QBE Insurance (Australia) Limited v Narcisi
[2023] NSWPICMP 252
•7 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Narcisi [2023] NSWPICMP 252 |
| CLAIMANT: | Alfio Narcisi |
| INSURER: | QBE Insurance Australia Ltd |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Mohammed Assem |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 7 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act2017; threshold injury for alleged pelvic fracture and right shoulder injury from motor bike injury in September 2020; claimant’s pelvis impacted petrol tank; symptoms post-accident consistent with fracture; initial symptoms of tenderness consistent with non-displaced fracture; Medical Assessor viewed scan and agreed with CT scan report by radiologist; right shoulder injured at football three weeks prior to the accident; pathology consistent with dislocation; no complaint of right shoulder pain at time of motor accident; any further dislocation would have resulted in immediate and severe pain; not satisfied that any right shoulder pathology caused by the motor accident; Held – claimant suffered non-threshold injury; original assessment confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury The Review Panel confirms the certificate dated 6 November 2022 and certifies that the fracture of the right inferior pubic rami caused by the motor accident is not a threshold injury for the purposes of the Motor Accident Injuries Act 2017. |
REASONS
BACKGROUND
Mr Alfio Narcisi (the claimant) sustained injury in a motor accident on 24 September 2020 whilst riding a motor bike when the insured vehicle came out from a side street causing a T-bone collision (the motor accident).
The claimant also suffered injury in a previous motor accident on 3 September 2019 whilst riding a motor bike when the insured vehicle made a U-turn colliding with the claimant’s bike (the earlier motor accident). NRMA is the insurer of the other vehicle for the earlier motor accident.
The insurer for the motor accident (QBE) is liable to pay to Mr Narcisi any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
It is the respective contention of the insurers that the fracture was sustained in the other motor accident when they were not liable. However, there was some confusion in the various submissions as the areas of the alleged fracture were different in the two motor accidents. In the earlier motor accident, there was a suggestion of a possible coccyx fracture whilst in the motor accident the CT scan suggested an undisplaced fracture of the pelvis.
We have issued separate reasons why we have concluded that the claimant did not sustain a coccyx fracture in the earlier motor accident. Those reasons, to the extent that they are relevant, are incorporated into these reasons.
The issues presently in dispute are whether Mr Narcisi’s physical injuries caused by the motor accident are a “threshold injury” within the meaning of the MAI Act.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
Medical Assessment
The medical disputes were referred to Medical Assessor Rosenthal who issued a Medical Assessment Certificate dated 6 November 2022 related to both the earlier motor accident and the motor accident (the medical assessment).
Medical Assessor Rosenthal found that the motor accident caused a pelvic fracture which was a non-minor injury. The Medical Assessor otherwise held that all other injuries sustained in either motor accident were minor injuries, or with respect to the right shoulder, not causatively related. The Medical Assessor’s reasons of the nature of the injuries caused by the earlier motor accident and the motor accident are set out in full.[2]
[2] Claimant’s bundle, p 168.
“Accident 1 - 3 September 2019
The documents confirm that there was an injury to the lumbar spine and coccyx and this is entirely consistent with the mechanism of the accident and the records of his General Practitioner and Northern Beaches Hospital. In regards to the disc bulges, these are common findings and were, in my view, pre-existing and unrelated to any trauma. The disc bulges are not part of his lumbar spine diagnosis which essentially was a soft tissue injury. The injury is classified as a ‘minor injury’ under the Act.
In regards to the coccygeal fracture, there appeared to be some doubt as to whether in fact there was a coccygeal fracture. The CT scan of the coccyx became a CT scan of the lumbosacral spine and it is not clear whether the sacrum and coccyx were scanned in the CT scan that occurred on 18 September 2019. A coccygeal fracture, at that time, remained unconfirmed. However, the later documents after the second accident appear to indicate that there may have been a coccygeal fracture present which was then determined to possibly relate to the first motor vehicle accident. Unfortunately, I was not able to see any of the clinical records from the Orthopaedic Outpatients and
Dr Isaacs, and am thus not able to confirm that there was a definite coccygeal fracture in relation to the first motor vehicle accident. Without this confirmation, this injury is classified as a minor injury under the Act and becomes a soft tissue injury to the coccyx.Accident 2 - 24 September 2020
Injuries to his lower back and pelvis are confirmed by the ambulance records and the records of Royal North Shore Hospital. The injury to the lumbar spine appears to have been a soft tissue injury. There is no evidence of any tear of a structure. The injury is classified as a minor injury under the Act.
There was a reported injury to the inferior pubic ramus reported as a fracture but subsequently disputed as to whether this was an old or new condition. Based on the available documentation, it is not clear that a fracture has been discounted. Mr Narcisi was treated for a fracture of the inferior pubic ramus following the accident, but there is certainly no evidence of any pre-existing fracture in the pelvis, the pelvis having been x-rayed following the 2019 accident.
Based on all of the available documents, it is my view that there was a fracture of the inferior pubic ramus which was consistent with the motor vehicle accident, the ambulance records and the hospital records. This was a fracture related to the 2020 motor vehicle accident. His symptoms and clinical signs were consistent with a pubic ramus fracture. This injury is thus determined to be a non-minor injury under the Act.
In regards to the right shoulder condition, there is no contemporaneous evidence that he injured his right shoulder in the 2020 motor vehicle accident. There is evidence that there was a shoulder injury from playing soccer two or three weeks prior to that accident and the changes seen on the MRI are consistent with an anterior dislocation. Had this occurred in the subject accident, there would have been an immediate complaint of pain and some objective evidence that there was an injury to the right shoulder when he presented to the ambulance and to the hospital. The report one month later to his GP of right shoulder pain, in my view, is consistent with his pre-existing condition and the objective evidence of the tear and changes seen on the MRI, in my view, are related to the pre-existing soccer injury and not due to the subject accident.”
Amendment to legislation
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2023 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52 week limitation period.
The assessment by the Medical Assessor and the parties’ submissions were made prior to 1 April 2023 when the correct term was “minor injury”. Accordingly, the term “minor injury” and “threshold injury” are used in this assessment interchangeably as it reflects the relevant wording at the time of the submission and/or the medical assessment.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by QBE within 28 days. That review related to the findings of non-minor injury suffered in the motor accident. The claimant filed an application for review in respect of the finding of minor injury caused by the earlier motor accident.
The President’s delegate referred the dispute to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The review provisions provide[4] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[4] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
All parties were advised that both medical disputes would be heard together and the evidence in one would be evidence in the other. There was no objection to that course.
All parties filed bundles of documents for the Panel’s consideration.
The Panel issued a further direction in the following terms:
“The Panel directs any party to provide the actual scans/x-rays of the coccyx
(September 2019) and/or pelvis (September 2020) to the Commission if they are otherwise within their possession.
The Panel is of the clear view (with or without to the provision of the actual scans/x-rays) that the threshold injury disputes can be determined on the papers as there is no utility in a present examination.
The parties are to advise the Commission by close of business, 14 April 2023 of a response to the above matters.”The parties subsequently provided access for the Panel to view the scans.
On 9 May 2023 the Panel issued the following direction:
“The Panel advises the parties that it is unable to open the software to view the scans.
We remain of the view that the medical disputes can be determined on the papers having provided the parties with a reasonable opportunity of forwarding viewable scans to the Panel.
The parties have until close of business, 14 May 2023 of providing the Panel with an appropriate means of viewing the scans. Absent any communication of an alternative course of access to the actual scans, the Panel will then deliver its Reason in both matters.”
The solicitors for QBE assisted the Panel by subsequently providing a further digital copy of the scans for the motor accident. The Panel confirms that a Medical Assessor was able to view those scans.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a 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)”.
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 or after 1 December 2017. 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 threshold 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.[8]
[8] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[9]
SUBMISSIONS
Claimant’s submissions dated 6 December 2022[10]
[9] See s 3B(2) of the Civil Liability Act 2002.
[10] Claimant’s bundle, p 149.
These submissions were filed seeking to review the medical assessment which found that the injuries caused by the earlier motor accident were minor injuries.
The claimant referred to the certificates of capacity by Dr Lowe dated 9 September 2019 and 11 October 2019 which diagnosed “coccygeal fracture”.
The claimant submitted that the determination of whether a fracture had been sustained does not require “scientific certainty” and is decided on the balance of probabilities citing Briggs v IAG Ltd[11] and Metro North Hospital and Health Service v Pierce.[12] It was submitted that the Medical Assessor did not determine the question of the nature of the injury on the correct test.
Claimant’s submissions dated 17 January 2023[13]
[11] [2022] NSWSC 372 at [69].
[12] [2018] NSWCA 11 at [138].
[13] Claimant’s bundle, p 11.
These submissions were filed opposing the review filed by QBE.
The claimant submitted that there was “no clinical material which would support an assertion that the injury to the Claimant’s pelvis could have been caused by the prior motor accident on 3 September 2019”.
The claimant referred to the discharge referral dated 4 September 2019 which did not reference symptoms in the pelvic region and noted no sign of external injuries in the pelvis.
The claimant referred to the ambulance record dated 24 September 2020 which noted an impact to the pelvis and the claimant complaining of pelvic pain. This is contrasted with the ambulance record for the earlier motor accident.
The claimant referred to the contrasting hospital notes for the respective motor accidents and submitted that the Medical Assessor’s reasons were clear.
NRMA internal review dated 31 March 2021[14]
[14] NRMA bundle, p 13.
NRMA note that whilst there was an initial assumption of a coccyx fracture sustained in the earlier motor accident, there is no available evidence to confirm it. The available medical evidence confirmed a soft tissue injury to the lumbar spine.
NRMA submissions undated[15]
[15] NRMA bundle, p 207.
NRMA submitted that the radiologist investigations did not confirm that the earlier motor accident caused a coccyx fracture. It otherwise suggested that it may obtain a report from Dr Korber.
NRMA submissions dated 10 January 2023[16]
[16] NRMA bundle, p 209.
NRMA submitted that it was open to the Medical Assessor to find that the earlier motor accident only caused minor injuries.
QBE internal review dated 22 March 2021[17]
[17] Claimant’s bundle, p 199.
QBE referred to the note of Dr Maher on 25 September 2020 that there was no soft tissue swelling adjacent to the pubic irregularity shown on the CT scan and that it may be “long standing and not an acute fracture”.
QBE referred to the absence of right shoulder complaint to the health practitioners following the motor accident until 22 October 2020 when it was noted by Dr Shi.
QBE noted the absence of history provided to Dr Chia, shoulder surgeon, of a prior right shoulder injury sustained at soccer three weeks before the motor accident.
QBE submissions dated 18 November 2021[18]
[18] QBE bundle, p 3.
QBE referred to the certificates of capacity dated 4 and 9 September 2019 and
10 October 2019 which diagnosed the claimant with a coccygeal fracture. It also referred to the history obtained from Dr Lee that there was a right shoulder injury three weeks prior to the motor accident.QBE submitted that there was an absence of reference to right shoulder injury in the ambulance report and hospital notes for the motor accident. The clinical examination in the Benchmark rehabilitation report noted full range of motion. The MRI scan findings for the right shoulder were consistent with a “previous dislocation”.
Dr Antoun opined that if any dislocation occurred in the motor accident, then this would have given rise to significant pain.
QBE referred to Dr Maher’s review of the CT scan on 25 September 2020 noting “no soft tissue swelling” and Dr Keighley’s note on 8 October 2020 and the conclusion by the doctor support program dated 26 April 2021 that there was no fracture.
QBE submitted that there was “no evidence” that the motor accident caused a fracture and that it was otherwise “an old fracture”.
QBE also submitted that the claimant sustained a soft tissue injury of the low back.
QBE submissions dated 6 December 2022[19]
[19] QBE bundle, p 3.
QBE noted that the CT scan in September 2019 “focused on the lumbar spine rather than the pelvis”. It referred to repeated notes by Dr Lowe that there was a fractured coccyx.
QBE referred to the hospital discharge notes on 25 September 2020. It submitted that there was an absence of objective evidence of injury and submitted:
“[T]he absence of soft tissue swelling which would indicate a fracture sustained one day prior – is not capable of supporting the conclusion a pelvic fracture was in fact suffered in the subject accident.”
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
There are no relevant medical conditions prior to the earlier motor accident. Our findings of what injuries were sustained in the earlier motor accident are set out in the other reasons.
Medical records
The police report for the earlier motor accident notes that the driver and the insured exchanged details and left the scene. The claimant began experiencing severe pain later that evening and attended Northern Beaches hospital.[20]
[20] NRMA bundle, p 33.
The hospital discharge summary dated 4 September 2019 provides:[21]
“Thank you for your ongoing care of Alfio. He presented 4 hours post-MVA. – T-boned by incoming car (10km/hr) while on his motorbike (20km/hr). The car caught his R) leg and he fell to his left side. He suffered from pain to R) zygomatic bone + lower back pain, but denied C-spine tenderness. He retained full ROM of his neck. Denied haematuria post-accident, denied PR bleeding.”
[21] Claimant’s bundle, p 19.
The X-ray of the pelvis and lumbosacral spine dated 4 September 2019 noted normal alignment and no fracture of the spine. In relation to the coccyx, Dr Richard opined:[22]
“Suboptimal visualisation of the lower sacrum/coccyx. Questionable transverse lucent lines at the proximal coccyx which may represent fracture. CT scan is advised for more clarification.”
[22] NRMA bundle, p 72.
The summary of injuries noted “no signs of external injuries” for the pelvis. The discharge summary also noted:
“His CT head, CXR, XR pelvis, XR lumbar spine were all normal.”
A certificate of capacity completed by Dr Michael Lowe dated 4 September 2019 stated that the claimant sustained a coccygeal fracture caused by the motor accident.[23] The certificate dated 11 September 2019 repeated this diagnosis and added “lower back pain”.[24]
[23] Claimant’s bundle, p 153.
[24] Claimant’s bundle, p 156.
On 4 September 2019 Dr Lowe referred the claimant for physiotherapy to manage lower sacral and coccygeal pain.[25]
[25] QBE bundle, p 26.
The claim form completed by the claimant on 4 September 2019 referred to a “tail bone fracture”.[26]
[26] NRMA bundle, p 22.
The physiotherapy record on 6 September 2019 reported that the claimant was “non tender on coccyx”.[27]
[27] NRMA bundle, p 433.
Dr Lowe’s clinical note of 11 September 2019 noted the X-ray report which provided:[28]
“X-ray report (verbal NBH), translucency proximal coccyx ? may represent #, recommend CT to further assess.”
[28] Claimant’s bundle, p 376.
A CT scan of the lumbosacral spine dated 18 September 2019 noted a history of persistent right sided lumbar back pain and “presumed coccygeal fracture”.[29] The scan showed no acute fracture, normal alignment, and “mild diffuse disc bulges at L4/L5 and L5/S1 not causing significant canal or foraminal narrowing”.
[29] Claimant’s bundle, p 397.
On 26 September 2019 an Allied health recovery request provided a diagnosis of a coccygeal fracture and L4/5S1 disc bulge.[30]
[30] NRMA bundle, p 437.
By letter dated 3 October 2019 the physiotherapist noted the claimant had improved with decrease in pain, increase in lumbar range of motion and occasional flareups with activity such as soccer.[31]
[31] NRMA bundle, p 73.
On 10 October 2019 the general practitioner (GP) noted the claimant had returned to work on light duties.[32] The certificate of that day noted coccygeal fracture and low back pain and certified ongoing partial incapacity.[33]
[32] Claimant’s bundle, p 377.
[33] QBE bundle, p 42.
On 9 January 2020 the physiotherapist reported that the claimant was working at full capacity with occasional low back stiffness.[34]
[34] NRMA bundle, p 245.
On 20 January 2020 the GP recorded that the claimant had “recovered” and was working as a mechanic.[35]
[35] Claimant’s bundle, p 377.
The ambulance report for the motor accident dated 24 September 2020 provides:[36]
“C/T 1C Motor cyclist v car O/A Pt sitting on bench on the side of the road O/E Pt alert and orientated, well perfused Pt states riding motor bike approx. 35 km/hr when a car came out of a side street Pt hit brakes but T boned car and fell off to the side Pt states pelvis hit petrol tank Pt was ambulant prior to ambulance arrival but with pain to his anterior pelvis and lower back Pt wearing helmet, No significant damage to helmet, minor scratch No LOC, NO C spine tenderness Nil motor or sensory loss … Pelvic splinting insitu.”
[36] Claimant’s bundle, p 23.
The initial assessment at hospital on 24 September 2020 recorded a T-bone accident at approximately 30 - 35km per hour, hit pelvis on petrol tank, able to walk away from scene but complained of pelvic and lower back pain since.[37]
[37] Claimant’s bundle, p 119.
The CT scan of the pelvis dated 24 September 2020 is described as a provisional report and states:[38]
“There is cortical irregularity involving the right inferior pubic ramus, in keeping with a non-displaced fracture.”
[38] Claimant’s bundle, p 118.
The hospital discharge referral notes dated 25 September 2020 refer to the motor accident with complaints of pain to the lumbar spine and pelvis with a previous coccygeal injury in 2019.[39] The impression was that the claimant sustained a right inferior pubic fracture based on the CT scan. The X-ray did not identify an acute fracture, but the CT scan showed a “non displaced fracture on right inferior pubic rami”.[40]
[39] Claimant’s bundle, p 115.
[40] QBE bundle, p 53.
Further progress notes of Royal North Shore Hospital dated 25 September 2020 provided:[41]
“Noted CT amendment re the absence of soft tissue swelling around inferior ramus # ? old
Attempted to contact patient - voicemail left advising of the above
Given the ongoing R groin discomfort from the notes this may be new or a re-injury of a previous injury.”
[41] QBE bundle, p 57.
A certificate of capacity dated 6 October 2020 completed by Dr Shi referred to “right groin pain after MVA”.[42]
[42] QBE bundle, p 58.
The claim form dated 6 October 2020 refers to the claimant suffering a pelvic fracture, sore lower back and shoulder pain in the motor accident.[43] No prior illnesses were noted in that claim form.
[43] Claimant’s bundle, p 192.
The claimant attended the hospital outpatient unit on 8 October 2020 when he was certified unfit for work from 24 September to 21 October 2020.[44]
[44] QBE bundle, p 61.
Dr Lee, GP, noted on 22 October 2020 that the claimant had “persistent pain right shoulder and back” and was still tender over the pubic ramus which was “improving”.[45] The certificate completed by Dr Lee on 22 October 2020 referred to “soft tissue injury right shoulder, lumbar spine, fracture right pubic ramus”.[46]
[45] Claimant’s bundle, p 378.
[46] QBE bundle, p 62.
Physiotherapy commenced on 26 October 2020 for the fracture of the right pubic ramus and right shoulder with the observation that there was “no improvement with either”.[47]
[47] NRMA bundle, p 116.
Allied health recovery request dated 30 October 2020 referred to soft tissue injury right shoulder – possible labral tear, low back discogenic pain and fracture to right pubic ramus.[48]
[48] QBE bundle, p 65.
On 5 November 2020 the physiotherapist noted the right hip was “feeling good” and that the claimant didn’t feel his right hip after a “little kick at the park”.[49]
[49] NRMA bundle, p 114.
On 9 November 2020 Dr Lee noted there was general improvement with right shoulder and lower back with near full range of movement and tenderness anterior of the right shoulder.[50] A certificate was again issued.[51]
[50] Claimant’s bundle, p 378.
[51] QBE bundle, p 69.
Dr Lee’s clinical note dated 16 November 2020 recorded that Dr Wijetunga had called described as “occupational physician via insurer” and wished to discuss injury and progress.[52]
[52] Claimant’s bundle, p 379.
An MRI scan of the right shoulder dated 27 November 2020 showed features consistent with a previous shoulder dislocation, a Bankart lesion and shallow Hill-Sachs lesion.[53]
[53] Claimant’s bundle, p 212.
On 2 December 2020 Dr Lee referred the claimant to Dr Chia due to “persistent right shoulder pain following MBA 24/09/2020”.[54]
[54] NRMA bundle, p 82.
A Doctors support program report completed by Dr Wijetunga and Dr Antoun, noted discussions with Dr Lee who stated that Mr Narcisi had a right shoulder injury three weeks prior to the subsequent motor accident when he had a fall at soccer.[55]
[55] Claimant’s bundle, p 234.
On 2 December 2020, Dr Lee noted:[56]
“Nb did have shoulder injury soccer 3 weeks prior to MBA. Treated at NBH. X-rays performed and apparently reported as normal.
Some residual discomfort following this
Marked increase right shoulder pain following MBA which has persisted.”
[56] Claimant’s bundle, p 380.
An Allied health request report dated 22 January 2021 diagnosed soft tissue injury to the right shoulder from a confirmed labral tear and rotator cuff, low back discogenic pain and fracture of the right pubic ramus.[57]
[57] QBE bundle, p 50.
Medical opinion
Dr Marcus Chia, orthopaedic surgeon, provided a report dated 8 February 2021.[58] The doctor recorded a history of right shoulder discomfort following the subsequent motor accident. The doctor recommended surgery for shoulder instability.
[58] Claimant’s bundle, p 352.
Dr Tony Antoun, GP, was qualified by QBE and provided a report dated 30 January 2021.[59]
[59] QBE bundle, p 95.
Dr Antoun reported that Dr Lee agreed that there were “no clinically significant findings to the claimed pelvic region” and “suggested/agreed that the pubic rami fracture was old”. The doctor also noted the prior right shoulder injury and that Dr Lee also “stated he did not believe that the shoulder was related to the motor vehicle accident”.[60]
[60] QBE bundle, p 96.
Dr Antoun opined that the right shoulder pathology was pre-existing based on the absence of complaint to the ambulance officer and at hospital, the mechanism of injury and the MRI scan. The doctor also stated:
“Hospital notes also confirm that the CT findings of the pelvis do not correlate with the minimal clinical symptoms and are old with no acute fractures.”
On 18 March 2021 Dr Wijetunga and Dr Antoun opined that there was no fracture to the pelvic rami caused by the motor accident and that the right shoulder injury was pre-existing.[61]
[61] QBE bundle, p 105.
Dr Andrew Keller, occupational physician, was qualified by NRMA and provided a report dated 14 February 2022.[62]
[62] NRMA bundle, p 237.
The doctor noted a history of right shoulder dislocation three weeks prior to the motor accident which was relocated by himself. The claimant then attended hospital and returned to work duties.
Dr Keller opined that the claimant only sustained soft tissue injuries in the earlier motor accident.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The medical assessment related to whether the injuries sustained in the motor accident were minor or non-minor (now threshold or not threshold) as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[63] and Insurance Australia Ltd v Marsh.[64]
[63] [2021] NSWCA 287 at [40], [41] and [45].
[64] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[65] that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act.
[65] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[66] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[66] [2022] NSWPICMP 6 at [44]-[62].
We have set out the medical evidence in some detail as there has been a tendency by the parties to selectively quote the medical evidence.
A further medical examination had no utility. The determination of whether the fractured pubic rami (pelvis) was caused by the motor accident could not be assisted by any examination. The issue concerning any right shoulder injury is otherwise not dependent on an examination and has been determined based on the documentation, logic and the medical expertise within the Panel. In those circumstances the findings of the nature of the injuries sustained in the motor accident are dependent upon an analysis of the documentation.
Lumbar spine injury
The claimant immediately complained of low back pain following the motor accident.
The lumbar CT scan in 2019 showed disc bulging at the lower levels of the spine. However, there is no scan evidence showing any traumatic injury to the lumbar spine following the motor accident.
It was otherwise not suggested by the claimant that the lumbar spine injury caused by the motor accident was other than a threshold injury.
There is no record of any complaint of any radicular findings following the motor accident. Further, the consistent medical opinion is that the claimant sustained a soft tissue low back injury to the lumbar spine in the motor accident.
We accept that the claimant sustained a soft tissue low back injury caused by the motor accident. This injury was a threshold injury as defined in the MAI Act.
Pelvic fracture
There was an immediate complaint of pelvic pain to the ambulance officer and at hospital.
The history recorded at hospital, which we accept, is that the claimant was involved in a T-bone accident at approximately 30 - 35km per hour when he hit his pelvis on a petrol tank.
The nature of the impact where the claimant fell off his bike onto a petrol tank impacting his pelvis is entirely consistent with causing an undisplaced pubic fracture given the immediate complaint of pain in that region.
To the extent that Dr Antoun and Dr Wijetunga suggested that this type of impact would not cause an undisplaced pelvic fracture, their reasons are unexplained. That opinion otherwise does not accord with logic given the force of the impact by the pelvis against a hard object and the immediate onset of pain in the region.
Dr Antoun suggested that the hospital notes suggest that the CT scan findings did not correlate with minimal clinical symptoms. We do not agree with that observation. The scan findings showed an undisplaced fracture. The hospital notes otherwise recorded pelvic pain. Our view is to the contrary, specifically that the clinical signs at hospital are consistent with an undisplaced pelvic fracture.
We note the hearsay opinion provided by Dr Antoun that Dr Lee agreed that the clinical signs on 22 October 2020 did not support a pubic rami fracture. We observe that Dr Lee did not write this in any report.
On 22 October 2020 Dr Lee reported tenderness in the pelvis. That note is four weeks post motor accident and consistent with a mild undisplaced fracture that is healing.
The CT scan dated 24 September 2020 reported a non-displaced fracture. The report is queried on the following day because of the absence of soft tissue swelling.
We do not accept that this is an inconsistency for two reasons.
First, soft tissue swelling may have come out later than within hours of the motor accident. The CT scan was taken on the day of the motor accident and any swelling could have developed after that time. The suggestion by QBE[67] that the scan was taken the following day is wrong. The further report was written on the following day based on a CT scan taken on the day of the motor accident.
[67] See [57].
Secondly, with a compression fracture which is minor to the extent that it was undisplaced, swelling would not necessarily occur or would otherwise be minimal such that the swelling may not be apparent on a CT scan.
There is otherwise no history consistent with an old fracture to the pelvis. In any event, the further notes confirm “ongoing R groin discomfort” and do not state that the fracture was old, rather that the fracture “may be new or a re-injury of a previous injury”.
The Panel confirms that a Medical Assessor has viewed the digital copy of the September 2020 scans provided by QBE. Based on the medical expertise of the Medical Assessor we accept that an undisplaced pelvic fracture is visible on the scans.
The claimant sustained an undisplaced pelvic fracture evident by:
(a) no prior reported pelvic symptoms;
(b) blunt trauma at force into the pelvis;
(c) immediate onset of pelvic pain;
(d) report on CT scan; confirming a non-displaced fracture and
(e) fracture confirmed by Medical Assessor who viewed the scans.
The mild nature of the undisplaced fracture is otherwise consistent with both mild symptoms and healing over a short period.
For these reasons we otherwise do not accept the opinion of Dr Antoun and Dr Winjetunga. Our view is that these opinions are not persuasive and are otherwise contrary to the underlying facts set out above.
The Panel is satisfied that the motor accident caused a undisplaced fracture of the right inferior pubic rami. This is not a threshold injury as defined in the MAI Act as it is not an injury to soft tissue.
Right shoulder
We do not accept that there was a tear of the right shoulder caused by the motor accident. The various histories shows that Mr Narcisi first suffered a right shoulder dislocation three weeks prior to the motor accident when he presented to a hospital.
A dislocated shoulder will cause a Bankart lesion when the ball of the shoulder joint comes out during the dislocation process. This process then bruises the humeral head which produces a Hills-Sachs lesion. This is precisely the pathology shown on the subsequent MRI scan which showed classical signs of previous dislocation.
There was no record of complaint of right shoulder pain by the ambulance officer or at hospital following the motor accident. If the claimant had again suffered a dislocation during the motor accident the claimant would have felt immediate and severe pain. This conclusion is consistent with medical opinion proffered in this matter.
The absence of recorded complaint suggests that it is extremely unlikely that the shoulder was again dislocated in the motor accident.
The absence of record is relevant but not determinative of the question of causation: AAI Ltd v McGiffen.[68]
[68] [2016] NSWCA 229 at [64]-[66].
The first record of post motor accident pain is in the claim form dated 6 October 2020. Whilst it is possible that there may have been an aggravation of shoulder pain in the motor accident, the pathology present on the MRI scan was due to the prior dislocation.
We observe that Dr Chia recorded no history of the prior dislocation caused at soccer. The absence of a correct history clearly undercuts the evidentiary value of the doctor’s opinion.[69]
[69] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [14].
We are not satisfied that the motor accident caused further dislocation on any further pathology as shown in the MRI scan. We are not satisfied that the motor accident caused a non-threshold injury to the right shoulder.
CONCLUSION
For these reasons the Panel concludes that the certificate issued by Medical Assessor Rosenthal is confirmed. A new certificate is attached at the commencement of these Reasons which is slightly amended by using the term not a threshold injury as opposed to not a minor injury.
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