Merhi v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Merhi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 316
CLAIMANT:	Randa Merhi
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Bridie Nolan
MEDICAL ASSESSOR:	Christopher Oates
MEDICAL ASSESSOR:	Clive Kenna
DATE OF DECISION:	20 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); section 7.26(6A); threshold injury; David v Allianz Australia Ltd considered; whether presence of radiculopathy can be established by medical assessment at any time since motor accident; MAI Act creates a scheme whereby the Medical Review Panel ultimately stands in the shoes of the insurer to resolve a medical dispute arising over the insurer’s original assessment as to whether the injury caused by the motor accident is a threshold injury; the relevant clinical assessment undertaken by medical practitioner for the purposes of clause 5.5 of the Motor Accident Guidelines (the Guidelines) is therefore the Medical Review Panel medical assessors’, or either one of them comprising members of the Medical Review Panel; the soft tissue injury assessment under clauses 5.7-5.9 of the Guidelines is that undertaken by medical assessor(s) on the Medical Review Panel upon re-examination, and is not any assessment undertaken by a suitably qualified medical practitioner at any stage in the medical dispute’s history; Held – Medical Assessment Certificate confirmed; no radiculopathy present on Medical Review Panel’s assessment; injury occasioned by motor accident a threshold injury.
DETERMINATIONS MADE:	Medical Assessment – Minor injury Review Panel Assessment of Minor Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate of Medical Assessor Herald dated 17 May 2023.

STATEMENT OF REASONS

INTRODUCTION

The claimant, Randa Merhi, seeks determination of a medical assessment matter dispute pursuant to Schedule 2, cl 2(e) of the Motor Accident Injuries Act 2017 (NSW) (the Act) (the Dispute), which determination is governed by the operation of s 1.6 of the Act, cl 4 of the Motor Accidents Injuries Regulation 2017 (the Regulation) and the Motor Accident Guidelines (the Guidelines).
The claimant was involved in a motor vehicle accident on 6 January 2022. She lodged an Application for Personal Injury Benefits dated 19 January 2022 reporting that her vehicle was rear-ended while stationary. The claimant alleges that she sustained the following injuries:
(a)     disc bulge at C4 and C5 vertebrae;
(b)     muscle spasms;
(c)     numbness in arms, and
(d)     neck, shoulder and back pain.
The insurer issued a Liability Notice – Benefits Up to 26 Weeks on 31 January 2022. This Notice accepted liability for payment of statutory benefits for a period of 26 weeks.
The insurer issued a Liability Notice – Benefits After 26 Weeks on 13 April 2022 advising the claimant that she has been assessed as having a minor injury and that the insurer will not make any payments for statutory benefits related to her motor accident from 7 July 2022.
On 27 May 2022, the claimant requested the insurer to conduct an internal review of the determination that she sustained a threshold injury.
On 16 June 2022, the insurer conducted an internal review and affirmed the original decision that the claimant sustained a threshold injury.
The claimant subsequently lodged an application with the Personal Injury Commission (Commission) for determination of the Dispute.
By certificate dated 17 May 2023, Medical Assessor Herald determined that claimant had sustained soft tissue injuries to her cervical and lumbar spine and both shoulders, each being threshold injuries for the purposes of the Act. He opined that the injuries had predominantly resolved with conservative treatment and that imaging and nerve conduction studies revealed no neural compression or disc rupture.

THE REVIEW

The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
On 30 August 2023, the President’s delegate referred the medical assessment to the Review Panel, as constituted (the Panel), as she was 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.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A "new decision maker" is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a member assigned to the Motor Accidents Division of the Commission.
Section 41(2) 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.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
Section 7.17 of the Act defines a “medical dispute” to include dispute between the parties about a “medical assessment matter”.
Pursuant to Schedule 2, cl 2 of the Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”. This is the relevant question of which the Panel is presently seized.
A medical assessment matter is determined in accordance with Division 7.5 of the Act, in this case pursuant to s 7.26 of the Act, on review by a review panel.
The Panel issued a direction dated 4 September 2023 to the parties requesting the provision of respective bundles and submissions on the review with which the parties complied. By a direction dated 13 November 2023, the Panel required the claimant attend for re-examination on 29 November 2023 at the Commission suites by Medical Assessor Oates. The Medical Assessor prepared a detailed contemporaneous report on re-examination, which report is reproduced under the heading “Re-examination”, below.

MATERIAL BEFORE THE PANEL

The following is a summary of the evidence before the Panel on the review relevant to the medical assessment matter regarding the claimed injuries.
In a clinical note from the claimant’s general practitioner dated 7 January 2022, the claimant reported the accident and also reported having pain in the right hypothenar muscle and also pain in the left side of the neck and left arm. On examination she was reported having a tender right thenar muscle and left paraspinal muscle in her neck and upon extreme of right rotation pain in the left neck muscles, and left-hand grip being weaker than the right, normal. Reflexes on both sides were recorded as normal.
In a clinical note from her general practitioner dated 19 January 2022, the claimant is recorded as having pain in her neck radiating to the shoulder when her arm gets numb which wakes her up at 2.00am. On examination she had cervical spine tenderness at C3/4.
In a clinical note from her general practitioner dated 27 January 2022, the claimant complained of having pain in the neck and the upper back that radiated down the back when she walks, pain in the neck shifts from left to right. She mainly has pain in the lower back spread outward between T2-T4. On examination she had right para cervical C2 muscle tenderness, a stiff neck and in her lumbar spine it was said that her L2-4 muscles were tender.
In a clinical note from her general practitioner dated 31 January 2022, it is recorded that the claimant reported that she had pain in her shoulder and could not sleep unable to work in the morning. She reported that the insurer had refused to pay for a scan. She was advised to do it on Medicare and see a neurosurgeon. She had a dull ache in her spine from C7 up to C4 and down to T6, and spine tenderness from C3 to T6. She was advised to commence physiotherapy.
In a clinical note from her general practitioner dated 2 February 2022, the claimant is recorded as stating that she was not sleeping because her neck hurt. She was due to see a neurosurgeon on 24 February 202. She complained of pain in the right side of her neck. And neck movements in all directions were painful.
In certificates of capacity dated 21 February 2022, 7 March 2022, 14 March 2022, 7 April 2022, 9 May 2022, the diagnosis of the motor accident related injury was relevantly whiplash, headache, bilateral hands, numbness and shoulders pain. Her severity of symptoms was said to be complicated by her psychological reaction.
On 31 January 2022, the claimant’s general practitioner, in a certificate of capacity indicated that he had referred the claimant to a neurosurgeon and for a CT scan of her neck.
In the CT scan report said to be collected on 7 January 2024, of the cervical spine it recorded under heading “Conclusion” straightening of vehicle lordotic curve is likely related to muscle spasm. Minor central disc at C4-C5 causing effacement of epidural fat. No nerve root impingement and neural foraminal narrowing.
In an Allied Health Recovery request dated 28 January 2022, upon clinical assessment, the claimant’s diagnosis was recorded as whiplash – bilateral shoulder pain. It was recorded as observed that the claimant presented with whiplash injury as a result the accident. She complained of pain later that night and the pain in her neck was work worse one week after the accident. She complained that her neck pain was Visual Analogue Scale (VAS) 10/10 constant sharp pain, her shoulder pain was VAS 7/10, intermittent dull ache. She had numbness and tingling and all 10 digits. In her neck flexion was recorded at 70% of range of motion with nil pain, extension was 100% pain in post scalene at mid-range and pain in paraspinals at end range, right rotation was 80% range of motion pain in left upper traps, left rotation 80% range of motion in right, bilateral shoulder flexion was three-quarter range with pain in the left shoulder worse than in the right. It was recorded that she experienced decreased sensation to light touch on right hand palm and dorsal side with right upper traps.
In a CT of the lumbar spine reported on 31 January 2022 under the head “Impression” it is recorded mild early degenerative changes are seen in the spine. No acute trauma related view and is seen apart from L5-S1, no focal disc protrusion or neural compression. No wedge fracture or aggressive lesion.
In a report from her physiotherapist dated 28 March 2022, following eight sessions of two times a week for four weeks, the claimant’s physiotherapist relevantly recorded that she had performed manual therapy on the claimant to provide relief for the suboccipital pain, headache, and cervicogenic pain and joint stiffness. She was increasing her deep cervical extensor strength and endurance to improve the load tolerance of her neck. Neural glide exercises were also prescribed to aid neurological symptoms. Education was provided to assist the claimant in returning to domestic duties and full-time work without being limited by symptoms.
In a report by i-Fit Group dated 28 March 2022, under the heading of “Current Reported Symptoms”, the claimant complained of pain and pressure experienced in the cervical spine that radiated to the bilateral shoulders. She described experiencing electric shock sensations that travel up the spine into the head. She also indicated that it travelled down her arms bilaterally. The claimant advised that she experienced regular headaches and electric shock sensations and “buzzing” superior to her ears. With respect to her bilateral upper limb, she reported experiencing a dull pain. She described it as feeling like a deadweight and exerting herself to carry her arms. She also described experiencing paresthesia from her bilateral shoulders travelling down her bilateral arms and hands posteriorly. She advised that her right upper limb was weaker in strength compared to her left and she rated her pain and on an average of 8 out of 10 on a VAS. She indicated that her level of pain depended on her movement and activity level on the day.
In an Allied Health Recovery request dated 6 April 2022 upon clinical assessment, the claimant’s diagnosis was recorded as whiplash, bilateral shoulder pain,? C3/C4 nerve root compression. The claimant’s signs and symptoms were observed and recorded as constant headache, cervical spine flexion, 50% range of motion pain present in bilateral upper traps at end of range, right rotation half range with tightness in left upper traps, left rotation 30% range tightness in right upper traps. Stiffness was reported in C1/2 centrally, and unilaterally on the right and left side of C 3/4., “TOP suboccipital, inc tone greater than the left, L?S scalenus, suboccipitals, paraspinals”.
In an MRI report dated 28 June 2022 of the cervical spine under the heading “Comment” it was recorded “minimal neural exit foraminal narrowing bilaterally at C5-C6 level and straightening of the usual survivor lordosis. No cord compression or definite neural impingement seen.
In an ultrasound taken of the left shoulder, the report dated 25 February 2023 records under the heading “Impression”, tendonitis of the supraspinatus tendon. Subacromial/subdeltoid bursitis with sonographic impingement.

SUBMISSIONS

The claimant refers to the decision in David v Allianz Australia Ltd [2021] NSWPICMP 227 (David) where the review panel there considered the assessment of a threshold injury to determine whether the assessment of radiculopathy could be established at any time or must be at the date of the Commission’s medical examination. In reliance on the Guidelines at cl 5.5, the review panel there stated that the diagnosis must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer and this was apt to include the claimant’s treating doctor. In coming to its conclusion, the review panel also referred to cl 5.6 of the Guidelines, which provided that the assessment a threshold injury is based on many factors including prior records and assessments by the treating doctor. The review panel concluded that there was no reason why the reference to cl 5.6(d) to a physical examination necessarily confined the examination as being undertaken by a medical assessor, it could be a treating doctor, and the determination could be based on the satisfaction by that doctor that radiculopathy was present at any time: at [104].
The claimant submits that given this reasoning she presented with at least two signs of radiculopathy, which satisfied the criteria as follows:
(a)    the CT scan of the cervical at 7 January 2022 conclusions that the lordotic straightening of the curve was likely related to muscle spasm and observation of a minor central disc bulge for C5 causing effacement of epidural fat.
(b)    The general practitioner’s referral to a neurologists dated 19 January 2022 for review of her neck pain and numbness.
(c)    The Allied Health Report dated 28 January 2022 to which we have referred above.
(d)    The referral to a neurologist dated 7 February 2022 recording the reasons as the claimant’s neck pain radiating to shoulders and hands with numbness.
(e)    The report from the claimant’s physiotherapist at 28 March 2022 where it was reported that the claimant continued to experience aggravating pain, headaches and was unable to sit for longer than 30 minutes. The physiotherapist recorded that the claimant continued to suffer and experience intermittent pain in her bilateral upper limbs and survivals spine affecting her function and ability to perform daily tasks.
(f)    The physiotherapist questionnaire dated 6 May 2022 recording the claimant’s diagnosis of whiplash, headache, post-traumatic stress disorder, bilateral hands, numbness and shoulder pain.
(g)    The clinical notes referred to above.
(h)    The history recorded on the MRI report of the cervical spine “pain with radiculopathy”.
The insurer submits the injuries the claimant suffered in the motor accident are threshold injuries. This submission is based her treatment providers’ diagnosis of a whiplash injury. There is no evidence of a fracture or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The clinical examinations did not demonstrate a dysfunction of spinal root. The injuries do not satisfy the criterion of radiculopathy as set out by clause 5.8 of the Guidelines. The insurer submits that the clinical examinations from by the claimant’s general practitioners or physiotherapists demonstrated no signs that satisfied the diagnosis of radiculopathy as defined within the Guidelines.

THRESHOLD INJURY

A threshold injury is a “soft tissue injury” which is defined by s 1.6 (2) of the Act as a an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. [our emphasis]
Part 1, cl 4 of the Regulation provides that an injury to a spinal nerve root that manifests neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.
The Guidelines are made under the Act for the purposes of s1.6 (2) for assessing whether an injury caused by motor accident is a threshold injury.
Relevantly, the Guidelines make provisions for the assessment as follows:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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.”
With specific reference to injuries to the neck and spine, the Guidelines provide that in assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
Clause 5.8 of the Guidelines provides that 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”.

In order to satisfy the diagnosis of radiculopathy, clause 5.8 of the Guidelines states that there must be evidence of 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;
(b)    positive sciatic nerve root tension signs;
(c)    muscle atrophy and/or decreased limb circumference;
(d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Clause 5.9 of the Guidelines, relevantly, provides further clarification with respect to soft tissue injury:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
‘Part 6 of the Motor Accident Guidelines: Permanent impairment’ under the hearing “Radiculopathy” provides:
“6.138 Radiculopathy is the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(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.
6.138Spinal injury causing sensory loss at C2 or C3 must be assessed by first using Table 23 (page 152) of the AMA4 Guides, rather than classifying the injury as DRE cervicothoracic category III (radiculopathy). The value must then be combined with the DRE rating for the cervical vertebral injury.
6.139Note that complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings do not by themselves constitute radiculopathy. They are described as non-verifiable radicular complaints in the definitions of clinical findings (Table 6.8 in these Guidelines).
6.140Global weakness of a limb related to pain or inhibition or other factors does not constitute weakness due to spinal nerve malfunction.
6.141Electrodiagnostic tests are rarely necessary investigations and a decision about the presence of radiculopathy can generally be made on clinical grounds. The diagnosis of radiculopathy should not be made solely from electrodiagnostic tests.”

RE-EXAMINATION

Details of who attended the assessment

The claimant attended for medical assessment re-examination with Medical Assessor Oates on 29 November 2023 at the Commission Medical Suites as arranged. She was assessed unaccompanied. The following is the Medical Assessor’s report and findings of the that re-examination.

History
Pre-accident medical history and relevant personal details

The claimant was born in Lebanon and came to Australia at age two. She is presently 33 years of age.
She had no history of injuries or accidents.
At the age of 18, she had incision of pilonidal sinus with no recurrence.
She has had caesarean sections on two occasions for a daughter born in 2015 and twin daughters born in 2019.
Prior to the accident, she had worked as an architect and was a construction project manager at the time of the accident.
She was on no regular medications.

History of the motor accident

The claimant said she was the driver of a BMW sedan, with a front seat and left rear seat passenger, on 6 January 2022.
She was stopped at an intersection in Lidcombe, behind a van. A following sedan rear-ended their vehicle. She had just taken her foot off the brake at the moment of impact because the light had turned green. The van in front of her had moved off, so she did not hit anything in front. Her car was pushed about half a car length forward by the impact.
She had a seatbelt on, and no airbags deployed. She hit the back of her head on the headrest and felt a sense of pressure in both hands from gripping the steering wheel forcefully. She was not knocked out and was not bleeding. Her seat back remained intact.
She stopped a little way down the road and exchanged details with the other driver. She then drove on with her friends to watch the Australian Open tennis match at Homebush. By the time the game had started, she was not feeling well and was very shaken up. She had soreness in the upper arms and neck and in the left shoulder. She had her left hand on the gearstick at the time of the impact.
She and her friends decided to leave and drove home.
She saw a general practitioner at the Bankstown Medical Centre the next day complaining of neck pain, headaches, and left shoulder pain. She had developed some tingling in the hands and had low back pain.
She had investigations on the right hand, cervical spine and lumbar spine, and then had an MRI scan of the cervical spine.
She changed her general practitioner to Dr Barich at Liverpool because she was not receiving any treatment. He referred her to a psychologist and put her on some Zoloft for her mental health issues.
She was referred to a neurologist, Dr Hassan, who performed nerve conduction studies at the upper limbs which were normal.
She was referred to physiotherapy and received treatment to the lumbar, thoracic and cervical spine and upper arms, and was taking Voltaren and Panadeine Forte.
She had physiotherapy for about four months and then had an exercise physiology program for another four months or so. This was covered by the insurer. Therapy gave temporary relief of the neck and back symptoms and the tingling, but it only helped overnight.
The pins and needles radiating from both elbows to the hands, more so on the left side than the right, came on within a week of the accident and radiated to the fingers but she can’t recall which ones. The pins and needles did improve with physiotherapy.

Details of any relevant injuries or conditions sustained since the motor accident.

She has had no further injury or condition develop subsequently.

Current symptoms

She still has pain but is able to do more of her daily activities. She will have a good run for three or four weeks and then will have a setback and has to reduce her activity levels. She still has left shoulder pain, indicating the apex of the shoulder, and pain at both sides of the lower neck into the trapezii, which feels like her head is a heavy weight she carries around.
She also gets anxious and depressed. Her sleep is disturbed by neck and left shoulder pain, so she feels tired and anxious. She no longer gets the hand tingling and has no arm or leg symptoms, and no back symptoms now.
After the accident, she had time off work for two to three months and then did a graduated return to work with a mix of site work and office work, but she could not handle the pressure of her managerial position, as she had lost self-confidence. She started taking more and more days off work and was made redundant in June 2022.
She then stayed at home for about seven months, living on savings. She is a single mother of three children and had some Centrelink support, and also support from her mother. She applied for jobs, but the applications did not proceed when she told them about the accident. Eventually, she applied for a lesser role, which was a non-management role in a construction office, and started this job in February 2023 full-time and continues this.
Her mother lives 10 minutes away and helps with the housework whilst she minds her children two days a week. The older daughter goes to school. The twins are at preschool the other three days of the week. She lives alone in a house with her three daughters.
She is able to drive a car but has trouble turning her head to check the blind spot.
She no longer attends any physical therapy. She remains on Zoloft one tablet per day and she takes Voltaren one tablet three to four times per week for neck pain.
Because of persistent left shoulder pain, her general practitioner ordered an ultrasound scan of the shoulder, which was done on 25 February 2023, and showed supraspinatus tendinosis with subacromial/ subdeltoid bursitis and impingement.
The general practitioner suggested she have an ultrasound-guided cortisone injection to the shoulder, but she was not keen on this, so did not proceed.

Examination

General presentation

She is right hand dominant.
She was of average build with height 163cm and weight 75kg.

Cervical spine (cervicothoracic)

There was restricted range of movement in the cervical spine which was symmetrical. Flexion and extension were one-quarter of normal range, and she said it was due to stiffness about the neck. Lateral flexion was one-third of normal range bilaterally and rotation was one-third of normal range bilaterally.
There was no muscle spasm or guarding and no tenderness to palpation.
When asked how she could drive a vehicle with such restricted neck movement and she the claimant said she had to turn the whole upper body and use her mirrors.
There were no non-verifiable radicular complaints. There was no dysmetria. Reflexes were symmetrical. Power was equal bilaterally but there was give way bilaterally. Sensation was normal in the upper limbs.
Upper arm girth; right 30.5cm, left 30.5cm at 10cm above the elbow crease. Forearm girth; right 27cm, left 26cm at 5cm below the elbow consistent with stated right hand dominance.

Lumbar spine (lumbosacral)

There was no guarding and no focal tenderness. There were no non-verifiable radicular complaints. There was no dysmetria.
Range of movement was full in flexion, extension, lateral flexion and thoracic rotation was also full.
The reflexes were symmetrical with plantar responses both flexor. Power and sensation in the lower limbs were normal.
Straight leg raising was 70° bilaterally with tight hamstrings but negative nerve stretch test.
Thigh girth; right 52cm, left 52cm at 10cm above the superior patellar pole. Leg girth; right equals left equals 40.5cm at 14 below the inferior patellar pole, the point of maximal circumference.

Upper extremities

Range of movement of the shoulders was measured with a goniometer.
Tenderness at the apex of the left shoulder with impingement.
The active range of movement of both shoulders was limited in elevation, said to be due to discomfort radiating from the lower cervical spine.

Shoulder Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

140°

100°

Extension

50°

40°

Adduction

40°

30°

Abduction

140°

80°

Internal Rotation

60°

70°

External Rotation

70°

60°

Comments on consistency

The claimant was pain focused. Evidence of giving way on testing power in the upper extremities indicates sub-maximal effort was being applied.
Active range of movement of the shoulders was affected to an extent by pain, although when checking passive range of movement there was some restriction of elevation as well.

Summary of relevant radiological and medical imaging under investigation

The following reports (already filed with the Commission) were brought to the examination:
(a)    7 January 2022 – X-ray right hand, CT cervical spine;
(b)    31 January 2022 – MRI cervical spine and CT lumbar spine;
(c)    26 June 2022 – MRI cervical spine, and
(d)    25 February 2023 – ultrasound left shoulder.

Diagnosis, causation, and reasons on assessment

The diagnosis is soft tissue injury to cervical spine, lumbar spine and left shoulder.
There were right shoulder symptoms which radiated from the cervical spine and symptoms also radiating from the cervical spine to the left shoulder.
Imaging of cervical and lumbar spine showed a degree of degenerative change and of the left shoulder showed subacromial bursitis with impingement.
The accident was a cause of the soft tissue injuries to the cervical spine, lumbar spine and shoulder injury, as these injuries are referred to in the Claim Form dated 19 January 2022 and the early general record.
The accident was not a cause of separate injury to the right shoulder, however this body part was affected in active range of movement because of referred symptoms from the cervical spine.

FINDINGS ON THRESHOLD INJURY

The review panel in David, at [93], noted that cl 6.21 of the Guidelines provides that when assessing injury for permanent impairment the assessment is undertaken at the date of the assessment. It also noted at [99] that there is no requirement in clause 4 of the Regulation that the radiculopathy be present at the time of the assessment by a Medical Assessor. It referred to the language in cl 4 of the Regulation “manifests in neurological signs (other than radiculopathy)” and opined that it suggests that the radiculopathy could at some point but not necessarily at the time of the examination by the Medical Assessor or the Panel. The review panel was fortified in its conclusion by its reasoning 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.
It referred to clause 5.5 of the Guidelines and noted that there was no requirement in it that the assessment be undertaken by the Medical Assessor at first instance or, on review, by the review panel. It stated that the reason that the reference to “other suitably qualified person independent from the insurer” in that clause suggests that the assessment can be undertaken by a treating doctor.
In our respectful opinion, the reliance by review panel in David upon clause 4 of the Regulations read with cl 5.5 of the Guidelines so as to abdicate the assessment of the presence of radiculopathy undertaken by the medical assessor in the relevant assessment is misplaced.
Instruments of delegation such as the Guidelines must be construed in accordance with ordinary principles of statutory construction, including the applicable statutory provisions to which they are subordinate: Fisk v Chief of the Defence Force (No 2) [2017] FCA 1490 at [29] and [32] per Perry J. Accordingly, the Guidelines are to be construed according to its text and purpose as evident from the document itself in the context of the legislative scheme in which the Guidelines are required to be applied.
Clause 4 of the Regulation is a definition provision, which supplements the definition of soft tissue injury under s 1.6(2) of the Act to include an injury to a spinal nerve root which manifests in neurological signs in the definition of soft tissue injury. It does not work to inform when the relevant assessment for the purposes of the Guidelines is to take place. In any event, that inquiry properly starts with the Act.
The Panel is tasked with the resolution of a medical dispute about a decision of the insurer pursuant to Schedule 2, cl 2(e) of the Act as to whether the injury caused by the motor accident is a threshold injury for the purposes of the Act. That dispute may not be referred by claimant for initial assessment by a single medical assessor under Division 7.5 of the Act until a decision has been the subject internal review by the insurer under Division 7.3. The Panel, upon reviewing the assessment of the original medical assessor to whom the medical dispute was initially referred, is not limited to a review of only the aspect of the assessment that be incorrect for the purposes of s 7.26 (5) of the Act. The assessment is a new assessment of all matters.
In this way, the Act creates a scheme whereby the Panel ultimately stands in the shoes of the insurer to resolve a medical dispute arising over the insurer’s original assessment as to whether the injury caused by the motor accident is a threshold injury for the purposes of the Act. The assessment the Review Panel undertakes therefore, like the insurer’s original assessment, is undertaken, afresh, pursuant to the general provisions for assessment contained in the Guidelines.
Accordingly, the assessment to which these provisions refer is the assessment of the Review Panel conducting a review de novo of the insurer’s assessment. The relevant clinical assessment undertaken by medical practitioner for the purposes of cl 5.5 is therefore the Panel medical assessors’, or either one of them comprising members of the Panel: see, s 7.26(6A) of the Act. The soft tissue injury assessment provided for by cll 5.7-5.9 of the Guidelines therefore is that undertaken by medical assessor(s) on the Panel upon re-examination, and is not any assessment undertaken by a suitably qualified medical practitioner at any stage in the medical dispute’s history.
Based on its findings on examination and reasoning above, the Panel finds that on examination there were no clinical signs of radiculopathy evident when the injuries the subject of the dispute were assessed in accordance with Part 6 of the Motor Accident Guidelines: Permanent impairment.
The cervical spine soft tissue injury is a threshold injury. There is no annular fissure referred to on MRI scan of 31 January 2022 or 28 June 2022, and there is no evidence of cervical radiculopathy on clinical examination.
The lumbar spine soft tissue injury is a threshold injury. There was no relevant imaging performed to demonstrate annular fissure. There was no evidence of lumbar radiculopathy on clinical examination.
The left shoulder is a soft tissue injury. This is a threshold injury because ultrasound scan did not show a tear of tendon but rather tendinosis along with subacromial/ subdeltoid bursitis, which are features of soft tissue injury and do not indicate a non-threshold injury.
Accordingly, the Panel confirms the certificate of assessment of the single medical assessor, Medical Assessor Herald dated 17 May 2023.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	140°	100°
Extension	50°	40°
Adduction	40°	30°
Abduction	140°	80°
Internal Rotation	60°	70°
External Rotation	70°	60°

[2024] NSWPICMP 316

20 May 2024