Mastroianni v AAI Limited t/as GIO

[2024] NSWPICMP 58

DETERMINATION OF REVIEW PANEL

CITATION:

Mastroianni v AAI Limited t/as GIO [2024] NSWPICMP 58

CLAIMANT:

Michele Mastroianni

INSURER:

AAI Limited trading as GIO

REVIEW PANEL

MEMBER:

Alexander Bolton

MEDICAL ASSESSOR:

Tai-Tak Wan

MEDICAL ASSESSOR:

Michael Couch

DATE OF DECISION:

6 February 2024

CATCHWORDS:

MOTOR ACCIDENTS – Review application by claimant of certificate of Medical Assessor (MA) Cameron dated 1 April 2022 going to determination of whether a soft tissue injury to the claimant’s cervical spine radiculopathy, lumbar spine, right hip osteoarthritis and radiating injury from neck to both arms/shoulders; radiculopathy and injury to head were threshold injuries; assessment of radiculopathy by claimants GP but no radiculopathy observed at time of medical examination; Panel approved reasons in David v Allianz Australia Insurance Limited that radiculopathy could be assessed by someone other than a member of the Review Panel and at another time but post-accident; Panel not satisfied that injuries to the claimants arms and hips were causally related to the accident; Held – decision of MA Cameron affirmed; the claimant had suffered threshold injuries of her cervical spine, lumbar spine and head and that observations of radiculopathy were with regard to pre-existing conditions of the claimant and the claimant had failed to establish causation in this regard.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

Determination

1.     The Review Panel affirms the determination of Medical Assessor Cameron dated 1 April 2022

2.     The Review Panel determines that the following injuries caused by the accident:

(a)   cervical spine – soft tissue injury;

(b)   lumbar spine – soft tissue injury, and

(c)   head – soft tissue injury

are a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act.

.

STATEMENT OF REASONS

INTRODUCTION

1. By her application dated 26 May 2022, Michele Mastroianni (the claimant) seeks review of the certificate of Medical Assessor Cameron (the Medical Assessor) dated 1 April 2022 (the Certificate) pursuant to s 7.26 of the Motor Accidents Injuries Act 2017 (NSW) (the Act).

2. The following injuries were referred by the Personal Injury Commission (Commission) for assessment:

   right hip – osteoarthritis;
   cervical spine/neck - nerve compression causing cervical radiculopathy;

   lumbar spine/back - tenderness and restricted range of motion;
   head - concussion; headache migraine, and
   arm - Radiating injury from neck to both arms/shoulders – radiculopathy.

3. The Medical Assessor found;

   “The following injuries WERE caused by the motor accident:
   Cervical spine – soft tissue injury
   Lumbar spine – soft tissue injury
   Head – soft tissue injury
   These are the injuries listed in the application expressed in usual medical terminology with the exceptions shown below. There is no evidence that radiculopathy as defined in the Motor Accidents Guidelines is present in the upper extremities. There may have been a soft tissue injury to the head but there is not an assessable brain injury because there are no medically verified abnormalities in level of consciousness or other indicators of brain injury.
   The following injuries WERE NOT caused by the motor accident:

   Right hip – osteoarthritis

   Arm - Radiating injury from neck to both arms/shoulders - radiculopathy

   As noted above there is no evidence of an injury to the right hip and the osteoarthritis was present prior to the motor vehicle accident. The arm ‘injury’ is a description of symptoms rather than an injury to a body part. As noted above radiculopathy as defined in the Motor Accidents Guidelines is not present.
   The following injury caused by the motor accident:

   a)Cervical spine – soft tissue injury

   b)Lumbar spine – soft tissue injury

   c)Head – soft tissue injury

   is a MINOR INJURY for the purposes of the Act.”

The accident

1. The claimant said that she was involved in a motor vehicle accident on 9 May 2019. She was the driver of an SUV Holden Captiva (2009). She said that she was travelling slowly over a speed bump, when a car from a side street on her right, t-boned her vehicle, colliding with the front corner of her vehicle.

2. No airbags were deployed. The claimant was able to get out of her car unassisted.

3. No police or ambulance attended.

4. According to a note in the certificate of Medical Assessor Wijetunga of 25 June 2020, the claimant could not recall whether she hit her head against the car window at the time. The claimant drove home.

5. Medical Assessor Wijetunga assessed the claimant for the purposes of assessment of entitlement of treatment and care.

6. Subsequently the claimant developed headaches and shoulder pain. She saw her general practitioner (GP) and had one day away from work.

The injuries

1. The following injuries were referred by the Commission for assessment:

   (a)   right hip – osteoarthritis;

   (b)   cervical spine/neck - nerve compression causing cervical radiculopathy;

   (c)   lumbar spine/back - tenderness and restricted range of motion;

   (d)   head - concussion; headache migraine, and

   (e)   arm - Radiating injury from neck to both arms/shoulders – radiculopathy.

The legislation

1. Part 7 of the Act contains provisions relevant to the resolution of disputes. Division 7.5 provides for the internal review by insurers of medical disputes before a matter can be referred for medical assessment, procedures for medical assessment and the ability for a party to seek one further medical assessment and the review of medical assessments.

2. The insurer’s application for review is made under s 7.26 of the Act. Pursuant to s 7.26(5A) the Review Panel is to be constituted of a Member of the Commission and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.

3. Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before the Review Panel.

4. The Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act and Rule 128 provides that a Review Panel can determine how it conducts and determines the proceedings before it.

Consideration of the issues by the Review Panel

1. Clause 5.6 of the Motor Accident Guidelines (the Guidelines) provides guidance to treating practitioners, medico-legal practitioners and medical assessors as to how to conduct a medical assessment and is set out below:

   “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.”

Does the claimant have cervical and/or lumbar radiculopathy?

1. Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in minor injury assessments.

2. In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in clause 5.6 as follows:

   “Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ...

   (a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)

   (b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)

   (c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)

   (d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution

   (e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”

3. For the claimants injuries to fall outside the definition of minor injury in s 1.6, she would need to have two of the above signs. Pain is not one of the five signs of radiculopathy which might indicate an injury to a spinal nerve root.

4. The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.

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

6. For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.

7. Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52 week limitation period.

Bundles of documents

1. The parties have each presented their respective bundles of documents upon which they rely. The Review Panel have read all the documentation. If a particular document is not referred to by the Review Panel, this does not mean that the Review Panel or a Review Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.

The claimant’s submissions

1. The claimant submits the following grounds for review:

   (a)   the Medical Assessor did not adequately consider the relevant material put before him. The claimant says that the Medical Assessor has not at all acknowledged two vitally important pieces of medical evidence in the Certificate:

   ·the medical report by Dr Merey, GP, dated 26 August 2020 (A20 in the claimant’s application), and

   ·the MRI of the cervical spine dated 17 August 2020 (A15 in the claimant’s application).

   (b)   The claimant submits that it therefore follows that even if the Medical Assessor did consider those documents, then he ought to have exercised his duties in the following manner:

   ·make a finding that the claimant suffered from radiculopathy based on Dr Merey’s examination, even if the Medical Assessor could not find radiculopathy symptoms at the time of the assessment. The claimant says that this submission is guided by the principles enunciated in the Commissio’s decision in David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227 (25 November 2021) from paragraphs [84] to [104]. Specifically, [98], [99], [102], [103] and [104].

2. The claimant says a query should have been made of the claimant as to the source of the “numbness in the arms” as referenced on page 3 of the Certificate. If the Medical Assessor found any inconsistencies in the claimant’s history, the contemporary medical evidence, and his own assessment, then the claimant says the Medical Assessor ought to have provided the claimant with an opportunity to explain the inconsistency. The claimant says that failure to do so amounts to a denial of procedural fairness. Regardless, it is submitted that the assessment never had the opportunity to reach this stage of enquiry because the Medical Assessor either was not aware of the existence of the aforementioned documents or did not adequately consider them.

3. The claimant submits that the Medical Assessor has erred in finding that the claimant was not suffering from radiculopathy at the time of examination but rather, should have considered that the existence of radiculopathy at any time subsequent to the motor vehicle accident necessitates a determination that the claimant suffers from cervical radiculopathy and therefore has a non-threshold injury. In support of this submission, the claimant again relies on David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227 (25 November 2021).

4. The claimant says that her GP provided a letter of 26 August 2020 and said:

   “…There is tingling when lifting arms, both sides up to about 90, her fingers become tingly. The claimant says that this is a sign of nerve compression causing cervical radiculopathy.
   Even without elevating her arms her hands and feet get tingly during the day, caused by nerve compression.
   MRI detected posterior disc protrusion at C5/6 levels with associated bilateral foraminal narrowing of moderate degree at C5/6 levels.
   Disc protrusion and foraminal narrowing is the usual cause for nerve compression.
   In this case the C5/6 disc protrusion is detected with foraminal narrowing at C5/6, both sides, causing bilateral cervical radiculopathy, that is causing pain, weakness and tingling both arms.
   The patient’s symptoms of pain, weakness and tingling both arms are consistent with cervical radiculopathy”.

5. The claimant submits that based on this letter, the Medical Assessor should have found that the claimant suffered from radiculopathy based on Dr Merey’s examination, even if the Medical Assessor could not find radiculopathy symptoms at the time of the assessment. The claimant again says that this submission is guided by the principles enunciated in David’s case.

6. The claimant also relies on an MRI scan of 17 August 2020 which shows:

   “Disc degeneration and posterior disc protrusion at C5/6 associated bilateral foraminal narrowing of moderate degree, more marked on the right than the left. Apophyseal joint arthrosis at C7/T1. No other abnormality seen”.

7. The claimant submits that relying on the report of Dr Merey of 26 August 2020, an assessment of numbness, tingling, and weakness satisfies at least two criteria for radiculopathy as set out in the Motor Accident Guidelines at 5.8.

8. The claimant says further that radiculopathy is an example where the symptoms fluctuate over time because the extent of the compression of the spinal nerve root may vary due to inflammation on the nerve root. Symptoms may subside if the inflammation reduces and return because the injured disc is exacerbated by innocuous activities.

9. Further, the claimant says that clause 4 of the Motor Accident Injuries Regulations (the Regulations) broadens the definition of “threshold injury” to include an injury to a spinal nerve root that “manifests in neurological signs (other than radiculopathy)”. The claimant submits that there is no requirement in clause 4 that the radiculopathy be present at the time of the assessment by a Medical Assessor.

10. The claimant says that the reference to “manifests in neurological signs (other than radiculopathy)” suggests that the radiculopathy occurred at some point but not necessarily at the time of the examination by the Medical Assessor or the Review Panel. The claimant says that this interpretation is consistent with radiculopathy being a fluctuating condition.

11. The claimant submits that clause 5.6 requires that the “the assessment of whether an injury caused by the accident is a threshold injury” is based on many factors including prior records and assessments by treating doctors. The claimant says that there is no reason why the reference in clause 5.6(d) to a “through physical ... examination” must be undertaken by a Medical Assessor.

12. The claimant notes that clause 5.7 notes that an “assessment of whether or not radiculopathy is present is essential”. However, the claimant says that clause 5.7 refers to both “assessing” and the “assessment” as it refers to “assessing whether an injury” and that an “assessment” is “essential”.

13. The claimant submits that clause 5.6 and the surrounding clauses do not require that the assessment be made by a Medical Assessor, and it is sufficient that it be based on a clinical assessment of a medical practitioner independent from the insurer. The claimant says that the meaning of Part 1, clause 4 of the Regulations is satisfied if the radiculopathy is present at any time, although to constitute radiculopathy, at least two clinical signs must be established as specified by clause 5.8.

14. The claimant submits therefore, that it is implicit from this that the assessor ought to have regard to the relevant material presented before him in respect of the presence of radiculopathy. The claimant says that the failure to do so is a material error by the Medical Assessor because the material reveals that the claimant suffers from radiculopathy as assessed by her GP and which would be considered a non-minor injury.

15. The claimant submits that it is clear that the assessment of radiculopathy can be undertaken by a treating GP. The claimant says that there is no requirement in clause 5.5 that the assessment be undertaken by the Medical Assessor at first instance or, on review, by the Review Panel. The reference to “other suitably qualified person independent from the Insurer”, the claimant suggests that the assessment can be undertaken by a treating doctor.

The insurer’s submissions

1. The insurer has only lodged submissions by way of a reply to the claimant’s application for review of the Certificate of the Medical Assessor. These submissions do not assist the Review Panel and seem only to be a confirmation of the reasons of the Medical Assessor. The main purport of the submissions is to say that the Medical Assessor was not incorrect in his assessment.

2. The insurer notes that the claimant’s solicitor submits the following ‘treatment and care’ is also in dispute:

   (a)   whether the request for a further eight sessions of chiropractor treatment in Allied Health Recovery Request No. 4 dated 15 February 2021 is reasonable and necessary.

   (b)   Whether the request for a further eight sessions of chiropractor treatment in Allied Health Recovery Request No. 4 dated 15 February 2021 will improve recovery.

3. The Review Panel has before it a review only of assessment of Medical Assessor Cameron and not also the assessment of Medical Assessor Wijetunga which dealt with a treatment and care dispute.

4. The insurer submits that injuries to the following bodily regions are in dispute:

   (a)   cervical Spine;

   (b)   head, and

   (c)   chest/ribs.

5. The insurer notes, based on photographs of the claimant’s vehicle, the claimant was involved in a low-impact collision, resulting in minor damage.

6. The insurer says that following the subject motor vehicle accident, the claimant did not require treatment at the scene by ambulance officers nor require treatment at a hospital.

7. Therefore, the insurer submits, the photographs of the claimant’s vehicle and lack of ambulance/hospital involvement attests to the ‘minor’ nature of the claimant’s injuries.

Medical evidence

1. A review and summary of the medical evidence follows.

   Certificate of capacity, Dr Merey, 15 May 2019:

   This diagnoses concussion, whiplash injury of neck and upper back.

   Warringah Medical Centre clinical notes, documenting consultations from January 2018 to September 2019:

   1 April 2010 – had headaches, stress related. This had to do with difficulties in family.

   13 January 2011 – requested Panadeine Forte for headaches. Further headaches were documented in August 2011.
   22 November 2011 – she described getting daily headaches.
   11 May 2013 – neck strain for which she was taking Voltaren.
   10 August 2013 – lower back pain with restriction of movement.
   23 November 2013 – recurrent neck pain from whiplash movement.
   21 March 2014 – whiplash in 1998 after motor vehicle accident with right shoulder pain and pain to left eye.
   1 June 2014 – chronic right sided headache.
   October 2014 – had seen a neurologist because of hand and feet paraesthesia.
   24 February 2015 – soreness right forehead, back of head and right shoulder.
   12 April 2015 – tense muscles and headaches quite often, for Celebrex and massage.
   20 December 2016 – woke up with lower back pain, no injury/trauma. For fitness to drive assessment and she was seen a couple of months prior for aneurysm.
   27 May 2017 – saw rheumatologist with regard to painful hips and left foot. Was due for an ultrasound of the left foot.
   11 April 2018 – painful hips and cortisone injections and physiotherapy was suggested.
   20 April 2019 – describes left shoulder pain and tender mid thoracic spinal pain.

1. The Review Panel noted that the above information confirmed that there were complaints of headache, neck pain, left shoulder pain and lower back pain prior to the subject accident.

2. Allied Health Recovery Request, 27 May 2019:

   For concussion and whiplash injury of neck and upper back.
   Internal review, 25 February 2020:
   This acknowledges the involvement in a motor vehicle accident on 9 May 2019, where the claimant experienced hip, neck pain, rib pain, shoulder blade pain and migraine.
   This request notes on the Personal Injury Benefits Claim on 15 May 2019, that they had just finished treatment with a physiotherapist with regard to hip arthritis and the motor vehicle accident had aggravated this.

3. Dr Merey completed a certificate of capacity on 15 May 2019, which diagnosed whiplash of the neck and upper back and recommended simple analgesia and range of movement exercise. lt suggested that the claimant had no fitness for work.

4. An Allied Health Recovery Request on 27 May 2019, also provided a diagnosis of concussion, whiplash injury of the neck and upper back and described functional limitations to washing dishes for longer than 10 minutes, standing or sitting for longer than 10 minutes and experiencing headaches or migraines six to seven days a week. lt also noted that the active range of motion of cervical spine was limited by 5% to 10%.

5. The clinical entries from Warringah Dental and Medical Centre from 7 November 2011 to 14 May 2019, note a background history of migraine documented in November 2011 with recurrent neck pain documented in 2013 and pain in left shoulder documented in April 2019 with lower back also documented in March 2019. The clinic considers that the 23 sessions of physiotherapy provided is sufficient and it is not reasonable or necessary to continue with physiotherapy treatment.

6. The claimant was reviewed by Medical Assessor Wijetunga about a treatment and care dispute.

7. Medical Assessor Wijetunga noted that in 2017, the claimant consulted a rheumatologist with regard to hip and lower back pain. She was advised that she had osteoarthritis. Prior to the subject accident, she was attending physiotherapy for treatment of her hips.

8. The claimant reported to Medical Assessor Wijetunga that prior to the subject accident, she had experienced headaches and believed that these were stress related and the muscular pain was related to stress in her life at the time and repetitive typing which she was undertaking firstly at university and then as part of her teaching duties.

9. The claimant also reported that she had been diagnosed with dilatation of the ascending aorta, which was being monitored by her cardiologist.

10. There are three photographs which have been produced. These are not helpful. Only one photograph is able to identify an area of damage on the front right hand side of a car. The Review Panel assumes that this is the claimant’s car but no attempt is made to refer to the photograph and damage and to identify it.

11. Medical Assessor Cameron, in his certificate of 1 April 2022 found that in accident on 9 May 2019, the claimant sustained a soft tissue injury to her neck and her back. He said that there was no head injury. He also said that there was no evidence of radiculopathy as defined in the Guidelines. The Medical Assessor commented that the claimant had significant ongoing symptoms following the accident.

12. The Medical Assessor found that the injuries suffered by the claimant as a result of the accident were threshold injuries to her neck and back.

13. The Medical Assessor said that there was no evidence that the claimant’s hip osteoarthritis was related to the accident. He said that it was present prior to the accident and there was no evidence of an exacerbation or aggravation as a result of the subject accident.

14. The Medical Assessor said that causation was established based on the information provided by the claimant and the clinical reports that had been provided.

Medical examination

1. The claimant was examined by Medical Assessor Wan. His report follows;

   “The claimant is a 47-year-old casual teacher. She attended the assessment alone. The assessment, including history taking, cognitive functions assessment and physical examination, lasted for 2 hours.

   The Panel is to review the certificate of Ian Cameron dated 1/4/2022 for minor injury disputes. The Panel decided that we have to do a de novo examination for all the injuries.

   Date of birth: 6 January 1976

   Date of accident: 9 May 2019

   The following injuries were referred by the Personal Injury Commission for assessment:

   ·Right Hip -osteoarthritis

   ·Cervical spine/neck – nerve compression causing cervical radiculopathy

   ·Lumbar spine /back -tenderness and restricted range of motion

   ·Head – concussion; headache migraine

   ·Arm - radiating injury from neck to both arms /shoulders - radiculopathy

History as Given by the Injured person

Pre-Accident Medical History and Relevant Personal Details

Ms Dejan Mastroianni is 47 years old working as a casual school teacher. Prior to the subject motor vehicle accident (MVA), she taught in primary school. Now she teaches in high school. Her husband has a serious medical condition, and she is a carer for him.

Past Health

Ms Mastroianni has the following significant history:

·In 1997, she was a restrained driver involved in an MVA. She was hit by another car from behind. She did not go to the hospital and was seen by her GP at the time. She said she had ‘whiplash injury’ from that MVA. There was a passenger sitting in the rear seat who sustained some head and neck injuries. She returned to work the next day after the accident. She received a course of physiotherapy and massage therapy. Her CTP claim was settled in 2000. She got $20,000 lump sum after all the costs (including solicitor cost) but she could not tell me how much WPI was assessed.

·Arthritis of both hips – diagnosed as ‘degenerative changes’ with pain for few years. She was seen by a rheumatologist, Dr Kannangara, who told her that she will need a total hip replacement (THR) later.

·Aortic aneurysm, diagnosed in 2016.

·Bicuspid aortic valve, with dilated ascending aorta, diagnosed in 2015. She is seeing a cardiologist, Dr Celermajer. The ‘aneurysm’ which is now 4.1 cm in diameter, is monitored regularly.

·PTSD in 2000, when there was robbery in the bank where she worked as a teller. She was seen by psychologist at the time. She is seeing a counsellor regularly

She said she is allergic to Augmentin.

Social History

Ms Mastroianni was born in Australia. She has a Bachelor degree in education (as a mature student around 2009-2015). She studied Year 12 in 1994, but it was not clear her UAI scores. She said her school performance was average. Her best subjects were English and Arts. Her worst subject was mathematics.

After university, she worked as an assistant manager for few years. She then studied a ‘international travel diploma’ from an Accreditation body of Travel Agents. She moved to Adelaide in 1997, and worked for Kmart for a while, then ran her own Pizza shop business.

She returned Sydney in 1999 and worked as a Bank Teller for 1 year. She then quitted the job after a robbery in the bank. She suffered PTSD after the incident. There was a Workcover claim which settled in 2005.

She then worked as a travel agent for Flight Centre for 2 years. However, she had to stop working because the Workcover insurer said she could not work as she still receiving rehabilitation.

She then owned a cleaning business with her husband on and off, while having 2 children (2005-2007). The cleaning business was closed in 2007. She said her husband then became very sick in 2011 after a stroke, complicated by multiple DVT. He then had a stage 4 lung cancer, and secondary to brain (Jan 2022). She has had NDIS funding for domestic help (4 times a week). Her husband has been receiving multiple therapies, such as chemotherapy and radiotherapy. Currently he is responding to the treatment, but his disease causes a lot of stress to her.

She started to work as a teacher in 2014. She now works a casual teacher, around 3 to 6 hours per day, 2 days per fortnight. She teaches any subjects allocated to her.

She lives with her husband (46 years old) and 2 daughters (16 and 18 years old, both students), in a duplex with 2 steps at the front. She said sometimes she may have difficulty walking the steps.

She is a non-smoker and a non-drinker.

She drives an automatic car.

She does not play any sport.

She said she shares the housework with her husband and children.

History of the Motor Accident (from the claimant)

Ms Mastroianni said on 9 May 2019, at about 8 am, she drove home after dropping her daughter at school. There was no passenger. She was wearing a seat belt, and there was headrest on the car seat. While she was travelling on the Quirk Road, Manly Vale, at an unknown speed, her car was hit by a car coming out of a side street at the driver side of her car. The airbag was not deployed. She said although she was shocked, she opened the door and got out of the car by herself and exchanged particulars with the driver of the other car involved. No police or ambulance attended the scene. She did not go to the hospital or seek medical advice on the day. She then drove the car home and called the school that she would not attend the school on that day. She said the car was later repaired.

Apparently, there was no loss of consciousness (LOC) and she could recall all the details of the accident. There was no retrograde amnesia or anterograde amnesia and no evidence of post-traumatic amnesia (PTA).

History of Symptoms and Treatment Following the Motor Accident

She said she then consulted a GP, Dr Chong in a medical centre on that day because she had neck pain, pain in her back and head. She then had some x-rays which showed no fractures nor significant injuries. She received physiotherapy and remedial massage, starting a month after the MVA, once a week for 8 sessions each, and felt better with the treatment. These treatments were stopped because of the COVID, and the physiotherapist then retired.

She consulted a chiropractor starting 6 months after the subject MVA, who said the headache was due to problems of the neck, and requested an MRI scan, which showed a disc protrusion in the neck.

She said on the date after assessment by Assessor Cameron in April 2022, she started to complain of vertigo with some nausea. She confirmed that there was no vertigo prior to the Assessor Cameron’s appointment. She consulted a neurologist, Dr Cremer, who has done some tests and suggested it might be ‘BPPV’ (benign proximal positional vertigo). It could be related to stress. She was advised to do exercises with physiotherapist for the vertigo, but she has not done that. She said her mother also has vertigo

She was also referred to a cardiologist who has done some investigations for the heart, but apparently no significant abnormalities were found.

She continues to work since the accident.

She could not recall seeing any brain injury specialist or neuropsychologist.

She could not recall seeing any occupational therapist, or vocational rehabilitation provider in assisting return to work (RTW).

Details of Any Relevant Injuries or Conditions Sustained Since the Motor Accident

Ms Mastroianni denied any history of significant accidents, injuries or other relevant conditions sustained since the subject MVA.

Current Symptoms

Her current complaints are as follows:

·Numbness of both hands, affecting all fingers, and aggravated by wrists extension. The numbness may spread to the whole arms, left worse than the right.

·Pain in both shoulders, 10/10 in visual analogue scale (VAS). It is a complex pain, ‘intermittent ache + sharp pain + weakness, debilitating’

·Upper back pain ‘between the shoulder blades’, 7/10 in VAS. It is a ‘cramp’ and intensity can vary from day to day. She could not identify any relieving or aggravating factors.

·Sometime the upper back pain can radiate to the lower back.

·Hips pain, worse on the right side, about 5/10 in VAS. It is an intermittent ‘shooting pian’ and can radiate to the knees. It is aggravated by the walking. She agreed that the hip pain started before the subject MVA, but ‘getting worse’ after the subject MVA.

·Headache – sometimes on the left side, sometimes on the right. It is a throbbing pain, sometimes associated with nauseas, but usually no visual or auditory symptoms. She labelled it as ‘migraine’, She believes that headache started only after the subject MVA.

·Sleep is poor, usually due to early waking, but can also due to late sleeping. She snores at night but has never checked whether she has sleep apnoea.

·Memory is worse recently, ‘since the end of 2020’. She said sometimes she forgets the appointments, or part of the story when she was young. When asked about any change in personality, she said she is stressed and sometimes has nightmares.

She reported no problem in the bowel and bladder functions.

She said at most she can sit for 30 minutes, stand for 15 minutes and walk for 15 minutes. She can drive for 20 minutes, and then the feet can get numb.

She is independent in the personal hygiene care and most activities of daily living (ADL). She said she still does most of the housework, although less than before the subject MVA, which is now done by the family.

Current and Proposed Treatment

Ms Mastroianni stated that She has been taking the following medication:

·Valium 5 mg prn

·‘natural ginger tablets’ when necessary

·Maxolon when necessary

·Endep 10 mg Nocte

·Mersyndol forte as necessary for ‘migraine’

·Nervoderm patch for shoulder pain

·Olmesartan 20 mg daily

·Topical physio cream or Voltaren cream

She said she once received physiotherapy, but has ceased it now. She still has remedial message, and chiropractic treatment.

She sees her psychologist for sometimes after the bank robbery. She still sees a counsellor because of PTSD.

Findings on Clinical Examination

Clinical Examination

Examination on 26 June 2023 showed that Ms Mastroianni was orientated and alert. She said she is 165 cm tall, and weighs 63 Kg, which gave a BMI of 23, in the ‘normal’ range. Significant pain behaviours were observed during the interview. She walked independently without walking aid in a normal symmetrical gait. She could walk on tip-toes, on heels, and in tandem (heel-toes) way. She could only half squat, complaining pain in the back, She could dress and undress independently. She could get on the examination couch independently. There were no cerebellar signs. Romberg’s sign was normal.

She is right hand dominant.

Examination of the head showed no conspicuous scars, swellings, or deformities. Smell sensation was normal. Visual fields tested by confrontation were normal on both eyes. There was no nystagmus or diplopia. There was no gross hearing loss. There were no other motor or sensory deficits in the face and head. All the cranial nerves were intact. There was no difficulty in communication, both in expression and comprehension. There were no cerebellar signs found. Romberg test was normal.

Mental State Screening

She scored 29/30 in Folstein Mini Mental test (MMSE). She lost one mark in the short term verbal memory test. She scored 5/5 in both serial 7 test and reverse spelling test. She had no problem in copying figures including 3-dimensional cubes. She had no problem in alternating sequences. She drew a clock showing the current time well. Regarding written arithmetic tests, she got the correct answer for addition, but refused to try subtraction, multiplication and division, saying that she normally uses a calculator for calculation. She gave reasonable answers when asked to explain in her own words 2 common proverbs. She gave correct answers quickly when asked to give 3 differences and 3 similarities between apple and orange.

In summary, there was no evidence of cognitive impairment detected clinically in the mental state screening tests. The arithmetic test results most reflected her usual ability (mathematics was her worst subject in school), work experience, and habits of using calculator. Abstract thinking and executive function were within normal limits. Clinically there was no evidence of any cognitive impairment.

Considering the evidence available, including the circumstances of the accident, no LOC, retrograde amnesia and anterograde amnesia, no documented abnormal GCS (Glasgow coma scale) score or PTA score, and no documented abnormal brain scan finding, it is unlikely that Ms Mastroianni has sustained any brain injury in the subject MVA.

CERVICAL SPINE (Cervicothoracic)

Examination of the neck showed mild diffuse tenderness but no muscle spasm or guarding. There was no evidence of non-verifiable radicular complaints, and there were no features of radiculopathy. Active movements of the cervical spine were symmetrical and normal. All the active ranges of movement (ROM) of the spine were measured using an inclinometer and a goniometer]:

Cervical spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	normal	normal	4/5 normal	4/5 normal	normal	normal

There was no evidence of dysmetria (asymmetrical loss of motion).

THORACIC SPINE (Thoracolumbar)

Examination of the upper back showed no tenderness, muscle spasm or guarding. Active movements of the thoracic spine were symmetrical and within normal limits. There was no evidence of any non-verifiable radicular complaints nor radiculopathy:

Thoracic spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	Normal	Normal	Normal	Normal	Normal	Normal

LUMBAR SPINE (Lumbosacral)

Examination of the lower back showed mild tenderness in the lumber region, but no muscle spasm or guarding. Active movements of the lumbar spine were symmetrical and within normal limits. There was no evidence of dysmetria. There was no evidence of radiculopathy nor non-verifiable radicular complaints:

Lumbar spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	4/5 Normal	4/5 Normal	Normal	Normal	3/5 Normal	3/5 Normal

Straight leg raising was 60° in on both sides in supine position but 85° in on both sides in sitting position.

UPPER EXTREMITY

Examination of the upper limbs showed no gross muscle wasting. Measurements of mid- forearm circumference showed that the right side was 0.5 cm larger than the left side, which was within the normal limits, given that she is right hand dominant. Measurement of mid-arm circumferences were equal on both sides. Muscle power was normal in both upper limbs, both proximally and distally. Reflexes were normal and symmetrical in the upper limbs. She complained of subjective reduced sensation to pain and touch in both right upper and lower limbs which did not follow any dermatomal or peripheral nerve distributions. Phalen test and Reverse Phalen's tests were both negative.

Examination of the shoulders showed no tenderness, swelling or wasting. No crepitation was found on moving shoulders. Active movements of left shoulders were slightly restricted in the formal examination, [All the measurements are those of active movements. All the active ranges of movements (ROM) of the limbs were measured using a goniometer]:

Shoulder	Flexion	Extension	Abduction	Adduction	Internal Rotation	External rotation
Right /°	170	50	150	50	85	85
Left /°	170	50	150	50	85	85

Examination of the elbows showed no tenderness or swelling. Active movements of the elbows were symmetrical and within normal limits.

Examination of the wrists and hands showed no deformity or swelling. Active movements of the wrists, hands and fingers were all symmetrical and within normal limits.

LOWER EXTREMITY

Examination of the lower limbs showed no gross muscle wasting. Measurements of mid-thigh circumference and mid-calf circumference were equal on both sides. Muscle power was normal and symmetrical, both proximally and distally. Reflexes were normal and symmetrical on both lower limbs. There was subjective reduced sensation in touch and pain in right lower limb, which did not follow any dermatomal or peripheral nerve distributions.

Examination of the hips showed no deformity or swelling. There was no tenderness over the hip regions. FABER test was mildly restricted on both sides. Active movements of the hips were within normal limits:

Hip	Flexion	Extension	Internal Rotation	External rotation	Abduction	Adduction
Right /°	100	20	25	35	40	15
Left /°	110	20	25	35	40	15

Examination of the knees showed no deformity, swelling or effusion. There was occasional crepitations on moving both knees. There was no excessive antero-posterior or medio-lateral laxity or anterior-posterior laxity of the knees suggesting the cruciate and collateral ligaments were intact. McMurray’s test was normal on both sides, suggesting the menisci were intact. Active movements of both knees were symmetrical and within normal limits.

Examination of the ankles was unremarkable. Active movements of the ankles and feet were symmetrical and largely within normal limits.

Examination of the chest and the abdomen was unremarkable.

Consistency of Presentation

The clinical presentation was largely consistent with the complaints.

5. Review of Documentation

Relevant Imaging Studies and Other Investigations

The claimant did not bring any X-ray films or reports to the assessment, because ‘no one told me to do so’.

The Panel has reviewed the following relevant radiological reports enclosed in the supporting documentation:

·MRI cervical spine of 17 August 2020, taken at I-Med Network Radiology, reported by Dr Peter Wilson – which showed disc degeneration and posterior disc protrusion at C5/6 with associated bilateral foraminal narrowing of moderate degree, more marked on the right tan the left. There was apophyseal joint arthrosis at C7/T1. No other abnormality was seen.

·X-ray cervical and thoracic spine of 8/6/2020, reported by Dr Amit Chakraborty - which showed no significant abnormalities.

·MRI Brain, internal auditory canals (IACS) and Circle of Willis MRA, of 5 July 2022, taken at Lumus Imaging, reported by unknown radiologist – the test was ordered by Dr Philip Cremer. Unfortunately only page 1 of the report was enclosed in the document (p.488 of AD2). Since page 2 of the report was not seen, it was not clear what was the conclusion and who was the reporting radiologist. According to information of the page 1, no significant abnormalities was identified in IACS and brain.

·MRI cervical spine of 17 August 2022, taken at I-Med Network Radiology, reported by Dr Peter Wilson – which showed no change in the disc protrusion and disc degeneration at C5/6 since the previous study in August 2020. There was minimal posterior disc protrusion at C6/7 which has developed since the previous study, but no associated foraminal narrowing of significant was seen here. No other changes were seen.

Summary of Relevant Documentation Provided for the Initial Assessment

There is a large volume of documentation (about 2000 pages), and the review Panel has reviewed all the documents, but could only mention the most relevant documents.

·There was no police report, ambulance report or ED notes or discharge referral available.

·Police and ambulance did not attend the accident.

·In the APIB (Application for Personal Injury Benefits) dated 15 May 2019, it was stated the accident occurred on 9/5/2019 at Quirk Road, Manly Vale. She had a previous CTP claim in 1998. The claimant’s car was hit by a white van at the right front part. The claimant stated that, ‘… I feel like I have strained or pulled muscles on the right hand side of my body. Resulting in my hip neck, shoulder blade, rib pain. Also having migraine headaches on right side of head…’. Regarding previous injury, it was stated, ‘… I had just finished treatment with a physio who had discharged me from the service for hip arthritis as I was fine. This accident has severely aggravated my condition. I had not felt much pain since January 2019. I am now since the accident having to medicate and looking to return to physio…’.

·In a certificate of capacity signed by Dr Monica Merey, dated 14/5/2019, the diagnosis of ‘Concussion + whiplash injury of neck and upper back’. The treatments were, ‘…simple analgesic… gentle neck ROM exercise …’. The claimant stated, ‘… I have worked on the 10^th May and was paid…’.

·In a ‘Complete Record as at 11 September 2019’ (Document R10), apparently the clinical notes of ‘Warringah Medical & Dental centre’ which was printed in reverse chronological order, the earliest entry was recorded by Dr Cliff Turner, dated 16/1/2008. It was stated, ‘… Husband badly assaulted on Dec 17^th… Patient not cooping well with situation, not sleeping…’. No physical finding was recorded, and the treatment was, ‘… long discussion … temazepam…’. The claimant attended the clinic fairly regularly.

In an entry dated 1 April 2010, Dr Themi Garagounis stated, ‘…headache stress related; she is not doing much with medications, she has had problems with her husband who has had a breakdown …cns nad … plan of … mx… stress management cbt++…’.

In an entry dated 13 August 2010, Dr. Anthony Billiet stated, ‘….headache… Mersyndol Forte…’

In next entry dated 19 August 2010, it was stated, ‘…. On Mersyndol Forte for headache… warned about habituation to codeine…’.

In an entry dated 12 January 2011, Dr Jennifer Wines stated that, ‘…has found that Zyprexa 2.5 mg helped calm her mind a little but would like to increase dose … to 5 mg nocte…’.

The claimant continued to have headache and took panadeine forte. She was under al lot of stress from husband and children.

In an entry dated 16 June 2011, Dr Caroline Rogers stated, ‘…. Fresh red blood on paper yesterday; taking aspirin for whiplash pain, not taking panadeine forte, stress with husband being assaulted PTSD, is suffering with chronic stress/anxiety/tension…. Zoloft to 100 mg daily; stop taking aspirin… chiropractor…advised annusol and ^fibre…’.

In an entry dated 22 November 2011, Dr Rogers stated, ‘… CT normal, getting daily headaches, stress and anxiety related to husband’s illness, discussed regular daily exercise…’,

In an entry dated 17 September 2012, Dr Jennifer Wines stated, ‘…. Having heaches nearly daily for years. Had a ct scan last year nad…. Migrainous in that they are 1 sided and associated with visual defects which she has them…’.

The claimant continued to take Duromine, Valium and Zoloft.

In an entry dated 21 March 2014, Dr Swan Fong Chong stated, ‘…. Whiplash in 1998 MVA R shoulder pains to L eye behind. Took tabs…’. Treatment was acupuncture.

In an entry dated 1 June 2024 Dr John Macpherson stated, ‘… has a chronic right sided headache…’.

In next entry dated 13 June 2014, Dr Chong stated, ‘… R frontal headache…’. Treatment was acupuncture.

In an entry dated 15 September 2014, Dr Macpherson stated that, ‘…has seen a neurologist re hand and feet paraesthesia intermittent only at night…’. No treatment mentioned.

In an entry dated 12 April 2015 Dr Wines stated, ‘… tense muscles and headaches up back head quite often, for celebrex and massage. May try Tai chi…’. Treatment was Celebrex, Zoloft and Brevinor.

In an entry dated 25 November 2015, Dr Eduardo Alfaro stated that, ‘… dilated ascending aorta (4.1 cm a year ago). Bicuspid aortic valve detected 2013 after chest pain investigation. Prof Celermajer RPAH. Also concerned about her thyroid nodules… advised more exercise. Husband had stroke 2 years ago.… also advise on weaning off Zoloft…’.

In an entry dated 7 March 2016 Dr M Merey stated, ‘… Stressed++ husband had 2^nd stroke! ...’.

In an entry dated 27 May 2017, Dr Chong stated that, ‘… seen Dr Kanangra trouble with hip…. Painful hips and L foot…’.

in an entry dated 11 April 2018, Dr Merey stated, ‘…painful hips, bg OA. Dr Chia advise LA cort injn [cortisone injection] and physio…’

In an entry dated 2 July 2018, Dr Merey stated, ‘… had a fall last sat, developed palpitations …’.

In an entry dated 8 March 2019 (2 month prior the subject MVA), Dr Chong stated, ‘… teacher tired by recess, sore hips taking Panadol osteo 2 per day… sore L hip lower back …’.

In an entry dated 9 May 2019, Dr Chong stated, ‘… have motor car accident hit R side Van hit from R side… tender R ribs Actions: off work certificate … General X-ray…’.

Then in next entry dated 14 May 2019, Dr Merey stated, ‘… Rt sided pain temple – MVA last Thu. 9 May 2019. Cxr nad. Imp ? concussion?’. There was examination finding recorded. Treatment was Tramal.

The last entry in this printout was dated 11 September 2019, for urinary tract infection (UTI).

There was another ‘Complete Record as at 11 September 2019’ (Document R12), apparently the clinical notes of ‘Warringah Medical & Dental centre’, which probably was a duplicate of the above document (Document R10)

·In a report dated 26 March 2013 (p.734 of Document R1), Dr Siri Kannangara, a rheumatologist, stated he first saw the claimant on 22/2/2013 for 2 year history of pain after the right leg. Which was deep inside the right thigh extending from the groin down to the knee. There was no neuropathic features. He mentioned that, ‘…Her past medical history includes previous whiplash injury from a motor vehicle accident in 1997, which has left her with chronic headaches and left sided neck pain… social stress… taking Zoloft. Her current medications are Zoloft (commenced three weeks ago), and oral contraceptive pill…. Valium, Nurofen and Aspirin for her neck… The cause for Mrs Mastroianni symptoms is not entirely clear, but I wonder whether they could attributed to some mechanical pathology in the right hip…’.

·In a SIRA certificate dated 25 June 2020, Assessor Nel Wijetunga stated that she examined the claimant on 18 June 2020, for treatment disputes. She assessed that further 3 months period of physiotherapy and massage was related to the subject MVA, and was reasonable and necessary in the circumstances.

·The Panel has reviewed multiple certificates of capacity. In the Certificate of capacity dated 24 November 2019 issued by Dr Bui. The diagnosis was ‘Headache’. Treatment was ‘Head CT and analgesia’.

·The review panel has reviewed multiple ‘Allied Health Recovery Request’ forms for physiotherapy, remedial massage and chiropractor

·The Panel has reviewed the Insurer Outcome for internal review – minor injury (dated 8 October 2020) and treatment (dated 3 March 2021)

·The panel has noted the submission from the Claimant’s solicitor dated 21 January 2022.

·The panel has noted the submission from the Insurer’s solicitor dated 9 July 2021

·The panel has reviewed the photographs of accident dated 19 May 2019

Summary of Other Relevant Documentation

·        In a PIC certificate dated 18/5/2022, Assessor Ian Cameron stated that he examined the claimant on 18/3/2022. He assessed that:

oHead- soft tissue Injury

oLumbar spine - soft tissue injury

oCervical spine – soft tissue injury

were all threshold injuries. There was no evidence of brain injury, and no evidence of radiculopathy of the cervical or lumbar regions.

He also assessed that the following injuries were not caused by the MVA:

oRight hip – osteoarthritis

oArm – radiating injury from neck to both arm/shoulders - radiculopathy

·        The Panel has reviewed the Claimant’s submission dated 31 august 2022.

6. Conclusions

Diagnosis and Causation

·        Head injury/Brain injury

As discussed, there is no evidence of cognitive impairment from the history, and physical and mental examination. Therefore, there is no evidence of brain injury. She complained of vertigo starting from the date of examination by Assessor Cameron, in April 2022, which is one year after the subject MVA, and so the vertigo is very unlikely causally related to the subject MVA. I could not detect any nystagmus, diplopia and hearing deficit.

She complained of subjective reduced sensation in right upper and lower limbs, which was not mentioned in other reports, such as the certificate of Assessor Cameron. The sensory impairment pattern did not follow any dermatomal or peripheral distribution, and there was no brain scan abnormality documented. It could be functional (non-organic) complaints.

However, it is possible that she might have soft tissue injury of the head, but it is not documented. Therefore, the Panel accepts there might be soft tissue injury to the head but clinically it has all resolved. The panel therefore assessed that there is soft tissue injury to the head (but that has resolved).

The complaint of vertigo only started in April 2022 (nearly 2 years after the subject MVA), and is not recorded in the GP notes soon after the MVA. It is very unlikely vertigo caused by traumatic brain injury to present so late. The examining Panel member also could not elicit the vertigo during the examination. Therefore, it is unlikely to be causally related to the subject MVA.

·        Cervical spine injury

There is no evidence cervical radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 9.1: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

There is also no evidence non-verifiable radicular complaint.

There is no muscle spasm, guarding or wasting.

There is no radiological evidence of any damage to spine, disc or ligaments.

The Panel noted that the claimant had history of pre-existing MVA in 1997 with ‘whiplash injury’

However, considering the history and complaint, it is possible there was soft tissue injury to cervical spine, which might temporarily aggravate a pre-existing injury.

Therefore, the Panel assessed the cervical spine injury is a minor injury

·        Lumbar spine injury

There is no evidence of lumbar radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 9.1: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. There is also no evidence non-verifiable radicular complaint.

The Panel also noted that, from GP clinical notes, the claimant has since around 2015, been requiring treatment (celebrex, massage and Zoloft)

However, considering the history and complaint, it is possible there was soft tissue injury to the lumbar spine, which is a minor injury.

·        Right hip injury

Considering the circumstances of the accident, it may be possible that the claimant sustained some soft tissue injury to the hips but not initially documented. Furthermore, the physical examination showed that active movements of both hips were mildly impaired. However, from history given by the claimant, and the documents (GP notes and report from Dr Kannangara) it is clear that the claimant has had significant right hip pain prior to subject MVA with a diagnosis of osteoarthritis. The Panel is not convinced that there is clinical or radiological evidence to show that the accident has aggravated the condition.

Therefore, the Panel assess that the right hip osteoarthritis is NOT causally related to the subject MVA.

·        ‘Arm – radiating injury from neck to both arm /shoulders - radiculopathy

Although the claimant complained of reduced subjective sensation in both right upper and lower limbs, it did not follow any dermatomal or peripheral nerve distribution. As discussed above the criteria of radiculopathy of cervical spine are not satisfied. It could not be even classified as non-verifiable radicular complaints.

There was mild restriction in abduction of both shoulders, but there is no radiological evidence of significant injury to the shoulder joints or rotator cuff injuries. The restrictions are most likely due to the pain in that region, or inadequate effort, as Assessor Cameron and others found the movements of shoulders was normal.

Therefore, the Panel assesses that the ‘arm injury from neck to both arm/shoulder’ is not causally related to the subject MVA.

Summary of Injuries Listed by the Parties and Caused by the Accident

The following injuries WERE caused by the motor accident:

·Cervical spine – soft tissue injury

·lumbar spine – soft tissue injury

·Head – soft tissue injury

Summary of Injuries Listed by the Parties and Not Caused by the Accident

The following injuries WERE NOT caused by the motor accident:

·Right Hip -osteoarthritis

·Arm - radiating injury from neck to both arms /shoulders - radiculopathy

Conclusion – THRESHOLD injury

The following injury is a THRESHOLD injury:

·Cervical spine – soft tissue injury

·lumbar spine – soft tissue injury

·Head – soft tissue injury.”

1. The Review Panel adopts the findings of Medical Assessor Wan.

Causation

1. The claimant suffered an unexpected and sudden collision with the front right hand section of her car. The impact was not high speed and air bags were not deployed. However, the claimant’s car and the insured car were both moving at the time of impact. The Review Panel accepts that there would have been a jarring collision.

2. In these circumstances described, the Review Panel accepts that the claimant could have suffered injury to her cervical spine, her lumbar spine and her head.

3. The Review Panel has otherwise provided its reasons about the other injuries claimed to have been suffered.

Reasons

1. The Review Panel has explained its reasons within the medical examination report for its findings. However, some further explanation follows.

2. Regarding the complaint of cervical disc protrusion by the claimant, the Review Panel is cognisant that disc desiccation or dehydration is the natural process of aging. As the human body ages, the discs between two vertebra lose moisture. The outer ring of the disc as it ages and dries develops fissures or tears and the inner part of the disc can bulge or protrude into or extrude through these fissures or tears. Disc fissures or tears and bulges and protrusions can also occur in traumatic situations such as work related, domestic or car incidents or accidents where sufficient loading is placed on the spine.

3. The Review Panel acknowledges that there are no significant complaints of neck pain before the accident in the records and certainly no evidence of any neurological investigations or radiological studies undertaken of the claimant’s neck before 17 August 2020. However, as noted in paragraph 46, there is information confirming that there complaints of headache, neck pain, left shoulder pain and lower back pain prior to the subject accident.

4. The medical members of the Review Panel note that in their clinical experience, focal disc protrusion is a common radiological finding in the asymptomatic general population of the age of the claimant. It does not appear that she displayed symptoms soon after the accident to suggest that a cervical disc protrusion did occur at that time. There are current complaints of pain in the neck radiating from the neck to all over the arms and hands but there were no clinical neurological signs in the upper limb suggestive of C5/6 nerve root compression (or other spinal nerve root injury) evident before Medical Assessor Wan.

5. The Review Panel is not satisfied that the findings on the claimant’s cervical MRI were accident related and the medical members of the Review Panel share the view of Medical Assessor Cameron that the claimant aggravated pre-existing degenerative changes in her spine (including any disc bulges tears or fissures) in her accident on 9 May 2019. In the immediate aftermath of the accident there was no acute complaint of pain in the cervical spine which would have been indicative of a disc protrusion. The claimant only had an MRI scan of her cervical spine, six months after the accident, because she had headaches and consulted a chiropractor who then referred her for this investigation. It appears then that the claimant was only investigated then, however, by way of an MRI scan because of headaches and not acute pain in her cervical spine.

1. The Review Panel repeats its finding that the radiology reveals common age-related changes in the cervical spine which have not caused neurological signs and symptoms in the claimant’s upper limbs, and which do not correlate to the claimant’s extensive complaints of pain.

2. Regarding the claimant’s complaint of radiculopathy, the Review Panel accepts that radiculopathy does not have to be assessed by a Medical Assessor of the Review Panel. However, in this case whilst radiculopathy has been attributed by the claimant’s GP, the Review Panel is not satisfied that what was stated by the GP to be radiculopathy, was attributable to the accident.

3. The claimant had been treated in September 2014 for intermittent paraesthesia of her hands and feet. She had a past motor vehicle accident and whiplash injury in 1997 which was noted by her neurologist in 2013 to have left her with chronic headaches and left sided neck pain.

4. No signs of radiculopathy were noted by Medical Assessor Wan. It is the finding of the Review Panel that the observations made by the claimants GP cannot be relied upon as being attributable to the accident because of her significant pre-existing treatment. There was no consideration of this by the GP. It is not clear what were the signs used by the GP to diagnose radiculopathy. He was assessing a complaint of the claimant but not a complaint in light of the Regulations.

5. Regarding the complaints of right hip pain by the claimant, the Review Panel is not satisfied that this arises from the accident. As far back as 2013 the claimant was being treated for her right hip by Dr Kannangara. Dr Chong noted that the claimant was seeing Dr Kannangara again in May 2017 and in April 2018 Dr Merey was treating the claimant for painful hips. Two months before the accident, on 8 March 2019, Dr Merey noted that the claimant was taking Panadol Osteo each day for sore hips. In the opinion of the Review Panel, the claimant had clear pre-existing complaint relating to her hips. The accident would only have been an aggravation of this condition in the short term.

6. The Review Panel confirms that there is no clinical or radiological evidence to show that the accident has aggravated her condition.

7. The claimant made late submissions and provided additional documentation, late, and at a point when the Review Panel was about to issue its final reasons. The insurer did not object to this additional documentation but made further submissions.

8. This documentation consisted of a certificate of Medical Assessor Dixon dated 1 September 2023 going to an assessment of permanent impairment, earning capacity and treatment. There was also a medical certificate from Medical Assessor Payten dated 26 August 2023 regarding assessment ot the claimant’s vertigo. The claimant also provided submissions about these certificates. A combined certificate issued for whole person impairment of 5%.

9. The Review Panel has read these additional documents. The Review Panel is not bound by the findings of Medical Assessor Dixon or Medical Assessor Payten and has provided its own reasons and conclusions. For the reasons already provided herein, the Review Panel does not agree with the conclusion of Medical Assessor Dixon about causation of the C5/6 disc protrusion

CONCLUSION

1. The Review Panel determines that the following injuries caused by the accident:

   (a)   cervical spine – soft tissue injury;

   (b)   lumbar spine – soft tissue injury, and

   (c)   head – soft tissue injury

   are a THRESHOLD INJURY for the purposes of the Act.

DETERMINATION

1. The Review Panel affirms the determination of Medical Assessor Cameron dated 1 April 2022

2. The Review Panel determines that the following injuries caused by the accident;

   (a)   Cervical spine – soft tissue injury;

   (b)   Lumbar spine – soft tissue injury, and

   (c)   head – soft tissue injury

   are a THRESHOLD INJURY for the purposes of the Act.