Montibeler v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 358
•14 September 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Montibeler v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 358 |
| CLAIMANT: | Emil Montibeler |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Dr Chris Oates |
| MEDICAL ASSESSOR: | Dr Alan Home |
| DATE OF DECISION: | 14 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 4 February 2020 when another vehicle merged into traffic and collided with the side of his vehicle; the issue was whether the claimant suffered a non-minor injury; the claimant sustained a soft tissue injury to the cervical and lumbar spines with no two signs of radiculopathy at any time; David v Allianz Australia Ltd applied; the claimant did not sustain low back injury as alleged; lack of contemporaneous complaint not mentioned in claim form; prior chronic history of back problems and L1 fracture showed to be longstanding; the mechanism of the motor accident could cause aggravation of pre-existing right shoulder condition due to either direct forces from the seatbelt or indirect forces applied through the right hand from the steering wheel; Dr McIntosh has strayed outside of his area of expertise when commenting on medical probabilities and his opinion was rejected; the full thickness tear in the right shoulder shown was aggravated by the motor accident noting the mechanism of the accident which can cause a direct or indirect injury to the shoulder; Held – claimant sustained a non-minor injury to the right shoulder. |
| DETERMINATIONS MADE: | The Review Panel revokes the certificate dated 25 April 2022 and issues the replacement certificate: The claimant suffered a non-minor injury caused by the motor accident, specifically further tearing of the right supraspinatus tendon. The claimant suffered a minor injury to the cervical spine caused by the motor accident. The claimant did not sustain injuries to the low back and right hip caused by the motor accident. |
REASONS
BACKGROUND
Mr Emil Montibeler (the claimant) suffered injury in a motor accident on
4 February 2020 when another vehicle merged into traffic and collided with the side of his vehicle.The insurer insured the owner and driver of the other motor vehicle for liability to pay to Mr Montibeler any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue presently in dispute is whether Mr Montibeler’s injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Cameron who issued a Medical Assessment Certificate dated 25 April 2022. Medical Assessor Cameron concluded that Mr Montibeler sustained injuries to the right shoulder, cervical and lumbar spine which are minor injuries for the purposes of the MAI Act.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[2]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[3]
[2] Sections 3.11 and 3.28 of the MAI Act.
[3] Section 4.4 of the MAI Act.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by Mr Montibeler within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 7.26(5) of the MAI Act.
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 review provisions provide[5] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[5] 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.[6]
[6] 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.[7]
[7] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered.
STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor 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.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor 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 minor psychological or psychiatric injury caused by the motor accident.
5.4 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.”
Clause 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[9]
[9] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the Act[10].
[10] See s 3B(2) of the Civil Liability Act 2002.
ASSESSMENT UNDER REVIEW
The Medical Assessor accepted that there were soft tissue injuries to the cervical spine, lumbar spine and right shoulder. The Medical Assessor did not accept that the right hip was injured or the headaches were caused by the motor accident. He concluded:
“At the right shoulder there is no evidence that a ‘full thickness tear’ occurred in the subject motor accident. The mechanism of injury would not be expected to cause that injury and there is a very high prevalence of ligament degenerative [disease] in asymptomatic people of Mr Montibeler’s age.”
SUBMISSIONS
Claimant’s submissions undated[11]
[11] Claimant’s bundle, page 2.
The claimant submitted that “the principal issue in dispute is whether the claimant’s right shoulder injury and lumbar spine injuries are considered minor for the purposes of the Act”.
The claimant referred to the right shoulder ultrasound dated 4 June 2020 which showed a full thickness tear of the supraspinatus tendon. It was submitted that
Mr Montibeler had no pain or discomfort in the right shoulder prior to the motor accident and complained of constant right shoulder pain after the motor accident. It was submitted that this pathology could occur when the claimant’s “vehicle is unexpectedly hit from the side whilst holding the steering wheel [which] could result in a twisting motion that could cause” the tear.The claimant submitted that the Medical Assessor failed to explain why the compression fracture at L1 was a minor injury. He otherwise failed to consider the absence of lumbar pain prior to the motor accident.
Insurer’s submissions dated 6 October 2021[12]
[12] Insurer’s bundle, page 4
The insurer submitted that the Application for Personal injury benefits noted neck fusion in 1990 and chronic right hip and back pain. The clinical records from Liverpool Medical Centre provide a well-documented history of multiple chronic health conditions to the neck, back, right shoulder and psychological problems.
Physiotherapy records in 2014 noted chronic right shoulder and hip pain aggravated after a motor accident and chronic back and neck pain.
The insurer noted the post motor accident records referred to neck and right shoulder pain. Numbness was reported in the first and second digits of the right hand. Dr Ong opined in June 2020 that there was evidence of right posterior vitreous detachment which was traumatic.
The insurer submitted that the claimant sustained soft tissue injuries to the neck and right shoulder in the motor accident. The nature of these injuries fell within the meaning of minor injury. There was otherwise no evidence from the clinical examinations of the treating providers that satisfies the diagnosis of radiculopathy as defined in the Guidelines.
Insurer’s submissions dated 10 June 2022[13]
[13] Insurer’s bundle, page 2.
The insurer submitted that the clinical records of Dr Goyal show documented right shoulder pain since 2007 with documented degeneration in the AC joint shown in an
X-ray at that time 2007. Further, the ultrasound was recorded as showing atrophy which was likely chronic in nature.The medical records also show a documented history of longstanding back problems including osteoporotic compression fractures in the thoracic and upper lumbar vertebra in an X-ray dated 14 December 2015. The MRI scan dated 13 May 2021 reported that the changes were longstanding.
The insurer submitted that there were no errors in the original assessment.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundles of documents in accordance with the initial direction.
Pre-accident medical records
The clinical notes of Liverpool Medical Centre noted a cervical spine laminectomy in 1990 and lumbar spine laminectomy in 1970.[14]
[14] Insurer’s bundle, page 146.
An X-ray of the right shoulder dated 5 October 2007 showed degenerative changes in the acromio-clavicular joint.[15] The clinical note at that time refers to doing concreting and using hammer causing right shoulder pain.[16]
[15] Insurer’s bundle, page 433.
[16] Insurer’s bundle, page 434.
Clinical note dated 1 March 2014 refers to right sciatica from the back.[17] Low back pain is mentioned in 2015 including as being “severe”.[18] On 17 February 2016 the clinical notes refer to prescription of Endone for back pain.[19]
[17] Insurer’s bundle, page 473.
[18] Insurer’s bundle, page 481.
[19] Insurer’s bundle, page 477.
An Allcare Physiotherapy report dated 13 August 2014 noted chronic right shoulder and hip pain aggravated after motor accident. Mild restriction was reported in the lumbar spine, cervical spine and shoulder due to pain and spasm.[20]
[20] Insurer’s bundle, page 490.
The X-ray of the lumbar sacral spine dated 14 December 2015 states:[21]
“There are osteoporotic compression fractures of the vertebral end plates of some lower thoracic and upper lumbar vertebrae with greater than 20% reduction in height and an increased kyphosis.”
[21] Insurer’s bundle, page 492.
Allcare physiotherapy report dated 25 July 2016 noted a history of chronic neck pain radiating to bilateral shoulder, back and hip pain.[22]
[22] Insurer’s bundle, page 59.
Hospital discharge records dated 22 January 2017 for back pain noted lumbar spine fusion 40 years previously with Dr Segelov and known lumbar disc pathology with nerve impingement.[23]
[23] Insurer’s bundle, page 75.
A care plan dated 30 January 2018 noted a history of laminectomy in the 1990’s, L5/S1 sciatica and canal stenosis, left wrist De Quervains tenosynovitis and osteoporotic compression fractures of the thoracic and upper lumbar vertebrae.[24] Symptoms included low back pain radiating down right leg associated with numbness. Examination findings included positive straight leg raising, reduced sensation at L1, L2, L5 and S1 and L1 and L2 numbness.[25]
[24] Insurer’s bundle, page 61.
[25] Insurer’s bundle, page 76.
On 9 January 2020 Dr Goyal certified that the claimant suffered from chronic back and right hip pain.[26]
[26] Insurer’s bundle, page 169.
Motor accident
The police report[27] noted the claimant had sustained neck and shoulder pain following the motor accident.
[27] Insurer’s bundle, page 11.
Mr Montibeler completed a typed claim form dated 13 November 2020.[28]
[28] Insurer’s bundle, page 15. There is a handwritten version and a typed version which are not identical.
Mr Montibeler stated that the insured driver drove out of a driveway and collided with the claimant’s vehicle with immediate onset of headache and right shoulder pain. Prior health conditions included chronic right hip and back pain which was described as “mild pain”.
The injuries received in the motor accident were described as:
“Shoulder pain – Right arm – Pins and needles and strong pain
Headaches
Ear aches
Hip pain.”
Medical evidence
The clinical note from Liverpool Medical Centre dated 6 February 2020 noted the motor accident on 4 February 2020 when a motor vehicle collided with the passenger’s side. The notes specify complaints of pain to neck, right shoulder and headache.[29] The clinical note on 15 February 2020 repeated these injuries.[30]
[29] Insurer’s bundle, page 171.
[30] Insurer’s bundle, page 362.
The clinical note of Dr Goyal dated 18 February 2020 referred to problems to the neck, right shoulder, headaches 2nd to motor vehicle accident and acute anxiety.[31] A certificate of capacity dated 18 February 2020 diagnosed injuries as right shoulder, neck and headache secondary to motor accident. Pre-existing conditions were noted as neck surgery, chronic right hip and back pain. [32]
[31] Claimant’s bundle, page 17.
[32] Insurer’s bundle, page 389.
On 10 March 2020 Dr Goyal noted right shoulder pain with numbness on first three digits.[33] A referral to physiotherapy on that day noted neck and right shoulder pain.[34] A referral to an optometrist at that time noted “disturbed vision like a fly in front of right eye” since the motor accident.[35]
[33] Claimant’s bundle, page 18.
[34] Insurer’s bundle, page 392.
[35] Insurer’s bundle, page 394.
The Allied health recovery request dated 13 March 2020 referred to neck and right shoulder pain with numbness of first and second digits.[36] A further request dated
30 September 2020 noted shoulder impingement.[37][36] Insurer’s bundle, page 543.
[37] Insurer’s bundle, page 554.
A report from Prime Physiotherapy dated 14 March 2020 noted presentation on
13 March 2020 with neck and right shoulder pain associated with the motor accident.[38] Complaints were of right-sided neck pain, right shoulder pain, headaches, vertigo and numbness of the first and second digits. On 4 April 2020 the physiotherapist noted neck pain had eased but right shoulder pain had not improved.[39][38] Claimant’s bundle, page 14.
[39] Insurer’s bundle, page 182.
The clinical notes of the physiotherapist refer to shoulder and neck treatment throughout 2020.[40]
[40] Insurer’s bundle, pages 564-571.
Examination findings were marked restriction of neck and right shoulder movement with no neurological signs. The physiotherapist opined that there was neck pain typical of whiplash associated disorder and suspicions of a right shoulder rotator cuff injury.
The referral to Dr Ong dated 12 May 2020 noted “disturbed vision like a fly in front of the right eye” since the motor accident.[41]
[41] Insurer’s bundle, page 185.
Dr Stephen Ong, ophthalmologic surgeon, noted a history of right eye floaters developing after the motor accident and opine that there was likely traumatic posterior vitreous detachment.[42] The doctor noted there was no evidence of retinal holes, tears or detachment.
[42] Claimant’s bundle, page 15.
A certificate dated 1 September 2020 diagnosed neck, right shoulder and headache secondary to the motor accident.[43]
[43] Insurer’s bundle, page 214.
On 9 September 2020 the physiotherapist noted no significant improvement in right shoulder pain.[44] This comment was repeated on 1 December 2020.[45]
[44] Insurer’s bundle, page 217.
[45] Insurer’s bundle, page 233.
On 2 March 2021 Mr Montibeler presented to hospital with a report that he blacked out and fell down 14 steps. Pain was reported in the right hip, left arm, lower back, neck and right shoulder.[46] The claimant fractured his left distal ulnar shaft.
[46] Insurer’s bundle, page 235.
On 12 April 2021 the claimant was referred for an MRI scan of the back with a history of ongoing back pain, getting worse with radiation to right lower leg.[47]
[47] Insurer’s bundle, page 256.
Radiology
A right shoulder ultrasound dated 4 June 2020 showed a complete full thickness tear of the supraspinatus tendon with atrophy of the supraspinatus muscle. The infraspinatus tenson was thickened and heterogenous with thickening of the bursa.[48]
[48] Claimant’s bundle, page 16.
An MRI scan of the cervical spine dated 4 June 2020 noted right shoulder pain and headache since the motor accident. The scan showed degenerative at multiple levels with a congenital fusion at C6 and C7.[49]
[49] Insurer’s bundle, page 192.
Right shoulder injection was undertaken on 22 July 2020 without complications.[50]
[50] Insurer’s bundle, page 213.
An MRI scan of the lumbar spine dated 13 May 2021 noted ongoing back pain radiating to right leg with associated numbness.[51] The scan showed osteoporotic compression fracture at L1 and multi-level degeneration throughout the lumbar spine.
Biomechanical report[52]
[51] Claimant’s bundle, page 19.
[52] Insurer’s bundle, page 608.
Dr Andrew McIntosh provided a report dated 10 August 2021. A history was noted of a motor accident at 50 km/h with the insured vehicle appearing “from nowhere”.
Mr Montibeler stated to the investigator that:“The impact happened and it hit me, and I did not get a chance to brake or swerve or take any evasive action.”
From the photographs taken of the scene, Dr McIntosh described the motor accident as “a sideswipe, but from the perspective of the claimant … an offset angled frontal collision”.[53]
[53] Insurer’s bundle, page 626.
Dr McIntosh accepted that it was plausible that Mr Montibeler could have suffered symptomatic aggravation of his pre-existing cervical spine, lumbar spine and right shoulder conditions in the motor accident but “the mechanics of the collision could not have reasonably led to the injuries to which the claimant is now complaining”. [54]
[54] Insurer’s bundle, page 642.
Dr McIntosh noted that pre-existing injury is a “risk factor in injury likelihood and symptom presentation”. He noted that Mr Montibeler had degenerative changes in the spine and right shoulder. Describing the forces as low to moderate, Dr McIntosh opined that the accident could have aggravated the cervical spine “with symptoms of a close period of limited duration” settling within six months.
In respect of the right shoulder, Dr McIntosh stated:[55]
“There is no mechanism for rotator cuff injury in the Incident. I have considered the supraspinatus tear and other signs identified on imaging as being rotator cuff conditions. It is very unlikely, for example, that the Claimant’s right supraspinatus tendon was injured or torn in the Incident. There is no mechanism for direct or indirect high-magnitude blunt force loading of the right shoulder in the Incident. The seatbelt would have acted across the Claimant’s right shoulder. Seatbelt forces would have been low magnitude and unlikely to cause injury. The movement of the Claimant’s right shoulder in the Incident would have been limited and within normal range of motion. The Claimant’s right shoulder and upper limb/hand would not have been forced through abnormal movements or an abnormal range of motion. Inertial loads applied to the shoulders as a result of arm movement would have been minimal and tolerated without injury. The seatbelt will function to control the momentum of the driver’s trunk and limit the forces acting through the upper limbs and shoulders, e.g indirect shoulder loading via steering wheel forces acting on the right hand.”
[55] Insurer’s bundle, page 646.
Dr Mcintosh noted the underlying risk factors for rotator cuff disorders included various medical matters such as obesity, genetic predisposition and aging. He then stated:[56]
“It is plausible that the Claimant suffered symptomatic aggravation of his pre-existing right shoulder condition in the incident with symptoms of a closed period of limited duration. The Claimant’s right shoulder may have become sore as a result of the direct seatbelt forces or indirect forces applied through his right hand.”
[56] Insurer’s bundle, page 647.
RE-EXAMINATION
The Panel determined that Mr Montibeler be re-examined by both Medical Assessors on 6 September 2022. The re-examination report is as follows:
“HISTORY
Mr Montibeler was assessed by Medical Assessors Home and Oates on
6 September 2022.
Mr Montibeler was unable to recall his past history of right shoulder complaints recorded in the medical notes in 2007 and 2014. He has no recollection of previous imaging of the shoulders.
He was aware of a history of lower back pain. He recalls that he underwent a laminectomy in the 1970s following a motorbike accident. He recalls periodic low back pain thereafter.
He does recall a history of cervical spine C6/7 fusion performed in 1991, following a workplace accident during the course of his work as a truck driver from Transfield.
He cannot recall physical complaints in the period leading up to the subject accident.
Mr Montibeler states that he sustained injuries in a motor vehicle accident as the seat-belted driver of a Ford Laser sedan travelling along the middle lane of a three lane carriageway of the Hume Highway in Liverpool when his vehicle was struck on the passenger side by a car that came out of a KFC driveway from his left, impacting his vehicle on the passenger side near the front wheel. He recalls that his car spun, but did not hit anything else. He has no clear recollection of events thereafter. When the car stopped moving, he was somewhat dazed. He was assisted from the vehicle by a tow truck driver. His vehicle was written off.
He recalls early symptoms of dizziness and imbalance. He also suffered right-sided neck pain radiating to his right shoulder. He recalls early symptoms of headache.
He was assessed by ambulance officers at the scene. He recalls that he remained at the site for several hours. He was then able to drive a hire car to his home.
He first attended his general practitioner, Dr Goyal in Green Valley on 6 February 2020 with early complaints of pain in his neck, right shoulder and lower back.
He was referred for a period of physical therapy. He recalls 10 to 15 sessions of therapy with mild benefit.
He underwent an injection to the right shoulder. He recalls no anaesthetic or durable benefit. He later underwent an epidural spinal injection. He recalls no anaesthetic or durable benefit.
He cannot recall whether or not he was suffering from hip pain after the accident. He does recall a subsequent fall at his home in March 2021 when he fell on stairs, suffering a left wrist fracture. Whilst this was described in the medical file as a syncopal attack , the claimant denied a syncopal attack and believes that he suffered sudden onset of pain in his right lower extremity, causing his fall. He also reports that there has been a progressive increase in right hip pain over recent months. There has been no imaging of the right hip.
There has been no other medical treatment. He reports current use of Panadeine analgesia. There is use of Panadeine Forte, one or two tablets daily. He takes Minipress and Diazepam for unrelated complaints. He also has long-standing use of Lipitor to manage his hypercholesterolaemia.
He reports current symptoms of daily right-sided occipitofrontal headache.
He describes intermittent neck pain present most of the time of moderate severity. Pain radiates up to the occiput and sometimes there is frontal headache. He describes frequent radiation of pain from the neck across the shoulder down to the mid-arm.
There is further local pain and grinding at the right shoulder. He is intolerant of lying over his right shoulder at night. There is difficulty raising his right arm above the horizontal. He describes difficulty carrying objects in his right hand. There is intermittent pain extending to the right hand. He describes intermittent paraesthesia in the radial three digits of the right hand.
Neck movement is painful, particularly to the right. There are no symptoms in the left upper extremity.
He reports intermittent mild low back pain, usually exacerbated by bending and twisting of the back. There is sometimes radiation of pain to the buttock. There is occasional radiation of pain to the right calf, but this occurs infrequently. There are no complaints of lower limb paraesthesia or numbness below the knees. He describes no bladder dysfunction. His bowel habit is constipated.
He reports severe pain at the lateral aspect of his right hip with some radiation to the groin. His right hip pain is exacerbated by any walking. This affects his tolerance for walking.
He reports a sitting tolerance of one hour and a driving tolerance of 40 minutes. He finds that walking for more than 30 minutes exacerbates right hip pain. He climbs stairs asymmetrically leading up with his left. His sleep pattern is disturbed in part by requirement for toileting and sometimes due to right shoulder and hip pain. He prefers to lie on his back or his left side. There is some difficulty in dressing in shirts due to his right shoulder complaint. He has difficulty dressing in socks due to his hip complaint.
He is able to lift moderate weight by his side.
He lives with his daughter aged 55. He is a non-smoker. He performs occasional reheating of meals and washing dishes in a sink. His daughter undertakes all of the domestic cleaning.
The claimant recalls that he had ceased work as a concreter by age 65.
EXAMINATION FINDINGS
Mr Montibeler was an 82 year old, standing 163 centimetres, weighing 122 kilograms. He is right hand dominant.
Examination of the cervical spine reveals normal spinal curvature. There is no muscle spasm. There is restricted active spinal motion in all planes with flexion to 4/5 normal range, extension 1/3 normal range, right rotation 1/2 normal range, left rotation 1/2 normal range, right and left lateral flexion 1/5 normal range. There is muscle guarding with spinal extension. There is dysmetria.
Neurological examination of the upper extremities reveals no muscle wasting. There is weakness at the right shoulder abduction and external rotation, associated with reported local pain. There is no distal myotomal weakness. There is normal sensibility throughout the upper extremities. The deep tendon reflexes are symmetrically preserved.
At the right shoulder, there is no muscle wasting. There is audible joint crepitus. Active motion is measured by goniometer methods as follows:
Shoulder Movements Active ROM Measured
Right degrees (°)Flexion 95 Extension 40 Abduction 80 Adduction 10 External rotation 70 Internal Rotation 30
Impingement signs are strongly positive. Pain is declared with resisted movements across the rotator cuff. There are no signs of capsulitis.
At the left shoulder, there is mild constitutional stiffness. There is no pain reported. Active motion is measured by goniometer methods as follows:
Shoulder Movements Active ROM Measured
Left degrees (°)Flexion 160 Extension 50 Abduction 110 Adduction 40 External rotation 70 Internal Rotation 50
There is evident mild constitutional stiffness at the left shoulder.
On examination of the thoracolumbar spine, there is normal spinal curvature. Forward flexion is performed to half normal range, extension to one-quarter normal range, right lateral flexion is performed to one-quarter normal range, left lateral flexion to half normal range. There is hip pain reported with right lateral flexion.
Straight leg raise is performed to 50° bilaterally. Lasègue’s sign is negative. Tenderness is elicited to palpation at the lowest two lumbar segments.
Lower limb power is preserved in all muscle groups. There is normal sensibility throughout the lower extremities. The knee reflexes are symmetrical and preserved. The ankle reflexes are bilaterally absent. There is no local muscle wasting.
Examination of the right hip reveals marked joint irritability. Tenderness is elicited at the anterior and lateral aspects of the joint. There is pain with log rolling. Active motion is markedly restricted.
Hip Movements Active ROM Measured
Right degrees (°)Flexion 80 Extension 0 Abduction 20 Adduction 10 External rotation 30 Internal Rotation 10
Left hip
At the left hip, there is a full range of active motion in all planes.
Hip Movements Active ROM Measured
Left degrees (°)Flexion 100 Extension 0 Abduction 40 Adduction 30 External rotation 35 Internal Rotation 25
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to whether the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[57] and Insurance Australia Ltd v Marsh.[58]
[57] [2021] NSWCA 287 at [40], [41] and [45].
[58] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[59] that radiculopathy can be present at any time to establish that the injury is not minor for the purposes of the MAI Act.
[59] [2021] NSWPICMP 227 at [84] – [104].
We adopt the reasoning in Lynch v AAI Ltd[60] that the claimant bears the onus of proof in establishing that any injury is not a minor injury for the purposes of the MAI Act.
[60] [2022] NSWPICMP 6 at [44] – [62].
The Panel adopts the examination report of the Medical Assessors and adds the further reasons.
Low back injury
The pre-accident clinical notes show a long history of chronic back pain which was reported as recently as one month prior to the motor accident.
There is no reference to low back injury in the contemporaneous medical evidence and it is not referred to by Mr Montibeler as an injury sustained in the motor accident on the claim form. An inclusion of injury in the claim form is relevant to satisfying causation: Bugat v Fox[61]. Similarly, the omission of any reference must also be relevant, but not determinative of the issue that the body part was not injured.
[61] [2014] NSWSC 888 at [31]-[32].
The physiotherapy records throughout 2020 show no treatment to the low back.
In March 2021 Mr Montibeler attended hospital following a fall recorded as being down 14 steps. Aggravation of the back condition was reported at that time with referral for an MRI scan and the scan occurring in May 2021.
The MRI scan showed a L1 fracture. That fracture was previously reported in an X-ray dated 14 December 2015. For these self-evident reasons the claimant’s submission that there was no history of back pain is wrong and is rejected.
There was no injury to the low back sustained in the motor accident. The compression fracture at L1 was longstanding and is evidenced from the 2015 X-ray.
We conclude that the claimant did not suffer a low back injury in the motor accident.
Right shoulder injury
There was an immediate onset of pain reported in the right shoulder with loss of movement of the arm following the motor accident.
The Panel finds that the mechanism of accident, being a side-on collision, could cause a supraspinatus tendon tear, particularly against a background of previous symptoms and underlying tendinopathy.
The first medical consultation after the motor accident was with the general practitioner two days after the motor accident. This is consistent with no delay in the onset of symptoms.
There were prior right shoulder problems recorded in 2007 and 2014. This indicates, together with the claimant’s age, that there were pre-existing degenerative changes. These changes can be present in the absence of shoulder symptoms.
Whilst the imaging of 4 June 2020 shows atrophy of the supraspinatus muscle, this would be consistent with a tendon tear arising out of the subject accident four months prior to the ultrasound imaging.
Whilst the physiotherapy notes showed improvement in cervical spine pain following treatment, this did not occur with respect to the right shoulder. The lack of improvement in the right shoulder is suggestive of the onset of pathology.
The Medical Assessor is required to perform a statutory task: Wingfoot Australia Partners Pty Ltd v Kocac[62] and is required to give their own opinion. The Medical Assessor is not required to comment on each area of disagreement with another opinion. The opinion of Dr McIntosh about whether the collision was of sufficient severity to cause injury to the right shoulder is a medical opinion, for which Dr McIntosh, as an expert in biomechanics and ergonomics, had insufficient expertise. Indeed, Dr Mcintosh purports to explain his opinion of medical matters when he refers to the medical causes of rotator cuff pathology.
[62] (2013) 252 CLR 480 at [47].
Further, whilst Dr McIntosh relied on studies and historical data, the deficiency in the opinion is that he failed to consider the circumstances of this matter including that
Mr Montibeler was susceptible to injury because of an underlying condition. Furthermore, the contemporaneous evidence, contrary to Dr McIntosh’s opinion, does not support a resolution of symptoms after a certain period.We accept that the mechanism of the motor accident could cause aggravation of pre-existing right shoulder condition due to either direct forces from the seatbelt or indirect forces applied through the right hand from the steering wheel. We are of the view that Dr McIntosh has strayed outside of his area of expertise when commenting on medical probabilities and, for the above reasons, do not accept his opinion.
The full thickness tear in the right shoulder shown on ultrasound on 4 June 2020 was related to the motor accident, noting the mechanism of the accident which can cause a direct or indirect injury to the shoulder.
The Panel is satisfied that the supraspinatus tear was either caused or aggravated by the motor accident. An aggravation of the supraspinatus tendon tear in the form of a further rupture of the tendon is a non-minor injury within the meaning of the MAI Act.
Cervical spine injury
The claimant suffered a soft tissue injury to the cervical spine in the motor accident. The post-accident scans demonstrate multilevel degenerative changes. Whilst there is a small fissure identified in the C3/4 intervertebral disc, there were associated end-plate osteophytes, indicating that this represents a long-standing degenerative tear. The injury was by way of aggravation of degenerative changes. There is no evidence of traumatic cervical spine pathology caused by the motor accident.
This conclusion is consistent with the physiotherapy notes which record a general recovery from neck pain after a month or so after the motor accident.
There are no recorded observations of two signs of radiculopathy as defined in cl 5.8 of the Guidelines. The clinical notes refer to symptoms of radicular pain to the right hand which is not an objective sign of radiculopathy as defined in cl 5.8 of the Guidelines.
Based on the examination findings of Medical Assessor Home, Mr Montibeler did not have radiculopathy at the recent examination.
For these reasons we conclude that Mr Montibeler has not satisfied, at any time, two clinical signs of radiculopathy pursuant to the Guidelines.
Right hip injury
The clinical notes show repeated references to chronic right hip problems prior to the motor accident. There is no suggestion in the contemporaneous notes or physiotherapy records in 2020 of an aggravation of the right hip condition.
The claimant could not recall the timing of onset of his right hip complaint during the examination with the Medical Assessors. He otherwise confirmed that there was no physical therapy directed to his right hip.
Right hip pain is first recorded after the motor accident following a fall in 2021. In these circumstances it is likely that the claimant sustained aggravation of a pre-existing right hip complaint in the subsequent fall.
The hospital notes then refers to a syncopal episode causing the fall. The claimant denied a syncopal attack and believed that he suffered sudden onset of pain in his right lower extremity, causing the fall.
We do not accept that any pain in the right lower extremity is causatively related to the motor accident because we do not accept that the low back was injured in the motor accident. Accordingly, even if the fall occurred in the circumstances described by
Mr Montibeler, the fall was caused by right leg pain unrelated to the motor accident.For these reasons we conclude that the claimant did not suffer a right hip injury caused by the motor vehicle accident.
Treatment and Care
Medical Assessor Cameron certified that past physiotherapy was reasonable and necessary. There were no submissions contesting this finding. Accordingly, our reasons on this aspect of the medical assessment are brief.
We refer to our findings that the cervical spine and right shoulder were injured in the motor accident with ongoing consequences. The past physiotherapy directed to these body parts is causatively related to the motor accident.
We otherwise adopt the observations of Medical Assessor Cameron that the past physiotherapy treatment was reasonable and necessary.
CONCLUSION
The Panel concludes that the certificate issued by Medical Assessor Cameron on minor injury is revoked. A replacement certificate is issued at the commencement of these Reasons. The certificate on treatment and care is confirmed.
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