by the accident relevantly are more than threshold injuries for the purposes of the Act.
THE REVIEW
The claimant was seen on 24 August 2022 by Medical Assessor David Gorman who certified as follows:
The following injuries caused by the motor accident:
· Lumbar spine – soft tissue injury aggravating degenerative changes – no radiculopathy.
· Cervical spine – soft tissue injury aggravating degenerative changes – no radiculopathy.
· Left knee – soft tissue injury with aggravation of chondromalacia.
· Left shoulder – soft tissue injury aggravating degenerative change.
· Thoracic spine – soft tissue injury aggravating degenerative change – no radiculopathy.
are MINOR INJURIES for the purposes of the Act.
The following injuries caused by the motor accident:
· Right knee - undisplaced tears of the remedial and lateral menisci and cleavage tear and under-surface tear of the lateral meniscus – significant worsening pain and movement in the right knee confirming that some of the cartilaginous and meniscal injuries occurred at the time of the accident.
· Right shoulder – partial thickness tear of the supraspinatus tendon and undisplaced tear of the postero-superior labrum – significant worsening pain and movement in the right shoulder confirming that some of the ligamentus injuries occurred at the time of the accident are not MINOR INJURIES for the purposes of the Act.
The insurer sought a review of Medical Assessor Gorman’s Certificate on the basis that the assessment was incorrect in a material respect within the meaning of s 7.26 of the Act. It was submitted that Medical Assessor Gorman provided insufficient reasons to support causation and diagnosis of injury to the right shoulder and right knee sustained in the motor accident. The insurer submitted it was erroneous to assume that the tear of the supraspinatus tendon and labrum in the right shoulder, and meniscal tear in the right knee, were caused solely by the motor accident, as Medical Assessor Gorman asserts, because they were found upon diagnostic image after the motor accident.
The insurer further submits it was incumbent on Medical Assessor Gorman to have addressed the degenerative changes evidenced on imaging as the potential contributory cause of the right shoulder and right knee tears. The insurer submits it is medically plausible that the pathology in the right shoulder and right knee was pre-existing, was rendered symptomatic by the motor accident, yet Medical Assessor Gorman does not comment on this alternative causation.
The insurer’s submissions do not appear, on their face, to consider whether the motor accident could have been a material contributing cause, if not the sole cause, of aggravation to the claimant’s pre-existing conditions, thereby rendering them symptomatic.
The insurer’s application for review was opposed by the claimant. In his written submissions in reply, the claimant’s solicitor addressed each of the bases upon it was alleged that Medical Assessor Gorman had fallen into error. Briefly, the claimant says that the insurer ignores the fact that Medical Assessor Gorman had an opportunity to:
· assess the claimant;
· review the available medical evidence;
· employ his entire gamut of clinical skill and judgment, and
· review the submissions made by the insurer, prior to the assessment, which are set out at paragraph 3 on page 2 of Medical Assessor Gorman’s reasons.
It was submitted for the claimant that Medical Assessor Gorman’s specifically turned his mind to causation, made specific findings and exposed his process of reasoning, in undertaking his statutory task.
It was further submitted for the claimant that the insurer had not identified any error on the part of Medical Assessor Gorman which could satisfy the President’s delegate that the Certificate was incorrect in a material respect. It was submitted that Medical Assessor Gorman’s determination was not open to challenge simply because the insurer disagreed with it.
President’s delegate Tajan Baba issued a Determination of an Application for Review of a Medical Assessment dated 30 December 2022. That stated the President’s delegate was satisfied there is a reasonable cause to suspect that Medical Assessor Gorman’s medical assessment was incorrect in a material respect. The findings of the President’s delegate was as follows:
·the applicant’s ground for review of insufficient reasons provided to support causation and diagnosis of injury to the right shoulder and right knee sustained in the motor vehicle accident satisfies me of reasonable cause to suspect that the medical assessment was incorrect in a material respect.
Statutory provisions
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the Personal Injury Commission Act 2020 (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.[1]
[1] s 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] s 7.26(6) of the Act.
All members of the Panel had no previous involvement with the claimant or with this matter.
The application for referral of the medical assessment of Medical Assessor David Gorman was made by the insurer within 28 days after the parties were issued with the original certificate for which review is sought.
Threshold injury
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Section 1.6(2) of the Act defines a “soft tissue injury” as:
“(A)n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membrane), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci, or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3The 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.
5.4Diagnostic imaging is not considered necessary to assess threshold injury.
5.5A 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.
5.6The 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.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 Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
‘Causation means that a physical, chemical or biological 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 judgment.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause, as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material:
(a) submissions to the President’s delegate dated 1 December 2022;
(b) submissions dated 5 October 2021 in support of application re a minor injury dispute;
(c) various certificates of capacity/fitness;
(d) report of CT scan of cervical spine and lumbar spine dated 22 February 2021;
(e) report of ultrasound of both shoulders dated 25 February 2021;
(f) Liverpool Hospital clinical documents dated 18 February 2021;
(g) reports of MRI scans of both knees dated 15 April 2021;
(h) report of MRI scan of cervical spine and right shoulder dated 17 May 2021;
(i) report of whole body bone scan dated 21 June 2021;
(j) report of MRI of lumbar spine dated 21 June 2021;
(k) report of Dr Mathew Giblin to insurer and Dr Low dated 7 June 2021;
(l) claimant’s statement dated 16 March 2021;
(m) letter dated 18 August 2021 from NRMA to the claimant declining liability for benefits after 26 weeks based upon Liverpool Hospital’s notes;
(n) letter dated 2 September 2021 from NSW Compensation Lawyers to NRMA requesting review, and
(o) letter dated 30 September 2021 from NRMA confirming declinature upon Internal Review based upon soft tissue injuries.
The insurer relied upon the following material:
(a) submissions in support of review application dated 18 November 2022;
(b) Commission’s medical assessment certificate by Medical Assessor David Gorman dated 22 October 2022;
(c) Allied Health Recovery Request Plans 1 – 4;
(d) clinical records of Liverpool Hospital;
(e) report dated 21 May 2021 from Prime Physiotherapy;
(f) clinical records of Prime Physiotherapy;
(g) letter dated 24 May 2021 from Chantelle Buck, treating physiotherapist;
(h) report dated 30 June 2021 by Dr Mathew Giblin;
(i) report dated 30 August 2021 by Dr Mathew Giblin;
(j) report dated 11 October 2021 by Dr Mathew Giblin, and
(k) collision and biomechanics report dated 30 September 2021 by Dr Andrew McIntosh.
The Panel has considered all of that material. Relevant portions are referred to below and in the RE-EXAMINATION section of this reasons.
Ms Buck (R12) notes meniscal tears in the right knee and a right rotator cuff tear. She records that the claimant reported right shoulder pain and right knee pain, initial onset following the motor accident. Imaging (MRI) indicated right knee meniscal tears and chondral damage. An ultrasound of the right shoulder indicated a supraspinatus tear. Ms Buck expected that the claimant may require rehabilitation for up to five to six months, before his range of movement restriction and pain stabilise, due to the nature of his whiplash associated disorder and the multiple injuries sustained.
Dr Giblin viewed the MRI scan and bone scan which confirmed degenerative change throughout the spine and uptake in the right shoulder consistent with tendonitis. He diagnosed a frozen right shoulder. He noted that the right knee remained persistently sore and uncomfortable. An MRI scan showed a intrasubstance tear. He confirmed that the MRI of the right shoulder showed some adhesive capsulitis and an intrasubstance tear of the supraspinatus tendon. He confirmed that MRI scan of the right knee showed undisplaced tears of the medial and lateral menisci and mild chondromalacia in all compartments.
Dr Andrew McIntosh, biomechanical engineer, reported to the insurer on 30 September 2021 after undertaking an analysis of the mechanics of the collision. He opined that the mechanics of the collision could not have reasonably led to the injuries of which the claimant is complaining. Dr McIntosh opined that, on balance, it is plausible that the claimant suffered:
(a) a whiplash associated disorder – soft tissue injury involving the cervical spine or symptomatic aggravation of his pre-existing cervical spine condition with symptoms of a closed period, and
(b) symptomatic aggravation of his pre-existing lumbar spine condition with symptoms of a closed period.
Dr McIntosh also opined that, on balance, it is unlikely that the claimant suffered:
(a) a whiplash associated disorder – soft tissue injury involving the cervical spine with symptoms of a protracted duration;
(b) a thoracolumbar spine injury, involving soft tissue injury or sprain;
(c) an intervertebral disc injury or other structural injury involving the cervical or thoracolumbar spine;
(d) shoulder injuries, including rotator cuff injuries, and
(e) knee injuries, including menisci injuries.
Informing his opinions, Dr McIntosh viewed colour photographs of the five vehicles involved in the motor accident. He did not view, nor comment on, any of the claimant’s diagnostics scans, as he is not qualified to do so.
CLAIMANT’S STATEMENT
The claimant gave a statement on 16 March 2021 to the insurer’s private investigator. The claimant said that, prior to the motor accident, he was in good health and did not suffer from any medical conditions, apart from blood pressure. He described the accident as involving a heavy collision to the rear of his vehicle, which was followed by three further collisions behind him. Five vehicles were involved in the accident. The claimant describes immediate pain in his head, neck, both shoulders, back and both knees. His vehicle subsequently was declared a total loss. He does not describe specific impacts to any parts of his body in that statement.
RE-EXAMINATION
Report from Medical Assessor Gibson is as follows:
“PAST OCCUPATIONAL HISTORY
Mr Smolovic had worked as a full-time high school teacher in Montenegro prior to arriving in Australia over 28 years ago.
He has been working as a full-time forklift driver with Coles for the last 21 years.
WORK FOLLOWING THE SUBJECT ACCIDENT
Mr Smolovic said he had been off work for five months following the subject accident because he had ‘a lot of pain.’ In addition his employer would not allow him back to work until he was cleared for full normal duties, as it was not a work related injury. He said that then, despite ongoing symptoms, he needed to return to work in order to pay his bills.
PAST MEDICAL HISTORY
Mr Smolovic denied any prior history of accidents, work injuries or motor vehicle accidents. There had been no previous third party or workers' compensation claims. He denied any prior symptoms, consultations with medical practitioners or investigations regarding his neck, shoulders, back or knees.
He was diagnosed with hypertension about three years ago and prescribed Karvea (irbesartan) which he takes daily.
HISTORY OF THE ACCIDENT
Mr Smolovic said he had just finished work and was heading home. It was about 2:30pm in the afternoon. It was raining and there was heavy traffic. As a consequence of the conditions he had slowed down to about 20km/hr when all of a sudden his Honda Civic sedan car was hit from behind by a Ford XR6 utility. He said there had been five cars involved in the accident including a Holden Captiva, a Jeep and a Subaru WRX. Fortunately, as he had maintained a good distance from the car in front, there was no front impact. His car was towed from the scene and subsequently written off.
He said that the impact was slightly right off-centre, such that he was jolted forwards in his seat and to the right. He hit his head on the console, knocked his right shoulder against the side pillar and both his knees hit the dashboard. He added that, because he is quite tall and the car was quite small, there was not a lot of space between him and the inside of the car.
There was no loss of consciousness. When asked, he could not recall having observed any visible injuries in the way of bruising or bleeding. An ambulance attended the scene but I understood no one required transfer to hospital.
His wife arrived and had then had driven him to the emergency department of Liverpool Hospital.
The clinical records from Liverpool Hospital documented history that he was driving 10-30km/hr and ‘reports hitting his right shoulder on the side of the door and head hitting headrest, reports both knees coming into contact with the interior of the car when being hit, denies any LOC at time of impact, currently complaining of generalized headache.’ On examination there was ‘tenderness along to C-spine and thoracic region, limited ROM to shoulder due to pain, chest clear.’ A cervical collar was fitted as a precaution. There were no neurological abnormalities. The diagnosis was bruising and whiplash following MVA. He was discharged home after four hours.
The following day he visited his regular general practitioner, Dr Low in Casula. Dr Low had referred him to Prime Physiotherapy for treatment. They had noted in a letter dated 21 May 2021 ‘Mr Smolovic reported ongoing right knee, shoulder, lower back pain and neck pain’. Examination findings were of reduced movements of cervical and lumbar spine and moderate restriction of right shoulder movements.
He had hydrotherapy treatment.
His last session of physiotherapy or hydrotherapy was about 5-6 months ago.
Mr Smolovic was referred for ultrasound of both shoulders 25 February 2021.
He was reviewed by orthopaedic surgeon Dr Giblin.
He was given steroid injections to the right shoulder and a cortisone injection to his right knee. He said the steroid injections had brought about minor improvement only.
CURRENT TREATMENT
Mr Smolovic said that he takes paracetamol, sometimes a few tablets a week. He applies Voltaren cream to his right knee and right shoulder, although he said he hadn’t done so for a number of months. He had previously taken Mobic and Panadeine Forte, but he had not received any prescriptions for over a year. His last visit to the general practitioner, Dr Low was a few months ago and that was for a blood pressure check.
The physiotherapist had prescribed an exercise program to do at home and he tries to do these weekly or more frequently.
PROPOSED TREATMENT
There was no further treatment proposed.
CURRENT SYMPTOMS
The neck pain is present most of the time, and today was rated 7-8/10 severity, and he finds it is generally 8/10 severity (zero being no pain and ten severe pain). The pain is located centrally, but spreads to both shoulders and into the upper back, and sometimes up into the head precipitating headaches.
The right shoulder pain was 10/10 severity today, and the left shoulder pain 8/10 severity. He indicated pain felt in a global fashion over both shoulder joints. Shoulder movements are restricted.
He said the low back pain is constant, rated at 8/10 to 9/10 severity. There was no spread to buttocks or lower limbs.
There were no non-verifiable radicular complaints in upper or lower limbs.
There is pain felt over the front of both knees. He wears a patellar brace over the right knee. He said he feels unsteady at times. He doesn’t notice any swelling of either knee. His knees feel stiff when he gets up in the morning or after sitting down for long periods.
CURRENT ACTIVITIES AND RESTRICTIONS
Mr Smolovic lives with his wife and their two children, aged 23 and 25, in a four-bedroom, single-storey house with no steps. His wife works full time and both of the children are studying.
They have one car at home, a Honda Civic, which he drives.
He said his wife and sons do the lawn and garden and all household chores.CLINICAL EXAMINATION
Mr Smolovic had a stocky build. He was right-handed. He was 180cm tall and weighing 104kg.
He was asked to provide his best effort when his movements were tested.
On examination of the neck, forward flexion and extension was half normal. Lateral flexion was two-thirds normal bilaterally. Rotation was variable from half to three-quarters range bilaterally. There was no muscle spasm or guarding, and no consistent asymmetry of movements.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance, therefore there was no muscle wasting. There was normal power, sensation and reflexes.
On examination of both shoulders, there was no instability demonstrated, but movements were grossly restricted bilaterally. There was some impingement on the right. When asked about the movements being reduced on the left side now, he said the pain has been increasing as compared with the previous medical assessment. Active movements were as follows:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 50 ° 60 ° Extension 10 ° 40 ° Internal Rotation 80 ° 90 ° External Rotation 80 ° 80 ° Abduction 30 ° 70 ° Adduction 20 ° 60 °
On examination of the back, there was mild tenderness over the upper to mid thoracic spine and across the lower back, forward flexion and extension 1/3 normal. Lateral flexion was 1/3 normal bilaterally. Rotation was normal range bilaterally. There was no muscle spasm or guarding, and no consistent asymmetry of movements. Neurotension signs were negative bilaterally.
On examination of the lower limbs, circumferential measurements of thighs and calves were equal, therefore there was no muscle wasting. There was normal power, sensation and reflexes.
On examination of both knees, there was no effusion, no instability and no crepitus. Active movements were as follows:
Knee Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 110 ° 120 ° Extension 0 ° 0 °
SUMMARY AND OPINION
Mr Smolovic is a 63-year-old man who was involved in the subject accident on 18 February 2021. This was a rear-end collision with no front impact. He had not required immediate medical attention. He visited Liverpool Hospital following the accident where he was noted to have complaints in relation to neck, low back, both shoulders and both knees.
On examination today, there was no evidence of any radiculopathy in upper or lower limbs. There were no non-verifiable radicular complaints in upper or lower limbs. The imaging findings for cervical, thoracic and lumbar spine did not demonstrate any abnormalities suggestive of subject accident-related injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. Therefore the injuries to the cervical, thoracic and lumbar spines were threshold injuries.
There was pain related restriction of shoulder movements bilaterally which did not improve on repetition. There was early evidence of right shoulder complaints after the subject accident.
MRI of the right shoulder had demonstrated an intra-substance partial thickness tear of the supraspinatus tendon in the context of degenerative fraying. These findings could be interpreted as subject accident related tendon injury, even in the context of degenerative change. There being no pre-subject accident imaging of the right shoulder.
Likewise, MRI of the right knee had shown undisplaced tears of the medial and lateral menisci and mild chondromalacia in the medial, lateral and patellofemoral compartments.
Whilst the Panel did consider the biomechanical report of Dr Andrew McIntosh, they were of the opinion that the impact, in a small car, with the occupant shunted forward and side to side, could result in injury to the shoulders and both knees. The claimant reported direct impacts to those body parts.
The Panel also noted there were no pre-subject accident complaints in relation to either knees or shoulders. Tears of the magnitude revealed by the diagnostic imaging would likely cause symptoms and complaint. There was no pre-subject accident imaging of either right knee or right shoulder. Therefore, applying its clinical judgment, the Panel were of the opinion that the imaging findings, with respect to the right knee and right shoulder, may have been caused, or at least aggravated by, the subject accident. Therefore, they could satisfy the definition of non-threshold injuries as being complete or partial rupture of tendons, ligaments, menisci or cartilage.”
CONCLUSION
The Panel concludes that the motor accident could have caused, or contributed to, the tears found in the claimant’s right shoulder and right knee, as a matter of medical determination.
The Panel further concludes that the motor accident did cause the tears revealed by diagnostic imaging in the claimant’s right shoulder and right knee, which are non-threshold injuries, as a matter of factual non-medical determination.
FINDINGS
In reaching these conclusions and findings, the Panel has attempted to apply the principles of causation, as explained in Briggs v IAG Limited t/as NRMA Insurance[5] per Wright J.
[5] [2022] NSWSC 372.
For these reasons, the Panel concludes that the certificate of Medical Assessor David Gorman is confirmed.
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