QBE Insurance (Australia) Limited v Ali Ozucargil
[2024] NSWPICMP 375
•12 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Ozucargil [2024] NSWPICMP 375 |
| CLAIMANT: | Ali Ozucargil |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Clive Kenna |
| DATE OF DECISION: | 12 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26 of a threshold injury dispute; Medical Assessor (MA) McGrath had found the claimant had no cervical or lumbar radiculopathy, that injuries to the lumbar spine, thoracic spine, right and left shoulder were all soft tissue injuries; he also found the claimant had a joint capsule injury at C5/6 which involved the tearing of ligaments and cartilage; this finding was made without radiological findings but on the basis of a clinical finding of tenderness over C5/6; insurer challenged the MA’s causation findings and reasons; Held – the Panel was satisfied the accident could have caused injuries to the claimant’s neck, back and shoulders; the Panel considered there was no contemporaneous medical record of any injury until the claimant saw Dr Lim 12 weeks after the accident but the claimant did complete an online claim form, about a week after the accident; the Panel was satisfied that the claimant was injured in the accident; the Panel found no evidence of cervical, thoracic or lumbar radiculopathy in any record after the accident or when examined; the Panel found no evidence of the complete or partial rupture of any soft tissues in the claimant’s thoracic or lumbar spine or his shoulders; the Panel was not satisfied the claimant sustained a cervical spine joint capsule injury on the basis there was no radiology to support it; no evidence of laxity in ligaments; no spasms or referral of symptoms into the upper limbs; all injuries were threshold injuries; Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor McGrath dated 10 December 2023. 2. Certifies that Ali Ozucargil’s injuries caused by the motor accident on 26 September 2022 are threshold injuries for the purposes of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
Ali Ozucargil was involved in a motor accident on 26 September 2022. He says his car was side swiped by another car in a residential zone. Mr Ozucargil was 22 years of age at the time of the accident.
Mr Ozucargil says he injured his neck, middle and lower back as well as both of his shoulders in the accident, and he made a claim for statutory benefits with QBE, the third-party insurer of the vehicle that he says caused his accident.
A medical dispute about the nature of the claimant’s injury has arisen in connection with that claim and Mr Ozucargil referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 10 December 2023, Medical Assessor McGrath determined the claimant’s injuries were not threshold injuries.
The insurer then lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 29 February 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review and on 7 March 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review.
LEGISLATIVE FRAMEWORK
Jurisdiction
Mr Ozucargil’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident (for accidents like Mr Ozucargil’s that occurred before 1 April 2023) and the injured person cannot recover damages.
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 paragraph 10 above), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act.
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.
Radiculopathy is not an injury of itself, but is the consequence or symptom of a nerve root injury. If a person injured in the car accident sustains a spinal nerve injury, this is a threshold injury unless the particular nerve injury manifests in two of the five signs of radiculopathy.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the MAI Act.[1]
[1] The current version of the Guidelines I version 8.2 effective 8 April 2022.
The Guidelines relevantly provide as follows:
(a) diagnostic imaging is not necessary (cl 5.4);
(b) a diagnosis must be based on a clinical assessment undertaken by a medical practitioner or other suitably qualified person (cl 5.5);
(c) radiculopathy is defined adopting the wording provided in Part 6 of the Guidelines relevant to whole person impairment (cl 5.8). There must be two of the following five signs present on examination:
(i)loss or asymmetry of reflexes;
(ii)positive sciatic nerve root tension signs;
(iii)muscle atrophy and/or decreased limb circumference;
(iv)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(v)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The two cases of David v Allianz Australia Insurance Ltd[2] and Lynch v AAI Limited t/as AAMI[3] establish that whether the claimant has a threshold or non-threshold injury on the day of any re-examination by a panel is only one part of the assessment. The panels found in those two cases that if, at any time after the accident, the claimant’s accident-related injury falls outside the definition of “threshold injury” contained within s 1.6 of the MAI Act, the claimant must be found to have non-threshold injuries regardless of the state of the injury (healed, recovered, in remission) at the time the panel undertakes its assessment. The panel in Lynch gave the example of a simple fracture sustained in the accident that heals by the time of the assessment. The injury is a non-threshold injury even though the claimant may have recovered from it.
[2] 2021 NSWPICMP 227.
[3] 2022 NSWPICMP 6.
Therefore, a panel must not only determine whether the claimant has a threshold injury or not at the time of its review but must also conduct an evidence review to determine whether there is evidence that the claimant had a non-threshold injury which has now resolved or recovered.
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.[4]
[4] Schedule2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor McGrath’s, further medical assessments and the review of medical assessments by this Panel.[5]
[5] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
Medical Assessor McGrath examined the claimant on 29 November 2023 and issued his reasons on 10 December 2023. He confirmed at [2] he was referred cervical, thoracic and lumbar spine injuries and left and right shoulder injuries.
The cervical spine injury was described as and, “aggravation of previously asymptomatic spondylosis at C3/C4 with uncovertebral osteophytes bilaterally intervening to minor right and moderate left neural exit foraminal narrowing.” The other injuries were described as soft tissue, musculo-skeletal injuries causing restricted range of motion.
The claimant reported at [8] feeling immediate neck pain more on the left side (he said he was turning to the left at the time). The claimant said he drove his hire car back to the place he hired it from and was collected from there, went home took a Panadol and slept. He cancelled work the next day due to pain when driving.
At [9] the Medical Assessor records that the claimant saw a general practitioner (GP) a week after the accident who refused to see him as he did not want to take up and accident claim. Mr Ozucargil reported that he then saw Dr Dow who diagnosed a cervical strain and prescribed analgesics and then Dr Lim. He had a number of telehealth consultations with him and an MRI and one physiotherapy treatment.
The claimant described to Medical Assessor McGrath at [11] that his current symptoms were of lower neck pain spreading to the upper borders of his shoulders, which the Medical Assessor though could be characteristic of a C5/6 lesion. The claimant did not report symptoms in the knee, hips, thoracic or lumbar spine area and there was a full range of motion reported in those areas (see [13], [16] and [17]).
On examination of the cervical spine [14] there was some guarding, some dysmetria but no non-verifiable radicular complaints. The claimant was tender on the left side of the C5/6 joint “with an extension hinge or active movement fault”. Neurological examination was normal (normal deep tendon reflexes, power and sensation). There was equal restriction of motion in the shoulders due to pain [15].
Medical Assessor McGrath reviewed the documentation at [19] and at [20] noted the 20 December 2022 radiology report which showed “no acute sequelae of trauma” but the claimant did not bring the actual imaging studies with him so the Medical Assessor did not have the opportunity of viewing the films.
Medical Assessor McGrath diagnosed at [21] soft tissue injuries which had resolved to the lumbar spine, thoracic spine, right and left shoulder (see also [24]). In terms of the cervical spine, he diagnosed a C5/6 joint injury. As the claimant was asymptomatic before the accident, the Medical Assessor determined at [23] all injuries were caused by the accident.
He then said at [25]:
“…he has a ligamentous or capsular injury at [the C5/6] level supported by symptoms and signs and it may also invovle the articular surfaces.
On a probability basis and in my medical judgement, he satisfies the definition of non-minor from physical findings. That is, there are clinical findings of complete or partial rupture of tendons, ligaments, menisci or cartilage. Joint capsules and supporting inter-osseous ligaments are ligaments. The joint has a cartilaginous surface.”
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer’s submissions begin with an introduction and refer to [25] of the Medical Assessor’s decision and submits that:
(a) the assessor failed to identify the signs and symptoms to support his decision of a ligament or capsular injury and a ligament tear;
(b) he failed to justify how he differentiated a C5/6 injury as a possible sprain or tear;
(c) the Medical Assessor failed to explain the correlation between imaging and symptoms in circumstances where there is no radiology concerning the C5/6 level;
(d) he relies on an article as to the biomechanics of accidents and causation of C5/6 capsular ligament tears, and
(e) the Medical Assessor did not address the insurer’s argument about causation and the delay in symptoms.
Procedural matters
On 15 March 2024, the Panel issued directions to the parties. The Panel noted there had been no reply lodged by the claimant in answer to the insurer’s application for review and no documents submitted by the claimant. The claimant was directed to upload an indexed and paginated bundle of the documents he relied on in the assessment. The insurer was also directed to upload a bundle of documents.
The insurer provided its bundle of 43 pages on 2 April 2024. There was no response from the claimant. An officer of the Commission pursued the claimant’s response and was advised on 5 April 2024 the solicitor handling the matter had been absent on leave and requested an extension of time to comply with the Panel’s direction. The Panel rejected the application for an extension of time but determined it would issue further directions after the preliminary conference which would have the effect of giving the claimant additional time to comply with the directions.
On 11 April 2024 the Panel met to discuss the Review and on 12 April 2024 the Panel reported to the parties.
The Panel noted that five injuries were referred for assessment and that only one of them, the cervical spine injury, was found to be non-threshold. The claimant was asked to confirm whether he conceded that his shoulder, lumbar and thoracic injuries were threshold injuries and did not need to be re-assessed.
The Panel noted that, in respect of the neck injury, it would be considering:
(a) whether the claimant has a cervical spine nerve or nerve root injury and whether he has or has had any of the five signs of radiculopathy, and
(b) whether there is, at any part of the cervical spine, “the complete or partial rupture of tendons, ligaments, menisci or cartilage.”
The Panel requested an updated bundle from the insurer comprising documents from both parties due to the claimant’s failure to comply with the Panel’s directions. The Panel also directed the claimant to provide any other relevant documents not already provided and submissions in response to the matters contained in the Panel’s report. The claimant was directed to advise the details of the GP he attended the day of the accident and to produce records.
The insurer’s response
The insurer uploaded to the portal, on 29 April 2024, the bundle of documents comprising all of the material relied on by both parties. The insurer did not upload any additional submissions in response to the Panel’s report and directions document.
The claimant’s response
The claimant provided submissions and a bundle of documents on 6 May 2024. The claimant advises at [1] he relied on submissions from the original application dated 5 May 2023.
The claimant says at [3] he does not concede any of his injuries are threshold injuries and says that all five injuries assessed by Medical Assessor McGrath should be re-assessed.
The claimant then provides at [4]-[6] submissions which respond to the insurer’s application for review asserting there is no reasonable cause to suspect a material error in the assessment. As these are matters that should have been put to the President’s delegate, and the delegate has made the decision to allow the application, they do not greatly assist the Panel.
The claimant objected at [7] to the reports of Dr Nagesh and Antoun dated 13 February 2023 as they are not treating practitioners and had not examined the claimant. The claimant submits at [10] the report should be excluded or given no weight.
Finally, the claimant provided at [11] the details of the medical centre he attended after the accident (Mount Druitt Medical and Dental) and advises at [12] records have been requested and will be produced whether they are received.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claimant completed an online application for personal injury benefits (claim form) on 4 October 2022. He says the accident occurred when a car tried to “undertake” him on the left-hand side. He provides details of the at-fault vehicle. He gives no description of his injuries and says he was not treated by ambulance or at hospital. He describes his treatment as “heavy pain medications.”
The report of accident form completed by the other driver is relevant to liability and says that the claimant merged into the other driver’s lane. A statement from the insured driver has also been provided relevant to liability.
On 3 March 2023 the insurer wrote to the claimant advising him of the insurer’s attitude to liability and denying liability on the basis the claimant’s injuries were not threshold injuries.[6]
[6] Page 58 of the claimant’s bundle.
On 18 January 2024 an “amended liability notice” was issued by QBE.[7] While acknowledging the decision of Medical Assessor McGrath, liability remined denied on the basis QBE was of the view that the claimant was wholly or mostly at fault in respect of causing the accident.
[7] Page 61 of the claimant’s bundle.
The claimant relies on a statement dated 11 April 2023.[8] This relates only to the circumstances of the accident and is relevant to fault and does not assist the Panel.
[8] Page 67 of the claimant’s bundle.
The claimant has provided a number of photographs taken at the scene of the accident.
The claimant was driving a white Hyundai and the other vehicle was a dark coloured Subaru. The Hyundai has panel damage to the passenger side door panel and what appears to be more extensive damage to the rear passenger side door panel. The Subaru shows damage to the front right-hand side of the bumper, bonnet and driver’s side wheel arch although there is no clear side view.
The claimant has also provided a copy of the file from Suncorp related to the property damage claim made by the other driver. No submissions have been made about this document and a significant proportion of the pages relate to Chatbot communication about the progress of the claim. The cost of repairing the vehicle was said[9] to be $11,957.47 in labour and parts plus GST. The photographs of the vehicle show great damage to the front right-hand panel and bonnet as well as the bumper and over the wheel arch. Photographs show more minor damage to the claimant’s car.[10]
[9] Page 179 of the claimant’s bundle.
[10] Pages 210 and 211 of the claimant’s bundle.
Also on the Suncorp file were details of the cost of the repairs to the claimant’s car, $6,308.81 plus GST although there is another invoice in the sum of $3,141.49 which was sent to Suncorp with a letter of demand seeking payment of $2,844.90 plus the cost of hiring a replacement car.[11] Correspondence suggests the insurer’s resolved the claim and that Suncorp paid the claim made by the hire car company.
[11] Page 219 of the claimant’s bundle.
Treating records
In submissions dated 6 May 2024, the Panel was advised:
“The claimant instructs us that he attended upon Mt Druitt Medical & Dental centre after the subject accident, but the GP he saw on that occasion refused to assist the claimant as they did not deal with CTP claims.”
The insurer produced records from the Mt Druitt Medical and Dental Centre which commenced in 2016 with the following:
(a) 28 February 2016 – the claimant had a push bike accident with bruising all over his body and took someone’s Endone. He was prescribed Tramadol and referred for an x-ray which revealed an undisplaced facture of the medial malleolus;
(b) 22 January 2017 – the claimant attended for a knife wound sustained at work;
(c) 6 September 2017 – the claimant wanted sleeping pills as he was a night shift worker and student having difficulty sleeping;
(d) 23 October 2017 – lower back pain for two weeks was reported, and a CT scan referral given. It does not appear the scan was done as there is no further mention of back pain or report in the notes;
(e) 13 April 2018 – pain in his right leg for three weeks and Tramadol was prescribed;
(f) 17 July 2018 – the claimant complained of constant lower back ache for four weeks but with no radiation;
(g) 18 November 2018 – it is recorded that Mr Ozucargil came out of gaol two weeks before and was anxious and found it difficult to sleep – a mental health plan was formulated and Endep prescribed. On 27 November 2018 the claimant returned seeking a Centrelink medical certificate and said that the Endep was not helping, and he was having poor sleep and stress in crowds. He was prescribed Temazepam. On 17 December 2018 the claimant was still anxious and said the Temazepam did not help, and he was prescribed Avanza (antidepressant) instead;
(h) 29 January 2019 – the claimant fell from a roof and injured his right foot. This was X-rayed and no fracture was detected. He was prescribed Panadeine Forte. He was still in pain on 3 February 2019 and the Panadeine Forte was said to be not helping. The claimant attended again on 17 February 2019 reporting continuing pain and wanting to stay home from work and he asked for more Panadeine Forte. Brufen was given;
(i) 27 March 2021 the claimant attended for migraines and said normal Panadol was not working so he was given Panadeine Forte. Similar complaints were made on 23 and 29 April 2021, 12 June 2021, 21 October 2021, 6 November 2021, 21 December 2021 with further scripts of Panadeine Forte being prescribed, and
(j) on 26 February 2022 the claimant attended again for a flare up of the migraine and MRI of the brain was requested and Panadeine Forte prescribed. Further attendances for migraine and Panadeine Forte scripts occurred on 23 April, 6 June (the claimant had lost the referral for the MRI and another was given) and 13 July 2022.
There is no record of the claimant attending on or about the day of the accident. Mr Ozucargil next attends on 3 December 2022 for migraine and a specialist referral was given. There is no mention of the car accident or any symptoms the claimant may have been experiencing as a result of the accident.
Dr Lim of the workers doctors in Parramatta completed the first certificate of fitness and capacity dated 7 December 2022 which:
(a) diagnoses “cervical spine strain, bilateral shoulder strain, lumbar spine strain and PTSD”;
(b) indicates the claimant was first seen at the practice on 7 December 2022 and he had no pre-existing complaints noted;
(c) recommended simple analgesics and Panadeine Forte;
(d) gave referrals for physiotherapy, orthopaedic surgeon, spinal surgeon and psychological review, and
(e) said the claimant was not fit for any work from 16 December 2022 to 26 January 2023.
Dr Dickson issued the next certificate on 16 December 2023. A certificate of capacity dated 17 January 2023 was completed by Dr Siddiqui. Dr Kporku completed a Certificate of Capacity on 18 January 2023 and Dr Lim completed a Certificate of Capacity on 19 January 2023. They are all in similar terms.
Dr Dickson completed the next certificate dated 17 February 2023 in similar terms although the neck injury is now described as a “cervical spine aggravation.”
On 30 March 2023, Dr Oo issued a certificate in similar terms certifying the claimant had a partial capacity for work from 30 March to 12 May 2023 three hours a day two days a week. A certificate of capacity dated 3 May 2023 was in identical terms to the above signed by Dr Chao.
Dr Lim provided a report dated 7 December 2022. He notes this was the first time he consulted the claimant. He records complaints of disturbed sleep, frequent waking due to anxiety and pain, frequent nightmares and flashbacks. The claimant complained of frequent headaches, lack of appetite, neck pain worse on the right, shoulder pain worse on the right. There was limited neck and shoulder motion. He arranged radiology and recommended physiotherapy, psychological therapy and an MRI of the Cervical spine. He also diagnosed cervical shoulder and lumbar spine strains. Dr Lim says the claimant “takes Panadeine Forte.”
Dr Nagesh and Dr Antoun 13 February 2023 of the Medical Assist Network provided a report to the insurer. The report indicates the documents they have suggest the claimant’s airbags deployed, an ambulance was not called, he was not taken to hospital, but he has been referred to a psychologist with a diagnosis of post-traumatic stress disorder made. The Medical Assist Network rang the psychologist Mr Nielsen, who advised them in his view his client had a post-traumatic stress disorder and was fit for two hours of work a day for two days a week. The claimant has objected to this report on the basis that neither Dr Nagesh or Dr Antoun examined the claimant.
The claimant has provided a report from Carl Nielsen, psychologist to the claimant’s GP. As the Panel is not assessing the claimant’s psychological injury the report of Dr Nielsen and the reports of Dr Nagesh and Dr Antoun are of limited assistance to the Panel.
Dr Lim referred the claimant to a business called Social Therapy for “social support advice”. Their report dated 20 January 2023[12] says their testing indicated that “his biopsychosocial domains were impacted and would benefit from a biopsychosocial approach to support his recovery.” It was recommended he have an eight-week personal development program, 12 week social group program, transferable skills assessment and a return to the community such as in a course yet to be identified at a cost of $4,895.44. A further request for a modified program “community rehabilitation plan” was proposed on 6 March 2023.[13]
[12] Pages 62 and 114 of the insurer’s bundle.
[13] Page 133 of the insurer’s bundle.
An Allied Health Recovery Request (AHRR) was submitted on 24 February 2023 by Shuyang He Physiotherapist at the referral of Dr Dickson seeking eight sessions of physiotherapy. Ms He, wrote a report to Dr Dickson on 24 February 2023 referring to constant neck pain, left shoulder pain (with no referral symptoms), sharp pain on elevation and low back pain.
Radiology
An MRI of the cervical spine was done on 20 December 2022. The result was reported as “Minor spondylosis at C3/C4 with uncovertebral osteophytes bilaterally intervening to minor right and moderate left neural exit foraminal narrowing. No acute sequelae of trauma.”
Other assessments
Medical Assessor Chew examined the claimant and issued his decision on 5 October 2023. He was asked to assess the claimant’s alleged psychiatric injury of a post-traumatic stress disorder.
The claimant gave a history of living in shared accommodation, receiving Centrelink benefits and that a few years ago he had seen a psychologist for family issues.
He described the accident noting that he was driving at 50km, signalling to turn left when he was hit on the passenger side by another car. He felt pain in his shoulder and neck.
The fire brigade arrived but the claimant said he was able to drive from the scene.
The claimant told Medical Assessor Chew that he developed pain in his shoulder and neck after the accident and that he went to his doctor the next day, but the practice refused to see him because it was a car accident case. Two to three weeks later he saw another GP and said he was referred to a psychologist who he saw about six times and that he was prescribed fluoxetine but stopped taking it.
The claimant was asked about his current symptoms. He said he experienced pain, anxiety and difficulty going out. He did not offer “any specific intrusion symptoms”.
Medical Assessor Chew diagnosed an adjustment disorder and said, “he does not meet DSM criteria for PTSD.” As the regulation provides an adjustment disorder is a threshold injury, the claimant’s application failed.
The Panel understands the claimant has lodged an application for review of this decision, the application has been successful, but no Panel has yet been convened.
RE-EXAMINATION FINDINGS
Mr Ali Ozucargil was seen by Medical Assessor Kenna in the Commission’s medical suites on 16 May 2024 at 4.00pm. The following information has been provided by Medical Assessor Kenna.
History
Pre-accident medical history and relevant personal details
Mr Ozucargil is a 24-year-old male living alone. He is not currently working which he says is in part due to ongoing symptoms from the motor vehicle accident and also because he is a part-time student doing cyber security studies at TAFE. He is currently receiving Centrelink benefits.
He emigrated from Turkey in 2011 (accompanied by his parents). His father works in construction.
In previous employment, Mr Ozucargil worked as a manager of a restaurant and was also involved in real estate.
Mr Ozucargil said before the accident he was active in sport with no previous cervical or lumbar spinal pain, no previous shoulder pain and no history of motor vehicle accidents.
History of the motor accident
The accident occurred some 20 months ago on 26 September 2022 at approximately 12.00pm. He states he was the driver of car that he had hired. There were no passengers in the vehicle when his car was sideswiped on the left-hand side by another vehicle. Mr Ozucargil says that the other driver was at fault. This incident occurred when he was turning left into a street and the other car impacted him on the passenger side.
There was no loss of consciousness. Fire brigade did attend but not police nor ambulance. The car was driveable, and he drove the car back to the rental company. He was then picked up and subsequently taken home.
History of symptoms and treatment following the motor accident
Mr Ozucargil said he did not attend hospital after the accident but saw a GP in Mount Druitt approximately a week after the accident, but the GP did not want to become involved in third party claims and he was offered no treatment.
The claimant said he then saw a Dr Daw, GP who diagnosed a cervical strain, prescribed analgesics and who then referred him to Dr Lim. Dr Lim has a practice called The Workers Doctors in Parramatta where Dr Siddiqui and Dr Oo and others have seen the claimant and provided him with medical certificate. The claimant says he underwent an MRI of the cervical spine at the request of Dr Lim. Mr Ozucargil said he only received minimal physiotherapy on the basis that the insurer thought he was at fault in the accident.
Current symptoms
Mr Ozucargil states his main complaint relates to the cervical spine and he has pain which is predominantly left-sided. While the other parts of his body may be symptomatic from time to time, it is the cervical spine that concerns him the most.
Mr Ozucargil’s left-sided neck pain is not referred past the tip of the left shoulder, and he has no referred pain into either upper limb.
The claimant said there is some pain involving the mid-thoracic and lumbar spine, but no specific pain in the shoulder or any pain in his lower extremities.
Mr Ozucargil does acknowledge there has been improvement, and in his estimate overall he has improved about 60 percent.
Clinical examination
Mr Ozucargil sat comfortably throughout the history taking and was able to undress and sit on the examination couch and dress again with no difficulty.
Cervical spine (cervicothoracic)
The shoulders were level.
There was no muscle spasm over the left and right apophyseal pillar (particularly no muscle spasm present and no tissue reaction on ballottement over the left C5/6 apophyseal joint).
There were no trigger points involving the upper trapezius or levator scapulae.
Unlike in Medical Assessor McGrath’s assessment some five months earlier, there was no abnormality at the C5/6 level, no muscle guarding and no evidence of instability but there was a mild degree of asymmetry.
MOVEMENTS
RANGE EXHIBITED
Flexion
100% full
Extension
100% full
Rotation to the right
100% full
Rotation to the left
10% restriction
Lateral bending to the right
10% restriction
Lateral bending to the left
100% full
There were no neurological signs in the cervical spine and the results of the neurological testing are set out below.
Reflexes
REFLEX
LEFT
RIGHT
TRICEPS JERK
Normal
Normal
BICEPS JERK
Normal
Normal
BRACHIORADIALIS
Normal
Normal
Sensation
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
Muscle wasting or atrophy
On clinical examination there was no evidence of muscle wasting with the following limb circumference measurements recorded.
LEFT (cm)
RIGHT (cm)
UPPER ARM
27
27
FOREARM
25
25
Muscle power
All cervical spine levels were tested, and all motor power recorded at five out of five where five is active movement was achieved against gravity with full resistance.
LEVEL
MOTOR POWER
LEFT
RIGHT
C4
5/5
NORMAL
NORMAL
C5
5/5
NORMAL
NORMAL
C6
5/5
NORMAL
NORMAL
C7
5/5
NORMAL
NORMAL
C8
5/5
NORMAL
NORMAL
T1
5/5
NORMAL
NORMAL
Dural tension test
The following tests were administered to ascertain if there was any nerve root tension.
TEST
RIGHT
LEFT
PASSIVE NECK FLEXION
Normal
Normal
BRACHIAL PLEXUS STRETCH
Normal
Normal
Thoracic spine (thoracolumbar) examination
On inspection of the thoracic spine, posture was normal. There was no tenderness on palpation of the thoracic spine and no muscle guarding or spasm. There was no neurological deficit evident in either upper limb.
On formal examination of range of movement there was a full range recorded as follows:
MOVEMENT
RANGE OF MOTION
Flexion
100% full
Extension
100% full
Side bending to the right
100% full
Side bending to the left
100% full
Rotation to the left
100% full
Rotation to the right
100% full
Lumbar spine (lumbosacral)
There was no muscle guarding or spasm present, a full range of motion and no asymmetry present.
There was no complaint of any radiation or distal symptoms and therefore no indication of a non-verifiable radicular complaint.
On formal examination of range of movement there was a full range of movement in the lumbar spine as follows:
MOVEMENTS
RANGE EXHIBITED
Flexion
100% full
Extension
100% full
Rotation to the right
100% full
Rotation to the left
100% full
Lateral bending to the right
100% full
Lateral bending to the left
100% full
There was no neurological deficit evident in either lower limb noting the following test results.
Reflexes
REFLEX
LEFT
RIGHT
KNEE JERK
Normal
Normal
ANKLE JERK
Normal
Normal
Sensation
Normal.
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
Muscle wasting or atrophy
LEFT (cm)
RIGHT (cm)
THIGH (measured 10cm above the superior pole of the patella)
equal
equal
CALF
equal
equal
Muscle power
LEVEL
MOTOR POWER
LEFT
RIGHT
L3
5/5
NORMAL
NORMAL
L4
5/5
NORMAL
NORMAL
L5
5/5
NORMAL
NORMAL
S1
5/5
NORMAL
NORMAL
A score of five out of five is where there was active movement against gravity with full resistance.
Dural tension tests
TEST
RIGHT
LEFT
PRONE KNEE BEND
(Femoral nerve stretch)
Normal
Normal
STRAIGHT LEG RAISE
(Sciatic nerve stretch)
Normal
Normal
SLUMP
Normal
Normal
Shoulders
Inspection of the right shoulder was normal. Arc, resisted motion, and passive motion were pain free on the right. There was no abnormal tenderness. Impingement tests were negative.
Inspection of the left shoulder was normal. Arc, resisted motions, and passive motions were pain free on the left. There was no abnormal tenderness. Impingement tests were negative.
The following active range of motion measurements were taken with a goniometer.
Right shoulder
Left shoulder
Normal
Flexion
180°
180°
180°
Extension
50°
50°
50°
Adduction
50°
50°
50°
Abduction
180°
180°
180°
Internal Rotation
90°
90°
90°
External Rotation
90°
90°
90°
CONSIDERATION OF THE ISSUES
What injuries did the claimant sustain in the accident?
The claimant says in his claim form that he injured the following parts of his body:
(a) neck;
(b) right shoulder;
(c) left shoulder;
(d) thoracic spine, and
(e) lower back.
The insurer raises an issue of causation in respect of all of these injuries noting the claimant did not seek treatment for 12 weeks (until he saw Dr Lim).
The test to be applied and the question to be answered is whether Mr Ozucargil’s injuries “caused by the accident” are threshold or not threshold and the approach to that should be a consideration of a medical decision and a non-medical informed judgment as follows:
(a) could the accident have caused the injury alleged to be non-threshold (medical determination), and
(b) did the accident in fact cause the injury alleged to be non-threshold (non-medical determination).
The Panel notes the mechanics of the accident, a side swipe or sideways collision with the claimant travelling at 50kmph. The Panel has also considered the photographs of the two damaged cars and the property damage files. The Medical Assessors are of the view that in their clinical judgment the forces involved in this accident could have led to soft tissue injuries being sustained to the claimant’s neck, back and shoulders.
The question remains whether the accident did in fact cause the alleged injuries.
The claimant has given histories that he saw a GP at Mount Druitt either the day after the accident (Medical Assessor Chew) or in the week after the accident (Medical Assessor McGrath and Medical Assessor Kenna). The claimant has consistently said that this GP refused to see him because it was a motor accident case. The records of the claimant’s pre-accident GP at Mount Druitt practice do not disclose any attendance from the date of the accident until December 2022 and then not for any accident-related matter.
It is the clinical experience of the Medical Assessors that if the claimant attended a practice where he had been a regular patient for many years, complaining of symptoms following an injury it is highly unlikely there would not be a record of an attendance even if that practice did not deal with motor accident claims matters. The Medical Assessors note that it would be expected that the pre-accident GP would have seen the claimant, made a note of it and then referred the claimant on to another practice that did deal with motor accident claims.
Medical Assessor Home has a history of the claimant seeing his GP a week after the accident, then seeing a Dr Dow then Dr Lim. The claimant told Medical Assessor Kenna he saw a Dr Daw before he saw Dr Lim. The Panel has no record of the claimant attending a Dr Dow or Dr Daw. The Panel notes the names of one of the doctors who treated the claimant at Mount Druitt more than once is Dr Don.
The Panel does have records from Dr Lim, and these record a first attendance at his practice on 7 December 2012, 11 weeks after the accident. Thereafter the claimant has made consistent complaints and his injuries have been investigated.
The claimant did not identify in his claim form the name of any of his treatment providers but says he was prescribed “heavy pain killers”. There is no record before the Panel after the accident of any script from any doctor for “heavy pain killers” but evidence of the claimant being prescribed Panadeine Forte (which the Panel considers to be a “heavy” or pain killer for serious pain) many times before the accident from Doctors at the Mount Druitt practice.
The most contemporary record before the Panel is the online claim form submitted to the State Insurance Regulatory Authority on 4 October 2022 about a week after the accident. Although there is very limited information in that claim form this record does corroborate the claimant’s oral evidence of the accident and supports a finding that the claimant was injured. The Panel therefore accepts the claimant’s history of the accident and accepts that he injured his neck, thoracic and lumbar spine in that accident.
Does the claimant have cervical or lumbar radiculopathy?
The claimant did not have any of the five signs of cervical radiculopathy on examination by Medical Assessor Kenna. There was no loss of sensation, reflexes were present and equal, there was no sign of muscle atrophy and no loss of power or signs of weakness. There were no nerve root tension signs.
The claimant did not have any sign of thoracic or lumbar radiculopathy on examination by Medical Assessor Kenna. There was no loss of sensation, no abnormality of reflexes, no sign of muscle atrophy and no loss of muscle power or signs of weakness. There were no nerve root tension signs.
Has the claimant had at any time since the accident, cervical or lumbar radiculopathy?
There is no evidence in the medical records of the claimant having any signs of radiculopathy in any part of the spine. The Panel notes that the MRI of the claimant’s neck performed on 20 December 2022 was performed because of “neck pain with radicular symptoms” but radicular symptoms (such as guarding, dysmetria or shooting pain or tingling) are not a sign of radiculopathy provided for in the Guidelines.
The Panel has examined the records produced by the claimant and the insurer and is not satisfied that the claimant has had two or more of the five signs of cervical, thoracic or lumbar radiculopathy at any time since the accident.
Therefore, any spinal nerve or nerve root injury the claimant may have sustained in the accident is a soft tissue and therefore a threshold injury.
Has the claimant a complete or partial rupture of tendons ligaments menisci or cartilage?
The only radiology put before the Panel is an MRI from December 2022 which is normal apart from the C3/4 level where there is spondylosis with disc desiccation and uncovertebral osteophytes. The Medical Assessors note all of these are degenerative conditions or changes which may have been aggravated or rendered symptomatic by the accident, causing pain, but they were not caused by the accident.
There is no radiology identifying a complete or partial rupture of any of the soft tissues in the claimant’s shoulders.
There is no radiology identifying a complete or partial rupture of any of the soft tissues in the claimant’s thoracic or lumbar spine.
Does the claimant have a cervical spine joint capsule injury?
Joint capsules are the fibrous capsules that surround the facet or zygapophyseal joints of the spine. Medical Assessor McGrath diagnosed a joint capsule injury in his cervical spine and says the claimant has torn a joint capsule at C5/6 which is a non-threshold injury.
Medical Assessor McGrath had the MRI report, but the claimant did not bring the images so he could not view them. Medical Assessor McGrath made the diagnosis of a capsular injury on the basis of his clinical examination primarily because the claimant was focally tender over the left C5/6 articular pillar. He drew the conclusion that Mr Ozucargil had a ligamentous or capsular injury at that level. He found that joint capsules and supporting inter-osseous ligaments are “ligaments” and that the C5/6 facet joint “has a cartilaginous surface.”
Medical Assessor McGrath acknowledged the joint capsule injury was not confirmed by radiological investigation, but that it was his clinical judgment on palpation that it was a possibility.
The Panel also notes there was no clinical evidence of any segmental laxity or instability found by Medical Assessor McGrath. The Panel considers there was a lack of soft tissue signs reported that would indicate a degree of underlying pathology in the C5/6 joint capsule. The symptoms the Panel would expect would be the presence of muscle spasm, increased excessive joint mobility, and potentially a referral of symptoms involving the left upper limb. None of these were reported as present at Medical Assessor McGrath’s examination.
Medical Assessor McGrath had considered that the claimant appeared to have an extension hinge or active movement fault around C5/6 which is now his “pain pattern”. That pain was reproduced by Medical Assessor McGrath with full flexion and mostly extension and left lateral flexion. Some muscle guarding was observed.
The Panel notes the clinical records of Dr Lim do not disclose any particular C5/6 pain pattern.
At the time of Medical Assessor Kenna’s assessment, there was no evidence of an extension hinge or altered movement at the C5/6 level, and the pain pattern recorded on that occasion was indicative of localised symptomatology with no referral into the left upper extremity. In addition, pain was not reproduced with any specific movement and there was no muscle spasm over the C5/6 apophyseal joint.
While the Panel accepts that clinical findings can differ over time, the absence of earlier clinical findings by any doctor and an absence of focal tenderness over the left pillar at C5/6 in the most recent examination (by Medical Assessor Kenna for the Panel) suggests to the medical members of the Review Panel that there was no renting or tearing of cartilage or ligaments at the C5/6 level sustained in the accident.
Medical Assessor McGrath acknowledges that the diagnosis is conjectural (although a possibility) but is not based on any radiological study that could confirm a “tear or renting of tissue.” No imaging studies have been provided to the Panel indicating any such renting or tearing of soft tissue.
The claimant’s post-accident behaviour is also suggestive of there being no renting or tearing of soft tissue. If the claimant did have a joint capsule injury, the Panel would have expected immediate and significant symptoms of pain ongoing for a lengthy period and requiring immediate and continuing medical treatment. The records made available to the Panel do not reveal any medical attention was sought until December 2022, 12 weeks after the accident.
The Panel is not satisfied that the evidence establishes on the balance of probabilities that the claimant sustained a joint capsule injury in which the ligaments or cartilage at the C5/6 level or any level in the cervical spine were partially or completely torn.
CONCLUSION
The Panel is not satisfied that the claimant has sustained a non-threshold injury in his cervical spine, thoracic spine, lumbar spine, left shoulder or right shoulder.
As the Panel has come to a different conclusion from Medical Assessor McGrath it follows therefore that his certificate must be revoked.
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