Karbajha v AAI Limited t/as GIO
[2024] NSWPICMP 93
•22 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Karbajha v AAI Limited t/as GIO [2024] NSWPICMP 93 |
| CLAIMANT: | Rabih Karbajha |
| INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Sophia Lahz |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 22 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor vehicle accident on 13 August 2019; review of determination of injuries as threshold and non-threshold; Held – Certificate by Medical Assessor (MA) Cameron certifying that five injuries, all soft-tissue, were threshold injuries; revocation of determination by MA Cameron that the lumbar spinal injury was a threshold injury, for the reason that the Panel certified that the annular disruption at L5/S1, a broad-disc bulge with a right paracentral component, and peripheral hyperintensity in the disc, is a non-threshold injury. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. Partially revokes the certificate of Medical Assessor Ian Cameron of 8 August 2023. 2. The Panel confirms that the injuries to the: · left arm; · cervical spine; · head, and · left and right shoulder, were all soft tissue injuries and therefore threshold injuries. 3. The Panel revokes the determination of Medical Assessor Cameron that the injury to the lumbar spine was a soft tissue injury and threshold injury and certifies instead that the injury to the lumbar spine caused an annular disruption at L5/S1 and was a non-threshold injury. |
STATEMENT OF REASONS
Introduction
Rabih Karbajha, who was born in 1988 in Lebanon, and who migrated to Australia in 2017, was involved in the subject accident on 13 August 2019.
The vehicle he was driving was hit from behind and pushed into the vehicle in front.
Mr Karbajha had multiple symptoms and was taken by ambulance to Liverpool Hospital where he was assessed and discharged.
A number of medical disputes about threshold injuries have arisen, and those disputes were referred to the Personal Injury Commission (Commission) for assessment.
The Commission referred the disputes to Medical Assessor Cameron and on 8 August 2023, he determined that Mr Karbahja has sustained the following injuries, caused by the motor accident:
- left arm – soft tissue injury;
- cervical spine – soft tissue injury;
- head – soft tissue injury;
- lumbar spine – soft tissue injury, and
- left and right shoulder – soft tissue injury,
and that each injury was a threshold injury for the purposes of the Act.
Mr Karbajha lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
The Review Panel
The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s determination.
The delegate of the President determined that there was a reasonable cause to suspect a material error in the assessment and the review of that determination has been referred to this Panel.
Reasons for determination of Medical Assessor Cameron
The following injuries were referred by the Commission to Medical Assessor Cameron:
· arm – traumatic injury to left arm;
· cervical spine – traumatic injury to neck;
· head – closed head injury;
· lumbar spine – traumatic injury to lower back, and
· shoulder – traumatic injury to both shoulders.
Medical Assessor Cameron took a history from Mr Karbajha.
He noted at [9] that, after the accident Mr Karbajha had multiple symptoms, was taken by ambulance to hospital, was assessed and discharged. Subsequently he saw his general practitioner Dr Kanawati who recorded that he had ongoing symptoms, particularly from his neck and left shoulder region, and lower back [10]. He returned to part time work after 4-5 months, but by mid – 2022 could not continue. He said that he has not been able to resume driving.
Medical Assessor Cameron noted at [12], that the claimant’s current symptoms at the time of the examination were;
· that he had pain from his neck, left trapezial region, low back pain and pain in the left lower leg with numbness below the knee;
· was not working, and
· he felt that he was deteriorating.
Clinical examination
In his section of the Determination ‘General Presentation’ at [14], Medical Assessor Cameron noted that in the cervical spine there was moderately and symmetrically reduced range of motion with no muscle spasm, guarding, dysmetria or non-verifiable radicular complaints present.
At the thoracic spine, there was moderately and symmetrically reduced range of motion without muscle spasm, guarding, dysmetria or non-verifiable radicular complaints present.
At the lumbar spine, there was markedly and symmetrically reduced range of motion (to 50% normal) without muscle spasm, guarding, dysmetria or non-verifiable radicular complaints present.
In ‘Review of Documentation’ at [16], Medical Assessor Cameron refers to MRI investigations of the cervical and lumbar spine on 31 March 2020 and various other documents.
Summary of diagnostic imaging relevant to dispute
There were multiple imaging studies to review [17]:
· cervical and lumbar spine dated 31 March 2020 – No significant abnormality.
Medical Assessor Cameron concluded that the injuries referred were all soft tissue injuries and threshold injuries, caused by the accident.
Claimant's submissions of 29 August 2023
The claimant’s solicitor provided submissions, which the Panel briefly summarises by reference to paragraph number:
[1.7] The claimant submits the assessment of the assessor contains various material errors which if determined in accordance with the Motor Accident Guidelines, Version 9 .1 ('the Guidelines’) it would have resulted in a determination that the Claimant's injuries, caused by the subject accident, fall outside the definition of a 'minor injury' pursuant to sec. 1.6 of the Act. However, for there to be a material error, it is not required for the error to alter the outcome of the impairment dispute (Meeuwissen v Boden (2010) 78 NSWLR 143). Rather, it is sufficient for there to be an error in assessment itself that is not, "trivial, insignificant or immaterial" at [25].
[2.1] The claimant submits that the Medical Assessor, in his Certificate, had made the following material errors in the process of conducting his medical assessment. These material errors were as follows:
·assessment of cervical spine and failure to consider relevant evidence included in the claimant's application, and
·assessment of lumbar spine and failing to bring any perceived inconsistencies to the claimant's attention in the course of the medical assessment so as to afford the claimant an opportunity to explain the inconsistencies.
[3.3] Relevantly, there appears to be no mention of the MRI scan performed by
Dr Taha (16 September 2022) in the Medical Assessor's Certificate despite stating "I have considered the additional documents". The claimant submits that the failure to consider the above MRI scan is critical in determining the nature of the injury to his cervical spine (i.e. whether it is a non-minor injury for the purposes of the Act).[4.4] The claimant therefore submits the opinion of Dr Maniam (who is the claimant's treating orthopaedic surgeon) should be given greater consideration compared to the perspective of the Assessor, who suggests "that is an incidental finding that is common in asymptomatic people". By applying the reasoning of the assessor, the claimant notes that such finding could be applicable to every individual, and it sheds light on the inherent risk of unfair prejudice based on a one-size-fits-all interpretation.
[4.6] The claimant submits the opinion and/or assertion provided by the assessor seems to lean more towards an expert opinion/assertion of a biomechanical expert rather than a medical expert. The assessor posits the belief that the nature of the motor vehicle accident in which the claimant was involved in is not likely to cause significant injury to the lumbar spine.
[4.7] The claimant also submits the assessor is not a biomechanical expert to comment on the motor vehicle accident and thus the above opinion/assertion made by him is, in essence, a conjecture or subjective viewpoint that lacks the credentials to be deemed an integral component of a bona fide medical assessment. The opinion of the assessor lacks a solid medical foundation, rendering it susceptible to unjust prejudice and it holds no credible merit in this context.
[4.8] Relevantly, the claimant notes that he was stationary behind two cars at a traffic light when another vehicle forcefully and without warning collided with the rear of his car. This impact propelled the claimant's vehicle into the car ahead, leading to a situation where it took approximately an hour for firefighters to extricate the Claimant from his vehicle. The claimant also notes the report of NSW Ambulance (18/09/2019) which states " ... PT SELF EXTRICATED FROM VEHICLE ONTO STRECTHER ... ".
[4.9] The claimant submits that there is nothing in the Certificate that shows where the Assessor adequately questioned or requested him to clarify between the abovementioned statements. The assessor, at the time of the assessment, had before him the claimant's application for personal injury benefits ('the Claim Form') (A2) and the report of NSW Ambulance (A8) . Further, the claimant also submits that the failure to put forward any perceived inconsistencies to the Claimant's attention is critical in determining the nature of the injury to his lumbar spine (i.e. whether it is a non-minor injury for the purposes of the Act)
[4.10] There is no indication as to whether there was a sound of tyres screeching (prior to the impact) and therefore, it can be assumed the vehicle at fault collided with the claimant's vehicle at full speed (70kmph) with no warning.
[5 .1] In light of the above although the Medical Assessor is not required to cite every document, he must explain his method of reasoning so the parties can understand how he addressed the evidence. He was entitled to make findings within his clinical judgment, provided those findings were supported by adequate reasons.
[5.2] The claimant submits that the Medical Assessor has failed to consider relevant evidence included in his application (namely the MRI cervical of Dr Taha 16/09/2022).
[5.3] The claimant submits that the assessor has failed to provide procedural fairness in failing to properly put to the claimant's attention the above inconsistencies (namely the history of the subject accident as mentioned in the Claim Form and report of NSW Ambulance).
[5.4] The claimant submits that the Medical Assessor has failed to comply with the Guidelines when assessing the nature of the claimant's physical injuries (namely the cervical and lumbar spine).
Insurer’s submissions in Reply of 15 September 2023
The insurer provided Reply submissions on 15 September 2023, which are summarised by the Panel by reference to paragraph number:
[7] Medical Assessor Cameron noted that he has considered the additional documents, which includes the MRI. There is no obligation on the Medical Assessor to list those documents.
[19] The claimant alleges that the assessor failed to consider the subsequent MRI of the cervical spine which supposedly showed an annular tear at the C5-C6 level. The insurer submits that this is incorrect as the Medical Assessor has clearly noted that he has considered all additional documents.
[20] In any event, the assessor also considered the previous MRI and treating report of Dr Maniam which clearly showed only degenerative changes in the cervical spine. The insurer submits that Medical Assessor Cameron correctly assessed the soft tissue injury to the cervical spine as being a threshold injury.
[21] In relation to the lumbar spine, it is the insurer’s submission that the claimant has indicated nothing more than mere complaints in relation Medical Assessor Cameron’s assessment. There is no demonstrable and valid material error proffered in the claimant’s submissions.
[22] Contrary to his submissions, there is no requirement for the assessor to ‘give greater consideration’ to Dr Maniam’s findings that the annular tear at the L5-S1 level was causally related to the accident. It was within his role as the independent Assessor that Medical Assessor Cameron was required to consider all available evidence to come to his conclusions.
[23] In relation to the allegation that the assessor was inappropriately commenting on the mechanics of the accident circumstances, the insurer submits that there is no basis to this allegation. It is submitted that an inherent requirement of the role of the Assessor includes commenting on the issue of causation of injuries which inevitably includes considering the circumstances of the accident.
[26] A copy of the ambulance report was available to Medical Assessor Cameron. The narrative noted a rear-end collision at low speed and with very minimal damage. This supports the Medical Assessor’s conclusion that the “type of motor vehicle crash in which Mr Karbajha was injured is not likely to cause a significant injury to the lumbar spine.”
[27] Therefore, there is no basis to the claimant’s complaint that the assessor should have brought his attention to the inconsistencies regarding the circumstances of the accident. Even if the assessor did this, the insurer raises the query whether this would have made any difference to the Medical Assessor’s conclusions noting the nature of the medical dispute.
[28] The insurer submits that a threshold injury dispute must include an assessment of the relevant medical evidence (particularly imaging) and consider the circumstances of the accident to determine whether this is consistent with the nature of the injuries allegedly sustained by the claimant.
[29] As required in his independent role as the assessor of a threshold injury dispute, Medical Assessor Cameron correctly based his findings on a combination of an assessment of the claimant, review of the medical evidence (including imaging), and consideration of the circumstances of the accident which is a rear end collision at low speed and with minimal damage to the rear of the claimant’s vehicle. The insurer submits that this is entirely consistent with the Medical Assessor’s findings of soft tissue injuries which are threshold injuries.
LEGISLATIVE FRAMEWORK
Causation
Guidelines
With respect to causation, the Motor Accident Injuries Guidelines (the Guidelines) provide:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.' This, therefore, involves a medical decision and a nonmedical informed judgement.
6.7 There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
Legislation on causation
Section 5D of the Civil Liability Act 2002 (CLA) provides:
“(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Case law on causation
The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd [2015] NSWSC 558, where Hidden J notes:
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
Hidden J refers to the High Court’s judgement in Wallace v Kam [2013] HCA 19, where the Bench unanimously explained the test of causation under s 5D(1)(a) of the CLA, at [16]:
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”
The ‘but-for’ test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
In Briggs (No. 2), Wright J set out some fundamental principles of how Medical Assessors are required to approach the question of causation in accordance with the guidelines (in the context of errors made by the second review panel). His Honour said, at [75] – [77]:
“This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for “all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain”, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made “a non-medical informed judgement” as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
Threshold injury
Section 1.6(2) of the Motor Accident Injuries Act 2017 (MAI Act) provides:
“(2) A ‘soft tissue injury’ is (subject to this section) an 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 4(1) of the MAI Regulation provides:
“4 Meaning of ‘threshold injury’, section 1.6(4) of the Act
(1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.”
The Review Panel
The Panel first met on 5 December 2023 and Directions were issued to the parties.
At this meeting the Panel determined that the examination would be undertaken by Medical Assessor Oates.
A further preliminary conference was held on 12 February 2024.
Review of the evidence
In order to ensure the Panel had all the relevant documentation, the Panel directed the parties to provide bundles;
· the insurer lodged a bundle of documents dated on 15 November 2023 with
21 pages, and the claimant lodged a bundle of documents on 3 November 2023 with 197 pages.The Panel briefly summarises the medical evidence that was available to the Panel prior to the re-examination by Medical Assessor Oates.
The Panel notes that the Ambulance Electronic Medical Record of 13 August 2019 under the heading ‘Case Description’ makes no reference to an injury to the lumbar spine and
Mr Karbajhar is noted as stating that the rear impact was at low speed.The claimant saw a general practitioner, Dr Karthigesu, on 16 August 2019, i.e. three days after the accident. The history was taken of Mr Karbajhar complaining of pain in his neck, upon examination he was tender over his cervical paraspinal muscles, there was no reference to complaints of lumbar spinal pain.
X-Ray 20 September [BG1] 2019, reported by Dr Farhana Younis
After reviewing diagnostic imaging, Dr Younis reported:
“X Ray Lumbar spine
Straightening of lumbar curvature is seen likely due to muscular spasm… Mild degenerative changes at L5/S1 level showing reduced disc height and end plate sclerosis”.The general practitioner Dr Kanawati who saw the claimant on 16 March 2020, took a history to the neck and lumbar spine.
Dr Kanawati, general practitioner, referred the claimant for a CT scan of the lumbar spine, which was reported by Dr Kandum on 26 September 2019 showing:
“1. Bilateral L5 pars bony defect without any anterior spondylolisthesis of L5 over S1. There is normal spine alignment. No compression injury identified.
2. Mild posterior disc bulges at L3/4 and L4/5 disc levels without significant canal stenosis
3. Mild narrowing for the neural exit foramina at L5/S1”
MRI of the lumbar spine, reported by Dr Mayat on 31 March 2020
After reviewing diagnostic imaging, Dr Mayat reported: “L5- S1 demonstrates a broad- based disc bulge with a right paracentral component. Peripheral hyperintensity in the disc identified consistent with an annular tear…”
On 6 April 2020, Dr Kanawati referred the claimant to an MRI of the lumbar spine.
Dr Vijay Maniam reported on 26 May 2021 that he had seen Mr Karbajhar on
13 August 2019, and then on four occasions in the first half of 2020.He noted the history and noted that the injuries sustained were to his cervical and lumbar spine.
At the initial consultation, Mr Karbajhar complained of moderate pain in his cervical spine radiating into his left shoulder and ongoing pain in his lumbar spine of moderate intensity.
On 24 May 2021, Mr Karbajhar reported minimal lumbar spine pain.
Dr Maniam referred him to an MRI of the lumbar spine which showed at L5/ S1 a broad-based disc bulge with a right paracentral component.
Dr Maniam commented that:
“From the foregoing it was deduced that Rabih Karbajha suffered the following injuries:
· Musculo- ligamentous strain of the lumbar spine with an aggravation of underlying degenerative disease and a right paracentral bulge at L5/S1 without any neurological encroachments”
The ED Discharge Referral refers to the impression of neck pain but makes no reference of the lumbar spine.
In further reports on the papers of Dr Maniam, dated 15 July 2022, he explains that an annular fissure or tear is a deficiency of one or more layers of the annulus fibrosis which consists of laminae or concentric layers of collagen fibres.
Dr Maniam explains the anatomy of the annulus and that the vertically oriented fibres in the posterolateral aspects are most prone to injury. He discusses the function of the annulus fibrosis and the causes of annular tears through trauma or degeneration. He concludes that “In the case of Mr Karbajha, given that he was 33 years of age, and with no history of pre- existing symptoms, it is likely that the annular tear was caused by the trauma as described by the patient”.
Treatment dispute: determination of Medical Assessor Home
The Panel notes that Medical Assessor Home assessed a treatment dispute. Whilst the Panel notes the findings and opinions of Medical Assessor Home and specifically his findings on the MRI of the lumbar spine dated 31 March 2020, would not change the management of this [BG2] Mr Karbajha’s injuries. The Panel notes that the answer to this question provided by Medical Assessor Home is not binding on the Panel which is assessing whether or not Medical Assessor Ian Cameron was correct in his determination that the claimant’s injuries to the lumbar spine was a threshold injury.
Medical examination by the Review Panel
Details of who attended the assessment
Mr Karbajha attended the Panel re-examination by Medical Assessor Oates at the Commission medical suites on 2 February 2024.
An official interpreter was present for the duration of the assessment.
HISTORY
Pre-accident medical history and relevant personal details
Mr Karbajha said that since coming to Australia from Lebanon in 2017, he had worked as a spray painter, painting wooden furniture in a spray booth. In Lebanon he worked as a marble polisher.
He had had no injuries in the past and was very sporty, doing soccer and body building, which he called “Physique”, which involved using light weights but high repetitions.
He has had no operations, no serious illnesses and was on no regular medications.
He was married but separated one year ago. He has sons aged six and three.
He is a non-smoker and does not drink alcohol.
History of the motor accident
Mr Karbajha said on 13 August 2019, he was the driver of a Nissan Pulsar sedan with no passenger. It was 4.00pm and he was on his way home from work. He had a seatbelt on. He was stationary behind two cars at traffic lights when he was hit from the rear and shunted into the car in front.
Airbags did not deploy. His forehead hit the steering wheel, but he was not knocked out, but felt dizzy and could not hear. He felt numb all over, with a burning sensation in his neck and lower back immediately after the accident.
The police and ambulance attended. He said his door was locked and he was not able to open it, and the ambulance officers prised open the door. He says they supported him to carry him from his seat onto a stretcher, as he was unable to move and was very confused.
He was taken by ambulance to Liverpool Hospital and stayed until late on the night of the accident and had X-rays but there were no fractures.
History of symptoms and treatment following the motor accident
After a few days, he still had pain in the neck with stiffness and pain radiating to the left upper arm, as well as pain in the lower back, and numbness down the left arm to the ulnar two fingers of the hand. The back pain was localised to the back and did not radiate. He doesn’t recall any other problems at the time.
He saw his general practitioner, Dr Kanawati, a few days after the accident. He was treated with Nurofen or Ibuprofen and Panadeine Forte, and had physiotherapy to the neck, back and left shoulder two or three times a week.
He had X-rays and CT scans of the neck, back in September 2019. He later had ultrasound of the left shoulder.
He was referred to Dr Vijay Maniam, orthopaedic surgeon, who sent him for investigations consisting of MRI scan of cervical spine, lumbar spine and left shoulder. There was a treatment dispute raised with the Commission regarding the MRI scans being performed. The cervical and left shoulder scans were found to be reasonable and necessary, but not the lumbar scan by Medical Assessor Home. The lumbar MRI showed an annular tear at L5/S1. He then had MRI scan of bilateral shoulder girdles. Dr Maniam suggested conservative treatment initially and if there was no progress, possible lumbar spinal fusion.
He tried to return to work after two months but could not carry any heavy weights and could not hold a spray can in his dominant left hand, so he stopped work again the same day. He tried again subsequently, and the employer gave him a different job in the office, but he was unable to concentrate and was making mistakes in doing calculations, as he couldn’t sit too long because of discomfort. He was terminated four or five months after the motor vehicle accident and has not done any other work since then.
His wife was covering the family’s expenses, but this caused strain on their relationship and they have now separated, though still living under the same roof. Nowadays, he does small touch-up jobs involving French polishing, but he is not on any form of income support.
He lives in their large family home with his wife and two boys for the sake of the children, but separately from his wife.
He went to Lebanon for a visit in September 2022 and when he arrived, he was in severe pain after the long flight. He had an MRI scan of the cervical spine on 16 September 2022 showing a C5/6 annular tear. He also had an MRI scan lumbar spine but was told it would not be accepted in Australia. Whilst there, he had physiotherapy to the back, neck, and left shoulder.
Details of any relevant injuries or conditions sustained since the motor accident
He has had no further injury or relevant condition develop.
Current symptoms
He has a lot of pain and needs regular analgesics to be able to move about. The pain is in the neck, radiating to the left shoulder, with numbness in the left arm now and then. He has central low back pain which, in the last 12 months, has also radiated to the left thigh as far as the knee. He notices that all of the left leg, from the buttock to the toes, goes numb intermittently which comes on with prolonged sitting.
He went to Lebanon briefly in 2023 when his mother was ill. He doesn’t recall having further treatment at that time.
Current and proposed treatment
He has Panadeine Forte 2-3 tablets per day if his usual medication of Advil, taken 2-3 tablets per day, does not work. He has Nexium for gastric side-effects from analgesia. He is also taking anti-depressants.
He remains under the care of Dr Kanawati and is seeing no other doctor now.
EXAMINATION
General presentation
He appeared in low back discomfort whilst seated.
He had a body builder’s body with exceptionally prominent and hard upper trapezii muscles, particularly on the left side, which he was not able to voluntarily relax.
He was of muscular build with height 172cm and weight 85.1kg. He had a pained expression on his face throughout the examination.
Mr Karbajha gave a clear, concise history and there was no evidence of impairment of cognition.
Cervical spine (cervicothoracic)
There was no guarding. There was tenderness at C7 centrally. There were non-verifiable radicular complaints in a C8 distribution. There was tightness and bulging of the left upper trapezius and to a lesser extent the right upper trapezius.
Flexion was one-half normal, extension two-thirds normal, lateral flexion to the right one-half and to the left two-thirds. Rotation two-thirds of normal bilaterally.
Reflexes were all of low amplitude but were symmetrical. Power and sensation in the upper limbs were normal.
Upper arm girth: right equals left equals 39cm at 10cm above the elbow. Forearm girth: right equals left equals 31cm at 5cm below the elbow.
Lumbar spine (lumbosacral)
There was no guarding or muscle spasm. There was tenderness at L5/S1 centrally. There were no non-verifiable radicular complaints following a specific spinal nerve root distribution.
Flexion and extension were both two-thirds of normal. Lateral flexion was two-thirds of normal bilaterally.
At the thoracic spine, rotation was three-quarters of normal bilaterally.
All lower limb reflexes were present but of low amplitude. Plantar responses were both flexor. Sensation was said to be reduced in a wide area over the lateral left foot and lateral three toes, but not proximal to this. This does not follow a dermatomal distribution. Power: right equals left.
Straight leg raising caused complaint of low back pain on the left at 70° but was negative on the right. Thigh girth; right 47cm, left 46.5cm at 10cm above superior patellar pole. Leg girth: right equals left equals 37cm measured at 13cm below the inferior patellar pole, at maximal circumference.
Upper extremities
Active range of movement measured with a goniometer.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 170° | 90°,90°80° with complaint of neck pain and left shoulder pain |
| Extension | 50° | 20°,20°,20° with complaint of neck pain to left shoulder |
| Adduction | 40° | 30°,30°,30° |
| Abduction | 170° | 60°,60°,70° with complaint of neck and left trapezial pain |
| Internal Rotation | 90° | 80°,70°,80° conducted with left arm abducted to 60° which was the maximum possible |
| External Rotation | 90° | 30°,20°,30° with complaint of neck and left trapezial pain conducted with the arm abducted to 60° which was the maximum possible |
Consistency of presentation
There was marked restriction of active movement of the left shoulder, which was said to be due to severe pain radiating from the neck to the shoulder at times, and on some movements separate neck and left shoulder pain.
The extent of limitation of active movement is not concordant with the lack of significant pathology found on imaging of the left shoulder.
DETERMINATIONS BY THE PANEL
Diagnosis, causation and reasons
The diagnosis was a soft tissue injury to the head. Head injury is mentioned on the Claim Form. CT scan of the brain was normal, and Glasgow Coma Scale (GCS) was 15.
There was reference to a brief period of post-traumatic amnesia but there were insufficient criteria to diagnose a traumatic brain injury because there were no medically verified abnormalities of either GCS or post-traumatic amnesia (PTA) in Mr Karbajha.
The accident was a cause of soft tissue injury to the head.
There was a soft tissue injury to cervical spine. This injury is mentioned in the Claim Form and referred to in the ambulance and hospital records, in the general practitioner record of
16 August 2019, and in physiotherapy records.An MRI scan of 31 March 2020 showed degenerative changes at the cervical spine.
The accident was a cause of cervical spine soft tissue injury.
There was also a lumbar spine soft tissue injury, and this injury was caused by the accident. Evidence supporting this conclusion is the early reference to it in the Claim Form dated
28 August 2019 and the physiotherapy record of 13 January 2020. X-rays and CT scan of the lumbar spine were conducted on 26 September 2019.The Panel also takes into consideration the opinion of the treating orthopaedic surgeon
Dr Maniam as to causation.As the treating orthopaedic surgeon, Dr Maniam had the responsibility of recommendations for treatment, the direct involvement in the welfare of his patient. The Panel therefore considers that it is likely that Dr Maniam would only have arrived at that conclusion after considered judgement. The Panel also refers to the reasons on causation set out in paragraphs [115] and [118] below.
An MRI scan of 31 March 2020 showed an annular tear at L5/S1. This investigation was not commissioned until his general practitioner referred him to a specialist Dr Maniam, whom he consulted on or about 28 March 2020, after prior treatment with a series of physiotherapists had not resolved his injuries.
The Panel notes that an MRI scan performed in Lebanon refers to an annular tear of the C5/6 disc.
MRI scan performed in Australia showed a broad-based C5/6 disc bulge with disc osteophyte encroachment on the left exit foramen which are degenerative changes. There was no reference to annular disruption.
There were right and left shoulder soft tissue injuries, which were caused by the accident. Both shoulders are referred to in the Claim Form, and imaging of the left shoulder was eventually obtained after the accident. There was some delay because a treatment dispute had to be resolved first.
MRI of the shoulder girdles was conducted on 27 July 2021 because of a wasted appearance of both trapezii and deltoid muscles and potential upper nerve entrapment. The scan showed multifocal areas of upper limb girdle fatty infiltration in keeping with an underlying muscular dystrophy. There was no evident neural compression.
Traumatic injury to the left arm was also referred. There is no contemporaneous medical evidence to support an injury to this part. There is a verbal report from the claimant of symptoms in the ulnar border of the left forearm to the ulnar two fingers of the left hand, however this is not mentioned in the ambulance or hospital record, general practitioner record or treating specialist’s records from Dr Maniam.
The elbow had not been investigated and a nerve conduction study had not been done, hence no diagnosis has been made for this injury.
The symptoms can arise from a C8 nerve root irritation from the cervical spine, however the MRI scans of the cervical spine on 31 March 2020 and 16 September 2022 did not indicate any left sided C8 nerve root irritation or compression.
Therefore, the Panel considered that the accident was a cause of soft tissue injury to cervical spine, lumbar spine, and head, but not a cause of traumatic injury to the left arm because of lack of contemporaneous evidence from multiple sources. The Panel prefers documented evidence over the verbal account of the claimant.
Determination – threshold injury
The cervical spine soft tissue injury is a threshold injury. The MRI scan performed on
31 March 2020 did show degenerative changes only and no evidence of annular disruption. There was no clinical evidence of radiculopathy.There was in fact an annular tear at C5-6. This was noted in the MRI performed by Dr Omar Ahmad Sheikh Taha dated 16 September 2022.
The Panel notes that Dr Taha stated that:
“At C5-C6: disc bulging, dehydration, broad based central, right and left posterolateral disco- osteophytic protrusions showing small central T2- high signal denoting annular tear indenting the thecal sac and mildly to moderately narrowing the neural foramina.”
This document was admitted as a late document and the insurer referred to it in paragraph 19 of its submissions.
The Panel notes that it should not be accepting or commenting on imaging performed by medical practitioners who are not registered to practice in Australia. There is no assurance as to their training standards or expertise. Additionally, in a threshold dispute, the Medical Assessors should not make a determination without seeing the actual images to check for degenerative findings, local oedema etc.
It is not necessary for the Panel to reach any view as to the correctness of the radiography, as the Panel has reached its conclusion as to whether a threshold Injury occurred on the basis of its opinion with respect to the lumbar spine.
The soft tissue injury to the head is a threshold injury. There was no evidence of traumatic brain injury.
The lumbar spine soft tissue injury is a non-threshold injury. Symptoms were said to be present from immediately after the accident indicating an acute injury and that the finding of annular fissure at L5/S1 is more likely to be a post-traumatic finding, rather than a degenerative finding, particularly in a person of the claimant’s age.
Medical Assessor Home rejected the MRI of the lumbar spine on the basis of no radicular symptoms or signs, which is the first limb of determining a threshold dispute. The second limb is to determine if partial or complete rupture of fibrocartilage (annulus fibrosus) is present. The motor vehicle accident was high energy and with persistent back pain, suggesting an MRI was needed to check for non-radicular disc lesions. Medical Assessor Home dealing with the treatment dispute, did not find the 2020 lumbar spine MRI reasonable and necessary, and given that the investigation was carried out in any event on 31 March 2020, the Panel has the results and has been able to form a view partially informed by those results.
The MRI scan of 31 March 2020 did show some degenerative changes at the L5/S1 disc in terms of a broad-based disc bulge but there was a right paracentral component and peripheral hyperintensity in the disc consistent with an annular “tear”, along with minor disc osteophyte encroachment on right exit foramen, but patent left exit foramen and bilateral facet joint arthropathy. In the clinical experience of Medical Assessors Oates and Lahz, this disc appearance of a focal protrusion, rather than a uniformly smooth circumferential disc bulge, is more likely to have arisen from a traumatic event, rather than result from everyday “wear and tear”.
The MRI findings do not of themselves indicate whether the annular tear is a new post-traumatic finding or alternatively an existing finding, although the presence of degenerative changes is suggestive that it may have been present prior to the accident. However, the history was given and there was no evidence to the contrary, that the lumbar spine was asymptomatic up until the time of the accident.
Hence on that basis, the annular disruption is considered to make the lumbar spine injury a non-threshold injury. The right and left shoulders are threshold injuries. They are soft tissue injuries and there was no imaging evidence of partial or complete tear of tendon, ligament, meniscus, or cartilage.
Additionally, in the case of the cervical spine and lumbar spine, there was no clinical evidence of more than two criteria present to justify a diagnosis of radiculopathy.
The Panel agrees that the injuries to the:
· left arm;
· cervical spine;
· head, and
· left and right shoulder,
were all soft tissue injuries and therefore threshold injuries.
The Panel revokes the determination of Medical Assessor Cameron that the injury to the lumbar spine was a soft tissue injury and threshold injury, and certifies instead that the injury to the lumbar spine caused an annular disruption at L5/S1 and was a non-threshold injury.
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