Insurance Australia Limited t/as NRMA v Pirillo
[2024] NSWPICMP 450
•9 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA v Pirillo [2024] NSWPICMP 450 |
| CLAIMANT: | Korey Pirillo |
| INSURER: | NRMA |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Clive Kenna |
| DATE OF DECISION: | 9 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; threshold injury; matter considered on the papers; pre-accident medical history; examination and radiological scans; supraspinatus and bursitis; absence of additional material; Held – claimant sustained threshold injuries to the cervical and lumbar spines, right hip and right shoulder bursitis; non-threshold injury to the right shoulder in the nature of labral tear; Medical Assessment Certificate confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the certificate of Medical Assessor Jonathan Herald dated |
STATEMENT OF REASONS
BACKGROUND
Corey Pirillo (the claimant) is a 25-year-old man who was involved in a motor vehicle accident on 8 October 2022. Following the accident a claim for personal injury was submitted and statutory benefits have been paid. The claimant requested the insurer concede that the injuries he sustained are non-threshold injuries the insurer did not make this concession. Thereafter the claimant applied for an assessment of threshold injury and, on
9 November 2023, was examined by Medical Assessor Jonathan Herald. In a Certificate dated 11 December 2023 Medical Assessor Herald determined that the injuries to the claimant’s cervical spine, lumbar spine, hip, and right shoulder bursitis are threshold injuries. He determined that the alleged injury to the left foot was not caused by the motor accident. He further determined that the right shoulder labral tear was caused by the motor accident and is not a threshold injury for the purposes of the Act.Thereafter, the insurer sought a review of this determination and in a Certificate dated
6 March 2024 the President’s delegate, Ratoula Gupta, determined that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect and thereafter the matter was referred to this Medical Review Panel for determination.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 the 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 provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Sections 58 and 60 of the MAC Act together with cls 1.5-1.7 of the Guidelines set out the procedures for referral to one or more Medical Assessors and the principles to be applied at such assessments.
The Panel met by MS Teams on 23 April 2024 at which time, following consideration of all material before the Panel, determined that the matter can appropriately be considered “on the papers”. This was noting that the claimant had undergone shoulder surgery in
October 2023 which had the effect of greatly reducing the utility of an examination. This is particularly so noting that any physical examination would require an assessment of range of motion which would have no utility in view of the fact that the shoulder surgery had basically prevented any meaningful range of motion in relation to the injures allegedly suffered in the motor vehicle accident.That being the case, the matter was to be considered “on the papers.”
HISTORY
Pre-accident medical history and relevant personal details
The claimant has been involved in three motor vehicle accidents including the subject accident on 8 October 2022. There appears to have been a motor vehicle accident in 2019. There is little documentation in relation to this other than some references to it in the report of Dr Porteous dated 20 December 2022. That report makes reference to an ultrasound of the right shoulder on 6 September 2019. This report notes there is no evidence of rotator cuff pathology while the bursa was normal, and the Coracoacromial Ligament was normal.
The claimant had a second accident on 13 January 2021. He alleges injuries to his neck, back, head, and right hand. The vehicle in which he was travelling was t-boned by the insured vehicle. Police and ambulance arrived, and he was taken to St George Hospital the next day before attending My Health clinic for further management and investigation.
The claimant underwent CT guided steroid injections to his lumbar spine in August 2022. In relation to the assessment in respect to the injuries sustained on 13 January 2021 he was seen by Medical Assessor Ian Cameron with a date of assessment 21 March 2023 in relation to this accident.
He considered that the request for MRI for the lumbar spine did relate to the injuries caused by the motor vehicle accident but was not reasonable and necessary. He did note at the time that the claimant had subsequently been in a further motor vehicle accident on
8 October 2022, noting a full range of motion of the left shoulder, but that the right shoulder range was inconsistent with abduction and flexion of 160° (-20°). Other movements were slightly decreased but not substantially so. He considered in that earlier accident that
Mr Pirillo had sustained soft tissue injuries that were threshold injuries involving the cervical and lumbar spine, right hand and thoracic spine (the right shoulder was not mentioned).
The vehicle was involved in a motor vehicle accident when it was hit on the driver’s side. The vehicle was T-boned. Police and ambulance arrived. Mr Pirillo went to St George Hospital the next day and was ultimately discharged but then attended My Health Clinic for further management and investigations. He was also sent for physio and chiropractic therapy.
As a result of the accident, Mr Pirillo suffered right-sided lower back pain with proximal radiation, had a right S1 radiculopathy down to the lateral foot involving the posterior thigh and calf. He described this as a burning sensation. Since the motor vehicle accident, the pain had progressed and would now also include central left-sided component.
That he continues to complain of lower back pain. He also had bilateral buttock symptoms, right being more dominant. That he endeavoured to go back to work as a builder but was unable to tolerate work due to increased pain.
That an MRI taken on 25 May 2022 demonstrated broad-based posterior disc bulge and at the L5/S1 level a disc bulge with an annular tear.
It was Dr Peter Papantoniou’s assessment that it was only post-accident that he experienced ongoing back and leg pain. Dr Papantoniou made a series of recommendations with regards to spinal injections. It was noted in that report there was no mention of right shoulder.
In a medical assessment by Dr Porteous of 20 December 2022 in relation to the date of the subject motor vehicle accident of 13 January 2021 (it is important to note that this assessment covered his earlier motor vehicle accident 1, not the motor vehicle accident in question, although subsequently the motor vehicle accident in question had occurred only approximately 6-7 weeks prior to his assessment. The date of the consultation was
22 November 2022 in relation to outstanding medical issues pertaining to the motor vehicle accident of 13 January 2021 was the date of the motor vehicle accident now known as No. 2 on 8 October 2022.
That subsequently as a result of the motor vehicle accident, he had undergone a series of other investigations, all prior to the 8 October 2022 accident, involving ultrasound of the right hip, right knee and right ankle, in which the right hip showed no abnormality and there was no evidence of trochanteric bursitis. That the right knee ultrasound showed an unfused accessory ossification suggesting possible Osgood Schlatter disease but there was significant tendinosis reported in the distal patellar tendon attachment, no inflammatory changes seen. In the right ankle there was a trace of fluid in the joint but no significant ligamentous or tendon injuries.
That an MRI of the right ankle on 28 July 2022 showed normal tendons, mild synovitis, but no disruption of ligaments anteriorly or posteriorly, or the lateral collateral ligament and deltoid.
An MRI of the cervical spine of 30 August 2022 showed C5/6 marginal uncovertebral joints, lipping in the hypertrophic lateral longitudinal ligament causing mild C5/6 foraminal stenosis and possibly involving the exiting C6 nerve roots, with no mention of any disc protrusion.
From the extensive general practitioner (GP) notes, it appears there is no mention of right shoulder injury in relation to the motor vehicle accident of 13 January 2021.
However, Dr Porteous did note in his report and recorded (page 4) that the claimant said that on 8 October 2022 he had another accident. He said he was again in his Mazda 3 driving along, when a person drove out of a driveway and hit him on the passenger door. The car was driveable but needed repairs which had been approved. He said that had resulted in an increase in spinal pain as well as right shoulder, right hip pain and ankle pain.
That he saw his GP. By then he had stopped attending physiotherapy and was just going to chiropractic because of his injuries prior to that.
With regards to his ongoing right neck/shoulder pain and right back/hip pain, that he had a scan of the shoulder is now awaiting approval for an injection into the right shoulder (in relation to the motor vehicle accident of 8 October 2022).
In relation to the motor vehicle accident in 2019 the panel notes the observations of
Dr Porteous dated 20 December 2022 in which he notes that there was a previous CT on file of the right knee dated from 6 September 2019 showing an effusion and some soft tissue changes overlying the patella. There was also alteration of the posterior horn of the lateral meniscus and possibly a tear.Hence it does appear that he had right shoulder issues dating back to, again, an earlier motor vehicle accident.
In that report, Dr Porteous noted that whilst he had full range of movement of the left shoulder, the right shoulder was reduced in flexion and abduction to 160° (-20°) respectively. All other movements were effectively full.
Dr Porteous acknowledged that it was difficult to differentiate overlapping injuries when making an assessment.
As a result, it was a combination of both the initial motor vehicle accident of 2021 and the subsequent October 2022 accident, but it was likely in the second accident of October 2022 that he further aggravated his pre-existent injuries in the spine. That the timing and onset and the cause of reported right shoulder, right hip, knee and ankle pain was difficult to clarify, as at that point in time there had been no further scans to differentiate between the two motor vehicle accidents.
It was his considered point of view that he could only conclude that the second motor vehicle accident had resulted in minor injuries.
He was also seen for the same motor vehicle accident of 13 January 2021 by Medical Assessor Ian Cameron with date of assessment 21 March 2023. (This was in the same timespan as Dr Andrew Porteous.)
He considered that the request for MRI for the lumbar spine did relate to the injuries caused by the motor vehicle accident but was not reasonable and necessary. He did note at the time that the claimant had subsequently been in a further motor vehicle accident on
8 October 2022, noting a full range of motion of the left shoulder, but that the right shoulder range was inconsistent with abduction and flexion of 160° (-20°). Other movements were slightly decreased but not substantially so. He considered in that earlier accident that
Mr Pirillo had sustained soft tissue injuries that were threshold injuries involving the cervical and lumbar spine, right hand and thoracic spine (the right shoulder was not mentioned).
In relation to such as noted, he was then seen by Medical Assessor Jonathan Herald on
9 November 2023, report dated 11 December 2023, in which he determined that threshold injuries were incurred to the cervical and lumbar spine, right hip and right shoulder (bursitis), but there was a non-threshold injury implication to the right shoulder with a labral tear.
That he took particular note of the history of the accident in which the car was T-boned. That post-accident he was reported to have neck and back pain as well as bilateral ankle pain, predominantly left-sided as well as right hip, but his right shoulder also had been painful.
Nevertheless, he was also referred through to Dr Terry Moopanar regarding his right shoulder and underwent a cortisone injection and then subsequently underwent surgery.
That initial radiological investigations had confirmed a labral tear. Post-surgery his shoulder was still stiff and at the time of his assessment some 12 months post motor vehicle accident, his arm was still in a sling as he had only just had the surgery a couple of months earlier prior to his assessment, i.e. October 2023.
That being the case, his clinical examination findings pertaining to the cervical and lumbar spine, right hip and left leg were that there was some reduced range of movement but no evidence of radiculopathy or cartilaginous or soft tissue tears. However, in contrast to that, examination of the right shoulder assessment was performed very carefully, as he had only just had surgery and therefore at that point in time demonstrated only a forward elevation of 90°, abduction to 80° and internal rotation to the waist. There was a well-healed surgical scar.
Furthermore, an MRI of the right shoulder on 12 May 2023 was reported as showing posterior under surface labral tear with a small Para labral cyst and 7mm of supraspinatus under surface fraying.
His key conclusion in relation to cervical and lumbar spine, right hip and both ankles is that these were caused by the motor vehicle accident but were a threshold injury.
In contrast however, the right shoulder labral tear without any previous evidence to the contrary “appears to have been caused by the motor vehicle accident”.
This issue would be the primary matter to be considered in respect to the dispute as to whether the claimant has sustained a non-threshold injury.
The claimant’s submissions in reply dated 11 July 2023 and subsequently 29 January 2024 is as follows. Noting the insurer had filed an appeal with submissions dated
22 December 2023 asserting that a Medical Assessor had incorrectly determined that
Mr Pirillo had sustained a labral tear in his right shoulder. That the Medical Assessor had failed to consider any pre-existing conditions, the velocity of the accident/mechanism, documents provided, and applied the correct cause for causation.
The insurer submitted with a reference in the GP notes of 21 December 2021 there was evidence of a pre-existing condition and presumably this meant a pre-existing labral tear. The claimant’s solicitor indicated there was absolutely no evidence of such and that was an improper reading of the report.
Solicitors for the insurer noted in a letter of 12 April 2024 in a referral to Dr John Korber (radiologist based at Medi Law, Market Street, Sydney) in which there was a request to assess the right shoulder radiological findings in relation to previous assessment of the labral tear. The key aspects in that referral note were that Mr Pirillo had been involved in a motor vehicle accident on 8 October 2022. That initially neither police nor ambulance were called. He didn’t attend hospital but did see his GP, Dr Marcus, that day whose clinical notes confirmed right shoulder pain, states he has trouble removing to above 90° and moving it behind his back. Likely subacromial bursitis. Advised him to have shoulder ultrasound and review.
An MRI was then reported of 10 May 2023 which showed three distinct findings. Firstly, a posterior undersurface labral tear was confirmed with a small par labral cyst. Second finding was an anterior 7mm supraspinatus undersurface fraying with no clear tear but rather tendinopathy without medical retraction of any fibres. Third finding in the MRI was suggestive of and more specific to a frozen shoulder which would need clinical correlation.
It was subsequent to that that he underwent a right arthroscopy and rotator cuff interval release on 12 October 2023. The insurer also makes the point that the claimant was previously very physically active, enjoy Mai Thi, kickboxing, motorbike riding and attending a gym.
The insurer
also forwarded to Dr Korber dicom imaging pertaining to the right shoulder. It was noted there was further documentation from the insurer noting that the insurer intended to obtain the opinion of Dr Korber before providing it and the radiology to the Review Panel. In that the insurer noted the Review Panel did not intend to examine the claimant but will assess the dispute on the papers and the insurer submitted therefore that the opinion of
Dr Korber, radiologist, will assist the Review Panel to determine the cause of the right shoulder labral tear. No such copy of Dr Korber’s report has been seen to date.
From the insurer’s documents, Dr Marcus, treating GP, provided a Certificate of Capacity dated 21 October 2022, i.e. some 10 days post motor vehicle accident, diagnosing right shoulder subacromial bursitis. Subsequent to this, radiological report notes, “We have attached dicom images of the claimant’s right and left shoulders. We also attach a letter of instruction to Dr Korber dated 12 April 2024.” That document was subsequently opened as instructed in conjunction with the following reports from High Street Blacktown Carlingford.
3 November 2022 report – Ultrasound right shoulder (MD Imaging) – Conclusion: Subacromial bursitis. Supraspinatus, subscapularis, infraspinatus and long head of biceps are intact. There was bursal thickening on the abduction with bunching at 90°, abduction is unlimited. AC joint is normal. 24 November 2022 - Right subacromial bursa ultrasound guided steroid injection.
10 May 2023 – Right shoulder MRI – Findings: Mild GHJ (glenohumeral joint) capsular and pericapsular oedema but still intact sub coracoid recess are findings that remain equivocal for a frozen shoulder (capsulitis). A second finding of interest is a posteroinferior labral tear, just below the equator, from undersurface full-thickness non-medialised tear, a par labral cyst insinuates this posterior superficial margin, the par labral cyst currently 8 x 8mm, still well away from suprascapular nerve, abutting glenoid bony margin at this point. Rest of labral apparatus normal. No SLAP lesion. Third finding is an undersurface fraying and signal hyperintensity of anterior by 7mm. Supraspinatus insertion consistent with an acute incompletely healed supraspinatus tendinopathy. If any tear is present at this tendon segment, it is likely to be highly subtle. Other cuff tendons are normal. Intra and extra articular long head of biceps normal, ACJ intact, trace of subacromial bursal effusion is in the physiological range.
Posterior undersurface labral tear confirmed with a small par labral cyst. Also, findings of tendinopathy but no medial retraction of fibres and findings also indicative of a frozen shoulder.
5 July 2023 – Injection into the right shoulder (steroid and analgesic analgesic) subacromial/ subdeltoid bursa.
CONCLUSION
On the evidence to date and as presented, it would appear that threshold injuries incurred in the motor vehicle accident of 8 October 2022 are in relation to the cervical and lumbar spine, right hip and soft tissue initial injury to the right shoulder bursitis which was treated by subacromial injection.
Subsequent to this however, there was also a non-threshold injury involving a labral tear which required an operative procedure. This is on a background of no relevant prior history that could be confirmed in the history, although it is acknowledged there is little documentation with regards to an event that occurred possibly in 2019, as he did undergo an ultrasound of the right shoulder at that point in time, and presumably at that point in time there may have been reduced range of movement.
Subsequent to that, there was no apparent injury to the right shoulder in the motor vehicle accident of 2021 but following the motor vehicle accident of October 2022, there was immediate complaint of right shoulder pain for which he underwent a range of investigations.
It would appear from the radiological findings and clinical history that he sustained threshold injuries to the neck, back, ankles and hips.
Pertaining to the right shoulder, radiological evidence indicates that he sustained a non-threshold injury for which he then underwent an operative procedure.
This was on the basis that he had incurred a labral tear with the operative procedure occurring some 12 months post motor vehicle accident.
In the absence of any alternative information, it would appear that we could confirm Medical Assessor’s Jonathan Herald’s report of 11 December 2023 in that there were threshold injuries for the cervical and lumbar spine, the right hip and right shoulder bursitis, but there was a non-threshold injury also pertaining to the right shoulder involving a labral tear.
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