Javaid v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Javaid v QBE Insurance (Australia) Limited [2023] NSWPICMP 322
CLAIMANT:	Khalid Javaid
INSURER:	QBE Insurance (Australia) Limited
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Ian Cameron
MEDICAL ASSESSOR:	Michael Couch
DATE OF DECISION:	7 July 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of minor (now threshold) injuries by Medical Assessor (MA) Home and claimant’s review under section 7.26; Assessor issued one document incorporating certificates and reasons in respect of three separate proceedings; application for review lodged in respect of only one medical assessment matter; claimant alleged injuries to neck, back, chest and right wrist; T-Bone injury and airbags deployed; Assessor found all injuries minor; Held – chest and rib injuries soft tissue; no evidence of fracture or rupture of tendons etc; wrist injury included acid burn from airbag; no evidence of fractures and no visible scar from burn; allegation of 20% compression fracture in thoracic spine; claimant presented no radiological or other evidence to Panel to support that injury; Panel examination found no evidence of cervical and lumbar radiculopathy and records revealed no evidence to enable finding of radiculopathy at any time since the accident; radiology did not establish any bony injury or complete or partial rupture of tendons, ligaments and so on in the spine; all injuries threshold injuries; certificate of MA confirmed; no issue of principle.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate of Medical Assessor Home dated 6 October 2022 issued in proceedings M10449934/21. 2. Certifies that the injuries sustained by Mr Javaid in the accident of 17 April 2021 are threshold injuries for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

Khalid Javaid was involved in a motor accident on 17 April 2021. He was driving through an intersection when a car coming in the opposite direction turned right directly in front of him and a t-bone type collision occurred.
The claimant says he injured his neck, mid and lower back, chest and right wrist in the accident and made a claim for statutory benefits against QBE, the third-party insurer of the vehicle that hit his.[1]
[1] Mr Javaid was, at the time of the accident, driving a hired Uber vehicle but for simplicity the vehicle will be referred to as his vehicle in these reasons.
Medical disputes arose in the claim and the following medical assessment matters were referred to the Personal Injury Commission (the Commission) for assessment as follows:
(a)    in proceedings numbered M10449934/21 – whether the claimant’s injuries sustained in the accident were “minor” injuries within the statutory definition;[2]
(b)    in proceedings numbered M10471520/21 – whether a consultation with an occupational physician was related to the injuries caused by the accident, reasonable and necessary in the circumstances, and would improve the recovery of Mr Javaid, and
(c)    in proceedings numbered M10511325/22 – whether an MRI and X-ray of the cervical and lumbar spines was related to the injuries caused by the accident, reasonable and necessary and would improve the recovery of the injured person.
[2] The statutory benefits scheme was amended by legislation in 2022. The term “threshold” injury was introduced to replace the previous term “minor” injury and this amendment applies to all claims regardless of the date of the accident. Medical Assessor Home determined a dispute about “minor” injuries and the parties have written their submissions referring to “minor” injuries. The terminology they have used has been repeated in these reasons.
On 6 October 2022, Medical Assessor Home determined that the injuries the claimant sustained in the accident were all “minor” injuries. He also made decisions about treatment allowing the referral to the occupational physician but not allowing the radiological imaging.
The claimant has lodged an application with the Commission seeking a review of the Medical Assessor’s decision. The application nominates proceedings numbered M10449934/21 as the medical assessment matter the subject of the review application, and the submissions address only the “minor injury” decision made by Medical Assessor Home in proceedings M10449934/21.
On 22 November 2022, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review. The Delegate’s decision refers to the multiple disputes and that the disputes (plural) were referred to the Commission for assessment and that Medical Assessor Home assessed all of the matters in dispute. The decision of the Delegate then says:
“[7] The applicant’s grounds for review in respect to the MRI of the lumbar spine dated 4 April 2022, and a failure to provide adequate path of reasoning and take into account relevant evidence, satisfies me of reasonable cause to suspect that the medical assessment was incorrect in a material respect.
[8] The application is accepted and will be referred to a Review Panel.”
On 13 February 2022 the President convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr Javaid’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
The statutory benefits available under the MAI Act are limited. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 or 52 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries[3].
[3] The availability of statutory benefits was amended in 2022 to allow benefits for 52 weeks (previously 26 weeks) but this amendment only applies to accidents occurring on or after 1 April 2023.

Threshold injury

A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Relevantly to the matters in issue in this claim, cl 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and clause 5.7 provides:
“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.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines.[4] Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury”.
[4] Chapter 6 of the Guidelines.
In summary:
(a) if a person injured in a car accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2) (the words highlighted in italics in paragraph 10 above), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act, and
(a) if the person injured in the car accident sustains a spinal nerve injury this is a threshold injury unless the particular nerve root injury manifests in signs of radiculopathy in accordance with cl 4 of the MAI Regulation.

Radiculopathy

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

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the MAI Act.[5] In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
“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.”
[5] The current version of the Guidelines I version 8.2 effective 8 April 2022.
This method of assessment does not appear to be limited to the assessment of threshold injury disputes by Medical Assessors and Panel members but would appear to extend to medico-legal experts retained by the claimant and the insurer and treating practitioners.

Dispute resolution

If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[6]
[6] Schedule2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Home’s, further medical assessment and the Review of medical assessments by this Panel.[7]
[7] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Home examined the claimant on 27 September 2022 and on 6 October 2022 issued his certificates in the three proceedings referred to him for assessment.
In respect of the minor injury dispute (proceedings number M10449934/21) the Medical Assessor records the injuries to be assessed as follows:
(a)    cervical spine – whiplash associated disorder (WAD) with left upper limb radicular symptoms;
(b)    lumbar spine – mechanical lower back pain with left lower limb radicular symptoms;
(c)    thoracic spine – discal / muscular injury with radiculopathy, including wedge compression fracture with approximately 20% loss of height, and
(d)    right wrist burn.
Medical Assessor Home took the following history from the claimant:
(a)    he was an Uber driver returning home when the driver of a car in the opposite direction turned right directly across Mr Javaid’s path and a t-bone type collision occurred;
(b)    the claimant’s airbags deployed, his vehicle was towed and written off;
(c)    there was a second impact with another car;
(d)    police and ambulance did not attend, he got out of the car and saw his general practitioner (GP) the next day with pain in the neck, mid and lower back and Paraesthesia in the left upper limb;
(e)    he had a CT scan of his neck and saw doctors at the Lakemba Family Health Care practice for six weeks;
(f)    he attended Dr Khan at Injury Care having been recommended by a friend and he was referred for physiotherapy on 7 June 2021 which ceased after a few sessions due to lack of funding;
(g)    he takes paracetamol and Panadeine Forte when his symptoms are strong;
(h)    he attended Dr Nair and spinal orthopaedic surgeon who recommended MRI scans but he has not had them yet, and
(i)    he took a trip to Pakistan to visit his sick father between May and July 2022.
The claimant’s symptoms were said to be:
(a)    intermittent neck pain more severe at night;
(b)    global numbness in the left upper limb which wakes him at night and occasional global numbness in the right upper limb;
(c)    his left hand shakes;
(d)    anterior chest wall pain has resolved but he has some tenderness;
(e)    he has recently developed more prominent pain in the left shoulder with pain on overhead reaching;
(f)    he can have pain in the right shoulder with activity;
(g)    constant pain in the lower back exacerbated by walking and sitting;
(h)    very little pain in the mid-back or between the shoulder blades;
(i)    bilateral pain extending to the knees and intermittent pain in the calves but no numbness in the lower limbs, and
(j)    the abrasion at the right wrist has resolved with no residual scarring.
The claimant recounted a history of a previous motor accident in 2016 when he was rear ended by a truck. He said he had symptoms in his neck and back, had an MRI but the symptoms settled after two years, and he was asymptomatic at the time of the current accident.
On examination of the neck there was no dysmetria although some symmetrical loss of neck motion. There were no neurological symptoms although non-dermatomal numbness was present over the whole of the left hand.
There was mild restriction of motion in both shoulders, the left a little more than the right.
In the lumbar spine there was no spasm or guarding, loss of motion but symmetrical and there were no signs of thoracic radiculopathy. There were no neurological signs in the lower limbs.
The chest and right wrist were normal.
Medical Assessor Home diagnosed:
(a)    soft tissue injury to the cervical spine with referred pain to the left upper limb which do not follow a radicular pattern;
(b)    soft tissue lower back injury with no radicular symptoms aggravating previous degenerative changes;
(c)    resolved soft tissue trauma to the chest;
(d)    soft tissue injury to the thoracic pain which has resolved – there was no imaging provided to enable the Medical Assessor to assess the allegation of 20% wedge compression fracture in the thoracic spine, and
(e)    resolved airbag burn injury to the right wrist.
Medical Assessor Home determined all of the injuries were “minor” injuries and that there was no cervical, thoracic or lumbar spine radiculopathy.
In terms of the treatment disputes, he found:
(a)    in proceedings M10471520/21 – the referral to an occupational physician was reasonable and necessary in order to co-ordinate management and explore vocational rehabilitation options.
(b)    In proceedings M10511325/22:
(i)the referral for a cervical spine MRI was not reasonable and necessary because the claimant had already had a CT scan of the neck which excluded cervical spine trauma, and
(ii) the referral for a lumbar spine MRI was reasonable and necessary to exclude underlying pathology and on a background of persisting chronic pain symptoms.
(c)    In both proceedings that the treatment would not improve the recovery of the injured person.
Medical Assessor Home did not include in the document he issued any certification of whether the treatment related to the injuries caused by the accident which is a part of the medical assessment matter referred to him under Schedule 2(2)(b).[8]

PROCEDURAL MATTERS

[8] The declared medical assessment matter is “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care).”

Claimant’s submissions

The claimant submits[9] at [1.2] that the Medical Assessor failed to explain his reasons for the finding that the claimant’s lumbar spine injury was a minor injury. The claimant says at [2.5] the Medical Assessor did not explain why there was a finding of minor injury in the light of the radiology which shows an injury to a nerve.
[9] Page 1 of the claimant’s bundle.
The claimant says at [3.1] the Medical Assessor did not refer to the most recent MRI of the lumbar spine dated 4 April 2022 and in fact says there is no post-accident imaging which is wrong.

Insurer’s submissions

In relation to the review

The insurer says[10] that the only certificate in issue is the certificate as to minor injury and that the claimant’s submissions only relate to one injury, the lumbar spine injury.
[10] The insurer’s submissions in response to the claimant’s application for review are dated 7 November 2022 and are document R4 in the insurer’s bundle.
The insurer submitted that the April 2022 MRI of the lumbar spine was not attached to the previous application because that application was lodged in September 2021 before the MRI had occurred.
The insurer sets out at [13] some of the claimant’s pre-accident history including details of an MRI of the lumbar spine performed on 15 June 2016 which identified a disc bulge at L5/S1. The insurer also notes that the claimant attended his GP for back pain in December 2017, January 2018, October 2018, April 2019 and October 2020.
The insurer says at [17] that the claimant’s GP notes the day after the accident do not record lumbar spine pain.
The insurer concedes at [21] that a lumbar disc annular tear is not a threshold injury however says that the lumbar annular tear in this case was not caused by the accident but is the natural progression of a degenerative injury [23].
The insurer lodged further submissions[11] asserting that a re-examination of the claimant was required in order to ensure an assessment in compliance with cl 5.6 of the Guidelines.
[11] Dated 17 March 2023 – document R5 in the insurer’s bundle.

Submissions in the original proceedings

After setting out the procedural history and relative legislation, the insurer’s submissions[12] say:
[12] Document R2, page 3 of the insurer’s bundle – the numbers in brackets refer to the paragraph number of the submissions.
(a)    police and ambulance did not attend and the claimant did not go to hospital but first attended his doctor one month after the accident [15];
(b)    the claimant had a previous accident in 2016 with 12-24 months of physiotherapy [16];
(c)    the claimant did not identify a right wrist injury in the claim form [20];
(d)    the police report records no persons were injured [22];
(e)    no treatment has been provided for the right wrist injury [25];
(f)    there is no evidence of an injury to the right wrist that is not a soft tissue injury [26];
(g)    the claimant’s GP does not identify any of the signs of radiculopathy [37] required for a non-minor injury finding;
(h)    the claimant has been referred to Dr Herald and Dr Nair and there are no reports before the Panel from them [35];
(i)    there is no radiology to support a finding of more than a soft tissue injury [41];
(j)    the insurer says that the claimant’s GP’s notes do not record any findings of two of the five signs of radiculopathy [47] and there are no specialist reports [53];
(k)    there are no radiological reports to suggest there is an L5/S1 disc bulge [54], and
(l)    there was no rib or sternum fracture [65] and the chest injury is a minor injury.

Procedural matters – preliminary conference

The Panel met on 3 April 2023 to discuss the matter and reported to the parties on 5 April 2023.
The Panel noted in that report, that only one application for review had been lodged in respect of only one of the medical assessment matters referred to Medical Assessor Home. The Panel advised it would only be proceeding to assess the dispute about minor (now threshold) injuries.
The Panel noted that of the injuries referred to him Medical Assessor Home assessed the injuries to the chest and right wrist as resolved. The claimant was asked to confirm that those injuries did not need to be assessed.
The Panel noted that the application suggested there was a 20% wedge compression fracture in the thoracic spine. The Panel noted no reference to this could be found in the records and asked the claimant to draw the Panel’s attention the record or report which support this injury.
The Panel noted that the real issues in dispute between the parties appear to be:
(a)    the cervical spine injury – whether the claimant has radiculopathy or has had at any stage since the accident cervical spine radiculopathy;
(b)    the lower back injury – whether the claimant sustained an annular fissure injury in the accident, and
(c)    the lower back injury – whether the claimant has lumbar radiculopathy or has had at any stage since the accident had lumbar spine radiculopathy.
The Panel noted the definition of radiculopathy in the Guidelines which requires two of the five signs of radiculopathy to be present.
The Panel requested the parties consider the bundles that had been provided to ensure no documents were omitted, advised of the examination date and invited the parties to upload any final documents and submissions (the claimant by 12 May 2023 and the insurer by 26 May 2023).

Responses from the parties

The claimant provided the reports of the radiology undertaken in April 2022 but did not provide any response to the matters raised by the Panel in the report and directions document.
The insurer provided its bundle of documents previously provided but did not provide any response to the matters raised by the Panel in the report and directions document.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The claimant signed as true and correct an application for personal injury benefits (claim form) dated 20 May 2021.[13] He said he had made a previous third-party claim against Zurich but did not give the date of the accident or the claim number.
[13] Claimant’s bundle page 22.
The claimant identified his injuries as cervical spine, thoracic spine, lumbar spine sternum (both) and left ribs, back pain to both legs, psychological injury. The claimant indicated he did not go to hospital.
The claimant relies on the police report[14] which provides very little detail of relevance other than the accident was minor and none of the occupants of the three vehicles involved in the accident were injured.

Treating medical records and reports

[14] Claimant’s bundle page 30.

Dr Islam – Lakemba Family Health Care

The records from the Lakemba Family Health Care practice[15] start with an entry on 12 May 2016. The claimant had been injured the night before and was complaining of right knee pain, left neck pain, anxiety and radiculopathy. The claimant was prescribed Brufen.
[15] Insurer’s bundle page 6.
On 17 May 2016 the claimant attended again for neck pain with radiculopathy and was feeling numb in the left arm and forearm. He was referred for an MRI which showed C6 nerve root impingement. Lyrica was prescribed on 23 May 2016.
On 25 May 2016 the claimant’s neck pain was severe and he was complaining of back pain. Panadeine Forte was prescribed.
Back pain and neck pain were the subject of an attendance on 9 June 2016 with the back pain radiating to both buttocks and down to the knee on the left side. It was described as shooting pain and was unbearable. The neck pain radiated into both upper limbs with pins and needles in both hands, weakness and numbness in the left forearm and hand and spasm in the left ring and little fingers. The claimant was referred to Dr Pope and for physiotherapy and for a lumbar spine MRI.
On 3 October 2016 the claimant attended for lower back pain which was still radiating into his buttocks and down to the knee on the left side and the claimant was taking Brufen, Lyrica and Panadeine Forte. There were similar attendances in February and May 2017 with the claimant complaining of “new” motor vehicle accident and pain in the lower back and back of both thighs as well as neck pain. There were further attendances in October and November 2017 for neck and back pain. On 13 December 2017 the claimant had lower back pain radiating to his lower abdomen with throbbing sharp pain.
The claimant attended on 20 December 2017 following a car accident (rear ended) at 50kmph. The claimant complained of right hip pain and neck pain more on the right. On 10 January 2018 the claimant was still complaining of back pain, neck pain and hip pain. He had been prescribed Tramal for severe pain and Brufen. On 31 January 2018 the claimant had pain in his right thigh in an L2/3 distribution and was having physiotherapy and prescribed Gabapentin (which the Panel notes is used to treat neuropathic pain).
On 9 October 2018 the claimant reported an episode of severe low back pain and was given an injection of Tramadol and Maxolon. The history was that he had lifted a suitcase and pain started afterwards. He had restricted movement in all directions. His condition was described “acute on chronic.”
In the list of prescriptions,[16] the last prescription at this time was for Tramal and Brufen. There is then a gap until 18 April 2021.
[16] Page 148 of the insurer’s bundle.
On 19 March 2019 there was a further attendance for asthma and back pain and on 23 April 2019 the claimant attended following another car accident when he was rear ended on the Harbour Bridge. The claimant complained of back, neck and shoulder pain with numbness in both arms, anxiety, nightmares, flashbacks and an inability to sit for long periods.
On 8 October 2020 the claimant complained of back pain and was advised to take analgesics, anti-inflammatory medication and he was given exercises to do.
The entry on 18 April 2021 reports a car accident the night before, “has pain over the neck with radiation to shoulder and arm, both wrist pain and burn injury [right] wrist.”. Mr Javaid was prescribed Prodeine and referred for wrist X-rays and a CT scan of his spine. On 20 April 2021 Mr Javaid attended complaining of neck pain, chest pain, shoulder pain (right worse than left), back pain, knee pain and anxiety. There is a note “left neck pain with radiculopathy” but there are no examination findings documented. There is a comment “[review] if any neurological symptoms or if worsening of symptoms.”
A further attendance on Dr Islam occurred on 22 April 2021 where the claimant’s pain in the neck was said to be radiating and the claimant reported feeling weak in the left hand, pain in the lower back and again the claimant was advised to come in for review if there were neurological symptoms or his symptoms worsened and a NSW “Workcover” certificate was said to have been given.
A further attendance occurred with Dr Islam on 27 April 2021 with pain in the neck, lower back and both hands, Lyrica was prescribed, a Workcover and third-party letter was created and a referral to Mr Ahmad Ali was given. A similar attendance occurred on 29 April 2021 with the claimant complaining of upper and lower back pain, pain in both shoulders and in the neck radiating into his arms.
Mr Ahmad Ali the physiotherapist works at the Lakemba practice and saw the claimant on 18 May 2021. He was to review the claimant the next week but there are no further physiotherapy treatments recorded. There are two further attendances on this practice for Covid related vaccination issues.

Dr Khan – Injury Care Limited

The medical certificate (certificate of fitness and capacity) was dated 19 May 2021 and signed by Dr Ijaz Khan of Injury Care Pty Limited (not the Lakemba practice where the claimant had been attended). Dr Khan certified[17] the claimant as unfit to work from 19 May to 9 June 2021 and diagnosed:
(a)    airbag acid burn to the right wrist;
(b)    whiplash injury to the cervical spine grade three with left upper limb radicular symptoms;
(c)    thoraco-lumbar spine pain with lower limb radicular symptoms;
(d)    rib cage mechanical trauma, and
(e)    post-traumatic stress reaction.
[17] Page 33 of the claimant’s bundle.
Dr Khan had a history of a single car accident in 2016 and the recovery from the injuries sustained in that accident and no further symptoms from 2018. Dr Khan noted the claimant returned to work as a taxi driver without restrictions from 2018.
The claimant has provided copies of three referrals from Dr Khan on 19 May 2021[18] to:
(a)    a radiologist for chest, rib, sternum and thoracic vertebral injury;
(b)    Dr Herald, orthopaedic surgeon. The Panel notes there is no report from Dr Herald, and
(c)    there is also a referral to Dr Nair, spinal surgeon. The Panel notes there is no report from Dr Nair.
[18] Page 40 of the claimant’s bundle.
While no notes from Injury Care and Dr Khan have been provided, Dr Khan includes in his certificates of capacity what appears to be extracts from his records as follows:
(a)    18 August 2021[19] – the claimant was reporting his body was shaking he was having blackouts and poor sleep. The claimant also reported left and right rib cage discomfort which wakes him from sleep. The claimant was said to be taking Panadeine forte and had not returned to work. He says he has lost weight, has neck pain radiating into both limbs with reduced grip strength and low back pain radiating to both limbs;
(b)    15 February 2022[20] – Mr Javaid was significantly distressed due to insurer’s decision on liability. He reported a feeling of weakness to his entire body, shivering when waking up, inability to drive, anxiety, backouts and poor sleep, continuous left and right rib pain and rib pain waking him;
(c)    1 August 2022[21] – Mr Javid was reporting numbness and weakness to the left upper limb, increasing discomfort in the left shoulder joint. Ongoing neck and back pain and disturbance of sleep. Poor mood. An examination was conducted which found in the cervical spine, reduced range of motion but paraesthesia aggravated at the end of forward flexion movements. In the lumbar spine straight leg raising was limited to 60 degrees due to pain, and
(d)    10 August 2022[22] – the claimant reported no change to his symptoms.
[19] Certificate of capacity at page 57 of the claimant’s bundle.
[20] Certificate of capacity at page 69 of the claimant’s bundle.
[21] Certificate of capacity at page 74 of the claimant’s bundle.
[22] Certificate of capacity at page 80 of the claimant’s bundle.
There is a request for eight physiotherapy treatments and a TENS machine by Jason Madz of Replay Health to treat cervical, thoracic and lumbar spine pain (whiplash disorder grade 2) with reduced range of motion. A further three requests for physiotherapy appear to have been provided.[23]
[23] All of the requests are provided commencing at page 47 of the claimant’s bundle.
Dr Khan wrote another referral to the physiotherapist on 31 October 2022 along with referrals to a psychiatrist and psychologist.[24]

Radiology

[24] Page 87of the claimant’s bundle.

Pre-accident

The insurer relies on a cervical spine MRI report of 19 May 2016[25] with a history of “pain in the neck, left arm and forearm numbness. Post MVA”.
[25] Page 67 of the insurer’s bundle.
The conclusion of that imaging reads as follows:
“Multilevel cervical spine degenerative changes, most marked at C5/6, with disc and uncovertebral osteophyte narrowing and flattening the exiting left C6 nerve root, a probable site of neural impingement. If there is a failure to improve with conservative therapy, left C6 perineural injection should be considered as both a diagnostic and potentially a therapeutic procedure.”
The lumbar spine MRI report of 15 June 2016[26] has a clinical history of “lower back pain radiating to both buttocks and on the left side down to the knee. Shooting pain unbearable at times. Unable to sit for long.”
[26] Page 69 of the insurer’s bundle.
The report noted at L4/5 mild disc desiccation with a minimal annular bulge but no focal disc protrusion or central canal stenosis. On the left side there was mild left foraminal stenosis contacting the existing nerve root but without compression. The conclusion reads as follows:
“There is mild disc desiccation and early degenerative spondylotic change as described. Mild right paracentral L5/Sl disc bulge is present, which causes low grade right lateral recess and foraminal stenosis. Lower lumbar facet OA also noted. There is no high grade canal/foraminal stenosis or nerve root compression. Please correlate clinically with the level of symptomatology.”

Post-accident

The wrist X-ray requested by Dr Akhter on 18 April 2021 was done on 20 April 2021 and the report[27] notes no evidence of wrist fracture and mild degenerative changes of the [scaphotrapeziotrapezoidal] joint and first carpometacarpal] joint on both sides.
[27] Page 71 of the insurer’s bundle.
The CT scan result was of “bilateral foraminal stenosis of C5/6 and C6/7 with potential impingement of the bilateral C6 and C7 nerve roots”.
The claimant had the radiology as requested by Dr Khan. The chest CT and aortogram 28 May 2021[28] notes no fractures and a normal study of the lungs, ribs, sternum and heart. The Panel notes Dr Khan did not refer the claimant for imaging studies of his neck or lower back at this time.
[28] Claimant’s bundle page 45.
On 4 April 2022 the claimant had X-rays and an MRI of his cervical and lumbar spine due to “pain in back/neck and upper leg. Pain goes into the buttock regions on both sides”. These scans showed:[29]
(a)    in the cervical spine MRI – there was multilevel mid-to-lower cervical spine neural exit foraminal stenosis greatest on the left at C5/6 and on the right at C6/7;
(b)    in the lumbar spine MRI – there was a disc bulge associated with a tear of the annulus at L4/5 likely to be irritating the left L4 nerve root. There was also possible nerve root irritation on the right at L5 due to neural exit foraminal narrowing caused by facet joint arthropathy and right-sided disc osteophyte complex, and
(c)    the X-rays showed no acute bony findings but disc narrowing and endplate spurring from C5-C7 and minor changes at C4/5. In the lumbar spine there was endplate spurring in the upper third and in the lower third endplate spurring and some evidence of facet osteoarthritis.
[29] The reports of the radiology are contained within document AD2, an Application to Admit Late Documents into evidence. The documents were said to be lodged by consent.

Medico-legal reports and other assessments

There are no medico-legal report and no other assessments brought to the attention of the Panel.

RE-EXAMINATION FINDINGS

Mr Javaid was re-examined by Medical Assessor Cameron in his Ultimo rooms on 27 June 2023. The claimant attended unaccompanied.

Background

Mr Javaid lives at Wiley Park with his wife and two adult children. He said that he had been in Australia for 36 years. His family is from Pakistan.
Mr Javaid said that at the time of the motor accident he was working as an Uber driver which he had been doing for a short time. Previously he had worked for 28 years as a taxi driver. He said he had no past major injuries or illnesses.
When he was taken to the records of his GP, Dr Islam and the other accidents. Mr Javaid said that the previous motor accident on 20 May 2017 was while he was stationary at traffic signals, and he was hit from behind by a truck. He said he did not remember the incidents in 2016 or on 17 April 2017.
Mr Javaid agreed that he had previous neck and back pain with some radiation of pain into the upper and lower limbs. He said these recovered with physiotherapy. With reference to the consultation with Dr Islam on 9 October 2020, Mr Javaid said that he may have had back pain, but he does not remember it and therefore it must have resolved.

History of injury

On 17 April 2021, Mr Javaid said he was the driver of a vehicle when another vehicle turned in front of him and there was a t-bone collision.
Mr Javaid said he sustained multiple injuries including to his neck, back, chest and right ribs. He did not mention injuries to other body parts or regions at this time.
Mr Javaid said that he initially consulted his usual GP, Dr Islam. He said Dr Islam was not familiar with treating patients with insurance claims and so he consulted Dr Khan at Injury Care Limited soon after the accident.
There have been ongoing symptoms. Mr Javaid said that he continued to have neck and back pain. However, due to financial difficulties he has had to return to work.
Mr Javaid said that Dr Khan had referred him to Dr Nair and he has had two consultations, one of which he paid for himself. There have been multiple imaging studies done including MRI scans. Mr Javaid said he had 10 sessions of physiotherapy paid for by the insurer. Mr Javaid did not recall being referred to Dr Herald and has not seen him.

Current status

Mr Javaid said that he has low back pain particularly after working for two or three hours. There is also neck pain and some left shoulder pain.
Mr Javaid said that his left hand became numb after sleeping. He said he had pain when dressing. He said there were rib cramps when he was sleeping, and he had difficulty sleeping. He said there was difficulty with grip in the right hand and some bilateral hand tremor.
Mr Javaid reported intermittent pain in both legs.
Mr Javaid said he had variable ability to work. Due to financial issues, he is currently working as an Uber driver for five to six hours a day five days a week.
Mr Javaid said that he is very worried about his family. His mother is in a coma in Pakistan and, as the eldest and only surviving son, he wants to visit her but cannot afford to. Mr Javaid was very concerned that he has multiple ongoing issues and is not obtaining appropriate assistance from the insurer. He said that his son is assisting him financially.
Mr Javaid’s current medication is Panadol or Panadeine Forte as required. His GP continues to be Dr Khan.

Examination

Mr Javaid is right-handed, 173cm in height and weighs 90kg. Mr Javaid walked into the examination room with a normal gait and throughout the assessment.
Mr Javaid was co-operative. He was distressed when talking about his employment and financial situation after the motor accident.
At the cervical spine there was mildly and symmetrically reduced range of motion (to 80% of normal) in all three planes,[30] with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints present.
[30] Flexion and extension; rotation left and right, and lateral flexion left and right.
There were no neurological abnormalities in the upper extremities:
(a)    all reflexes were present, brisk and equal on testing;
(b)    nerve tension signs were negative;
(c)    circumferences of the upper extremities at the forearm were 29cm on both sides;
(d)    no muscle weakness was detected on testing, and
(e)    no sensory loss was detected on testing.
There was a very mild non-specific tremor in both upper limbs. This is likely to be an essential tremor (benign, familial or idiopathic) and it is not related to the motor accident. There has been no investigation of this and no note of it in the GP records of Dr Khan.
There was a full range of motion at the right shoulder. At the left shoulder there was inconsistent movement that Mr Javaid said was due to variable pain. The maximum observed movements at the left shoulder were abduction 100 degrees, adduction 30 degrees, flexion 120 degrees, extension 30 degrees, external rotation 70 degrees, internal rotation 80 degrees.
There was a full range of motion at other upper extremity joints including the hands, wrists and elbows in both hands. The right wrist was examined and there was no scarring visible in relation to the alleged acid burn from the airbag.

At the thoracic spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints present. There were no signs of radiculopathy.
No abnormality of the chest area was evident.

At the lumbar spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
There were no neurological abnormalities in the lower extremities as follows:
(a)    all reflexes were present, brisk and equal on testing;
(b)    sciatic nerve tension signs were negative;
(c)    circumferences of the lower extremities were measured at 39cm on both sides;
(d)    no muscle weakness was detected on testing, and
(e)    no sensory loss was detected on testing.

There was a full range of motion at both knees. There was no crepitus or instability.
There was a full range of motion of lower extremity joints (hip, ankle and feet) on both sides.

Imaging

Mr Javaid did not bring to the examination the imaging films or studies or make them available to the Panel by digital means.

WHAT INJURIES DID THE CLAIMANT SUSTAIN IN THE ACCIDENT?

The Panel accepts the claimant sustained a number of injuries in this accident. While the police did not attend, the unchallenged evidence from the claimant is that another vehicle turned right directly across Mr Javaid’s path and a collision ensued between the two vehicles. The Panel notes the airbags in Mr Javaid’s car deployed and his car was towed and written off.
The insurer’s original submissions suggested there were no contemporaneous complaints of pain and a first attendance at a GP a month after the accident. The Panel notes the claimant saw his longstanding GP, Dr Islam the day after the accident and several times thereafter before turning to Dr Khan of Injury Care Limited.

Chest and ribs

The Panel accepts the claimant injured his chest area in the accident. It is the experience of the medical members of the Panel that airbags deploying from the steering wheel can and do cause chest, including rib, injuries. The claimant complained to Medical Assessor Cameron of rib cramps when sleeping but no other complaints in the rib, chest or sternal area. The Panel notes the claimant’s chest and ribs were subject of radiological imaging which have not revealed any bony injury. There is no evidence of any “complete or partial rupture of tendons, ligaments, menisci or cartilage” in the chest area.
The injury to this part of the claimant’s body was a soft tissue threshold injury.

Wrists

Mr Javaid complained to Dr Islam of pain in both wrists and a burn injury to his right wrist. The medical members of the Panel consider, in their experience, that it is common for airbag deployment to cause injury to the wrists of drivers, holding the steering wheel, as the wrists are exposed to the force of the airbags. The Panel therefore finds that the claimant did injure his wrists in the accident.
The claimant did not complain to Medical Assessor of any ongoing symptoms in either wrist and the burn from the airbag was no longer visible on examination by Medical Assessor Cameron. There is no evidence of any wrist fracture or any evidence of any injury other than a soft tissue threshold injury to the wrist.

Neck and back

The claimant attended Dr Islam on 18 April 2021 complaining of neck pain with radiating pain to the shoulder and arm but no upper back or lower back pain. On 20 April 2021 the claimant was complaining of shoulder pain (right worse than left) and back pain in addition to the neck pain. Further attendances on Dr Islam reported complaints of neck and back pain including upper and lower back pain. Dr Khan on 19 May 2021 records cervical spine pain and thoraco-lumbar spine pain.
On the basis of the contemporary notes and the claim form, the Panel accepts the claimant injured his cervical, thoracic and lumbar spine.
The Panel notes that there have been complaints of shoulder pain from time to time but that there have been no radiological studies of them. The claimant did not include shoulders in his claim form and the claimant did not refer his shoulders to the Commission for assessment.

ARE THE CLAIMANT’S INJURIES THRESHOLD OR NON-THRESHOLD INJURIES?

Thoracic spine injury

Medical Assessor Home records that he was asked to assess a thoracic spine injury including a 20% compression fracture at the thoraco-lumbar junction.
The Panel asked the claimant to refer to the evidence where this compression fracture is documented however the claimant did not respond to the Panel’s request.
The Panel has considered all of the documentation before it and cannot find any evidence of a thoracic compression fracture anywhere in the material before us.
There were no signs of nerve root injury in the thoracic spine on examination by Medical Assessor Cameron.
The Panel finds that the claimant’s thoracic spine injury is a soft tissue injury within the meaning of s1.6 of the MAI and is a threshold injury.

Cervical spine injury

Is there an injury to a nerve manifesting in cervical spine radiculopathy?

The examination by Medical Assessor Cameron did not reveal any of the five signs of radiculopathy:
(a)    there was no loss of reflexes;
(b)    nerve root tension signs were negative;
(c)    there was no evidence of muscle atrophy or wasting;
(d)    there was no evidence of muscle weakness, and
(e)    there was no reproducible sensory loss.
Medical Assessor Home found no evidence of two of the five signs of radiculopathy when he examined the claimant.
There are no specialist reports before the Panel. The claimant does not recall any referral to Dr Herald but has seen Dr Nair (spinal surgeon) twice. No reports from Dr Nair are before the Panel.
There is a distinction between radiculopathy and radicular symptoms. The presence of radicular symptoms is one of the criteria for a diagnostic related estimate (DRE) category II in whole person impairment assessment (WPI). There is a strict definition of radiculopathy in both chapter 5 which is relevant to threshold injury, and chapter 6 which is relevant to an assessment of DRE category III WPI in the Guidelines.
The GP records that have been provided suggest that at various times there have been complaints of radiating pain into the shoulders and down the arms. Radiating pain is not one of the five signs of radiculopathy specified in the Guidelines.
On 20 April 2021, Dr Islam reports, “left neck pain with radiculopathy” but does not provide details of the examination findings which would enable the Panel to be satisfied there were two of the five signs of radiculopathy. The medical members of the Panel observe that in their experience “radiculopathy” is a term used by health practitioners in a general sense particularly when there is radiating pain from the neck to the arms or from the back into the legs. In the MAI Act and scheme, “radiculopathy” has a specific and legislated meaning beyond that of the general medical term.
The claimant reported to Dr Islam a feeling of weakness in the left hand on 22 April 2021. Dr Khan records a feeling of weakness in the whole of his body with a general lack of power and strength in his body. On 1 August 2022, Dr Khan records there was paraesthesia at the end of forward flexion. This may indicate one sign of radiculopathy (if properly tested) but no more than one. The notes of both Dr Islam and Dr Khan do not suggest that either doctor has conducted an examination that would comply with the requirements of cl 5.6 and the Panel cannot therefore make a finding that radiculopathy was present when they examined the claimant.
The claimant complained of left and right sided symptoms to Medical Assessor Home (global numbness in the left upper limb, left hand tremors and numbness in the right upper limb). Mr Javaid told Medical Assessor Cameron he had a lack of grip in the right hand. He also reported his left hand became numb after sleeping and he experienced bilateral hand tremor. These symptoms are generalised and global and do not conform to a particular dermatome or dermatomes. The Panel is not satisfied that these symptoms indicated there is any injury to any of the claimant’s cervical spine nerves or nerve roots.

Is there a complete or partial rupture of cervical tendons, ligaments, menisci or cartilage?

The notes of Dr Islam suggest the claimant had more significant radicular symptoms following his 2016 accident including radiating pain, pins and needles in both hands and weakness and numbness in the left forearm and hand and spasm in the left ring and little fingers. The claimant did not recall this accident when giving his history to Medical Assessor Cameron. According to the medical records, the claimant complained of neck pain after a May 2017 car accident and December 2017 after another car accident and again after an accident in April 2019.
The claimant did not bring any radiology with him to the examination with Medical Assessor Cameron. The Panel has therefore considered the radiology reports.
The claimant has degenerative changes in his spine (stenosis, arthropathy, osteophytes and so on) reported in both studies. It is the clinical judgment of the medical members of the Panel that the claimant’s degenerative cervical spine changes have been aggravated from time to time with each of the car accidents he has been involved.

May 2016

April 2022

Multilevel cervical spine degenerative changes, most marked at C5/6.

At C5/6 disc dehydration and endplate reactive changes, disc bulging indenting the thecal sac and extending into the foramina, narrowing the C6 nerve root and strong suspicion of impingement.

C6/7 disc dehydration, minimal disc bulging extending into the foramina on both sides causing moderate narrowing with no evidence of neural impingement.

Multilevel mid to lower cervical spine neural exit foraminal stenosis greatest on the left at C5/6 and greatest on the right at C6/7.

Severe to moderate arthropathy changes at C5/6.

Severe impingement of the exiting left C6 nerve root and mild impingement of the exiting right C6 nerve root.

C6/7 moderate to severe bilateral neural exit foraminal narrowing worse on the right.

When the two radiological reports are compared, the Panel is not satisfied that they reveal any partial or further partial rupture of the tendons and ligaments of the claimant’s cervical spine. The differences between the two reports represents a further progression of the claimant’s degenerative condition but no acute findings.
The Panel finds that the claimant’s cervical spine injury is a soft tissue injury and therefore a threshold injury.

Lumbar spine injury

Is there an injury to a nerve manifesting in lumbar spine radiculopathy?

The claimant sustained an injury to his back in the May 2016 accident. This was still causing symptoms over two years later and following that accident, the claimant had his injury assessed with an MRI and was referred to Dr Pope, a neurosurgeon.
The claimant had two accidents in 2017 and sustained injury to his back which radiated to his hips and thighs, and which was the cause of treatment in 2018. The claimant had two attendances for back pain in 2019 and a further attendance in October 2020 (six months before the car accident).
The claimant does not appear to have reported lumbar spine symptoms to his GP on the day after the accident but there is a record of a complaint three days after the accident. It is the medical members of the Panel’s experience this is indicative of a further aggravation or exacerbation injury rather than a more significant new frank and specific injury to a different part of the claimant’s spine.
Medical Assessor Cameron did not find any of the five signs of radiculopathy when he examined the claimant:
(a)    there was no loss of reflexes;
(b)    sciatic nerve root tension signs were negative;
(c)    there was no evidence of muscle atrophy or wasting;
(d)    there was no evidence of muscle weakness, and
(e)    there was no reproducible sensory loss.
Medical Assessor Home did not find any of the five signs of radiculopathy.
While there is a suggestion in the certificates issued by Dr Khan of radicular symptoms, he does not provide any clinical examination findings to support there were any of the five signs of radiculopathy in the lumbar spine and none of Dr Islam’s records suggest an examination that would comply with cl 5.6 and enable the Panel to make a finding of radiculopathy at any time since the accident.

Is there a complete or partial rupture of lumbar tendons, ligaments, menisci or cartilage?

The claimant did not bring any radiology with him to the examination with Medical Assessor Cameron. The Panel has therefore considered the radiology reports.

June 2016

April 2022

There is mild disc desiccation and early degenerative spondylotic change.

At L4/5 mild disc desiccation with minimal annular bulge but no focal disc protrusion.

At L5/S1 there is mild disc dessication with a right paracentral / foraminal disc bulge flattening the thecal sac and there is contact with the right S1 nerve root and contact of the left L5 nerve root. Lower lumbar facet osteo arthritis was also noted.

There is no high grade canal/foraminal stenosis or nerve root compression.

There is a disc bulge reported as associated with a tear of the annulus at L4/5 likely to be irritating the left L4 nerve root. [This is due to the progression of the spinal degenerative disease (lumbar spondylosis) and not due to the motor accident].

There was also possible nerve root irritation on the right at L5 due to neural exit foraminal narrowing caused by facet joint arthropathy and right-sided disc osteophyte complex.

The claimant has degenerative changes in his spine (stenosis, arthropathy, osteophytes and so on) reported in both studies. When the two radiological reports are compared there is some difference between the two which the medical members of the Panel consider to be, in their clinical experience, a progression of the underlying degenerative changes as exacerbated and aggravated by the other accidents the claimant has experienced and other incidents as highlighted in Dr Islam’s records.
The Panel is not satisfied that, as a result of this accident, the claimant has sustained “the complete or partial rupture of tendons, ligaments menisci or cartilage” in the lumbar spine. The claimant’s lumbar spine injury is a soft tissue threshold injury.

CONCLUSION

The Panel finds that all of the claimant’s injuries are threshold injuries.
As the Panel has come to the same conclusion as Medical Assessor Home it follows that his certificate in respect of the threshold injury dispute should be confirmed.

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Citations

Javaid v QBE Insurance (Australia) Limited [2023] NSWPICMP 322

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[2023] NSWPICMP 322

7 July 2023