Panepinto v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Panepinto v Allianz Australia Insurance Limited [2023] NSWPICMP 592
CLAIMANT:	Giuseppe Panepinto
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Ian Cameron
MEDICAL ASSESSOR:	Michael Couch
DATE OF DECISION:	15 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017, minor now threshold injury dispute and assessment by Medical Assessor (MA) Wijetunga; claimant injured in rear end collision in June 2018 and alleged injuries to his neck and right shoulder; pre-accident records suggested claimant had previous neck and shoulder problems; claimant had cervical spine surgery in September 2020; claimant argued he had cervical radiculopathy, which was a non-threshold nerve injury, had radiculopathy from August 2018, had surgery as a result of the injury and had right shoulder SLAP tears caused by the accident; Held – when examined by MA Cameron for the Panel there was no radiculopathy; extensive review of post-accident records revealed radicular symptoms but at no stage did claimant have two or more of the five signs of radiculopathy required to establish a non-threshold injury; Mandoukos v Allianz Australia Insurance Limited followed; surgery does not ‘convert’ a threshold injury into a non-threshold injury; in any event the need for surgery was not caused by the accident because there was a substantial difference in the nature of the complaints before the surgery; the claimant had sustained a soft tissue injury in the accident on the background of degenerative changes; need for surgery caused by the degenerative changes; the claimant had a disc bulge not a herniation or prolapse and there was no evidence of a complete or partial rupture of tissue.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate of Medical Assessor Wijetunga dated 21 December 2022. 2. Certifies that the injuries sustained by Mr Panepinto are threshold injuries for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

Giuseppe Panepinto was involved in a rear end motor accident at a roundabout on 23 June 2018.
Mr Panepinto says he injured his neck and right shoulder in the accident. As a result, he made a claim for statutory benefits with Allianz, the third-party insurer of the vehicle that he says caused his accident.
A medical dispute about whether any of the claimant’s accident-related injuries were not minor injuries within the statutory definition arose in connection with that claim. Mr Panepinto referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 21 December 2022 Medical Assessor Wijetunga determined that all of Mr Panepinto’s injuries were minor injuries. The claimant then lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 22 February 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment allowing the Review, and on 8 March 2023 the President convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr Panepinto’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.
The statutory benefits available under the MAI Act are not unlimited. One of the restrictions to benefits is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease at a certain point in time after the motor accident if the only injuries sustained by the injured person are “threshold” injuries. In a common law damages claim, no damages are recoverable if the claimant’s only injuries are “threshold” injuries[1].
[1] Section 4.4 of the MAI Act.
The statutory benefits scheme was amended by legislation commencing on 1 April 2023. The term “threshold” injury replaces the previous term “minor” injury and this amendment applies to all claims regardless of the date of the accident and therefore applies to Mr Panepinto’s claim. The availability of statutory benefits was also amended to allow benefits for 52 weeks (previously 26 weeks) but this amendment only applies to accidents occurring on or after 1 April 2023 and therefore not to Mr Panepinto’s claim.
While Mr Panepinto’s dispute, original decision and the submissions lodged in this review have referred to “minor” injury, the Panel will adopt the terminology of “threshold” injury in these reasons.

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.”
If a person injured in a car accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2) (highlighted in italics in the paragraph above), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act.

Radiculopathy

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) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.
Clause 5.8 defines radiculopathy as: “the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination …”
(a)     loss or asymmetry of reflexes;
(b)     positive sciatic nerve root tension signs;
(c)     muscle atrophy and/or decreased limb circumference;
(d)     muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)     reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
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” and clause 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
In summary, if the person injured in the car accident sustains a spinal nerve injury this is a threshold injury unless the particular nerve injury manifests in signs of radiculopathy in accordance with cl 4 of the MAI Regulation in which case it is a non-threshold injury.

Method of assessment

Clause 5.9 of the Guidelines 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”.
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the MAI Act.[2] In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
“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, and
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
[2] The current version of the Guidelines I version 8.2 effective 8 April 2022.
The method of assessment in Part 5 does not appear to be limited to the assessment of threshold injury disputes by medical assessors and Panel members but would appear to extend to treating practitioners and medico-legal experts retained by the parties.

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.[3]
[3] 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 original medical assessments such as Medical Assessor Wijetunga’s, further medical assessments and the Review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Wijetunga examined the claimant on 14 December 2022 and issued her certificate on 21 December 2022. She says at [2] that she was asked to assess the following injuries:
(a) cervical spine injury – disc prolapse, disc injury, radiculopathy requiring right C5/6 and C6/7 foraminotomy, decompression and right C5 to C7 rhizolysis, and
(b) right shoulder injury.
After summarising the submissions of the parties, Medical Assessor Wijetunga at [8] and [9] took the following history from the claimant:
(a)    the claimant has worked as a painter and contractor all his working life;
(b)    in 1989 he was involved in a rear end motor accident and injured his neck which “took a couple of years to resolve”, and he had a few months off work. The claimant denied any neck pain in the two years before the accident;
(c)    he injured his right foot and right elbow at work before the accident;
(d)    the claimant had been diagnosed with obstructive sleep apnoea and diabetes and weighed 160kg. He had two abdominal surgeries and no further issues in the four to five years after that;
(e)    the claimant had a right hip replacement eight years ago;
(f)    the claimant was driving at slow speed in a roundabout when he was hit by a faster moving car from the rear. Airbags did not deploy, and he was able to drive the car away and it was repaired. Police attended;
(g)    the claimant said he did not experience immediate pain but pain when turning his head to the right as he drove away;
(h)    he was off work for a few months then gradually returned to work and no longer does any more than five to six hours work a day;
(i)    he had an MRI of his cervical spine due to pain in his neck and shoulder extending down his back;
(j)    he was referred to Dr Darwish who organised physiotherapy which he has attended for two years, and which provides only temporary relief;
(k)    he reported posterior shoulder girdle pain, not anterolateral shoulder pain;
(l)    he has had acupuncture and has undertaken a strengthening program at the gym for a few years which also gave temporary relief;
(m)     he has had a C6 perineural injection which had not helped;
(n)    before his surgery he “mainly had pain when he was working … there was no extension of pain into the arm beyond the shoulder and he did not describe any paraesthesia”, and
(o)    after his surgery the claimant reports improved range of motion but an unchanged level of pain.
The claimant reported at [12] to Medical Assessor Wijetunga, intermittent neck pain occurring daily at 6-8 out of 10, extending down to the thoracic spine and in the right trapezius but not extending down the right arm beyond the deltoid. The claimant reported no symptoms of numbness or pins and needles.
In the right shoulder there was pain which the claimant considered extends from his neck into the trapezius with milder symptoms on the left. There was no anterolateral shoulder pain which the Medical Assessors suggests would, had it been present, indicate a discrete shoulder injury.
The claimant said he took Panadeine Forte at night every one or two days and Panadol on most days and he attends physiotherapy twice a week which provides relief from pain for about a day.
On examination of the cervical spine:
(a)    there was no muscle guarding or spasm;
(b)    there was tenderness in the cervical portion of the trapezius and cervical paraspinal muscles but not over the spine itself;
(c)    movements in two planes were restricted but equally so, although extension and flexion were normal;
(d)    there was normal tone and power in the upper limb with bilateral symmetrical reflexes, and
(e)    there was an increased sensitivity over the upper right arm which did not correspond to a specific dermatome.
The upper extremity showed no evidence of atrophy on observation, but as the claimant’s upper arm circumferences were equal and Mr Panepinto was right-handed the Medical Assessor was of the view there could have been some mild atrophy present.
There was mild tenderness on palpation of the bicipital groove which was not the same as the pain in the shoulder. A test for impingement was negative.
Shoulder motion was normal in the left and restricted on abduction and flexion in the right.
In terms of consistency, when Medical Assessor Wijetunga was completing her assessment, she noted a clinical record suggesting neck, right shoulder and left-hand pain in May 2018, six weeks before the car accident and that at this time Mr Panepinto had physiotherapy. She put this to the claimant in a telephone call with him, but he could not recall an actual incident or this treatment.
Medical Assessor Wijetunga summarised the medical records and the radiology.
She determined that the claimant sustained a whiplash injury to his cervical spine and found no signs of radiculopathy. She also determined that he had disc bulges, but these were not compressing the nerve roots, this compression was coming from the degenerative bilateral foraminal stenosis which was not caused by the accident. She found no tear of tendons, ligaments, menisci, cartilage or nerves and that his cervical spine injury was a threshold injury.
In terms of the right shoulder, she noted the claimant considered his shoulder symptoms to be an extension of his neck injury and the description of his pain was not indicative of an actual shoulder injury. While she acknowledged the presence of a tear in the superior (top) of the labrum from superior to posterior (a SLAP tear) in the radiology, she noted this did not correlate to his symptoms and that SLAP tears are constitutional for his age group. The Medical Assessor expressed the view there was shoulder pain referred from the whiplash injury to the neck and this was also a threshold injury.

ISSUES FOR DETERMINATION

Claimant’s submissions

The submissions lodged by the claimant in support of the application for review[5] are made on the basis that Medical Assessor Wijetunga has “taken into account an irrelevant consideration” [2.1].
[5] Document A1 in the Commission’s file.
The claimant says at [2.4] the Medical Assessor referred to an application form dated 9 March 2018 (the accident was on 23 June 2018), another application form dated 11 October 2021 and the claimant’s submissions and evidence that was relevant to another matter such as at [2.7] the evidence of a Mr McIntosh which was not submitted in this matter.
The claimant provided further submissions[6] noting at [2] that the claimant had spinal surgery on 9 September 2022 which included a foraminotomy and rhizolysis which involved the cutting of skin, tendons, ligaments and cartilage as well as the removal of bone which would “render the claimant’s injury as non-minor”.
[6] These submissions dated 30 November 2022 are found at page 829 of the claimant’s bundle.
The claimant also submits at [3] that the Panel must consider the claimant’s entire medical evidence and consider whether at any stage the claimant has had radiculopathy. Even if the radiculopathy has resolved, if he has had radiculopathy at some stage the application for review should be accepted.

Insurer’s submissions

The insurer does not agree at [1] there is a material error in the assessment but appears to agree at [2] that the Medical Assessor has referred to documents not related to the motor accident.
The insurer however suggests at [3] that the assessment was “incomplete” and in accordance with Rule 112 of the Personal Injury Commission Rules [4] that the certificate should be referred back to the Medical Assessor for completion.
The insurer’s original submissions to Medical Assessor Wijetunga said:
(a)    the claimant’s treating general practitioner (GP), Dr Pincombe diagnosed musculoskeletal neck pain in a certificate of capacity dated 27 August 2018. Dr Herald diagnosed the claimant as sustaining an aggravation of underlying cervical spondylosis;
(b)    the spondylosis, disc prolapse, and any aggravation was not caused by the accident;
(c)    the MRI on 16 July 2018 revealed multilevel spondylosis without any bone marrow oedema to indicate acute injury;
(d)    there was a delay between accident and the reports of injury (no treatment for a week) – the insurer says had there been a disc prolapse or aggravation of previous changes, there would have been immediate complaints of pain;
(e)    the claimant did not have two or more clinical signs of radiculopathy recorded by the GP on 6 July 2018 and Dr Herald noted on 25 August 2021 that the neurological examination was normal, and
(f)    Dr Herald suggested impingement syndrome with possible rotator cuff tear but no radiology to support this diagnosis.

Procedural matters

The President’s delegate did not determine whether the certificate was incomplete but was satisfied the Medical Assessor’s assessment was incorrect in a material respect and allowed the review and referred the matter to the Panel.
The Panel issued directions to the parties on 17 March 2023 seeking bundles of documents from each party. The claimant’s bundle was due by 10 April 2023 and the insurer’s, by 28 April 2023.
The Panel met on 8 May 2023 and reported to the parties on 9 May 2023.
The Panel observed that Medical Assessor Wijetunga had been asked to assess a cervical spine and right shoulder injury. The Panel drew the parties’ attention to the decisions of other Review Panels in David v Allianz Australia Insurance Ltd[7] and Reed v Allianz Australia Insurance Ltd.[8]
[7] 2021 NSWPICMP 227 (David).
[8] 2022 NSWPICMP 287 (Reed)
The Panel noted that the real issue in the case was the particular injury caused by the accident and:
(a) did the accident cause the radiculopathy recorded in April 2022, and
(b) if so and the surgery was undertaken to relieve that radiculopathy, does this affect whether the claimant’s injury is a threshold injury or not?
The Panel reviewed the documentation and noted non-compliance by both parties with the directions. The Panel had no bundles and there were documents referred to in submissions which were not in the electronic file before the Panel. The Panel issued further directions for a bundle of documents from each party. The claimant’s documents were due by 26 May 2023 and the insurer’s, by 9 June 2023.
The Panel met again on 29 June 2023 and reported to the parties the same day. The Panel confirmed receipt of the claimant’s GP’s records and a message from the claimant advising that the workers compensation insurer had paid for the claimant’s neck surgery.

The Panel had not received the claimant’s submissions and bundle of documents or anything further from the insurer. The Panel resolved that Member Cassidy should hold a teleconference with the parties on 7 July 2023 in order to discuss the proceedings and compliance with the timetable.
At the teleconference, Mr Ferraro appeared for the claimant and Mr Kelly appeared for the insurer. Member Cassidy:
(a)    explained the reasons for requesting bundles (to ensure the Panel had all the documents relied on in the previous assessment) and the need for substantive submissions (beyond the gateway submissions previously provided to the President’s delegate);
(b)    advised the Panel would be conducting a de novo assessment;
(c)    the Panel requested submissions dealing with the cases of David and Reed and causation of the need for the surgery, and
(d)    requested on behalf of the Panel updated records from the claimant’s GP and records from the physiotherapy practice the claimant had attended.

Final submissions

The claimant provided (on 21 July 2023) an indexed bundle of documents and further submissions saying:
(a)    the claimant has a C5/C6 disc prolapse which is a non-threshold injury;
(b)    Dr Darwish on 14 April 2022 found radiating pain, paraesthesia (altered sensation) and mild weakness in the right upper limb and that on 13 August 2018 he had found one sign (decreased sensation) which are all signs of radiculopathy, and that radiculopathy is a non-threshold injury;
(c)    he relied on Reed’s case and that the surgery would be a non-threshold injury, if causally related to the accident, and
(d)    the MRI findings from 21 April 2022 show the partial tearing of shoulder ligaments and tendons which is also a non-threshold injury.
The insurer provided (on 9 August 2023) the records from Bounce Back Physiotherapy and Osteopathy. The insurer advised it had not reimbursed the workers compensation insurer for the claimant’s neck surgery and the insurer provided its bundle of documents.
Within the insurer’s bundle were copies of the submissions made in support of the original application (which the Panel had not previously seen). When the insurer’s submissions were read together the insurer appeared to be saying:
(a)    between 7 and 21 May 2018 (one month before the accident) on three occasions the claimant attended Bounce Back complaining that his shoulder and neck were sore. The history given was that he had been off work for “10 / 52” that is a period of 10 weeks;
(b)    the claimant attended his GP on 8 May 2018 complaining of neck pain and right shoulder pain;
(c)    Dr Hyde Page expressed the view that the claimant’s neck and shoulder were symptomatic at the time of the accident and that while he may have sustained an injury to his neck and shoulder in the accident it was a soft tissue injury only;
(d)    the surgery is not causally related to the accident but the pre-existing condition, and
(e)    the claimant’s medico-legal expert Dr Mendelsohn was not given a correct history and therefore did not diagnose a right shoulder injury and when examined by Dr Hyde Page, the claimant had a full range of right shoulder motion in any event.
On 13 October 2023 the claimant uploaded an application to admit the following additional documents into evidence:
(a) very brief submissions dated 12 October 2023 which say:
“For the avoidance of doubt, the Claimant submits that the SLAP tear identified on the MRI of the right shoulder dated 21 April 2022 if accepted is causally related to the motor vehicle accident would render the Claimant's injuries non-threshold”;
(b) a report from Dr Darwish dated 28 September 2029 which is addressed to the claimant’s solicitor and says:
(i)after the accident the claimant developed neck pain radiating to the right shoulder and right arm;
(ii)the claimant was treated conservatively without improvement;
(iii)he had C5-6 and C6-7 foraminotomy and decompression of the right sided nerve roots on 9 September 2022;
(iv)his radicular arm symptoms improved but Mr Panepinto still has pain and stiffness in the neck, and
(v)the procedure involves the drilling of part of the facet joint to enlarge the foramen and decompress the C6/7 nerve roots.
The claimant says in support of the application to admit these documents into evidence that there is no prejudice to the insurer, it will not delay the outcome of these proceedings and to deny the application would be a denial of procedural fairness.
The insurer responded on 17 October 2023. The insurer did not take issue with the inclusion of the report of Dr Darwish and says firstly the submissions of 12 October do not address it and secondly Dr Darwish’s report adds nothing to the dispute. In terms of the submissions concerning the shoulder the insurer relies on its previous submissions and says any right shoulder injury sustained in the accident was a threshold injury.
The Panel determined to allow the material into evidence and consider it.

REVIEW OF THE EVIDENCE

The insurer provided a bundle on 9 August 2023 (two days before the re-examination) comprising over 1,380 pages. The claimant’s bundle provided two weeks before that includes over 1,090 pages.[9] The insurer’s bundle includes duplicates of some of the material in the claimant’s bundle. The claimant’s bundle includes multiple copies of the clinical notes. This has not assisted the Panel.
[9] The bundles of documents will be referred to throughout these reasons as the claimant’s bundle and the insurer’s bundle.

Claim form and claim documents

The claim form[10] is signed and dated 6 July 2018 and says that the claimant was stopped behind other cars waiting to go into a roundabout when he was hit from behind “at full force, causing my vehicle to lift at the back”. The claimant says he is experiencing “pain in my neck and right shoulder.”
[10] Page 880 of the claimant’s bundle and page 5 of the insurer’s bundle.
The medical certificate (certificate of fitness) attached to the claim form is dated 6 July 2018 and was completed by Dr Pincombe.[11] It diagnoses “musculoskeletal neck pain and right upper shoulder pain”. Dr Pincombe says the claimant first attended on 30 June 2018. It refers to the car accident and whiplash from 25 years ago. The management plan involved MRI of the cervical spine and simple pain relief with potential for physiotherapy. Lifting and pushing / pulling restrictions were imposed.
[11] Page 10 of the insurer’s bundle.
The claimant has provided a statement dated 18 July 2023[12] which refers to a clinical note in the Harrington Park Medical Practice notes dated 8 May 2018. He says he cannot recall this consultation but that:
“… in the years prior to the accident I did not have any significant neck or right shoulder pain and so I can only assume this was a minor ache/pain that may have arisen during my employment which resolved independently. I assume this was a ‘tune up’ consultation, after a hard period of work”.
[12] Document AD2 in the Commission’s file.
The insurer has provided a copy of the police report which refers to the rear end collisions and states that “all parties exited the vehicles with no injuries.”

Treating medical records and reports

Before the accident

Notes from Lifestyle Physiotherapy have been provided.[13] In February and March 2015 and February and March 2015 the claimant attended for treatment to his hip before and after his hip replacement surgery.
[13] Page 48 of the claimant’s bundle.
On 15 December 2015 the claimant attended Bounce Back Physiotherapy clinic for right sided lumbar disc irritation and pain radiating down to the foot. He was seen again on 13 March 2017 with a “long history of [lower back pain] and issues”. Mr Panepinto was reporting left leg pain down to the ankle. He was seen again on 8 and 21 April 2017 when the issue appeared to be related to his arches collapsing.
On 25 October 2017 the claimant attended Bounce Back (for treatment by Brendan Jones) for right trapezius and left hip pain and he had thoracic stiffness. A second session occurred on 3 November 2017 and the claimant was discharged.
The claimant’s pre-accident GP notes have been provided.[14] The documents provided are from 1 January 2018 to 18 May 2023.
[14] Document AD3 in the Commission’s file.
The first entry is dated 1 February 2018 and refers to the claimant’s forthcoming sleeve gastrectomy for 26 February 2018. The claimant had gained weight after having a gastric band removed and was 110kg and 175cm tall which gives a body mass index (BMI) of 36 which is in the obese range.
On 12 March 2018, two weeks after his abdominal surgery he weighed 99 kg which results in a BMI of 32 which was still in the obese range.
On 7 May 2018 the claimant attended Bounce Back Physiotherapy again. There is an extensive record which notes the claimant was a painter, that he had been off work for 10 weeks, that he had returned to work and had done two days of work. He presented with right lower back pain and posterior hip pain, right shoulder pain and had a tender spot on his hand. Under “complaint history” there is a reference to previous treatment by Brendan Jones.
On 8 May 2018 there is then this entry in the GP notes:
“having neck pain / right shoulder pains
left hand pain – over triquetral – especially if lifting off with it – not tender / no mass – for x-ray + ultrasound scan
saw physiotherapist at Bounce Back Physiotherapy and Osteopathy yest[erday]”
The claimant’s weight (and BMI) was reducing.
The claimant attended Bounce Back on 14 May 2018 for right gluteus medius weakness and fatigue and right levator scapulae overload with associated scapular dyskinesia. Treatment was provided to both areas. The medical members of the Panel note that the levator scapulae are muscles at the back of the neck that connects the arm to the vertebral column and is in the trapezius region. Dyskinesia is a form of muscle spasm.
The claimant attended Bounce Bay again on 21 May 2018 and there is an entry that the right shoulder and neck were a bit sore because the claimant had been painting ceilings and his hips were also painful. Treatment was provided to both areas.
On 22 June 2018 Mr Panepinto needed his diabetic medication and there is this note:
“results of hand imaging discussed – has degenerative change causing the pain. I advised simple analgesia and to see a physio for hand exercises”.
In the GP notes are many chronic disease management plans[15] which include a history of osteoporosis, bilateral osteoarthritis of the hip and total hip replacement (2014), left meniscus tear (2016), left hip and leg pain.
[15] Such as page 644 of the claimant’s bundle.
On 16 May 2018 is a note in the GP records “letter printed re insurer”, and on 29 May 2018 “health summary printed, and letter written to Combined Insurance[16] re clinical notes”.
[16] The records suggest that Combined Insurance was an insurer involved in paying the claimant wages while he was unable to work due to his gastric banding surgery.
Dr Abi-Hanna’s letter to Combined Insurance dated 16 May 2018 concerned a claim for payments pursuant to what appears to be a total disability policy.[17] The claimant was said to have a history of morbid obesity on a background of diabetes. He had worsening of obesity over the past four years, banding in 2006 and needed more surgery. He was certified as fit for light duties at work with a return to pre-surgery level of function by 18 May 2018.
[17] Page 589 of the claimant’s bundle.
The claimant’s sleeve gastrectomy surgery had occurred on 26 February 2018.

After the accident

The claimant attended his GP on 30 June 2018[18] advising his doctor of the rear end collision and that “the other car was written off”. Mr Panepinto told his doctor he was driving, wearing a seatbelt, the airbags did not deploy, and he had put in a claim. He did not report hitting his head or feeling pain immediately but that “afterwards when he tried turning his head to the right developed pain on [right] side of the neck”. The claimant reported ongoing pain which was worsening and that he was sore on the right side of the head and shoulder. On examination there was no tenderness in the cervical spine but right sided paracervical tenderness as well as pain over the sternocleidomastoid. There was pain when turning his head, but the upper limb examination revealed “normal power and sensation.” Dr Pincombe diagnosed a likely whiplash and ordered an MRI.
[18] The GP notes have been provided by both the claimant (page 525 of his bundle) and the insurer (pages 13, 208 and 737) in the insurer’s bundle.
On 6 July 2018 the claimant attended his GP requiring correspondence to make the claim, and Mr Panepinto was advised to progress the MRI.
On 11 July 2018, the claimant had not yet obtained the approval and there is a note “ongoing neck pain, not worsening, no neurological symptoms in the arm”. Panadeine Forte prescribed. Mr Panepinto was also referred to Lifestyle Physiotherapy. The referral refers to right sided neck pain only.[19]
[19] The Lifestyle records are found at page 48 of the claimant’s bundle. The referral is at page 250 of the claimant’s bundle. The Lifestyle Physiotherapy records also include pre-accident records which confirm treatment was provided for a hip condition in 2014 and 2015.
The claimant first attended physiotherapy on 11 July 2018. The pain chart completed by the physiotherapist notes constant pain in the right side of the neck and over the right side and shoulder / trapezius area rated at 6-7 out of 10. The claimant was working, feeling the pain was getting worse and was having difficulty sleeping.
An allied health recovery request (AHRR) form was completed by the physiotherapist on 19 July 2018 noting right sided neck pain with referred right shoulder pain. There are five further AHRR forms with the latest dated 21 June 2019 suggesting 29 sessions of physiotherapy had been provided with a further eight requested.
On 20 July 2018 the MRI results were discussed, and the claimant was noted to have “no neurological symptoms in his arms or hands” but “persisting [right] lateral neck pain”. The claimant advised he had an accident “years ago” and a referral was given to Dr Darwish.
The claimant attended his GP again on 2 August 2018. He was seeing Dr Darwish on 13 August and was having weekly physiotherapy and was still at work. His neck pain was present but not worsening.
On 27 August 2018 the claimant reported that Dr Darwish was organising a C6 perineural injection which had been approved (by the insurer) and an updated certificate of capacity was provided. A diclofenac gel was prescribed. On 31 August 2018 the claimant said the gel had improved his neck pain slightly, but he was still getting pain and restricted range of motion.
On 19 September 2018 the claimant attended, a week after the perineural injection. The pain had improved but had returned. Physiotherapy was helping although work was aggravating his pain.
Within the records is a medical certificate signed by Dr Pincombe[20]:
“This is to certify that I have been seeing Mr P for an MVA-related injury to his neck, first seen by me on 30/6/18. He states that the injury occurred on 23/06/18 and that he was unable to go to work due to the neck pain on 25/6/18 to 27/6/18 inclusive.”
[20] Page 669 of the claimant’s bundle.
The claimant returned to Bounce Back on 30 March 2020 referring to the car accident and that he had been going to another physiotherapist but had stopped going three to four months ago. His only complaint recorded was of cervical spine pain and restriction of movement.[21]
[21] Mr Panepinto was referred (page 729 of the claimant’s bundle) by Dr Abi-Hanna for physiotherapy to address “chronic neck pain”.

Dr Darwish

The claimant was referred to Dr Darwish on 20 July 2018. The referral mentions an injury to the neck and neck pain and requests an opinion about whether the MRI findings are related to this accident or the accident of 25 years ago.
The claimant relies on a report of Dr Darwish dated 13 August 2018.[22] The doctor was given a history of neck pain radiating to the right shoulder and right arm not associated with sensory or motor symptoms. That is, the claimant was not complaining to Dr Darwish, or reporting any reduced power or any form of reduced or altered sensation in his right arm. This is consistent with the GP notes.
[22] A bundle of Dr Darwish’s records are provided at page 830 of the claimant’s bundle.
When Mr Panepinto was examined, Dr Darwish records there was decreased sensation over the lateral aspect of the right forearm in a right C6 dermatome distribution but muscular power was said to be normal in all limbs.
Dr Darwish was not given a history of the symptoms which had emerged and for which Mr Panepinto sought treatment in May 2018. Dr Darwish did not express any opinion as to the causation of the claimant’s symptoms.
Dr Darwish reviewed the MRI and expressed the view the claimant’s symptoms “are suggestive of right C6 radiculopathy” and was to organise a C6 injection and physiotherapy.
Dr Darwish reviewed the claimant on 8 October 2018 and noted the right C6 perineural injection helped for a day, but the claimant continued to have neck pain radiating to the right shoulder. Dr Darwish recommended physiotherapy and Naprosyn and further review with the possibility of surgery. Further letters from Dr Darwish to the claimant’s GP dated 20 November 2018 and 17 January 2019 record improvement with physiotherapy and the claimant was advised to continue conservative treatment. On 11 February 2019 a further perineural injection was organised and on 4 April 2019 this was reported to have reduced the claimant’s right arm pain by 60%. On 2 May 2019 the claimant was to continue with home-based exercises. In none of these reports is there a suggestion of any symptoms other than pain in the neck radiating into the right shoulder and arm.
On 17 June 2019, there were continued complaints reported of neck pain radiating to the interscapular region and right upper limb which was associated with “paraesthesia” in the right forearm. Because the symptoms were continuing, the doctor advised the claimant to have surgery by way of a C6/7 foraminotomy and decompression. He was going to write to the insurer and seek approval. Approval was apparently obtained (from the workers compensation insurer) but as the claimant was improving with physiotherapy, the claimant wished to pursue that first (letter of 23 July 2019).
On 21 October 2019 the claimant was having chiropractic treatment which Dr Darwish reports was also “helpful”. The claimant was prescribed Panadeine Forte and Mobic and was working six hours a day five days a week.
On 24 February 2020 Dr Darwish again recommended conservative treatment but signalled the possibility of surgery and noted that the claimant was working full time as a painter.
On 27 April 2020, the claimant reported he had lost his job. Mr Panepinto’s pain was being controlled by Panadeine Forte, Mobic and physiotherapy. The Panel notes the claimant was a self-employed painter and that his work may have been affected by Covid hence Dr Darwish’s reference to the claimant having lost his job.
On 14 April 2022, the claimant was reviewed by Dr Darwish, complaining of neck pain radiating to the right upper limb. Mr Panepinto was said to have paraesthesia in the right forearm and mild weakness of right elbow flexion and extension. Mr Panepinto complained of pain in the right shoulder. The claimant had, on examination, altered sensation over the right forearm and right hand, mild weakness of right elbow extension and flexion and symmetrically depressed deep tendon reflexes.
After an MRI, Dr Darwish noted “degenerative changes” in the acromioclavicular (AC) joint and a partial tear of the subscapularis muscle. Again, Dr Darwish advised conservative measures and possible C6 and C7 nerve root decompression surgery.
On 22 August 2022, Dr Darwish advised the claimant’s GP that Mr Panepinto now wished to have the surgery which was scheduled for 9 September 2022 pending insurance company approval. In a letter to Dr Abi-Hanna dated 6 September 2022, Dr Darwish refers to complaints of neck pain radiating to the right upper limb with paraesthesia in the right forearm and right hand.

The approval came through on 6 September 2022 and surgery was scheduled on 9 October 2022.
A one-page operation report[23] notes that a midline incision of the paraspinal muscle was undertaken and a right foraminotomy and right C6/7 rhizolysis was done. In his 2023 late report, Dr Darwish confirms that in this operation bone was excised in order to enlarge the foramen and provide clearance for the compromised nerve roots.
[23] Page 859 of the claimant’s bundle.

Radiology

An X-ray of the thoracolumbar spine was undertaken on 11 November 2014.[24] It reports that in the mid to lower thoracic spine there is mild multi-level disc space narrowing and end plate osteophytosis compatible with degenerative disc disease.
[24] Page 772 of the claimant’s bundle.
An MRI of the cervical spine on 16 July 2018[25] revealed multilevel spondylosis most pronounced at C5/6 where there was a bulging disc and severe bilateral exit foraminal stenosis with potential nerve root impingement. At C6/7 there was a posterior bulging disc with endplate spurring and mild central canal narrowing and mild to moderate left foraminal stenosis.
[25] Page 857 and 1050 of the claimant’s bundle.
A further MRI of the cervical spine was done on 20 April 2022[26] with the summary saying there was multilevel degenerative disc and bony disease. The C5/6 disc space was narrowed and there was posterior bulging with spurring of the endplates and uncovertebral joints causing narrowing and flattening of the spinal canal. There was significant encroachment of the left neural foramina and mild encroachment on the right. At C6/7 there was a narrowed disc and slight posterior bulging with bony spurring and some effacement and flattening of the thecal sac and mild encroachment of both foramina.
[26] Page 853 of the claimant’s bundle.
An MRI of the right shoulder was done on 21 April 2022[27] due to a history of pain. The report was of severe degenerative change in the acromioclavicular join with fraying and tearing of the ligaments.
[27] Page 855 of the claimant’s bundle.

Medico-legal reports

Dr Mendelsohn, general surgeon provided a report dated 10 May 2021 to the claimant’s solicitor.[28] He has a history of the claimant’s previous conditions and a car accident 40 years before which caused symptoms for a couple of years but eventual complete resolution of his symptoms “and no further trouble until the injury under discussion.”
[28] Page 199 of the insurer’s bundle.
The claimant complained of neck pain with driving and difficulty turning his head. He was taking Panadeine Forte at night. He had returned to work but was taking longer to do a job.
The claimant described pain in the back of his neck and in the right supraspinatus and trapezius and right shoulder blade region. There was pain in the left supraspinatus and trapezius. Dr Mendelsohn noted:
“He does not have any problems with radiation of pain to his arms or his hands and there is no numbness or pins and needles in either upper limb”.
On examination there was spasm and decreased range of cervical spine movements. Shoulder movements were full in all directions on both sides.
Dr Mendelsohn accepted that the accident had caused the disc bulge and aggravated degenerative changes which he said had been asymptomatic for 40 years. He assessed whole person impairment (WPI) at 6% (using the workers compensation guidelines) and found a Diagnostic Related Estimate (DRE) category II impairment of the neck which attracted a 5% WPI (which he reduced by 0.7% for a pre-existing impairment).
Dr Herald provided a report to the claimant’s solicitor dated 25 August 2021.[29] The claimant was said to be a self-employed painter running his own business operated by way of a company structure.
[29] Page 23 of the claimant’s bundle.
Dr Herald has a consistent history of the accident and that the ambulance, police and fire brigade attended (due to fluid leaking from the radiator of the insured vehicle). Mr Panepinto says he was shocked and developed neck and right shoulder pain as he drove home.
The claimant reported he went to the doctor a few days later and had investigations, treatment and was referred to Dr Darwish who advised surgery. The claimant did not have the surgery.
Dr Herald has a report of the claimant returning to work but at a reduced (30%) capacity.
He examined the claimant and did not note any neurological signs. He considered the radiology and diagnosed:
(a) aggravation of cervical spondylosis with C5/6 disc prolapse causing right C6 radiculopathic symptoms, and
(b) right shoulder impingement syndrome.
He thought the claimant might need cervical decompression surgery and fusion.
He considered the claimant had a 5% WPI (DRE II) in the neck and 4% shoulder impairment.
Dr Hyde Page, orthopaedic surgeon provided a report to the insurer dated 29 April 2022.[30]
[30] Page 572 of the insurer’s bundle.
He has a history of the claimant painting since he left school and that he used to have a team of painters but now works on his own working five days a week from 7.00am to 4.00pm. He drove a work vehicle and carried all of his material.
Dr Hyde Page has a consistent history of the accident, the onset of symptoms developing over the next few days and right-sided neck stiffness developing.
Dr Hyde Page says the claimant had six weeks off work after the accident then went back to painting slowly building up and “getting back to normal over a few months” working “satisfactorily up until the lockdown in early 2021.” He then cut back his work due to COVID restrictions.
The claimant complained of persistent right-sided neck pain radiating into the top of his shoulder worsened when he is painting and looking up. He reports “no problems with his shoulders and always maintained full movement in both shoulders.”
On examination, Dr Hyde Page found a full range of movement in the right shoulder. He diagnosed an aggravation of underlying severe degenerative disc disease at C5/6 with bilateral foraminal stenosis and compression of the right C6 nerve root. He refers to the accident 30 years previously and noted the initial injury from then had remained asymptomatic until the current accident. He says the aggravation continues.
While Dr Hyde Page says the injury is non-minor, he then says there is no evidence of a disc injury or true radiculopathy, and that Mr Panepinto has aggravated pre-existing changes. He assessed WPI at 5% (DRE II)
On 1 June 2022, Dr Hyde Page wrote a supplementary report correcting his mistake and confirming the injury to the neck was, in his view, a minor injury. He also changed his reference to the claimant’s neck being asymptomatic as he had been provided with the notes referring to the 8 May 2018 attendance and the claimant having physiotherapy and changed his opinion of WPI from 5% to 0% due to the pre-existing complaints. He did not consider the five-day gap from accident to first attendance on the doctor as significant and considered the clamant was likely to have some aggravation in any event which increased his pain and led to a period during which the claimant could not work.

RE-EXAMINATION FINDINGS

Mr Panepinto was re-assessed by Dr Cameron at Hornsby on 11 August 2023. He attended unaccompanied.

Background

Mr Panepinto confirmed that he was living at Harrington Park with his wife and 21-year-old daughter. His 25-year-old son has recently moved elsewhere.
Mr Panepinto was born in Australia but spent some of his childhood and his adolescence in Italy. He returned to Australia when he was aged 21 and has worked in Australia since then. Mr Panepinto said he has been a painter mainly for houses and shops since he was 15. He currently has his own painting business. He is a self-employed sole trader.
Mr Panepinto has a complex past medical history and Medical Assessor Cameron noted he found it difficult to provide specific dates for some of his health conditions. Mr Panepinto agreed that he had type 2 diabetes diagnosed a long time ago. He said he was 140kg at that stage. He recalled that he had gastric banding in about 2008. He had also had sleep apnoea diagnosed at that time. Mr Panepinto said that he had the gastric band removed because it was causing symptoms. After that procedure he had a sleeve gastrectomy in 2018. He thought that was before the motor accident, but he was not sure. The Panel notes it was in February 2018 before the car accident.
He said he had a right total hip replacement in about 2014.

History of injury

On 23 June 2018 Mr Panepinto said that he was driving his utility vehicle. He had provided a quote at work. He said it was Saturday. He said that he was waiting at a roundabout, and

he was hit from behind by another vehicle. That vehicle lifted the rear of his vehicle. Mr Panepinto said that he had a tow bar on the rear of his vehicle. He said this protected the chassis somewhat and his vehicle was later repaired.
Mr Panepinto said there was no ambulance in attendance and no hospitalisation. He first saw a doctor on 25 June 2018 which was the following Monday. He could not provide further details about this such as the name of the doctor or even the general address of the practice. He said he then attended his usual GP, Dr Pincombe on 30 June 2018. Dr Pincombe arranged an MRI of the cervical spine and that was performed on 16 July 2018.
Mr Panepinto said that he had neck pain from early after the accident which radiated towards the right shoulder region. He had no symptoms in his right arm or hand. He did not think that he had a specific injury to his right shoulder.
Mr Panepinto said he was referred to Dr Darwish by Dr Pincombe who advised surgery however because it was at the time of the COVID pandemic and he was unvaccinated, that there was a considerable delay to surgery. The surgery was eventually performed on 9 June 2022.
Mr Panepinto was unclear about when he was able to first work after the accident. He thought that he was off work in 2018 after his gastric sleeve surgery but he was not sure.
Mr Panepinto was taken to the GP record and the physiotherapy notes concerning the May 2018 attendances. Mr Panepinto said that he did not remember seeing a doctor or a physiotherapist for neck pain before the accident. He said that he had private health insurance and consulted a physiotherapist and massage therapist from time to time before the accident for aches and pains.
Mr Panepinto then said that he "stopped working for weeks or months after the accident" but he could not recall more specifically the dates he was off work. When it was suggested it could have been days, he said he was not sure.

Current status

Mr Panepinto said that he had neck pain felt at the back of his neck and pain which he indicated was in the right trapezial region but not over the shoulder. He was working as a painter but there is limited work, and he sets his own hours. Mr Panepinto also mentioned that he has some left hip pain which he said is unrelated to the accident.
Mr Panepinto’s current medications are Panadeine Forte and Panadol. He has a monthly Reandron injection for erectile dysfunction. His general practitioner is Dr Hanna and he is having physiotherapy about once a week. Mr Panepinto said that he attends the gym to try and increase his strength.

Examination

Mr Panepinto is 61 years of age, right-handed, 167cm in height and weighs 92kg which places him in the obese range on the body mass index.
At the cervical spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a posterior neck scar consistent with the history of surgery.
There was a full range of motion at both shoulders.
There was a full range of motion at other upper extremity joints.
In terms of the five signs of radiculopathy prescribed by the Guidelines in general there were no neurological signs:
(a)    all reflexes in the upper limbs were tested and were present and equal;
(b)    there were no positive nerve root tension signs on testing;
(c)    there was no muscle atrophy. Circumferences of the upper extremities were above elbow right 31cm and left 30cm and below elbow right 28cm and left 27cm. These differences are consistent with Mr Panepinto’s hand dominance and his occupation as a painter;
(d)    there was no muscle weakness in the forearm, upper arm or shoulder musculature in either the left or the right, and
(e)    there were no reproducible sensory changes on testing in either the left or the right upper limb.
There was a bony lump in an extensor tendon over the right second metacarpal which indicates an older injury or other health condition.
At the thoracic spine there was moderately and symmetrically reduced range of motion (to 60% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints present.

At the lumbar spine there was markedly and symmetrically reduced range of motion (to 50% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, and no non-verifiable radicular complaints present. Sciatic nerve root tension signs were negative.

There was a full range of motion at both knees. There was no crepitus or instability.
There was a full range of motion at other lower extremity joints.
There were no neurological abnormalities in the lower extremities.
No difference in circumferences of the lower extremities was detected.

Mr Panepinto walked with a normal gait.

Imaging

Imaging studies were brought to the examination.
An MRI of the cervical spine dated 16 July 2018 was requested by Dr Pincombe and is reported as showing disc bulges at C5/6 and C6/7 and "multilevel spondylosis most pronounced at C5/6 where there is severe bilateral exit foraminal stenosis with potential nerve root impingement". It was noted that this examination was performed approximately three and a half weeks after the accident.
There is a further MRI of the cervical spine requested by Dr Darwish performed on 19 April 2022. This is reported as showing similar levels of multilevel degenerative disc and bony disease.
There is an MRI of the right shoulder performed on 19 April 2022 at the request of Dr Darwish. It said there were degenerative changes at the acromioclavicular joint. It said that there was partial tearing of anterior fibres in the supraspinatus, also partial tearing of fibres in the subscapularis. There was also said to be a SLAP tear present.
Medical Assessor Cameron reviewed the imaging studies and agreed the contents of the reports of those imaging studies were accurate.

CONSIDERATION OF THE ISSUES

Is Mr Panepinto’s evidence reliable?

Mr Panepinto provided a clear history of the accident and his treatment after it. However, he found it difficult to be specific about dates and some details (such as his time off work and seeing a doctor two days after the accident).
It is now over five years since the accident, and it is unreasonable to expect Mr Panepinto to remember with precision everything that has happened before and after the accident. Due to his difficulty in remembering dates and events, the Panel will consider the documentary evidence carefully and look to it for clarification and confirmation of the evidence provided by Mr Panepinto.
While Mr Panepinto says he attended a doctor two days after the accident, he could not recall the name or the address of the practice he attended on that occasion. The Panel notes there are no records from Medicare, or a medical practice placed before the Panel to suggest that he did see a doctor. The Panel is not satisfied that he attended a doctor at that time.
The Panel notes the records of the claimant’s GP and physiotherapist from before the accident. On 7, 8, 14 and 21 May 2018, a month before his car accident, the claimant sought treatment for neck and shoulder / trapezius pain. Mr Panepinto did not remember this. His explanation in his statement was, that he may have had minor aches and pains due to his employment and that these attendances might be “a ‘tune up’ … after a hard period of work.”
The records confirm that the claimant had gastric sleeve surgery in February 2018, and Mr Panepinto was not certified fit for light duties until 18 May 2018. At the time he saw the doctor on 7 May 2018 and the physiotherapist after that, he had not, according to the documents submitted to Combined Insurance at the time, been working for three months. The Panel does not therefore accept his explanation for these four attendances for treatment to his neck and right shoulder and is satisfied that in the period four to six weeks before the accident, the claimant had an episode of neck and shoulder pain lasting two weeks are requiring four attendances at health practitioners.
Mr Panepinto told Medical Assessor Cameron he had weeks or months off work after the accident. But he was unclear about what time he did have off and when. Mr Panepinto’s history is not supported by the records from his GP in particular the certificate issued by Dr Pincombe which certified the claimant’s unfitness to work for only three days after the accident (Saturday 25 June, Sunday 26 June and Monday 27 June 2018).

What were the injuries caused by the accident?

Cervical spine – neck

The Panel notes the mechanism of the accident (a rear end collision) and the Medical Assessors are of the view that this mechanism could have resulted in a neck injury. One week after the accident Mr Panepinto attended his GP complaining of neck pain radiating to the right trapezial / shoulder region. Thereafter he has made consistent complaints of neck pain and had conservative treatment including physiotherapy.
The Panel notes the medico-legal evidence of Drs Mendelsohn, Herald and Hyde-Page. All are satisfied that the claimant did sustain an injury to his neck in the car accident which resulted in referred pain into the right trapezius and shoulder area.
The Panel has considered all of the medical evidence and the evidence from Mr Panepinto and is satisfied that the claimant did injure his neck in the accident and that this injury has caused referred pain in the region of the right shoulder.

Right shoulder

The Panel notes that there have been consistent complaints in the GP and physiotherapy notes of neck pain on the right side and into the trapezius / shoulder area. When questioned by Medical Assessor Cameron the claimant indicated his “shoulder” pain to be in the right trapezius area (that is closer to the neck) and not over the shoulder joint itself. The claimant did not think he had injured his actual shoulder in the accident.
The mechanism of the motor accident could cause the radiological findings and the tears in the right shoulder joint noting Mr Panepinto was a driver, holding on to the steering wheel and there was an impact and a reporting lifting-up of the vehicle.
However, the medical members of the Panel are not satisfied that the claimant did sustain a distinct and specific injury to the shoulder or the shoulder joint in this accident. If he had, the Panel would expect complaints of actual shoulder or shoulder joint pain and there were none. The Panel would also expect a restriction of shoulder movement which would not have been affected by the spinal surgery.
While the claimant does have radiological findings of tears in his right shoulder, he has considerable degenerative changes in his shoulder joint and osteoarthritis in other areas of his body (hips and knees). At the age of 61 and with more than a 40-year history of working as a house painter it is the clinical experience of the medical members of the Panel that the radiological findings, including the tears are consistent with long term degeneration of the joint and are not as a result of trauma.
The Panel also notes the Bounce Back records of October 2017 and May 2018 which suggests the claimant had previous complaints of pain and restriction of movement in the region of the right shoulder and trapezius area. This supports the Panel’s finding that the tears in the claimant’s right shoulder were pre-existing, degenerative and related to his occupation and were not caused by the accident.

Does the claimant have cervical radiculopathy?

Mr Panepinto injured his neck in the accident but none of the five signs of radiculopathy specified in the Guidelines were present when his cervical spine was examined by Medical Assessor Cameron.

Has the claimant had cervical radiculopathy at any time since the accident?

The claimant has complained consistently of neck pain with referred pain toward the shoulder. Referred pain is not one of the five signs of radiculopathy provided for in the Guidelines.
The claimant’s GP, on 30 June 2018, records normal power and sensation in the upper limbs. On 11 and 20 July 2018 the GP records no neurological symptoms in the arms or hands.
On 13 August 2018, Dr Darwish took a history from the claimant of radiating pain but no sensory or motor symptoms. When examined there was however some decreased sensation in the right forearm in a right C6 dermatomal pattern. This could suggest one of the five signs of radiculopathy was present at that time.
The discrepancy between the report from the claimant (of no sensory symptoms) and Dr Darwish finding decreased sensation is not easily reconciled particularly as the GP had no report or did not record any neurological symptoms on three separate occasions. In seven further letters from Dr Darwish to the claimant’s GP, there are only complaints of radiating pain and no further record of any signs of radiculopathy. On 17 June 2019 there was a report of paraesthesia in the right forearm.
The medical members of the Panel note that one of the signs of radiculopathy is “reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.” Paraesthesia is a term meaning an alteration of sensation. It is the clinical judgment of the medical members of the Panel that paraesthesia is a radicular symptom but lacks the precision and objectivity of the testing (reproduction) of an impairment of sensation. The medical members of the Panel are of the view that in the absence of a description of the tests Dr Darwish administered, and the results of those tests, the Panel cannot be satisfied that the finding of Dr Darwish of paraesthesia is a reliable indicator of a loss of sensation due to a nerve root injury.
On 10 May 2021, Dr Mendelsohn reported to the claimant’s solicitors that the claimant had no radiating pain in his arms or hands and no numbness or pins and needles in the upper limbs. Dr Mendelsohn did not find any of the five signs of radiculopathy when he examined the claimant.
Dr Herald on 25 August 2021 reported to the claimant’s solicitor that Mr Panepinto had radicular symptoms but none of the five signs of radiculopathy.
On 14 April 2022, more than three and a half years after the accident, the claimant attended Dr Darwish who recorded neck pain radiating to the upper limb with paraesthesia (altered sensation) in the right forearm and hand. The Panel repeats its observations about paraesthesia from paragraph 179 above. The Panel also notes Dr Darwish recorded for the first time, shooting pain and paraesthesia in the right hand.
Dr Darwish also reported, mild weakness in the right elbow and symmetrically depressed deep tendon reflexes. The Panel notes that no other examiner has until this time had any record of weakness or altered reflexes. Dr Darwish does not record whether the mild weakness in the right elbow was a complaint from the claimant or the result of testing by him and if so, what test was administered to verify it.
The medical members of the Panel also note that “depressed deep tendon reflexes” is a phrase that does not indicate that there was an impairment to the claimant’s reflexes but that his reflexes were present but difficult to elicit. This is likely to be due to his body habitus.
While the claimant has radicular symptoms, the Panel is not satisfied that the report of Dr Darwish is evidence of the claimant having two or more of the five signs of radiculopathy within the definition in the Guidelines.
At an examination on 20 April 2022, Dr Hyde Page for the insurer found radicular symptoms (shooting pain from the neck into the shoulder region but not the arm or the hand). He also found normal power (no weakness) and normal sensation (no paraesthesia and no sensory loss) in the upper limbs and no wasting of the muscles. He did find an absent right biceps reflex, and other reflexes were reduced bilaterally. A loss of the right biceps reflex would be one of the five signs of radiculopathy, but the claimant did not have two or more signs and therefore does not fulfil the requirement of “radiculopathy” as required by cl 5.8 of the Guidelines in an examination that complies with cl 5.6 of the Guidelines.
While the claimant may have had, at different times, two possible signs of radiculopathy (a loss or diminution of sensation reported by Dr Darwish in August 2018 and June 2019) and a loss of right biceps reflex reported by Dr Hyde Page in April 2022, he has not, at any time since the accident, had two or more signs of radiculopathy within the meaning of the Guidelines demonstrated at the same examination.
The Panel is satisfied that any spinal nerve injury the claimant may have sustained in the accident, it is a threshold injury due as the absence of two or more signs of radiculopathy.

Was the claimant’s cervical spine surgery accident related?

The claimant argued that if the surgery was related to the accident a finding of non-threshold injury would follow. Submissions were sought from the Panel as a result of the decision of the Medical Review Panel in Reed. That decision is not the subject of a judicial review challenge.
After receipt of the claimant’s submissions, the Panel has been made aware of the decision of Mandoukos v Allianz Australia Insurance Limited[31] where Chen J was considering whether an error had been made by a Medical Assessor when determining a medical dispute in circumstances where the claimant had cervical spinal surgery after a car accident. A diagnosis of soft tissue injuries on a background of degenerative changes in the spine had been made by the Medical Assessor and a finding of “minor” injury followed. While an argument was run in the Supreme Court that the surgery was a form of “consequential injury” which converted a minor or threshold injury to a non-minor or non-threshold injury and that this was not considered by the Medical Assessor, Justice Chen found no error in the Medical Assessor’s decision. In other words, this decision focuses a minor or threshold injury dispute on the actual injury that has been sustained and not the treatment that might flow from it.
[31] [2023] NSWSC 1023 (Mandoukos).
Leaving aside the decision of the court, the need for the surgery was, in the Medical Assessor’s view, caused by the claimant’s underlying degenerative spinal condition and not the injury caused by the accident for the following reasons:
(a)    having considered the whole of the medical records, in particular all of Dr Darwish’s reports and the medico-legal reports, it is the clinical judgment of the medical members of the Panel that the claimant sustained in the accident a soft tissue injury aggravating the extensive and pre-existing degenerative changes in his cervical spine;
(b)    having considered the MRI and imaging reports, it is the clinical judgment of the medical members of the Panel that the cause of the claimant’s radicular symptoms were the osteophytic bony growths and spurs at C5, C6 and C7. These are degenerative and are not caused by the accident. The disc bulges evident at C5/6 and C6/7 are posterior bulges and not causing nerve root impingement and the claimant’s symptoms found in April 2022;
(c)    it is also the clinical judgment of the medical members of the Panel that the reports indicate a progressive deterioration of the claimant’s cervical spine condition after the acute post-accident phase and in particular after May / August 2021 with the apparent emergence of more significant radicular symptoms in April 2022 when examined by Dr Darwish and Dr Hyde Page. It is not medically plausible for the April 2022 findings to have been caused by the soft tissue injuries and exacerbation caused by the accident, and
(d)    the Panel notes that the claimant continued to work as a house painter from June 2018 until April 2022. That work would have, in the Panel’s view caused further deterioration of the claimant’s pre-existing condition and further worsening of his pre-accident spinal condition and again suggests the reason for the surgery was not the soft tissue injuries caused by the accident.

Does the claimant have a complete or partial rupture of tissue in the cervical spine?

The claimant relies on the report of Dr Herald and submits that the claimant sustained a C5/6 disc prolapse in the accident and that the disc rupture and protrusion of nucleus material is a non-threshold injury. It is the clinical judgment of the medical members of the Panel that there is no prolapse in terms of the herniation of the disc and extrusion of disc material from the disc. The MRI scan of July 2018 reveal posterior disc bulges at C5/6 and C6/7. A bulging disc occurs when the nucleus pulposus at the centre of the disc moves from its normal position but remains within the disc structure contained by the annulus fibrosis.
While a disc herniation and the protrusion and extrusion of disc materials would be a non-threshold injury, it is the clinical judgment of the medical members of the Panel that there has been no complete or partial rupture of the annulus fibrosis at the C5/6 or C6/7 level of M Panepinto’s spine.
Even if the disc bulge is considered a partial rupture of tissue, the Panel notes that discs can bulge due to trauma but can also bulge as the disc dries out (desiccates) as part of the process which occurs with age.
For the reasons set out above the medical members of the panel are of the view that the claimant’s underlying degenerative spinal condition has continued to progress including further deterioration of the C5/6 disc.
The Panel is not satisfied that the motor accident of 23 June 2018 caused the complete or partial rupture of the annulus fibrosis of Mr Panepinto’s C5/6 or C6/7 disc.

CONCLUSION

The claimant submits he has an injury to the C5/6 disc and that this is a non-threshold injury. As set out above the Panel is not satisfied that any injury to the claimant’s C5/6 disc (or C6/7 disc) is a non-threshold injury caused by the accident.
The claimant submits he has, or has had, radiculopathy within the meaning of the Guidelines. The Panel has set out above its findings that the claimant did not have radiculopathy when examined by Medical Assessor Cameron on behalf of the Panel and has not had radiculopathy within the meaning of the Guidelines consequent upon the injury caused by the accident.
The claimant says he has had a spinal surgery to treat the injury caused by the accident and that on the basis of Reed, this is a non-threshold injury. The Panel notes the decision of Mandoukos which suggests surgery does not “convert” a threshold injury to a non-threshold injury, but in any event the Panel is not satisfied the need for surgery was caused by the accident.
The claimant says the tears including SLAP tears revealed in an April 2021 MRI are a partial rupture of tissue in the right shoulder and therefore are non-threshold injuries. The Panel is not satisfied that the claimant sustained a frank or specific injury to his right shoulder in the accident. Any shoulder symptoms the claimant is experiencing are, in the Panel’s view related to or referred from his neck injury. The Panel is of the view that the tears revealed in the MRI were not caused by the accident and there is therefore no issue of whether they are threshold injuries or not.
As the Panel has come to the same conclusion as Medical Assessor Wijetunga it follows therefore that her certificate must be affirmed. As the claimant pursued an additional argument (about surgery) not run before Medical Assessor Wijetunga, the Panel will, to avoid doubt, certify that all of the claimant’s injuries are threshold injuries.

[2023] NSWPICMP 592

15 November 2023