Khan v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 328
•16 August 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Khan v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 328 |
| CLAIMANT: | Shagufta Amir Khan |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel: | Principal Member John Harris Medical Assessor Alan Home Medical Assessor Thomas Rosenthal |
| DATE OF DECISION: | 16 August 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 20 September 2019 as a pedestrian hit by a vehicle; the issue was whether the claimant sustained a non-minor injury; specifically whether various annular tears and shoulder pathology was caused by the motor accident; |
| DETERMINATIONS MADE: | Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 20 December 2021. |
REASONS
BACKGROUND
Ms Shagufta Amir Khan (the claimant) suffered injury in a motor accident on 20 September 2019 when she was hit by a motor vehicle whilst crossing a pedestrian crossing.
The insurer insured the owner and driver of the motor vehicle for liability to pay to Ms Khan any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue is whether Ms Khan’s injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Oates who issued a Medical Assessment Certificate dated 20 December 2021. Medical Assessor Oates concluded that Ms Khan sustained injuries to the lumbar and cervical spines which are a minor injury for the purposes of the MAI Act.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[2]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[3]
[2] Sections 3.11 and 3.28 of the MAI Act.
[3] Section 4.4 of the MAI Act.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by Ms Khan within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
On 28 March 2022, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Claimant’s bundle, page 8 and s 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The review provisions provide[6] that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a medical assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
The Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered.
The Panel issued a further Direction directing Ms Khan to produce all scans when she was examined by the Medical Assessors.
We confirm that both Medical Assessors on the Panel viewed the original scans. Their joint report is contained later in these Reasons.
On 11 May 2022 the Panel advised the parties that it may assess the left hip as part of the determination of the minor injury dispute and sought further submissions on that course. The parties did not respond to this direction.
STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the 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.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the MAI Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
Clause 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential. “
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[10]
[10] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act[11].
[11] See s 3B(2) of the Civil Liability Act, 2002.
ASSESSMENT UNDER REVIEW
Medical Assessor Oates found that Ms Khan suffered soft tissue injuries to the cervical spine, lumbar spine and left hip. The Medical Assessor also found that there was no right shoulder injury, but right shoulder symptoms referred from the cervical spine.
The Medical Assessor made the following diagnosis of injuries suffered in the motor accident.
“The neck injury is a minor injury. There was no evidence of cervical radiculopathy and the annular tears at C4/5 and C5/6 demonstrated on MRI scan are a component of the degenerative changes in these discs. They do not have the appearance of being post-traumatic lesions when the images are viewed.
The back (lumbar spine) injury is a minor injury because there is no evidence of lumbar radiculopathy on clinical examination and there were degenerative changes in all lumbar discs with posterior annular tear components in degenerative broad-based disc bulges at the L4/5 and L5/S1 discs. On viewing the imaging, the appearance of the multi-level annular tears was not that of a post-traumatic lesion.
As mentioned above, the right hip injury was not caused.
A left hip injury was caused, and this is a minor injury because imaging did not show any evidence of a complete or partial rupture of tendon, ligament, menisci or cartilage.
A direct right shoulder injury was found not to be caused by the accident, because direct impact at the time of the accident was sustained at the left shoulder.
However, the evidence indicates that neck symptoms were referred to the right shoulder area.”
SUBMISSIONS
Claimant’s submissions dated 20 August 2020[12]
[12] Claimant’s bundle, page 20.
The claimant submitted that she “mainly focuses on the assessment of her back injury” and referred to the MRI scan dated 11 December 2019 which did not report annular tears at L4/5 and L5/S1. A further scan dated 1 June 2020 reported similar findings. The claimant had not been involved in any subsequent event between the date of the motor accident and the second scan.
Dr Hu’s interpretation of the MRI scan dated 11 December 2019 “was incorrect” and “it would not be considered unusual for a radiologist to oversee such diagnostics”.[13]
[13] Claimant’s bundle, page 21.
The claimant submitted that she sustained annular tears at L4/5 and L5/S1 in the motor accident and this was consistent with the reported symptoms and absence of previous back pain. It submitted that “an annular tear is evident of a trauma related injury”.
Claimant’s submissions dated 2 February 2022[14]
[14] Claimant’s bundle, page 6.
These submissions were directed to persuading the President’s delegate of error by the Medical Assessor and are not particularly relevant to our task because this is new assessment.
The claimant submitted that the Medical Assessor erroneously determined that the lumbar and cervical spine injuries and annular tears were aggravations of pre-existing symptomatic conditions.
The clamant noted the history recorded by Dr Kaur in August 2016 of right sided low back pain and right leg pain and that there is no further history of symptomatic lumbar spine complaints. She submitted that the pre accident medical records do not record symptomatic lumbar complaints in the years before the motor accident and the Medical Assessor has otherwise not adequately explained why the annular tears are not accident related.
The Medical Assessor did not have proper regard to the pre and post-accident medical history in determining that there was an aggravation of a pre-existing condition. There is a reference in the clinical notes in 2006 to neck pain and no further history prior to the motor accident.
The scan evidence of the cervical spine shows annular tears at C4/5 and C5/6. The original investigations were not viewed by the Medical Assessor. Any observation that the annular tears were degenerative rather than traumatic is erroneous because the Medical Assessor did not view the imaging.
An annular tear falls outside the definition of a minor injury.
Insurer’s submissions dated 23 September 2020[15]
[15] Insurer’s bundle, page 8.
The insurer referred to the contemporaneous medical evidence and disputed that Ms Khan sustained a non-minor injury.
The insurer noted a prior history of right shoulder pain in 2015 which showed evidence of supraspinatus tendinosis and the 2017 left shoulder ultrasound which showed bursitis. There was an absence of right shoulder injury recorded at hospital or during examination with the general practitioner. The December 2019 right shoulder ultrasound showed no tear, and a full thickness tear of the mid/posterior fibres was not shown until nine months after the motor accident.
The insurer submitted that the medical evidence does not show two or more clinical signs of radiculopathy within the meaning of cl 5.8 of the Guidelines.
Insurer’s submissions undated[16]
[16] Insurer’s bundle, page 168.
These submissions were filed opposing the application proceeding to a Review Panel.
The insurer submitted that there was no material error and that the Medical Assessor had taken a detailed history and made appropriate findings of fact.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents in accordance with the initial Direction.
Pre-accident medical records
Clinical notes of the general practitioner commence in 2004.[17] The insurer referred to the following pre-accident notes:
- 6 July 2006 – pain in thoracic and cervical back with intermittent hand weakness;
- 10 July 2006 – right shoulder pain;
- 30 September 2015 – right shoulder pain on abduction – referred for scans;
- 6 October 2015 – reference to supraspinatus tendinosis;
- 16 August 2016 – sore right knee and need for lumbar spine CT scan;
- 13 October 2016 – low back pain, and
- 23 October 2017 – pain in left shoulder with abduction.
[17] Insurer’s bundle, page 51.
The claimant noted the absence of recorded complaint to the relevant body parts in the attendances on other occasions.
Motor accident
Ms Khan completed a claim form dated 27 October 219 which described the motor accident when a car turned right striking the claimant and causing her to fall to the ground. The claimant stated that she suffered a “sore back, neck, hip and arm”.[18]
[18] Claimant’s bundle, page 25.
The police accident report is consistent with Ms Khan’s version of the accident.[19]
[19] Insurer’s bundle, page 21.
Medical evidence
The hospital admission record dated 20 September 2019 noted low speed motor accident when a vehicle hit the claimant’s left side causing her to fall to the floor without hitting her head.[20] Pain was recorded to the left leg and thigh, left elbow and flank. The examiner recorded “normal power tone reflexes to upper and lower limbs and no midline cervical spine pain. The author recorded that the claimant was “able to move all limbs normally”.
[20] Claimant’s bundle, page 51.
The clinical note dated 24 September 2019 referred to the accident as pedestrian on Friday with pain in the left hip and low back shooting to leg.[21] On 22 October 2019, Dr Kaur noted pain around left hip and sore on the left side of neck which was restricting shoulder movements.[22]
[21] Claimant’s bundle, page 41.
[22] Claimant’s bundle, page 41.
A medical certificate dated 24 October 2019 completed by Dr Kaur referred to injuries to left hip, neck right side and lower back.[23] A subsequent certificate dated 8 December 2019 included a reference of injury to the shoulder.[24] On 17 December 2019 the general practitioner included a reference to an annular tear in the cervical spine.[25]
[23] Claimant’s bundle, page 29.
[24] Insurer’s bundle, page 31.
[25] Insurer’s bundle, page 34.
The general practitioner provided a referral in June 2020 to Dr Lieu for the right shoulder.
Radiology
A CT scan of the cervical and thoracic spine dated 6 July 2006 is reported by Dr Ho-Shon as showing early degenerative changes in the upper thoracic spine.[26]
[26] Claimant’s bundle, page 32.
A CT scan of the lumbar spine dated 10 August 2016 showed diffuse bulge at L4/5 and mild bilateral facet joint arthrosis at L5/S1 with central/left disc protrusion.[27]
[27] Insurer’s bundle, page 134.
An X-ray of the left elbow dated 20 September 2019 did not show a fracture.[28] An X-ray of the left hip and femur dated 20 September 2019 showed normal alignment and no fracture.[29] An X-ray of the lumbar spine at the same time did not show a compression fracture.[30]
[28] Claimant’s bundle, page 45.
[29] Claimant’s bundle, page 46.
[30] Claimant’s bundle, page 47.
A CT scan of the lumbar spine dated 24 September 2019 records a clinical history of an accident three days previously with severe low back pain radiating to the left side.[31] Dr Patrick noted small disc bulges at the lower three levels of the lumbar spine with mild central canal stenosis at L4/5 without definite nerve root impingement.
[31] Claimant’s bundle, page 33.
A CT scan and ultrasound of the left hip dated 23 October 2019[32] was reported by Dr Hu as showing a small haematoma in the soft tissue adjacent to the ITB on the left hip and mild to moderate uncovertebral disease at C5/6.
[32] Claimant’s bundle, page 35.
An ultrasound of the right shoulder dated 11 December 2019 is reported by Dr Hu as showing mild subacromial thickening with impingement and no focal tear.[33]
[33] Claimant’s bundle, page 37.
An MRI scan of the cervical spine dated 16 December 2019 showed central disc protrusion with annular tear at C4/5 and diffuse bulge and degenerative changes at C5/6.[34]
[34] Claimant’s bundle, page 39.
An MRI scan of the lumbar spine dated1 June 2020 records a clinical history of L3 dermatome pain. Degenerative changes were present on the lower three levels, most marked at L4/5 and L5/S1. Annular tears were noted at the lower two levels.[35]
[35] Claimant’s bundle, page 61.
A right shoulder ultrasound dated 16 June 2020 reported tendinosis of the supraspinatus and a full-thickness tear of the mid/posterior fibres. [36]
RE-EXAMINATION
[36] Claimant’s bundle, page 63.
The Panel determined that Ms Khan be re-examined by both Medical Assessors. The scan material was also viewed by the Medical Assessors.
The re-examination report is as follows:
“Ms Khan was examined by Dr Tom Rosenthal and Dr Alan Home.
History
Ms Khan could not recall a history of neck or low back pain. She is aware that she underwent CT scans of the lower back in 2016 but is uncertain of the reason that they were requested. She recalls that she was physically fit in the period leading up to the subject accident.
Details of subject accident
Ms Khan recalls that she was involved in a motor vehicle accident as a pedestrian, crossing as the pedestrian lights activated. At the same time, a car was stationary at the intersection waiting to turn right. As the lights changed to green, the driver turned right and collided with the pedestrian.
The claimant recalls that she was struck on her left side at the level of the left upper thigh (indicated). She recalls that she is not certain how she fell. She was aware of subsequent bruising into her left forearm and somewhat later, a lump developed at the lateral aspect of the proximal left thigh.
She recalls that she was transported by ambulance to Concord Hospital where imaging was performed. No fractures were found. She was discharged later that day.
She attended her general practitioner after a period of several weeks. She recalls that she had thought that the pain would likely settle without the need to seek additional medical care.
She recalls that by the time she saw a doctor, she was experiencing predominantly right-sided neck pain radiating down toward the right shoulder. There was a complaint of persisting pain in the lateral aspect of the left hip and proximal left thigh associated with a lump. She also recalls the onset of right-sided lower back pain, which commenced within a day of the accident.
She says that she attended a physiotherapist for treatment directed toward her neck, back and left thigh complaints. She recalls physical treatment for a period of three months.
She says that there have been subsequent short periods of treatment, which she has undertaken periodically. Physiotherapy has provided her transient benefit. There have been no spinal or hip injection. There has been no surgical management.
She confirms that due to her symptoms of low back pain, she underwent CT scan imaging of her lumbar spine, three days after the accident and CT scan imaging of the neck one month after the accident. She also underwent ultrasound examination of the left hip, which demonstrated a haematoma in the region of the iliotibial band.
Current treatment
She has taken analgesic medication periodically. She currently reports the use of Voltaren, intermittent use of Panadeine Forte analgesia. There is sporadic use of Endone.
Current symptoms
She says that she currently experiences intermittent neck pain, most prominent in the right side. Pain is present most days. The pain extended down toward her right shoulder. She feels that her neck is stiffer when turning to the right. There is no upper limb pain. She describes occasional global paraesthesia in the hands. This occurs intermittently.
In the lower back, she describes pain that occurs periodically. This can be present for several weeks and then absent for several weeks. In the interval, she describes an awareness of discomfort in the right side of the lower back. That is, there is a constant discomfort but intermittent frank pain. When the pain is present, it is exacerbated by coughing, sneezing and straining on the stool. When the pain is absent, those symptoms do not arise. There is no other bowel or bladder dysfunction.
She describes a feeling of coldness in the left leg below the knee.
She continues to experience local pain and tenderness in the left mid-thigh at the site of the previous haematoma (indicated).
There is no frank pain in the groin or buttock. She is not aware of lower limb weakness.
She is right hand dominant. She describes a good tolerance for sitting and a fair tolerance for walking approximately 30-45 minutes. There is only difficulty bending forward at the waist when her back is painful. She is comfortable crouching and kneeling. There is no difficulty with stair climbing.
Her sleep pattern is disrupted when her back is painful. She is independent for activities of self-care. She is able to shop comfortably.
She is married with three children aged between 21 and 33. She is a non-smoker. She has resumed light domestic chores. Heavier domestic chores are use usually performed by her daughter.
She works as a bank officer at Westpac.
Examination
Ms Khan is a 55 year old, standing 156 centimetres, weighing 72 kilograms.
Cervical spine
Examination of the cervical spine reveals normal spinal curvature. There is no muscle spasm. Forward flexion and extension are performed to full range, right rotation to four-fifths normal range, left rotation full, right lateral flexion two-third normal range, left lateral flexion two-thirds normal range. There is mild muscle guarding to the right.
There is no abnormality on neurological examination of the upper extremities. There is normal upper limb power. There is normal sensibility. The deep tendon reflexes are symmetrically preserved.
Right shoulder
Right shoulder motion is restricted to 130° of elevation although rotation is relatively well maintained. Internal rotation is reduced to 70° by local pain.
Left shoulder motion is full in all planes.
Thoracolumbar spine
On examination of the thoracolumbar spine, there is normal spinal curvature. There is no muscle spasm. Flexion is reduced to three-quarters normal range, extension three-quarters normal range, right and left lateral flexion half normal range. Tenderness is elicited to palpation overlying the right-sided paravertebral structures in the lumbosacral junction. Straight leg raise is performed to 70° bilaterally in a long-sitting position. Slump test is negative.
Lower extremities
Neurological examination of the lower extremities is normal in all respects. There is normal lower limb power. There is no calf wasting. There is normal sensibility throughout. The deep tendon reflexes are preserved.
Left hip
There is a full range of active motion at the left hip. Tenderness is elicited to palpation overlying the left iliotibial band distal to the left greater trochanter. There is no trochanteric tenderness. There is no tenderness anteriorly over the hip joint.
There is a full range of active motion at both hips. Low back pain is described at the extreme range of right hip flexion. There is normal gait.
Diagnosis and causation
Ms Khan was involved in a motor vehicle accident as a pedestrian. She recalls that the car impacted her left thigh. There was the subsequent development of a haematoma in the soft tissues adjacent to the iliotibial band. She received physical therapy for that complaint.
Following the accident, she also developed predominantly right-sided neck pain. There are no radicular complaints and no clinical findings of radiculopathy. Post-accident imaging demonstrated mild degenerative changes at C5/6.
She describes periodic right sided low back pain.
Diagnostic imaging
CT scans lumbar spine, 10 August 2016 reported as follows. Lateral alignment is unremarkable. The vertebral body height is maintained. No fracture or pars defect seen. At L1/2 and L2/3, there is no significant disc bulge, canal or foraminal narrowing demonstrated. At L3/4, a small diffuse disc bulge noted without significant canal or foraminal narrowing. At L4/5, diffuse disc bulge noted without significant canal or foraminal narrowing. At L5/S1, mild bilateral facet joint arthrosis noted, worse on the right. There is a centre/left paracentral disc protrusion, contacting the traversing S1 nerve roots without definite compression seen. Mild foraminal narrowing bilaterally.
Conclusion: mild spondylotic changes without definite neural compression demonstrated.
Post-accident
X-ray left hip 20 September 2019. No acute fracture or dislocation demonstrated.
X-ray lumbar spine, 20 September 2019. No compression fracture is demonstrated. There is straightening of the normal lumbar lordosis which is otherwise unremarkable.
X-ray left hip and femur, 20 September 2019. No acute fracture is demonstrated. Normal alignment is maintained.
X-ray left elbow, 20 September 2019. No acute fracture is demonstrated.
CT lumbar spine, 24 September 2019. At L1/2, there is no significant disc bulge, central canal stenosis or foraminal narrowing. At L2/3, there is no significant disc bulge, central canal stenosis or foraminal narrowing. At L3/4, there is a small posterior disc bulge with a left foraminal/far lateral component. There is indentation of the anterior thecal sac and narrowing of the lateral recesses, left greater than the right. There is mild bilateral foraminal narrowing, worse on the left. The disc lies close to the exiting left L3 nerve root without definite impingement. At L4/5, there is a diffuse broad-based disc bulge, slightly eccentric to the left. This is indenting the anterior thecal sac with mild central canal stenosis. There is mild bilateral foraminal narrowing. At L5/S1, there is a partly calcified disc complex with superimposed central/left paracentral disc protrusion. This appears unchanged from previously. There is slight narrowing of the lateral recesses without nerve root impingement. There is mild bilateral foraminal narrowing, slightly worse on the left. The radiologist, Dr Patrick concludes no acute fracture or destructive bone lesion identified. Small discs as described. Mild central canal stenosis at L4/5 with narrowing of the lateral recesses. Mild foraminal narrowing without definite nerve root impingement.
When comparing the CT scans three days post-accident with those of 10 August 2016, there has been some mild progression of the previously identified disc bulges at L3/4, L4/5 and L5/S1 that were previously noted in August 2016.
CT cervical spine, 23 October 2019. No fracture. No pre-vertebral collection. At C5/6, there is mild to moderate uncovertebral disease with mild canal narrowing. No significant neural exit foraminal narrowing is seen. There is ligamentous calcification of the posterior aspect of C6. No other significant disc osteophyte complex is seen. No canal narrowing or neural exit foraminal narrowing is seen at other levels. There is no significant facet joint disease.
Impression: moderate uncovertebral change at C5/6 with mild to moderate narrowing of the spinal canal. No definite neural exit foraminal narrowing is detected. The panel comments that the CT scan findings one month after the accident are consistent with underlying degenerative change at C5/6, noting the uncovertebral joint changes.
Ultrasound left hip, 23 October 2019. There is some fluid along the iliotibial band which is intact. Distal to the fluid, there is an echogenic non-vascular area measuring 36 x 10 x 17 mm with transducer tenderness. There is no mass or collection seen over the buttock arear. No anterior joint effusion. The iliopsoas tendon is unremarkable.
Impression: there may be a small haematoma in the soft tissues adjacent to the ITB.
Comment: The panel found that at examination, the claimant remains tender in this area, consistent with residual scarring related to a previous haematoma.
Ultrasound right shoulder, 11 December 2019. There is mild subacromial bursal thickening with bunching on real time. The subscapularis and infraspinatus tendons are normal. There is thickening and hypoechoic change in the supraspinatus tendon with no focal tear. The long-headed biceps are normally located and intact. No bicipital sheath fluid. There is some capsule hypertrophy involving the AC joint in keeping with degenerative change.
MRI scans cervical spine, 16 December 2019 reported as follows. There is straightening of the cervical lordosis. The cervical alignment remains anatomical. The vertebrae demonstrate normal height. There is mild loss of intervertebral disc height at C5/6. Disc dehydration is noted throughout the cervical spine. The cervical and upper thoracic cord is unremarkable. The atlanto-occipital and atlanto-axial joints show no abnormality. The pedicle are congenitally short. The epidural space is preserved. The paraspinal soft tissues are normal. There is no disruption of the anterior or posterior longitudinal ligaments, inter-spinus or super-spinus ligaments. At C2/3 and C3/4, no abnormality is identified. At C4/5, there is a shallow posterior central disc protrusion and annulus tear measuring up to 8 mm not causing spinal canal or foraminal stenosis. Minimal degenerative changes noted in the uncovertebral joints. At C5/6, there is diffuse disc bulge with mild loss of disc height. There is broad-based posterior disc osteophyte complex and annulus tear. Uncovertebral joint osteoarthritis is noted bilaterally. There is mild to moderate grade bilateral proximal foraminal stenosis due to a combination of disc bulge and osteophytic encroachment. There is mild to moderate central spinal canal stenosis due to a combination of disc bulge and short pedicles with maximum AP dimension of the spinal canal of 7 mm. At C6/7 and C7/T1 levels, no abnormalities identified.
Conclusion: mild degenerative spondylosis at C5/6 levels with mild to moderate grade central spinal canal and mild to moderate grade bilateral foraminal stenosis. There is mild flattening of the cord. No mass effect or flattening of the proximal C6 nerve root can be seen. Small C4/5 posterior central shallow disc protrusion and annulus tear without neural impingement.
MRI lumbar spine, 1 June 2020. At L1/2 and L2/3, there is disc desiccation although no significant disc bulge. There is mild facet joint arthropathy at these levels although no canal stenosis or foraminal narrowing is seen. At L3/4, there is disc desiccation and a small broad-based posterior disc bulge. In association with mild facet joint arthropathy, there is mild canal stenosis and mild bilateral foraminal narrowing. At L4/5, there is disc desiccation and a small broad-based posterior disc bulge which has a posterior annulus tear component in association with a mild to moderate facet joint arthropathy. There is mild canal stenosis and mild bilateral foraminal narrowing. At L5/S1, there is disc desiccation and a small broad-based posterior disc bulge with a small posterior annulus tear component in association with moderate facet joint arthropathy. There is mild canal stenosis and mild bilateral foraminal narrowing.
Conclusion: there are degenerative changes seen in the lumbar spine, most marked at L4/5 and L5/S1 and to a lesser degree at L3/4 as described. The panel has carefully reviewed the MRI scan findings and considers that the broad-based bulge described at L4/5 and the small broad-based posterior disc bulge at L5/S1 were pre-existent bulges. Therefore the annulus tears are considered most likely to be degenerative, related to the underlying disc bulges that were a preceding finding.
Ultrasound right shoulder, 16 June 2020. Tendinosis of the supraspinatus with a full thickness tear of the mid-posterior fibres.
The panel comments that there has been some progression of the ultrasound findings between December 2019, three months post-accident and the further scans of 16 June 2020. It is considered that the subsequent development of a tear in the supraspinatus tendon reflects a progression of degeneration at the right shoulder.The medical members of the Panel reconvened on 9 August 2022 to review relevant imaging. The direct review of the scans is as follows:
“The panel reviewed CT scan images of the lumbar spine performed August 2016. The panel also reviewed Post-accident CT scans of the lumbar spine performed 24 September 2019, post-accident MRI scans of the lumbar spine performed 1 June 2020 and MRI scans of the cervical spine performed 16 December 2019.
The panel found that the pre-accident CT scans of the lumbar spine in August 2016 demonstrated degenerative changes at L4/5 and L5/S1. There was calcification and a left-sided protrusion at L5/S1. There was evidence of long-standing degeneration at the L4/5 level, with a shallow broad-based annulus disc bulge.
The panel reviewed the post-accident CT scans of the lumbar spine performed 24 September 2019. We note that the previously identified disc bulges are repeated on the subsequent scans. Allowing for the three-year interval, there is very little change between the pre-accident and post-accident CT scans. Again, there was calcification and a left-sided protrusion at L5/S1. There was evidence of long-standing degeneration at the L4/5 level, with a shallow broad-based annulus disc bulge. The contour of the discs was unchanged.
The panel reviewed MRI scans of the lumbar spine performed 1 June 2020. The panel finds that the L3/4, L4/5 and L5/S1 discs are all affected by disc desiccation or drying out of the intervertebral discs, which is a chronic process. The panel finds that the small annulus fissures seen at L4/5 and L5/S1 represent degenerative changes within the desiccated discs.
Whilst the panel notes that the radiologist has referred to an annulus tear, the panel finds that the changes are identical to those of an annulus fissure, which occurs as part of the degenerative process. Given the background of disc abnormality seen on the pre-accident imaging, the panel found that there was insufficient evidence that the subject motor accident had caused a new traumatic disc cartilage tear.
The panel has reviewed MRI scans of the cervical spine performed 16 December 2019. The panel notes that there is multi-level degenerative change at C4/5 and C5/6. Again, there are annulus fissures evident, which appear part of a long-standing degenerative process. Multilevel degenerative changes are seen both within the intervertebral disc and in the adjacent uncovertebral joints.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[37] and Insurance Australia Ltd v Marsh.[38]
[37] [2021] NSWCA 287 at [40], [41] and [45].
[38] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[39] that radiculopathy can be present at any time to satisfy the concept that the injury is not minor for the purposes of the MAI Act.
[39] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[40] that the claimant bears the onus of proof in establishing any injury is not a minor injury for the purposes of the MIA Act.
[40] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report and report of the scans given by the Medical Assessors. We add the following reasons.
For the reasons addressed by the Medical Assessors, we are not satisfied that the changes seen in the lumbar and cervical spines are caused by the motor accident. Accordingly, we are not satisfied that the changes, described as annular tears by the radiologist and annual fissures by the Medical Assessors, were caused by the motor accident.
Ms Khan suffered a soft tissue injury to the left hip with ongoing symptoms. Ms Khan continues to suffer from a small haematoma adjacent to the iliotibial band. However, there is no radiological or clinical support showing a complete or partial rupture of a tendon, ligament, menisci or cartilage.
We do not accept that Ms Khan suffered from a right shoulder injury in the motor accident. The history described to the Medical Assessors, consistent with the contemporaneous notes, is that Ms Khan fell onto her left side. There was no direct right shoulder injury caused by the impact and fall from the motor accident.
Whilst there were symptoms into the right shoulder recorded reasonably contemporaneously with the motor accident, this was probably referred pain from the cervical spine injured in the motor accident.
The scan evidence in the right shoulder shows longstanding changes which are consistent with the claimant’s age, and which will gradually deteriorate over time.
In these circumstances we are not satisfied that the right shoulder pathology was caused by the motor accident.
Presence of radiculopathy
There are no recorded observations of two signs of radiculopathy as defined by the Guidelines. The reference to referred pain from the neck into the right shoulder is radicular in nature but not an objective sign of radiculopathy as defined in the Guidelines.
Based on the examination findings of the Medical Assessors, Ms Khan did not have radiculopathy in either the lumbar or cervical spine when she was recently examined.
For these reasons we conclude that Ms Khan has not satisfied, at any time, two clinical signs pursuant to cl 5.8 of the Guidelines.
CONCLUSION
The claimant has not established that she suffered a non-minor injury caused by the motor accident. We confirm the certificate of Medical Assessor Oates.
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