Jodi-Maree Ola v AAI Limited t/as GIO
[2025] NSWPICMP 76
•11 February 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Jodi-Maree Ola v AAI Limited t/as GIO [2025] NSWPICMP 76 |
| CLAIMANT: | Jodi-Maree Ola |
| INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL | |
| MEMBER: | Terence Stern |
| MEDICAL ASSESSOR: | Les Barnsley |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 11 February 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about threshold injury; physical injury; Medical Assessor (MA) Kuru considered the injuries to the cervical spine, left shoulder, and right shoulder; MA Kuru found that the injury to the cervical spine was caused by the motor accident and was a threshold injury; re-examination by Medical Review Panel (Panel); Panel found that the injuries to the cervical spine, right shoulder, and left shoulder were caused by the motor accident; Panel found that the injuries to the cervical spine, right shoulder, and left shoulder were threshold injuries; Held – Panel found cervical spine, left shoulder and right shoulder were threshold injuries; Panel revoked earlier certificate and issued a new certificate. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the determination of Medical Assessor Robert Kuru in respect to the cervical spine, dated 31 May 2024, which determines that the injury to the cervical spine is a threshold injury. 2. The Review Panel revokes the determination of Medical Assessor Robert Kuru in respect to the left and right shoulders, dated 31 May 2024, and substitutes the determination that the injuries to the left and right shoulders were caused by the accident and were threshold injuries. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Jodi-Maree Ola (Ms Ola), was injured in a motor vehicle accident (the accident) on 6 August 2021.
GIO Insurance (GIO) was the relevant insurer.
Threshold injury dispute
The dispute is whether Ms Ola’s physical and psychological injuries are a “non-threshold injury” within the meaning of the Motor Accident Injuries Act 2017 (the MAI Act).
In this context, claims and entitlements to benefits and compensation are governed by the provisions of the MAI Act.
Claims are initiated by lodgement of an Application for Personal Injury Benefits and also an application for Damages under Common Law arising out of the motor accident against the insurer. The legislation provides a scheme of statutory benefits (under part 3) and lump sum damages (under part 4).
Statutory benefits include weekly benefits for lost earnings and treatment and care needs for accident-related injuries.
Claims for damages include damages for economic losses and possibly non-economic loss resulting from accident-related injuries.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. Some statutory benefits are limited if the only injuries sustained by the injured person are “minor” injuries.
In a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
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 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as “threshold injuries” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to “threshold injuries”.
Accordingly, an injury which does not fall within the definition of “threshold injuries” (non-threshold injuries) means that a claimant has an entitlement to claim damages and, subject to other exclusions, a greater entitlement to statutory entitlements.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
Chapter 7, division 7.5 of the MAI Act provides for medical assessments by the Personal Injury Commission (Commission) including provisions relevant to an original medical assessment, further medical assessments and the Review of medical assessments by this Panel.
Issues in relation to the regulation of medical assessment were regulated pursuant to the Medical Assessment Guidelines up to 1 March 2021. From 1 March 2021 these are now regulated by the Personal Injury Commission Rules.
This dispute is in relation to whether the injury caused by the motor accident is a threshold injury.
This constitutes a medical dispute within the meaning of the MAI Act.
A medical assessment was conducted by Medical Assessor Raymond Robert Kuru who subsequently provided a certificate dated 31 May 2024 (the Initial Assessment).
THRESHOLD INJURY- STATUTORY PROVISIONS
Assent was given to the MAI Amendment Act on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 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 constitutes 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 MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI 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 membranes), 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 MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 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:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and preexisting 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 Trading as NRMA Insurance [2022] NSWSC 372, his Honour Justice Wright stated at [35]:
“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
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 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 AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes’.”
ASSESSMENT UNDER REVIEW
The following injuries were referred by the Commission to Medical Assessor Robert Kuru for assessment:
(a) cervical spine;
(b) right shoulder, and
(c) left shoulder.
The Medical Assessor found that the following injury was caused by the motor accident:
(a) cervical spine.
The Medical Assessor determined the following injury was threshold injuries:
(a) cervical spine.
At [3]-[4] in his assessment, Medical Assessor Kuru noted the submissions made by Ms Ola and the insurer.
The Medical Assessor took a pre-accident medical history at [8] and noted that Ms Ola was medically well.
The Medical Assessor took a history of the motor accident at [9]:
“Ms Ola reported she was hit by 2 cars. She was stationary waiting for a car to turn right. She was rear ended when another car hit her and another car subsequently hit the car that struck her.
She was taken by ambulance to Canterbury Hospital. She had some x-rays and was given some analgesics and discharged.
She subsequently presented to her General Practitioner who gave her further analgesics and referred her for treatment with a Chiropractor and then Physiotherapist. She was subsequently referred to a Pain Management Specialist”
Medical Assessor Kuru took a history of symptoms and treatment following the motor accident at [10]:
“Subsequent to the accident, Ms Ola has had ongoing right sided neck pain radiating up to her jaw and ear and headaches. She is in pain extending down over her right shoulder and loss of sensation in the right thumb. She has numbness in her right foot beneath her second toe”
At [11], the Medical Assessor noted that Ms Ola was involved in a subsequent motor vehicle accident where a car reversed into her six months after the subject accident.
The Medical Assessor listed the current symptoms at [12], noting ongoing right-sided neck pain radiating up to her jaw and ear and headaches, pain extending down over her right shoulder and loss of sensation in her right-thumb, and numbness in her right foot beneath her second toe.
The Medical Assessor discussed current and proposed treatment at [13], noting that Ms Ola takes Zoloft and Panadeine Forte for pain relief and she has been reviewed by a pain management specialist.
Medical Assessor Kuru sets out the clinical examination at [14]-[17]:
“[14] General Presentation
On examination, Ms Ola was a well looking woman but obviously uncomfortable with her neck pain. Romberg’s test was negative. Trendelenburg’s test was normal. Heel-toe stance was normal. Upper limb reflexes were symmetrical with a negative Hoffman test. Peripheral power was intact. Impingement tests for the shoulders were negative. Range of motion of the left shoulder was normal. Movement of the right shoulder significantly exacerbated neck pain and was not formally assessable. It was noted that 50° of abduction and internal and external rotation of the right shoulder were both 80°.
[15] Comments on consistency
Ms Ola was significantly affected by her neck pain subsequent to her accident.
[16] Summary of relevant documentation
At initial assessment by Dr Richmond, Pain Management Specialist, on 28/09/2021, she details burning neck pain, bilateral shoulder pain and cervicogenic headaches. Dr Richmond notes degenerative changes seen on imaging. She then indicates she plans to proceed with diagnostic medial branch blocks at C3/4, C4/5 and C5/6. There was no mention of symptoms radiating into the right upper limb at her initial assessment.
I note records from the General Practitioner recording consultation subsequent to the accident on 30/03/2021. In a clinical entry, ‘Has neck pain, lower back, headaches, nausea, left shoulder pain’. In a clinical entry dated 05/08/2021, notes ‘Neck pain since whiplash injury in March 2021. Burning sensation and pins and needles in neck/some radiation to the left upper arm’. The General Practitioner’s records do not note a referral into the right upper limb and numbness of the right thumb.
I note the medical assessment (physical) undertaken by Assessor Cameron dated 30/12/2022. In that assessment, numbness in the right thumb is recorded.
[17] Summary of relevant radiological and medical imaging and other investigations
I was not able to review any imaging associated with the injury at the time of assessment. I note reports of the MRI dated 30/08/2021 demonstrating degenerative disease C3/4, C4/5, C5/6 with multi-level foraminal stenosis.
I note no imaging of the shoulders has been undertaken.”
At [18]-[19], the Medical Assessor sets out his determinations:
[18] Diagnosis and reasons
Cervical spine: Aggravation of pre-existing degenerative disease.
There is no evidence of acute injury to either shoulder
[19] Causation and reasons
Injury to the cervical spine was caused by the motor vehicle accident. Imaging has demonstrated pre-existing degenerative disease with multi-level foraminal stenosis.
There is no evidence of structural injury to either shoulder subsequent to the accident.
The Medical Assessor concludes at [23] onwards:
[23] The following injury is a threshold injury:
- Cervical spine.
The following injuries referred to me for assessment have been assessed and determined to be not caused by the motor accident:
- Left shoulder.
- Right shoulder.
REVIEW PROCEDURE
Ms Ola lodged an application for review of the assessment of Medical Assessor Kuru.
On 26 July 2024 the delegate of the President determined there was reasonable cause to suspect a material error in that assessment.
The President of the Commission then convened a panel to conduct the review.
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 decision maker. A ‘new decisionmaker’ is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after
1 March 2021, the new provisions apply.The new review provisions provide at s 7.26(5) of the MAI Act that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a Medical Assessor – see s 41(2) of the PIC Act.
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 the proceedings and may determine the proceeding solely based on the written application.
The Review Panel was comprised of two specialist medical practitioners and a legal member. The Panel met on a number of occasions and provided Directions to the parties.
The Review is not a stand alone hearing but a process involving the Panel seeking evidence, including additional material provided by the parties and further submissions, and potentially further medical examination, then meeting on a number of occasions to discuss the evidence before the Panel and to reach a view on the relevant issues and reduce that to written reasons.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen [2021]NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21] and [64].
Both the claimant and the insurer are legally represented and have the opportunity to provide submissions and to identify and narrow the issues in dispute so as to meet the objectives of the MAI Act.
SUBMISSIONS
Claimant’s submissions dated 27 June 2024
I briefly summarise Ms Ola’s submissions as follows:
Ms Ola was involved in a motor vehicle accident on 6 August 2021.
GIO issued a liability notice on 1 December 2021, determining that Ms Ola sustained threshold injuries for the purposes of the MAI Act.
Ms Ola sought an internal review on 7 February 2022.
On 17 February 2022, the insurer issued a certificate of determination affirming their original decision.
Ms Ola referred her injuries for assessment by the Commission on 5 February 2024.
Medical Assessor Robert Kuru assessed Ms Ola’s physical injuries on 9 May 2024, issuing a Certificate on 3 June 2024 determining Ms Ola’s injuries were threshold injuries.
Ms Ola submits there is reasonable cause to suspect that Medical Assessor Kuru’s assessment is incorrect in a material respect and she accordingly seeks a review pursuant to s 7.26 of the Act.
Basis for Application
Reasonable cause to suspect Medical Assessor Kuru’s assessment is incorrect in a material aspect for the following reasons:
(a) failure to conduct assessment in accordance with the Motor Accident Guidelines, and
(b) failure to provide adequate reasons.
Submissions
Clause 5.8 of the Guidelines defines radiculopathy as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.”
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
The Medical Assessor records Ms Ola’s symptoms at paragraphs 10 and 14 of his certificate:
[10] “Subsequent to the accident, Ms Ola has had ongoing right sided neck pain radiating up to her jaw and ear and headaches. She is in pain extending down over her right shoulder and loss of sensation in the right thumb. She has numbness in her right foot beneath her second toe.”
[14] “On examination, Ms Ola was a well looking woman but obviously uncomfortable with her neck pain. Romberg’s test was negative. Trendelenburg’s test was normal. Heel toe stance was normal. Upper limb reflexes were symmetrical with a negative Hoffman test. Peripheral power was intact. Impingement tests for the shoulders were negative.
Range of motion of the left shoulder was normal.
Movement of the right shoulder significantly exacerbated neck pain and was not formally assessable. It was noted that 50° of abduction and internal and external rotation of the right shoulder were both 80°.”
Ms Ola submits that there is nothing in the Medical Assessor’s Certificate which indicates that he assessed muscle atrophy or muscle weakness, being signs (c) and (d) of the definition of radiculopathy contained in the Guidelines.
The Medical Assessor positively identified (e), sensory loss, in the above paragraph 10, but Ms Ola submits that this does not appear to have been specifically addressed during his examination.
Ms Ola submits that the Medical Assessor needs to have identified two signs of radiculopathy to satisfy the definition in the Guidelines. Operating on the assumption that sensory loss is positively identified, only one of the two signs that he has failed to address altogether — (c) and (d) — needed to be found in order for the claimant to satisfy the criteria for radiculopathy. Even in the event that the assumption of sensory loss being identified is misconstrued (which the claimant is not suggesting) it is entirely possible that (c) and (d) on their own would satisfy the criteria, had they been assessed.
Accordingly, Ms Ola submits that the Medical Assessor could not have properly assessed whether radiculopathy is present in accordance with cl 5.7 of the Guidelines.
Failure to provide adequate reasons
Further to the above, Ms Ola submits that the Medical Assessor’s reasons regarding radiculopathy are inadequate. She continues:
“The Assessor has not concluded whether radiculopathy exists. At the bottom of page 5 and the start of page 6 of the certificate, the Assessor states as follows:
‘Cervical spine: Injury to the cervical spine represents aggravation of pre-existing degenerative disease in the neck. Numbness extending into the right thumb is likely on the basis of the degenerative foraminal stenosis at C5/6. In the absence of signs of radiculopathy from the cervical spine this is a threshold injury.’
The Assessor’s statement that the numbness extending into the right thumb is a threshold injury ‘in the absence of radiculopathy’, given his deficient assessment of whether radiculopathy even exists as submitted above, cannot be said to have disclosed his actual path of reasoning. It is unclear whether the Assessor has concluded whether the claimant suffers from radiculopathy, because he has not said anywhere in his certificate that the claimant does not. The claimant’s recommended disc replacement surgery, recorded in the material which was before the Assessor, in fact is an indication that radiculopathy is present in its classic definition. This has not been addressed, nor has the Guidelines’ definition of radiculopathy been addressed anywhere in the Assessor’s reasons. Without the Assessor’s actual path of reasoning being disclosed, the parties are left to guess, and a suspicion that the assessment contains a material error is raised.”
The claimant submits the President will be satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the above submissions. Once satisfied of a reasonable suspicion of material incorrectness, the matter must be referred for re-assessment in the interests of fairness: Meeuwissen v Boden [2010] NSWCA 253.
Insurer’s submissions in reply dated 3 July 2024
I refer to GIO’s submissions by reference to paragraph numbers:
[1] Ms Ola was involved in the subject motor accident on 6 August 2021.
[2] Ms Ola was examined by Medical Assessor Robert Kuru, orthopaedic surgeon, on 9 May 2024 (Commission’s Proceedings M20370/24).
[3] By way of certificate and reasons dated 31 May 2024 (hereafter referred to as the “certificate of Assessor Kuru”), the Medical Assessor determined
Ms Ola suffered only a threshold injury to her cervical spine as a result of the subject accident.[4] Ms Ola alleges the delegate would have reasonable cause to suspect material error in the medical assessment.
[5] The insurer disputes that Ms Ola’s application is compliant with s 7.26 of the Act and submits Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171 would apply to prevent a frivolous challenge to an assessment merely on the basis the claimant is unsatisfied with the original assessment.
[6] The insurer submits the certificate of Medical Assessor Kuru to be a detailed, well-reasoned and compliant independent opinion based the Medical Assessor’s detailed clinical examination, review of medical evidence and opinion using the entire gamut of his clinical skill and professional judgment.
[7] Ms Ola’s application can essentially be distilled into one complaint – that Assessor Kuru did not record in specific detail, akin to a transcript, each and every aspect of what occurred during clinical examination of the claimant.
[8] The insurer notes reasons given by Medical Assessors do not need to be extensive or provide detailed explanation of the minutiae of methodology applied in reaching their professional judgment.
[9] The insurer submits the information outlined by Assessor Kuru at sections 14 and 22 of his certificate (which ironically the claimant has extracted within her submissions) clearly establish the Medical Assessor understood one aspect of his statutory function was to consider whether Ms Ola had radiculopathy and he undertook a detailed examination directed to that question.
[10] Specifically, Assessor Kuru recorded that he administered Hoffman’s test and also that peripheral power was intact. The insurer notes those aspects as they address directly “(c) and (d)” from clause 5.8 of the Guidelines and thus, the insurer submits, Ms Ola’s submissions entirely fall away. Furthermore, Ms Ola’s suggestion the Medical Assessor had “arguably” identified sensory loss for the purposes of clause 5.8(e) is misleading as it was plain his opinion that symptom was caused by pre-existing degenerative pathology rather than the accident (see: the bottom of page 5 of the certificate).
[11] The insurer submits the Delegate would be satisfied Assessor Kuru appropriately determined Ms Ola did not have radiculopathy (or any non-threshold injury) and fact she is not satisfied with that outcome does not form the basis for a review.
[12] The insurer submits it to be significant and highly relevant that Ms Ola does not suggest any deficiency in the clinical examination itself undertaken by Assessor Kuru. Rather, she has opportunistically sought to cast doubt over the medical assessment in view of the Medical Assessor’s description of his examination with the certificate. The delegate would note Ms Ola was of course present at the clinical examination and makes no allegation it was not comprehensive and incomplete, only that there was not recording of every detail akin to a transcript.
[13] The insurer again notes reasons given by Medical Assessors do not need to be extensive or provide detailed explanation of the minutiae of methodology applied in reaching their professional judgment.
[14] Finally, Ms Ola’s suggestion the mere fact surgery was recommended by her treating neurosurgeon would be ‘an indication that radiculopathy is present in its classic definition’ is respectfully misguided and frankly incorrect.
[15] Quite separate to the “classic definition” of radiculopathy, the Guidelines outline at clause 5.8 a specific definition to be utilised to determine threshold injury disputes and the insurer submits it was clear Assessor Kuru determined that definition was not satisfied following his detailed clinical examination of the claimant.
[16] Needless to say, a recommendation for surgery could not possibly satisfy the definition on its own.
[17] Therefore, the insurer submits that submission could not reasonably give rise to reasonable cause to suspect error in the certificate of Assessor Kuru.
[18] The insurer respectfully submits the delegate would not have reasonable cause to suspect material error in the medical assessment undertaken by Medical Assessor Kuru.
[19] The insurer submits Ms Ola’s application for review ought to be dismissed.
THE REVIEW PANEL
At the first Medical Review Panel (MRP) meeting on 24 October 2024, the Panel agreed that a medical examination would be necessary to address the parties’ submissions.
Medical Assessor Margaret Gibson examined Ms Ola on behalf of the Panel on
24 January 2025 at Suite 4, Level 6, 66 Pacific Highway, St Leonards 2065.
Past medical history
Ms Ola had a splenectomy at age 2 years after she was kicked by a horse. She had had a thyroidectomy about 10 years ago and is on thyroxine therapy.
Ms Ola reported no other medical or surgical issues and no additional history of accidents or injuries prior to the motor accident in March 2021.
March 2021 motor accident
Ms Ola said she had been driving along Parramatta Road in the right-hand lane. It was during the evening peak hour and she was headed home. The driver in front of her had stopped and was attempting a right turn across heavy traffic. She said there was at least a 10-minute wait and she was unable to move into the left lane. Then, all of a sudden she was hit from behind, the impact being to the right rear of her car. She said the force was such that the other vehicle was stuck to her car. She heard the other driver screaming. She thought she was going to die.
Ms Ola said that there was immediate pain over her "whole body" including her neck, arms and back. She thought she had broken her neck. Shortly afterwards there was a second impact, this time to the left rear of her car. There were no front-end impacts. She said the driver in front had eventually driven off and had made no attempts to assist at the scene.
Her car was towed. An ambulance arrived and she was transferred to Canterbury Hospital. She said at the time she was in shock. She thinks X-rays may have been taken at the hospital and after a period of observation and assessment a relative had arrived and had driven her home.
She said that as a result of this accident she had sustained injury to her neck with pain spreading into her right arm and shoulder and there was numbness over her right thumb (she described the entire thumb being affected from the tip to the metacarpophalangeal joint). She was also suffering with frontal headaches and pain over her right ear and extending over the right side of her head and into her forehead and to the top of her head.
When asked what she had done in the way of treatment following a visit to Canterbury Hospital as to whether she had visited a general practitioner (GP), she said she had seen the GP sometime after the accident. She had attended physiotherapy at the Royal Prince Alfred Pain Centre. She had seen a chiropractor in Croydon. She said over time there had been no improvement in her symptoms at all.
She was referred to pain physician, Dr Trudi Richmond. She could not recall when she had first visited the doctor. However, Dr Napper, her psychiatrist had noted on
3 February 2021 that “…her pain specialist has recommended a nerve block and nerve ablation and that this has not been approved by the insurer. I would consider this treatment to be extremely important to Jodi's recovery. Nerve blocks and nerve ablation have proven effective in managing severe chronic neuropathic pain.”
Subject accident
On 6 August 2021 Ms Ola was parallel parked in front of her store in Croydon. She found she was wedged in by other cars, so had to wait before she could move her car. She said that because she was in so much pain, due to the earlier accident, she sat in a crouched position and didn’t have her seatbelt fastened. She thought she was sitting there for about 20 minutes when a large man came out and got into one of the cars that was blocking her in. She said she sounded her horn as she was worried that he would back into her car. Then, all of a sudden there was a "smash" as he reversed into her car. There was no airbag deployment. She said this impact had "aggravated all I have already got" and there was "too much pain."
Police were called. Ambulance had arrived. She remembered having remained in the car and exchanging details with the other driver. She said a female witness had advised that the other driver had been at fault.
Her car was not towed and she was able to drive it back home which is only about a street away. She said once she got home, she got straight into bed and took some more tablets, as she was "crying in pain."
She thought it was a day or so later that her mother had taken her to GP. She said by that stage she "wanted to cut my neck off" as the pain was so bad. The pain was spreading to both shoulders. She has difficulty lifting her arms especially the right side because of neck pain. She had buzzing in both ears, which she added was already there after the first accident but was aggravated by the second accident. She said she is deaf in her left ear. She can’t sleep. She said at night she tries to position her right shoulder forwards in an attempt to stretch her neck muscles and that this has caused problems with the shoulder.
She had visited Professor Di Ieva, neurosurgeon on 20 September 2022. In his report he noted:
“Today, she presents with chronic neck and right upper limb pain in context of multiple whiplash injuries from three motor vehicle accidents in March and September 2021. She has worsening constant right-sided and intermittent left-sided neck pain, associated with right upper limb pain, radiating from shoulder to outer aspect of the arm, forearm and right thumb. This pain is associated with paraesthesia in the same distribution of the right upper limb pain with numbness in the right thumb, noticed for the last 2-3 months. She had radiofrequency ablation to the right cervical facet joints with temporary relief. Currently the pain is at worst and significantly limiting her daily activities, in particular, sleeping, sitting and lifting. On examination today, Jodie-Maree was not able to sit down due to the neck and upper limb pain. There was a limited range of neck rotation, which reproduced the right upper limb pain. The Spurling manoeuvre was positive for the right C6 nerve root. There was a subtle weakness of the right upper limb, including wrist extension and elbow flexion 4/5 compared to the left side limited by pain. The tone and reflex of the upper limbs were normal. The MRI cervical spine, completed at Alfred Radiology on the 24th August 2022, shows degenerative changes of the cervical spine, with an annular disc bulge as C5/6, with potential compression of the exiting C6 nerve root.”
She had visited neurologist, Dr Shaun Watson on 31 January 2023. Dr Watson, in his report of that date had noted “questionable slight weakness” of finger abduction, but this was a bilateral finding. And he had concluded “General neurological examination in terms of tone, power, reflexes and sensation were
normal.”
When asked about her treatment after the subject accident, she said she was "already in pain after the first accident, so what is the use?". She said there was no change in treatment after the first accident and in relation to her symptoms it "just hurts more."
Current treatment
Ms Ola visits her GP, Dr Ziad at Leichhardt Medical Centre every two weeks.
She visited a psychiatrist for a while (presumably Dr Napper), but she stopped when the insurer stopped paying and was not sure when this was and she said I would have to speak to them.
She had continued to visit pain physician, Dr Trudy Richmond until the insurer stopped payments. She said she had referred her to the neurosurgeon.
She had visited Professor Di Ieva, neurosurgeon at Macquarie Hospital, and he had told her she would require "4 cages" to her neck, but the insurer had refused to pay for surgery.
Her current medications include Betahistine 60mg daily (for vertigo) and pregabalin 75mg twice daily (for pain) since the earlier accident. She also uses pizotifen 0.5mg (for headache) at night since the second accident, omeprazole 20mg (for reflux) a day since the second accident, sertraline 50mg in the morning (for mood), tapentadol slow release 100mg (for pain) twice daily, ondansetron 8mg (for nausea) twice daily, Panadeine Forte 1 tablet (for pain) a day as required.
She said she there was no other treatment as the "insurer denied everything."
Current complaints
Ms Ola described the neck pain as being "like a torch with fire constantly burning." The pain is there “24/7”, rated at 10/10 severity. She could not identify any precipitating or exacerbating factors. The pain spreads to the right greater than left trapezius regions and into the right shoulder and right arm, over the right biceps to the anterolateral forearm and into the right thumb which feels numb. There are “very bad” pins and needles over the entire right upper limb. She feels she has injured her right shoulder.
She said she cannot sleep.
There are severe headaches which spread from the neck to the right ear to forehead and both eyes.
When asked, she said the first accident was certainly the worse, and the subject accident "just aggravated the injury that she already had."
She said that she lost her business due to the accident. The business was closed in March 2024. She added that her mother had the fashion business in Croydon for 33 years and she was getting it re-established when she had been hit by the two cars. She said that after the accidents she wanted to kill herself. She finds she can’t function day to day.
Imaging
No imaging studies were brought to the assessment.
Physical examination
Ms Ola is ambidextrous. She was 167.5cm tall. She weighed 75kg. She had a normal gait. She could stand on heels and toes. She was only able to squat minimally due to complaints of "pulling in my neck."
On examination of the neck, she reported extreme tenderness to even light palpation, particularly over the right side of neck and right trapezius region. Flexion and extension were to one-third normal. Rotation was to two-thirds to the left, half normal to the right. Lateral flexion was the same was to two-thirds to the left, half normal to the right. There was muscle guarding over the neck and trapezius regions, worse on the right.
On examination of both shoulders, movements were restricted bilaterally, as follows:
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 50° | 110° |
| Extension | 30° | 60° |
| Internal Rotation | 80° | 80° |
| External Rotation | 80° | 80° |
| Abduction | 70° | 130° |
| Adduction | 20° | 50° |
On examination of the upper limbs, circumferential measurements were 30cm at the arms (measured 10cm above the olecranon). Forearms measured 27cm bilaterally (measured 10cm below the olecranon).
There were sensory changes which could correspond to the S6 dermatome over right forearm and thumb, but on repeat testing there was also sensory loss over the entire right upper limb. Power testing was compromised by giving way on testing right upper limb. Reflexes were normal and bilaterally equal.
When asked whether she had anything to add, she said that she been a very successful person prior to the accident. She had a law degree. She said since the subject accidents she had "lost everything." She has no job. She cannot even have relationship because she is in so much pain. She is living with her mother. She doesn’t mix with anyone anymore. She said the accidents had "changed who I am." She is very moody, she cries for no reason. She feels miserable and this wasn’t her fault. She said the whole system is "disgusting." She finds it "very offensive" that she has to undergo multiple medical assessments as she "did not cause any of this" and it was all because of three very irresponsible negligent drivers that have "turned my life upside down.”
PANEL’S CONSIDERATION OF THE ISSUES AND SUBMISSIONS
The Panel carefully considered the question as to whether or not the cervical spine injuries represented a non-threshold injury. The imaging did not suggest a partial or complete tear of cartilage ligament or tendon. The decision therefore depends upon whether or not radiculopathy is present. Radiculopathy is only deemed to be present when specific clinical features are present as defined by the Motor Accident Guidelines. For radiculopathy to be present, 2 or more of the following features need to be present:
· loss or asymmetry of reflexes;
· positive sciatic nerve root tension signs;
· muscle atrophy and/or decreased limb circumference;
· muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
· reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
At re-examination by the Panel, Ms Ola did not have any reflex changes in the upper limb. There was no unilateral arm wasting on formal measurement of upper circumference. She demonstrated altered sensation over the entire right arm and although this seemed maximal over the C6 distribution. Its presence does not meet the specific criteria of reproducible sensory loss that is anatomically localised to an appropriate spinal nerve distribution.
Similarly, she displayed global weakness in the right arm, which is not weakness limited to a spinal nerve root. The criteria of a positive sciatic nerve stretch test pertains only to radiculopathy in the lower limbs. Therefore, she does not meet the required diagnostic criteria for radiculopathy under the Motor Accident Guidelines.
The Panel also considered whether or not Ms Ola had radiculopathy demonstrated at any time since the accident.
If so, this would meet the definition of a non-threshold injury. This necessarily requires a detailed record of upper limb neurological examination findings that meet the necessary criteria.
The Panel therefore considered the findings of Professor Antonio Di leva who concluded that she had C6 compromise.
Prof Di leva performed a Spurling test. This is a foraminal compression test, in which manoeuvres are applied to the neck to try to narrow the foramen through which the spinal nerves pass to exit the spinal column.
A positive test occurs when pain is reproduced in a specific dermatome. It is not a nerve tension test and does not meet the explicit criteria outlined in the Guidelines which are limited to nerve tension tests of the sciatic nerve in the lower limb. He did not find any reflex changes, and does not report sensory findings.
There is no record of limb circumference measurements or atrophy. He attributes the weakness he demonstrates in the arm to pain reproduction. Therefore, the findings of Prof Di leva are insufficient for the Panel to consider that radiculopathy, as defined in the Guidelines, was present.
In respect to the shoulders, the records provided to the Panel did not reveal any imaging findings to suggest a complete or partial tear of cartilage, tendon or ligament. Therefore, the Panel considers the injuries alleged to the shoulders to be threshold injuries.
DETERMINATION
The Review Panel confirms the determination of Medical Assessor Robert Kuru in respect to the cervical spine, dated 31 May 2024, which determines that the injury to the cervical spine is a threshold injury.
The Review Panel revokes the determination of Medical Assessor Robert Kuru in respect to the left and right shoulders, dated 31 May 2024, and substitutes the determination that the injuries to the left and right shoulders were caused by the accident and were threshold injuries.
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