Jubelin v Allianz Australia Insurance Limited
[2022] NSWPICMP 310
•29 July 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Jubelin v Allianz Australia Insurance Limited [2022] NSWPICMP 310 |
| CLAIMANT: | Carrie Jubelin |
| INSURER: | Allianz Australia Insurance Ltd |
| REVIEW PANEL: | Principal Member John Harris Medical Assessor Geoffrey Stubbs Medical Assessor Shane Moloney |
| DATE OF DECISION: | 29 July 2022 |
| CATCHWORDS: | The claimant suffered injury in a motor accident on 15 November 2020 when her vehicle was side swiped by a vehicle merging from another lane; this was a medical dispute about whether the claimant suffered a non-minor injury within the meaning of the Motor Accident Injuries Act 2017; the claimant’s submission that the onus of proof lay on the insurer was rejected; Lynch v AAI Ltd applied; observations concerning the application of the principles in Watts v Rake in medical assessment matters where the medical assessor or the review panel is required to form their own opinion; the panel was not satisfied that the partial thickness tear of the right supraspinatus was caused or aggravated by the motor accident based on the nature of the accident, the delay in onset, the scan evidence showing degenerative pathology and the likelihood of the existence of tears in the claimant’s age bracket; the panel concluded that the claimant did not establish two signs of radiculopathy as defined in clause 5.8 of the of the Motor Accidents Guidelines; the various doctors did not identify two signs of radiculopathy; the clinical records referring to symptoms through the right shoulder and into the arm are not sufficient to establish radiculopathy because they do not establish sensory loss in a specific dermatome; the claimant’s submissions otherwise did not refer to two recorded signs of radiculopathy in any of the medical evidence; the signs of radiculopathy were otherwise not apparent from the material and on the examination conducted by the Medical Assessors; Held — original assessment that claimant’s injuries were minor confirmed. |
| DETERMINATIONS MADE: | Review Panel Assessment of Minor Injury 1. The Review Panel confirms the certificate dated 25 November 2021. |
REASONS
BACKGROUND
Ms Carrie Jubelin (the claimant) suffered injury in a motor accident on 15 November 2020 when the insured’s motor vehicle collided with her vehicle. The insured merged from the right lane and collided into the driver’s door of Ms Jubelin’s vehicle. Photographs of the claimant’s vehicle show damage to the driver’s side door.
The insurer insured the owner and driver of the other motor vehicle for liability to pay Ms Jubelin any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The present issue is whether Ms Jubelin’s injury is defined as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”.
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.
The dispute was referred to Medical Assessor Woo who issued a Medical Assessment Certificate dated 25 November 2021. Medical Assessor Woo determined that Ms Jubelin sustained a minor injury for the purposes of the MAI Act.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to ongoing statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[2]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[3]
[2] Sections 3.11 and 3.28 of the MAI Act.
[3] Section 4.4 of the MAI Act.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by Ms Jubelin within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
On 22 March 2022, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] 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[6] that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] 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.[7]
[7] 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.[8]
[8] 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.[9]
[9] Section 7.26(6) of the MAI Act.
The Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered.
STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor 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 minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the MAI Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor 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 minor injury.
5.5 A diagnosis for the purpose of a minor 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 minor 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 minor injury. An injury resulting in radiculopathy will not be classified as a minor 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.”
Radiculopathy is defined in cl 5.8 of the Guidelines 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.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[10]
[10] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act[11].
[11] See s 3B(2) of the Civil Liability Act, 2002.
ASSESSMENT UNDER REVIEW
Medical Assessor Woo found that Ms Jubelin suffered from soft tissue injuries to the cervical spine and right shoulder. The soft tissue injury of the cervical spine had non-verifiable radicular complaints and was assessed as a minor injury.
The Medical Assessor found that the partial rotator cuff tear was a common finding in a
57-year-old individual, that the tears are usually degenerative in nature and the findings on ultrasound do not confirm an acute injury.The Medical Assessor concluded that Ms Jubelin sustained soft tissue injuries to the cervical spine and right shoulder from the motor accident which were a minor injury within the meaning of the MAI Act.
SUBMISSIONS
An undated letter from the claimant requesting an internal review referred to the note of the general practitioner consultation dated 25 November 2020 where the doctor noted radiculopathy to the right hand.
The claimant noted that there was no prior right shoulder or cervical spine symptoms. Right shoulder pain was referenced by the general practitioner on 19 November 2020.
Claimant’s submissions dated 28 May 2021[12]
[12] Claimant’s bundle, page 1.
The claimant noted that the collision occurred at the claimant’s driver’s side door. The collision occurred at speed and caused a significant indentation.
The claimant suffered injury to her neck, right shoulder and arm. There were no neck symptoms prior to the motor accident. The first record of neck pain was on 25 November 2020 when a complaint of radiculopathy into the right arm/hand was made at that time.
The ultrasound of the right shoulder dated 24 November 2020 reported partial thickness tear of the supraspinatus tendon. There were no prior right shoulder symptoms and the insurer “does not point to any other relevant causative event”.[13] The light cleaning activities carried out for many years does not account for the tendon injury.
[13] Claimant’s bundle, page 2.
The mechanism of injury was a right sided impact of the motor vehicle and consistent with the injuries reported thereafter.
Claimant’s submissions on review
These submissions were filed seeking a review of the certificate issued by the Medical Assessor.
The claimant referred to Dr Stephenson’s opinion in a report dated 5 July 2021 when he concluded that a partial thickness tear was sustained in the motor accident. The Medical Assessor preferred the opinion of Dr Gothelf who opined that the tear is related to underlying degenerative changes.
The claimant submitted:
“[I]t was not open to either Dr Gothelf, or Assessor Woo, to find that certain pathology present in the MRI imaging taken after the incident, particularly the presence of a tear, pre-existed the subject accident as there is no evidence of this. The contemporaneous clinical notes that predate the subject accident do not evidence [sic] any pain symptomatology that would be consistent with a rotator cuff tear.”
The claimant submitted that the onus was on the insurer to establish that the tear was present prior to the subject accident. No evidence was adduced to support this proposition. It otherwise submitted that the Medical Assessor had reversed the onus of proof.
Further even if the motor accident represents an exacerbation or aggravation of a degenerative tear then that is still a non-minor injury.
The claimant referred to Watts v Rake[14] and submitted:
“[T]hat Assessor was provided with significant evidence of pain and other symptomatology resulting from the accident and the onus is on the respondent, in asserting our client’s injury is minor, that such change in condition was not caused or contributed to by the subject accident”.
Insurer’s submissions dated 18 June 2021[15]
[14] (1960) 108 CLR 158 (Watts).
[15] Insurer’s bundle, page 1.
The insurer noted that there was no complaint of cervical spine pain until 25 November 2020 after the initial reporting of right shoulder pain on 19 November 2020.
There is no diagnostic evidence of any fracture or rupture of tendons, ligaments or cartilage of the cervical spine. There is no evidence that Ms Jubelin sustained a nerve root injury with two signs of radiculopathy.
Further, Dr Gothelf opined in a report dated 22 March 2021 that the neck condition was not caused by the motor accident.
The insurer submitted that the right shoulder condition was not causally related to the motor accident. It relied on the opinion expressed by Dr Gothelf and the claimant’s statement to the investigator that right shoulder problems occurred whilst working on 17 November 2020.
Insurer’s submissions dated 18 June 2021[16]
[16] Insurer’s bundle, page 2.
The insurer submitted that injury to the cervical spine is not causally related to the motor accident as there was record of any pain until 25 November 2020. The right shoulder was referenced on 19 November 2020.
The insurer submitted that there is “no evidence” that Ms Jubelin had sustained a nerve root injury with two signs of radiculopathy. It otherwise referred to the opinion of Dr Gothelf dated 22 March 2021that the neck condition was not caused by the motor accident.
The insurer submitted that any injury to the right shoulder was not caused by the motor accident and referenced the opinion of Dr Gothelf that the symptoms and pathology were related to work duties or the degenerative process.
The insurer referred to the claimant’s statement to the investigator that symptoms commenced on 17 November 2020 when Ms Jubelin was vacuuming at a client’s house.
Insurer’s submissions dated 9 February 2022[17]
[17] Insurer’s bundle, page 62.
These submissions were filed opposing the claimant’s application for a review.
The insurer submitted that the Medical Assessor articulated his reasoning that the partial thickness tear in the right shoulder was caused by a degenerative process. It was also noted that Dr John Morton who saw the claimant on 29 March 2021 opined that the problems were due to irritable cervical spine pathology rather than shoulder pathology. That opinion was consistent with those expressed by the Medical Assessor and by Dr Gothelf.
The insurer submitted that the claimant has not referred to any evidence that the partial thickness tear was caused by the motor accident.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents in accordance with the initial Direction.[18] However, the bundles were deficient because the submissions referred to reports not included in the bundles. A further direction was issued requesting further documents from the claimant.
[18] The claimant’s bundle was unpaginated. Page references may not be accurate.
There was no compliance with the further direction despite the Commission following up with the claimant’s solicitor about noncompliance. This meant that the Panel used secondary sources from other materials within the documents which summarised relevant contemporaneous notes.
Pre-accident medical records
The clinical notes of the general practitioner contained within the claimant’s bundle commence on 23 May 2018. In the numerous consultations there is no reference of cervical spine or right shoulder pain prior to the motor accident.
Motor accident
Ms Jubelin completed a claim form dated 18 December 2020 referring to the injuries sustained in the motor accident as “soreness in neck, right shoulder and arm”.
A photograph shows damage to the driver’s door of the claimant’s vehicle.
Contemporaneous medical records
Ms Jubelin initially attended her general practitioner on 19 November 2020 complaining of right shoulder pain following the motor accident.[19]
[19] Claimant’s bundle, page 17.
On 25 November 2020 the general practitioner noted the right shoulder ultrasound results and recorded further complaint of neck pain with radiculopathy symptoms.[20]
[20] Claimant’s bundle, page 18.
Statements
Ms Jubelin provided a statement dated 19 January 2021. The claimant said that she experienced no pain at the time and the pain commenced on 17 November 2020. Ms Jubelin stated:[21]
“I was working with disabled people I started to vacuum at a client’s house and then my right arm started to get sore around my shoulder and then down my arm. I just thought I pulled a muscle or something. I have never had any sore muscles before or anything like that.”
[21] Insurer’s bundle page 32.
Ms Jubelin said that she believed that “as the van hit me I flinched and jumped and that is when the muscle went”.
The insured provided a statement dated 21 January 2021 when he stated that he changed lanes and the “rear of my van just touched the other cars front door”.[22]
[22] Insurer’s bundle, page 27.
Medical evidence
Certificates from the general practitioner dated 14 December 2020, 11 January 2021 and 8 March 2021 refer to a diagnosis of right shoulder injury and neck pain with a partial thickness articular surface tear.[23]
[23] Claimant’s bundle, page 16.
In response to a questionnaire from the insurer, Dr Habib wrote:[24]
“That Rt shoulder injury is sustained with the car accident. The patient was initially presented with right shoulder pain that was following the accident. The patient later on reported exaggerated pain while performing her usual work duties. That exaggerated pain refer to previous/past underlying injury that happened in the car duties.
…
As explained, the vacuuming could exaggerate the initial injury.”
[24] Insurer’s bundle, page 57.
The Allied Heath Recovery Request dated 31 January 2021 noted a diagnosis of right partial thickness supraspinatus tear and right neck pain.[25]
[25] Claimant’s bundle, page 16.
Allied Health Recovery Request for Exercise Physiology dated 15 March 2021 noted cervical symptoms following the motor accident and a right rotator cuff tear which was “not compensable”.[26] Sharp pain was noted with right shoulder flexion, abduction and extension with radiating pain up the right side of the neck.
[26] Insurer’s bundle, page 51.
Dr John Morton, orthopaedic surgeon, provided a report dated 29 March 2021.[27] The doctor noted the development of shoulder and neck discomfort within 36 hours. The doctor noted restricted range of movement consistent with early adhesive capsulitis. He opined that the symptoms were largely cervical spine pain.
[27] Insurer’s bundle, page 18.
A final rehabilitation report dated 17 May 2021 noted improvement in shoulder and neck symptoms sufficient to return to employment.[28]
[28] Insurer’s bundle, page 45.
Radiology
An ultrasound of the right shoulder dated 24 November 2020 noted a clinical history of “pain along the biceps muscle, car accident”. The scan was reported as showing a partial thickness tear pf the supraspinatus tendon on the background of moderate tendinosis and degenerative changes within the acromioclavicular joint.
A CT scan of the cervical spine dated 11 January 2021 noted degeneration at various level including mild disc bulges at C5/6 and C6/7.[29]
[29] Insurer’s bundle, page 7.
Qualified opinions
Dr Tod Gothelf was qualified by the insurer and provided a report dated 22 March 2021 described as a file review.[30] The doctor noted right arm symptoms commenced two days after the motor accident when the claimant was working with disabled people.
[30] Insurer’s bundle, page 6.
Dr Gothelf opined that the right shoulder pathology related to work duties or degenerative process as there was no symptoms within a reasonable period of the motor accident. The doctor noted that rotator cuff disease is a degenerative process that occurs with age and from undertaking work tasks such as those engaged by Ms Jubelin. The doctor opined that the work duties more likely than not contributed to the development of the rotator cuff tear.
Dr Stephenson was qualified by the claimant and provided a report dated 5 July 2021. The doctor noted no problems prior to the motor accident with continuing discomfort in the cervical spine, right shoulder and pain down the right arm. Dr Stephenson described the symptoms as “complaints consistent with non-objective radicular pain but there are no objective findings of radiculopathy in the right upper extremity”.
Dr Stephenson noted that the prior asymptomatic condition and opined that the cervical spine and right shoulder were injured in the motor accident. It appears that the doctor was satisfied that the partial tear of the supraspinatus was caused by the motor accident.
RE-EXAMINATION
The Panel determined that Ms Jubelin be re-examined by the Medical Assessors on 22 July 2022. The re-examination report is as follows:
“The medical assessment was carried out by Medical Assessors Stubbs and Moloney at the Commission rooms on 22 July. Due to recent COVID exposure, Medical Assessor Moloney necessarily attended by teleconference.
History: Ms Jubelin is now 59 years old and lives independently. She was born at the King George V maternity hospital as 1 of 20 girls. Her siblings are well but an older brother died at age 30. She lives in Gosford. She is divorced now widowed and has 2 adult children. She works in homecare for the NDIS at the time of the injury she worked for Australian Unity. She had previously been deployed by Catholic care but had workplace harassment issues and have left this job shortly before the accident. She cared for 2 clients, an elderly lady with multiple sclerosis who needed personal care, house-work assistance and transport for shopping and appointments. This totalled 30 hours a week and was physically demanding work. She had a 2nd client who was a quadriplegic and she cared for a total of 8 hours a week. This client was much more independent and could manage his own transfers. She continued working in this role after the accident but had to stop working with the multiple sclerosis client for about 6 months.
She felt herself well and independent, she enjoyed movies socialising with friends, but she did not undertake any organised physical activity.
Her injury occurred when she was driving on the freeway in a Kia Sorata which she purchased about 18 months before. The car was repaired, and she still drives. She was driving on the freeway in Gosford when sideswiped by van. Both drivers pulled over to the verge and exchange details. Neither police nor ambulance called. Ms Jubelin reported the accident at the Gosford police station. She initially continued working for both clients but was suffering from neck stiffness and soreness. Ms Jubelin was asked about her statement which she reported to continue working and then suffering pain in the right shoulder four days after the motor accident whilst vacuuming. She was asked had she slipped fallen or otherwise done something that might directly injured right shoulder at work. She had not and Ms Jubelin had simply noticed pain in the right shoulder whilst vacuuming.
The pain continued and indeed worsened over the following months. Ms Jubelin attended her general practitioner and was sent for some ultrasounds and x-rays. The GP referred her to physiotherapist at Hope Medical. She was given an exercise program though not one that used therabands. Shoulder gradually improved but not completely, it hurts her to abduct the shoulder. Twelve months ago, she noted a similar pain developing in the left shoulder. She simply noticed working and can think of no cause why it became painful. The left shoulder has followed the same clinical course as the right shoulder becoming progressively painful and stiff over some months now improving a little. The left shoulder is now the most limiting problem. Ms Jubelin has over been able to continue her usual work.
Ms Jubelin was asked about possible related medical conditions particularly any endocrine disorders and especially type II diabetes. She is not aware of suffering from any of these problems. She takes paracetamol for the pain and otherwise soldiers on. She was asked about the subacromial steroid injections but cannot remember these are specific events. The principal problems are with internal rotation of the shoulder. She must do up a bra at the front as you cannot reach behind to do it and she has some difficulties with perineal hygiene. Pain will ache and wake her at night. Ms Jubelin was asked about the GP record which confirms that there were no complaints of shoulder and cervical problems prior to the motor vehicle accident. She confirmed that this was the case.
Clinical examination: Ms Jubelin is a pleasant lady was fully independent. She stands 164 cm tall and weighs 89 kg. She was very straightforward and cooperative in the clinical examination. The general examination is good, she can dress and undress herself, can tip toe and heel toe walk rise from chair without arms. She has good strength of grip, normal reflexes and normal girth in the upper and lower limbs. There is no sensory loss and muscle weakness. Sciatic stretch test was negative.
The problems were confined to residual discomfort in in the cervical spine and stiffness in mid arc pain in both shoulders.
Cervical spine – she has a low normal but symmetrical range of movement of the cervical spine. There is some local tenderness in the trapezial muscles in both sites but there is no guarding or spasm. The neurological examination is normal having considered and tested for signs of radiculopathy in accordance with the Guidelines. There is no asymmetry between the two sides though since both shoulders have the same problems one cannot comment upon shoulder girdle wasting.
Shoulders: the active range of motion recorded with a goniometer over 3 measurements is given below. Range of motion was very consistent but did start pain spreading into her neck. No crepitus is noted on clinical examination. The right shoulder is relatively comfortable to palpation the left less so particularly over the course of the long head of the biceps tendon. Impingement signs were not attempted.
Right Left Flexion 120° 110° Extension 25° 25° Abduction 95° 90° Adduction 30° 30° External rotation 30° by side 30° by side Internal rotation 10° in best abducted position and to the lumbosacral junction with the hands behind the back 10° in best abducted position and to the greater trochanter the arm behind the back
Other upper limb joints normal.
Lumbar spine and lower limbs normal
imaging studies – none were made available for direct examination. Note is made of the reports of a partial thickness supraspinatus tear and some degenerative changes in the acromioclavicular joint on the ultrasound examination of the right shoulder performed on 24 November 2020 and the CT of the cervical spine performed on 25 November 2020. These findings are unremarkable at Ms Jubelin’s age.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
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[31] and Insurance Australia Ltd v Marsh.[32]
[31] [2021] NSWCA 287 at [40], [41] and [45].
[32] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination report of the Medical Assessors supplemented by the following further reasons.
The claimant submitted that the evidentiary onus and/or overall burden of proof lay on the insurer to establish that the injury was a minor injury and/or the tear was pre-existing. Reference was made to the decision of the High Court in Watts.
The principle was discussed by the Court of Appeal in Glen v Sullivan[33] in the context of the assessment of damages under the Motor Accidents Compensation Act, 1999. Sackville AJA stated:[34]
“48. Mr Rewell SC, who appeared with Ms Kumar for the respondent, submitted that the principle stated in Purkess v Crittenden does not apply to the circumstances of the present case. He pointed out that in both Watts v Rake and Purkess v Crittenden, the issue was whether the plaintiff’s pre-existing degenerative condition would have led to incapacity in due course even if the accident had not occurred. Mr Rewell contended that the present case is distinguishable because it does not involve any supervening incapacity. The issue is whether the appellant’s continuing incapacity is attributable to the accident or, as the primary Judge found, is no longer causally related to the accident.
49. In my view, notwithstanding the factual difference identified by Mr Rewell, the principle stated in Purkess v Crittenden applies to the present case. There was no dispute at the trial or on the appeal that the accident had caused the appellant to sustain some physical and psychiatric injuries. It was also not in dispute that the appellant continued to suffer from serious psychological disabilities at the date of the trial. In principle, it is difficult to see why the respondent should not have borne the burden of adducing evidence to rebut what Dixon CJ in Watts v Rake referred to as the presumption that the appellant’s continuing disabilities were causally related to the accident. To adapt the language in Purkess v Crittenden, once the appellant made out a prima facie case that her continuing psychiatric disabilities resulted from the respondent’s negligence, the onus of adducing evidence showing that the disabilities were wholly the consequence of the appellant’s pre-existing condition fell on the respondent.
50. This conclusion is supported by the facts of Watts v Rake. It is true that one issue in that case was whether the plaintiff would have become incapacitated in due course even if the accident had not occurred. But another issue was whether part of the plaintiff’s “present condition [was] traceable to causes other than the accident”. The Court said that the defendant bore the onus of adducing evidence in relation to both issues.”
51. It follows that Mr Sheldon is correct to submit that the respondent bore the onus of adducing evidence that the appellant’s psychiatric disabilities attributable to the accident had resolved before the date of the trial. But if the respondent did adduce such evidence, the burden of persuading the trier of fact on the balance of probabilities remained on the appellant.”
[33] [2015] NSWCA 191 (Sullivan).
[34] At [49]-[50].
If Ms Jubelin has established injury and ongoing symptoms, then consistent with the principle in Watts, there is an evidential onus on the insurer to lead evidence that the effects of the injury had ceased. The principle in Watts may have difficulties of application where medical assessments are determined by Medical Assessors and Review Panels because of the medical expertise within those bodies who are required to form their own decision. Subject to obligations of natural justice, the Panel is not bound to accept any medical opinion.
The principle articulated in Watts and other cases does not support the contention, argued by the claimant, that there is a reverse overall onus on the insurer to rebut the claimant’s assertion of the nature of the injury sustained in the motor accident.
The claimant’s submission is otherwise incorrect insofar as there is evidence from the insurer that the shoulder tear was pre-existing. The submission that an expert opinion is not evidence misunderstands the nature of expert opinion evidence.
Further we do not accept the claimant’s submission that the overall burden lays on the insurer. Watts, and the authorities referred to in Sullivan, do not discuss the issue of the overall burden of proof. We adopt the reasons provided by another Review Panel in Lynch v AAI Ltd[35] that the onus of establishing that the injury is not a minor injury is on the injured person.
[35] [2022] NSWPICMP 6 at [44]-[62].
Right shoulder injury
The claimant’s submission was that the partial tear of the supraspinatus tendon was caused or aggravated by the motor accident, and this meant that the injury to the right shoulder was defined as a non-minor injury under the MAI Act. For the following reasons we do not accept that the motor accident caused or aggravated the partial thickness tear of the supraspinatus tendon.
Ms Jubelin suffers from bilateral adhesive capsulitis (also known as frozen shoulder). Frozen shoulder is often bilateral though rarely simultaneous. About one third of persons with frozen shoulder will be found to either be prediabetic or have otherwise asymptomatic type II diabetes. Other endocrine abnormalities are also more common in frozen shoulder sufferers than the general population. Frozen shoulder usually develops insidiously but generally resolve spontaneously over 18 months to two years. However, it does not always fully resolve leaving a pain free limited but functional range of shoulder movement. Proceeding trauma is sometimes reported but the onset of the frozen shoulder symptoms usually lags by three to six weeks from the traumatic episode.
Based on the medical expertise within the Panel we agree with the medical views expressed by Medical Assessor Woo and Dr Gothelf that partial thickness tears of the supraspinatus tendon are common findings in the claimant’s age bracket due to degenerative changes.
The findings of a partial rotator cuff tear on an ultrasound examination does not conform to an acute injury as partial rotator cuff tears usually occur as part of a degenerative process and usually progress slowly over time. The tear may also be caused or aggravated by trauma. However, the description of the pathology in the right shoulder ultrasound is suggestive of degenerative shoulder pathology as there is reference to longstanding pathology including degenerative changes in the acromioclavicular joint and moderate tendinosis on the articular surface of the supraspinatus tendon.
Ms Jubelin did not describe a direct insult to the right shoulder in the motor accident and suggested in her statement that “as the van hit me, I flinched and jumped and that is when the muscle went”. The nature of the motor accident and the delay in onset of symptoms does not suggest acute trauma to the right shoulder. The claimant’s description that the damage to her vehicle was “significant” and at speed does not provide a proper foundation for how or why the motor accident caused or aggravated the supraspinatus tear.
In QBE Insurance (Australia) Ltd v Shah[36] the Court referred to the absence of any discussion of a “biomechanical, anatomical, orthopaedic or other scientific reasoning to support the putative traumatic causation”[37] between the motor accident and the alleged injury. In this case we do not accept that there is an explanation between the motor accident and an aggravation of a degenerative tear and the medical evidence in the matter does not otherwise provide one. Dr Stephenson accepted that the tear was caused by the motor accident without providing any medical explanation of the causative link.
[36] [2021] NSWSC 288 (Shah).
[37] Shah at [36].
Finally, the delay in onset of shoulder symptoms is not supportive of acute trauma to the supraspinatus tendon. On the claimant’s statement which we accept as more reliable due to its detail and proximity to the motor accident, there was a delay in onset of symptoms of two days with an onset of shoulder symptoms whilst vacuuming. That history suggests both an absence of direct insult to the right shoulder and discrete traumatic injury.
The general practitioner’s explanation that there was no delay in shoulder symptoms[38] is not accepted as the onset of symptoms occurred whilst cleaning and prior to the first consultation with the general practitioner following the motor accident. The cleaning incident was not an aggravation that occurred after the first consultation as he suggested in the report dated 19 February 2021[39] nor did shoulder symptoms occur prior to the undertaking the cleaning work two days after the motor accident. In that regard we accept the claimant’s version provided in the statement that the onset of symptoms commenced at work whilst she was vacuuming.
[38] See [61] herein.
[39] Insurer’s bundle, page 57.
We accept that the claimant was asymptomatic both in the right shoulder, arm and cervical spine prior to the motor accident.
A partial tear of the supraspinatus can be asymptomatic. Accordingly, the absence of pre-existing symptoms is relevant but not determinative that the tear was caused by the motor accident.
We accept that Ms Jubelin may have sustained a minor soft tissue injury to the right shoulder caused by the motor accident. However, the delay of immediate onset of symptoms and the absence of direct trauma is not suggestive of a discrete partial tear being caused or aggravated by the motor accident. When these factors are considered with the claimant’s age and the pathology shown on the ultrasound, we are not satisfied that the motor accident caused or aggravated the partial tear of the supraspinatus tendon.
Cervical spine Injury/radiculopathy
Despite the delay in onset of symptoms, the nature of the motor accident could have caused a neck strain. We accept that the claimant was asymptomatic prior to the motor accident with an onset of neck pain within a short timeframe of the motor accident.
The claimant submitted that she suffers from radiculopathy which means the injury to the cervical spine is a non-minor injury as defined in the MAI Act.
The Panel adopts the reasoning in David v Allianz Australia Ltd[40] that radiculopathy can be present at any time to satisfy the onus that the injury is not minor for the purposes of the MAI Act.
[40] [2021] NSWPICMP 227 at [84]-[104].
We are not satisfied that the claimant has or ever had two signs of radiculopathy within the meaning of cl. 5.8 of the Guidelines.
The claimant did not have two signs of radiculopathy when examined by the Panel.
The claimant referred to clinical records referring to symptoms through the right shoulder and into the arm and hand. These symptoms are not sufficient to establish radiculopathy. In the absence of a specific description, it is not possible to ascertain whether those complaints are sensory loss in a specific dermatome.
The claimant’s submissions did not articulate two recorded signs of radiculopathy in any of the medical evidence. The signs of radiculopathy are otherwise not apparent from the material.
Dr Morton diagnosed a cervical neck strain and did not identify any signs of radiculopathy.[41]
[41] Insurer’s bundle, page 19.
Dr Stephenson commented that there were no objective findings of radiculopathy in the upper extremities, where power and sensation were described as satisfactory and deep tendon reflexes were present and active.
Medical Assessor Woo did not find any signs of radiculopathy as defined under the Guidelines.
The pathology shown on the CT scans of the cervical spine otherwise does not explain why the claimant would suffer from radiculopathy as there is an absence of reported impingement of the nerve roots.
We conclude, based on the examination findings of the Medical Assessors, that Ms Jubelin did not have radiculopathy when she was recently examined. Ms Jubelin has otherwise not satisfied, at any time, two clinical signs of radiculopathy pursuant to cl 5.8 of the Guidelines.
The claimant has not established that she sustained a cervical spine injury which is defined as non-minor for the purposes of the MAI Act.
CONCLUSION
For these reasons the Panel confirms the certificate issued by Medical Assessor Woo.
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