Milic v AAI Limited t/as AAMI
[2024] NSWPICMP 675
•24 September 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Milic v AAI Limited t/as AAMI [2024] NSWPICMP 675 |
| CLAIMANT: | Aleksandra Milic |
| INSURER: | AAI Limited t/as AAMI Insurance |
| REVIEW PANEL | |
| MEMBER: | Stephen Boyd-Boland |
| MEDICAL ASSESSOR: | Clive Kenna |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 24 September 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about threshold injury; physical injuries to cervical spine, lumbar spine, left shoulder, and right shoulder; Medical Assessor (MA) Assem found that the injuries to cervical spine, lumbar spine, left shoulder, and right shoulder were caused by the motor accident; MA Assem found the injuries to cervical spine, lumbar spine, left shoulder, right shoulder were a minor or threshold injury; re-examination by Medical Review Panel (Panel); the Panel found that the following injuries were caused by the motor accident soft tissue injuries to the cervical spine, lumbar spine, left shoulder, and right shoulder; the Panel found that the following injuries were not caused by the motor accident cervical spine, a C6/7 left paramedian disc herniation and lumbar spine, an L5/S1 broad-based disc bulge without nerve compression; the Panel found the following injuries soft tissue injuries to the cervical spine, lumbar spine, left shoulder, and right shoulder were a minor or threshold injury; Held – the Panel found the following injuries: soft tissue injuries to the cervical spine, lumbar spine, left shoulder, and right shoulder were a minor or threshold injury; the Panel affirmed the earlier certificate. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017
|
STATEMENT OF REASONS
BACKGROUND
On 19 March 2022, Aleksandra Milic (the claimant) sustained injury in a motor vehicle accident (the motor accident).
AAI Limited t/as AAMI Insurance (the insurer) is the relevant insurer.
In this context claims and entitlements to benefits and compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Claims are initiated by lodgement of an Application for Personal Injury Benefits and also an Application for Damages under Common Law arising out of the motor accident against the insurer. The legislation provides a scheme of statutory benefits (under Part 3) and lump sum damages (under Part 4).
Statutory benefits include weekly benefits for lost earnings and treatment and care needs for accident-related injuries.
Claims for damages include damages for economic losses and possibly non-economic loss resulting from accident-related injuries.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. Some statutory benefits are limited if the only injuries sustained by the injured person are “minor” injuries.
In a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
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” threshold injuries” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to “threshold injuries”.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for “threshold injuries” have increased.
Accordingly, an injury which does not fall within the definition of “threshold injuries” (non-threshold injuries) means that a claimant has an entitlement to claim damages and, subject to other exclusions, a greater entitlement to statutory entitlements.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Personal Injury Commission (Commission) including provisions relevant to an original medical assessment, further medical assessments and the Review of medical assessments by this Review Panel.
Issues in relation to the regulation of medical assessment were regulated pursuant to the Medical Assessment Guidelines up to 1 March 2021. From 1 March 2021 these are now regulated by the Personal Injury Commission Rules.
This dispute is in relation to whether the injury caused by the motor accident is a threshold injury.
This constitutes a medical dispute within the meaning of the MAI Act.
A medical assessment was conducted by Medical Assessor Mohammed Assem who subsequently provided a certificate dated 27 July 2023.
The following injuries were referred by the Commission to Medical Assessor Mohammed Assem for assessment:
(a) cervical spine;
(b) lumbar spine;
(c) left shoulder, and
(d) right shoulder.
The Medical Assessor’s certificate
Medical Assessor Mohammed Assem found that the following injuries were caused by the motor accident:
(a) cervical spine being soft tissue injury;
(b) lumbar spine being soft tissue injury;
(c) left shoulder being soft tissue injury, and
(d) right shoulder being soft tissue injury.
Medical Assessor Mohammed Assem found that the following injuries were not caused by the accident:
(a) N/A.
Medical Assessor Mohammed Assem determined the following injuries were threshold injuries:
(a) cervical spine being soft tissue injury;
(b) lumbar spine being soft tissue injury;
(c) left shoulder being soft tissue injury, and
(d) right shoulder being soft tissue injury.
The review
The claimant lodged an application for review of the assessment of Medical Assessor Mohammed Assem.
On 8 September 2023 the delegate of the President determined there was reasonable cause to suspect a material error in that assessment.
The President of the Commission then convened a panel to conduct the review.
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 decision maker. A ‘new decisionmaker’ 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 provisions apply.
The new review provisions provide at s 7.26(5) of the MAI Act that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a Medical Assessor – see s 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts the proceedings and may determine the proceeding solely based on the written application.
The Review Panel was comprised of two specialist medical practitioners and a legal member. The Review Panel met on a number of occasions and provided Directions to the parties.
The review is not a hearing but a process involving the Review Panel seeking evidence, including additional material provided by the parties and further submissions, and potentially further medical examination, then meeting on a number of occasions to discuss the evidence before the Review Panel and to reach a view on the relevant issues and reduce that to written reasons.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21] and [64].
Both the claimant and the insurer are legally represented and have the opportunity to provide submissions and to identify and narrow the issues in dispute so as to meet the objectives of the MAI Act.
Whilst the review is by way of a new assessment of all matters with which the medical assessment is concerned this occurs in the context of the initial assessment and certificate, the application for review of the assessment and the determination to conduct a review.
The following injuries were referred by the Commission for assessment:
(a) cervical spine;
(b) lumbar spine;
(c) left shoulder, and
(d) right shoulder.
Material before the Review Panel
Directions were issued by the Review Panel.
The parties were asked to provide submissions for the purpose of the review addressing various specific issues.
The parties provided documentation to the Review Panel.
The insurer provided:
(a) a bundle of documents PIC Milic 2023.11.17 Insurers Review panel Bundle” being 22 pages, and
(b) Milic 16.01.2024 Insurers Submission” being 4 pages.
The claimant provided:
(a) a bundle of documents described as “Claimants Supporting Documents” being 125 pages;
(b) a bundle of documents described as “Supporting Documents” being 127 pages;
(c) a bundle of documents described as “Claimant's Submissions in support of review PIC Certificate of Dr Assem” being 7 pages, and
(d) a bundle of documents described as “Claimants Submissions” being 3 pages.
The claimant relied upon submissions dated 2 August 2023 and 14 December 2023.
The insurer relied upon submissions dated 23 August 2023 and 16 January 2024.
The claimant provided an Application to Admit Late Documents, being 26 pages.
The insurer was provided with the opportunity to oppose the admission of these documents and the parties given the opportunity to make further submission. No further submission were provided. The Panel admitted and considered the further docuemnts.
Pursuant to s 7.26(6A) of the MAI Act the panel agreed that Medical Assessor Kenna would conduct the medical re-examination of the claimant for the purposes of the review.
In Rahman v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 1079 Justice Basten referred to Court of Appeal comments on the volume of material which is routinely provided to Medical Assessors. Justice Basten confirmed that in reasons accompanying a certificate there was not a need to refer to all the documentation to which he or she has had access, but rather to be discriminating as to that material.
The Review Panel does not intend to refer to each and every document in the substantial volume of material before it, but only those documents considered significant to the issues in dispute.
The claimant’s submissions
The claimant lodged an application for review of the assessment of Medical Assessor Mohammed Assem.
Medical Assessor Mohammed Assem found that the following injuries were caused by the motor accident:
(a) cervical spine being soft tissue injury;
(b) lumbar spine being soft tissue injury;
(c) left shoulder being soft tissue injury, and
(d) right shoulder being soft tissue injury.
The claimant’s submissions take issue with causation in relation to the cervical spine injury.
The claimant took issue with the conclusions of Medical Assessor Alexander Woo that the following injuries were threshold injuries:
(a) cervical spine, and
(b) right shoulder.
The insurer’s submissions
The insurer accepted the assessment of Medical Assessor Mohammed Assem.
The insurer maintained that following injuries were threshold injuries:
(a) cervical spine being soft tissue injury;
(b) lumbar spine being soft tissue injury;
(c) left shoulder being soft tissue injury, and
(d) right shoulder being soft tissue injury.
Re-examination of the claimant
Pursuant to s 7.26(6A) of the MAI Act the Review Panel agreed that Medical Assessor Kenna would conduct the medical re-examination of the claimant for the purposes of the review.
Aleksandra Milic attended the medical suite at the Commission’s rooms on 20 June 2024 was examined by Medical Assessor Kenna.
Background
Aleksandra Milic is a 55-year-old female who was involved in a motor vehicle accident on 19 March 2022. Subsequent to that, she was examined by Medical Assessor Assem on 21 July 2023 who determined in a report dated 27 July 2023 that the following were threshold injuries for the purpose of the MAI Act:
(a) cervical spine;
(b) lumbar spine, and
(c) left and right shoulders.
Causation was accepted for all regions.
However, the President’s Delegate, Catherine Freeman, in a decision of 8 September 2023 was satisfied that there was reasonable cause to suspect that the medical examination performed by Medical Assessor Mohamed Assem was incorrect in a material respect and accordingly the review application was accepted and was referred through to a Review Panel.
This was on the basis that the claimant’s successful submission was related to Medical Assessor Assem’s findings in relation to the cervical spine and right shoulder.
That he had failed to consider disc herniation confirmed on MRI pertaining to the cervical spine, which was the equivalent of a cartilage rupture from the accident and failed to provide proper and consistent reasons (as to why this would be a threshold injury as opposed to non-threshold).
The grounds for review was that Medical Assessor Assem failed to consider whether disc herniation to the claimant’s cervical spine resulted from a cartilage rupture from the accident and failed to provide proper and consistent reasons satisfying the President’s Delegate that there was reasonable cause to suspect the medical assessment was incorrect in a material respect.
The first teleconference was held on 21 November 2023 and following this, as a result of further discussion and documentation, a second teleconference was held on 22 January 2024. A third teleconference on 5 March 2024, and a fourth teleconference on 4 June 2024.
The claimant was subsequently to be examined by Medical Assessor Kenna on 20 June 2024 in the Commission’s rooms, with a fifth teleconference for 27 June 2024.
Clinical examination occurred on 20 June 2024 in the Commission’s rooms in Oxford Street Sydney.
In attendance was the claimant, Aleksandra Milic, and a Serbian interpreter (NAATI No. CPN4V007R).
HISTORY
Pre-accident medical history and relevant personal details
Ms Milic is a 55-year-old female, resident in Australia for some 21 years, married, does not work, who has not worked since the motor vehicle accident. Prior to the motor vehicle accident, she stated she worked for some two and a half years as a school cleaner. Her husband works as a gyprocker, self-employed.
That she herself after arriving in Australia worked as a picker packer doing light production work (denying any repetitious heavy work involving lifting). Subsequently, she then moved to another employer involving the production of Yellow and White Pages. This was in a print shop. Again, there was no repetitious lifting.
She had two children prior to arriving in Australia and then a third child in Australia and took two years off from employment. She then returned to working in reception in a medical centre for some two and half years.
Subsequently she stopped work, look after her young child, as her mother-in-law had become unwell, (who also appears to reside with them).
She is now no longer working which she acknowledges is in part due to social circumstances as opposed to any injury incurred in the motor vehicle accident.
She denies any previous history of injuries in relation to the areas stated as affected, i.e. cervical and lumbar spine and either shoulder.
General practitioner (GP) notes indicated there was an episode of back pain related to child delivery in 2007 and also in 2012, but this subsequently resolved.
History of the motor accident: 19 March 2022
The accident occurred on 19 March 2022 in the early evening when it was still light. She was the driver of a car, no passengers, and was wearing a seatbelt. She had just popped out to buy a pizza for the evening.
She was driving a VW Passat, when after stopping at a traffic light at Warwick Farm, she was rear-ended by another vehicle at high impact. Her car was pushed forward but it did not telescope into any subsequent vehicle.
Ambulance attended, police did not. She believes that there may have been a brief period of loss of consciousness, but she certainly was shocked. Airbags did not deploy.
Her vehicle towed and written off for insurance purposes.
History of symptoms and treatment following the motor accident
She was taken to Liverpool Hospital by which time she was experiencing neck pain and paraesthesia involving both hands and feet, but these distal symptoms were temporary as they essentially resolved within her time in Casualty. Plain films – cervical spine, excluded any fractures and she was released after midnight from the hospital with a diagnosis of whiplash injury.
She then saw Dr Tomasevic (Serbian speaker) on 22 March 2022, three days later, who referred in his notes to soft tissue injuries and facet joint strains to both the neck and the entire back. Comments also related to the shoulders, headaches and insomnia.
She was certified fit for suitable duties with associated restrictions, prescribed medications and was referred through for physiotherapy (which she had all up for about five months).
Her GP ordered a range of investigations (see reports enclosed).
There were no fractures reported but bone scan of July 2022 confirmed degenerative changes in the lower cervical spine and lower lumbar region. She was also referred through to a psychiatrist, as well as psychologist, attending both for some time.
As a result of her ongoing symptoms, she was also referred to Dr Matthew Giblin with a report of 13 July 2022. He noted that as a result of the motor vehicle accident, she had undergone precautionary X-rays, particularly to the cervical spine (plain film and MRI), which confirmed degenerative changes, with a paramedian osteophytic bar at C5/6 compressing the right-sided thecal sac and on the left side at C6/7 there was a left-sided disc herniation with mild foraminal stenosis on the left without nerve root compression.
That the MRI of the lumbar spine confirmed degenerative change, as did the plain films, with mild disc bulges abutting the L4/5 disc and the exiting right L4 nerve root, but without compression. Other films indicated that there was some osteophytic changes to the hips and a bone scan showed uptake at the C5/6 level with facet joints bilaterally also at L4/5 and L5/S1.
The provisional diagnosis of soft tissue injuries were consistent with the accident.
That there was an aggravation of underlying degenerative change to the cervical and lumbar spine. Recommendation was a conservative approach with physio, anti-inflammatories and analgesics and no need for surgery.
Current symptoms
Her current complaints are one of neck pain with associated occipital headaches, some referral towards both shoulders but more dominant towards the right, a complaint of upper limb symptoms mild in severity and intermittent, with the intermittent symptoms in the right more dominant than the left. Associated with this was also some central lower back pain but no referral of any symptoms involving either lower extremity.
Her main complaint pertains to the neck. She acknowledges that her left shoulder symptoms have largely abated, if not fully resolved. That her neck is stiff in the morning, and she can experience right upper limb symptoms while sitting.
CLINICAL EXAMINATION
General presentation
Findings on clinical examination including specific measurements of range of movement (ROM) (where applicable) of each of the injuries assessed.
Initial overall appearance was surprising. She looked fit, had good muscle tone and contour, moved without apparent discomfort and examination was as follows.
Cervical spine (cervicothoracic)
Hint of muscle spasm over the right apophyseal pillar mid to lower. No muscle spasm over the left apophyseal pillar.
Intermittent symptoms pertaining to the right upper extremity appeared to correlate with a C6 distribution involving the thumb, index and middle fingers, i.e. in comparison to the left.
MOVEMENTS
RANGE EXHIBITED
Flexion
100% full
Extension
100% full
Rotation to the right
100% full
Rotation to the left
30% restriction
Lateral bending to the right
10% restriction
Lateral bending to the left
30% restriction
NEUROLOGICAL TESTS
Reflexes
REFLEX
LEFT
RIGHT
TRICEPS JERK
Normal
Normal
BICEPS JERK
Normal
Normal
BRACHIORADIALIS
Normal
Normal
SENSATION:
Sensation was normal.
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
MUSCLE WASTING:
There was no muscle wasting.
LEFT (cm)
RIGHT (cm)
UPPER ARM
28
28
FOREARM
27
27
MUSCLE POWER
LEVEL
MOTOR
POWER
LEFT
RIGHT
C4
5/5
NORMAL
NORMAL
C5
5/5
NORMAL
NORMAL
C6
5/5
NORMAL
NORMAL
C7
5/5
NORMAL
NORMAL
C8
5/5
NORMAL
NORMAL
T1
5/5
NORMAL
NORMAL
5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance.
DURAL TENSION TESTS
TEST
RIGHT
LEFT
PASSIVE NECK FLEXION
Normal
Normal
BRACHIAL PLEXUS STRETCH
Normal
Normal
Lumbar spine (lumbosacral)
On inspection of the lumbosacral spine
No muscle guarding or spasm present, full range of motion and no asymmetry present.
No neurological deficit evident in either lower limb.
Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.
On formal examination of range of movement there was full range of movement as follows:
MOVEMENTS
RANGE EXHIBITED
Flexion
100% full
Extension
100% full
Rotation to the right
100% full
Rotation to the left
100% full
Lateral bending to the right
100% full
Lateral bending to the left
100% full
NEUROLOGICAL TESTS
Reflexes
REFLEX
LEFT
RIGHT
KNEE JERK
Normal
Normal
ANKLE JERK
Normal
Normal
LEFT
RIGHT
Sciatic nerve stretch (straight leg raise)
Normal
Normal
Femoral nerve stretch (prone knee bending)
Normal
Normal
SENSATION: Normal.
Sensation was normal.
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
MUSCLE WASTING
LEFT (cm)
RIGHT (cm)
THIGH
(measured 10cm above the superior pole of the patella)
equal
equal
CALF
equal
equal
MUSCLE POWER
LEVEL
MOTOR
POWER
LEFT
RIGHT
L3
5/5
NORMAL
NORMAL
L4
5/5
NORMAL
NORMAL
L5
5/5
NORMAL
NORMAL
S1
5/5
NORMAL
NORMAL
5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance.
MUSCLE ATROPHY
There was no muscle atrophy.
THIGH
LEFT = RIGHT
CALF
LEFT = RIGHT
MUSCLE ATROPHY
There was no muscle atrophy.
No unilateral muscle atrophy present.
DURAL TENSION TESTS
TEST
RIGHT
LEFT
PRONE KNEE BEND
Normal
Normal
STRAIGHT LEG RAISE
Normal
Normal
SLUMP
Normal
Normal
Upper extremity
Right shoulder
Measurement
Reference
(4th ed.)
Normal
Flexion
150°
Figure 38 (43)
180°
Extension
50°
Figure 38 (43)
50°
Adduction
50°
Figure 41 (44)
50°
Abduction
130°
Figure 41 (44)
180°
Internal Rotation
80°
Figure 44 (45)
90°
External Rotation
80°
Figure 44 (45)
90°
Total
Goniometer measure.
Left shoulder
Measurement
Reference
(4th ed.)
Normal
Flexion
180°
Figure 38 (43)
180°
Extension
50°
Figure 38 (43)
50°
Adduction
50°
Figure 41 (44)
50°
Abduction
180°
Figure 41 (44)
180°
Internal Rotation
90°
Figure 44 (45)
90°
External Rotation
90°
Figure 44 (45)
90°
Total
Goniometer measured.
Left shoulder
Inspection of the left shoulder was normal. Arc, resisted motions, and passive motions were pain free on the left. There was no abnormal tenderness. Impingement tests were negative.
RADIOLOGICAL INVESTIGATIONS
4 July 2022 – whole body scan with SPECT-CT of the cervical and thoracolumbar spine
Mild discovertebral degenerative arthritis at the C5/6 level of the cervical spine.
Degenerative arthritis in the facet joints at L4/5 and L5/S1 levels of the lumbar spine.
Patchy uptake in the distal shaft of the left tibia could be due to previous trauma.
Arthritis in the right knee and left ankle joint.
5 July 2022 – X-ray cervical spine
Some loss of the cervical lordosis. No evidence of fracture or dislocation. Moderate spondylitic changes with disc narrowing and osteophytes worse at C5/6 level. Extensive surgical clips are seen in the base of the neck suggestive of a prior thyroidectomy. No cervical rib. Vertebral body height is preserved. There was minor foraminal stenosis at C5/6 level.
X-ray lumbar spine
Minor scoliosis of the lower lumbar spine convex to the left. Vertebral body height is normal and there is no fracture dislocation. Mild spondylitic changes with anterior osteophytes and disc space narrowing, worse at L4/5 and L5/S1. SI joints outline normally.
Pelvis and left hip X-ray
Mild/moderate osteophytic changes in the hip joint, slightly worse on the right side, with marginal osteophytes. No evidence of fracture. No focal bone lesion.
8 July 2022 – cervical spine MRI
Conclusion: no fracture or dislocation. At C6/7 level there is a paramedian focal disc herniation which extends distally and compressing the left side of the thecal sac causing mild foraminal stenosis on the left without nerve compression. Small right paramedian or focal osteophytic bar at C5/6 level compressing the right side of the thecal sac with mild foraminal stenosis bilaterally without nerve compression.
Lumbar spine
Conclusion: no evidence of fracture or dislocation. Mild spondylitic changes in the lower lumbar spine. At L4/5 broad-based disc bulge compressing the thecal sac and abutting the exiting right L4 nerve root without compression. Mild/moderate facet joint arthropathy in the lower lumbar region.
10 October 2022 – MRI right shoulder
Conclusion: intact rotator cuff. Chronic undisplaced tear of glenoid catchment of the inferior glenohumeral ligament/ inferior labrum. Mild subacromial/ subdeltoid bursitis and acromioclavicular joint osteoarthritic change. Supraspinatus and infraspinatus, subscapularis and teres minor tendons are intact. Rotator cuff muscle bulk was preserved. Long head of biceps tendon is intact and appropriately located within the bicipital groove. Anterior labrum is intact. There was a curvilinear increased disc signal intensity, undermining the glenoid attachment of the inferior labrum/ inferior glenohumeral ligament, extending posteriorly from the 5 o’clock position to the 7 o’clock position. Appearances suggestive of an undisplaced chronic tear.
X-ray review/comments
She brought along the whole body SPECT-CT of the cervical and thoracolumbar spine-which indicated no recent uptake (reflective of recent injury), reporting the already known pre-existing degenerative arthritis at C5/6-but there was no mention of uptake at the C6/7 level-which would have reflected recent injury-indicating that any soft tissue changes at that level were pre-existent and long standing, not caused by the 19 March 2022 accident. (This was also supported by the clinical findings-where there has never been confirmed evidence of radiculopathy to support any discopathic pathology.)
With regards to the right shoulder, an MRI of 10 October 2022 noted that there was an undisplaced chronic tear of the inferior labrum.
That pertaining to the MRI of the left shoulder, this indicated tendinosis but no tears of the rotator cuff.
Hence that any reported pathology changes of the cervical spine or right shoulder were pre-existent to the 19 March 2022 accident and were therefore a minor or threshold injury.
In respect to the lumbar spine MRI, there was no evidence of radiculopathy or fracture. Radiological investigation confirmed degenerative changes as a broad-based disc bulge which showed degenerative changes as noted, but there was no injury to nerves nor was there complete or partial rupture of ligaments, tendons, menisci or cartilage.
The radiological investigations, post-accident, indicate that the findings were degenerative and/or constitutional pertaining to the cervical spine and right shoulder and that there was no evidence to support a non-threshold injury.
In particular pertaining to the right shoulder, the shoulder pathology as confirmed on MRI was not caused by the accident as it was considered chronic in nature. Similarly pertaining to the cervical spine, it was considered that that pathology was related to underlying pre-existent degenerative change with no evidence of radiculopathy and the MRI of the cervical spine of 8 July 2022 confirming no fractures or dislocation.
Pertaining to the right shoulder, these were essentially identified as soft tissue injuries.
COMMENT
The claimant is a 55-year-old female who was involved in a motor vehicle accident in March 2022. Over two years have elapsed. Her vehicle was rear-ended at the time, and she sustained no fractures.
Since then, she has undergone no injections, operations or procedures.
Firstly, there is no evidence of radiculopathy involving either upper or lower extremities, and no evidence of fractures confirmed by radiological investigations.
Any initial left shoulder symptomatology has since largely resolved.
Pertaining to the right shoulder, she regained functional mobility and as noted, there is no muscle wasting of the right upper extremity in comparison to the left.
Pertaining to the right shoulder, as noted in the bone scan there was no uptake, taken shortly after the motor vehicle accident per se. This also indicated pertaining to the cervical spine there was degenerative arthritis at C5/6 level on the cervical spine, indicating the pathology that there may have been some aggravation of underlying pre-existing degenerative change but the pathology per se was not caused by the motor vehicle accident.
The lumbar spine and left shoulder are no longer substantive issues. Any radiological findings pertaining to the cervical and lumbar spine are related to pre-existing degenerative change of long standing and chronicity, possibly associated with past employment.
The following injuries caused by the motor vehicle accident were threshold injuries for the purpose of the MAI Act :
(a) cervical spine – soft tissue injury;
(b) lumbar spine – soft tissue injury;
(c) left shoulder – soft tissue injury, and
(d) right shoulder – soft tissue injury.
The Review Panel accepted the examination report from Medical Assessor Kenna, set out above.
The Review Panel accepted and adopted the findings and clinical opinions of Medical Assessor Kenna, set out above.
Issues for the Review Panel
Schedule 2, cl 2(e) of the MAI Act, involves a determination of two issues:
(a) whether the injury (was) caused by the motor accident, and
(b) whether the injury (caused by the motor accident) is a threshold injury.
The Review Panel was required to determine whether the following injuries were caused by the motor accident;
(a) cervical spine;
(b) lumbar spine;
(c) left shoulder, and
(d) right shoulder.
The Panel was required to determine whether the following injuries were threshold injuries.
(a) cervical spine;
(b) lumbar spine;
(c) left shoulder, and
(d) right shoulder.
Review of the evidence
The certificate of Medical Assessor Mohammed Assem dated 27 July 2023 included the following under the heading “Past History”:
“Ms Milic did not report any previous musculoskeletal accident, injuries or complaints. I brought to her attention previous lower back complaints. She states that she did experience back pain after an epidural injection when delivering her child in 2007. She accepted that she may have experienced back pain in 2012 but it was not severe and the symptoms resolved with medication. She underwent a thyroidectomy in the past and on 20 October 2015, she had a right selected neck dissection for a submandibular lesion. There were no other relevant medical or surgical conditions reported.”
This is consistent with the past history recorded by Medical Assessor Kenna.
Neither party took issue with the past history recorded by Medical Assessor Mohammed Assem.
Neither party took issue with the past history recorded by Medical Assessor Mohammed Assem included the following under the heading “History of motor accident”:
“At approximately 7:00 pm on Saturday, 19 March 2022, Ms Milic was driving her vehicle along the Hume Highway, Warwick Farm. After stopping at a traffic light, she was rear-ended by another vehicle. The force of the impact pushed the vehicle slightly forward but there was no secondary collision with the vehicle in front.
She states that she was thrown forwards within the vehicle before being restrained by the seatbelt. The airbag was not deployed. There was no impact to any part of her body within the cabin of the vehicle.”
Medical Assessor Mohammed Assem included the following under the heading “History of symptoms and treatment following the accident”:
“She was able to alite from the vehicle without assistance. Soon afterwards, she felt sick and started shaking. While exchanging details with the other driver, she noticed pain in her head, neck, both shoulders, entire back, and numbness in both hands. There was also pain involving both hips. She sat in her vehicle, contacted her husband and started vomiting. A passer-by called the ambulance which transported her to Liverpool Hospital. Her vehicle was towed away later written off for insurance purposes.
According to the hospital records, there was no intrusion into the back in the cabin of the vehicle. She was experiencing mild headache, nausea, neck pain, and paraesthesia in both hands and feet. There was mild global weakness in the upper and lower extremities but no sensory abnormalities. She underwent radiological imaging of her brain and cervical spine before she was released after midnight.
Dr Tauseff Khan completed a Certificate of Fitness diagnosing her with a whiplash injury. He recommended analgesia and chiropractic or physiotherapy treatment. On 21 March 2022, she lodged an application for Personal Injury Benefits noting injuries to her neck, back, hips and pins and needles. An initial Certificate of Capacity completed by Dr Tomasevic on 22 March 2022 refers to soft tissue injury, facet joint strains to neck and entire back. There were soft tissue injuries to both shoulders, both hips, abdomen, nerve irritation to both upper limbs and both feet, headaches, dizziness, anxiety, insomnia, nightmares, flashbacks. She was certified fit for suitable duties with lifting up to 2 kg, sitting for 15 minutes, standing for 10 minutes.
She was prescribed analgesia and referred for physiotherapy treatment. Dr Tomasevic proceeded to arrange radiological imaging of her cervical spine, lumbar spine and both shoulders. A bone scan on 4 July 2022 showed mild discovertebral degenerative change at C5/6 level in the cervical spine and L4/5 and L5/S1 levels of the lumbar spine. Dr Kuljic, Psychiatrist, prescribed antidepressant medication.
She consulted Dr Giblin, Orthopaedic Surgeon, who diagnosed aggravation of underlying degenerative changes involving cervical spine, lumbar spine, and hips. He recommended ongoing physiotherapy treatment, anti-inflammatory medication, and analges.”
This is consistent with the history of motor accident recorded by Medical Assessor Kenna.
Neither party took issue with the history of motor accident recorded by Medical Assessor Mohammed Assem.
Medical Assessor Mohammed Assem included the following under the heading “current symptoms”:
“Ms Milic has chronic neck pain and stiffness accompanied by cervicogenic headaches. She sometimes has paraesthesia in both hands. Apart from mildly positive neural tension signs, there are no other focal neurological deficits. She therefore did not satisfy the diagnostic criteria for set out in paragraph 6.138, page 108 of the Motor Accident Authority Guidelines, April 2023. Radiological imaging identified pre-existing degenerative pathology but there was no evidence of nerve injuries, or complete or partial ruptures of tendons, ligaments, menisci, or cartilage. The injury to her cervical spine is therefore a threshold injury according to the Act.
She has pain and stiffness involving her right shoulder. Although radiological imaging identified undisplaced tear of the inferior labrum/inferior glenohumeral ligament, this appeared to be chronic in nature rather than due to any acute trauma that she may have sustained in the accident. There was no evidence of any acute pathology that would give rise to a non-threshold injury according to the Act.”
The parties did not significantly dispute the nature and extent of the claimant’s symptoms.
Medical Assessor Mohammed Assem included details of his physical examination.
The findings on physical examination by Medical Assessor Kenna are set out above.
Both Medical Assessor Mohammed Assem and Medical Assessor Kenna reviewed and commented upon the diagnostic tests and/or imaging findings.
The focus of the parties’ dispute was in relation to precise diagnosis of the injuries.
The claimant described this as an issue of causation and also an issue in relation to whether these injuries were threshold injuries or not.
Causation
The Motor Accident Guidelines (the Guidelines) set out the relevant considerations in relation to causation in Part 6 specifically cls 6.5, 6.6 and 6.7.
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372 (Briggs) his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries…”
In Briggs Wright J confirmed that the relevant legal test in relation to causation does not require scientific certainty. It is not to be determined on the basis of scientific certainty, but on the balance of probabilities. A finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible.
The question to be considered is whether the injury was caused or materially contributed to by the accident. It is also noted the accident does not have to be the sole cause as long as it is a contributing cause which is more than negligible.
Whether the cervical spine injury (was) caused by the motor accident?
In the certificate dated 27 July 2023 Medical Assessor Mohammed Assem concluded that the cervical spine injury was caused by the motor accident.
Medical Assessor Mohammed Assem diagnosed the injury as soft tissue injury
The insurer did not dispute the conclusion that the claimant sustained an injury to the cervical spine, specifically soft tissue injury, as a result of the motor accident.
The claimant did not dispute the conclusion that the claimant sustained an injury to the cervical spine, the claimant did dispute the specific injury.
The claimant contended that the cervical spine injury was not a soft tissue injury, but a C6/7 left paramedian disc herniation.
The claimant submitted that the relevant document was the MRI of the cervical spine. In the cervical spine at C6/7 there is a left paramedian disc herniation.
Case Study No 48 impacts upon the assessment of the subject injury, the MRI of the cervical spine notes the existence of a low-median disc herniation at C6/7.
The insurer refers to the following evidence relevant to the assessment of the claimant’s cervical spine injuries:
(a) Certificates of Capacity dated 22 March 2022 to 17 October 2022 at pages 10 to 27 of the claimant’s bundle of supporting documents dated 14 December 2023. These identify the soft tissue injuries and facet joint strains to the claimant’s neck and back.
(b) Whole body bone scan dated 4 July 2022 at page 49 of the claimant’s bundle of supporting documents dated 14 December 2023. This demonstrated mild discovertabral degenerative arthritis at C5/6.
(c) X-ray of the cervical spine, lumbar Spine, pelvis and left hip at page 29 of the claimant’s bundle of supporting documents dated 14 December 2023. This identified no evidence of fracture or dislocation of the cervical spine.
(d) MRI of the cervical spine and lumbar spines dated 8 July 2022 at page 28 of the of the claimant’s bundle of supporting documents dated 14 December 2023. This confirms that there was no fracture or dislocation of the cervical spine.
The insurer noted that the claimant alleges that Medical Assessor Assem failed to consider Case Study No.48 – Review Panel Decision when assessing the injury to the cervical spine. In Case Study No. 48, the Review Panel determined that a disc herniation at L4-5 was a partial rupture of fibrocartilage and therefore a non-minor injury.
However, it does not provide a binding determination that all herniations are considered a form of ruptured cartilage.
In Al-Samer AAI Limited t/as GIO [2023] NSWPICMP 115 at [82]-[85], the Commission emphasised the requirement that a Review Panel form its own opinion. In his assessment, Medical Assessor Assem reviewed the imaging and accepted this was a threshold injury as there was no rupture of tendons, ligaments, menisci or cartilage. The insurer submits that this reasoning was sound.
Medical Assessor Mohammed Assem included reference to the MRI of the cervical spine and lumbar spine dated 8 July 2022 but specifically to the conclusion noted by the radiologist of “Conclusion No fracture or Disslocation”.
Medical Assessor Mohammed Assem concluded:
“Ms Milic has chronic neck pain and stiffness accompanied by cervicogenic headaches. She sometimes has paraesthesia in both hands. Apart from mildly positive neural tension signs, there are no other focal neurological deficits. She therefore did not satisfy the diagnostic criteria for set out in paragraph 6.138, page 108 of the Motor Accident Authority Guidelines, April 2023. Radiological imaging identified pre-existing degenerative pathology but there was no evidence of nerve injuries, or complete or partial ruptures of tendons, ligaments, menisci, or cartilage. The injury to her cervical spine is therefore a threshold injury according to the Act.”
The claimant contends that the MRI of the cervical spine shows at C6/7 there is a left paramedian disc herniation.
Medical Assessor Kenna also reviewed the MRI of the cervical spine and lumbar spines dated 8 July 2022.
Medical Assessor Kenna noted that the whole body SPECT-CT of the cervical and thoracolumbar spine indicated no recent uptake (i.e. no evidence reflective of recent injury), reporting the already known pre-existing degenerative arthritis at C5/6.
Medical Assessor Kenna noted there was no mention of uptake at the C6/7 level-which would have reflected recent injury.
Medical Assessor Kenna concluded that any soft tissue changes at that level were pre-existent and long standing, not caused by the 19 March 2022 accident.
Medical Assessor Kenna concluded that this was also supported by the clinical findings-where there has never been confirmed evidence of radiculopathy to support any discopathic pathology.
In our view this was consistent with the reasoning of Medical Assessor Mohammed Assem in the certificate dated 27 July 2023.
Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the cervical spine injury.
Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the cervical spine injury, specifically a C6/7 left paramedian disc herniation.
Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the cervical spine injury specifically a soft tissue injury.
We accepted the medical determination of Medical Assessor Kenna and accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the cervical spine injury.
Medical Assessor Kenna made a medical determination that the motor accident did cause the cervical spine injury, specifically a soft tissue injury.
Medical Assessor Kenna made a medical determination that the motor accident did not cause the cervical spine injury, specifically a C6/7 left paramedian disc herniation.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimants account of the accident and the claimants account of the injuries.
We reviewed the various medical opinions provided.
Having considered the dynamics of the accident, the reported symptoms of cervical spine pain contemporaneously with the accident, the ongoing complaints in relation to the cervical spine and the consideration of these issues by the other medical professional we accepted that the cervical spine injury was caused or materially contributed to by the accident.
The Review Panel accepted the conclusion of Medical Assessor Kenna that the motor accident did not cause the cervical spine injury, specifically a C6/7 left paramedian disc herniation.
The evidence was consistent with the claimant suffering an injury to the cervical spine in the motor accident.
We accepted, on the balance of probabilities, that the test for legal causation in relation to the motor accident and the cervical spine injury was satisfied.
We accepted, on the balance of probabilities, that the motor accident did cause the cervical spine injury, specifically a soft tissue injury.
Whether the lumbar spine injury (was) caused by the motor accident?
In the certificate dated 27 July 2023 Medical Assessor Mohammed Assem concluded that the lumbar spine injury was caused by the motor accident.
Medical Assessor Mohammed Assem diagnosed the injury as soft tissue injury.
The insurer did not dispute the conclusion that the claimant sustained an injury to the lumbar spine, specifically soft tissue injury, as a result of the motor accident.
The claimant did not dispute the conclusion that the claimant sustained an injury to the lumbar spine.
The claimant contends that the lumbar spine at L5/S1 there is a broad-based disc bulge without nerve compression. There is no focal disc herniation
Medical Assessor Kenna reviewed the MRi.
Medical Assessor Kenna concluded that any radiological findings pertaining to the lumbar spine are related to pre-existing degenerative change of long standing and chronicity.
Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the lumbar spine injury.
Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the lumbar spine injury, specifically an L5/S1 broad-based disc bulge without nerve compression.
Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the lumbar spine injury, specifically soft tissue injury.
We accepted the medical determination of Medical Assessor Kenna we accepted, on the balance of probabilities, that the motor accident, could have caused or contributed to the lumbar spine injury.
Medical Assessor Kenna made a medical determination that the motor accident did not cause the lumbar spine injury, specifically an L5/S1 broad-based disc bulge without nerve compression.
Medical Assessor Kenna made a medical determination that the motor accident did cause the lumbar spine injury, specifically soft tissue injury.
Medical Assessor Kenna diagnosed the injury as soft tissue injury.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimants account of the accident and the claimants account of the injuries.
We reviewed the various medical opinions provided.
Having considered the dynamics of the accident, the reported symptoms of lumbar spine pain contemporaneously with the accident, the ongoing complaints in relation to the lumbar spine and the consideration of these issues by the other medical professional we accepted that the lumbar spine injury was caused or materially contributed to by the accident.
The Review Panel accepted the opinion of Medical Assessor Kenna that the motor accident did not cause the lumbar spine injury, specifically an L5/S1 broad-based disc bulge without nerve compression.
The evidence was consistent with the claimant suffering an injury to the lumbar spine in the motor accident.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the lumbar spine injury was satisfied.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did cause the lumbar spine injury, specifically soft tissue injury.
Whether the left shoulder (was) caused by the motor accident?
In the certificate dated 27 July 2023 Medical Assessor Mohammed Assem concluded that the left shoulder injury was caused by the motor accident.
Medical Assessor Mohammed Assem diagnosed the injury as soft tissue injury.
The insurer did not dispute the conclusion that the claimant sustained an injury to the left shoulder, specifically a soft tissue injury as a result of the motor accident.
The claimant did not dispute the conclusion that the claimant sustained an injury to the left shoulder.
The claimant contends that in relation to the MRI of the left shoulder that there appears to be subtle tendinosis and bursitis.
Medical Assessor Kenna concluded that the MRI of the left shoulder indicated tendinosis but no tears of the rotator cuff.
Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the left shoulder injury.
We accepted the medical determination of Medical Assessor Kenna and accepted, on the balance of probabilities, that the motor accident, could have caused or contributed to the left shoulder injury.
Medical Assessor Kenna made a medical determination that the motor accident did cause the left shoulder injury
Medical Assessor Kenna diagnosed the injury as soft tissue injury.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimants account of the accident and the claimants account of the injuries.
We reviewed the various medical opinions provided.
Having considered the dynamics of the accident, the reported symptoms of left shoulder pain contemporaneously with the accident, the ongoing complaints in relation to the left shoulder and the consideration of these issues by the other medical professional we accepted that the left shoulder injury was caused or materially contributed to by the accident.
The evidence was consistent with the claimant suffering an injury to the left shoulder in the motor accident.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the left shoulder injury was satisfied.
We accepted, on the balance of probabilities, that the motor accident did cause the left shoulder injury.
Whether the right shoulder (was) caused by the motor accident?
In the certificate dated 27 July 2023 Medical Assessor Mohammed Assem concluded that the right shoulder injury was caused by the motor accident.
Medical Assessor Mohammed Assem diagnosed the injury as soft tissue injury.
The insurer did not dispute the conclusion that the claimant sustained an injury to the right shoulder, specifically a soft tissue injury as a result of the motor accident.
The claimant did not dispute the conclusion that the claimant sustained an injury to the right shoulder.
The claimant contended that this was not a soft tissue injury but an undisplaced chronic tear of the inferior labrum.
The claimant submits that the relevant documents is the MRI of the right shoulder. In relation to the right shoulder, there are appearances suggestive of an “undisplaced chronic tear”.
The claimant submits that there is a tear and, on that basis, a non-minor injury.
The insurer refers to the following evidence relevant to the assessment of the claimant’s right shoulder injuries:
(a) Certificates of Capacity dated 22 March 2022 to 17 October 2022 at pages 10 to 27 of the claimant’s bundle of supporting documents dated 14 December 2023. These identify the soft tissue injuries to both shoulders, and
(b) MRI right shoulder dated 10 October 2022 at page 47 of the claimant’s bundle of supporting documents dated 14 December 2023.
The insurer contends that this demonstrates that the rotator cuff was intact and identifies the undisplaced tear of glenoid attachment of the inferior glenohumeral ligament/inferior labrum.
The insurer submits that the claimant’s injury to the right shoulder was accepted by Medical Assessor Assem as being causally related to the subject accident. Medical Assessor Assem concluded that the shoulder pathology was chronic in nature and not acute. He determined that the subject accident did not cause the shoulder tear. Medical Assessor Assem used his clinical judgment to determine that the shoulder tear was not caused by the accident, and it is submitted there was no error in that conclusion.
Medical Assessor Kenna noted that in relation to the right shoulder, the MRI of 10 October 2022 noted that there was an undisplaced chronic tear of the inferior labrum.
Medical Assessor Kenna noted that the bone scan taken shortly after the motor vehicle accident revealed no uptake.
Medical Assessor Kenna accepted there may have been some aggravation of underlying pre-existing degenerative change but the pathology per se was not caused by the motor vehicle accident.
Medical Assessor Kenna concluded that the shoulder pathology as confirmed on MRI was not caused by the accident as it was considered chronic in nature.
Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the right shoulder injury.
Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the right shoulder injury, specifically an undisplaced chronic tear of the inferior labrum.
Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the right shoulder injury, specifically soft tissue injury.
We accepted the medical determination of Medical Assessor Kenna and accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the right shoulder injury.
Medical Assessor Kenna made a medical determination that the motor accident did not cause the right shoulder injury, specifically an undisplaced chronic tear of the inferior labrum.
Medical Assessor Kenna made a medical determination that the motor accident did cause the right shoulder injury, specifically soft tissue injury.
Medical Assessor Kenna diagnosed the injury as soft tissue injury.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimants account of the accident and the claimants account of the injuries.
We reviewed the various medical opinions provided.
Having considered the dynamics of the accident, the reported symptoms of right shoulder pain contemporaneously with the accident, the ongoing complaints in relation to the right shoulder and the consideration of these issues by the other medical professional we accepted that the right shoulder injury was caused or materially contributed to by the accident.
The Review Panel accepted the opinion of Medical Assessor Kenna that the motor accident did not cause the right shoulder injury, specifically an undisplaced chronic tear of the inferior labrum.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the right shoulder injury was satisfied.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did cause the right shoulder injury, specifically soft tissue injury.
Causation conclusions
The Review Panel found that the following injuries were caused by the motor accident:
(a) cervical spine, soft tissue injury;
(b) lumbar spine, soft tissue injury;
(c) left shoulder, soft tissue injury, and
(d) right shoulder, soft tissue injury.
The Review Panel found that the following injuries were NOT caused by the motor accident:
(a) cervical spine, a C6/7 left paramedian disc herniation, and
(b) lumbar spine, an L5/S1 broad-based disc bulge without nerve compression.
Threshold injury
A “threshold injury” is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will not be a non-threshold injury.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines “threshold injury” to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Guidelines may provide for the assessment of whether an injury is a threshold injury. Relevantly to the matters in issue in the claimant’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“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 minor injury.”
Clauses 5.10 to 5.12 are not relevant to the matter before the Review Panel as they deal with psychological or psychiatric injuries.
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the MAI Act . In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.5 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Does the claimant have cervical and/or lumbar radiculopathy?
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 threshold injury assessments.
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in cl 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.”
For the claimant’s injuries to fall outside the definition of threshold injury in s 1.6, he 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.
In David v Allianz Australia Insurance 2021 NSWPICMP 227, the Review Panel considered the assessment of a minor injury, and whether the observation of radiculopathy was established at any time, or, at the time of the examination by a Medical Assessor.
Whether the cervical spine injury was a threshold injury?
In the certificate dated 27 July 2023 Medical Assessor Mohammed Assem diagnosed the injury as soft tissue injury.
Medical Assessor Mohammed Assem concluded that the cervical spine injury was a threshold injury.
The insurer did not dispute the conclusion that the cervical spine injury was a threshold injury.
The claimant disputed the conclusion that the cervical spine injury a threshold injury.
The nature of the claimants’ dispute was that the cervical spine injury was not a soft tissue injury, but a C6/7 left paramedian disc herniation.
We refer to the comments made in relation to causation, the Review Panel accepted that the cervical spine injury was a soft tissue injury.
The Review Panel accepted that the cervical spine injury was a soft tissue injury and was a threshold injury within the meaning of s 1.6 of the MAI Act.
Whether the lumbar spine injury was a threshold injury?
In the certificate dated 27 July 2023 Medical Assessor Mohammed Assem diagnosed the injury as soft tissue injury.
Medical Assessor Mohammed Assem concluded that the lumbar spine injury was a threshold injury.
The insurer did not dispute the conclusion that the lumbar spine injury was a threshold injury.
The claimant disputed the conclusion that the lumbar spine injury was a threshold injury.
The claimant contends that the lumbar spine at L5/S1 there is a broad-based disc bulge without nerve compression.
We refer to the comments made in relation to causation, the Review Panel accepted that the lumbar spine injury was a soft tissue injury.
The Review Panel accepted that the cervical spine injury was a soft tissue injury and was a threshold injury within the meaning of s 1.6 of the MAI Act.
Whether the left shoulder injury was a threshold injury?
In the certificate dated 27 July 2023 Medical Assessor Mohammed Assem diagnosed the injury as soft tissue injury.
Medical Assessor Mohammed Assem concluded that the left shoulder injury was a threshold injury.
The insurer did not dispute the conclusion that the left shoulder injury was a threshold injury.
The claimant did dispute the conclusion that the left shoulder injury was a threshold injury.
Medical Assessor Kenna concluded that the MRI of the left shoulder indicated tendinosis but no tears of the rotator cuff.
We refer to the comments made in relation to causation, the Review Panel accepted that the left shoulder injury was a soft tissue injury.
The Review Panel accepted that the left shoulder injury was a soft tissue injury and was a threshold injury within the meaning of s 1.6 of the MAI Act.
Whether the right shoulder injury was a threshold injury?
In the certificate dated 27 July 2023 Medical Assessor Mohammed Assem diagnosed the injury as soft tissue injury.
Medical Assessor Mohammed Assem concluded that the right shoulder injury was a threshold injury.
The insurer did not dispute the conclusion that the right shoulder injury was a threshold injury.
The claimant did dispute the conclusion that the right shoulder injury was a threshold injury.
The claimant contended that this was not a soft tissue injury but an undisplaced chronic tear of the inferior labrum.
We refer to the comments made in relation to causation, the Review Panel accepted that the right shoulder injury was a soft tissue injury.
The Review Panel accepted that the right shoulder injury was a soft tissue injury and was a threshold injury within the meaning of s 1.6 of the MAI Act.
Threshold injury conclusions
The Review Panel found that the following injuries were threshold injuries:
(a) cervical spine, soft tissue injury;
(b) lumbar spine, soft tissue injury;
(c) Left shoulder, soft tissue injury, and
(d) right shoulder, soft tissue injury.
The Review Panel found that the following injury was NOT a threshold injury:
(a) N/A
CONCLUSIONS
Given the Review Panel’s findings, the certificate of Medical Assessor Mohammed Assem dated 23 July 2023 is affirmed.
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