Mourtada v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Mourtada v AAI Limited t/as GIO [2023] NSWPICMP 330
CLAIMANT:	Ahmad Mourtada
INSURER:	AAI Limited t/as GIO
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	Original certificate dated 11 July 2023 Replacement certificate dated 20 July 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of minor (now threshold) injuries and treatment dispute by Medical Assessor (MA) Wijetunga and claimant’s review under section 7.26; claimant injured in rear end collision alleging injuries to neck, back and both shoulders; Held – Panel satisfied claimant injured his neck and lower back in the accident; claimant had pre-accident lower back pain; claimant did not have two signs of radiculopathy when examined and did not have two signs of radiculopathy at any time since the accident; no evidence of complete or partial rupture of soft tissues in neck or back; neck and back injuries threshold injuries; no pre-existing shoulder injuries of significance and scans taken within two month of accident found tears in left shoulder with delamination in the right shoulder; left shoulder mentioned to GP within two days of accident but right shoulder not mentioned for a month; Panel not satisfied that biomechanics of accident could have caused a right shoulder injury but satisfied left shoulder injury was caused; Panel of the view the claimant could have torn the ligaments and tendons of the left shoulder or further torn already torn ligaments and tendons in the accident; shoulder injury a non-threshold injury; referral to orthopaedic surgeon therefore related and reasonable and necessary; certificate of MA revoked.
DETERMINATIONS MADE:	REPLACEMENT CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Wijetunga dated 24 October 2022. 2. Certifies that Ahmad Mourtada’s left shoulder injury is not a threshold injury for the purposes of the Act. 3. Certifies that an initial consultation with Professor George Murrell is related to the injury caused by the accident and is reasonable and necessary in the circumstances.

STATEMENT OF REASONS

INTRODUCTION

Mr Amhad Mourtada was involved in a motor accident on 27 April 2021. He was stationary at traffic lights when he was rear-ended by a small truck.
Mr Mourtada was 53 at the time of the accident and says he injured his neck, back and both shoulders in the accident. As a result, he made a claim for statutory benefits with GIO, the third-party insurer of the vehicle that Mr Mourtada says caused his accident.
A medical dispute about whether any of Mr Mourtada’s injuries were “minor” (now threshold) injuries within the statutory definition arose in connection with that claim[1] and Mr Mourtada referred that medical assessment matter to the Personal Injury Commission (the Commission) for assessment.
[1] The insurer’s liability notice is dated 17 August 2021 and is document A7 at page 118 of the claimant’s bundle. The insurer accepted fault on the part of its insured but denied liability to pay ongoing benefits on the basis the claimant had only “minor” injuries. An internal review was conducted by the insurer on 3 September 2021 (A8 page 124) and the original liability decision was affirmed.
On 24 October 2022, Medical Assessor Wijetunga determined that all of Mr Mourtada’s injuries were “minor” injuries.
Mr Mourtada also had a dispute with GIO about a referral to an orthopaedic surgeon, and that medical assessment matter was also referred to the Commission and allocated to Medical Assessor Wijetunga to assess. She found that treatment not related to the injuries caused by the accident and not reasonable and necessary in the circumstances.
Mr Mourtada lodged an application with the Commission seeking a review of the Medical Assessor’s decision concerning “minor” injuries. On 7 February 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review. On 13 February 2023 the President convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr Mourtada’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the Act, for accidents occurring before 1 April 2023, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s only injuries are “threshold injuries”.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”. [2]
[2] Section 4.4 of the MAI Act.

Threshold injury

A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary, if a person injured in a car accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding part of s 1.6(2) (the part in italics) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) provides that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is not a soft tissue injury and therefore not a threshold injury.
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Relevantly to the matters in issue in this claim, cl 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines.[3] Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
[3] Chapter 6 of the Guidelines.

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the MAI Act[4] as follows:
“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.”
[4] The current version of the Guidelines I version 8.2 effective 8 April 2022.
The method of assessment in Part 5 is not limited to Medical Assessors and review panellists but would extend to medico-legal experts and treating practitioners undertaking an assessment of “threshold injury”.

Dispute resolution

If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[5]
[5] Schedule2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Wijetunga’s, further medical assessments and the Review of medical assessments by this Panel.[6]
[6] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Wijetunga examined the claimant on 10 October 2022 and issued her decision on 24 October 2022. She confirms at [2] that she was asked to assess:
(a)    lumbar spine - disc bulge at L4 and L5 level, radiating pain to both legs causing numbness, positive sciatic nerve root tension;
(b)    cervical spine - restricted range of movement, stiffness, spasms/tensions, aggravation of asymptomatic degenerative changes in the cervical spine;
(c)    right shoulder - right supraspinatus tendinopathy with a small linear intrasubstance insertional delamination (tear in shoulder), and
(d)    left shoulder - full thickness insertional anterior supraspinatus tendon (tear in shoulder).
Medical Assessor Wijetunga also confirms at [3] that she was asked to assess whether an initial consultation with Professor George Murrell an orthopaedic surgeon is related to the accident and is reasonable and necessary in the circumstances.
Medical Assessor Wijetunga has a history of a motor accident 10 years before. The claimant thought he injured his back and legs and that it took a couple of years to recover from that accident. He has cardiac issues.
The Medical Assessor takes a history of the accident and notes the claimant drove his car home and drove it around until it was repaired, although it was written off and a payment made.
The claimant says he experienced shoulder, neck and chest pain after the accident and attended his general practitioner (GP) and was referred for X-rays and commenced physiotherapy. The claimant said in the month after the accident he started experiencing lower back pain.
In terms of current symptoms, the claimant reported pain in the lumbar spine with no paraesthesia reported. In the neck he has constant pain from the occiput to the lower cervical spine radiating to both shoulders. He reports occasional numbness in the medical aspect of both forearms and hands mainly on the left side.
Mr Mourtada did not report any anterior lateral shoulder pain but constant pain in the trapezii and the right interscapular area and similar symptoms on the left side.
The claimant reported taking Lyrica twice a day and Panadeine Forte once or twice a day.
When his neck was examined, there was no muscle spasm or guarding but tenderness. There was a reduction in range of spinal motion, but this was symmetrical. There were no neurological deficits. Tone and muscle strength were normal, and reflexes were symmetrical. There was no altered “sensibility” in the upper limbs.
In the lumbar spine there was also no muscle spasm or guarding and a normal symmetrical range of movement. There were no neurological deficits in the lower limbs and no complaints of lower back pain extending into the lower limbs.
The claimant was asked about the absence of any muscle wasting and he said he continues to use his arm as normal but that he has restricted movements in both his left and right shoulders.
Medical Assessor Wijetunga accepted the claimant injured his neck and sustained shoulder symptoms. She expressed the view if the claimant had injured his lower back, one would expect clinical symptoms within a week of the accident.
She found:
(a)    the cervical spine injury was a soft tissue injury and therefore a minor injury;
(b)    the lumbar spine injury was also a soft tissue injury aggravating asymptomatic degenerative changes in the lumbar spine. She said there is no neural impingement or injury or rupture of nerves, tendons ligaments or bone and therefore a minor injury, and
(c)    right and left shoulders – there was no evidence of a discrete shoulder injury. The pain is in the trapezii and his symptoms are related to the neck injury whiplash disorder and therefore a minor injury.
In relation to the treatment dispute, she noted the referral to Dr Murrell is for orthopaedic shoulder opinion. As she had found no discrete shoulder injury, this referral was not related to the injuries caused by the accident and not reasonable and necessary in the circumstances. She does not appear to have been referred a dispute under s 3.28(3) about whether this referral would improve Mr Mourtada’s recovery.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant’s submissions[7] raise issues only with the medical assessment matter concerning the claimant’s minor (now threshold) injuries.
[7] Unsigned and undated found at page 1 of the claimant’s bundle.
In terms of the right and left shoulder the claimant says:
(a)    the Medical Assessor had acknowledged the presence on ultrasound of tendinopathy and a full thickness insertional tear, yet she said there is no tear to tendons or ligaments related to the accident;
(b)    the presence of the tear indicates a non-minor injury was sustained and the absence of complaints does not mean that the changes are degenerative and pre-existing;
(c)    the Medical Assessor failed to distinguish between Mr Mourtada’s shoulders and the injury to each shoulder is different and the full thickness tear was found only in the left shoulder;
(d)    both shoulders were listed in the claim form and both shoulders were mentioned in the notes;
(e)    the Medical Assessor should have considered the mechanism of injury and that a vulnerable tendon could have been further torn in the accident, and
(f)    there was no prior history of shoulder symptoms and that therefore on balance the cause of the full thickness tear in the left shoulder is the accident.
In terms of the lumbar spine the claimant says the Medical Assessor has erred because she did not consider the entries of Dr Norus which suggest the claimant had muscle weakness, sensory loss and sciatic nerve root tension.
The claimant submitted that the claimant has sustained non-minor injuries and this medical assessment matter should be allowed through to the Panel with a review of all the documents and “and / or a re-examination of the claimant”.
The claimant’s original submissions lodged with the application[8] say:
(a)    the left shoulder ultrasound taken after the accident and dated 26 May 2021 shows a full thickness tear which was caused by the accident and falls outside the definition of “minor” injury;
(b)    the right shoulder ultrasound of 26 May 2021 shows a 3 mm delamination which is also not a “minor” injury;
(c)    the cervical spine symptoms are suggestive of non-minor injury, and
(d)    the claimant aggravated degenerative changes in the lumbar spine and has radiculopathy.
[8] Document A1, page 14 of the claimant’s bundle. The Panel has not referred to the submissions about treatment.

Insurer’s submissions

The insurer’s submissions[9] note at [5], that the claimant has not sought a review of the finding in respect of the cervical spine injury or the treatment assessment.
[9] Signed and dated 14 December 2022 and found at page 1 of the insurer’s bundle.
The insurer provides at [6] a photograph of the rear of the claimant’s vehicle suggesting it was “an extremely minor collision”.
The insurer notes at [9] and [10] the issue of causation and points to the GP records noting at [11] the claimant attended the GP the day after the accident complaining of a lower back injury, the next day the left shoulder was complained of and 19 days later complaints in both shoulders emerged. The insurer says the Medical Assessor has given her reasons, referring to the Guidelines and the AMA4 Guides suggesting at [14] these Guidelines are relevant to “minor” injury determinations.
The insurer also notes at [16] that the Medical Assessor measured shoulder motion and observed that there is no mention of restricted movement in either shoulder in the GP notes or any reference to deformities and that the Medical Assessor found no muscle wasting or signs of impingement. The insurer says at [20] that the Medical Assessor has used her clinical judgment to make her decision.
The insurer’s submissions concerning the lumbar spine injury refer to the claimant’s GP notes and the pre-accident history of back complaints including 27 January 2021, three months before the accident. The Medical Assessor referred to a 2013 MRI showing disc bulges and degenerative changes and that the post-accident MRI showed “no disc protrusion or neural compression”. The insurer says there is therefore no error.
The insurer’s original submissions include the photographs and the allegation that the accident was a minor one with minimal damage to the claimant’s car.
The insurer refers to the lateness of right shoulder symptoms which only appear to have surfaced after the claimant returned to work.
The insurer refers to the pre-accident history of back and neck pain and says there is no evidence of two of the five signs of radiculopathy or of any fracture, or complete or partial rupture of tendons, ligaments or cartilage caused by the accident.

Procedural matters

The Panel issued directions to the parties on 17 February 2023. The Panel directed the claimant to produce a bundle of documents by 17 March 2023 and the insurer to produce a bundle by 31 March 2023. The insurer’s bundle was received on 28 March 2023. The claimant’s bundle was received on 20 February 2023.
The Panel met on 17 May 2023 to discuss the matter and reported to the parties.
The Panel noted that Medical Assessor Wijetunga was asked to assess the following injuries:
(a)    lumbar spine;
(b)    cervical spine;
(c)    right shoulder, and
(d)    left shoulder.
The Panel also noted that the Medical Assessor was asked to assess a treatment dispute. As this medical assessment matter was not the subject of the application for review, the parties were advised it would not be considered by the Panel.
The Panel noted that the claimant did not take issue with the assessment of the claimant’s cervical spine injury as a minor (now threshold) injury. The Panel advised that subject to submissions it would proceed on the basis that the claimant agrees his neck injury is a threshold injury and will not be considering that further.
The Panel noted the claimant’s submissions that the records of Dr Norus who suggest the claimant may have had two of the five signs of radiculopathy as listed in cl 5.8 of the Medical Assessment Guidelines. The claimant was asked to provide submissions as to:
(a) whether any examination by Dr Norus complied with the requirements of cl 5.6 of the Guidelines, and
(b) which signs of radiculopathy were present on what date and the tests undertaken by Dr Norus as part of his examination.
The Panel advised that the real issue in the proceedings appears to be the presence of partial tears to tendons or ligaments and whether they were caused by the accident.
The Panel directed the parties to provide a response and any final submissions by

2 June 2023 and the insurer by 15 June 2023.

Responses from the parties

The insurer responded on 29 May 2023 advising that it does not have the pre-accident treatment records or a list which would enable it to identify the pre-accident GP.
The claimant provided a response on or about 2 June 2023. The claimant says:
(a)    that the application for review did not mention the treatment dispute but that the Panel should consider it, if the shoulder injuries are found to be related to the accident;
(b)    the claimant wishes the cervical spine injury to be reassessed and relies on the X-ray which identifies osteophytes and foraminal stenosis at C3/4 and C5/6 and to rule out radiculopathy;
(c)    the claimant points to six entries of Dr Norus noting radicular symptoms including lower limb numbness, weakness, tingling sensation and radiating pain;
(d)    the claimant relies on the CT scan of 29 April 2021 which reveals canal stenosis, foraminal stenosis and neural exit foraminal narrowing;
(e)    the examination of Dr Norus complies with cl 5.6, and
(f)    the claimant would be bringing his radiology to the medical examination.
On 5 June 2023 the insurer provided a further response advising that it had no further documentation to provide but wished to submit:
(a)    the treatment dispute should be considered if the shoulder injuries are found to be non-minor injuries;
(b)    the evidence about the shoulders supports a finding of a threshold injury with no impingement and no muscle wasting. If there is now impingement and muscle wasting it cannot be related to the accident;
(c)    the radiology of the cervical spine does not support injury to the cervical spine and that the MRI is more accurate and revealed degenerative and pre-existing changes. There has been no radiculopathy and the injury to the neck is a threshold injury, and
(d)    the pre-accident records suggests, “significant pre-existing neck and back complaints” requiring chiropractic treatment, MRI investigation and involving radiculopathy with chronic nerve pain being treated with Lyrica.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The application for personal injury benefits is dated 14 May 2021.[10]
[10] Page 22 of the claimant’s bundle.
Mr Mourtada discloses his 2013 accident and provided the claim number. He says he sustained injuries to his head/face, neck, lower back, vestibular system, anxiety state and depression.
Mr Mourtada says that in the current accident he injured his lower back, upper back, neck, chest, both shoulders and suffered anxiety state, post-traumatic stress disorder and aggravated his previous depression.
The claimant has provided photographs of the rear of his BMW X5 vehicle. There is some visible deformation of the back panel under the rear window and the panel underneath the number plate. It is not entirely clear whether there is any damage to the actual bumper bar. A letter from NRMA,[11] the property damage insurer indicates that the vehicle was worth $15,000 and was “extensively damaged” and was written off. The claimant received a payment of $12,000 under the policy.
[11] Dated 8 June 2021 found at page 135 of the claimant’s bundle.
The Police report[12] notes that there was a rear end collision and that the drivers exchanged details without issue, but that at 11.00am the next day the claimant attended his GP in respect of an injury. There is no record in this report of the speed of the vehicles.
[12] Dated 25 May 2021 at page 32 of the insurer’s bundle
It does not appear the police attended the accident and there is a record of either of the vehicles involved being towed. The claimant was mentioned as being injured.

Treating medical records and reports

Previous accident records

In the claimant’s additional bundle of documents[13] are the following documents:
(a)    the discharge summary from St George Hospital dated 18 April 2013,[14] noting a low-speed t-bone collision. There was no cervical tenderness, but the claimant was tender on the left side of the chest. Normal range of motion in the hips, knees and ankles. X-rays were done showing no obvious fractures;
(b)    the medical certificate for the 2013 claim was completed by Dr Awada on 14 May 2013 noting the claimant had been a patient since 1998 and there was a diagnosis of neck pain and back pain and leg pain with headaches, and
(c)
the handwritten notes of Dr Awada commence on 19 April and end on

24 May 2013. In addition to neck and back pain these notes include references to bilateral arm pain and the note on 22 April 2013 suggests bilateral shoulder pain.
[13] A8 – this bundle includes duplicates of many of the documents in the earlier bundle.
[14] Page 117 of the additional bundle.

Dr Norus

The claimant has provided notes from Dr Norus dating back to 21 March 2019.[15] At this time there was concern about the claimant’s cardiac state and his high cholesterol but there was an enhanced primary care program (EPC) given for chiropractic treatment for an “old injury” to the back. On 14 January 2020 a referral was given to Mr Kategiannis under a further EPC.
[15] Dr Norus’ notes contain many typographical errors. The Panel has done its best to understand the substance of these notes and has corrected some of the obvious errors when reporting on them.
From May 2020 there are entries in the notes concerning urinary frequency and gastrointestinal issues.
On 27 January 2021, the claimant attended Dr Norus complaining of neuropathic pain and the diagnosis was of neuropathic pain. Other matters concerning the claimant’s abdominal (not accident related) conditions were raised and there is a note, “for [his] chronic nerve pain, chest, diagnosed as neuropathy by pain [specialist] failed to respond to Cymbalta will try Lyrica, discuss how Lyrica work and its effect on sedation”. A referral to Mr George Kategiannis, chiropractor was given for back pain.
On 28 April 2021, the claimant attended for “neuropathic pain post MVA”. The note suggests pain in the lower back with numbness in the lower limbs. Then there is this note “history of the same has normal gate, power and reflexes. He was referred for urgent CT and advised to keep Lyrica and start analgesics”.
On 29 April 2021 the doctor wrote a certificate of capacity / fitness and discussed the third-party claim with the claimant. Also included is this note, “noticed pain upper back / left shoulder”. Again, there was normal gait and balance, no weakness in the lower limbs and normal reflexes. In the left shoulder there was no “S/S” which the Panel takes to be an abbreviation of symptoms. There was a normal range of motion, but the claimant was tender over the mid spine and was referred for a CT scan of his spine and ultrasound of his shoulder.
On 6 May 2021 the claimant attended for back pain, and he was said to be “feeling better and pain much less” and that he was managing to do his usual work.
On 17 May 2021 the claimant attended with more shoulder pain and neck pain and that he was no longer able to work. The claimant reported lower limb numbness but no weakness and no bowel or urinary issues. He had no muscle wasting, normal range of movement in shoulders but with pain. He had muscle spasm and normal range of motion in the neck and normal range of motion in the lower limbs with normal reflexes.
On 20 May 2021 the claimant attended with continuing neck pain but no weakness, no muscle wasting and normal reflexes.
On 26 May 2021, neck, left and right shoulder pain. Range of motion in the left shoulder was normal and in the right shoulder there was pain. Power was 5 out of 5 and there was no weakness.
The claimant was given referrals – for radiology namely X-ray and MRI of the neck and ultrasound of both shoulders[16] and to Mr Kategiannis for “post mva injury to neck, shoulders, back with severe pain, numbness upper limbs and weakness of lower limbs. No muscle wasting, normal reflexes”.
[16] Document A3, page 27 of the claimant’s bundle.
In June and July there were several attendances for neck pain and back pain with numbness in hands and feet. On 6 July 2021 is a reference to left shoulder pain. On 8 July 2023 the upper and lower limb examination was normal.
On 9 August 2021 the claimant attended Dr Norus and a referral was given to Professor Murrell for opinion and management of his severe shoulder pain.[17] A referral to LifeFit Physiotherapy is also mentioned.
[17] Page 95 of the insurer’s bundle.
Dr Norus provided a handwritten report to GIO on 3 November 2021. He diagnosed:
(a)    full thickness tear, tenosynovitis of left shoulder;
(b)    tendinopathy in left shoulder;
(c)    aggravation of his neck osteoarthritis, and
(d)    post-traumatic stress disorder.
There is a record of pain and tenderness in both shoulders and reduced range of motion left more than right. The neck was said to be tender with spasm and the symptoms of post-traumatic stress disorder are mentioned. There is no mention of back pain in this report.

Chiropractor

Mr Kategiannis of the Kogarah Spinal Clinic has provided his records.[18] These commence with a new patient information form which is undated however, as the claimant gave his year of birth and age as 48 this suggests the form was completed in 2015. In answer to the question “what is your major complaint” he says:
“whole spine – lower back pain and burning back legs, stenosis?
? Better flexion
Neck / arms sore too”
[18] Document A5 at page 100 of the claimant’s bundle.
The claimant said this condition had been present for two years (which would be consistent with the 2013 car accident) and that everything aggravates it.
The claimant had five treatments recorded in 2019, five in 2020 commencing with one on

21 January 2020 for “sore back and neck” and a further five in 2021 with the first on

28 January 2021 for “sore neck and general chest pain, [syn] traps / shoulders, glutes / flex”.
There have been seven treatments after the accident commencing 15 July 2021 with symptoms of neck and lower back pain, pins and needles down back of legs pain neck and both shoulders and pins and needles in the arms “non dermatomal”.
The request for treatment (allied health request AHRR 1) refers to neck and lumbar strain and notes pins and needles down both arms “non-specific” and pins and needs down both legs “non dermatomal”. There are two other AHRR forms for chiropractic treatment which mention only neck and back injuries. Noting the claimant is seeing a chiropractor who is an allied health professional dealing with the spine this is not surprising. The claimant was advised by his GP to have physiotherapy but the claimant has chosen to pursue chiropractic treatment instead.

Radiology

There is a cervical spine MRI dated 1 May 2013[19] with a history recorded of “cervical pain radiating to both arms” and with a comment and conclusion of:
“Minor uncovertebral osteophytic encroachment of right C3/4 and to a less extent right C4/5 exit foramina resulting in mild foraminal stenosis and potential impingement of right C4 and C5 nerve roots. No focal disc protrusion or significant central canal stenosis is identified. No acute compression fracture is identified.”
[19] Page 120 of the claimant’s additional bundle.
The lumbar spine MRI of the same date was undertaken due to reported “back pain with radiation down both legs, MVA” with a conclusion of:
“No acute compression fracture …
Congenital canal stenosis.
Mild L3/4 and L4/5 lateral annular disc bulges and endplate osteophytic lipping resulting in mild foraminal stenosis bilaterally most marked at L3/4 level on the right without focal foraminal nerve root compression.”
On 29 April 2021, a CT scan was undertaken with a clinical history of “severe trauma to low back radiating to lower back”. The report suggested the most significant abnormality was at L3/4 where there was canal stenosis, bilateral L4 subarticular foraminal stenosis and bilateral L3 neural exit foraminal narrowing.
On 26 May 2021, an X-ray of Mr Mourtada’s cervical spine was performed for, “pain and stiffness both shoulders. Neck pain. Numbness of the arm”. The report indicated no fractures but degenerative changes at C3/4 and C4/5.
An ultrasound of the left shoulder was also done on 26 May 2021 which showed:
“Left supraspinatus tendinopathy with thickening and heterogeneity. Full thickness insertional anterior supraspinatus tendon tear which demonstrates hyperaemia. The right shoulder showed a small linear intrasubstance insertional delamination measuring 3mm.”
An MRI of the cervical spine was then done on 26 July 2021[20] due to “bilateral shoulder pain and stiffness with numbness of the arm and neck pain”. The conclusion of that study was no significant canal stenosis but multilevel foraminal stenoses with marked right sided C4-5, moderately marked at C3/4 and moderate left sided C3-4 impingement due uncovertebral osteophyte.
[20] Page 90 of the claimant’s additional bundle.
An MRI of the lumbar spine was done on 20 September 2021[21] with a history of “lower back pain with radiation to the lower limbs”. There were similar findings to the 2013 MRI with “no disc protrusion or neural compression”.
[21] Page 115 of insurer’s bundle.
There is an MRI of the cervical spine dated 1 August 2022 with a history of “left sided radiculopathy”[22] which revealed minor degenerative changes with stenosis and arthrosis and osteophytes with potential impingement at right C4, C5 and left C5 nerve roots.
[22] Page 7 of the claimant’s additional bundle.
On 1 December 2022 there is a report following left C3/4 and C4/5 facet injections[23] suggesting there was left sided neck pain but no radiation down the arm to suggest radiculopathy.
[23] Page 9 of the claimant’s additional bundle.

Insurer’s documents

The insurer relies on a report from Ms Ugov an occupational therapist from Benchmark rehabilitation dated 20 October 2021.
The author of this report notes (at page 3 of the report) that a left shoulder injury was not mentioned until 28 September 2021 (this is not correct). The report also notes Dr Norus recommended physiotherapy, but that the claimant went to a chiropractor instead on the recommendation of a friend.
The claimant was noted (at page 4 of the report) to have worked in a hair salon (the Colour Bar) but that due to COVID-19, the salon closed and ultimately closed down. The claimant’s other job was as the driver for children with special needs and this job also was unavailable during the COVID-19 lockdown.
Mr Mourtada was given information to assist him with job preparation.

RE-EXAMINATION FINDINGS

Mr Mourtada attended a medical examination with Medical Assessor Dixon on 28 June 2023. He was assisted throughout by an accredited interpreter.

History from the claimant

Accident and early treatment

The claimant was the driver of a BMW X5 that was rear ended by a truck while stationary. Although there was minimal damage to the rear of the vehicle, as evidenced by the photographs provided, the car was written off by the insurance company due to the cost of the repairs. The claimant continued to drive his car for a while after the accident.
Mr Mourtada was gripping the steering wheel with his left hand at the time of the accident. He did not require ambulance attention and did not go to hospital but went to his GP the day after the accident. Mr Mourtada said he injured his neck and back and shoulders.
Mr Mourtada said he had physiotherapy and was prescribed Lyrica for neuropathic pain, Targin for pain relief and Avanza and Cymbalta as anti-depressants.
He had a left sided facet injection performed of his neck without sustained benefit. He found some benefit from physiotherapy and therapeutic massage but the symptoms of pain and stiffness in his neck, shoulders and lower back have not resolved.
Mr Mourtada did not refer to chiropractic treatment specifically, but he was interviewed with an interpreter which made clarification of this point difficult.
Mr Mourtada did not disclose any previous injuries or accidents and again interpretation was an issue. He said that before the accident he was well and working (subject to COVID-19 restrictions from time to time).

Work history

Mr Mourtada used to work full time as a hairdresser in his own salon and also drove a bus for disabled children. He has not been able to return to these occupations since the subject accident.

Social history

Mr Mourtada is 55 years of age. He and his wife live in the family home which is on two levels and has a granny flat. He has two married children who live with him along with seven grandchildren and another one on the way. He is unable to do tasks around the house such as mowing lawns or gardening and has difficulty with heavy cleaning such as mopping, vacuuming, cleaning the toilet and bathroom, high dusting and assisting with spring cleaning and cleaning windows. He has some difficulty dressing due to shoulder stiffness and has difficulty with prolonged driving. He does not play sport, but he previously enjoyed playing soccer. He had previously been a first-grade soccer player in his native Lebanon.

Current symptoms

He has seen Dr Norus, his GP regularly after the motor vehicle accident. Although he only complained of back pain at his first GP visit, the day after the accident, he reported lower back and left shoulder pain two days after the accident and one month after the accident, reported right shoulder pain. He gave no explanation for the delay in reporting his right shoulder pain but said he was most concerned about his lower back complaints.
Mr Mourtada reports pain and stiffness in his neck with bilateral shoulder pain with trapezial muscle pain. He reported no paraesthesia in his arms but did have stiffness of his neck that impacted on his ability to look up, drive, reverse park, change lanes and check the blind spots and his neck pain continues to disturb his sleep.
He reported pain and stiffness in both shoulders and localised the pain to both trapezius muscle and deltoid muscles more marked on the left with difficulty elevating the arms. He said the left shoulder is worse that the right. He had difficulty reaching objects on high shelves and doing overhead work at home. He had difficulty with heavy lifting and carrying due to shoulder and low back pain.
He reports pain in his lower back in the lower lumbar region and in the mid-line with radiation towards the lumbosacral facet joints and buttocks and upper thighs. He reports his back pain can disturb his sleep. He reports difficulty with prolonged sitting, standing, driving and walking and is unable to jog or run. Recurrent bending and stooping aggravates his back pain.

Clinical findings

Mr Mourtada was 180cm tall and weighed 86kg.
There was stiffness of his neck and movements showed no dysmetria as follows:
(a)    flexion and extension decreased by one third;
(b)    lateral rotation decreased by one half right and left, and
(c)    lateral flexion decreased by one half on both sides.
There was no muscle spasm. There was tenderness of the mid to lower cervical facet joints. He reported crepitus on neck rotation.
His cervical foraminal compression (Spurling’s) test was positive as was his brachial plexus stretch test suggesting there may be some spinal nerve root issue. The supraclavicular brachial plexuses were non tender however suggesting no C5/6 involvement and therefore a shoulder issue.
There were no other neurological deficits in particular:
(a)    reflexes were present and symmetrical;
(b)    distal power was grade 5 out of 5 particularly thenar power, grip strength and intrinsic power;
(c)    there was mild wasting of his left upper extremity, 10cm above the elbow, measuring 31cm on the left and 32cm on the right and 22cm on the left forearm, compared with 23cm on the right but as he is right-handed this difference is not significant, and
(d)    there were no objective sensory changes in either upper limb.
He had a good range of motion of his wrists and hands and elbows.
There was stiffness on elevation of his shoulders more marked on the left and active range of motion was measured as follows:

Shoulder motion (in degrees)

Left

Right

Flexion

140

150

Extension

40

50

Abduction

130

130

Adduction

30

40

Internal Rotation

50

70

External Rotation

80

80

Each movement was repeated three times and the measurements were consistent throughout the examination. By the third attempt of these movements, the claimant appeared to be having difficulties with the movements.
Mr Mourtada’s shoulder girdle power on the left was grade 4 out of 5 and normal on the right. There was mild wasting of the supraspinatus muscle bellies on both sides.
There was some elevation of his scapulae on resisted protraction. He appeared to have tenderness at the supraspinatus insertions as well as the deltoid muscle down to the insertions. There was mild tenderness in the biceps grooves.
There was stiffness of his lumbar spine but no radiculopathy with flexion and extension decreased by one third with lateral flexion decreased by one quarter bilaterally.
Lumbar spine movements were associated with pain in the L4/5 level where there was tenderness in the mid-line and pain in the region of the lumbosacral facet joints which was mildly tender today.
His straight leg raise on the left and right was 60 degrees and associated with buttock and upper thigh sciatica. His reflexes were present and symmetrical. There were no objective sensory changes. His power was grade 5 out of 5. The Babinski signs were negative. There was 1cm of wasting of his left thigh and left leg below the knee, measuring 43cm on the left and 44cm on the right, 10cm above the superior pole of the patella and 10cm below the inferior pole of the patella bilaterally, the calves measured 33cm on the left and 34cm on the right.
His normal gait was satisfactory. There was slight difficulty on toe walking but heel walking was more difficult and associated with low back pain. His squat test was satisfactory. There was no pes planus and he made a good arch on toe standing.

Radiology

Mr Mourtada brought along the following investigations:
(a)    a CT of the lumbar spine on 29 April 2021 which showed L3/4 moderate diffuse disc bulge flattening the anterior thecal sac with bilateral L4 subarticular foraminal stenosis and bilateral L3 neural exit foraminal narrowing. At L4/5 there was a moderate disc bulge with bilateral sub articular foraminal stenosis and at L5/S1 a small disc bulge abutting both S1 nerve roots;
(b)    an X-ray of the cervical spine on 26 July 2021 showed the intervertebral discs were relatively well preserved in height. The neural exit foramina were mildly arrowed bilaterally at C3/4 due to uncovertebral osteophyte more marked on the right and mild right C4 foraminal stenosis due to uncovertebral osteophytes. There were rudimentary bilateral cervical ribs;
(c)    ultrasound of the left and right shoulders on 26 July 2021 showed a full thickness supraspinatus tendon tear on the left with insertional and anterior supraspinatus tendon tear and subacromial bursitis and on the right shoulder, right supraspinatus tendinopathy with a small linear intrasubstance insertional delamination;
(d)    MRI of the cervical spine on 26 July 2021 showed alignment and discovertebral body heights are preserved with mild loss of disc height at C3/4 and C4/5 with minor marginal osteophytic lipping with early spondylosis. There was no significant disc bulge or protrusion in general and there was only minimal right lateral recess narrowing at C4/5 level with adjacent right sided foraminal stenosis from an uncovertebral osteophyte. There was moderately marked right foraminal stenosis and moderate stenosis of the left C3/4 exit foramen. (This could be contributing to the left shoulder pain. There was minimal foraminal stenosis of the right C5/6 exit foramen. Visualised upper cervical spine showed minimal spondylosis but no disc bulge or protrusion. Overall, there was minimal cervical spondylosis and facet arthrosis;
(e)    ultrasound of the left shoulder on 3 August 2021 showed left supraspinatus tendinopathy with full thickness insertional anterior supraspinatus tendon tear and subacromial bursitis and bursal bunching on abduction. There was a biceps tendon sheath effusion;
(f)    ultrasound of the right shoulder on 4 August 2021 showed right supraspinatus tendinopathy with small linear intrasubstance insertional delamination. There was intrasubstance ganglion within the biceps tendon;
(g)    MRI on 30 July 2022 of the cervical spine showed mild loss of normal cervical lordosis. There was focal disc protrusion at C2/3, C3/4, C4/5. At C5/6 there was a tiny left central annular fissure and disc osteophyte complex indenting the ventral surface of the thecal sac without focal disc protrusion or significant central canal stenosis. There were no significant discal abnormalities from C6/7 to T5/6 level. There was no myelopathy seen. The most conspicuous finding was minor cervical discovertebral spondylitic change at C5/6 without canal stenosis and moderate C2/3 right facet joint arthrosis and moderate encroachment of the foraminal stenosis most marked at C3/4 and C4/5 levels on the right and to a lesser extent, C4/5 level on the left, essentially impinging the right C4 nerve root. The right C5 and left C5 roots respectively;
(h)    CT of the cervical spine on 1 December 2022 showed a left C4/5 facet joint injection, and
(i)    functional views of the cervical spine on 1 June 2023 showed cervical alignment was normal and no instability on flexion or extension and no fracture detected. The disc spaces were preserved and there was no pre-vertebral soft tissue swelling.
The pre-accident radiology was also brought to the examination and considered:
(a) an MRI on 1 June 2013 showed minor uncovertebral osteophytic encroachment at C3/4 and to a lesser extent, right C4 exit foraminal stenosis and mild foraminal stenosis, and
(b) an MRI of the lumbar spine on 1 June 2013 showed mild annular disc bulges at L3/4 and L4/5 levels and endplate osteophytic lipping with mild foraminal stenosis bilaterally most marked at L3/4 and on the right, without focal foraminal nerve compression.

CONSIDERATION OF THE ISSUES

What injuries were caused by the accident?

Neck and back

The claimant had documented pre-existing conditions in his lower back and neck dating back to 2013. The MRI of the cervical spine in 2013 was undertaken for cervical pain radiating to both arms and the lumbar spine MRI was done for back pain with radiation down both legs, following the motor vehicle accident in 2013.
Mr Mourtada’s radiology from before and after the accident evidences degenerative changes in his cervical and lumbar spine and he had a pre-accident diagnosis of neuropathic pain which was treated with Lyrica. He had chiropractic treatment for neck and back pain in 2019, 2020 and 2021.
It is the clinical judgment of the medical members of the Panel that Mr Mourtada could have sustained an injury to his neck and back in the rear-end collision and that he has sustained such an injury. While the impact force of the accident does not appear, from the photographs to be great, with pre-existing conditions and extensive degenerative changes the medical members of the Panel are of the view that the claimant’s lumbar and cervical spine were vulnerable. It is the Panel’s view that the claimant has exacerbated or aggravated the pre-existing condition and degenerative changes in his cervical and lumbar spine in the subject motor vehicle accident.

Shoulders

The 2013 claim form does not suggest that the claimant injured his shoulders in that accident however the 2013 handwritten notes suggest that there were bilateral arm and shoulder symptoms reported. These arm and shoulder symptoms in 2013 appear to be related to the claimant’s neck injury and were not long lasting as there are no records between Dr Awada’s handwritten notes from 2013 and Dr Norus’ notes of 2019.
The chiropractor’s notes suggest the claimant’s shoulders were treated in January 2021, three months before the accident but this again appears to be related to Mr Mourtada’s complaints of neck pain.
The claimant attended Dr Norus on 28 April 2021, the day after the accident complaining of back pain and numbness in the lower limbs only.
Two days after the accident, on 29 April 2021, the claimant attended complaining of neck and left shoulder pain but with a normal range of shoulder motion. On 17 May 2021,

Mr Mourtada complained of “more shoulder pain” and neck pain but had no muscle wasting and again a normal range of shoulder motion. On 26 May 2021 there is specific mention of both left and right shoulder pain, but the range of motion was recorded as normal, and power was 5 out of 5. On 6 July 2021 there was a reference to left shoulder pain and on 8 July 2021, the upper limb examination was reported as normal. The Panel notes no measurements are recorded and it is highly unlikely Dr Norus used a goniometer when assessing the claimant’s range of motion.
On 9 August 2021 the claimant was referred to Professor Murrell. The claimant said he has not seen Professor Murrell.
Mr Mourtada has pathology in both shoulders shown on ultrasounds from 26 July 2021. The left sided tear is, at 13mm long, more significant. The left sided tear was accompanied by hyperaemia which indicates trauma at some time. The “tear” on the right is referred to as delamination measuring 3mm. Delamination is where tendons separate into layers rather than rupturing from the bone and is therefore, in the Medical Assessor’s view not a true tear of the tendon.
While the claimant had a neck injury, which could also be the cause of his shoulder symptoms, the testing undertaken by Medical Assessor Dixon suggests that there is a genuine problem in both of the claimant’s shoulders.
It is the clinical judgment of the medical members of the Panel that the pathology shown in the ultrasounds could be the cause of the claimant’s shoulder symptoms of pain, stiffness and restriction of motion.
The issue between the parties is whether this shoulder pathology was caused by the accident.
The Panel is of the view that the test to be applied in determining causation of Mr Mourtada’s injuries involves both a medical issue and a non-medical informed judgment as follows:
(a) could the accident have caused the left and right shoulder tears shown in the radiology taken after the accident (medical determination), and
(b) did the accident in fact cause the left and right shoulder tears (non-medical determination).
This is in keeping with the approach to causation in the permanent impairment chapter of the Guidelines, the provisions of the Civil Liability Act 2002 and the approach of the courts noting for example the High Court’s judgment in the lung cancer case of Amaca v Ellis.[24] In that case the Court determined that in circumstances where one substance 'can' (on the basis of epidemiological evidence) cause an injury, causation will only be established if it is shown that it 'did' cause the injury assessed on the balance of probabilities.
[24] Amaca Pty Limited v Ellis; The State of South Australia v Ellis; Millennium Inorganic Chemicals Limited v Ellis [2010] HCA 5.
The mechanics of this accident was of a rear end collision. The claimant was a seat-belted driver, and the airbags did not deploy. The Panel has no evidence as to the speed of the insurer’s vehicle or the damage sustained to it. The photographs show there was damage to the claimant’s car including deformation damage at the rear. Appellate courts in cases such as Blacktown City Council v Hocking [2008] NSWCA 144 have issued warnings to first instance decision makers as to how photographs are to be used in the absence of expert evidence. In the absence of expert evidence, the Panel does not intend to make any further comment on the photographs and the severity or otherwise of this collision.
The claimant was the driver of his car with the seat belt going over his right shoulder. The Medical Assessors note that in a low-speed rear end impact the right shoulder would therefore have had some protection from significant injury, being held in position against the seat. This, combined with the one-month delay in reporting right shoulder symptoms, are the reasons why the Panel does not accept the claimant injured his right shoulder joint (and its ligaments and tendons) in the accident. The claimant may have sustained a minor soft tissue injury to his right shoulder from the seat belt, but there is, in the clinical judgment of the medical members of the Panel no mechanism for a more substantial injury to the joint.
Because of the complaints of left shoulder pain within two days of the accident, the Panel accepts that the claimant injured his left shoulder in the accident. Noting the claimant’s previous lower back complaints, it is not surprising that the claimant was concerned about his lower back pain more than his other injuries, and this is a plausible explanation for the absence of any complaint of pain in the left shoulder the day after the accident.
The Medical Assessors note that the left shoulder is not held in position by a seat belt, and that in a rear end collision a vulnerable shoulder could be injured, particularly if the claimant was gripping the steering wheel. The Panel is therefore satisfied that the claimant did injure his left shoulder in this accident.

ARE THE CLAIMANT’S INJURIES THRESHOLD OR NON-THRESHOLD INJURIES?

Nerve injuries and radiculopathy

If there is an injury to a nerve, then s 1.6(2) of the MAI Act says this is not a soft tissue injury and therefore not a threshold injury. However, cl 4 of the MAI Regulation provides that an injury to a spinal nerve root is a soft tissue or threshold injury unless that injury manifests in radiculopathy.
Injury to a spinal nerve root can result in radicular symptoms such as radiating pain but cl 5.8 requires two or more of the following signs to be present in order for there to be a finding of radiculopathy. The signs must be present when the injured person is assessed in accordance with part 6 of the Guidelines and in an examination that complies with cl 5.6.
The five signs of radiculopathy are:
(a)    loss or asymmetry of reflexes;
(b)    positive nerve root tension signs;
(c)    muscle atrophy or decreased limb circumference (of more than one centimetre in the arms and calf or two centimetres in the thigh);
(d)    muscle weakness corresponding to an appropriate nerve root distribution, and
(e)    reproducible sensory loss corresponding to an appropriate nerve root distribution.
The Panel is of the view that the two or more signs must be present at the same examination. For example, loss of weakness found on one examination and a loss of reflexes found in another examination one month later would not result in a finding of radiculopathy. Similarly, there must be findings at the same level of the spine for example loss of sensation in the right index and middle finger and a loss of grip strength and weakness in the left hand would not support a finding of radiculopathy.

Does the claimant have, or has he had cervical radiculopathy?

In Mr Mourtada’s case, Medical Assessor Dixon found all reflexes were present and equal, a 1cm difference between right and left arms (which reflected the claimant’s right handedness), no muscle weakness and no sensory loss. Medical Assessor Dixon did find a positive Spurling’s test indicative of pressure upon the nerves but he did not find two signs of radiculopathy.
Medical Assessor Wijetunga found none of the five signs of radiculopathy when she examined Mr Mourtada.
The claimant’s most recent submissions suggest he has had numbness, weakness, tingling and radiating pain saying that these are signs of radiculopathy.
The Panel notes the claimant’s complaints of symptoms including numbness, weakness, tingling and radiating pain in the records of Dr Norus, but there are no clinical findings from Dr Norus to confirm the presence of these symptoms. The Panel is also of the view that any examination conducted by Dr Norus (as reported in his notes) does not comply with the requirements of cl 5.6 sufficiently to enable the Panel to make a finding that radiculopathy (within the meaning of the Guidelines) was present at any time since the accident.

Is there a bony injury or complete or partial rupture of tendons and ligaments in the neck?

The Panel has considered the radiological reports and Medical Assessor Dixon has reviewed the radiology.
There are no fractures evidence on the X-rays, CT scans or MRI scans. There are no disc ruptures or herniations. The Panel is not satisfied there has been “an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage” in the cervical spine.

Does the claimant have, or has he had lumbar radiculopathy?

When examined by Medical Assessor Dixon, there was no loss or reduction in reflexes, there was normal power, no positive nerve root tension signs and there were no sensory changes. There was 1cm difference in the circumference of the calf and thigh which is not (in accordance with table 6.8 in the Guidelines) clinically significant and therefore not a sign of muscle atrophy or wasting. There were no signs of radiculopathy found.
When Medical Assessor Wijetunga examined Mr Mourtada, she too did not find any of the five signs of radiculopathy.
The records from Dr Norus contain complaints of radicular signs including lower limb numbness (in May and July 2021) but no other signs. As stated above, the Panel is not satisfied that any of Dr Norus’ examination comply with the requirements of cl 5.6 sufficiently to enable the Panel to make a finding that lumbar radiculopathy (within the meaning of the Guidelines) was present at any time since the accident.

Is there a bony injury or complete or partial rupture of tendons and ligaments in the back?

The Panel has considered the radiological reports and Medical Assessor Dixon has reviewed the lumbar radiology.
There are no fractures evidence on the CT or MRI scans. There were disc bulges reported in 2013 but no disc ruptures or herniations present now. The Panel is not satisfied there has been “an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage” in the lumbar spine.

Shoulders

The Panel has found that the claimant did not injure his right shoulder in the accident but that he did injure his left shoulder.
The claimant has a 13 mm tear of his anterior supraspinatus tendon shown on an ultrasound taken three months after the accident. When all of the claimant’s records are considered there has been a consistent complaint of left shoulder symptoms since two days after the accident. Because the claimant had no pre-injury ultrasound of his left shoulder, the Medical Assessors note it is impossible to know whether there was any pre-existing tear of any of

Mr Mourtada’s left shoulder ligaments or tendons and if there was a pre-existing tear whether it was further torn in this accident.
It is the clinical judgment of the Medical Assessors that the claimant could have torn his anterior supraspinatus tendon in the accident but what is more likely is that he did further tear an already weakened tendon in this accident.
As a complete or partial rupture of tendons is not a soft tissue injury, a tear or further tear of the anterior supraspinatus tendon is not a soft tissue injury and therefore not a threshold injury for the purposes of the Act.

IS THE REFERRAL RELATED TO THE ACCIDENT AND REASONABLE AND NECESSARY?

On 9 August 2021 the claimant was referred by Dr Norus to Professor Murrell for “opinion and management” of “severe shoulder pain”.
The referral is dated less than four months after the accident and the claimant had, before then consistent complaints of shoulder pain and the ultrasounds which revealed pathology in both shoulders.
The Panel is satisfied that the referral to Professor Murrell for opinion and management is related to the left shoulder injury caused by the accident as well as the right shoulder condition not caused by the accident. The left shoulder injury is an equal and therefore material contribution to the need for this referral.
The Panel is also of the view that it is reasonable and necessary treatment in the circumstances. The Medical Assessors are aware that Professor Murrell is an orthopaedic surgeon who specialises in shoulders. With pathology in both shoulders shown on ultrasound it is reasonable to have this further investigated and necessary for the GP to have specialist opinion in respect of any further treatment. Dr Norus notes “severe pain” and Mr Mourtada told Medical Assessor Dixon his left shoulder symptoms are worse than his right. Again, this supports the reasonableness of the referral, as a shoulder specialist should be able to assist in the treatment of and potential elimination of this severe pain.

It is therefore the Panel’s view that the referral to Professor Murrell should be allowed as both related to the injuries caused by the accident and reasonable and necessary treatment in the circumstances.

CONCLUSION

As the Panel has come to a different conclusion to Medical Assessor Wijetunga it follows that her certificates as to the two medical assessment matters referred to her for assessment should be revoked.

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Citations

Mourtada v AAI Limited t/as GIO [2023] NSWPICMP 330

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

6

Amaca Pty Ltd v Ellis [2010] HCA 5

Blacktown City Council v Hocking [2008] NSWCA 144

Shoulder motion (in degrees)	Left	Right
Flexion	140	150
Extension	40	50
Abduction	130	130
Adduction	30	40
Internal Rotation	50	70
External Rotation	80	80

[2023] NSWPICMP 330

20 July 2023