Jones v AAI Limited t/as AAMI
[2023] NSWPICMP 535
•25 October 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Jones v AAI Limited t/as AAMI [2023] NSWPICMP 535 |
| CLAIMANT: | Mercedes Jones |
| INSURER: | AAI Ltd t/as AAMI |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 25 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; various treatment disputes and threshold dispute; claimant involved in a motor accident on 18 June 2021 in rear end collision; claimant re-examined by Medical Assessor; claimant established that injury to right shoulder as non-threshold due to absence of prior scans, early complaint, medically plausible as seatbelt restrained right shoulder and subsequent imaging; separate findings made on each of the nine treatments on the separate issues of causation and reasonable and necessary; Held – medical assessment revoked; various findings made on treatment disputes; claimant suffered non-threshold injury to right shoulder. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 28 February 2023 and certifies that the claimant suffered a non-threshold injury to the right shoulder. Medical Assessment –Treatment and Care Review Panel Assessment of Treatment and Care Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 28 February 2023 and issues a new certificate determining that: The following treatment and care: · referral to Dr Nham IS REASONABLE AND NECESSARY in the circumstances. The following treatment and care: · request for further MRI scans in June 2022; · physiotherapy between 20 January 2022 and 1 February 2022, and · further physiotherapy on 9 June 2022. IS NOT REASONABLE AND NECESSARY in the circumstances. The Review Panel revokes the certificate dated 28 February 2023 and issues a new certificate determining that: The following treatment and care: · referral to Dr Nham; · request for further MRI scans in June 2022; · physiotherapy between 20 January 2022 and 1 February 2022, and · further physiotherapy on 9 June 2022. relates to the injury caused by the motor accident. |
REASONS
BACKGROUND
Ms Mercedes Jones (the claimant) sustained injury in a motor accident on 18 June 2021. The claimant was the driver when the insured vehicle struck the claimant’s vehicle from behind.
The insurer is liable to pay Ms Jones any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act). The issues presently in dispute are whether Ms Jones physical injuries caused by the motor accident are a “threshold injury” and “whether any treatment and care 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)” within the meaning of the MAI Act.
The treatment and care disputes were:
- the referral for medical consultation with Dr Nham, neurologist;
- request for physiotherapy between 20 January 2022 and 1 February 2022;
- request for further MRI scans in June 2022, and
- request for further physiotherapy treatment on 9 June 2022.
Pursuant to Schedule 2, cl 2 of the MAI Act, disputes about whether the injury is a threshold injury and treatment and care disputes are medical assessment matters. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
Original medical assessment
The medical dispute was referred to Medical Assessor Home who issued a Medical Assessment Certificate dated 28 February 2023 (the medical assessment). The Medical Assessor found that the injuries to the cervical and lumbar spine, right and left shoulder and abdomen were minor injuries. The referral for a medical consultation with Dr Pham, neurologist was held to be both reasonable and necessary and caused by the accident. The other treatment disputes were held to be not reasonable and necessary.
In relation to the medical dispute on minor injury, Medical Assessor found that the shoulder pathology was not caused by the motor accident and that the claimant sustained soft tissue injuries to the cervical and lumbar spines and both shoulders.
The Medical Assessor held that the referral to Dr Nham was required because it would identify the cause of the left upper limb symptoms. The other treatments were not reasonable and necessary given that prior previous physical therapy did not improve the claimant’s condition.
Amendment to legislation
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 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.
The Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.
The assessment by the Medical Assessor and the parties’ submissions were made prior to
1 April 2023 when the correct term was “minor injury”. Accordingly, the term “minor injury” and “threshold injury” are used in this assessment interchangeably as it reflects the relevant wording at the time of the submission and/or the medical assessment.
THE REVIEW
The claimant applied for referral to a review panel of the medical dispute of whether the claimant only suffered minor injuries.
The President’s delegate referred the dispute to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment of minor injury was incorrect in a material respect having regard to the particulars set out in the application.[2]
[2] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.The review provisions provide[3] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[3] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[4]
[4] Section 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 and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
The claimant filed a bundle of documents for the Panel’s consideration. The insurer advised the Panel through the Commission portal that “all relevant documents have been included in the Claimant’s document bundle”.
STATUTORY PROVISIONS
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”. Section 1.6(2) of the 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 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) 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 Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 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 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.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines 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.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[7]
SUBMISSIONS
Claimant’s submissions dated 19 August 2022[8]
[7] See s 3B(2) of the Civil Liability Act 2002.
[8] Claimant’s bundle, p 10.
The claimant noted that police and ambulance attended the scene and she presented to Concord Hospital on the following day.
The claimant alleged the following injuries:
- whiplash;
- cervical spine strain with possible radiculopathy of left upper limb, secondary to left C6 nerve root impingement at left C5/6 foramen;
- bilateral shoulder strain with mid-right supraspinatus tear and aggravation of left supraspinatus tear;
- L4/5 broad based disc bulge with annular tear;
- lumbar spine strain with pain radiating to right leg;
- post-traumatic stress disorder (‘PTSD’), and
- Prolonged Adjustment Disorder with mixed Anxiety and Depression.
The claimant referred to the MRI scan of the lumbar spine dated 8 October 2021 which reported an L4/5 disc bulge with an annular tear which could not be considered a minor injury. The insurer’s submission that the annular tear was due to extensive degeneration and unrelated to the accident is contradicted by the contemporaneous medical records where the claimant has consistently reported lower back pain. Further, the tear could have been aggravated by the motor accident which also means that the injury is not minor.
The claimant referred to the MRI scan of the cervical spine dated 8 October 2021 which showed moderately severe left C5/6 foraminal stenosis with potential left C6 nerve root compression. Dr Robin Diebold provided a report dated 17 March 2022 and diagnosed the claimant with possible radiculopathy of the left upper limb secondary to left C6 nerve impingement.
The claimant submitted that if radiculopathy was present at any time, then the injuries are not minor.
The claimant referred to the progress notes of Multicare Family Medical Centre which recorded persistent numbness and tingling down the arms and the opinion of the treating physiotherapist which diagnosed pain around the shoulder girdle. It was noted that the ultrasound of the left shoulder dated 20 April 2020 reported a supraspinatus articular surface and insertional tear. Given the mechanism of the injury it is likely that the motor accident has caused an aggravation or extension of tear.
Further, Dr Diebold noted the ultrasound of the right shoulder and concluded that there was a full thickness tear of the mid-right supraspinatus tendon with partial thickness tearing anteriorly. The motor accident either caused or aggravated the tear.
Claimant’s submissions dated 27 March 2023[9]
[9] Claimant’s bundle, p 1.
These submissions sought to review the medical assessment.
The claimant noted that the uncertainty expressed by the Medical Assessor about the version of the mechanism of the accident was incorrect as it was supported by the police report which confirmed that the claimant’s vehicle was pushed into the rear of the vehicle in front. This version was also recorded in the Application for personal injury benefits.
The claimant submitted that the arms outstretched on the steering wheel at the time of the motor accident would explain the likely mechanism of injury to the shoulders.
The claimant referred to the opinion of Dr Diebold concerning possible radiculopathy of the left upper limb secondary to left C6 nerve root impingement on the opinion of the treating neurologist, Dr Pham, who reported that there had been an exacerbation of musculoskeletal neck pain in addition to neurological sensory disturbances which had developed since the motor accident.
It was also submitted that there had been a failure to engage with the findings of the physiotherapist who diagnosed musculoskeletal pain around the shoulder girdle.
The claimant also submitted that the Medical Assessor did not engage with it previous submissions that the right shoulder tears, as identified by Dr Diebold, were either caused by or aggravated in the motor accident.
The claimant submitted that the Medical Assessor did not provide any reasons on the issue of reasonable and necessary and did not provide any conclusion of whether the treatment was caused by the accident.
The claimant submitted that the Medical Assessor incorrectly described the findings of the various ultrasounds. She also submitted, incorrectly, that the Medical Assessor erred by concluding that there were no clinical findings of radiculopathy because of the record of reduced sensibility in the left leg in a non-dermatomal stocking pattern.
The claimant noted that the findings of the Medical Assessor that the annular fissure had arisen between the first MRI scan of 8 October 2021 and the subsequent MRI scan of 7 July 2022 and therefore was not caused by the accident. It was submitted that the Medical Assessor failed to apply the principles of causation (see clause 1.7 of the Guidelines) and submitted that that the impairments can be consequential upon primary injuries. It was submitted that it was sufficient that these symptoms were present at the time of the medical examination.
The claimant referred to the findings of Dr Diebold and Dr Nham, particularly that there were neurological sensory disturbances involving the left side of the body that had been caused or aggravated by the motor accident.
The claimant submitted that there had been an aggravation of pre-existing conditions which would not be considered a minor injury. It was noted that the claimant was 67 years of age and was likely to have had degenerative changes in the shoulders, neck and back at the time of the motor accident. Clinical judgement should have been applied as to whether the motor accident materially contributed or extended or aggravated any pre-existing tears or pathology.
Insurer’s internal review[10]
[10] Claimant’s bundle, p 43.
The insurer provided a detailed summary of the medical evidence. It submitted that neither the general practitioner (GP), physiotherapist nor neurologist reported two or more signs of radiculopathy as defined in the legislation.
The insurer noted that the GP did not diagnose a shoulder girdle injury. The physiotherapist and hospital notes refer to pain in the shoulder girdle, but this was a minor injury.
The insurer submitted that the annular tear at L4/5 cannot be attributed to the motor accident but due to extensive degeneration at that level in the form of reduced disc height, foraminal stenosis and moderate to severe arthropathy bilaterally. These changes would have likely created a predisposition to the formation of an annular tear.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
The ultrasound of the left shoulder dated 18 April 2020 noted an earlier ultrasound dated 10 September 2018.[11] The scan showed an articular surface tear and insertional tear measuring 11 x 17mm and 3mm from the biceps tendon. Tendinopathy with calcification was present at the subscapularis tendon. The 2018 scan showed a slightly smaller tear.[12]
[11] Claimant’s bundle, p 119.
[12] Claimant’s bundle, p 120.
Post- accident medical records
The claimant presented at Concord Hospital on the day after the accident and was discharged after a short period.[13] The notes refer to nil head strike, headache, pain in the frontal chest area and “generalizes muscle pain in her body”. Pain was noted in the cervical and upper thoracic regions, face and head.
[13] Claimant’s bundle, p 91.
The CT scan of the cervical spine showed multiple posterior disc osteophyte complexes, particularly at C4/5 and C5/6 with mild neural exit foraminal stenosis of the left C5/6. No vertebral canal stenosis was demonstrated in the thoracolumbar spine.
The CT scans of the chest, face and brain were normal.
On 25 June 2021 the GP note that the claimant required physiotherapy and requested an
X-ray of the lumbar spine.[14] The clinical notes refer to power and sensation intact in both upper and lower limbs.[15][14] Claimant’s bundle, p 169.
[15] Claimant’s bundle, p 170.
The claim form dated 30 June 2021[16] referred to pain in neck, back, shoulders and chest and generalised bruising on legs, breasts and shoulders. The mechanism of the injury was that the claimant was “sandwiched between two cars” and “pushed forward about 30 m into car in front”.
[16] Claimant’s bundle, p 30.
The police report noted the insured vehicle collided with the rear of the claimant’s vehicle which was pushed into the rear of the vehicle in front.[17]
[17] Claimant’s bundle, p 79.
On 9 July 2021 the GP noted widespread back pain from neck to low back and right knee pain. Numbness and tingling were reported down the arms which were exacerbated with sustained pressure.[18]
[18] Claimant’s bundle, p 172.
The physiotherapy request dated 10 August 2021[19] referred to musculoskeletal pain around the shoulder girdle, chest and hands with generalized bruising, whiplash and concussion.
[19] Claimant’s bundle, p 122.
The certificate of capacity dated 31 August 2021 noted “anxiety/generalised bruising/cervical neck pain”.[20]
[20] Claimant’s bundle, p 100.
The MRI scan of the brain dated 1 October 2021 showed age related changes.[21]
[21] Claimant’s late bundle, p 12.
The MRI scan of the cervical spine dated 11 October 2021 showed multilevel degenerative changes which included moderately severe left C5 stenosis abutting the left C6 nerve root.[22] The MRI scan of the thoracic spine was essentially normal. The MRI scan of the lumbar spine showed degenerative changes at L3/4. At L4/5 the scan showed a broad-based disc bulge with reduced disc height and a T2 signal associated with a posterocentral annular tear. The disc bulge indented the ventral sac with mild foraminal stenosis.
[22] Claimant’s bundle, p 112.
The MRI scan of the cervical spine dated 7 July 2022 showed multilevel degenerative changes worse at C5/6 with posterior endplate disc-osteophyte complex indenting the anterior surface of the cord. The C5/6 changes included a small posterior annular fissure, moderate bilateral facet arthropathy, left uncovertebral osteophyte complex resulting in moderate to severe left neural exit foraminal narrowing unchanged from previous CT.[23]
[23] Claimant’s bundle, p 110.
An X-ray of the right shoulder dated 23 March 2023 showed osteopathic changes with marginal osteophytes. The ultrasound dated 2 March 2023 showed no left rotator cuff tear with possible bursitis. There was a full-thickness tear of the mid-fibres of the right supraspinatus tendon measuring 13 x 12 mm with secondary bursitis.[24]
[24] Claimant’s late bundle, p 67.
A further scan dated 16 May 2023 confirmed the complete tear of the right supraspinatus tendon with right subscapularis tendonitis and subacromial bursitis and partial tear of the left supraspinatus tendon.[25]
[25] Claimant’s late bundle, p 3.
Dr Nham
Dr Benjamin Nham, neurologist, provided a report dated 24 August 2021.[26] The doctor then noted sensory dysesthesias in the face, arm and leg requiring further investigation, neuropathic pain in the sternum, left arm and foot, possibly from the motor accident and cervical spondylosis and musculoskeletal neck pain.
[26] Claimant’s bundle, p 105.
On 2 October 2021 Dr Nham noted that the recent MRI scan of the brain was normal, and that the claimant presented with ongoing neck pain and some mechanical low back pain.[27]
[27] MRI scan of the brain is at claimant’s bundle, p 117.
Dr Nham provided a further report dated 10 May 2023.[28] The doctor noted neuropathic pain and central sensitisation post-accident and long-standing cervical spondylosis with mild worsening of the left C6 foraminal narrowing.
[28] Claimant’s bundle, p 103.
Dr Nham opined that the left C5/6 foraminal narrowing had increased post-accident from moderate severity to moderate-severe severity. The doctor also noted features of possible post-traumatic stress disorder. He recommended ongoing physiotherapy to assist with the shoulder and neck pain.
Qualified opinions
Dr Robin Diebold, orthopaedic surgeon, was qualified by the insurer and provided a report dated 17 March 2022.[29] The doctor opined that the claimant had numerous signs of non-organic pain syndrome evidenced by overreaction, inconsistency, diffuse tenderness, non-physiological signs, and involvement in multiples regions.
[29] Claimant’s bundle, p 127.
On examination the doctor noted altered sensation in glove distribution in the left hand, full motor strength and normal reflexes. Neurological examination of the lower limbs was normal.
Dr Diebold diagnosed a non-organic pain syndrome with possible radiculopathy in the left C6 distribution which was “difficult to judge clinically” due to overreaction. The doctor noted there were “no objective signs confirming this”.
EXAMINATION
The claimant was medically examined by Medical Assessor Dixon who provided the following examination report:
“This examination is to provide a threshold report regarding injuries to the cervical spine, both shoulders and lumbar spine following the subject motor vehicle accident on 18 June 2021.
The treatment request to be resolved was if further physiotherapy treatment and further MRI scans and referral to a neurologist, Dr Nham, was reasonable and necessary.
In the subject accident the claimant’s vehicle was rear ended and pushed into the vehicle in front. She had pain in her head, neck, chest, both shoulders, lower back, left hip and left thigh. When she was seen at Concord Hospital, a CT scanogram showed no traumatic abnormality of her brain, cervical spine, thoracic spine or chest. There was some underlying degenerative change in the cervical and lumbar spine.
The clamant reported today that most of her symptoms were on the left side with more pain in the left shoulder and mild pain on the right. She felt her right shoulder pain was restricted due to neck pain and that she had persisting low back pain with left buttock and thigh sciatica.
On examination on 19 September 2023, she was 5’1” tall and weighed 47kg. She reported she had lost weight.
There was stiffness of her cervical spine with flexion and extension decreased by one quarter and lateral flexion decreased by one third bilaterally associated with trapezial muscle pain and lateral rotation was decreased by one quarter bilaterally. Her cervical foraminal compression test was negative as was her brachial plexus stretch test. There was tenderness of the mid cervical facet joints and tenderness of the upper trapezius muscles.
The reflexes in both upper extremities were brisk and her power was grade 5 out of 5 for thenar power, intrinsic power and grip strength. There was 1cm of wasting of her left forearm (she is right handed). There were no objective sensory changes in the upper extremities nor spasm of the trapezius muscles. She did not show features of radiculopathy in the upper extremities.
There was stiffness of her lumbar segment with flexion decreased by one third with slow recovery with pain on back extension which was decreased by one half and lateral flexion decreased by one third bilaterally. She indicated pain at the lumbosacral level and there was tenderness in the adjacent lumbosacral facet joints. Her straight leg raise on the left was 60 degrees and associated with left buttock and thigh sciatica and that on the right was 70 degrees. There was 1cm of wasting of her left thigh and left leg below the knee. Her reflexes in the lower extremities were brisk and her Babinski signs were negative. Her power was grade 5 out of 5 and there were no objective sensory changes in the lower extremities today.
On examination of her left shoulder there was active abduction of 110 degrees with forward flexion 130 degrees, extension 40 degrees, adduction 40 degrees, external rotation 80 degrees and internal rotation 50 degrees. In the right shoulder active abduction was 150 degrees, forward flexion 160 degrees, extension 40 degrees, adduction 40 degrees, external rotation 80 degrees and internal rotation 80 degrees. Shoulder girdle power on the left was grade 4 out of 5 and that on the right was grade 4 plus out of 5. She had tenderness of the trapezius muscle of her right shoulder and had tenderness of the trapezius muscle and posterior deltoid muscle of the left shoulder. There was impingement on abduction of the left shoulder.
Her normal gait was satisfactory, but she had difficulty with toe and heel walking which was associated with low back pain and her squat test was associated with left thigh pain.
The late documentation provided indicated a referral to Concord Hospital Orthopaedic Clinic by her local doctor, Dr Ahmed Khallouf, for an opinion on management for the supraspinatus partial tear of the left shoulder and supraspinatus tear of the right shoulder, with significant pain impacting on her lifestyle and he noted that the claimant has had physiotherapy with limited progress and she had neck pain suspected to be secondary to her motor vehicle whiplash injury and that she had an MRI showing C/6 left foraminal stenosis. At that stage her medications included Esomeprazole and Perindopril/Amlodipine. She had previously been seen by Professor Kannangara, a rheumatologist as noted in his letter.
Ultrasound done of both shoulders at Concord on 16 May 2023 done for pain persisting almost 12 months after the subject motor vehicle accident showed on the right a complete tear of the right supraspinatus tendon, subscapularis tendonitis and subacromial bursitis and on the left, partial thickness tear of the supraspinatus tendon with subscapularis tendonitis and no bursitis.
The medical record from Burwood Medical Health Centre by Dr Benjamin Nham noted that the claimant had PTSD and central pain sensitisation and had a C5/6 disc protrusion which was stable, and mild worsening of the left C6 foraminal stenosis post accident. He alluded to spondylosis at C5/6 with posterior endplate disc osteophyte complex indenting the anterior surface of the cord without abnormal cord signal and bilateral facet joint arthropathy with left uncovertebral osteophyte complex resulting in severe left neural exit foraminal stenosis unchanged from the previous CT.
He recommended psychiatric assessment and Endep for night sedation as well as physiotherapy treatment.
The MRI of the cervical spine and lumbar spine on 8 October 2021 showed C3/4 disc osteophyte complex involving the ventral thecal sac causing mild central canal stenosis. At C4/5 there was disc osteophyte complex indenting the ventral thecal sac with mild central canal stenosis. The disc did extend into the right foramen causing mild right foraminal stenosis without deviation of the right C5 nerve root. At C5/6 there was disc osteophyte complex indenting the thecal sac without central canal stenosis. The disc did extend into the left foramen causing moderately severe left foraminal compromise. At C6/7 there was a small disc osteophyte complex without neurocentral or foraminal compression.
MRI of the thoracic spine showed no cord lesion or fracture noted. There was arthropathy at the costovertebral articulations. MRI of the lumbar spine showed small disc bulge at L3/4 without neural compression and facet OA slightly more marked on the right and at L4/5 there was a small based disc bulge with mildly reduced disc height and posterocentral annular tear with the disc bulge indenting the ventral sac without canal stenosis and mild foraminal stenosis bilaterally abutting, but not flattening, the exiting L4 nerve roots. There was moderate facet arthropathy bilaterally. At L5/S1 there was severe OA of the facet joints. There were no fractures seen.
Ultrasound of both shoulders on 2 March 2022 showed no rotator cuff tear but there was subacromial bursitis and ultrasound of the right shoulder showed a full thickness tear of the mid right supraspinatus tendon with further partial thickness tearing anteriorly and subacromial bursitis with bunching.
In summary this claimant sustained whiplash injury in the subject motor vehicle accident with bilateral shoulder injuries. She also has low back pain with post traumatic stiffness with radicular complaint with sciatica to the left buttock and thigh.
Her diagnoses are:
1. Whiplash injury to her neck with post traumatic symmetrical stiffness without neurological deficit in either upper extremity with aggravation of a C4/5 disc osteophyte complex and disc material extending into the right foramen with mild right foraminal stenosis and aggravation of C5/6 disc osteophyte with the disc extending into the left foramen with severe left foraminal stenosis;
2. Injury to left shoulder with residual subacromial bursitis and post-traumatic stiffness;
3. Mild post traumatic stiffness of the right shoulder with a full thickness supraspinatus tear with impingement and subacromial bursitis;
4. Low back strain injury with post traumatic stiffness with dysmetria with L4/5 broad based disc bulge with annular tear resulting in mild foraminal stenosis impacting on the exiting L4 neve roots and L4/5 level showed severe bilateral facet arthropathy which has been aggravated by the subject motor vehicle accident and this is ongoing with radicular complaint with left buttock and thigh sciatica but no radiculopathy in the lower extremities, where the reflexes were brisk. There was no objective sensory losses or weakness of distal power although there was 1cm of wasting of her left thigh and left leg below the knee and restricted straight leg raise with a negative sciatic nerve root stretch test.
On clinical and radiological review, she has had:
1. Whiplash injury to her neck with soft tissue injury aggravating underlying degenerative changes without radiculopathy, no trapezial muscle spasm and has aggravated degenerative changes at C4/5 and C5/6 which is ongoing.
2. Mild stiffness in the right shoulder on elevation with a rotator cuff tear evident on her ultrasound.
3. More marked stiffness in the left shoulder today where she had a pre accident ultrasound of the left shoulder on 10 September 2018 which showed a partial thickness tear of the articular surface and subsequent ultrasound on 20 April 2020 which showed a tear which was an aggravation or extension of the tear in the left shoulder (pre-accident).
4. Radicular complaint in the lumbar spine with lumbar stiffness with dysmetria and left buttock and thigh sciatica with L4/5 broad based disc bulge with annular tear with abutment of the exiting L4 nerve root.
Reasonable and necessary treatment
It was reasonable that the claimant be referred to the neurologist, Dr Nham, as it does relate to injury caused by the subject accident and is reasonable and necessary.
Request for further physical therapy did not appear to be reasonable and necessary as previous therapy had not provided sustained benefit.
The further MRI of the cervical spine in June 2022 would only be necessary if the claimant had developed radiculopathy although it is accepted that she did sustain a low back strain injury in the subject motor vehicle accident with radicular complaint with sciatica on the left. That is, the MRI of the cervical spine was reasonable and necessary as the claimant had radicular complaint in her left upper extremity but no radiculopathy, but she felt there was deterioration in her left arm and neck, and she felt this deterioration had become more marked over the last year with more pain and intermittent paraesthesia in the left upper limb.
The MRI of the cervical spine on 7 July 2022 showed spondylosis at C5/6 with posterior disc osteophyte complex indenting the anterior cord without abnormal cord signal and bilateral facet joint arthropathy with left uncovertebral osteophyte complex, resulting in left neural exit foraminal stenosis, unchanged from the previous CT. There was multiple level facet arthropathy and a small posterior annular fissure was noted. There was a posterior disc protrusion at C3/4 without significant spinal canal or neural exit foraminal narrowing and moderate bilateral facet joint arthropathy.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[30] and Insurance Australia Ltd v Marsh.[31]
[30] [2021] NSWCA 287 at [40], [41] and [45].
[31] [2022] NSWCA 31 at [11], [21] and [64].
We adopt the reasoning in Lynch v AAI Ltd[32] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[32] [2022] NSWPICMP 6 at [44]-[62].
We adopt the examination findings of Medical Assessor Dixon supplemented by the following further reasons.
Cervical spine
We accept that the motor accident would have caused a whiplash type injury to the cervical spine which is supported by the contemporaneous complaints of neck pain. However there is no evidence supporting “an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”.
The MRI scan of the cervical spine dated 11 October 2021 showed multilevel degenerative changes which included moderately severe left C5 stenosis abutting the left C6 nerve root.[33] The MRI scan of the cervical spine dated 7 July 2022 showed multilevel degenerative changes worse at C5/6 with posterior endplate disc-osteophyte complex indenting the anterior surface of the cord. The C5/6 changes included a small posterior annular fissure, moderate bilateral facet arthropathy, left uncovertebral osteophyte complex resulting in moderate to severe left neural exit foraminal narrowing unchanged from previous CT.[34]
[33] Claimant’s bundle, p 112.
[34] Claimant’s bundle, p 110.
The claimant’s submitted that the development of an annular fissure in the cervical spine between the MRI scan on 11 October 2021 and 7 July 2022 was caused by the motor accident. No medical opinion supported that submission, and it is extremely unlikely. The claimant had pre-existing and substantial degenerative features in the cervical spine. Whilst we accept that it is likely that the degenerative changes in the neck were exacerbated by the rear end collision, the absence of report fissure in the first pre-accident scan means that it is inherently unlikely that it developed subsequently by reason of the motor accident.
The medical evidence, including the examination findings of Medical Assessor Dixon otherwise does not show any past signs of radiculopathy. There are radicular complaints of pain which is not the same as a clinical sign of radiculopathy as defined in the Guidelines.
Lumbar spine
The scan evidence showed significant pre-existing pathology. The findings of Medical Assessor Dixon and previous examinations did not show two objective signs of radiculopathy as defined in the Guidelines.
We accept that the rear-end collision exacerbated the pre-existing pathology evidenced by the contemporaneous complaints of low back pain. It is unclear whether the annular tear at L4/5 can be attributed to the motor accident. The scan evidence shows extensive degeneration at that level in the form of reduced disc height, foraminal stenosis and moderate to severe arthropathy bilaterally. The claimant’s age is otherwise a factor tending to suggest that the annular tear as probably pre-existing. We agree with the insurer’s submission that these changes would have likely created a predisposition to the formation of an annular tear. The findings on examination otherwise do not establish that the post-accident symptoms are due to an annular tear.
Whilst we accept that the motor accident aggravated degenerative pathology, we are not satisfied on the balance of probabilities that there was “an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”.
Right shoulder
It is medically plausible that the motor accident aggravated pre-existing right shoulder pathology particularly as the seatbelt restrained the claimant’s right shoulder as the driver of the motor vehicle. By the claimant’s account and that shown in the contemporaneous material, there was a significant rear end collision with a secondary impact which would have imposed some forces through the right shoulder which was restrained by the seatbelt.
The initial notes do not specifically refer to bilateral shoulder pain. Some of the notes are unclear. For example, the hospital notes refer to the claimant having “generalizes muscle pain in her body”. However, a note in the hospital emergency discharge referral under “secondary survey” refers to the claimant being “sensitive in her shoulders but without any bony deformities”.[35] This contemporaneous note supports the claimant’s argument of right shoulder injury.
[35] Claimant’s bundle, p 92.
There is otherwise an absence of evidence of pre-accident right shoulder symptoms evidenced by the absence of right shoulder scans in circumstances where there was pre-accident left shoulder scans.
The claim form dated 30 June 2021 refers to bilateral shoulder pain. At that time the GP noted bruising in the shoulders which is a clear indication of recent injury.
The insurer relied on the claimant’s age which is a relevant factor suggesting that there would have been pre-existing pathology. However, the right shoulder pathology shown on the post-accident scans is extensive and capable of being aggravated by the motor accident. Indeed, the claimant’s age made her more susceptible to further injury by way of extension of any tear from this type of accident.
The clinical examination by Medical Assessor Dixon otherwise shows that the right shoulder symptoms are related to the supraspinatus tear.
Noting the claimant bears the onus, we are satisfied that the motor accident probably extended the pre-existing asymptomatic right shoulder supraspinatus tear. This is a non-threshold injury as defined in the MAI Act.
Left shoulder
The pre-accident ultrasound scan dated 18 April 2020 reported an articular surface tear and insertional tear measuring 11 x 17mm, 3mm from the biceps tendon. The tear was longer than that reported in the September 2018 ultrasound.
The post-accident left shoulder scan does not establish an extension of the pre-accident tear.
We are required to be satisfied on the balance of probabilities that any tear was caused or aggravated by the motor accident. Clearly, the claimant had both pre-accident pathology and symptoms which necessitated the repeated scanning of the left shoulder. We are not satisfied that the motor accident aggravated the pre-existing tear.
TREATMENT DISPUTES
Does the proposed treatment relate to the injury resulting from the motor accident
The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[36] These principles are well settled and equally apply to the causal relationship of treatment under the MAI Act by reasons of the same statutory language.
[36] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[37] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[37] [2018] NSWSC 1710 at [29] (Phillips).
We accept that the requests for physiotherapy treatment were caused by the accident given our conclusion that the motor accident exacerbated the cervical and lumbar spine pathology and the right shoulder condition.
The request for further MRI scan in May 2022 is due to ongoing symptomatology aggravated by the motor accident and is satisfies the test of causation.
For the reasons expressed by Medical Assessor Home at first instance and by Medical Assessor Dixon in his examination findings, the referral to Dr Nham was caused by the motor accident.
Reasonable and necessary in the circumstances
Ms Jones is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[38] Grove J stated:[39]
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[38] [2003] NSWCA 52 (Clampett).
[39] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[40]
[40] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[41] They include:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[41] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
For the reason expressed by Medical Assessor Home at first instance and by Medical Assessor Dixon, physiotherapy has provided no reported benefit. We do not accept that these treatments were “necessary”.
For the reason provided by Medical Assessor Home at first instance and by Medical Assessor Dixon, the referral to Dr Nham was reasonable and necessary to obtain a neurological opinion for the source of the left arm symptoms.
It is unclear and we do not accept that it was necessary that there were further requests for scans in June 2022 when the claimant had undergone MRI scans of the spine in October 2021.
CONCLUSION
For these reasons the Panel concludes the certificate are revoked. The new certificates are attached at the commencement of these Reasons.
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