Karam v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 429
•26 October 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Karam v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 429 |
| CLAIMANT: | Sonia Karam |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Mohamed Assem |
| MEDICAL ASSESSOR: | Ian Cameron |
| DATE OF DECISION: | 26 October 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (2017 Act); medical assessment of “minor injury” and insurer’s review under section 7.26 of the 2017 Act; original Assessor (Menogue) had found injuries all minor on basis of no ligament tear in shoulder caused and no cervical radiculopathy; in issue was the delay in complaints of shoulder pain and whether radiculopathy had been present at any time since the accident; Held – Panel not satisfied that ligament tear in shoulder caused by the accident; following David v Allianz and noting findings in medico-legal examination conducted after the accident; in November 2018 the claimant had radiculopathy and therefore had sustained a non-minor injury. |
| DETERMINATIONS MADE: | 1. Revokes the certificate of Assessor Menogue dated 29 March 2022. 2. Certifies that the claimant’s cervical spine injury is not a minor injury for the purposes of the Act. |
STATEMENT OF REASONS
Introduction
On 17 July 2018 Sonia Karam was involved in a motor accident. According to her “short submissions” she was driving through a roundabout when another vehicle collided with the left-hand side of her vehicle causing it to spin out of control and crash into the fence of a nearby house.
Emergency personnel attended the scene, but the claimant was not transported to hospital.
On 4 August 2018 Ms Karam made a claim for statutory benefits against NRMA, the insurer of the vehicle that she says caused her accident. NRMA accepted the claim and paid Ms Karam her statutory benefits. Ms Karam is nearly 65 years of age and was at the time of the accident an employed cashier and has been paid weekly benefits and treatment and care benefits.
At some stage before 6 April 2021, NRMA determined that the injuries Ms Karam sustained in the accident were “minor injuries” within the statutory definition. After an internal review was conducted on 6 April 2021, that medical dispute was referred to the Personal Injury Commission (the Commission)[1].
[1] The Panel has a copy of the application for personal injury benefits (page 21 of the claimant’s bundle) but does not have a copy of any liability notices or the internal review decision datedOn 29 March 2022, Assessor Menogue determined that the claimant’s injuries were “minor injuries”. The claimant lodged an application for review of that decision and on 4 July 2022, the President’s delegate determined there was reasonable cause to suspect a material error in that assessment. The President has now convened this Panel to conduct the review.
Legislative framework
Jurisdiction
Ms Karam’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available.
One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are ‘minor’ injuries. It is also relevant to Ms Karam that in a damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
Minor injury
A minor injury is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding cl of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 and they cannot recover damages.
Section 1.6(4) 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 MAI Regulation) 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 (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a minor injury. Relevantly to the matters in issue in Ms Karam’s claim, cl 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of the Guidelines[2] 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 …
(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.”
[2] Chapter 6 of the Guidelines.
Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury.”
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the MAI Act[3]. In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
[3] The current version of the Guidelines I version 8.2 effective 8 April 2022.
“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.”
The method of assessment in Part 5 does not appear to be limited to the assessment of minor injury disputes by Medical Assessors and Panel Members but would appear to extend to medico-legal or other experts retained by the claimant and the insurer upon which the insurer’s liability notices are based under s 6.19(2).
Dispute resolution
If there is a dispute about whether an injured person’s injuries are minor injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination[4].
[4] Schedule2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Assessor Berry’s, further medical assessments such as Assessor Menogue’s and the Review of medical assessments by this review panel[5].
Assessment under review
[5] Sections 7.20, 7.24 and 7.26 of the MAI Act.
Previous assessments
Medical Assessor Shaikh, an assessor for the Commission’s predecessor[6] determined on 2 April 2019 that the claimant sustained an adjustment disorder with mixed anxiety and depressed mood which is a minor psychological injury within the meaning of the MAI Act.
[6] The disputes Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA).
Medical Assessor Berry on 4 April 2019 determined for DRS that the claimant’s neck, lower back, left and right upper limb injuries were minor injuries within the meaning of the MAI Act. On 30 April 2019, proper officer Sarah Kallipolitis determined there was reasonable cause to suspect a material error in Assessor Berry’s decision and on
30 May 2019 she determined there was no reasonable cause to suspect a material error in Assessor Shaikh’s assessment.
This Panel has not been provided with a copy of the previous Panel’s decision in respect of Medical Assessor Berry’s determination however there is reference in the records to the Panel coming to the same decision as Assessor Berry.
The claimant then lodged an application for further assessment of the minor injury dispute with the Commission and on 29 September 2021, a delegate of the President allowed the further assessment to proceed. The delegate referred the following injuries for further assessment:
(a) cervical spine;
(b) right upper extremity (shoulder and wrist);
(c) left upper extremity, and
(d) lumbar spine.
Assessment of Assessor Menogue
Assessor Menogue took the following history from the claimant:
(a) she worked part time at a supermarket as a cashier;
(b) the note in the claim form that she was a carer for her husband is incorrect;
(c) she lives at home with her husband, drives short distances, does small shopping trips, cooks, cleans and shares some of the domestic duties with her husband;
(d) she takes Nurofen, Panadol and Panadol Osteo;
(e) she was travelling in a roundabout when she was hit in the rear and she struck a residential fence and a gas pipe was damaged requiring the attendance of the fire brigade;
(f) she did not attend the doctor that day but went home to rest;
(g) the claimant said that Dr Maniam’s history of a rear end collision at traffic lights with a visit that day to her general practitioner (GP) is wrong;
(h)
the morning after the accident she felt symptoms and attended her GP
Dr Tommalieh for a pre-arranged appointment to review bone density scans undertaken as part of low back complaints reported before the accident;
(i) Ms Karam was advised to have physiotherapy and analgesia and there were regular attendances until 11 October 2018;
(j) imaging of the shoulders was first undertaken on 1 October 2020 and an MRI on 3 February 2021;
(k) she had imaging of her left wrist due to hand and wrist discomfort and she reported this injury had resolved in 2019;
(l)
the claimant developed pain in the right shoulder later according to
Dr Maniam, and
(m) the claimant had little treatment in the last two years due to COVID but had restarted physiotherapy.
In terms of her current symptoms, Assessor Menogue records:
(a) Neck – intermittent low ache aggravated by activities of daily living “she denies any isolated right or left shoulder pain or right or left arm pain” but her neck pain spreads to the right and to the left shoulder sometimes;
(b) Shoulders – she experiences pain in the right shoulder when she works with her arms overhead. She denied symptoms in the left shoulder or arm other than when her neck is bad, and
(c) Lower back – she has mid-line low level ache with walking, sitting or standing or bending.
On examination by Assessor Menogue:
(a) Neck – there was some tenderness on palpation but no muscle guarding or spasm. There was symmetrical loss of motion by one quarter of all movements (no dysmetria). There were no neurological signs;
(b) Back – there was discomfort on palpation over L5 but no muscle guarding or spasm. There was again one quarter restriction in movements but they were symmetrical (therefore no dysmetria) and no neurological signs;
(c) Shoulders – there was some minor range of motion defects in both shoulders but no wasting and no loss of power, and
(d) Wrist – wrist movements were normal on both sides.
Assessor Menogue noted that the early documentation supported complaints of neck, low back, left hand and wrist pain but there was no reference to a discrete or specific shoulder injury. He referred to the radiology and noted post accident X-rays revealed degenerative changes throughout the spine and he diagnosed soft tissue injuries.
He noted that a finding of radiculopathy requires two of the five signs listed in cl 1.138 of the Guidelines but that on his examination there were non-verifiable radicular signs but none of the five signs of radiculopathy.
He therefore found no injuries fell out side the definition of “minor injury” and that therefore the claimant had only minor injuries.
Submissions received
Claimant’s submissions
The claimant submits that the Assessor erred in his assessment of causation of the claimant bilateral shoulder injuries. The claimant says the Assessor concluded the injuries were not caused due to a lack of recorded complaint concerning the shoulder injuries.
The claimant points to the following evidence:
(a) an absence of shoulder complaints in the GP records before the accident;
(b) a reference in the GP notes the day after the accident to neck pain radiating in to the shoulders;
(c) Assessor Berry on 4 April 2019 determined the right and left shoulders were injuries;
(d) a full thickness retracted tear of the posterior supraspinatus and anterior infraspinatus “is unlikely to occur out of thin air”;
(e) the late diagnoses does not nullify a causal link, and
(f) the absence of shoulder joint complaints for three months after the accident is not sufficient reasoning.
The claimant also says that on 27 May 2019 the claimant had an MRI of her cervical spine finding numerous discal injuries and possible nerve root compressions at C4/5 and C5/6. She refers to Dr Maniam’s report which diagnosed radiculopathy which is a non-minor injury.
Insurer’s submissions
The insurer submits that Assessor Menogue undertook an examination in compliance with cl 5.7 of the Guidelines. The insurer says the Assessor has written an “extensive certificate”, examined the records and found no evidence of a specific or frank injury to either of the shoulders noting that the first imaging of the shoulders was done two years after the accident. The insurer says the Assessor has set out his line of reasoning and given appropriate reasons for the conclusion he has reached.
The insurer also says there is no evidence of radiculopathy at the time of
Assessor Menogue’s assessment or since the accident.
Procedural matters
The Panel met on 25 August 2022 to discuss the Review and on 26 August 2022 issued to the parties a report with directions.
The Panel noted that Assessor Menogue was asked to assess the claimant’s cervical and lumbar spine injury, a right shoulder and right wrist injury and a left upper extremity injury.
The Panel has read the submissions from the parties in support of the review and noted:
(a) the focus of the claimant’s submissions was the assessment of the claimant’s shoulder injuries and the full thickness supraspinatus tear in the right shoulder. The issue appears to be causation of that tear. It does not appear to be disputed that there is a tear and that if caused, it would be a non-minor injury, and
(b) the claimant’s cervical spine injury is said to have resulted in numerous discal injuries and possible nerve root compression which the claimant says has resulted in radiculopathy within the meaning of the regulation and guidelines.
The submissions from the parties did not indicate that there is any dispute about whether the claimant’s lower back, right wrist or left arm and shoulder injury falls outside the definition of “minor injury” in the legislation. The Panel advised that subject to any submissions it did not intend to consider these injuries further.
In terms of the cervical spine injury and the issue about radiculopathy, the Panel noted the definition of radiculopathy in the Guidelines requires two of five signs to be present. Radiating pain is not one of the five signs of radiculopathy. The Panel also drew to the attention of the parties the cases of David v Allianz Australia Insurance Ltd[7] and Lynch v AAI Limited t/as AAMI[8] the Medical Panel considered the same issue in respect of a psychiatric injury which found that if, at any time after the accident, the claimant’s accident related injury falls outside the definition of “minor injury” contained within s 1.6 of the MAI Act, the claimant must be found to have non-minor injuries regardless of the state of the injury (healed, recovered, in remission) at the time the Panel undertakes its assessment.
[7] [2021] NSWPICMP 227.
[8] [2022] NSWPICMP 6.
The Panel noted the reports of Drs Antoun and Maniam and the GP records and invited submissions from the parties as to whether:
(a) there has been an assessment by any of the claimant’s treating practitioners that would comply with cl 5.6 of the Guidelines, and
(b) any such assessment has resulted in a finding of two or more of the clinical signs of radiculopathy set out in cl 5.8 of the Guidelines.
Insurer’s further submissions
The insurer says:
(a) there is no evidence of radiculopathy in any of the examinations undertaken by the claimant’s health professionals in particular the clinical records of Dutton Street Medical Centre on 11 October 2018 reveal a normal examination in reflexes, dermatomes and myotomes;
(b) Dr Antoun’s examination (medico-legal) was inconsistent with extreme reduction in movement not exhibited before and the Panel should not rely on his findings;
(c) Assessor Berry did not find radiculopathy;
(d) the review panel considering Assessor Berry’s determination found no radiculopathy;
(e) when examined by Dr Maniam in February 2021 the claimant had one sign of radiculopathy (sensory deficiency in C5/6 dermatomes), and
(f) Assessor Menogue found no evidence of radiculopathy.
Claimant’s further submissions
The claimant points to a number of paragraphs of Dr Antoun’s report which supports a finding of radiculopathy – most of these relate to radiating pain which is, the Panel notes, not one of the five signs of radiculopathy.
The claimant notes that Dr Maniam found “sensory deficiency” in the C5/6 dermatomes and differences in range of motion from presumably left to right. The Panel notes that dysmetria (non-symmetrical restriction of movement) is one of the differentiators between diagnostic related estimates category 1 and 2 (relevant to whole person impairment) but not a sign of radiculopathy.
The claimant also points to a number of entries in the GP’s notes where there is use of the word “radiculopathy” and notes of radiating pain, spasms and so on. The medical members of the Panel note that many health care professionals will use the term “radiculopathy” when there is radiating pain but the term radiculopathy in the Guidelines is a legislated term that has a much more specific meaning than the term used in clinical practice.
Review of the evidence
The claimant’s “short submissions” in support of the original medical assessment refer to a collision in the roundabout with an impact from the left side[9]. The claim form[10] says “I was driving straight through the roundabout … when the driver of the other car entered the roundabout without seeing me and hit me from behind. This pushed my car toward a house and over its back fence”.
[9] Paragraph 9, page 19
[10] Page 21 of the claimant’s bundle.
The claimant says in her claim form “the accident resulted in me having multiple bulging discs in my spine. The pain is quite intense”. She also says “I had a scan on 9 July 2018 which showed I have osteoporosis. This scan confirms I had no discs that were bulging at the time. I have provided those results for your reference[11]”. The Panel notes there is no specific mention of shoulder injury in this form.
[11] This is of course the claimant’s own words in her claim form. The medical members of the Panel are not of the view that a bone scan can show both the presence of osteoporosis and bulging discs.
The claimant had CT scans undertaken of her lumbar and cervical spine on
25 July 2018. In terms of the cervical spine there was mild narrowing on the right at C4/5 with possible contact and irritation of the exiting right C5 nerve root along with degenerative changes with possible irritation on the left. There was mild narrowing of the left exit neural canal at C5/6 due to degenerative changes with possible “low grade” contact with the exiting C6 nerve root.
On 1 October 2020 the claimant had a right shoulder X-ray which revealed minimal degenerative changes of the acromioclavicular (AC) joint. There was also an ultrasound undertaken on the same day showing a complete tear of the supraspinatus with subacromial bursitis and bicipital tenosynovitis.
Both parties have put before the Panel records of the claimant’s GP and physiotherapist but these documents do not greatly assist the Panel. The Panel has not been taken to any significant pre-accident neck or shoulder problems although it is clear there were previous lower back and hip complaints.
Dr Maniam has provided a report dated 17 February 2021 indicating that the claimant’s whole person impairment is 18% and diagnosing injuries to the cervical spine, lumbar spine and right shoulder. While he considered there to be pre-existing problems in the cervical and lumbar spine he said there were no previous problems in the right shoulder.
Dr Maniam has a history of the claimant being “stationary at a set of lights when there was a rear end collision”. This is clearly incorrect. Dr Maniam also has a report of the claimant proceeding to a local medical centre after exchanging particulars. This is also an incorrect history. These histories were put to her by Assessor Menogue and
Ms Karam said they were wrong.
While Dr Maniam diagnosed radiculopathy there was no reference to any of the five signs required by the Guidelines.
Medical legal reports
The insurer does not rely on any medico-legal reports in this matter. In the assessment before Assessor Menogue the insurer relied on medical literature in support of an argument not pursued in the review proceedings that the claimant sustained a non-minor injury to the discs in her spine.
Dr Tony Antoun, on 19 November 2018, provided a report to the claimant’s solicitor which in its second paragraph includes an incorrect definition or explanation of minor injury.
He has a list of injuries and disabilities which, relevantly include the following:
(a) pain and restriction of neck;
(b) pain and restriction with movement or right arm, and
(c) constant feelings of pins and needles in right arm.
Dr Antoun has a consistent history of the accident and records that Ms Karam was “thrown from side to side while trying to control the vehicle and trying to prevent hitting the children in the front yard”.
Dr Antoun notes the claimant felt stabbing pains from her neck into the left arm with pins and needles and headaches and that by the next day she had mid to low back pain radiating into the right leg and calf as well as right wrist and thumb pain.
Ms Karam reported current symptoms including neck pain and stiffness down into both shoulder blades, constant headaches with weakness and heaviness in the left hand, forearm, thumb and index finger.
She now reports increased shoulder ache and right wrist and thumb pain.
On examination he noted marked reduction in all movement of the neck, neck pain with movements of the shoulder and gentle compression to the left caused an increase in symptoms down the left arm. Gentle compression on the right caused symptoms in the right upper arm and hand.
He found (at page 8) that the claimant had a:
“Musculoligamentous strain with cervical radicular signs consistent with cervical radiculopathy, particularly in the left C6 nerve root on the left with noted sensational changes and weakness in the dermatome”
Dr Antoun thought there might be rotator cuff pathology and noted ongoing issues with her neck, shoulder, wrist and back.
Previous assessments
Assessor Shaikh, a psychiatrist did comment in his April 2019 reasons upon the claimant’s physical injuries saying at [10] that in the weeks after the car accident the claimant felt neck, back and left wrist pain. The Panel notes there is no mention of any injury or symptoms in the shoulders in this history. The Assessor also notes at [12] the claimant “continues to experience pain in her neck and her left wrist. She describes pain in her back, radiating to her legs”.
Assessor Berry also in April 2019 records at [11] that after the accident the claimant was aware of neck pain and back pain which has gradually worsened. Ms Karam said at [13] she has neck pain daily with pain down her right arm when she turns her head. Her back is the worst of her pains and she get pain down the left leg “to just below the knee” and she feels unstable. The Panel notes there is no history here of any shoulder injury or symptoms radiating into the shoulder.
On examination at [60] – [20] it is recorded that there was normal range of motion in the neck with midline (middle of the neck) tenderness from C4 – C6 but no muscle spasm, no muscle guarding and no evidence of dysmetria.
In the shoulders, Assessor Berry, using a goniometer says Ms Karam demonstrated “a full range of movement at the shoulders, elbows, wrists and hand” with all reflexes present, no sensory loss and no unilateral muscle wasting.
Assessor Berry diagnoses a soft tissue injury to the neck but did record at [24] that “when abducting or flexing the arms she experienced pain in the shoulder muscles extending up into the paraspinal muscles of the neck”. In terms of the shoulder he says that the claimant did not report an injury to the shoulders and had full movement therefore may have had a soft tissue injury or may have referred symptoms from the neck.
Re-examination findings
The assessment was conducted by Medical Assessor Assem on 18 October 2022 at the Commission’s rooms on level 8, 1 Oxford Street. Ms Karam attended the appointment unaccompanied.
Background
Ms Karam is now 65 years of age and is right hand dominant. She migrated from Lebanon in 1976 and was working as a cashier at the time of her accident.
Ms Karam denied any previous accidents, injuries or complaints involving her neck, shoulders or lower back. There were no other relevant medical or surgical conditions reported.
History of injury
Ms Karam was driving her 4WD vehicle with her uncle sitting in the front seat. She was wearing her seatbelt. As she was proceeding through a roundabout at Granville, a vehicle on her left failed to give way and collided into the rear left corner of her vehicle pushing it towards a brick fence. Airbags were not deployed. Her uncle did not sustain any physical injuries.
On impact, she says she was jerked forwards and backwards within the cabin of the vehicle. She did not experience any discomfort immediately after the accident. The ambulance and fire brigade attended the scene, apparently because of the damage to the brick fence, but she did not require medical attention. Her vehicle was towed away and later repaired.
Her cousin came and transported her home. The following morning, she began to develop pain involving her lower back prompting her to seek medical attention from
Dr Tommalieh. This was a pre-arranged appointment to review a bone density scan obtained before the accident due to pre-existing low back pain.
Onset of shoulder symptoms
Ms Karam had difficulty recollecting the onset of her right shoulder symptoms. She stated that there was slight discomfort after the accident that later became worse. She also reported that the pain in her neck was radiating to her right shoulder and arm.
The Panel notes that there was an initial reference in the GP’s notes to neck pain radiating to her right shoulder on 18 July 2018. There was no further reference to her right shoulder complaints and on 29 May 2019, Dr El Khoury documented, “lower neck pain, intermittent radiculopathy, spasms in lower neck, ROM (range of motion) in shoulder ok”.
Medical Assessor Assem brought to the claimant’s attention that there was no reference of any injury or complaints involving her right shoulder within the contemporaneous medical records or her personal injury claim form. In response,
Ms Karam referred to the report of Dr Maniam.
Medical Assessor Assem also brought to Ms Karam’s attention that her right shoulder complaints were not documented by Assessor Berry. The claimant said in response that her right shoulder symptoms worsened after this.
The Panel further notes that it was not until 18 September 2020 that Dr Ghannoum documented right shoulder pain which had been present for the past two weeks. There was tenderness and reduced range of shoulder movement. He arranged an ultrasound of her right shoulder on 2 October 2020 that showed rotator cuff tendinitis with subacromial bursitis and bicipital tenosynovitis. Dr Ghannoum completed a referral to Dr Maniam on 2 October 2020 to review her right shoulder pain that had, at that time, been present for four weeks.
Current status
Ms Karam believes that her condition has continued to worsen. She experiences discomfort that is worse when maintaining static postures for long periods. She
co-wrote discomfort as 8 to 9/10 on a visual analogue scale. Her neck symptoms radiate down both arms. There is intermittent swelling and “pins and needles” involving both hands worse on the right. She is now required to rely on her family to help her with activities of daily living. She takes Panadol Osteo or Panadeine when necessary.
Examination
Medical Assessor Assem reports that Ms Karam appeared well and in no apparent distress. She was cooperative during the examination. She was informed at the time of the examination, not to engage in any manoeuvre beyond what she could tolerate, or which may cause harm or injury.
Cervical spine (cervicothoracic) and head
Ms Karam had normal posture and there were no scars or deformities. There was tenderness on palpating the spinous process of the cervical vertebra and paravertebral muscles. There was no associated muscle guarding or spasm.
Cervical movements were symmetrically restricted to one half normal range in flexion, extension, lateral flexion and rotation. There was therefore no asymmetry of movement or spinal dysmetria.
Ms Karam’s upper limb reflexes were brisk and symmetrical as follows:
REFLEX LEFT RIGHT Triceps jerk Normal Normal Biceps jerk Normal Normal Brachioradialis Normal Normal
The circumference of her right upper arm and forearm was 0.5 cm less than the left. Strength of the left arm was globally reduced. Sensation was reduced over her right thumb and ulnar border of her right forearm. She reported global “pins and needles” in both her hands when testing the range of shoulder abduction but this did not correspond with a specific dermatomal pattern. Neural tension signs were negative.
Right shoulder
Ms Karam reported tenderness on palpation of both shoulders. There were no joint crepitations or instability.
Active range of motion was measured and reported as follows[12]:
[12] Where only one measurement is recorded, the claimant demonstrated that measurement consistently over three attempts. Where the claimant demonstrated variable range of motion the individual measurements are noted.
Shoulder Movements
Active ROM Measured
RIGHT (degrees)
Active ROM Measured
LEFT (degrees)
Flexion
90, 70, 50
90
Extension
20
20
Adduction
10, 0
10
Abduction
90, 70, 50
90, 80
Internal Rotation
50, 30
40
External Rotation
40
40
Medical Assessor Assem, brought to the claimant’s attention the apparent inconsistency in some of the movements of her right shoulder and that her shoulder movements of flexion (right), adduction (right), abduction (right and left) as well as internal rotation (right) appeared to be worsening on repeated testing. Ms Karam responded by saying that her symptoms are getting worse.
OPINION, DIAGNOSIS AND CAUSATION
Did the claimant injure her right shoulder in the accident?
The Panel is satisfied that there is contemporaneous medical evidence supporting a soft tissue injury to the cervical spine and lumbar spine.
The claim form does not mention an injury to the right shoulder and the allied health recovery request dated 6 September 2018 also does not mention the right shoulder but does mention symptoms of altered sensation in the left hand.
The Centrelink medical certificate in support of the claimant’s inability to work from
8 September to 7 December 2018 refers to neck pain radiating to the shoulders.
Dr Antoun has a history in November 2018 of neck pain with symptoms of stabbing pain from the neck into the left arm with pins and needles. He also records that turning to the left, looking up or twisting causes pain between the shoulder blades which limits the claimant’s range of motion. He did examine the claimant and found restriction of shoulder movement which he considered to be possible rotator cuff pathology or thoraco-scapular dysfunction which he recommended be investigated. Investigations did not take place until 2020. Dr Antoun’s report and examination findings along with the other clinical records is, in the clinical opinion of the Medical Assessors on the Panel more consistent with a cervicothoracic injury.
Of more significance to the Panel is the assessment by Medical Assessor Berry in
April 2019 and his examination findings of “a full range of movement at the shoulders”. The Panel also notes Medical Assessor Shaikh in July 2019 mentions physical injuries of neck and lower back but no injury to the shoulder.
While there was an initial reference of pain from cervical spine radiating to the claimant’s left arm and both shoulders, there are no specific right shoulder complaints documented until September 2020 (more than two years after the subject motor vehicle accident).
The delay in the claimant’s shoulder presentation was brought to attention and her response is noted and it appears to be Ms Karam’s explanation is that her condition is worsening.
It is the Medical Assessors’ clinical judgment that if the claimant did sustain a frank or distinct injury to her right shoulder, she would have made immediate and significant complaints which would be recorded in the medical records.
The Panel is not therefore satisfied that the claimant sustained a frank or distinct injury to her right or left shoulder in the accident and that the complete tear of the supraspinatus was not caused by the accident. Any shoulder complaints in the right or left shoulders are, in the Panel’s view relevant to the claimant’s cervico-thoracic spine injury.
Does the claimant have radiculopathy?
For the Panel to find the claimant has radiculopathy, in accordance with the Guidelines two of the following five signs must be present:
(a) loss or asymmetry of reflexes – Ms Karam’s reflexes were present and normal;
(b) positive sciatic nerve root tension signs – there were no neural tension signs on examination by Medical Assessor Assem;
(c) muscle atrophy and/or decreased limb circumference – while there was a decrease in circumference of 0.5cm in the right limb which is unusual for a right-handed person this does not, in the Panel’s view significant constitutes radiculopathy. It is the Medical Assessor’s view that the claimant’s decreased limb circumference is more likely to be disuse atrophy as a result of her right upper extremity complaints;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution – there was global weakness observed by Assessor Assem not anatomically localised to an appropriate nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution – Assessor Assem recorded reduced sensation over Ms Karam’s right thumb and the ulnar border of her right forearm. She reported global “pins and needles” in both hands not anatomically localised to an appropriate spinal nerve root distribution.
The Panel is not satisfied that the claimant exhibits two of the five signs of radiculopathy when the claimant was assessed by Assessor Assem.
Has the claimant had radiculopathy at any time since the assessment?
In the Panel’s view, the claimant’s treating GP suspected the presence of “radiculopathy” but did not document any neurological deficits or other findings that would enable the Panel to determine two of the five signs of radiculopathy.
Dr Antoun however examined the claimant on 19 November 2018 and noted positive root tension signs and sensory loss in the right C5/6 dermatome distribution that satisfy at that time the two of the diagnostic criteria for radiculopathy.
The insurer submits that Dr Antoun’s assessment should be given no weight because it was a medico-legal examination, that the claimant demonstrated extreme restriction of movement which was inconsistent with the earlier assessment by her GP and other later assessments such as Dr Berry.
The Panel notes that when examined by the Review Panel in August 2019 the claimant did not have radiculopathy but did have non-verifiable radicular complaints. When examined by Dr Maniam in February 2021 she had sensory deficiency which the insurer concedes is at least one sign of radiculopathy.
The Panel considers Dr Antoun’s report is of a comprehensive medical examination that complies with the requirements of cl 6.5 of the Guidelines. Dr Antoun is an experienced medical practitioner who has undertaken an examination and documented his findings including objective findings of nerve root tension signs and sensory loss. The Panel notes the insurer’s complaints about extreme restriction of motion and observes that range or restriction of motion is not a sign of radiculopathy.
The Panel has drawn the attention of the parties to the David decision and the insurer has not challenged the findings in that decision.
At [98] in David the Medical Review panel observed:
“Radiculopathy is an example where the symptoms fluctuate over time because the extent of the compression of the spinal nerve root may vary due to inflammation on the nerve root. Symptoms may subside if the inflammation reduces and return because the injured disc is exacerbated by innocuous activities.”
Clearly this panel is not bound by the decision of another panel however this Panel does agree with the reasoning of that Panel and therefore the correctness of that decision. A fractured leg at the time of accident that heals by the time of assessment is a non-minor injury. A post-traumatic stress disorder that has developed following an accident that is in remission at the time of assessment is a non-minor injury. If a motor accident causes a spinal nerve root injury resulting in radiculopathy (within the meaning of the Guidelines) at some time after the accident, that spinal nerve root injury is, in the Panel’s view, a non-minor injury.
The Panel is satisfied that, at the time of her examination by Dr Antoun in November 2018, the claimant had cervical radiculopathy.
Conclusion
The Panel’s finds that the claimant has sustained an injury to a nerve root resulting in cervical radiculopathy (within the meaning of cl 5.8 of the Guidelines) which is an injury which falls outside the definition of “minor injury” by operation of s 1.6 of the MAI Act and cl 4 of the MAI Regulation.
It therefore follows that the certificate of Assessor Menogue must be set aside, and a fresh certificate issued.
6 April 2021.
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