Mitrevski v AAI Limited t/as GIO
[2024] NSWPICMP 145
•12 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Mitrevski v AAI Limited t/as GIO [2024] NSWPICMP 145 |
| CLAIMANT: | Gordana Mitrevski |
| INSURER: | GIO Insurance Ltd |
| REVIEW PANEL | |
| MEMBER: | Ray Plibersek |
| MEDICAL ASSESSOR: | Les Barnsley |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 12 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Claimant was driving a car and wearing a seatbelt when she was rear-ended by another car; on review, the Panel found that the injuries to the claimant’s cervical spine, thoracic spine, lumbar spine, left and right shoulders are all soft tissue injuries caused by the motor accident and are threshold injuries; claimant had a significant past history of injury and disability following an accident in 2009 where she fell down some stairs and injured her back; Held – original medical certificate regarding threshold injuries caused by the motor accident to claimant’s spine and shoulders affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel affirms the certificate of Medical Assessor Christopher Harrington dated 28 June 2023 regarding the listed threshold injuries. |
STATEMENT OF REASONS
INTRODUCTION
On 24 February 2021, Ms Gordana Mitrevski (the claimant) was driving her Jeep with her seat belt on. Her car was stationary at a set of traffic lights at Blue Gum Road, Jesmond NSW when her car was hit from behind.
After the accident, police and ambulance did not attend and Ms Mitrevski was able to drive her car home.
GIO Insurance Ltd (the insurer) is the relevant insurer with liability to pay any damages to Mr El-Rifai under the Motor Accident Injuries Act 2017 (MAI Act).
By letter dated 28 June 2021 the insurer wrote to the claimant and advised that it had determined that the claimant sustained minor injuries, and that it denied liability to make statutory benefits payments beyond the first 26 weeks.[1]
[1] Claimant’s bundle p 28.
By letter dated 18 August 2022 the claimant sought an internal review of this decision. On 26 August 2022 insurer completed its internal review by affirming its original decision.[2]
[2] Claimant’s bundle p 31.
The claimant sought a medical assessment of her injuries. The claimant was medically assessed by Medical Assessor Harrington who issued a certificate dated 28 June 2023.[3]
[3] Claimant’s bundle pp 9-17.
Under recent legislative amendments, a “minor injury” is now known as a “threshold injury” and “minor injuries” are now known as “threshold injuries”.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including “(e) whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[4]
[4] Section 7.20 of the MAI Act.
On 25 July 2023 the claimant filed an application with the Personal Injury Commission
(the Commission) seeking a Panel review of the certificate of Medical Assessor Harrington.ASSESSMENT UNDER REVIEW
The dispute was initially referred to Medical Assessor Harrington who issued a certificate dated 28 June 2023.
The injuries referred for assessment included: cervical spine, thoracic spine, lumbar spine, left and right shoulders.
Medical Assessor Harrington medically examined the claimant on 19 June 2023. He referred to the history of the motor accident, the history of symptoms and treatment following the motor accident, detailed the current symptoms and set out the current and proposed treatment.
Medical Assessor Harrington certified that the following injuries were caused by the motor accident given the history of the accident, mechanism of injury, clinical and medical imaging findings. He found that the claimant had the following injuries which he found to be soft tissue threshold injuries: cervical spine; thoracic spine; lumbar spine; left shoulder, and right shoulder.
Medical Assessor Harrington’s diagnosis and reasons were as follows:[5]
[5] Claimant’s bundle pp 9-17.
“The diagnosis would be an aggravation of well documented pre-existing back pain as well as an aggravation of pre-existing changes in her cervical spine.
In my opinion, the pain and limitation she experiences at the thoracic level is either referred from her chronic back complaint, or referred from her neck (given that she has pain down between her shoulder blades). I have not identified any acute pathology causally related to the subject motor accident.
I do not believe there is any ongoing injury to her dominant right shoulder. If she did have a soft tissue injury, it has completely resolved.
She seems to present with adhesive capsulitis of the left shoulder. There may have been a strain when her body was jolted in the seatbelt, given the sash doesn’t restrain the left shoulder in the driver's seat. Her frozen shoulder has most likely developed from pain and subsequent dis-use…..
In my expert opinion, the injuries for assessment meet the criteria of a threshold injury. I do not believe her perceived invalidity is consistent with injuries sustained in the subject motor accident. She obviously has a long, well-documented history of back pain which may have been aggravated in the subject accident however ample time has passed for an aggravation to resolve. Whilst she reports an ongoing ability to care for herself, I do not believe the disabilities are related to the subject will accident.”
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Harrington was lodged on 25 July 2023 which is within 28 days of the date on which the certificate was made available to the parties.
On 22 August 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel). The delegate’s reasons for accepting the review application was the Medical Assessor’s finding that the motor accident caused an aggravation of the claimant’s pre-existing lumbar spine condition and the findings of the report of Professor Ghabrial dated 16 February 2022.[6]
[6] Claimant’s bundle p 7.
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.[7] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[7] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued Directions to the parties dated 3 November 2023 directing that it intended to re-examine the claimant.
THRESHOLD INJURY (formerly minor injury) – STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Sub-section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 of the MAI Act provides that Regulations may be made to exclude or include a specified injury from being a threshold 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)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a 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.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 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.
5.8 Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9 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.”
ASSESSING THE CAUSATION OF INJURIES
The difficult issue of how medical assessors are required to assess the causation of injuries in a motor accident has been recently considered in a number of cases. Some of these recent cases are referred to below.
In Briggs v IAG Limited trading as NRMA Insurance (No. 2)[10] his Honour Justice Wright stated at [35]:
[10] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
3.“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
4.6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
5.6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
6.'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
7.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
8.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
9.This, therefore, involves a medical decision and a non-medical informed judgement.
10.6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.’”
In Briggs v IAG Limited trading as NRMA Insurance (No. 2),Wright J set out some fundamental principles of how medical assessors are required to approach the question of causation in accordance with the Guidelines (in the context of errors made by the second review panel). His Honour said, at [75]-[77]:
“75. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[11] her Honour Harrison AsJ found that a third review panel’s decision on causation was based wholly on its findings that radiological changes cannot be scientifically proven to be traumatically caused. Her Honour found that in conducting its assessment the third review panel failed to take into account all of the relevant evidence referred to by Wright J in the above passage from Briggs
(No. 2). Her Honour then stated:[11] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41].
“42. The third review panel failed to take into account all relevant evidence as required by clause 5.6 of the guidelines,and in light of all that material and in accordance with cll 6.6 and 6.7 of the guidelines, the panel failed to make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to the plaintiff’s injury.
43. In relation to the finding as to causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In the same way that the second review panel had fallen into error, the third review panel failed to address the question of causation on the balance of probabilities, instead requiring that the claimant establish causation of the disc injury to the level of medical certainty, rather than on the balance of probabilities.”
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[12] her Honour Harrison AsJ referred again to the decision of Wright J in Briggs (No. 2) where his Honour cited the following cases and commented:
[12] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [44].
“71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 as follows, at 242:
… it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.
72. Furthermore, 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: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73. The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74. For the reasons set out above, the review panel failed to deal with the issue of causation according to law, and, in doing so, constructively failed to exercise its jurisdiction.”
EVIDENCE BEFORE THE REVIEW PANEL
Application for Personal Injury Benefits
The Application for Personal Injury Benefits dated 24 March 2021 notes the reported injuries as including: soreness and stiffness to the neck, shoulders, and entire back area with shooting pain down her back to her buttocks.[13]
[13] Claimant’s bundle p 23.
Claimant’s and other statements
The claimant’s solicitors have provided a statement that was undated and unsigned.[14] The statement included the following passage describing how the claimant manages her pain:
“In 2009 I hurt my back whilst cleaning for my brother and since then I have had mild lower back pain. I have managed the pain by being very careful since then with my lifting and generally doing anything with my back. Before the accident on the 24 February 2021 I believe I had not been to a doctor for about 2 years concerning my back. I manage on my own and am just careful with what I do. After the accident my lower back pain got much worse and I started to get pain in my both big toes and the toes next to my big toe. I did not have this pain before the motor vehicle accident. I am being treated by my GP, Dr Bhaskar and I have also been receiving physiotherapy and acupuncture from the physiotherapist from the date of injury to date for both shoulders but more particularly my left shoulder and for my neck and back. Physiotherapy has been to both shoulders but mainly my left shoulder and side and back.”
The claimant’s daughter, Olivia Cavicchia has provided a statement dated 22 September 2022.[15] In this statement Ms Cavicchia states that she is the full-time carer for her mother including assisting her mother every day with dressing, bathing, toileting and mobility. She also states that she does the shopping cooking cleaning and many other duties around the home.
41.The claimant’s brother Robert Mitrevski has provided a statement dated 8 May 2017 to Centrelink. His statement is in support of the claimant’s application for a disability pension. This statement states that Robert Mitrevski is Gordana Cavicchia’s brother and also her carer. The statement then says that: “… Gordana suffers from permanent disability which includes fluctuating lower and mid back pain and full on migraines and a chronic adjustment disorder.”[16]
[14] Claimant’s bundle pp 18-19.
[15] Claimant’s bundle pp 21-22.
[16] Insurer’s bundle R 2 pp 99-100.
Police and ambulance reports
The bundles of documents provided by the claimant’s solicitors and the insurer’s solicitors did not contain either a New South Wales ambulance report nor a NSW police report regarding the subject motor accident.
Police and ambulance did not attend the motor accident.
Hospital reports
The bundles of documents provided by the claimant’s solicitors and the insurer’s solicitors did not contain any hospital notes regarding the subject motor accident.
Treating medical evidence
Pre-accident treating records
There are medical records available for the claimant’s medical history prior to motor vehicle accident.
In bundles of documents the parties produced over 400 pages of clinical and treating medical records for the claimant prior to and after the subject motor vehicle accident. The Panel has reviewed all the medical records produced by both the claimant and the insurer.
There are numerous certificates of capacity and clinical records available from the claimant’s treating general practitioner (GP) Dr Pradeep Bhaskar.
On 28 June 2017 Dr Bhaskar records in his clinical notes that he was consulted by the claimant who described being in bed for prolonged periods due to a flareup of her back pain and that she was still struggling with her back and walking with a limp today.[17]
[17] Insurer’s review panel bundle R 1 p 2.
In a referral letter dated 16 May 2017 from Dr Bhaskar addressed to John Hunter Hospital, he reported that the claimant’s past medical history included: Bilateral sciatica... Chronic back pain with radiculopathy... Right L4 nerve root compression and lumbar disc prolapse L3/L4.[18]
[18] Insurer’s bundle R 2 p 238.
On 18 May 2017 Dr Bhaskar wrote a health team care arrangement which noted that Gordana Cavicchia had the following medical conditions: lumbar spine degeneration/chronic back pain with sciatica.[19]
[19] Insurer’s bundle R 2 p 108.
In a report from Broadmeadow Physiotherapy dated 20 June 2017, Emily Cavanagh Exercise Physiologist, noted the claimant's medical history as: back injury (2009) L3, L4, L5 (three ruptured discs and herniated disc) following falling down stairs – recent re-aggravation, poor knee stability, spasms and cramping in hands and feet and depression. [20]
[20] Insurer’s bundle R 2 p 111.
Dr Courtenay noted that in 2009 the claimant slipped down some stairs injuring her back. She then underwent physiotherapy and hydrotherapy. She had some further injury in approximately 2013, however she was a little unclear as to what exactly occurred.[21]
[21] Claimant’s bundle p 50.
There is a report from Dr M Guirgis dated 1 December 2010 which refers to the date of injury as 12 December 2009. Dr Guirgis’ diagnosis is post-traumatic mechanical derangement of the lumbar spine caused by sprain at the L3/S1 level with a central disc bulge at the L4/L5 level.[22]
[22] Claimant’s bundle p 65 .
Professor Ghabrial reported on the claimant on 15 August 2013 and 3 October 2013.[23] In the October 2013 report he writes that he has assessed the permanent impairment at the claimant's back at 30% and assessed the permanent loss of efficient use of the right lower limb at the knee at 10%. Professor Ghabrial has not set out his calculations or how he came to these conclusions in this report. In a third report also dated 3 October 2013, Professor Ghabrial writes that MRI performed on 29 August 2013 showed a disc protrusion at the L2/L3 segment with degenerative changes developing at the L3/L4, L4/L5 and L5/S1 segments. Professor Ghabrial recounts the circumstances of the claimant's fall where he records that she fell over 1½ m in height on 12 December 2009 whilst cleaning her brother’s property. He writes that the claimant fell down some stairs hitting her back and twisting her spine.
Post-accident treating records
[23] Claimant’s bundle p 68-68.
There are numerous certificates of capacity and clinical records available from the claimant’s treating GP, Dr Pradeep Bhaskar.[24] These certificates certify that during 2021 the claimant had no capacity for work due to her ongoing and chronic neck and back pain from the motor accident. The insurer notes that all the Certificates of Fitness before the Review Panel certify “whiplash to the neck and / lumbar back pain”, with reference to pre-existing right back pain with radiculopathy.[25]
[24] Claimant’s bundle pp 93-112.
[25] Insurer’s review panel bundle R 1 p 2.
On 16 March 2021 Dr Bhaskar records in his clinical notes that he was consulted by the claimant who described having a motor vehicle accident on Wednesday 24 February. She was hit from behind when driving a stationary car. Car behind not very fast – thrown forward. Day after – started to get pain shoulders L mainly and neck. Headaches. Using magnesium tablets every four hours. [26]
[26] Insurer’s bundle R 2 pp 32-33.
Professor Ghabrial saw the claimant on 11 January and 16 February 2022.[27] There is no report available for the 11 January 2022 consultation. Professor Ghabrial records that the claimant experienced symptoms in her left arm and left leg, although he doesn’t note what these symptoms are. The report dated 16 February 2022 refers to MRI scans of her whole spine performed on 20 January 2022. These scans show evidence of compression at the left C6 nerve root and the left C7 nerve root. There were multiple level disc degeneration from the L1 to the sacrum in the lumbar spine. There was compression of the left L5 nerve root and disc protrusion at the L4/L5 level. Professor Ghabrial wrote that is likely that the claimant's neck problem is related fully to the motor vehicle accident in February 2021. The claimant had no investigations for her neck when he saw her previously in 2013. Regarding the lumbar spine, Professor Ghabrial writes that the motor vehicle accident of February 2021 has aggravated the claimant's lumbar spine problem. She has a minor disc herniation at L4/L5 level and foraminal stenosis towards the left side at the L5/S1 level that is most likely long-standing.
Medico legal other reports
[27] Claimant’s bundle pp 71-72.
There is a report dated 19 June 2022 from Professor Brett Courtenay.[28] Professor Courtenay assessed the claimant with a whole person impairment of 15%. He found impairment due to the accident to both shoulders and to the cervical spine. He did not believe there is an increased impairment of the low back as a result of the accident. Professor Courtenay’s opinion and diagnosis was that:
“Ms Mitrevski has suffered significant soft tissue injuries as a result of the motor vehicle accident, and particularly to her neck, shoulders and low back. There was certainly some pre-existing problems, however it is difficult to assess that and it was related to the fact that she was already on a Disability Support Pension. The writer notes that she was considering stopping the Pension and returning to the workforce.
Diagnosis
Following examination, the writer would proffer a diagnosis of soft tissue strain as a result of the motor vehicle accident, and particularly to the neck and low back, however there was no evidence of radiculopathy.” [29]REVIEW OF THE RADIOLOGY
[28] Claimant’s bundle p 54.
[29] Claimant’s bundle p 52.
There are a large number of X-rays MRIs and CT scans reporting on the claimant’s cervical thoracic and lumbar spine and also both shoulders dated from 13 April 2010 until 20 January 2022. These confirm investigation for spinal pain prior to the subject motor accident.[30]
[30] Claimant’s bundle pp 56-63.
The Panel has read and carefully considered all of the radiological reports and comments on the pertinent reports below.
In 2010 there are several reports referred to by the claimant solicitors. On 13 April 2010 there is an X-ray of the lumbar spine and pelvis. On 5 May 2010 there is that CT scan of the lumbar spine. On 6 June 2010 there is an MRI scan of the lumbar spine. These reports show a number of abnormalities. There is mild narrowing of the L5/S1 disc space. There are a number of disc protrusions commencing at the L3 L4 level through to the L5/S1 level with depression at the right L4 nerve root sheath.
Between 2011 and 2013 there are three more reports. There is a CT guided injection on 28 June 2011. On 5 January 2012 there is an MRI of the lumbar spine. On 30 August 2013 there is an MRI of the lumbar spine.
The conclusion of the MRI scan dated 5 January 2012 is:
“There is an annular fissure paracentrally on the Right at L3/4 with only bulging of the annulus. The previously noted large Right paracentral disc protrusion has resolved.
Small disc bulges at L2/3 and L4/5 without significant neural compromise.
Milder annular disc bulge at L5/S1. There is no significant compression of the nerve roots.Mild scoliosis convex to the Left. Possible changes in the myometrium.” [31][31] Claimant’s bundle p 60.
The conclusion of the MRI of the lumbar spine on 30 August 2013 was: No significant interval change 5 January 2012. No exiting nerve root compression. Vertebral bodies are intact. No significant facet arthropathy or spondylolisthesis.[32]
[32] Claimant’s bundle p 61.
On 13 October 2021 there is a CT scan of the cervical spine.[33] This showed multilevel osteoarthritis, no focal disc herniation, mild foraminal stenosis at C5/C6. In detail the report was :
[33] Insurer’s bundle R 2 p 350.
18.“CT CERVICAL SPINE 13/10/2021 Reference: 8591410
HISTORY:
MVA with C6 to T1 left radiculopathy.
FINDINGS:
Alignment of the cervical spine is normal. No focal bone lesion is visualised.
There is mild multilevel facet joint OA.
Prominent circumferential disc osteophyte complex is noted at C5/6 and C6/7. There is mild central canal narrowing at C5/6 and to a lesser degree at C6/7 due to disc osteophyte complex.
No focal disc herniation is seen.
On the left, there is mild foraminal narrowing at C5/6 due to disc osteophyte complex. No significant right foraminal stenosis is identified.
No fracture is identified.
COMMENT:
No focal disc herniation is seen. Only mild foraminal stenosis seen on the left at C5/6. Given the patient's left-sided symptoms, a GP rebatable MRI of the cervical spine is recommended.Dr Kushlan Aluwihare”
On 20 January 2022 there is an MRI scan of the cervical and lumbar spine.[34] This showed multilevel degenerative changes and disc desiccation. Disc herniations at C5/C6 and C6/C7. Nerve root impingement at the L5 level. Spondylosis in the lumbar spine with impingement on the left L5 nerve root.
SUBMISSIONS
Claimant’s submissions
[34] Claimant’s bundle pp 63-64.
The claimant’s solicitors provided written submissions dated 25 June and 17 November 2023.[35]
[35] Claimant’s bundle pp 1-5 and pp 119-120.
In the submissions dated 25 June 2023 the claimant asserts that Medical Assessor Harrington, in applying the criteria mandated by the Motor Accident Guidelines and Motor Accident Injury Regulation, erred in his evaluation by ascribing incorrect threshold assessment to two of the injuries assessed.
In its submissions the claimant’s solicitors contended that Medical Assessor Harrington failed to have regard to the history was that the claimant did not suffer any pre-existing condition to her neck and or cervical spine.
The claimant refers to the medical report of Professor Ghabrial who reported the claimant experiencing radicular referral to the upper limbs.
The submissions refer to the report of Newcastle Integrated Physiotherapy dated 8 June 2022 which noted the claimant as suffering “…constant L sided neck and shoulder P with referral down L arm to the fingers…”
Given the medical report findings of Professor Ghabrial the claimant submits that she is suffering from a cervical spine injury with radiculopathy and not simply an aggravation of a pre-existing condition.
The claimant also argues that Medical Assessor Harrington summarised the views of the claimant’s treating specialists but he failed to provide any substantive reasons as to why his opinion differed from the evidence. A medical assessor is required to resolve complex and contradictory evidence where there is a difference of opinion by explaining why his opinion is to be preferred over the others.
Regarding the claimant’s lumbar spine, solicitors submit that she continues to experience radiating pain from her lumbar spine into her legs and toes. The claimant was diagnosed by Professor Ghabrial as suffering a “…minor disc herniation at L4/5 level and foraminal stenosis towards the left side at the L5/S1 level…”. The objective radiological evidence shows an impingement of the left L5 nerve root with radiculopathy. The claimant’s treating doctor, Dr Bhaskar, diagnosed the claimant as suffering “Right back pain with radiculopathy”.
The claimant submits that while Medical Assessor Harrington has taken into consideration the claimant’s pre-existing history, he has failed to recognise her impingement and ongoing radiculopathy symptoms including restriction of movement, affected reflexes, loss of sensory touch and muscle guarding. The medical evidence before the Medical Assessor Harrington demonstrates an overall clinical picture of the claimant as having suffered nerve damage with radiculopathy to her lumbar spine.
In conclusion the claimant’s solicitors submit that she falls into the category of having suffered injuries to the cervical spine and lumbar spine both with radiculopathy, thus categorising her injuries as DRE III spinal injuries. Such injuries are non-threshold injuries pursuant to the MAI Act and Guidelines.
In the submissions dated 17 November 2023 the claimant submits that the body parts in which Medical Assessor Harrington erred included the cervical spine and lumbar spine. The submissions further asserts that Medical Assessor Harrington, in applying the criteria mandated by the Motor Accident Guidelines and Motor Accident Injury Regulation, erred in his evaluation by ascribing incorrect threshold assessment to two of the injuries assessed.
The claimant’s submissions state that the claimant cannot travel and must be reassessed in Newcastle.
The claimant concludes that outcome of the review should be a finding of non-threshold injury of the cervical and lumbar spine be substituted in accordance with the assessment of Dr Courtenay.
Insurer’s submissions
The insurer has provided sets of written submissions one set dated 30 November 2023 and the other undated.[36]
[36] Insurer’s bundle R 1 pp 2-3.
In its submissions the insurer maintains that the claimant has sustained soft tissue injuries as a result of the accident.
The insurer notes that police and ambulance did not attend the scene of the accident and that the accident was first reported to police on 17 March 2021. The insurer notes claimant attended her GP Dr Bhaskar soon after the accident on 9 March 2021 but did not mention the motor accident. She first reported the accident to her GP on 16 March 2021 complaining of neck pain and headaches.
The insurer submits that the review panel will be satisfied that the claimant has sustained whiplash injuries as a result of the subject matter accident.
In a second set of undated submissions the insurer submits, in relation to the cervical spine, that:
“Assessor Harrington found the cervical spine was a threshold injury. The Claimant alleges Assessor Harrington erred in his assessment of the cervical spine on the basis his opinion differed to the medico-legal opinion commissioned by her solicitors, Dr Ghabrial.
For the cervical spine to be considered a non-threshold injury, there must be two or more objective signs of radiculopathy found at the time of assessment as per clause 5.8 of the Motor Accident Guidelines.
Upon examination, the Claimant presented with spasm, tender to the touch, referred pain between the shoulder blades, symmetrical reflexes and no altered sensation or other signs of neurology. The Claimant does not satisfy the criteria for radiculopathy and the Assessor has made no error.”In the second set of undated submissions the insurer submits, in relation to the lumbar spine, that when examined by Medical Assessor Harrington the claimant did not display two or more signs of radiculopathy associated with the lumbar spine. Medical Assessor Harrington noted that her flexion was restricted to mid-thigh and there was no extension. The claimant was able to walk on her heels and stand on her toes. Reflexes were symmetrical and sensation was normal. The insurer submitted that it is clear the claimant does not satisfy the criteria for radiculopathy and there is no error in the Certificate of Assessor Harrington.
MEDICAL EXAMINATION
Details of who attended the assessment
Ms Gordana Mitrevski attended the interview and examination conducted by Medical Assessors Geoffrey Stubbs and Les Barnsley at the medical suites at 2/18 Lambton Road Newcastle on 16 February 2024. The Medical Assessors explained the nature of the dispute and the role of the Commission. Ms Mitrevski’s brother, Robert Mitrevski, was present for the entire assessment as a support person. He was appraised of the limitations of a support person’s role, specifically that he was not to answer any questions on her behalf.
Background
Ms Mitrevski is now a single woman with two daughters. She has been on the disability support benefit since 2010 for chronic low back pain. This followed an injury when she fell on stairs when employed at her brother’s property. She understood that she had ruptured an intervertebral disc in the lumbar spine and presented with predominantly right leg pain. A public liability claim was settled with a lump sum payout. She continued to be disabled and for a long time her brother received a carer’s benefit for the necessary assistance. She lives with her daughters in her own three-bedroom home. The daughters are performing all of the housework and provide day-to-day assistance with bathing showering and dressing. A gardener is employed on a casual/cash basis to maintain the lawns.
Ms Mitrevski’s most recent incapacitating episodes of low back pain were between March and December of 2017. She was admitted to the John Hunter Hospital with acute on chronic sciatica. An MRI was performed at the John Hunter Hospital with the report that there was a right posterolateral disc protrusion at L3/4 which had diminished in size between the investigations of March and the subsequent repeat investigation in August 2017.
History of injury and treatment
She attended the Broadmeadows physiotherapy beginning in June 2017 for a course of treatment.
She reported that after many years of intrusive symptoms her back pain improved in the latter half of 2020. In late 2020 her brother ceased being her caregiver. Their parents, who also live in the Newcastle area, had become increasingly infirm, and her brother now receives the carers benefit for looking after them.
Ms Mitrevski said that in late 2020 she decided she was well enough to re-enter the workforce and go off the disability support benefit. She attempted to contact Centrelink. The office was closed due to the COVID pandemic. Her brother confirmed this. Ms Mitrevski was asked whether there was any corroborative evidence of her improvement and intentions. She had not written to Centrelink so no corroborative documentary evidence of her intent and clinical condition is available. She did obtain a disability parking scheme sticker in 2017.
She was involved in a motor vehicle accident on 24 February 2021. She was driving her personal vehicle, a 2014 Jeep Cherokee. Ms Mitrevski confirmed the description given in the accident report. Both her daughters were passengers in the car. She was stationary at the back of a queue of stationary cars at traffic lights when another vehicle, a small Toyota coupe, ran into the back of her vehicle. She went on to state that there were no secondary collisions. She thought she was looking ahead at the time of impact and the impact was unexpected. She did not recall any of her body striking any interior structure in her car. The air bags in her vehicle did not deploy. Police and ambulance services did not attend the accident scene. She was able to get out of the car herself. She exchanged details with the other driver and drove the Jeep Cherokee to her home a few minutes away from the accident site. The vehicle was picked up for repairs the following day. She said that the car took several months to repair, but was repairable and she continues to use the vehicle to this day.
She developed left neck pain before she extricated from her car at the accident site. This pain started behind the left ear, radiated anteriorly to the left sternocleidomastoid muscle and posteriorly to the upper trapezius. She was shocked by the accident and had had an immediate headache which has persisted to this day. The symptoms increased markedly overnight and the pain became much more widespread spreading into the left shoulder as far as the deltoid insertion and down between the shoulder blades to the low back.
With time the pain has spread to become even more extensive. It now involves the whole of the left upper limb and hand. Ms Mitrevski was asked which fingers are involved and she confirmed that this it affected the thumb and index and middle fingers.
Around December 2021 she began to develop similar, but less severe, right sided neck and arm pain with a similar distribution. The assessors confirmed on specific questioning that 10 months elapsed between the accident and the development of right arm symptoms.
Her low back pain flared up the day after the motor vehicle accident. It spreads down the back of the thighs and into the calves and both feet. She reported that it had been present ever since the day after the motor vehicle accident. The pain is associated with spams in the low back and can worsen at any time for no apparent reason.
All the symptoms are present every day but vary in severity. She describes intermittent cramps/spasms in both hands and toes. She acknowledged that she gets stressed and can over breathe (hyperventilate) sometimes when she gets the spasms, but she also noted that the spasms would precede rather than follow episodes of hyperventilation, and could occur without any respiratory symptoms. Neck and back pain are present in varying severity every day. She manages her pain by resting and avoiding movement.
She had an MRI of the cervical spine performed some months after the motor vehicle accident and believes this showed two ruptured discs in the neck together with the pre-existing changes in the low back. No investigations have been performed for either shoulder.
She sought assistance from Dr Joe Ghabrial, orthopaedic surgeon, who advised a course of corticosteroid injections, two into the neck and one into the low back. These were performed at PRP Radiology Adamstown under CT control. The injections made no difference at any point in time.
She has had between 40 and 50 sessions of physiotherapy since the motor vehicle accident without any benefit.
She attended her local doctor on the 9 March 2021, that is two weeks after the accident. The local doctor’s notes make no mention of the accident and contain no clinical details. The function of the consultation appears to be the completion of an application for a carer’s benefit for Ms Mitrevski’s daughter (this has been approved and is ongoing). Ms Mitrevski was asked whether she initiated the request for the certificate of incapacity, she said she did not ask for it, and the doctor had had the certificate with him and filled it in.
The Medical Assessors pointed out that it would be unusual for such a certificate to be filled in two weeks after a minor motor vehicle accident, without any other assessment or treatment. She and her brother again insisted that they did not request the certificate, her doctor volunteered it, and that it was for the problems she had emanating from the motor vehicle accident. She was further asked why the incapacities listed on the certificate were for sciatica and chronic degenerative low back pain, anxiety, and depression. The certificate did not mention the motor vehicle accident or the recent neck injury. Ms Mitrevski was asked about this apparent omission. She and her brother stated that they had definitely told the doctor about the motor vehicle accident neck pain and were surprised that the neck injury was not included on the certificate.
Current status
She continues to drive her Jeep Cherokee on a regular basis by herself. She was asked what difficulty she had and she replied she could get in and out of the vehicle, without assistance and adequately control it. She felt that she was a safe driver who was fully aware of surrounding traffic using the mirrors and could reverse park the car using the reversing camera. She had not sought disabled driving assessment nor had she been advised to by anyone to do so. She has continued to use a disability parking certificate. She drives independently as required but only locally.
She continues to be unable to perform normal activities of daily living. She said that her daughters continue with the housework and cooking, the garden is maintained as before. She is unable to take any part in this. She also requires assistance with her own personal care, including dressing, bathing, and toileting.
Ms Mitrevski was asked why she could not come to the Commission rooms in Sydney for the assessment. She replied this would be impossible, she could not use public transport. If she did travel she would need a brother to escort her. As she needed assistance dressing and toileting this would raise the problem of her using public toilets. Travelling to Sydney and using public transport in general is beyond her capacity.
She reported that she does very little and spends much of the time resting in bed. She routinely uses a horseshoe-shaped foam cervical travel pillow around her neck (as opposed to a medical device) and a latex lumbar support belt.
Her present medication includes low-dose Voltaren (12.5 milligram) and non-prescription Paracetamol with codeine. She buys both over the counter mostly at supermarkets. She takes a magnesium supplement for her cramps. She takes no other medication. No further treatment or specialist referrals is planned. She did see a neurosurgeon after the 2009 fall but has not seen a neurosurgeon since.
She has made a successful claim on an income replacement policy attached to her superannuation on the basis of total and permanent disability.
Physical examination
Ms Mitrevski was first seen fully dressed and wearing the neck pillow and lumbar support. She stood 158cm tall and weighed 62kg. She was sitting in a chair and needed assistance from her brother to rise from chair. She held her back stiffly with minimal spontaneous movement. She frequently grimaced. With the Medical Assessor holding her hands for balance and safety, but not taking any weight, she was able to stand on her heels and toes and take a couple of steps on her heels and toes. She could also weight bear on each leg.
Ms Mitrevski was told that she would need to get partially undressed for the physical examination. She said she had not anticipated this, no one else asked her to do so. The Medical Assessors then worked out a suitable plan and confirmed it’s acceptability with Ms Mitrevski. They would assess her lumbar spine low back and lower limbs first but she would need to remove her slacks, shoes and socks though she could use a draw sheet as modestly panel. The Medical Assessors left the room whilst she was changing, returning after a few minutes when she was ready for examination having been assisted on the examination table by her brother. He subsequently helped her off the table. The examiners then left the room again while her brother helped her redress to waist level and remove her shirt to permit upper body examination. She did not wear the cervical cushion in the upper body examination or lumbar support during examination of the low back and legs.
Lower body examination (lumbar spine and lower limbs):
There was tenderness and guarding down the whole of the spine to both posterior superior iliac spine levels. She was sensitive to light touch with complaints of pain on pressure sufficient to just indent the skin. There was palpable spasm in the left paravertebral musculature at the lumbar levels.
Forward flexion at the waist was very guarded. Fingertips reach the level of the upper patella with the majority of movement appearing to take place at the hips. In extension she stands with the lumbar lordosis obliterated and for practical purposes makes no extension movements of the lower spine. Side bending is restricted. There is an 11cm reduction in the distance between fingertips and floor on the right-hand side compared to 6cm on the left.
When lying supine in the legs extended assisted straight leg raising was 15° on both sides and appeared limited by aggravation of her low back pain. With reassurance and encouragement a 25° angle could be obtained. No exacerbation of leg symptoms was reported. Sciatic stretch tests were negative. These findings constitute a negative lower limb nerve tension test.
In the supine position she is unwilling to flex the hips and knees beyond 45°. Motor strength was tested for knee extension, knee flexion and ankle flexion and extension. Voluntary motor strength was to 2+/5 in all these groups. There was no asymmetric muscle wasting. Girth of both thighs was 43cm, measured 10cm proximal to the patella and both calves were 35cm 10cm below the lower pole of the patella.
Sensory testing to light touch was performed and found to be undiminished in either lower limb. Pain distribution was non-dermatomal, effectively involving the whole of both legs.
Her brother was then asked to sit her up on the edge of the examination couch with her legs dangling and flex forward at the waist so that her hands could grip the edge the couch. When sitting she had brisk, symmetrical knee and ankle jerks rated at 2+ with down going toes on the Babinski test. She could fully extend both knees in this position with clinical power 5/5. This test is the equivalent of nerve root traction tests usually performed as straight leg raising. If there are neural tension signs the patient must either limit knee extension or lean back to reduce her forward bend. She did neither.
In summary there is widespread tenderness and pain which does not follow a dermatomal distribution. Light touch sensory mapping shows no abnormalities. She has no wasting of the major muscle groups, brisk symmetrical reflexes and undiminished perception of light touch. Nerve root traction signs were negative. There is asymmetry of side bending in the lumbar spine with complaints of increased pain. The discrepancy in power measured in formal examination at 2+/5 compared to the 5/5 seen when tip-toe and heel walking or performing knee extension was inconsistent and was put to the patient. She was unable to explain the discrepancy but did accept that she had more motor strength than the formal examination suggested. There is no radiculopathy.
Upper body examination, thoracic spine, cervical spine and upper limbs
The examiners then left the room again while her brother prepared her for examination of the upper body. The cervical pillow was removed.
Cervical spine range of motion was measured with a goniometer while sitting. There was 45° rotation right and left, flexion was to 25°, extension was 25°. Side bending towards the right was 25° and 20° towards the left. Therefore, there was globally diminished ranges of motion with no asymmetry.
There was tenderness to palpation on both sides from the base of the skull spreading down to the spine and into the shoulder blades both sides and continuing down the spine to the pelvis. This was associated with diffuse cutaneous hypersensitivity.
Thoracic spinal movements were globally restricted in a symmetrical fashion. Palpation down the thoracic spine revealed no cutaneous sensory changes and no muscle guarding or spasm. She reported diffuse tenderness down the entire spine with pain reproduction in minimal pressure.
When sitting motor strength was assessed with the elbows by the side. Specifically, elbow flexion and extension, wrist flexion and extension, finger abduction and thumb opposition were tested. Motor strength was 4+/5 in all groups. The girth of the upper limbs is 30cm in both arms and 22cm in both forearms measured 10cm from the lateral epicondyle.
There is no wasting in the hand musculature. Sensory mapping to light touch showed no abnormalities. Biceps, triceps and supinator jerks and finger jerks were tested on both sides the reflexes are brisk and symmetrical and rated 2+. Peripheral pulses were present, skin perfusion and colour were normal. Range of motion in the wrists and elbows was normal.
In summary there is a normal neurological examination with no radiculopathy, there is hypersensitivity to light touch and some asymmetrical neck movements.
Active range of motion in the shoulders are recorded in the following table. The measurements were performed with a goniometer and are best-of-three repeated measurements. The measurements were consistent. Ms Mitrevski reported that shoulder movements were limited by pain in the anterior neck and upper trapezius, rather than the shoulder itself.
Right Left Flexion 80° 50° Extension 50° 40° Abduction 80° 50° Adduction 30° 10° External rotation in best abducted position 70° 30° Internal rotation 80° 80°
There is diffuse widespread tenderness over the front of both shoulders extending to the sternum medially. No area is particularly tender. The acromioclavicular joint is normal on both sides. On the limited motion possible there is no positive impingement test and O’Brien’s test is negative.
Motor strength the shoulder girdle is 4+/5 and there is no wasting of the shoulder girdle musculature. It is noted that no investigations have been performed. The range of motion was also performed when lying semi supine and wearing the cervical pillow. Range of motion improved. Note is made of the relatively good preservation of internal and external rotation compared to the restrictions on abduction and flexion.
The examiners considered that the range of motion observed in the shoulders was inconsistent with expected patterns of restriction from shoulder disorders, specifically the relative preservation of internal and external rotation. The observed restrictions were considered to be due to voluntary guarding of movement due to fear of precipitating pain, and the area of pain for which she had concern was not thought to be consistent with that expected of primary shoulder pathology. Taken together, and applying the full gamut of clinical skills and experience, the examiners concluded that there was no primary disorder of the shoulders.
Imaging studies
Ms Mitrevski does not have access to any of the imaging studies performed. She does not know where any of the imaging studies are.
A CT study of the cervical spine was performed by PRP diagnostic imaging on 13 October 2021, eight months after the motor vehicle accident. The report by Dr Aluwihare reports only age-related changes.
An MRI was performed by Hunter Imaging on 19 January 2022, 11 months after the motor vehicle accident and reported by Dr McWhirter. Though couched in somewhat different terms this report also only shows the expected age-related changes.
Dr McWhirter also reported on MRI of the lumbar spine done at the same time. This also shows only changes consistent with normal ageing. The disc prolapse first reported in March 2017 is noted to be spontaneously re-absorbing in December 2017 and had continued to reabsorb. No investigations have been performed of either shoulder.
Consistency
In their introduction the examiners explained the need for detailed questioning about some aspects of the history. The examiners acknowledged that there was a lot of questioning about some events, specifically whether the request for the Centrelink carer’s certificate of incapacity was initiated by herself or by the local doctor, whether she was a competent driver since the motor vehicle accident and the lack of formal driver assessment, and the difficulty she might experience travelling to Sydney. In discussion with Ms Mitrevski she felt she had a full opportunity to explain her point of view and did not feel that the questions were unfair but rather these were reasonable in the circumstances. She reported that the medical examination was in a sensitive and culturally appropriate way to maintain her modesty and still meet the examiners requirements. She was particularly appreciative of the fact that both examiners travelled to Newcastle to conduct the examination. She was specifically asked whether she had any concerns over the manner in which the interview and examination were conducted. She replied no, her brother concurred with this opinion and they both expressed gratitude that the examiners had visited Newcastle to prevent her from needing to travel to Sydney.
DIAGNOSIS, CAUSATION AND SUMMARY OF THE PANEL’S OPINION
In the motor vehicle crash on 24 February 2021, Ms Mitrevski sustained a number of soft tissue injuries. Based on the contemporaneous documentation these were predominantly to his cervical spine and lumbar spine. She also could have sustained soft tissue injuries to her shoulders. The injuries to both the cervical spine and lumbar spine are threshold injuries. There has been no significant structural damage shown to either her spine or shoulders that were caused by the motor accident. Her injuries are confined to sprain, strain and stain (bruising).
The Panel notes that Ms Mitrevski has a significant past history of injury and disability following an accident in 2009 where she fell down some stairs and injured her back.
Cervical spine soft tissue injury
The Panel accepts that Ms Mitrevski sustained soft tissue threshold injury to her cervical spine as a result of the accident. Between 2010 and 2022 there are a number of x-rays, CT scans and MRI scans of the cervical spine. These showed no fractures but they did show long standing multilevel degenerative changes and disc desiccation. There were also disc herniations at C5/C6 and C6/C7 which were judged to be non-traumatic. The Panel noted and carefully considered the reports of Dr Bhaskar, Professor Ghabrial and Dr Courtenay. In a report dated 19 June 2022 Dr Courtenay’s diagnosis was of soft tissue strain as a result of the motor vehicle accident to the neck and low back with no evidence of radiculopathy. The Panel also notes the claimant’s submission that she did not suffer any pre-existing condition to her neck and or cervical spine. At the re-examination and medical assessment, the Panel found there was markedly and symmetrically reduced range of motion in all planes. The Panel noted some muscle spasm tenderness and guarding. There were no ongoing radicular symptoms or signs in either upper limb. The Panel did not find any complete or partial rupture of tendons, ligaments, menisci or cartilage. In summary there was a normal neurological examination with no radiculopathy. Having considered all the evidence on balance the Panel did not find sufficient evidence to support a diagnosis of radiculopathy. Therefore, the appropriate assessment for her cervical spine was that it was a soft tissue injury.
Thoracic spine soft tissue injury
The subject motor accident was a cause of this soft tissue threshold injury to the thoracic spine. The Panel accepts that Ms Mitrevski sustained soft tissue threshold injury to her thoracic spine as a result of the accident. Between 2010 and 2022 there are a number of
X-rays, CT scans and MRI scans of the spine. None of these reports showed any fractures at the level of the thoracic spine but they did show long standing multilevel degenerative changes and disc desiccation in the cervical and lumbar spine. At the re-examination there were no ongoing radicular symptoms in the thoracic dermatomes or signs in either upper limb. There were therefore no neurological signs of any thoracic radiculopathy. The Panel did not find any complete or partial rupture of tendons, ligaments, menisci or cartilage. Having considered all the evidence on balance the Panel did not find sufficient evidence to support a diagnosis of radiculopathy. Therefore, the appropriate assessment for her thoracic spine was that it was a soft tissue injury.
Lumbar spine soft tissue injury
The subject motor accident was a cause of this soft tissue threshold injury to the lumbar spine. The Panel accepts that Ms Mitrevski sustained a soft tissue threshold injury to her lumbar spine as a result of the accident. Between 2010 and 2022 there are a number of
X-rays, CT scans and MRI scans of the lumbar spine. These showed no fractures but they did show long standing multilevel degenerative changes and disc desiccation. There was also some evidence of nerve root impingement at the L 4 and L5 level. The Panel noted and carefully considered the reports of Dr Bhaskar, Professor Ghabrial and Dr Courtenay. In some reports they found impingement of the L4 and L5 nerve root with radiculopathy and bilateral sciatica. In two reports from May 2017 Dr Bhaskar reported that the claimant’s past medical history included: bilateral sciatica... chronic back pain with radiculopathy... right L4 nerve root compression and lumbar disc prolapse L3/L4 and lumbar spine degeneration. At the re-examination and medical assessment, the Panel found there was markedly reduced range of motion in all planes with some asymmetry of side bending. The Panel noted some muscle spasm, tenderness and guarding. There were no ongoing radicular symptoms or signs in either lower limb. The Panel did not find any complete or partial rupture of tendons, ligaments, menisci or cartilage. Having considered all the evidence, on balance the Panel did not find sufficient evidence to support a diagnosis of radiculopathy. Therefore, the appropriate assessment for her cervical spine was that it was a soft tissue injury.
Left and right shoulders
The Panel accepts that the claimant may have experienced soft tissue threshold injuries to both her shoulders caused by or as a result of the motor vehicle accident.
At the re-examination and medical assessment, the Panel found diffuse widespread tenderness over the front of both shoulders extending to the sternum medially. No area is particularly tender. The acromioclavicular joint is normal on both sides. On the limited motion possible there is no positive impingement test and O’Briens test is negative. Motor strength the shoulder girdle is 4+/5 and there is no wasting of the shoulder girdle musculature. There is no radiological evidence which shows any non-threshold injury to either shoulder. Clinically there is no indication of primary shoulder pathology.
CONCLUSION AND CERTIFICATION
The Panel’s opinion is that the accident caused soft tissue injuries to the claimant’s: cervical, thoracic and lumbar spine and also to her shoulders.
For the above reasons the Panel affirms the certificate of Medical Assessor Harrington dated 28 June 2023 that the following injuries caused by the motor accident are threshold injuries (formerly minor injuries):
• cervical spine – soft tissue injury;
• lumbar spine – soft tissue injury;
• thoracic spine – soft tissue injury;
• left shoulder – soft tissue injury, and
• right shoulder – soft tissue injury.
The Panel’s certificate is attached at the commencement of these reasons.
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