Isaac v AAI Limited t/as AAMI
[2024] NSWPICMP 364
•6 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Isaac v AAI Limited t/as AAMI [2024] NSWPICMP 364 |
| CLAIMANT: | Marina Isaac |
| INSURER: | AAMI |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Les Barnsley |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 6 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Review Panel Assessment; threshold injury; section 7.23(1); new assessment; past medical history; chronic back pain; supraspinatus muscle and tendon Injury; test for causation; Held – injury to the shoulder and neck are threshold injuries; no injuries to the lumbar or thoracic spines, or left shoulder. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel confirms the certificate of Medical Assessor Mohammed Assem dated 7 November 2023. |
STATEMENT OF REASONS
INTRODUCTION
Marina Isaac (the claimant) is a 79-year-old woman who was injured in a motor vehicle accident on 14 February 2021. She was a passenger in a motor vehicle being driven by her husband when the vehicle in which she was travelling was struck on the passenger side whilst travelling through a roundabout. The claimant sought a concession from the insurer that she had sustained non-threshold injuries. The insurer declined to make this concession and the claimant applied to the Personal Injury Commission (Commission) to have this matter determined.
She was assessed by Medical Assessor Hong on 6 November 2023 in respect to the psychological injuries. He determined that she had suffered an adjustment disorder which is a threshold injury for the purpose of the Motor Accident Injuries Act 2017 (Act).
The claimant alleges physical injuries to her cervical spine, thoracic spine, lumbar spine, chest and shoulder. The claimant maintains that she sustained a tear in the supraspinatus which would be a partial tear of a tendon found on the ultrasound dated 4 August 2022, was caused by the accident and therefore a non-threshold injury. The claimant also maintains she had symptoms of radiculopathy consequent on the cervical spine injury as outlined in the report of Dr Guirgis dated 30 June 2022. On 3 November 2023 she attended Medical Assessor Mohammed Assem who, in a certificate dated 7 November 2023 determined that these injuries were threshold injuries. The claimant sought a review of this determination. President’s delegate, Rachel Brittliff, considered this application and, in a decision dated 5 March 2023, determined that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect.
Upon obtaining all the material which was before Medical Assessor Assem the Medical Panel determined that a further examination of the claimant was required to ascertain whether or not the physical injuries constitute a threshold injury or not.
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 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 MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 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.
Examination
The claimant was examined over a period of 90 minutes by Medical Assessor Les Barnsley and Medical Assessor Michael Couch at 12.30pm at the Commission’s medical suites. Mrs Isaac’s daughter was in attendance.
The claimant gave a past history before the subject accident of some chronic low back pain, which was intermittent, and some short-lived neck pain with activity. She had undergone bilateral total knee replacements. Prior to the accident she used intermittent analgesics for her pain.
On the 14 February 2021 she was the front seat passenger in a car being driven by her husband. She was wearing a seatbelt. Her vehicle was driving onto a roundabout and Mrs Isaac’s husband failed to give way to a driver and had a front to side collision. The airbags in her vehicle did not deploy, and she doesn’t remember hitting anything inside the car. Her husband drove her home. There were no emergency services called to the accident.
The claimant said she noticed pain over the left clavicle, extending towards the acromiclavicular joint and into the medial trapezius. There was some visible bruising over the front of the clavicle. She also developed some left lower neck pain over the first few days after the accident. There were no neurological symptoms such as numbness, tingling or weakness.
The claimant was asked about and specifically denied any worsening of her low back pain, or new mid thoracic pain. Her cervical pain radiated down to around T1. She saw her local doctor and was prescribed medications. About two weeks after the accident she became aware of pain on abducting the left shoulder.
It is noted that there is no mention of shoulder pain in the general practitioner (GP) notes, her treating physiotherapist thought she had some pain radiating to the trapezii and did not consider separate shoulder pain. There is no record of examination of either shoulder. There is no mention of shoulder pain in the initial claim form completed on 3 March 2021.
On specific questioning about neurological symptoms in the arms, she said that about once a month, she would experience some tingling in the first three fingertips on the left. She did not experience any shooting pains in the arm and had no muscle weakness or sensory symptoms. She has not had any neurological symptoms in either leg to suggest a radiculopathy.
Her current symptoms are pain in the left lower neck in an area extending across the trapezius, bounded superiorly by the C4 spinous process, medially extending across the midline and laterally to the acromiclavicular joint, and inferiorly to the T2 spinous process. She has also had left shoulder abduction limited by pain. She was asked specifically about lumbar or thoracic spinal pain and she denied these being a problem.
The issue of her having complaints of shoulder symptoms a couple of weeks after the accident, was considered to be inconsistent with the absence of contemporaneous records and also with an ultrasound scan only being ordered in 2022. These were put to Mrs Isaacs. She stated that she did not know why the GP and physio hadn’t mentioned the shoulder, and when asked about her own entry in the claim form she said that it wasn’t realized how bad it was until she had been investigated by Dr Medhat Guirgis on 30 June 2022.
Cervical spine
On Examination, she was 145cm tall and weighed 64kg. She had a poke neck posture.
Movement Fraction of normal range Flexion Full Extension ½ Right rotation ½ Left Rotation ½ Left lateral flexion ½ Right Lateral Flexion ½ Right Left Upper limb circumference, 10cm above elbow crease 30cm 30cm Upper limb circumference, 10cm below elbow crease 25cm 25cm
Thoracic spine
There was normal rotation, flexion and extension of the thoracic spine. There was no guarding or tenderness, and no loss of sensation over any of the thoracic dermatomes.
Lumbar spine
There was no guarding or spasm in the lumbar spine. Movements expressed a a fraction of normal range were:
Movement Fraction of normal range Flexion Full Extension 1/2 Right rotation 1/2 Left Rotation 1/2 Left lateral flexion 1/2 Right Lateral Flexion 1/2
Right Left Thigh circumference, 10cm above upper pole of the patella 53cm 53cm Maximum calf circumference 38cm 38cm
Shoulders
She was tender over the left acromio-clavicular joint (ACJ) and left lateral upper humerus.
Flexion Extension Abduction Adduction Internal rotation External Rotation Right 160 50 130 30 80 90 Left 80 30 70 10 80 70
Comments
With regards the left shoulder the Review Panel notes that the claimant was restrained in a seatbelt and had a forward impact without the airbags being deployed. Mrs Isaac could not recall any movement of the arm relative to the body. She did not have any direct impact to the lateral shoulder. Rather, she had forceful contact of the region of the left collar bone with the seatbelt which restrained her forward movement.
The significance of these observations is that to cause any injury to the supraspinatus muscle and tendon the muscle tendon complex must be passively stretched or contract forcibly against resistance. It could also be injured and torn by a sufficiently forceful direct contusion on the lateral aspect of the shoulder. In the absence of such forces the accident would not be expected cause a tendon tear. With either type of injury causing a tendon tear, it would be expected that there would be immediate pain, possible swelling and immediate loss of function in the shoulder.
There is no record of immediate shoulder symptoms following the accident. The shoulder is not mentioned in the GP records in the period following the accident, and the physiotherapy records note cervical pain radiating to the shoulders. This would not be the expected symptoms of a traumatic tendon tear, which would be experienced in the shoulder cowl with radiation distally into the upper arm. Furthermore, there is no record of any examination of the shoulder by the physiotherapist, which would indicate that primary shoulder pathology was not suspected.
The type of tear found on the ultrasound on 4 August 2022 is a degenerative phenomenom, and is extremely common in this age group, being found in the majority of individuals irrespective of symptoms. The presence of tendinopathy in the subscapularis tendon would be indicative of primary tendon pathology leading to the supraspinatus tear.
Furthermore, the bone scan of 25 October 2022 reports evidence of tendinitis in both shoulders, more on the asymptomatic right shoulder. There are degenerative changes in both acromioclavicular joints.
The Review Panel therefore concludes that the nature of the accident, history of symptoms and imaging findings, as well as the expected pathology in this age group would strongly indicate that on the balance of probabilities, the articular surface tear was not caused by the motor vehicle accident. The medical view is that the accident could not cause the tear for the reasons outlined above, and from a non-medical view the history and compelling alternative explanation demonstrate that it did not cause the tear.
The key issue in considering whether the injury to the cervical, thoracic or lumbar spine is threshold or not threshold is whether or not Mrs Isaacs had a demonstrable tear of any cartilage, ligament or tendon in the spine, or whether or not she has had or currently has clinical evidence of radiculopathy meeting the criteria in the act. There is no imaging or clinical evidence to support a tear to ligament cartilage or tendon and this is not advanced as an issue by the parties. It is however contended by the claimant that she has a lumbar radiculopathy. This seems to be on the basis of the assessment of Dr Medhat Guirgis. However, at no point has she had any new symptoms in the lumbar spine (from her own history today) and she has no record of neurological findings that would meet criteria for radiculopathy. Specifically, Dr Medhat Guirgis records her symptoms on a body chart, which indicates pain in the cervical, lumbar and thoracic spinal areas. He does not indicate any pain in the limbs (which would indicate radicular symptoms), and there is no record of neurological findings. The only mention of potential radiculopathy is in Dr Guirgis’s referral for the bone scan. Under the reason for study, it states:
“Clinically, right and left brachialgia, Rotator Cuff syndrome in the left shoulder with impingement. Right and Left lumbar sciatica….”.
Therefore, the Review Panel finds that the injuries to the shoulder and neck are threshold injuries. The Review Panel did not find any injuries to the lumbar or thoracic spines. The Review Panel did not find the claimant suffered an injury to the left shoulder in the subject motor vehicle accident.
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