QBE Insurance (Australia) Limited v Foley
[2024] NSWPICMP 415
•27 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Foley [2024] NSWPICMP 415 |
| CLAIMANT: | Darron Foley |
| INSURER: | QBE |
| REVIEW PANEL | |
| MEMBER: | Maurice Castagnet |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 27 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant injured in motor accident when vehicle was rear-ended by insured vehicle; issues in dispute were threshold injuries and permanent impairment; re-examination by the Medical Review Panel; Medical Review Panel found injury to neck, cervical spine C7 fracture, injury to lumbar spine, and disc protrusion were non-threshold injuries; where the Medical Review Panel found that the injury to right shoulder, right trapezial muscle strain, was secondary to his whiplash injury with post-traumatic stiffness; Nguyen v Motor Accident Authority of New South Wales & Anor; Review Panel found a higher assessment of permanent impairment (14%) than the original assessment (5%); Held – original assessment of 5% permanent impairment revoked and new Medical Assessment Certificate issued. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The first issue determined by the Review Panel is whether the injuries caused by the motor accident are threshold injuries. 2. The second issue determined by the Review Panel is whether the degree of permanent impairment of the injured person as a result of the injuries caused by the motor accident is greater than 10%. Determinations 1. The Review Panel revokes the certificate of Medical Assessor Jonathan Herald dated 2. The Review Panel certifies that the following injuries caused by the motor accident: · cervical spine; and · lumbar spine, are NOT threshold injuries for the purposes of the Act. 3. The Review Panel certifies that the following injury caused by the motor accident: · right shoulder, is a threshold injury for the purposes of the Act. 4. The Review Panel determines that the following injuries caused by the motor accident give rise to a whole person impairment that is GREATER THAN 10% (14%): · cervical spine; · lumbar spine, and · right shoulder. |
STATEMENT OF REASONS
BACKGROUND
On 21 October 2021, the claimant, Darron Foley, was involved in a motor accident when his car was rear-ended by a vehicle insured by QBE.
As a result of the accident, the claimant claimed that he sustained injuries to his neck, back legs and both shoulders.
The insurer accepted liability to pay the claimant statutory benefits arising from his injuries, under the Motor Accident Injuries Act 2017 (the MAI Act), for the first 26 weeks.
On 11 January 2022, the insurer issued a further liability notice to the claimant accepting liability to continue payment of statutory benefits beyond 26 weeks on the basis that he has been assessed as having sustained “a non-minor injury”.
Statutory benefits by way of loss of earnings and treatment and care expenses, cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[1]
[1] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks.
The MAI Act was amended by the Motor Accident Injuries Amendment Act 2022 to provide that from 1 April 2023, the term “minor injury” is to be expressed as a “threshold injury” and “minor injuries” as “threshold injuries”. Accordingly, any reference in these reasons to a “minor injury” or “minor injuries” will be a reference taken from a document that existed prior to 1 April 2023.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
On 1 June 2022, the insurer issued a further liability notice to the claimant, withdrawing the non-minor (non-threshold) injury assessment. That decision was confirmed by the insurer following an internal review on 19 July 2022.
The claimant also pursued a claim for damages and to that end, made a request for the insurer to concede the permanent impairment threshold.
According to s 4.4 of the MAI Act, an injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[2] Section 4.4 of the MAI Act.
According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
The insurer did not concede that the claimant had suffered a whole person impairment (WPI) exceeding 10% for his injuries caused by the accident.
DISPUTES
Two disputes have therefore arisen between the parties as follows:
(a) firstly, whether the claimant’s physical injuries resulting from the accident were threshold injuries for the purposes of the MAI Act, and
(b) secondly, whether the degree of permanent impairment of the claimant’s physical injuries caused by the motor accident is greater than 10%.
To resolve the disputes the claimant made an application for medical assessments of the two matters by the Personal Injury Commission (Commission) pursuant to Division 7.5 of the MAI Act.
Schedule 2, cl 2 of the MAI Act provides both matters in dispute are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”[3] and “whether the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage)”.[4]
[3] Schedule 2, cl (e)of the MAI Act.
[4] Schedule 2, cl 2 (a) of the MAI Act.
Medical assessment matters are determined in accordance with Division 7.5. This means that the matters are determined at first instance by a Medical Assessor [5] and, pursuant to
s 7.26 of the MAI Act, on review by a review panel.[5] Section 7.20 of the MAI Act.
MEDICAL ASSESSMENT UNDER REVIEW
Both matters were referred at first instance to Medical Assessor Jonathan Herald for assessment.
On 2 June 2023, Medical Assessor Herald issued a certificate making the following findings:
“1. The injury ‘cervical spine C7 fracture’, caused by the motor accident, is a threshold injury for the purposes of the MAI Act.
2. The injury ‘L4/L5 disc disease’ with right L5 radiculopathic symptoms, caused by the motor accident, is not a threshold injury for the purposes of the MAI Act.
3. The injury ‘L4/L5 disc disease’ with right L5, radiculopathic symptoms, caused by the accident is a threshold injury and an assessment of the degree of permanent impairment is therefore not required.
4. The injury ‘Cervical Spine C7 fracture’ caused by the motor accident gives rise to a permanent impairment of 5% and is not greater than 10%.”[6]
[6] Pages 400-401 of the joint bundle. See paragraph 41 of these reasons.
In submissions made to the Panel by the claimant on 10 July 2023, it was submitted that due to an administrative error, the claimant’s right and left shoulder injuries were not referred to the Commission for assessment. The claimant therefore sought leave to include these injuries in the assessment before the Panel.
On 22 March 2024, the insurer informed the Commission that the insurer consents to the claimant’s alleged shoulder injuries being assessed by the Panel although the issue of causation remains in dispute.
Given the consensus on the issue by the parties and considering the guiding principle provided by s 42 of the Personal Injury Commission Act2020 (PIC Act) for the Commission to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings, the Panel has proceeded to assess the right and left shoulder injuries.
THE REVIEW APPLICATION
On 21 June 2023, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessment to a review panel for review. The application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the PIC Act, the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Margaret Gibson, Medical Assessor Drew Dixon and Member Maurice Castagnet (the Panel).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Pursuant to Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[9]
RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
[9] Section 7.26(6) of the MAI Act.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
The Motor Accident Guidelines
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on 1 December 2017 to 31 March 2023. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution.
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[10]
Causation of injury
[10] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[11]
[11] See s 3B(2) of the Civil Liability Act 2002.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context where the review panel was constituted by three Medical Assessors. Nevertheless, the observations provide useful guidance to the presently constituted Panel.
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury.
Also relevant to the issue of causation of threshold injury are the following observations made by Wright J in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of Injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and a non-medical informed judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MATERIAL BEFORE THE REVIEW PANEL
The parties filed a joint bundle of evidence (442 pages) which was of great assistance to the Panel in completing its determination in a cost-effective manner. The Panel considered all the documents provided by the parties.
INSURER’S SUBMISSIONS
The insurer’s submissions may be summarised as follows:
(a) looking at the certificate as a whole, the Medical Assessor appears to have incorrectly applied the meaning of “threshold injury” to his findings;
(b) in the insurer’s submissions, the correct application of “threshold injury” to the Medical Assessor’s findings is that the “Cervical spine C7 fracture” is not a threshold injury and that the injury – “L4/L5 disc disease” with right L5 radiculopathy symptoms is a threshold injury;
(c) however, the insurer submits that the Medical Assessor should have found that the injury ‘Cervical Spine C7 fracture’ was an avulsion fracture that was pre-existing. For this submission, the insurer relies on the report of Dr Antoun;
(d) by simply stating that “the cervical spine C7 fracture and the L4/5 disc prolapse and right leg L5 radiculopathy symptoms were caused by the accident”, the Medical Assessor has not properly addressed the issue of causation;
(e) the Medical Assessor has failed to consider whether the mechanism of the accident could have caused the injury to the cervical spine as alleged;
(f) the Medical Assessor has failed to conduct an assessment of whole person impairment of the lumbar spine based on the erroneous belief that he is not required to do so if he comes to the conclusion that the injury was a threshold injury;
(g) as to the right and left shoulder, the insurer draws the Panel’s attention to the pre-accident medical history outlined on page 396 of the joint bundle;
(h) the insurer disputes that the claimant sustained any injury to the right and left shoulders as a result of the motor accident. In the alternative, the insurer says that there is no evidence to suggest that the shoulder injuries are more than threshold injuries;
(i) in support of its contentions in paragraphs (g) and (h) above, the insurer draws the Panel’s attention to the evidence set out in paragraphs 17(a) to (h) of its submissions on page 397 of the joint bundle;
(j) the insurer submits that if there are any symptoms in the right and left shoulders, they are unrelated to the motor accident, and
(k) the insurer submits that the Panel would not be assisted by the report of Dr Bodel in the absence of any contemporaneous report of shoulder symptoms in the treating records. The insurer notes that when the claimant was examined by
Dr Bodel, he did not report any shoulder symptoms.
CLAIMANT’S SUBMISSIONS
The claimant’s submissions may be summarised as follows:
(a) the claimant also says that the Medical Assessor’s determination of the injury “Cervical Spine – C7 fracture” is in error because s 1.6 (2) of the MAI Act describes a fracture as a non-threshold injury, and
(b) the Medical Assessor’s determination is in error because it is not clear whether his determination of the injury – “L4/L5 disc disease with right L5 radiculopathic symptoms is a non-threshold injury or a threshold injury”.
EVIDENCE BEFORE THE PANEL
Pre-accident injuries or conditions
In a therapy session with physiotherapist, Jay Wildrick on 10 January 2022, the claimant reported that he had a “disc bulge in 2000” in the lower back “that was feeling similar to this”, after moving house.[12]
[12] Page 175 of the joint bundle.
The clinical records of general practitioner (GP), Dr Linda McTiernan of Hope Medical Centre a consultation on 9 May 2019 when the claimant reported an injury on 2 April 2019 to his left elbow when he stepped on the base plate of an unloaded trolley. He complained of pain around the elbow radiating to the left shoulder.[13] Subsequent consultations recorded the following:
(a) 3 June 2019: the claimant “thinks that he injured back muscles when twisted; pain around neck and shoulder”. [14]
(b) 30 December 2019 – claimant’s “back on track”.[15]
(c) 20 January 2020 – claimant back to work.[16]
(d) 12 May 2020 – bilateral knee pain; had left knee reconstruction in 2017; pain below right scapular; mild tenderness mid thoracic but to right; good range of movement in shoulder but causes pain in trapezius; for rest; voltaren.[17]
(e) 30 June 2020 – shoulder; had physio.[18]
(f) 1 July 2020 – complained of neck pain; shoulder pain – right; gradual onset; does a lot of lifting for work; pain actually coming from neck; general decrease range of movement especially extension; “diffuse tenderness over C spine. Right SCM right shoulder and right trap along sup edge of scapular; been having physiotherapy; initially improved then plateaued.[19]
(g) A certificate a capacity issued by Dr McTiernan on recorded the diagnosis of the work injury on 2 April 2019 as “soft tissue injury to left elbow; left shoulder and neck injury”.[20]
[13] Page 219 of the joint bundle.
[14] Page 223 of the joint bundle.
[15] Page 223 of the joint bundle.
[16] Page 223 of the joint bundle.
[17] Page 123-224 of the joint bundle.
[18] Page 227 of the joint bundle.
[19] Page 227 of the joint bundle.
[20] Page 281 of the joint bundle.
The claimant’s personal injury claim form
In his application for personal injury benefits dated 2 November 2021, the claimant described injuries in the following terms:
“Refer to attached medical record – neck + back pain.”[21]
[21] Page 191 of the joint bundle.
Post-accident medical records
The GP records of Hamilton Medical Centre recorded the following consultation notes, complaints, and observations:
(a) Consultation on 27 October 2021 – was involved in motor accident last Thursday; seen by after-hours doctor the next day; hit from the rear by another driver who did not stop; complaining of lower back pain radiating to right lower leg, also rotation of the trunk painful, “loco” bending down to the knee level with pain, stretching painful rotation of the “thorax + movements” – resulted in pain – will do x-ray to be assessed.[22]
(b) Telephone consultation on 29 October 2021 – results of X-ray discussed and wearing a soft collar for a few weeks suggested; otherwise reassured; X-rays of cervical spine was actioned.[23]
(c) Consultation on 1 November 2021 – work activities exacerbating his pain; should stop working and buy a collar, having remedial massage and taking Panadol or Nurofen; on examination, restriction and pain on rotation of the thoracic spine and neck – C7 area tender/painful to touch.[24]
(d) Consultation on 9 December 2021 – not wearing neck brace anymore, range of movement of the upper girdle and neck satisfactory today, still significant pain in the lower back.[25]
(e) Telephone consultation on 23 December 2021 – has exercise program at home; will see physiotherapist in the new year; cannot drive his truck.[26]
(f) Telephone consultation on 2 February 2022 – back and neck are still aching – lower back is worse – avulsion fracture C7 noted.[27]
(g) A report from GO, Dr Piotr Michalski dated 17 November 2021 recorded symptoms of lower back pain, neck pain radiating to the shoulder and restricted movements of the neck and thoracic spine. His diagnosis was recorded as “MVA-related soft tissue injury. Avulsion fracture C7 spinous process”.[28]
[22] Page 61 of the joint bundle.
[23] Page 61 of the joint bundle.
[24] Page 61 of the joint bundle.
[25] Page 62 of the joint bundle.
[26] Page 63 of the joint bundle.
[27] Pages 63-64 of the joint bundle.
[28] Page 92 of the joint bundle.
Radiological Investigations
An X-ray of the cervical and lumbar spine, performed Dr Jatin Thakur on 27 October 2021, reported the following findings:[29]
“There is normal height and alignment of the cervical vertebral bodies however there appears to be a small avulsion fracture fragment opposite the C7 spinous process and there are some soft tissue calcifications posteriorly in the neck opposite C3-C6 spinous processes. There is no compression fracture seen. There is no listhesis seen. There is mildly reduced C5-C6 intervertebral disc space consistent with some degenerative changes. The lumbar vertebral bodies and the intervertebral disc spaces are more or less maintained. There is no compression fracture or listhesis seen.”
[29] Page 300 of the joint bundle.
A CT scan of the lumbosacral spine, performed by the Hunter Imaging Group on
10 March 2022 reported the following findings:[30]
[30] Page 312 of the joint bundle.
“L4/5:
Mild loss of disc height. Small right paracentral disc extrusion extending into the right subarticular recess. This measures 8mm trans x 6mm AP x 12mm CC. There is mass effect on traversing right L5 nerve root. L4 nerve root exit normally. Mild right facet arthropathy.
L5/S1:
Narrowing of the posterior disc and mild broad based disc protrusion. No evidence of canal stenosis. Exiting and traversing nerve roots are unremarkable. Unilateral pars defect on the left. No associated spondylosithesis.”
An MRI of the lumbar spine performed by Dr Geraldine Long on 20 June 2023, reported the following findings: [31]
“L4/5: Early disc degeneration with mild annular bulge and subtle central posterior fissure. Canal and foramina of adequate calibre.
L5/S1: Disc generation with mild annual bulge and right paracentral annular fissure. There is also facet arthropathy with left sided pars defect. L5 foramina both mildly stenosed. Contained L5 nerve roots not compromised.Comment
Early L4/5 and L5/S1 disc degeneration with annular fissures. No signs of neural impingement.”[31] Page 46 of the joint bundle.
An ultrasound of the right shoulder performed by Dr Chris Moeskops on 19 March 2024 reported the following findings:[32]
“The supraspinatus tendon demonstrates partial thickness bursal surface tear in the mid tendon measuring 11mm longitudinal by 8mm transverse.
The subdeltoid bursa is thickened, consistent with bursitis. Impingement is present at 70 degrees.
The acromioclavicular joint is within normal limits for age.
Impression: There is a bursal surface tear in the supraspinatus tendon. There is subacromial bursitis causing impingement on abduction.”
[32] Page 32 of the joint bundle.
Physiotherapy records
The physiotherapy records of Hunter Allied Care recorded that the claimant attended 14 physiotherapy sessions with physiotherapist, Jay Wildrick during the period between
9 November 2021 and 24 January 2022.[33]
[33] Page 174 of the joint bundle.
The treatment notes show that treatment was to the neck and lower back regions. On
9 November 2021, it was recorded that the claimant complained of constant right side neck pain and tension associated with headaches. On examination, it was recorded that the right shoulder “EROMs” was tight.[34]
[34] Page 174 of the insurer’s bundle.
Dr Richard Ferch
The claimant was referred by his GP for further treatment by neurosurgeon and spinal surgeon, Dr Richard Ferch.
When Dr Ferch saw the claimant on 19 July 2022, Dr Ferch noted that the claimant was travelling at approximately 20kmph when he was struck by another vehicle, jarring his back. The accident precipitated low back pain, radiating into the right buttock and headaches with neck pain.[35] Dr Ferch recorded a diagnosis of “right L4/5 disc prolapse and right lower limb pain”.[36]
[35] Page 39 of the joint bundle.
[36] Page 39 of the joint bundle.
By 22 August 2023, Dr Ferch’s diagnosis was revised to “cervical spondylosis and right upper limb pain” and “lumbar spondylosis and right lower limb pain”.[37]
[37] See report dated 22 August 2023- page 59 of the joint bundle.
Dr Ferch noted that the claimant has been troubled by pain radiating diffusely across his neck around his right shoulder and into his shoulder blade as well as pain radiating down his arm, which was associated with a feeling of numbness and tingling in his entire hand, thumb and fingers. [38]
[38] Page 59 of the joint bundle.
On examination on 22 August 2023, Dr Ferch recorded tenderness on palpation over the (right) shoulder and passive movement of the shoulder caused pain. The internal rotation was limited which is suggestive of local shoulder pathology.[39]
[39] Page 59 of the joint bundle.
Medicolegal evidence
General practitioners, Dr S Perla and Dr Tony Antoun were qualified by the insurer to provide an opinion on whether the claimant had sustained threshold injuries in the motor accident.
In a joint report dated 28 February 2022, they recorded their diagnosis in the following terms:
“According to his GP, [the claimant] sustained an avulsion fracture of the C7 spinous process (neck) and a soft tissue of his lower back. There was no evidence of radiculopathy in relation to his neck and back.”[40]
[40] Page 306 of the joint bundle.
In a further report dated 25 May 2022, Dr Antoun indicated that he contacted Dr Jatin Thakur on 25 May 2022 to discuss the cervical and lumbar X-rays performed (by Dr Thakur) on
27 October 2021.[41] Dr Antoun recorded the following:
“Dr Thakur reviewed the cervical spine x-ray, in particular the reported C7 spinous process avulsion fracture. On detailed review Dr Thakur advised that the avulsion fracture was actual chronic in nature and long standing. Dr Thakur noted that there was soft calcification opposite of the spinous processes and considered this could also be a small soft tissue calcification rather a small avulsion fragment. Dr Thakur confirmed that the pathology reported was not acute and did not correlate with the recent claimed time frame. Dr Thakur advised he would organize an addendum report to confirm the findings.”[42]
[41] Page 308 of the joint bundle.
[42] Page 308 of the joint bundle.
The Panel notes that there is no evidence of such “addendum report” from Dr Thakar in the joint bundle of evidence that is before the Panel.
Orthopaedic surgeon, Dr Bodel was qualified by the claimant. He provided a report on
3 August 2022, following an assessment of the claimant on 25 May 2022.
Dr Bodel recorded that the claimant described the motor accident in the following terms:
“He was proceeding along a roadway. They were approaching a red light in the distance, and he was slowing down. The speed, I understand, in the area was about 80 kilometres an hour and he had slowed down to about 20 kilometres an hour as he was approaching the back of the stationary cars in front of him. He was still moving very slowly when suddenly he was hit from behind by another vehicle which he estimates was still travelling at about 70 kilometres an hour.
He had a fair space in front of him at the time of the accident and although he was pushed forward about a metre or so, he did not hit that car in front. He also states that the skid pattern of the car that hit him was about 4 metres long.
His vehicle was badly damaged. It was subsequently towed away and assessed as being beyond repair. The police and the ambulance did not attend.”[43]
[43] Page 22 of the joint bundle.
Dr Bodel recorded the claimant’s complaints as pain at the base of the neck and over the top of both shoulders; pain and stiffness in both shoulders that will wake him from sleep if he rolls on either shoulder at night, and pain in the lower part of the back with a burning sensation radiating down the back of the right left to the calf with associated numbness and tingling in the second, third and fourth toes.[44]
[44] Page 23 of the joint bundle.
Dr Bodel’s diagnosis was as follows:
(a) an avulsion fracture of the C7 spinous process;[45]
(b) a soft tissue musculoligamentous injury to the lower part of the back and possible disc injury at the L5/S1 level,[46] and
(c) minor rotator cuff pathology in the region of the shoulders.[47]
[45] Page 25 of the joint bundle.
[46] Page 25 of the joint bundle.
[47] Page 26 of the joint bundle.
Dr Bodel assessed the neck injury – avulsion fracture at C7 as a DRE Cervical Category II giving rise to a 5% WPI and the lumbar spine injury as DRE lumbosacral category II giving rise to a 5% WPI.
Dr Bodel assessed the recorded restriction of shoulder movement gave rise to 2% WPI each for the right and left upper extremity, resulting in a total of WPI of 14%.[48]
[48] Page 29 of the joint bundle.
RE-EXAMINATION
The claimant was examined by Medical Assessor Dixon on behalf of the Panel on
10 April 2024.
The motor accident and subsequent treatment
The claimant is 56 years old. On 21 October 2021, he was driving his V8 Commodore on Mapleton Road, Hexham when he was rear ended. His vehicle was lifted up by the tow bar and then dropped back onto the road and in the process, he sustained neck strain injury, a seat belt injury to his right shoulder and a low back strain injury. His right foot was heavily on the brake at the time of impact, and he felt pain in the right lower extremity, in the foot and subsequently in the buttock.
He estimated the other vehicle was travelling at approximately 70 kmph to 80 kmph. The seat collapsed from underneath him, and he was able to brake sufficiently to stop him hitting the car in front. He was able to self-extricate and his vehicle was badly damaged, towed away and written off. He did not require ambulance attention, but a friend took him home. He then attended a local GP complaining of neck, back and right leg pain with increasing sciatica. That GP unfortunately had to return to visit family in Poland, so he followed up with other GPs.
At the time he drove himself to John Hunter Hospital. X-rays were performed which showed a fracture of the C7 spinous process. A CT scan was performed which showed an L4/5 disc prolapse with low back pain and right sciatica.
He had physiotherapy for six months and was then prescribed Naproxen and Codeine. He had MRIs performed and had review by a spinal specialist.
Work history
He had one day off work after the motor accident. He then worked four days in pain and then stopped work for Coast 2 Coast as a truck driver. He was certified fit to return to his pre-injury duties on 8 June 2022. He then obtained work as a forklift driver and a driver for ANZ Stadium. He was also a truck driver for television work, driving equipment and arranging set ups for site movies. These were lighter duties.
Social history
He lives alone in a house with two dogs. He has great difficulty doing heavy household cleaning chores and repetitive tasks such as bed making, doing the garden and lawns and cleaning his car and with prolonged driving. He is unable to play sport. He has difficulty with recreational fishing due to right shoulder brachialgia.
Current symptoms
He reports persisting pain and stiffness in his neck with right shoulder brachialgia with trapezial muscle pain and right sided occipital headaches. He reports his neck pain disturbs his sleep and his neck pain and stiffness impact on his ability to drive, reverse park, change lanes and check the blind spots.
He reports pain and stiffness in his right shoulder with difficulty elevating the arm above shoulder height and difficulty doing overhead work at home and difficulty reaching objects on high shelves. He finds that when he uses his right arm above shoulder height, he has pain in the scapular region as well as the trapezius muscle. He has difficulty sleeping on the right shoulder.
He reports pain in his lower back with lumbar stiffness with right buttock sciatica and had intermittent paraesthesia in his lower extremities. He reports that he limps on the right due to buttock and thigh sciatica. He has a sitting tolerance of 45 minutes, a driving tolerance of up to one hour in an automatic vehicle, a standing tolerance of 20 minutes provided he moves about, and a walking tolerance of 30 minutes associated with a painful limp on the right.
Examination
On examination, he was 1.83 m tall and weighed 89kg.
There was stiffness of his cervical spine with flexion decreased by one quarter with pain on neck extension which was decreased by one half as was lateral rotation to the right and that to the left by one third. Lateral flexion was decreased by one third to the right and one half to the left with pulling of the right trapezius muscle. There was tenderness of the lower cervical spinous processes including the vertebra prominens and the mid and upper cervical facet joints on the right.
There was no tenderness of the right supraclavicular brachial plexus, but his Spurling’s test was positive, and his brachial plexus stretch test was positive. There was no neurological deficit of either upper limb. There was 1cm of wasting of his upper arm (he is right-handed). His reflexes were symmetrical and there were no sensory changes and his grip strength, intrinsic power and thenar power were grade 5 out of 5 and grip strength was grade 5 out of 5 bilaterally.
There was stiffness on elevation of his right shoulder with forward flexion 150 degrees, active abduction 140 degrees, extension 40 degrees, adduction 40 degrees, external rotation 80 degrees and internal rotation 60 degrees. There was tenderness of the trapezius muscle extending over the scapular region. There was no winging of the right scapula on resisted protraction. His shoulder girdle power on the right was grade 4 out of 5 compared with 5 out of 5 on the left.
There was a full range of motion of his left shoulder today.
There was stiffness of his lumbar segment with flexion decreased by one quarter with slow and jerky recovery with erector spinae muscle spasm with pain on back extension which was decreased by one half. Lateral flexion to the right was decreased by one quarter and that to the left by one third. There was tenderness at the L5 level in the mid line and the adjacent lumbosacral facet joints. His straight leg raise on the right was 60 degrees and associated with buttock and thigh sciatica and he had a positive sciatic nerve root stretch test. Straight leg raise on the left was 70 degrees. There was no wasting of either thigh measuring 51cm bilaterally, 10cm above the knee cap and 1cm of wasting of right leg below the knee, measuring 40cm and 41cm on the left. There were no objective sensory losses, and his power was grade 5 out of 5. His Babinski signs were negative.
He had a mild limp on the left on normal gait testing and a more marked limp on toe and heel walking and his squat test was associated with low back pain.
Threshold injury
X-ray of the cervical spine on 27 October 2021 showed a small avulsion fracture fragment of the C7 spinous process and soft tissue calcification posterior to the neck opposite the C3 to C6 spinous processes. There were no compression fractures seen. There was a mildly reduced C5/6 intervertebral disc space. The appearance is one of an avulsion fracture of the C7 spinous process which appeared recent. While there was soft tissue calcification in the neck at the C3 to C6 spinous processes, which was thought may represent pre-existing dystrophic calcific change, the finding at C7 was an avulsion fracture fragment. Medical Assessor Dixon has reviewed the X-Ray imaging. The Medical Assessors of the Panel are of the view that the avulsion fracture resulted from a severe flexion injury pulling on the ligamentum nuchae and pulling on the prominent part of the spinous process at C7, otherwise known as the vertebra prominens which was associated with his severe whiplash injury.
The CT scan of his lumbosacral spine on 10 March 2022 showed a small right paracentral disc extrusion extending to the sub-articular recess with mass effect traversing the right L5 nerve root with mild facet arthropathy. Together with this disc protrusion, there was a unilateral pars defect without associated spondylolisthesis.
The Medical Assessors of the Panel conclude that the avulsion of the spinous process of C7 and the low back strain injury with disc protrusion at L5/S1 with radicular complaint with right buttock and thigh sciatica are non-threshold injuries.
Diagnosis and findings
In summary, the claimant sustained a whiplash injury in the motor accident together with seat belt injury to the right shoulder and low back strain injury. His diagnoses are:
· whiplash injury to his neck with post traumatic stiffness with dysmetria and radicular complaint with right sided occipital headaches and right shoulder brachialgia with trapezial muscle pain with an avulsion fracture of the tip of C7 spinous process;
· right trapezial muscle strain secondary to his whiplash injury with post-traumatic stiffness of his right shoulder, and therefore assessable for impairment purposes in accordance with the principle in Nguyen v Motor Accident Authority of New South Wales and Anor,[49] and
· low back strain injury with post-traumatic stiffness with lumbosacral disc protrusion with radicular complaint with buttock and thigh sciatica with symmetrical reflexes and no sensory change and power grade 5 out of 5. There was no radiculopathy in the lower extremities.
[49] [2011] NSWSC 351.
There was no contemporaneous evidence of left shoulder injury. On examination, there were no left shoulder complaints and there was a full range of motion of the left shoulder. Accordingly, the Panel finds the claimant did not sustain injury to the left shoulder caused by the accident.
The Panel notes that the claimant had a neck strain injury when he was 8 years of age when he was bullied as a child. He had an old back injury in 2001 while lifting at work and this settled with physiotherapy and was asymptomatic at the time of the motor accident.
The Panel notes the claimant sustained a work-related injury to the left elbow in April 2019 and that as of July 2020, he was complaining of referred pain to the shoulder and neck. The claimant reported to the Medical Assessors that since that time, these regions were asymptomatic up to the time of the motor accident. There is no medical evidence before the Panel that shows any complaints or treatment to these regions after July 2020.
Clause 6.31 of the Guidelines requires a deduction of an impairment in the same region that existed before the motor accident if there is objective evidence of a pre-existing symptomatic permanent impairment in that region at the time of the accident. Based on the available evidence, the Panel is not satisfied that there is any objective evidence of symptomatic permanent impairment to either the cervical spine or right shoulder at the time of the motor accident to warrant any such deduction.
Permanent impairment
His impairment is permanent and is unlikely to change by more than 3%.
The impairment for the cervical spine where he has a whiplash injury with post-traumatic stiffness with dysmetria, radicular complaint with occipital headaches and fracture of the spinous process at C7 is from Table 73, Page 110, AMA IV, which equates to 5% WPI.
That for the right shoulder where he has post-traumatic stiffness with trapezial muscle and scapular pain following the seat belt injury in the motor accident is from Pie Charts 38, 41 and 44, Pages 43-45, AMA IV, 7% UEI, which equates to 4% WPI.
That for the lumbar spine where he has a known back strain injury with right buttock and thigh sciatica without radiculopathy with an L5/S1 disc protrusion is from Table 72, Page 110, AMA IV, DRE category II, which equates to 5% WPI.
This gives a total from the Combined Values Chart of 14% WPI.
He has reached maximum medical improvement (MMI). There were no symptomatic pre-existing conditions.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment was whether the injuries sustained in the motor accident were threshold or non-threshold as defined under the MAI Act and about whether the degree of permanent impairment as a result of the injuries caused by the motor accident is greater than 10%.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen[50] and Insurance Australia Ltd v Marsh.[51]
[50] [2021] NSWCA 287 at [40], [41] and [45].
[51] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination findings and conclusions of the Medical Assessors of the Panel.
The claimant’s injuries to the cervical spine and the lumbar spine caused by the motor accident are NOT threshold injuries for the purposes of the MAI Act.
The injury to the right shoulder- right trapezial muscle strain secondary to his whiplash injury with post-traumatic stiffness, is a threshold injury for the purposes of the MAI Act.
The degree of permanent impairment of the claimant as a result of the injuries to the cervical spine, lumbar spine and right shoulder caused by the accident is greater than 10% (14%).
CONCLUSION
The Review Panel revokes the certificate of Medical Assessor Jonathan Herald dated
2 June 2023 and issues a new certificate which is attached to these reasons.
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