Muradi v QBE Insurance (Australia) Ltd
[2022] NSWPICMP 59
•24 March 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Muradi v QBE Insurance (Australia) Ltd [2022] NSWPICMP 59 |
| CLAIMANT: | Mohammad Reza Muradi |
INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW Panel: | Principal Member John Harris |
| DATE OF DECISION: | 24 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- This was a dispute about whether the claimant suffered a minor injury in the motor accident; the claimant was thrown off a motor bike and sustained injury to the neck; subsequent scan evidence showed annular tears at two levels of the cervical spine; Held- the Panel were not satisfied that the claimant suffered an annular tear in the motor accident; reference made to articles provided to the parties which suggested that annular tears are common in the population and generally asymptomatic and not necessarily associated with neck pain; other musculoskeletal structures are capable of causing pain and there was no diagnostic test that the annular tears were the cause of the neck pain; the Panel were not satisfied that the claimant suffered annular tears in the motor accident; Panel determined that it was unnecessary to determine whether an annular tear was a non-minor injury within the meaning of the Motor Accidents Injuries Act 2017 and the Motor Accident Injuries Regulation 2017; finding made that the claimant suffered a minor injury; original assessment confirmed. |
DETERMINATIONS MADE: | The Review Panel confirms the certificate dated 26 April 2021. |
REASONS
BACKGROUND
Mr Mohammed Reza Muradi (the claimant) suffered injury in a motor accident on 20 March 2020 when he was thrown off his motor bike after being rear-ended by the insured vehicle.
The insurer insured the owner and driver of the other motor vehicle for liability to pay to Mr Muradi any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The present issue is whether Mr Muradi’s injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, clause 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 Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Berry who issued a Medical Assessment Certificate dated 26 April 2021. Medical Assessor Berry concluded that Mr Muradi sustained a minor injury 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 ongoing statutory benefits and an entitlement to bring an action for 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 Muradi within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
On 5 August 2021, 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.[5]
[5] 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 clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[6] 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).
[6] 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.[7]
[7] 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.[8]
[8] 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.[9]
[9] 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.
The parties provided bundles in response to this Direction. These documents included the clinical notes of Dr Hamid which were served on 13 July 2021. The insurer referred to the clinical entry of 10 March 2018 which recorded the claimant being assaulted and complaining of neck pain and submitted that this was an alternative explanation for the annular tears.
On 19 November 2021 the Panel granted leave to the insurer to rely on the records of Dr Hamid and directed the claimant to file evidence in response. The claimant was also requested to file electronic images of the MRI scan dated 15 June 2020.
The claimant was also “requested to confirm that his contention on whether the injury was not minor is limited to the presence of the annular tears at C5/6 and C6/7 recorded in the MRI scan dated 15 June 2020.” On 26 November 2021 the claimant, through his legal practitioners, confirmed this contention.
On 26 November 2021 the applicant filed cervical spine and lumbar spine images and provided a statement by Mr Muradi.[10]
[10] Document AD8.
The Panel issued a further direction attaching the following papers on the issue of whether the annular tears shown on the MRI scan were caused by the motor accident and requesting further submissions. These papers were:
Farrell et al. Cervical spine findings on MRI in people with neck pain compared with pain-free controls: A systematic review and meta-analysis. J Magn Reason Imaging. 2019: 49(6):1638-1654 (the Farrell paper).
Silvola SM et al. MRI changes of cervical spine in asymptomatic and symptomatic young adults. Eur Spine J. 2002;11(4);358-363 (the Silvola paper).
The Panel also referred the parties to the following article located on the State Insurance Regulatory Authority (SIRA) website (the SIRA guidelines):
- State Insurance Regulatory Authority: Guidelines for the management of acute whiplash-associated disorders for health professionals: Sydney, 3rd edition, 2014.
The insurer advised the Commission that had no further submissions in response to the further material provided. The claimant provided no submission in response.
Statutory provisions
A minor injury is defined in s 1.6 of the MAI 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, clause 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.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[11]
[11] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act[12]. However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a minor injury, it is unclear and unlikely that the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment[13] apply. This is because Part 6 is specified as applying only to the assessment of Permanent Impairment.[14]
[12] See s 3B(2) of the Civil Liability Act, 2002.
[13] See clauses 6.5 - 6.7 of the Guidelines.
[14] See clause 6.3 of the Guidelines.
Assessment under review
Medical Assessor Berry certified that Mr Muradi sustained a minor injury for the purposes of the MAI Act. The Medical Assessor stated:
“[C]linically the patient has no evidence of significant restriction of movement and no evidence of non-verifiable radicular complaints of radiculopathy in the upper limbs. I would therefore be of the view that the patient sustained a Grade 1 whiplash type injury to the cervical spine.”
The Medical Assessor noted that the MRI and CT scan of the lumbar spine failed to show “any evidence of a significant annular tear or disc protrusion or any soft tissue injury”.
Later in his reasons the Medical Assessor stated:
“The patient has MRI scan evidence of a tiny 3 mm annular tear of C5/6 and also at C6/7, however, there are no clinical signs of disc disruption or significant soft tissue injury, apart from a Grade 1 whiplash injury and I would be of the view that these annular defects are not caused by the motor accident and the patient has a cervical spine injury which is a minor injury for purposes of the [MAI] Act and he sustained a soft tissue injury of the lumbar spine which is defined in Section 1.6(2) of the Act.”
SUBMISSIONS
Claimant’s submissions dated 24 September 2020[15]
[15] Claimant’s bundle, page 58.
The claimant submitted that the MRI scan of the cervical spine dated 15 June 2020 showed annular tears at C5/6 and C6/7 and “take the injury to the neck out of the purview of a minor injury”.
Claimant’s submissions dated 27 May 2021
These submissions were filed seeking a review of the certificate issued by Medical Assessor Berry. After recounting the background facts, the claimant submitted:[16]
“It is submitted that the determination by the Assessor is erroneous as the Assessor has ignored the fact that the discs in the spine consist of a soft gelatinous fluid on the inside of each disc known as the nucleus. It is common knowledge that there is an outer half of the disc which is composed of a tough connective fibres or ligaments commonly known as the annular fibrosis. If the tough external surface of the disc is torn, this commonly results in a condition known as an annular tear.”
[16] Claimant’s submissions, [6].
The claimant submitted that it is undisputed that he was thrown off his motor bike in the motor accident and this trauma “would have resulted in the annular tear”. As he was only 23 years of age, “there can be no issue of the tear being degenerative”.[17]
Insurer’s submissions dated 16 October 2020[18]
[17] Claimant’s submissions, [7]-[8].
[18] Insurer’s bundle, page 10.
The insurer referred to the background evidence of the claim. It submitted that the MRI scan of the cervical spine indicated “normal wear and tear and age-related change”.[19] The CT scan of the lumbar spine revealed no significant pathology and no nerve root compression.
[19] Insurer’s bundle, [29].
The insurer submitted in order for the injury to be non-minor there must be two signs of radiculopathy. These signs were not present. It submitted that there was an absence of radiculopathy, the claimant suffered soft tissue injuries only, and it was a minor injury for the purposes of the MAI Act.
Insurer’s submissions dated 25 June 2021[20]
[20] Insurer’s bundle, page 54.
These submissions were filed in response to the claimant’s application for review of the certificate issued by Medical Assessor Berry. The insurer disputed the claimant’s submission that there was “no issue” that the annular tears were traumatic and submitted:
“Annular tears can be formed as a result of natural degeneration of the intervertebral disc and do not discriminate on age.”
The insurer submitted that annular tears are commonly identified in asymptomatic individuals referring to an article by Tenny and Gillis. It otherwise referred to other case studies that were “deemed minor injuries even with the presence of an annular tear”.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents in accordance with the initial Direction and subsequent material following a subsequent Direction. The original imaging of the MRI scan dated 15 June 2020 was provided to the Panel.
Pre-motor accident clinical notes[21]
[21] Insurer’s bundle, page 57.
On 10 March 2018 Mr Muradi presented to his general practitioner complaining of headache and neck pain following an assault by a family member. The assault was described as being “pressed [on] his neck”. Examination showed neck bruising. Dr Hamid prescribed Voltaren Emulgel. There is no reference to radiology being organised.[22]
[22] Insurer’s bundle, page 59.
Subsequent consultation on 24 March 2018 related to the flu and did not mention the neck. There is no mention of any neck pain in the clinical notes after 10 March 2018 until 22 May 2020 (the first consultation with Dr Hamid after the motor accident).
NSW Ambulance Report
The Ambulance report recorded that Mr Muradi was stationary and knocked off his bike and helmet came off. The claimant had full recall of events with nil obvious head trauma complaining of lumbar spine tenderness and was transported to Westmead Hospital.[23]
[23] Insurer’s bundle, page 17.
Police report
The police report recorded that the insured vehicle collided with the motorcycle causing Mr Muradi to be thrown from his vehicle and his helmet came off.[24]
[24] Insurer’s bundle, page 28.
Radiology
The MRI scan dated 15 June 2020 is reported by Dr John Ly as showing a small posterior central disc protrusion and annular tear without neural impingement and a small posterior central annular tear without disc protrusion at C5/6.[25]
[25] Claimant’s bundle, page 55.
A lumbar spine CT scan dated 20 July 2020 showed minor pathology at L3/4 and L4/5. The radiologist recommended an MRI scan for more specific characterisation.[26]
[26] Insurer’s bundle, page 39.
An MRI scan of the lumbar spine dated 8 September 2020 showed mild bulging at L3/4 and L4/5 with no significant findings and no nerve root compression.[27]
Claimant’s statements
[27] Insurer’s bundle, page 35.
Mr Muradi provided a statement dated 25 November 2021 which was in response to the clinical notes of Dr Hamid which refer to an attendance on 10 March 2018 when he suffered neck pain from an assault. Mr Muradi indicated that he attended the general practitioner on one occasion, was prescribed Voltaren Emulgel and did not see the doctor subsequently for this incident. He also said that he was working as a labourer at the time and continued to work “odd jobs” until December 2019 and commenced the electrical apprenticeship in early 2020. Mr Muradi did not continue to work the electrical apprenticeship to the date of the statement although he did “a few light odd jobs every now and then”.
Mr Muradi completed an application for personal injury benefits dated 25 March 2020.[28] The circumstances of the accident accord with the version recorded in the police report. In the application form Mr Muradi reported bad back pain, neck pain to hips and under his chest.
[28] Insurer’s bundle, page 29.
Treating reports
Medical certificates provided by Dr Abdalla dated 27 March 2020 and 16 April 2020 noted back, neck and chest wall pain following the motor accident.[29]
[29] Claimant’s bundle, page 28.
A physiotherapy letter of attendance dated 20 April 2020 noted treatment for neck, shoulder and back pain.[30]
[30] Claimant’s bundle, page 48.
Dr Jefferies reviewed Mr Muradi by Telehealth on 9 April 2020. Presenting complaints were pain localised at the base of the neck radiating down the lower back. There were no neurological complaints. Dr Jefferies made a diagnosis of Grade 1 whiplash associated disorder.[31]
[31] Claimant’s bundle, page 26.
Dr Raymond Wallace, orthopaedic surgeon reviewed Mr Muradi by Telehealth Consultation on 11 May 2020.[32] The doctor noted no improvement in cervical spine pain with complaints of pain from C2 to C7 spinous process radiating to the interscapular region with no radiation to the shoulders or arms. The doctor diagnosed whiplash associated disorder Grade 1.
[32] Insurer’s bundle, page 63.
Dr Wallace provided a further report dated 27 May 2020[33] when he conducted the examination by Telehealth. Dr Wallace noted that Mr Muradi complained of aching pain in the region from C2 to C7. The doctor diagnosed a whiplash associated disorder Grade 1 and opined that the ongoing pain was inconsistent with the known pathology.
[33] Claimant’s bundle, page 17.
An allied health recovery request completed by Dr Abdalla dated 13 May 2020 noted “neck and back pain due to whiplash, back pain radiating to legs”.[34]
[34] Claimant’s bundle, page 19.
Dr Hamid’s certificate dated 28 June 2020 referred to neck pain post motor accident with the MRI scan showing disc pathology at C6/7.[35]
RE-EXAMINATION
[35] Insurer’s bundle, page 36.
The Panel determined that Mr Muradi be re-examined by Medical Assessor Cameron on 18 March 2022 given the factual issues in dispute.[36] The re-examination report is as follows:
[36] See also the discussion by Leeming JA in Sydney Trains v Batshon [2021] NSWCA 143 at [41], White and McCallum JJA agreeing.
“Mr Muradi attended unaccompanied.
History of Injury
On 20 March 2020 Mr Muradi was riding his motorcycle. He was at traffic signals and getting ready to turn right. He was hit from behind and thrown from the rear of the motorcycle directly to the roadway. He was wearing a backpack at the time.
Mr Muradi recalls not being able to breathe properly. He took off his helmet and was helped by bystanders including a passing medical practitioner.
An ambulance attended and he was taken to hospital where he had an assessment.
Mr Muradi subsequently consulted his general practitioner.
Mr Muradi recalls having back and neck pain for many months. He was unable to work and his brother and parents assisted him. He said the motorcycle was written off.
Mr Muradi has also had ongoing chest symptoms and has had a bone scan for the chest.
Background
Mr Muradi is living at Lidcombe with his parents.
Mr Muradi had his education in Iran and came to Australia in 2015.
At the time of the motorcycle crash he was a first year apprentice electrician. Mr Muradi has not been able to return to that work.
Mr Muradi subsequently obtained work with his brother as a house painter. He works two to three days a week. He said that his brother allows him to have ‘lighter’ duties and to vary his routine.
Mr Muradi clarified that he started work with his brother at some time during 2021.
Mr Muradi reported that his past health was good. He does not smoke tobacco.
Current Status
Mr Muradi has ongoing symptoms from his chest. There is clicking over his chest anteriorly. There is also right scapular pain and some neck and back pain.
Mr Muradi said that he takes analgesics but could not remember the name of them. The general practitioner is Dr Hamid at Auburn.
Mr Muradi attended the gym regularly to assist with mood and pain management.
Examination
Mr Muradi is right handed, 170 cm in height and weighs 78 kg.
Mr Muradi was co-operative and provided a clear history. There was no emotional distress and no evidence of cognitive impairment.
Mr Muradi has a lifelong divergent squint. His right eye is abducted. The vision acuity in the right eye is adequate.
There was a click at approximately the left third or fourth rib and sternal junction. There was no other abnormality of the chest detected.
At the cervical spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both shoulders. There was a full range of motion at other upper extremity joints.
There were no neurological abnormalities in the upper extremities.
Circumferences of the upper extremities were right 28.5cm and left 28cm.
At the thoracic spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
At the lumbar spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both knees. There was a full range of motion at other lower extremity joints.
There were no neurological abnormalities in the lower extremities.
Circumferences of the lower extremities were right 37cm and left 37cm.
Mr Muradi walked with a normal gait.
Diagnosis and Prognosis
In the motorcycle crash on 20 March 2020 Mr Muradi sustained multiple soft tissue injuries. Given the mechanism of injury these were probably to his chest, neck and back.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to 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[37] and Insurance Australia Ltd v Marsh.[38]
[37] [2021] NSWCA 287 at [40], [41] and [45].
[38] [2022] NSWCA 31 at [11], [21], [64]
For the reasons expressed in Lynch v AAI Ltd[39] we proceed on the basis that the claimant bears the onus of proof, and he must establish that he has a non-minor injury.
[39] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessor Cameron in its reasons.
We also note that the claimant did not argue that he suffered from radiculopathy. There was otherwise no basis to find that Mr Muradi had two objective signs of radiculopathy as defined in clause 5.8 of the Guidelines and did not show any signs of radiculopathy when he was examined by Medical Assessor Cameron.
Mr Muradi submitted that either of the two annular tears shown on the cervical spine MRI scan were caused by the motor accident and that either of the annular tears constituted a non-minor injury as defined in s 1.6(2) of the MAI Act.
Consideration of that issue involves two distinct questions, that is, whether either of the annular tears were caused by the motor accident, and if so, does that constitute a minor injury within the meaning of the MAI Act.
For the following reasons, we are not satisfied that the annular tears identified on the MRI scan were caused by the motor accident. In these circumstances it is unnecessary to consider the subsequent issue of whether an annular tear caused by the motor accident constitutes a non-minor injury as defined in the MAI Act.
We accept the claimant’s submissions that there was an absence of neck complaint prior to the motor accident and that shortly after the motor accident, Mr Muradi complained of neck and back pain as well as chest pain.
We accept the claimant’s evidence and submission that the assault in early 2018 caused minor short-term pain in the cervical spine with a consultation on one occasion with the general practitioner. Medically, that incident is unlikely to explain annular tears given the lack of treatment and the nature of the assault.
We reject the insurer’s submission, made without any supporting medical opinion, that Mr Muradi sustained the annular tears in the cervical spine when he was assaulted in early 2018.
Whilst we are required to form our own opinion, we must consider the medical views proffered in the case. Both Medical Assessor Berry, Dr Jefferies and Dr Wallace diagnosed a Grade I whiplash. None of the doctors opined that the annular tears were caused by the motor accident.
The claimant asserted that it was undisputed that he was thrown off his motor bike in the motor accident and this trauma would have resulted in the annular tear. No medical opinion was cited in support of that submission, and we could not identify any medical support. The preponderance of the medical evidence was that Mr Muradi sustained a Grade I whiplash condition. Indeed, Medical Assessor Berry[40] expressed concluded that the annular defects were not caused by the motor accident.
[40] See at [32] herein.
The findings of Medical Assessor Cameron are consistent with the findings of the other medical practitioner s that Mr Muradi suffered from a Grade I whiplash.
The Quebec Task Force (QTF) classification for whiplash is the internationally recommended system to use and accordingly is recommended in SIRA’s whiplash guidelines.[41] Essentially both Grade I and II would be considered a “soft- tissue” injury and classified as indicated in the table below.
[41] SIRA guidelines, see [21] herein.
QTF Grade
Definition
I
Complaint of neck pain, stiffness or tenderness only.
No physical sign(s).
II
Neck complaint AND musculoskeletal sign(s).
Musculoskeletal signs include decreased range of movement and point tenderness.III
Neck complaint AND neurological sign(s).
Neurological signs include decreased or absent tendon reflexes, weakness and sensory deficits.
The treating professionals and Medical Assessor Berry provided a diagnosis of Grade I whiplash. However, the physiotherapist’s notes on the AHRR noted “restriction of ROM and tenderness to palpation” which is more consistent with Grade II. Whilst there is some discrepancy in the QTF classification, both Grade I and Grade II are considered to be “soft tissue” injuries.
Of note is that all practitioners have excluded the classification of Grade III or radiculopathy. This has been made on the negative result of a neurological examination undertaken by several medical professionals.
Symptoms reported by the claimant in the region of the cervical spine include neck pain and stiffness (reduced range of motion of the neck). These symptoms are consistent with the classification of Grade I or II and are common symptoms associated with whiplash.
One of the reasons for the adoption of the QTF classification system for whiplash is due to the lack of evidence to provide a patho-anatomical diagnosis in whiplash mechanism injuries. There is essentially and broadly, no relationship between imaging observations in the intervertebral disc such as annular tears or disc bulges and symptoms in people with whiplash. Further there is no relationship between these findings and prognosis or outcome. For example in the latest SIRA guidelines for whiplash1 the recommendation reads: “There is GRADE A evidence that radiological changes (on Xray, MRI or CT) are NOT associated with ongoing pain or disability after whiplash”.
To specifically address the concern regarding how common annular tears are in younger people (aged in their 20’s), guidelines, systematic reviews and/or cross-sectional studies (that compare symptomatic with asymptomatic people with neck pain) may provide some direction.
The first source is the SIRA guidelines which is referenced earlier.
There was one systematic review (the Farrell paper)[42] that found no differences on MRI findings between people with whiplash and controls. However, this systematic review did not specifically look at a younger age group.
[42] See at [20] herein.
The Silvola paper was a cross sectional study conducted in 2002[43]. This study found that annular tears were found as commonly in asymptomatic 20-year-olds as symptomatic
20-year-olds (Table 1). Specifically the rate of annular tears was 10/15 (67%) in the asymptomatic group and 8/16 (50%) in the symptomatic group.3 Importantly, presence of annular tears were not associated with neck pain. We accept that the cross sectional study did not involve a large sample but it is consistent with the fact that the presence of annular tears does not equate with the presence of symptoms.[43] See at [20] herein.
The SIRA guideline, the Farrell paper and the Silvola paper support similar radiological MRI findings between people with whiplash and asymptomatic controls, including in a younger population (aged in their 20’s).
In the absence of the ability to provide a reason for ongoing neck pain based on imaging, other factors become relevant. One consideration is that other musculoskeletal structures are capable of causing pain and these include but are not limited to muscles, joints, ligaments, nerves and/or dura. Currently there are no diagnostic tests capable of accurately determining the cause of neck pain – radiologically or clinically.
Secondly, there are other more common factors associated with ongoing neck pain after whiplash. For example, whiplash guidelines state that the highest evidence (Grade A) associated with ongoing neck pain after whiplash are high levels of initial pain, high initial disability and psychological distress. It is noted that all three of these factors are present in this case.
It is conceivable that a motor bike accident of this nature could cause an annular tear. However, we are not satisfied that the motor bike accident did cause either of the annular tear because:
(a) annular tears seen on imaging are not necessarily associated with neck pain after whiplash;
(b) annular tears seen on imaging are as common in asymptomatic 20-year-olds as symptomatic 20-year-olds; and
(c) it is more likely that other factors listed above are contributing to the ongoing pain.
We otherwise note that the insurer referenced case studies which are not binding and fact sensitive. Factual findings on causation in other cases do not create legal precedent: Edwards v Noble.[44]
[44] [1971] HCA 54 at [14] per Barwick CJ.
The Panel is not satisfied that the motor accident either caused or aggravated the annular tears described in the MRI scan of the cervical spine. For the reasons provided, we are not satisfied that the pathology was caused by the motor accident.
In the circumstances it is unnecessary to consider the second issue, that is whether an annular tear caused by the motor accident constitutes a non-minor injury.
CONCLUSION
For these reasons we confirm the certificate issued by Medical Assessor Berry.
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