Kairouz v Allianz Australia Insurance Limited

Case •

[2023] NSWPICMP 242

•

24 May 2023
DETERMINATION OF REVIEW PANEL
CITATION: Kairouz v Allianz Australia Insurance Limited [2023] NSWPICMP 242
CLAIMANT: George Kairouz

INSURER:

Allianz Insurance Australia Limited
REVIEW Panel
MEMBER: Susan McTegg
MEDICAL ASSESSOR: Shane Moloney
MEDICAL ASSESSOR: Geoffrey Stubbs
DATE OF DECISION: 24 May 2023

CATCHWORDS:

MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident on 31 March 2021; claimant 70-years-old at date of accident; Medical Assessor (MA) Woo found the following injuries were threshold injuries: cervical spine, soft tissue injury; lumbar spine, soft tissue injury; bilateral shoulder, soft tissue injury and left wrist, soft tissue injury; Held –tenderness and restriction of movement of cervical spine; no evidence of radiculopathy; soft tissue injury to cervical spine; CT of lumbosacral spine reported multilevel degenerative changes; no evidence of radiculopathy; soft tissue injury to lumbar spine; no recorded complaint of shoulder pain until seven months post-accident; claimant said left shoulder became painful more than six months after accident; supraspinatus tear left shoulder not caused by accident; both shoulders had decreased range of movement consistent with degenerative changes and claimant’s age; claimant sustained soft tissue injury to left shoulder; claimant sustained soft tissue injury to right shoulder now resolved; on examination normal range of wrist movement; no complaint left wrist pain until December 2021; pain caused by pre-existing osteoarthritic condition; certificate of MA Woo revoked; claimant sustained threshold injuries to lumbar spine, cervical spine and both shoulders; injury to left wrist and hand not caused by accident.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION
Assessment of Threshold Injury
Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel revokes the certificate of Medical Assessor Alexander Woo dated  30 September 2022 and determines that the following injuries caused by the motor accident are threshold injuries:

·     lumbar spine – soft tissue injury;

·     cervical spine – soft tissue injury;

·     left shoulder – soft tissue injury, and

·     right shoulder – soft tissue injury (now resolved).

The Panel determines the following injury was not caused by the accident:

·     left wrist and hand.

STATEMENT OF REASONS

INTRODUCTION

  1. Mr George Kairouz (the claimant) sustained injury in a motor vehicle accident on
    31 March 2021 (the accident). He was driving along the Cumberland Highway slowing down in traffic when without warning the vehicle behind him failed to stop and collided with his vehicle.  Another vehicle hit the rear of that vehicle causing it to hit his vehicle again. 

  2. Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Kairouz under the Motor Accident Injuries Act 2017 (MAI Act).

  3. Under the MAI Act statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”.[1]

    [1] Section 3.28 of the MAI Act.

  4. In the Application for personal injury benefits dated 9 June 2021 Mr Kairouz outlined the following injuries:

    ·        neck and back injury;

    ·        both shoulders, left worse;

    ·        both legs referred pain;

    ·        left wrist, and

    ·        shock – hypervigilant worried about driving, lack of sleep, flashbacks.[2]

    [2] AD2 p 23

  5. On 17 September 2021 the insurer determined that Mr Kairouz had sustained a minor injury and denied liability for statutory benefits beyond 26 weeks after the accident. 

  6. On 29 September 2021 Mr Kairouz sought an Internal Review of the minor injury decision and on 20 October 2021 the insurer affirmed the determination that the claimant’s injuries met the definition of a minor injury. 

  7. 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.

  1. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]

    [3] Section 7.20 of the MAI Act.

THRESHOLD INJURY- STATUTORY PROVISIONS

  1. The Motor Accident Injuries Amendment Act 2022 (the 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”.

  2. The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.

  3. 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”.

  4. 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.”

  5. 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)”.

  6. 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 9.1 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 threshold psychological or psychiatric injury 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 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.”

  7. In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:

    “5.7   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.

    5.8    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.

    5.9    Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”

  8. In Briggs v IAG Limited trading as NRMA Insurance[4] his Honour Justice Wright stated at [35]:

    [4] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.

    “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

    6.5An 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.

    6.6Causation 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.

    6.7There 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

  1. The minor injury dispute was referred to Medical Assessor Alexander Woo. The injuries referred for assessment were the following:

    ·        whether the cervical spine /neck: cervical spondylosis and multiple disc lesions, radiculopathy injury caused by the motor accident is a minor injury for the purposes of the Act;

    ·        whether the lumbar spine/back: canal and foraminal stenosis at L3/4, musculoskeletal strain injury caused by the motor accident is a minor injury for the purposes of the Act;

    ·        whether the bilateral shoulder (especially the left shoulder): large sized full thickness tear of the supraspinatus tendon injury caused by the motor accident is a minor injury for the purposes of the Act, and

    ·        whether the left hand and wrist: contusion/strain, moderate to severe osteoarthritis injury caused by the motor accident is a minor injury for the purposes of the Act.

  2. Medical Assessor Woo measured range of movement of the shoulders as follows:

Shoulder Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

180º

130º

Extension

50º

50º

Adduction

50º

50º

Abduction

180º

120º

Internal Rotation

80º

80º

External Rotation

90º

90º

  1. In a Certificate dated 30 September 2022 Medical Assessor Woo found the following injuries were caused by the accident:

    ·        cervical spine – soft tissue injury;

    ·        lumbar spine – soft tissue injury;

    ·        bilateral shoulder – soft tissue injury, and

    ·        left wrist – soft tissue injury.

  2. He found the injuries were minor on the basis there was no fracture, no evidence of two or more clinical signs to meet the diagnosis of radiculopathy in the upper and lower limbs and no evidence of a complete or incomplete rupture of tendons, ligaments, menisci or cartilage in the left shoulder. He noted the ultrasound report of the left shoulder noted by Dr Hanna was not available for review but also commented that degenerative tear of the rotator cuff tendon is commonly seen in a person of the claimant’s age.

REVIEW PROCEDURE

  1. The claimant lodged an application for review of the assessment of Medical Assessor Woo on 25 October 2022 within 28 days of the date on which the certificate of Medical Assessor Woo was made available to the parties.

  2. On 28 November 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[5]

    [5] AD2 p 9.

  3. 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.

  4. The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission) [6]. Accordingly, the President’s delegate referred the matter to this Panel to assess.

    [6] Section 7.26(5A) of the MAI Act.

  5. 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.

  6. 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.

  7. The review is by way of a new assessment of all matters with which the medical assessment is concerned.

EVIDENCE BEFORE THE REVIEW PANEL

  1. The claimant uploaded to the portal an index marked AD1 and a bundle of documents marked AD2 paginated from pages 1 to 118.

  2. The insurer uploaded to the portal a bundle of documents marked R1 paginated from pages 1 to 102.

  3. On 2 March 2023 the Panel Directed the claimant by close of business 13 April 2023 to upload to the portal the following:

    (a)    the clinical records of any general practitioner attended by the claimant in the two-year period prior to the accident, and

    (b)    updated clinical records of the claimant’s general practitioner from
    1 August 2021 to date.

  4. In response to that Direction the claimant uploaded the clinical notes of Dr Hanna (AD4) from 7 July 2021 to 1 February 2023. No clinical records of any general practitioner attended by the claimant in the two year period prior to the accident were provided and the Panel proposes to determine the review in the absence of those records. 

  5. The claimant is now 72 years of age and was 70 years of age at the time of the accident on 31 March 2021.

Application for personal injury benefits

  1. In the Application for personal injury benefits dated 9 June 2021 Mr Kairouz described the injuries he sustained in the accident on 31 March 2021 as follows:

    “Neck and Back injury –

    Both shoulders, left worse.

    Both legs referred pain.

    Shock – hypervigilant, worried about driving; lack of sleep; flashbacks;

    Left wrist.”

Clinical notes of Guildford Road Medical Centre

  1. The records of Guildford Road Medical Centre as of 26 August 2021 were produced.

  2. Mr Kairouz saw Dr Hany Hanna, general practitioner (GP) on 1 April 2021.[9] He noted the rear end collision involving being hit from behind by another car twice. He recorded neck pain, tenderness and restricted range of motion and referred the claimant for an X-ray of the cervical spine.

    [9] AD2 p 37.

  3. On 13 April 2021 Dr Hanna reported “neck pain with radiculopathy L”.

  4. On 12 May 2021 Dr Hanna reported back pain and neck pain, tenderness and restricted range of motion.

  5. On 7 June 2021 Dr Hanna reported joint pain, back pain and neck pain. He issued a Certificate of capacity/certificate of fitness with a diagnosis of neck and back injury.

  6. On 30 June 2021 Dr Hanna reported joint pain, back pain and neck pain and referred Mr Karouz for a CT scan of the lumbar spine.

  7. On 5 July 2021 Dr Hanna referred the claimant to Carole Do, for chiropractic treatment.

  8. Again, on 7 July 2021 and 29 July 2021 Dr Hanna reported joint pain, back pain and neck pain.

  9. On 27 October 2021 Dr Hanna reported Mr Kairouz attended with swelling of the left hand present for three weeks.  He stated the reason for contact was ganglion and Dupuytren’s contracture.[10]

    [10] AD4 p 4.

  10. On 23 November 2021 and on 30 November 2021 complaints of joint pain, back pain and neck pain were recorded and on 21 December 2021 the claimant was referred for X-rays of the left shoulder and the left wrist. [11]

    [11] AD4 p 6.

  11. A Certificate of capacity/certificate of fitness of Dr Hanna dated 14 September 2021 provides a diagnosis of “back neck injury”.[12]

    [12] AD2 p 116.

  12. A Certificate of capacity/certificate of fitness of Dr Hanna dated 27 October 2021 and subsequent certificates provide a diagnosis of “back, neck, L shoulder L wrist injury”.[13]

    [13] AD2 p 111.

  13. On 14 January 2022 Mr Kairouz saw Dr Chaithan Reddy, plastic and reconstructive surgeon in respect of the Dupuytren’s contractures of the palm of his left hand.[14] He advised surgical intervention was not required.

    [14] AD4 p 122.

  14. On 17 February 2022, 23 February 2022, 28 March 2022 Mr Kairouz consulted
    Dr Hanna for joint pain, back pain and neck pain.  On 29 April 2022 he also recorded the pain in the right shoulder and wrist was worse than the back and neck. Thereafter until 5 January 2023 the records show that Mr Kairouz attended Dr Hanna on average monthly in respect of his back and neck pain and also his left shoulder and left wrist pain.

  15. On 3 November 2022 the claimant fell. He attended Fairfield Hospital with pain and swelling to the right wrist. A referral to Dr Dave dated 8 November 2022 relates to a fall resulting in a fracture of the right radius and ulna.[15]

Report of Dr Hany Hanna

[15] AD4 p 91.

  1. Dr Hanna provided a report dated 22 December 2021.[16] He stated Mr Kairouz was suffering from:

    ·        back pain which is referred to both legs more to the left than the right;

    ·        neck pain which is referred to both arms;

    ·        left shoulder pain causing difficulty with movement, and

    ·        left wrist pain causing difficulty with movement.

    [16] AD2 p 28.

  1. He noted tenderness and restriction of movement of both the cervical and lumbar spine and also of the left wrist. He stated Mr Kairouz was in good health prior to the accident.

  2. Dr Hanna diagnosed multiple disc lesions in the back and neck, a complete supraspinatus tendon tear and moderate to severe osteoarthritis of the left wrist. He reported he had also developed depression and anxiety.

  3. An Allied health recovery request (AHRR) of Carole Kim Do, chiropractor dated
    10 February 2022 is difficult to read.[17]  The diagnosis is:

    “L3/L4 broad herniation causing mild to moderate canal and foraminal stenosis with underlying multilevel lumbar ?, mod – large tear of supraspinatus tendon with underlying mild OA of ? joint suspect mild subdeltoid bursitis, suspect whiplash with underlying cervical spondylosis.”

    [17] AD 4 p 124.

Imaging

X-ray cervical spine on 6 April 2021[18]

[18] AD2 p 29.

  1. Cervical spondylosis. No recent bony injury was seen. Bilateral mild lower cervical neural exit foraminal stenosis.

CT scan cervical spine on 19 April 2021[19]

[19] AD2 p 60.

  1. There is developmental fusion of C5-C6 vertebral body.

  2. There is narrowing of the C4/C5 and C6/7 discs. There is no vertebral body compression nor subluxation nor cervical ribs.

  3. The atlantoaxial and atlanto-occipital facets appear normal.

  4. There is slight narrowing of the C4/5 intervertebral foramina by osteophytes. No posterior disc protrusion or prolapse is visible.

CT lumbosacral spine on 1 July 2021[20]

[20] R1 p 26.

  1. Multilevel degenerative changes.

Ultrasound left hand, 28 October 2021

Conclusion

  1. There are two small to moderate sized hypoechoic structures located within the subcutaneous fat of the palmar aspect of the patient’s left hand consistent with Dupuytren’s contractures/palmar fibromas.

  2. The above described structures reside vental to the flexor tendons of the left 3rd and 4th fingers respectively.[21]

    [21] AD4 p 27.

Ultrasound left shoulder on 22 December 2021[22]

Conclusion

[22] AD2 p 30.

  1. Moderate to large-sized full-thickness partial width versus partial-thickness articular surface tear of the mid and posterior portions of the supraspinatus tendon; questionable mild subdeltoid bursitis.

X-ray left shoulder on 22 December 2021[23]

[23] AD2 p 30.

  1. Minimal degenerative osteoarthritis of the left shoulder.

X-ray left wrist on 22 December 2021[24]

[24] AD2 p 30.

  1. Moderate to severe degenerative osteoarthritis of the articulation of the distal scaphoid bone and the greater and lesser multangular bones.

SUBMISSIONS

Claimant’s submissions

  1. The claimant provided submissions in support of the review.[25] The claimant argued Medical Assessor Woo erred in determining the injury to the left shoulder was a minor injury noting the X-ray and ultrasound dated 12 December 2021 revealed a “large sized full thickness tear of the supraspinatus”.

    [25] AD2 p 1.

  2. The claimant submits in concluding it was common for a person of the claimant’s age to present with a full thickness tear the Medical Assessor failed to consider that there was no prior history or clinical reporting of left shoulder pain prior to the accident.

  3. The claimant provided submissions in support of the initial minor injury dispute.[26] The claimant relies on the clinical notes of Dr Hanna as of 26 August 2021 which it is submitted reveal consistent and persistent complaints of neck and back pain. At that time the claimant submitted further investigation was required to determine the extent of injury.

    [26] AD2 p 15.

  4. The claimant also notes Dr Hanna in his report dated 22 December 2021 stated an
    X-ray and ultrasound of the left shoulder dated 22 December 2012 disclosed a large sized full thickness tear of the supraspinatus tendon and diagnosed a complete supraspinatus tear.

Insurer’s submissions

  1. The insurer provided submissions dated 23 February 2022.[27] The insurer notes there is no evidence of a fracture or compression of the cervical spine demonstrated in the

    [27] R1 p 1.

    X-ray report of 6 April 2021 or the CT scan of 19 April 2021. The insurer notes the narrowing of the C4/C5 and C6/C7 and associated spondylotic changes are constitutional in nature and are not evidence of an acute injury. The insurer also submits there is no evidence to demonstrate the claimant has sustained cervical radiculopathy.

  2. In relation to the lumbar spine the insurer submits there is no evidence of an acute, traumatic or structural injury to the lumbar spine and the CT scan concluded “multilevel degenerative spine”. The insurer also notes there is no evidence of radiculopathy. 

  3. In relation to the left shoulder the insurer noted the ultrasound report was yet to be produced.

  4. In relation to the left wrist the insurer submitted that the ultrasound revealed osteoarthritis but again the insurer had not seen the report.

  5. The insurer provided submissions dated 15 November 2022 addressing the question to be determined by the President’s delegate, that is whether the medical assessment of Medical Assessor Woo was incorrect in a material respect.

THE MEDICAL EXAMINATION

  1. Mr Kairouz attended the medical suites at the Commission on 10 May 2023 where he was examined by Medical Assessors Moloney and Stubbs. He was accompanied by his wife who was examined separately and two interpreters who shared the interviews, namely, Bassam Mouaykel, CPN0E506Z and Zahraa Mourtada, CPNoHS841.

Pre-accident history

  1. Mr Kairouz migrated to Australia in 1967 from Lebanon and initially worked on the railways as a station assistant and cleaner. He also worked as a waiter in a restaurant. He ceased work seven years ago and is now on the age pension. He currently lives with his wife in a one story house in Blacktown.  They have three married children. He has diabetes and denies any previous relevant injuries.

History of motor accident

  1. On 31 March 2021, Mr Kairouz was the driver of his car. He was slowing down in traffic when he was hit in a rear end collision by the car behind him who subsequently was hit by another car causing a second impact. He stated police attended the scene, but no ambulance officers arrived. He stated at that time he had pain in the neck radiating down to the left wrist. He drove home with his wife in a rental car.  His own car was subsequently repaired which he still uses.

History of symptoms and treatment following the accident

  1. Mr Kairouz consulted his GP who referred him for X-rays and physiotherapy. When the panel enquired about his left shoulder symptoms, Mr Kairouz stated that this became painful just after six months following the accident.

Details of any further injuries sustained since the accident

  1. Mr Kairouz had a fall in November 2022 which resulted in a fracture of his right wrist. This was reduced and treated with a plaster of Paris cast. He states that this right wrist is now asymptomatic.

Current symptoms

  1. The main area of pain is in the cervical spine and pain in the left shoulder region which radiates down to the left wrist. Due to the left shoulder pain, he has disturbed sleep. He states that the right arm and shoulder are asymptomatic. Since the accident he states the low back pain has settled but occasionally he gets a flareup with pain radiating into the lateral thighs.

  2. During the past year, he has lost eight kg due to a change in his diabetic treatment. He is able to drive and actually drove from Blacktown to the city today. He walks and visits his family on a regular basis. He helps his wife with the house work.

Current treatment

  1. Present medication is Mobic 15 mg one-a-day, Voltaren when necessary, and Panadol Osteo two per day for pain relief. He also has diabetic treatment and medications for hypercholesterolaemia, hypertension and reflux. No surgical procedures or injections have been undertaken. No manual therapy is used at present, and he consults his GP when necessary.

Clinical examination

  1. Mr Kairouz walked into the rooms with a normal gait and sat comfortably during the interview. He stated he was right-handed. His height was measured at 163 cm and his weight at 80.6 kg.

Cervical spine

  1. On testing range of movement flexion/extension was 50% of expected range as was side bending and rotation bilaterally with no asymmetry. On palpation there was tenderness over the trapezius muscle, but no guarding or spasm was noted in the cervical musculature.

  2. On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and reflexes with no sensory changes noted. No muscle wasting was apparent with the circumference of the upper arms 26 cm bilaterally (10 cm above the olecranon process) and at the maximum circumference of the forearm 23 cm bilaterally.

  3. There is no evidence of a fracture or compression of the cervical spine demonstrated in the X-ray report of 6 April 2021 or the CT scan of 19 April 2021. The Panel finds the narrowing of the C4/C5 and C6/C7 and associated spondylotic changes are constitutional in nature.

  4. Whilst Mr Kairouz reported pain and demonstrated tenderness and restricted range of movement of the cervical spine there is no evidence that two or more of the clinical signs of radiculopathy mentioned in clause 5.9 of the Guidelines existed to satisfy the diagnosis of radiculopathy.

  5. In the absence of two signs of radiculopathy the Panel finds the claimant sustained a soft tissue injury to the cervical spine caused by the accident which is a threshold injury.

Lumbar spine

  1. Mr Kairouz walked with a normal gait and was able to stand on his heels and toes with some balance difficulties. He was able to stand on each leg independently. On testing range of movement, flexion/extension was 70% of expected range with side bending and rotation 60% of expected range bilaterally. Straight leg raise was 70° bilaterally with negative sciatic nerve root tension signs. On palpation there was no guarding or spasm noted in the lumbar musculature. There was a normal range of movement of the hips and knees.

  2. On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was noted in the thighs or calves.

  3. The CT scan of the lumbosacral spine on 1 July 2021 reported multilevel degenerative changes. There is no evidence of acute injury.

  4. Whilst the Panel notes Mr Kairouz complained of lumbar pain there is no evidence that two or more of the clinical signs mentioned in cl 5.9 of the Guidelines existed to satisfy the diagnosis of radiculopathy.

  5. In the absence of two signs of radiculopathy the Panel finds the claimant sustained a soft tissue injury to the lumbar spine caused by the accident which is a threshold injury.

Upper extremity

Shoulders

  1. On inspection of the shoulders, no muscle wasting was apparent and on palpation there was slight wasting of the left supraspinatus muscle. On passive movement, there was some crepitus in the glenohumeral joint at the mid arc range. There was also tenderness over the left long head biceps. Active movements were measured using a goniometer and repeated. There was a positive impingement sign in the left shoulder.

Shoulder Movements

Active ROM Measured

RIGHT

 Active ROM Measured
LEFT
Flexion 140° 140°
Extension 60° 60°
Adduction 40° 40°
Abduction 130° 130°
Internal Rotation 80° 80°
External Rotation 90° 90°

  1. The treating GP, Dr Hannah initially recorded neck and back pain and it was not until seven months post-accident a complaint of left shoulder pain was recorded. An ultrasound on 22 December 2021 disclosed a large sized full thickness tear of the supraspinatus tendon and diagnosed a complete supraspinatus tear. 

  2. Mr Kairouz informed the Medical Assessors that the left shoulder became painful more than six months after the accident. This is consistent with the available records. The first recorded complaint of left shoulder injury is in the Certificate of Capacity/Certificate of Fitness dated 27 October 2021 which includes a reference to the left shoulder.

  3. There is little record of complaint relating to the right shoulder other than its inclusion in the Application for personal injury benefits and the general reference to “joint pain” in Dr Hanna’s clinical records, although on 9 April 2022 Dr Hanna recorded the pain in the right shoulder and left wrist was worse than the back and neck pain.  When he was examined Mr Kairouz conceded the right arm and shoulder were asymptomatic.

  4. On 5 October 2022, the treating GP recorded a full range of movement of the left shoulder and left wrist with some tenderness.

  5. At the time of the medical examination both shoulders had a decreased range of movement which was consistent with degenerative changes and the claimant’s age of 72 years. The Panel has determined that the supraspinatus tendon tear disclosed on the ultrasound of 22 December 2021 was not caused by the accident. 

  6. The Panel finds Mr Kairouz sustained soft tissue injury to the left shoulder caused by the accident.  The Panel finds Mr Kairouz sustained a soft tissue injury to the right shoulder caused by the accident which has now resolved.

Wrists

  1. There was a normal range of movement of both wrists when using a goniometer.

Wrist Movements

Active ROM Measured

RIGHT

 Active ROM Measured
LEFT
Flexion 60° 60°
Extension 60° 60°
Radial Deviation 20° 20°
Ulnar Deviation 30° 30°

  1. Following the accident there was no reported complaint of left wrist pain until December 2021 and the X-ray of the left wrist on 22 December 2021 demonstrated moderate to severe osteoarthritis.

  2. The Panel is not satisfied that any injury to the left wrist is causally related to the accident on 31 March 2021 having regard to the lack of contemporaneous complaint for over eight months post-accident and the findings on examination of Medical Assessor Moloney and Medical Assessor Stubbs.

  3. The Panel finds any pain experienced by Mr Kairouz to his left wrist is due to the pre-existing osteoarthritic condition demonstrated by the X-ray of December 2021.

PANEL’S FINDINGS

  1. The Panel revokes the certificate of Medical Assessor Alexander Woo dated  30 September 2022 and determines that the following injuries caused by the motor accident are threshold injuries:

    ·        lumbar spine – soft tissue injury;

    ·        cervical spine – soft tissue injury;

    ·        left shoulder – soft tissue injury, and

    ·        right shoulder – soft tissue injury (now resolved).

  2. The Panel determines the following injury was not caused by the accident:

    ·        left wrist and hand.


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Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372