Kovacs v AAI Limited t/as AAMI

DETERMINATION OF REVIEW PANEL
CITATION:	Kovacs v AAI Limited t/as AAMI [2023] NSWPICMP 627
CLAIMANT:	Lorrae Kovacs
INSURER:	AAMI
REVIEW PANEL
MEMBER:	Maurice Castagnet
MEDICAL ASSESSOR:	Sophia Lahz
MEDICAL ASSESSOR:	Thomas Rosenthal
DATE OF DECISION:	28 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor accident on 8 November 2021 when the vehicle she was driving was rear-ended by the insured vehicle; where the Medical Assessor at first instance found threshold injuries; where there were prior injuries to the lower back and neck; where there was an injury to the right shoulder about six weeks before the motor accident and an ultrasound scan performed on 12 January 2021 showed no tear to tendons; where an MRI scan performed two months after the accident on 12 April 2021 showed rotator cuff tears to the infraspinatus and supraspinatus tendons; Held – original assessment revoked; finding that the injury to the right shoulder caused by the motor accident was a non-threshold injury.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under ss 7.26(7) and (9) of the Motor Accident Injuries Act 2017 The issue determined by the Review Panel is whether the injuries caused by the motor accident are threshold injuries. Determination The Review Panel: 1. Revokes the certificate of Medical Assessor Ian Cameron dated 21 February 2023. 2. Certifies that the following injuries caused by the motor accident: · head – soft tissue injury; · cervical spine – soft tissue injury; · lumbar spine – soft tissue injury; · right arm – soft tissue injury; · left wrist – soft tissue injury; · sternum – soft tissue injury; · left knee – soft tissue injury; are THRESHOLD INJURIES for the purposes of the Act. 3. Certifies that the injury to the right shoulder caused by the motor accident on 8 February 2021 is a NON-THRESHOLD INJURY for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

On 8 February 2021, the claimant, Lorrae Kovacs, was injured in a motor accident when her vehicle, stationary on an off ramp of the Hume Highway at Thurgoona NSW, was rear ended by a motor vehicle insured by the insurer, AAMI.
As a result of the accident, the claimant claimed that she sustained injuries to her head, right shoulder, cervical spine, lumbar spine, right arm, left wrist, sternum and left knee.
The insurer accepted liability to pay the claimant statutory benefits arising from her injuries, under the Motor Accident Injuries Act 2017 (the MAI Act), for the first 26 weeks.
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 threshold injuries”.[i] An injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[ii]
The issue in dispute is whether the claimant’s injuries resulting from the accident were threshold injuries for the purposes of the MAI Act.
Schedule 2, cl 2 of the MAI Act provides that various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
The MAI Act was amended by the Motor Accident Injuries Amendment Act 2022 to provide that from 1 April 2023, the term “minor injury” is to be expressed as a “threshold injury” and “minor injuries” as “threshold injuries”. Accordingly, any reference in these reasons to a “minor injury” or “minor injuries” will be a reference taken from a document that existed prior to 1 April 2023.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
On 20 May 2021, the insurer issued a post-26 weeks liability decision, finding that the claimant sustained only minor injuries in the accident. On the same date, the claimant requested an internal review. On 4 June 2021, the insurer affirmed its original decision.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5. This means that the matter is determined at first instance by a Medical Assessor[iii] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.

MEDICAL ASSESSMENT UNDER REVIEW

The dispute was referred at first instance to Medical Assessor Ian Cameron who issued a Medical Assessment Certificate dated 21 February 2023 (the medical assessment).
Medical Assessor Cameron determined that the following injuries that were referred to him for assessment were caused by the accident, and were all minor (threshold) injuries for the purposes of the MAI Act:
·        head – soft tissue injury;
·        right shoulder – soft tissue injury;
·        cervical spine – soft tissue injury;
·        lumbar spine – soft tissue injury;
·        right arm – soft tissue injury;;
·        left wrist – soft tissue injury
·        sternum – soft tissue injury, and
·        left knee – soft tissue injury.

THE REVIEW APPLICATION

On 20 March 2023, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment to a review panel for review. The application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being 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.

CONDUCT OF THE REVIEW

According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Sophia Lahz, Medical Assessor Thomas Rosenthal and Member Maurice Castagnet (the Panel).
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.[iv]
Pursuant to Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[v]
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[vi]
On 11 August 2023 in response to a direction by the Panel, the claimant confirmed that all the injuries that were referred to Medical Assessor Cameron for assessment, are to be assessed by the Panel.
Accordingly, the Panel has assessed all referred injuries to the extent that was necessary considering the claimant’s statements during the re-examination. These statements appear later in these reasons.

RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
The MAI Act

A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold 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.

The Motor Accident Guidelines

Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on 1 December 2017 to 31 March 2023. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a psychological or psychiatric injury caused by the motor accident.
5.4    Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold 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 threshold injury.[vii]

Causation of injury

Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[viii]
It is convenient to also set out in full the observations made by Wright J in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of Injury
6.5 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 claims assessor) 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 non-medical informed judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

CLAIMANT’S SUBMISSIONS

The Panel notes that although the claimant requested that all referred injuries be re-assessed, her submissions were confined only to the right shoulder injury and the head injury.

The right shoulder injury

The claimant says that there was a pre-existing right shoulder injury but submits that there has been a further injury to the right shoulder in the motor accident, which caused tears to the tendon.
While there were no tears in the infraspinatus tendon identified in the ultrasound performed on 12 January 2021, tears were identified in the MRI scan performed on
12 April 2021.
While there were no tears in the supraspinatus tendon identified in the ultrasound performed on 12 January 2021, the MRI scan performed on 12 April 2021 found that there was a high-grade partial tear with a suspected full thickness component.
Noting that the claimant has suffered no other injury or trauma in the period between
12 January 2021 and 12 April 2021, it is submitted that the tendon damage is a direct consequence of the motor accident.
As the claimant sustained a partial or full rupture of tendons, the injury to the right shoulder is not a threshold injury to the purposes of the MAI Act.

The head injury

The claimant refers to the report of Dr Raju Yerra dated 18 May 2021. Dr Yerra records the claimant was hit from behind by a vehicle travelling 70 kmph while the claimant’s car was at a standstill. Dr Yerra notes that the claimant was thrown back and forth in the car and banged her head against the seat a few times. Dr Yerra notes that since the accident, the claimant has continued to experience headaches, dizziness, cognitive difficulties and memory issues. Dr Yerra was of the opinion that the claimant sustained a concussion in the accident resulting in post-traumatic migraines.
The claimant relies on this report of Dr Yerra, the NSW Police report and the Ambulance report to submit that the mechanism of the collision caused the claimant to have been knocked around her car during the collision. Given the claimant’s onset of post-traumatic symptoms on the day of the accident, it is submitted that it is more probable than not that the claimant sustained a head injury in the accident.
It is submitted that the claimant sustained a concussion in the accident. This is a traumatic brain injury which falls outside the definition of threshold injury in the MAI Act.

INSURER’S SUBMISSIONS

The right shoulder injury

The insurer disputes that the infraspinatus tears and/or supraspinatus tendon tear of the right shoulder were caused by the accident.
The insurer refers to the pre-accident clinical records of Albury Central Medical Clinic (the general practitioner (GP) records) which reveal that the claimant had experienced pain in her right shoulder since 25 December 2020 following an incident where she intervened in a fight between two German Shepherds and had a fall on her dominant right hand. On
7 January 2021, Dr Maung observed reduced range of motion on flexion and abduction.[ix]
The insurer notes that as a result of the claimant’s ongoing symptoms, she was referred for an ultrasound guided injection of her right shoulder on 19 January 2021 and
2 February 2021, prior to the subject accident.
The insurer did not provide the Panel with any a page reference in their paginated evidence bundle for the submission made in paragraph 42. On its own review of the GP records, the Panel notes firstly that, on 19 January 2021 Dr Maung discussed the possibility of a USS (ultrasound) guided cortisol injection in two weeks’ time if there was not improvement in the right shoulder symptoms.[x] Secondly, the Panel notes that, on 2 February 2021, Dr Maung indicated that the claimant was to do a cortisone injection as the next step.[xi] According to the evidence before the Panel, this was done on 10 February 2021, two days after the subject accident.
In the insurer’s submission, the claimant’s comparison of the ultrasound of 12 January 2021 and the MRI of 12 April 2021 is misguided in circumstances where they are different methods of imaging.
The insurer also relies on the following opinion of Dr McIntosh:
“There is no mechanism for shoulder injury, including rotator cuff injury, in the Incident. There is no mechanism for direct or indirect blunt force loading of the shoulders in the Incident. The seatbelt would have acted across the Claimant’s right shoulder as driver. Seatbelt forces would have been low magnitude and very unlikely to cause injury. The movement of the Claimant’s shoulders in the Incident would have been limited and within normal range of motion. The Claimant’s shoulders and upper limb/hand would not have been forced through abnormal range of motion. Loads would have been minimal and tolerated without injury. The seatbelt will function to control the momentum of the driver’s trunk and limit the forces acting through the upper limbs and shoulders”.[xii]

The insurer’s submissions in relation to the head injury

The insurer disputes that the claimant’s vehicle was rear ended by the insured’s vehicle at a speed of 70kmph on the basis of the following evidence:
(a)    the accident notification form completed by the insured driver on 3 March 2021 stated that he took off from a stationary position prior to the collision, with a pre-impact speed on 10 kmph;[xiii]
(b)    the statement of the insured driver dated 18 May 2021 again confirmed he was stopped a few metres behind the claimant’s vehicle and proceeded to accelerate in first gear, with a pre-impact speed of 10-15 kmph;[xiv]
(c)    photographs depicting the damage to both the claimant’s and insured’s vehicle;[xv]
(d)    the report of Dr McIntosh[xvi] in which he opined:
(i)the damage visible in the photographs and driveability of the two vehicles is consistent with a low-speed rear end collision;
(ii)the closing speed was less than approximately 10 kmph, which is consistent with the description of the incident provided by the insured driver, and
(iii)the closing speed was not 70 kmph, or anywhere close to 70 kmph.

The insurer disputes that the claimant sustained a head injury as a result of the accident. The insurer highlights that there is no contemporaneous evidence of head strike or loss of consciousness. In particular, on the day following the accident, the claimant reported to Albury Hospital that the airbags did not deploy, and there was no head strike or loss of consciousness (see claimant’s bundle – from page 47). The claimant underwent an MRI of the brain which revealed no abnormalities. This is consistent with the claimant’s report to her general practitioner that there was ‘nil LOC’.[xvii]
The insurer highlights that the claimant has a pre-accident history of memory impairment and headaches.[xviii]
The insurer also relies on the report of Dr McIntosh and in particular, his following opinion:
“Head impacts are highly improbable in a rear end collision, such as the Incident, and if they occur, e.g. the rear of the head impacts against the padded head restraint, the impact forces are very low magnitude and unlikely to cause any injury. In my opinion, a closed head injury, concussion or mild traumatic brain injury (mTBI) is unlikely. In short, the impact forces would have been low and resulted in low magnitude linear and/or angular head acceleration that could have been tolerated by the Claimant without injury. The head accelerations in the incident would not have resulted in internal loads on the brain sufficient to cause head injury. Since the mid-1990s, I have been and remain an active researcher and advisor on the biomechanics of concussion and head protection.”[xix]

MATERIAL BEFORE THE REVIEW PANEL

The evidence may be conveniently summarised as follows.

The claimant’s personal injury claim form

In her personal injury claim form, dated 17 February 2021, the claimant stated that she was stationary in a 60kmph zone in a line of traffic behind approximately 10 other vehicles when her vehicle was rear ended by the insured driver’s vehicle.[xx]
The claimant was driving a Jeep Grand Cherokee that was filled with a tow pack and ball at the rear.[xxi]
The claimant described her injuries as follows:
“Whiplash, concussion, headaches, blurred vision, pain in neck, particularly on right side base of neck, pain in right shoulder, right arm down to wrist, bruising on inside of left wrist (was wearing a watch), very tender to middle of sternum, soreness and spasming (sic) to lower back, left buttock cheek, upper back pain, confusion, mistakes in speech, sentence structure, comprehension…short and long term memory loss, affected by bright lights, the sun, screen lights, sore left knee.”[xxii]
The claimant stated that she had sustained a number of prior injuries:
(a)    on or about 25 December 2020, she injured her right shoulder while trying to prevent a dog attack. She had pain in the right shoulder and right arm. Her pain was aggravated by the accident;
(b)    she was involved in a head-on collision on 26 November 2010. She has since experienced minor memory loss but the accident has made this worse. She also suffered from whiplash and concussion in this accident;
(c)    she sustained a torn L4/5 disc[xxiii] from incidents as a police officer in April 2005, December 2006 and October 1998, and
(d)    she sustained whiplash injury to the neck, with pain mainly on the left side of the neck, an injury to the back, an injury to the left shoulder and concussion in a motor accident on 30 August 1996.

Pre-existing medical records

The GP records referred to the previous right shoulder injury in an entry on 7 January 2021 as follows:
“…
-right shoulder pain since xmas day

…

-apply heat pack, rubbed medications

took panadeine forte at night

-no tingling numbness along right forearm

-had grazing over left knee and left forearm

Examination:
Right shoulder – no deformity on inspection

ROM – only up to 90’ in flexion, abduction

empty can + ve

no other neurovascular deficit

Left shoulder – NAD

full ROM

-advised rest

-elevation

-paracetamol and ibuprofen PRN for pain

-warm pack/ice pack for pain

-neurofen 2tds for next 3 days

-USS XRAY

follow up afterwards.”[xxiv]
An ultrasound report of the right shoulder performed by Dr B Coghlan on 12 January 2021 recorded the following:
“Heterogeneous supraspinatus with possible internal delamination but no full thickness tear is seen. The findings are compatible with tendinosis.

Infraspinatus and teres minor are normal.
Thickened subacromial bursa containing fluid and low levels echoes.
View of the posterior labrum are normal. No glenohumeral joint effusion”.[xxv]
There are various entries in the GP records regarding the treatment of the claimant’s pre-existing injuries.

Post-accident medical records

The GP records referred to an attendance by the claimant on 9 February 2021, when she reported that she was involved in a “car accident – rear ended while at traffic light at 70km/h did not hit other cars front of her”.[xxvi]
The GP records referred to a complaint by the claimant of pain at the neck, confusion, dizziness, nausea and headache. An ambulance was called, and the claimant was taken to Albury Hospital.[xxvii]
The hospital’s clinical notes recorded that the claimant complained of neck pain, right shoulder pain, headache and nausea and sternal tenderness. A chest X-ray when performed with no obvious sternal fracture noted. The claimant was discharged at 10.15pm.
A report of Dr Andrew Bard dated 3 March 2021 on an MRI of the brain and cervical spine performed recorded that there was no intracranial abnormality and no cervical neural impingement, although low-grade ligamentous strain is hard to exclude.[xxviii]
A certificate of fitness issued by GP, Dr Volante on 18 March 2021 revealed a diagnosis of concussion, whiplash injury and aggravation of a (right) shoulder injury.[xxix]
A report from Dr Shyman Sankaram dated 20 April 2021 on an MRI of the right shoulder performed on 12 April 2021 recorded the following findings:
“Cartilage at the glenohumeral joint is preserved. A small joint effusion is identified. No loose bodies. There is truncation of the posterior superior labrum likely reflective of a chronic tear in this region.
Linear regions of fluid signal within the supraspinatus tendon are seen throughout the whole tendon, which also appears somewhat disorganised in appearance with only a small amount of organised fibres remaining.
Fine intrasubstance delaminations are seen within the subacromial/subdeltoid bursa. Mild degenerative changes are seen at the AC joint.
Some fluid is seen in the rotator interval and there is also some mild oedema adjacent to the inferior glenohumeral ligament which may be post-traumatic in nature or reflect early adhesive capsulitis.”
The report of GP, Dr Guim Allen of the Albury Central Medical Clinic dated 4 August 2021 reported that since the motor accident, the claimant has been experiencing ongoing on/off neck pain, re-aggravation of dull and at times throbbing headaches, dizziness and memory issues. She has reported aggravation of her right shoulder pain. She was referred to a neurologist and epileptologist, Dr Raja Yerra.[xxx]
In a report after a review of the claimant on 18 May 2021, Dr Yerra, summarised the medical issues arising from the motor accident as follows:
“a. Headaches – Post traumatic migraines (at least 4 days a week at baseline) – better – mild headaches twice a week since introduction of Propranolol.

b. Postural dizziness/vertigo/imbalance-post-traumatic vestibular migraines – better with PT and Propranolol.

c. Neck pain – cervical spondylosis becoming symptomatic – better with PT.

d. Exacerbation of the background right shoulder pain.

e. Cognitive concerns-? attentional, secondary to above issues – better with improvement in other symptoms.”[xxxi]
Dr Yerra was of the opinion that after the accident, the claimant had developed neck pain due to probably degenerative changes becoming symptomatic from the accident. Her right shoulder pain has been made worse by the accident.[xxxii]
Dr Yerra was of the opinion that the claimant had sustained a significant whiplash injury and probably concussion. The headaches are consistent with post-traumatic migraines and the dizziness and feeling of unsteadiness are consistent with vestibular migraines and related to post-traumatic migraines vestipulopathy. The memory and cognitive problems are related to attentional problems stemming from all of these issues.[xxxiii]
Dr Yerra noted that the claimant had been suffering from chronic lower back pain for more than 10 years from previous injuries while working as a police officer.[xxxiv]

Dr McIntosh - Biomechanical report

The Panel notes the report of Dr McIntosh. We accept that a properly based analysis of the nature of the collision is relevant evidence that the Panel could take into account, although it would not be determinative of the extent of personal injury suffered by the claimant.[xxxv]
Further, we note the following limitations of this report:
(a)    it is based on an account of the accident given by the insured driver that is substantially different to the account given by the claimant. The Panel is not able to determine a factual dispute of this nature;
(b)    Dr McIntosh says nothing about the physical characteristics of the claimant, such as her height, and how she was positioned vis a vis the steering wheel at the time of the collision, and
(c)    Dr McIntosh says nothing about the protective abilities of the claimant’s vehicle in a rear end collision.
The Panel finds no assistance from Dr McIntosh’s report in this matter.

RE-EXAMINATION

The claimant was examined at the Commission’s medical suites by Medical Assessor Lahz and Medical Assessor Rosenthal on 27 September 2023. She had flown from her home in Albury the same day.

History provided by the claimant

She is aged 51. She is right-handed with ambidextrous tendencies. She confirmed her involvement in the motor accident on 8 February 2021.
She believes that in the accident, she sustained injuries (with ongoing effects) to the head, neck and right shoulder.
She confirmed a history of pre-existing conditions due to accidents/incidents in the course of her former duties as a police officer. Prior to the subject motor accident, she suffered from considerable low back pain as well as some neck pain, although the neck pain was made much worse by the motor accident. There had also been various injuries to the wrists and knees. The claimant said she is not claiming that pre-existing problems of the lower back, wrists and knees have been made worse by the subject motor accident.

She said there were scratches and lower limbs that have now resolved. She also experienced left wrist pain after the accident but that has also resolved.
The claimant did not refer to any injury to the sternum. According to the clinical notes of Albury Hospital[xxxvi], the claimant complained of sternal tenderness on presentation at Albury Hospital. A chest X-ray was performed which showed no obvious fracture. According to the evidence before the Panel, there has not been any further complaints or treatment regarding the sternum.
At the time of the accident, she was the driver of a Jeep Cherokee that was stationary when rear-ended by a Nissan Pulsar. She was wearing a seatbelt. She had recently taken the off ramp from the Hume Highway when the incident occurred. She recalled having overtaken the driver who later collided with her car.
She had seen the car coming in the rear-view mirror and had her brakes on in the hope that the other driver would see her brake lights. She was somewhat surprised when the collision occurred because she had believed that the other driver would have seen her vehicle and that no impact would occur.
The claimant does not recall any impact directly to either her head or else the right shoulder aside from her head moving backwards and forwards against the head rest.
She had been in a queue of cars although there was no frontal impact.
After the collision, she sat in the car for a few minutes, in order to compose herself. She was able to move her vehicle to the side of the road out of the way of traffic so that she could then exit her car to confer with the insured driver. She said the insured driver was taking photographs and trying to rub paint from her car. The claimant also took a few photographs of the car damage. Her car was drivable.
The claimant said that she felt slightly woozy at the scene and became aware of some discomfort in her neck. At the time, she felt “in shock”. It was apparent from the information the claimant provided to the Panel examiners that she remembered the events at the scene the scene of the accident. An ambulance was not called.
She was able to drive herself home but had to stop on one occasion due to feelings of nausea, wooziness and neck pain.
Later that day or the next day, when she called her car damage insurer, GIO, she felt groggy and “out of it” during the telephone conversation. She had pain at the neck base (more towards the right) and also at the back of the neck (also right sided) which worsened. She also had a “massive” headache located at the top of her head.
The following day, she attended upon her general practitioner. She said the doctor noted there was bruising across the front of the right shoulder in the seatbelt line. The doctor was very concerned about her neck. An ambulance was called, and she was taken to hospital where she remained for a few hours. A neck brace was applied until scans cleared the neck of fracture.
She explained that she had sustained a traction injury to the right shoulder on 25 December 2020 when she had grabbed her dog by its collar with the dog pulling and ultimately dragging her right arm. She saw a doctor in January 2021. An ultrasound was performed showing some tendon wear (delamination) but no actual tearing of any internal shoulder structures. She said that her pre-existing right shoulder pain intensified after the motor accident.
She does not recall receiving physiotherapy after the December 2020 injury but she recalls that the doctor arranged a steroid injection which was done on 10 February 2021, two days after the motor accident.
Her right arm had been slowly improving during late January - early February 2021 although the right shoulder was then set back by the motor accident.
She said that the motor accident caused an exacerbation of right shoulder pain with increased loss of movement. She explained that after the motor accident she could barely move the right arm more than 10-20 degrees away from the side of the body whereas beforehand she had been able to lift the right arm at least to the horizontal (around 90 degrees).
Two days after the motor accident, she received a (pre-arranged) right shoulder steroid injection. This provided little relief.
Subsequently, she received physiotherapy for ongoing pain in the neck and right shoulder.
Her symptoms in the neck and right shoulder gradually improved over time, and she has not needed to consult any neck surgeons or shoulder surgeons.
An MRI scan of the right shoulder of 12 April 2021, after the motor accident, showed a significant tear of the supraspinatus, which had not been evident on the right shoulder ultrasound undertaken before the motor accident on 12 January 2021.
Very soon after the accident, the claimant developed vertigo and was sent for vestibular physiotherapy intervention. She described various treatments akin to the Epley (otolith repositioning) manoeuvres. These were helpful but the vertigo did not completely resolve. She remains prone to episodes, usually occurring with leftward head turn. The vertigo can last several minutes and is associated with nausea.
At the time of the accident, the claimant had been working for the Australian Taxation Office as a complaints handler. She described regular computer/phone-based duties and working under bright fluorescent lights. She returned to work a few weeks after the motor accident. After approximately two weeks, she found she was not coping with her duties due to frequent headaches, photophobia and neck pain. Her headaches were located in the bilateral occipital regions.
The claimant then went off work for approximately five months during which time she received further (musculoskeletal) physiotherapy and consulted a neurologist in Melbourne. He arranged for steroid injections to the bilateral occipital nerves. These proved to be effective in providing relief for severe headaches.
The claimant continued physiotherapy although she did not receive any further injections to either the right shoulder or head. She has never received any steroid injections to the neck.
From approximately July to August 2021, the claimant made a graduated return-to-work and is now working her pre-injury duties and hours. She said, however, that she has sometimes missed workdays due to severe headaches of migrainous intensity. Severe headaches are now infrequent.
She is no longer receiving any specific treatment for her injuries although she mentioned that she is booked in for further physiotherapy targeting the neck and right shoulder.
Her current medications (most of which relate to pre-existing conditions) are as follows: Panadol two tablets mane (mostly for pre-existing low back pain), Lexapro (for psychiatric conditions due to police work), Twynstra (for hypertension), Lyrica 150 mg bd (for pre-existing low back pain), Valdoxan (for PTSD) and Panadeine Forte (mostly for back pain). She is possibly on Propranolol for headaches although the Panel examiners could not establish this with certainty.

Current symptoms

The claimant complains of headaches at the skull base (bilateral) occurring once or twice weekly. She can mostly stay up and about with these although occasionally she has to lie down due to nausea, light sensitivity and pain severity. If the headache reaches a severe intensity, the effects can last up to two days. As already noted, she will have to miss workdays if this occurs.
At the neck there is constant posterior ache mostly at the top of the neck around the skull base with symptoms spreading to the neck base. She rated pain intensity at 6/10. Neck pain does not radiate to the upper limbs and she also does not experience any neurological symptoms in the upper limbs.
Neck pain is worsened by prolonged computer-based duties, static postures (especially bending) and carrying heavy items. Overhead reaching, for example, into cupboards also worsens neck pain.
She has to take care with neck movements so as not to induce vertigo. She said the latter symptom was more likely to occur with either looking down or else with leftward head turn.
At the right shoulder, she localised the pain to the anterior joint (and sometimes the superior joint), worsened by stretching upwards, carrying heavy items and sometimes by direct pressure (lying) on the shoulder. There is no pain at the right trapezial region.
She complains that the right shoulder sometimes clicks, and she also experiences some difficulty placing the right hand behind her back due to painful shoulder restriction. However, she reported that she has regained most right shoulder movement since the motor accident.
Regarding the claimed head injury, as noted, there was no loss of consciousness and Glasgow Coma Scale (GCS) was recorded as 15/15 the following day when the GP called for an ambulance. The Panel examiners are of the opinion that GCS would have been 15 at the scene of the accident given she has an excellent recollection of her actions, the actions of the insured driver and conversations at the scene of the accident. She was able to drive home on her own, notwithstanding sensations of dizziness and nausea.
The claimant reports reduced, less efficient memory since the motor accident. She explained that the neurologist recommended that she undergo a more detailed cognitive assessment (presumably a neuropsychological assessment) although the insurer declined to fund this. She said that the memory problems seem to affect not only the short-term memory but also at times remote memory and she is sometimes surprised about what she cannot recall when her husband refers to certain events in the past.

She said that after the motor accident she was, for a period, mixing up word endings. This problem has since resolved.
She often uses functions in the mobile phone to record information to compensate for unreliable memory. She described herself as a good note taker, consistent with her lengthy experience in the Police Force.
On specific enquiry, she said that she was doing well at work and had recently been promoted. The employer has not expressed any concerns about her work performance although she has not specifically discussed any memory difficulties with management. She discreetly uses her memory aids, particularly copious note taking and is compensating well for any memory difficulties. However, she thinks that she is generally slower with decision making and, at times, she feels “dumb”.
She and her husband continue to share household financial management tasks.
There was no evidence on history of the claimant’s being prone to either impulsive or else disinhibited behaviour.
She describes some pain-related sleep disturbance.

Examination

On examination, the claimant was pleasant, straightforward and cooperative. She was an informative historian with no overt cognitive deficits.
There was central adiposity with overweight body habitus.
On the MOCA (Montreal Cognitive Assessment) there was a score of 29/30. There were no difficulties with trail making, cube copying, clock drawing, naming, memory, attention, abstraction, delayed recall or orientation. The only deficit concerned word fluency and it was apparent that the claimant was afflicted by temporary “stage fright” as opposed to exhibiting a real deficit in this area. She was a detailed historian with no overt language difficulties.
There was normal cervical (lordotic) posture associated with tenderness at the right trapezius and AC (acromioclavicular) joint. She reported subjective sensations of neck “crunching” with side-to-side movements. There was preserved (100%) neck flexion, mild reduction of neck extension (80%), 2/3 normal leftward rotation and lateral flexion and ½ normal rightward rotation and lateral flexion. She winced whilst turning the head towards the right.
There was no muscle spasm or guarding.
There were no non-verifiable upper limb radicular symptoms.
The upper limb reflexes were present and symmetrical.
There was no measurable wasting of the arms (39 cm) or the forearms (34 cm) at corresponding points.
The Panel examiners noted non-dermatomal/non-anatomical sensory loss at the right hand and forearm.
Hallpike’s manoeuvre was unremarkable. There was no nystagmus elicited with head turn to either side on this occasion.
Gait was normal and well balanced.
There was no wasting at the right shoulder girdle compared with the left.
At the right shoulder, there was a full range of active abduction and flexion with mild diminution of adduction 45 degrees (compared with 50 degrees on the left), IR (internal rotation) of 65 degrees (80 degrees on the left), extension 40 degrees (55 degrees on the left) and ER (external rotation) 90 degrees bilaterally. Right-sided impingement signs were positive with pain induced on internal rotation manoeuvres.
The claimant could only reach the right hand behind to the thoracolumbar junction whereas on the left, she reached to the inferior angle of the scapula. In other words, there was some right-sided restriction of the hand behind back manoeuvre.
There was full range of motion at the left shoulder in all planes of motion.

Examination findings

Based on the evidence before the Panel and the claimant’s statement to the Panel examiners at the re-examination, the Panel accepts that the claimant sustained soft tissue injuries to the left wrist, left knee, right arm and sternum caused by the motor accident and that these injuries have now all resolved. Accordingly, the injuries to the left wrist, left knee, right arm and sternum are threshold injuries.
Based on the evidence before the Panel and the claimant’s statement to the Panel examiners at the re-examination, the Panel accepts that the claimant sustained a soft tissue exacerbation of previous injuries to the lower back in the motor accident and that the claimant’s ongoing symptoms to the lower back are not due to the accident. This is a threshold injury.
The medical evidence before the Panel supports the occurrence of a soft tissue injury to the neck although the Panel examiners found no evidence to support the presence of an upper limb (cervical) radiculopathy. There were not the two findings necessary to say that radiculopathy was present, in accordance with the Guidelines.
There was some asymmetry of neck movement associated with pain complaint and there was some tenderness at the neck base and right trapezius, although there were no abnormal clinical findings at the cervical spine. There is no medical evidence before the Panel to confirm the presence of a radiculopathy at any stage since the motor accident.
Accordingly, the Panel finds that the claimed neck injury is a threshold injury.
The claimant does not meet the criteria in the Guidelines for the occurrence of traumatic brain injury due to the motor accident.
Paragraph 6.164 of the Guidelines states with reference to the cerebrum or forebrain:
“For an assessment of mental status impairment and emotional and behavioural impairment there should be:
(a) evidence of a significant impact to the head or a cerebral insult, or that the motor accident involved a high-velocity vehicle impact, and
(b) one or more significant, medically verified abnormalities such as an abnormal initial post- injury Glasgow Coma Scale score, or post traumatic amnesia, or brain imaging abnormality.”
In the claimant’s case, there is no medically verifiable/documented diminution of GCS (based on the history provided by the claimant, GCS was consistently 15/15) despite her feelings of wooziness after the motor accident. She was able to drive herself home afterwards and she has full, very detailed recollections of events which are not compatible with the claimant having medically verified GCS diminution or PTA (post-traumatic amnesia) duration.
A brain scan was not considered necessary during the immediate aftermath of the motor accident. A subsequent MRI brain scan 3 March 2021 showed no signs of any traumatic injury.
The claimant developed bi-occipital headaches after the accident although they have settled with occipital nerve injections. She reports that these headaches intensified after she returned to work (in front of computers and under bright fluorescent lights), and she related the latter headaches to the neck injury caused by the accident. She still has headaches although they are less severe and less frequent. She has not required further injections to the occipital nerves and she is not taking any headache prevention medication. Mostly her headaches are of tension type with moderate severity and she can remain up and around. Occasionally there are more severe headaches with migrainous intensity confining her to bed. Given the occipital location, it is reasonable to find she has developed cervicogenic headaches due to the soft tissue neck injury.
She developed positional vertigo with leftward head turn after the motor accident. The treating physiotherapist documented a positive left sided Hallpike manoeuvre (a clinical test used to diagnose an inner ear disorder causative of dizziness) on 14 July 2021, although this was not until some five months post-accident, a considerable time afterwards and therefore not supportive of a causal nexus with the subject motor accident. She has received vestibular physiotherapy (incorporating otolith re-positioning manoeuvres) with some incomplete improvement in the symptoms.
The ongoing complaints of giddiness are not entirely typical of BPPV (benign positional vertigo) which is normally of a few seconds duration as opposed lasting several minutes as reported by the claimant. The cause of the claimant’s ongoing dizziness is unclear to the Panel medical assessors although the Panel finds that the ongoing dizziness is not due to traumatic brain injury from the motor accident.
Thus, the Panel finds that the claimant has not suffered any traumatic brain injury, as defined by the Guidelines, due to the subject motor accident. At most there has been a soft tissue injury of the head due to the accident, and thus a threshold injury.
Regarding the right shoulder, there is no evidence of the presence of right-sided rotator cuff tearing before the accident.
While the Panel acknowledges that the findings on the pre-injury January 2021 ultrasound (no cuff tear) and post injury April 2021 MRI of the right shoulder (infraspinatus and supraspinatus tears) are not directly comparable, the Panel is satisfied that, based on the radiology and the history obtained, the claimant suffered tears to the infraspinatus and supraspinatus tendons of the right shoulder as a result of the accident.
Clinically the Panel examiners found signs of persistent right-sided (rotator cuff) impingement with mild residual motion restriction consistent with a supraspinatus tear.
The claimant reported being able to lift the right arm 90 degrees pre-motor accident with range of motion decreasing to around 20 degrees in the immediate aftermath of the accident. At the time of the right shoulder injection (2 days post-accident) there were only 45 degrees of active abduction observed, as reported by the radiologist.
There has been considerable improvement in range of right shoulder motion since the accident with the claimant now able to elevate the right arm to full range although there is mild residual loss of internal rotation and extension at the right shoulder compared with the uninjured left shoulder, with ongoing positivity of impingement signs.

FINDINGS

For the above reasons and on the examination findings, the Panel is satisfied that the claimant sustained a right-sided rotator cuff tears to the infraspinatus and supraspinatus tendons of the right shoulder as a result of the accident. This is a not a threshold injury as defined in the MAI Act.
Accordingly, the claimant’s injury to the right shoulder caused by the motor accident is a non-threshold injury.

CONCLUSION

The following injuries caused by the motor accident:
·        head – soft tissue injury;
·        cervical spine – soft tissue injury;
·        lumbar spine – soft tissue injury;
·        right arm – soft tissue injury;
·        left wrist – soft tissue injury;
·        sternum – soft tissue injury;
·        left knee – soft tissue injury;
are THRESHOLD INJURIES for the purposes of the MAI Act.
The injury to the right shoulder - rotator cuff tears to the infraspinatus and supraspinatus tendons is a NON-THRESHOLD INJURY for the purposes of the MAI Act.
The Review Panel revokes the certificate of Medical Assessor Ian Cameron dated

21 February 2023 and issues a replacement certificate which forms part of this determination.

[i] Sections 3.11 and 3.28 of the MAI Act. From motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks.

[ii] Section 4.4 of the MAI Act.

[iii] Section 7.20 of the MAI Act.

[iv] Section 41(2) of the PIC Act.

[v] Rule 128 of the PIC Rules.

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

[vii] Clause 5.9 of the Guidelines.

[viii] See s 3B(2) of the Civil Liability Act 2002.

[ix] Insurer’s bundle – page 282.

[x]Insurer’s bundle – page 281.

[xi] Insurer’s bundle – page 282.

[xii] Insurer’s bundle – page 57.

[xiii] Insurer’s bundle – page 75.

[xiv] Insurer’s bundle – page 113.

[xv] Insurer’s bundle – page 126 – 149.

[xvi] Insurer’s bundle – page 59.

[xvii] Insurer’s bundle – R 17- no specific page references provided.

[xviii] Insurer’s bundle – page 480.

[xix] Insurer’s bundle – page 57.

[xx] Claimant’s bundle – page 23.

[xxi] Claimant’s bundle – page 23.

[xxii] Claimant’s bundle – page 23.

[xxiii] Claimant’s bundle – page 25.

[xxiv] Claimant’s bundle – page 282.

[xxv] Insurer’s bundle – page 11.

[xxvi] Insurer’s bundle – page 280.

[xxvii] Insurer’s bundle – page 280.

[xxviii] Claimant’s bundle – page 81.

[xxix] Claimant’s bundle – page 38.

[xxx] Insurer’s bundle – page 156.

[xxxi] Insurer’s bundle – page 159.

[xxxii] Claimant’s bundle – pages 38-39.

[xxxiii] Claimant’s bundle – pages 39-40.

[xxxiv] Claimant’s bundle – page 38.

[xxxv] cf El-Mohamed v Celenk [2017] NSWCA 242 at [16].

[xxxvi] Insurer’s bundle – page 280.

[2023] NSWPICMP 627

28 November 2023