QBE Insurance (Australia) Limited v Prasad
[2023] NSWPICMP 659
•7 December 2023
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Prasad [2023] NSWPICMP 659 |
CLAIMANT: | Mahendra Prasad |
INSURER: | QBE |
REVIEW PANEL | |
MEMBER: | Michael Inglis |
MEDICAL ASSESSOR: | Neil Berry |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 7 December 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant was involved in a motor accident on 6 June 2019; his vehicle was stationary when it was struck from behind by another vehicle; the claimant said that his head struck the steering wheel, although he did not lose consciousness; he said, as a result, he injured his neck, his low back and both shoulders; on 18 March 2022, Medical Assessor (MA) Farhan Shahzad determined that the claimant's left shoulder injury and lumbar injury were non-threshold injuries; the insurer made an application for a review; MA Neil Berry, a member of the Medical Review Panel (Panel), conducted a re-examination; after considering all the material, including the contemporaneous history, the Panel concluded that the injury to the lumbar spine was a threshold injury; concerning the claimant's left shoulder, the Panel was satisfied that a left shoulder intersectional tear was most likely caused by the motor accident and was a non-threshold injury; Held – MA Shahzad's certificate was revoked and a new certificate issued. |
DETERMINATIONS MADE: | REVIEW PANEL ASSESSMENT OF THRESHOLD INJURY CERTIFICATE ISSUED UNDER S 7.23 (1) OF THE MOTOR ACCIDENTS INJURIES ACT 2017 (THE MAI ACT) Review Panel
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STATEMENT OF REASONS
INTRODUCTION
On 6 June 2019, Mahendra Prasad (the claimant) was involved in a motor accident. He was driving along the M5 from Kingsgrove to Prestons after picking up his son from work. He was moving forward slowly in traffic as the cars in front had stopped due to heavy traffic. He was wearing a seatbelt at the time. His vehicle became stationary in the traffic when a van collided with the rear of his vehicle. He says that he heard the van approaching and attempted to brake so he braced for impact. He says his vehicle was pushed forward and collided with the vehicle in front. Four vehicles in total were involved in the collision.
The claimant says his head struck the steering wheel although he did not lose consciousness. The airbags were not deployed. He was able to get out of his vehicle to check the damage but then quickly returned to sit down as he was feeling dizzy. He says he also felt pain in the left side of his body and back. He was transferred to Bankstown Hospital by ambulance where he underwent investigations including CT scans and X-rays. He had difficulty walking and was provided with a walking stick. He was discharged from hospital with pain medication.
The claimant says he injured his neck, his back and both shoulders.
A medical dispute about whether any of the claimant’s injuries were not threshold injuries arose in connection with that claim and the dispute was referred to the Personal Injury Commission (the Commission) for assessment.
On 18 March 2022, Medical Assessor, Farhan Shahzad determined that the claimant’s left shoulder injury and lumbar spine injury were not threshold injuries.
On 12 May 2022, a delegate of the President of the Commission determined that there was reasonable cause to suspect a material error in the assessment and allowed the review.
The President’s delegate then convened this Panel to conduct the review.
LEGISLATIVE FRAMEWORK
Jurisdiction
Mr Prasad’s claim is governed by the provisions of the Motor Accidents Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
The statutory benefits available under the MAI Act are limited. One of these limitations is that, under s 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 or 52 weeks after the motor accident if the only injury sustained by the injured person are “threshold” injuries.
In a common law fault-based claim, no damages are recoverable if the claimant’s only injuries are “threshold” injuries.
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:
“An 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(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, clause 4 of the Motor Accidents 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”.
Section 1.6(5) says that the Motor Accidents Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Relevantly to the matters in issue in this claim, clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment Part 6 of the Guidelines.
In summary:
(a) 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) (e.g. a nerve injury or a complete or partial rupture of a tendon, ligament, meniscus or cartilage), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act, and
(b) if the person injured in the car accident sustains a spinal nerve or nerve root injury, this is a threshold injury unless the particular injury to the nerve or nerve root manifests in signs of radiculopathy in accordance with cl 4 of the MAI Regulation.
Clause 5.8 provides that a finding of radiculopathy can only be made when two or more of the following clinical signs are found on examination:
(a) loss or asymmetry of reflexes (see the definitions in Table 6.8 of the Guidelines);
(b) positive sciatic nerve root tension signs (see the definitions in Table 6.8 of the Guidelines);
(c) muscle atrophy and/or decreased limb circumference (see the definitions in Table 6.8 of the Guidelines);
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The two cases of David v Allianz Australia Limited 2021 NSWPICMP at [227] and Lynch v AAI Limited trading as AAMI 2022 NSWPICMP at [6] established 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.
Method of Assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is “threshold” injury for the purposes of the MAI Act. In respect of the medical assessment of whether an injury is a minor injury or not, the guidelines relevantly provide:
“5.6 The assessment of whether an injury caused by the accident is a 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”.
The method of assessment in cl 5.6 appears to extend to medico-legal or other experts retained by the claimant and the insurer including treating practitioners.
Dispute resolution
If there is a dispute about whether an injured person’s injuries are threshold injuries or not, the matter is declared a medical assessment matter, which may be referred to the Commission for determination.
Chapter 7, Division 7.5 of the MAI Act provides for original medical assessment such as Medical Assessor Shahzad’s further medical assessments and the review of medical assessments by this Panel.
ASSESSMENT UNDER REVIEW
Medical Assessor Shahzad examined the claimant on 2 March 2022. He issued his certificate on 18 March 2022. At [2], he confirms the injuries he was asked to assess as:
(a) left shoulder injury, and
(b) lumbar spine injury.
The claimant complained (recorded at [29]) of residual lower back pain associated with pins and needles and numbness in both feet. He struggled with walking and utilised a walking stick when venturing outdoors.
He also reported residual bilateral shoulder pain, the left being worse than the right. He reported a 90% improvement in his right shoulder symptoms. There was also an associated reduction in the range of shoulder movement.
The claimant also complained of disturbed sleep and that he was only able to sleep on one side. He had a limited capacity for bending and twisting and had difficulty climbing up and down stairs.
Medical Assessor Shahzad says at [31]:
“…on examination of the right shoulder, there was preserved range of movement. There was near normal range on abduction and flexion while sluggish due to pain although it was almost 160 degrees.
On examination of the left shoulder, abduction was limited to 120 degrees and flexion was limited to 19 degrees. There was moderate restriction on extension, internal and external rotations, and on adduction.
Jobes, Hawkins and Neer impingement testing were positive. There was localised, superficial tenderness over the left shoulder”.
In relation to the lumbosacral spine, Medical Assessor Shahzad says, also at [31] that the claimant was unable to demonstrate much movement and there was severe, superficial tenderness noted which required modification to the examination. There was severe tenderness over the lumbosacral area. The range of movement was severely restricted on forward flexion and extension. There was relatively preserved lateral flexion to a mild to moderate degree bilaterally with severe restrictions on the right lateral rotation and a relatively preserved left lateral rotation. Straight leg raise was normal bilaterally.
Medical Assessor Shahzad also conducted a neurological examination and in regard to that examination says at [31], the examination of the lower limbs did not identify any abnormal neurology. Muscle power, tone and deep tendon reflexes were normal bilaterally in the lower limbs. On examination, he reported variable pins and needles distally from the ankle joints. Medical Assessor Shahzad also considered and referred to the various documents and radiological reports that were made available to him.
At [36], Medical Assessor Shahzad found that the nature of the claimant’s injuries to the left shoulder and lumbar spine were consistent with the subject motor vehicle accident and were caused by the motor vehicle accident. Medical Assessor Shahzad opined at [40] the shoulder injury and the lumbar spine injury were not minor injuries.
Review application
The insurer made an application for a review of Medical Assessor Shahzad’s assessment. On 12 May 2022, the President’s Delegate determined that she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect on the basis that insufficient reasons were provided to articulate the path of reasoning for the medical assessor’s finding. The delegate was satisfied that the criteria for referral of the matter to a Review Panel had been met in accordance with s 7.26 of the Act. Accordingly, the application was accepted and the matter referred to a review panel.
MATERIAL BEFORE THE REVIEW PANEL
(a) claimant’s primary application and its contents;
(b) insurer’s primary reply and its contents;
(c) insurer’s application for review;
(d) claimant’s reply to application for review;
(e) insurer’s submission dated 6 June 2019;
(f) claimant’s submission dated 2 May 2022, and
(g) determination of the President’s Delegate dated 12 May 2002
Submissions
Insurer’s dubmissions
Although the review application was successful, I note that the panel notes that the insurer’s position was that the Medical Assessor’s assessment was flawed in that it deprived the parties of an understanding of the manner in which he reached conclusions concerning diagnosis and causation.
The insurer submitted that the Medical Assessor had a duty to give reasons for his findings. Where more than one conclusion is open, it will be necessary for the assessor to give some explanation of its preference for one conclusion over another; in Campbelltown City Council v Vegan [2006] BSWCA 284 at [212]-[122] (Basten J).
In particular, the insurer submitted:
“13. The path of the reasoning must be exposed, such that there is sufficient detail to allow determination as to whether the assessor made an error or not. The insurer submits that there is insufficient reasons in the Certificate that exposes:
a.The criteria against which the assessor determined that the left shoulder injury was directly a result of the accident.
b.The nature of the claimant’s left shoulder symptoms after the accident, causing subacromial subdeltoid bursal inflammation, partial and insertional tear of the subscapularis.
c.The criteria against which the assessor determined that the right shoulder injury was not related to the accident.
d.What, if anything, the assessor made of the pre-existing soft tissue injury to the left shoulder and lower back, as well as the ‘several falls’ after the accident.
e.What, if anything, the assessor made of the claimant’s reported unrelated ‘minor physical injuries’ as a result of the several falls.
f.What, if anything, the assessor made of the claimant’s reported history that he sustained a ‘wrist fracture’ as a result of the several falls he had after the accident.
Was the fracture to the right or left wrist?
g.What, if anything, the assessor made of the claimant’s inconsistent reporting related to his relevant pre-accident injuries to his left shoulder and lower back
14. The insurer is unable to discern why and how the assessor came to his conclusion that the accident caused the left shoulder and lumbar injury, and that these issues are non-minor when he clearly accepts that the claimant’s lumbar spine injury is a soft tissue injury.
15. The assessor has not provided access to a line of reasoning which that explains why the left shoulder symptoms were caused by the accident but not the right shoulder or why he did not provide reasons concerning causation of the left shoulder symptoms, the pre-accident left shoulder injury and the ‘several falls’ after the accident. There is therefore reason to believe that the assessor has overlooked evidence and/or his understanding of it was not accurate.
16. The assessor is required to expose a coherent reasoning process. The lack of a proper identification of the assumptions and a reconciliation of the inconsistent evidence renders his reasoning process confusing and non-transparent. Furthermore, the assessor is required to provide reasons concerning causation, as is required by him by the decision of Dogon v Redmond & Ors [2010] NSWSC 1329 and Farache v Motor Accidents Authority of NSW & Ors [2011] NSWWSC 446.”
Claimant’s submissions
In support of his submission that the review application should fail, the claimant’s solicitor submitted:
“19. The respondent claimant submits that the assessor is not required to exaggerate the impact of minor physical injuries prior to or since the accident, even if it would be to the applicant insurer’s benefit for him to do so. He is required to provide an independent decision and path of reasoning consistent with the obligations of a Medical Assessor or a Medical Panel outlined in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [47] as follows:
‘The function of a medical panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the medical panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the medical panel with material which may be relevant to the formation of the opinion and to make submissions to the medical panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the medical panel may seek to persuade the medical panel to adopt reasoning or conclusions expressed in those opinions. The medical panel may choose in a particular case to place weight on a medical opinion supplied to it, informing and giving its own opinion. It goes too far, however, to conceive of the function of the panel as being either to decide a dispute or to make up its mind by reference to competing in contentions or competing medical opinions.’
A further at [57]; the function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The claimant’s submission that the President’s Delegate had not been provided with any evidence that would satisfy him or her that Medical Assessor Shahzad’s findings were capable of being assessed or ordered and that the original assessment was not correct in a material respect was not accepted by the Proper Officer.
Re-examination report of Dr Neill Berry
The reports as are as set out:
“EXAMINATION REPORT
Review Panel
Member Mr Michael Inglis
Medical Assessor Dr Drew Dixon
Medical Assessor/Examiner Dr Neil Berry
Claimant Mr Mahendra Prasad
Date of Birth 19 May 1957
Matter no R-M10499915/22
Date of Injury 6 June 2019
Date of Examination 28 July 2022
As requested, I re-examined Mr Mahendra Prasad in my rooms on 28 July 2022.
The claimant confirmed that he was 65 years of age, and dominantly right-handed. He was noted to be using a walking stick, and indicated that he used the walking stick because of sudden acute severe attacks of pain in the low back which caused him to fall and he stated that at least on one occasion he had fractured his left wrist.
Pre-Accident Medical History and Relevant Personal details
Mr Prasad confirmed that he has not had surgery on his back and has had no prior injuries to his shoulders. He indicated that he has previously suffered from asthma and chronic obstructive pulmonary disease, he was not sure for how long. He had suffered epilepsy but had not had a fit since he was diagnosed in 1989. He also suffers from type 2 diabetes which was diagnosed in 2018.
Mr Prasad was born in Fiji and then moved to New Zealand where he worked in a cleaning business. In 2017, he and his wife and son moved to Australia to join their daughter and at the time there was a plan to open their own cleaning business. The claimant indicated that his wife works as a cleaner at Nepean Private Hospital.
History of Motor Accident and treatment
Mr Prasad confirmed that he was involved in a motor accident on 6 June 2019. On that occasion he was the driver of a Hyundai hatchback, wearing a seatbelt. He was driving along the MS from Kingsgrove to Prestons after picking up his son from work. He slowed in traffic when a van collided with the rear of his vehicle pushing his vehicle forward colliding with the vehicle in front of him. He told me that he was thrown forward with his head striking the steering wheel but was not knocked unconscious. He was aware of pain down the left side of his body and was conveyed by Ambulance to Bankstown Hospital where he underwent investigations including X-rays and CT scans. He was subsequently discharged but as he had difficulty walking he was provided with a walking stick.
Mr Prasad subsequently attended his general practitioner, Dr Jian Li and has remained under his care until the present time.
Current Symptoms
Mr Prasad told me today that he continues to have pain in the back which radiates down to the right knee. The pins and needles in the feet have resolved. The right shoulder pain has also resolved and he is left with left shoulder pain.
Present treatment
His treatment at the present time is medications only.
Physical Examination
Mr Prasad was a man of stated years and he walked with the aid of a walking stick on the right side. He was 163 cm in height and 90 kgs in weight.
Cervical Spine
There was a normal range of movement. There was no tenderness to palpation and no muscle guarding and no alteration of spinal contour.
Upper Extremities
Right Upper Extremity: was normal in all respects.
Left Upper Extremity: there was a restricted range of movement at the shoulder. Reflexes were intact. Elbow, wrist and hand movements were normal and there were no sensory changes and no unilateral muscle wasting. (Please see the attached worksheet for the range of movement).
Thoracolumbar Spine
Inspect of the back revealed that the lumbar lordosis was maintained. There was no evidence of a surgical scar in the midline of the back, nor laterally. Mr Prasad demonstrated minimal movement and had great difficulty sitting on the side of the examination bed.
Lower Extremities
With him sitting, reflexes in the knees and ankles were brisk and equal. The thighs were measured 10 cm above the upper pole of the patella and were 50 cm on the right and 48 cm on he left. The calves were measured 10 cm below the lower pole of the patella, 38 cm on both sides. There was no altered sensation and no nerve root tension sign.
No other examination was conducted.
Review of Imaging
MRI report dated 25 June 2021 reported spondylotic changes in the lower lumbar spine but no frank disc protrusion. The second MRI report was not available for review, but I note from the report which was dated 2 July 2021 that this reported a previous hemi-laminectomy and microdiscectomy at L4/5 which is incorrect as this claimant has not had any surgery.
In terms of his left shoulder, he is reported as having subacromial and subdeltoid bursal inflammation. The claimant told me, that while he had an ultrasound reporting similar changes in the right shoulder, a steroid injection had resulted in resolution of his symptoms.
DR NEIL A BERRY
ADDENDUM TO THE EXAMINATION REPORT
Review Panel
Member Mr Michael Inglis
Medical Assessor Dr Drew Dixon
Medical Assessor/Examiner Dr Neil Berry
Claimant Mr Mahendra Prasad
Date of Birth 19 May 1957
Matter No R-M10499915/22
Date of Injury 6 June 2019
Date of Examination 28 July 2022
Attached is my worksheet and you will note that based on the range of movement the claimant is found to have a 7% upper extremity impairment and this converts using Table 3 on Page 20 to a 4% Whole Person Impairment.
On the basis of my examination on 28 July 2022, the claimant was noted to have an asymmetrical range of back movement with no evidence of radiculopathy in the lower limbs in particular, reflexes were intact. There was no sensory abnormality and no nerve root tension sign. There was no muscle wasting and no radiological evidence of nerve root compression. The claimant is therefore placed in DRE Category II which is a 5% Whole Person Impairment.
These assessments are combined using the Combined Tables Chart on Page 322 and the claimant is assessed as having a 9% Whole Person Impairment.
I trust this is the information you require. Please do not hesitate to contact me should you need further information or interpretation of this report.
Yours sincerely,
Signed electronically
DR NEIL A BERRY
Certified Independent Medical Examiner (CIME)
Approved Medical Specialist, WorkCover, NSW & Motor Accidents Authority, NSW and Comcare
CC. Mr Michael Inglis
Dr Drew Dixon
Assessment and consideration of issues
Although the material provided to the panel contains information that suggests that the claimant may have injured his right shoulder in the motor vehicle accident, the injuries that were referred to the Medical Assessor, and hence the subject of review are:
(a) injury to the left shoulder, and
(b) lumbar spine injury.
As is often the case, in determining this matter, history is all important.
The first written account of the injury sustained by the claimant is contained in his claim form. In the claim form, he says, relevantly:
“I was stopped on M5 Westbound near Revesby, heading towards Liverpool. After I had stopped due to traffic jam ahead, I was hit from behind within a minute and my car jumped and hit the car in front. The car in front then hit another car in front of it.
I received injuries to my back, left shoulder. Also to my rib cage. I had pins and needles in both feet. I had pain in my neck. I also suffer from high anxiety since the accident.”
In the medical certificate annexed to the claim form, the following description of injuries given is soft tissue injury (L shoulder, lower back and anxiety worse after MVA. Concerning the injuries that related to the motor vehicle accident, it was noted:
“He was stopped as the first car stopped, but another car from the back hit him, his car then hit the front car. Previous lower back pain, sometimes previous anxiety.”
In the discharge summary from the hospital, it is noted that the claimant complained of neck pain, generalised with numbness and tingling in fingers, both hands and toes and feet. He was also noted that he complained of left sided shoulder pain and chest pain, worse on deep breathing, also some lower back pain.
As to the circumstances of the accident, it is noted that he was the third car in a car pile up, was restrained, presumably by his seatbelt and hit the steering wheel with his left anterior chest.
The claimant consulted his general practitioner, Dr Jian Li, on Friday, 14 June. In his notes, Dr Li records the history given by the claimant as:
“had MVA 6-06/2019, went to ED, had CT done.
No obvious fracture.
L shoulder pain now, hard to have full range of movement.
No much chest pain.
No fever.
No dysuria.
Urine colour normal.
No wheezing/SOB.
L shoulder, mild tender, no red/swelling/bruise.
ROAM normal, but tender after 90 degrees elevation.
Neurovascular.
No tender on chest wall.
Not want to have US of L shoulder.
Physio.
Panadol PRN.”
Significantly, there is no complaint recorded of any lower back symptoms.
The claimant was reviewed by Dr Li on 27 June 2019. He continued to complain of some left shoulder symptoms. Again, there are no recorded symptoms in relation to the lower back.
He was seen on 28 June for an unrelated matter and again on 1 July 2019 again for an unrelated matter when there was apparently no reference to the motor vehicle accident other than that it was causing the claimant stress.
On 3 July 2019, the claimant again attended on Dr Li and on this occasion, continued to complain of left shoulder pain and lower back pain such that he was not able to stand or sit for long.
There is no reference in the clinical notes to any complaint of symptoms in relation to the left or right shoulder prior to the motor vehicle accident.
Pathology
In his report Medical Assessor Shahzad noted:
“He underwent an MRI of the lumbar spine, which revealed evidence of degenerative disc disease at the L4/L5 level.
His bilateral shoulder symptoms also persisted. He underwent investigations including imaging of the right shoulder, showing moderate to severe subacromial subdeltoid bursa inflammation, and a partial thickness tear of the supraspinatus muscle. He received an injection into the right shoulder.
He was also referred for an ultrasound of the left shoulder which showed subacromial subdeltoid bursal inflammation, a partial thickness insertional tear, and calcific tendinopathy.”
Dr Berry reported that the MRI report dated 25 June 2021 demonstrated spondylotic changes in the lower lumbar spine but no frank disc protrusion. He commented that the second MRI report was not available for review but noted from the report which was dated 2 July 2021 that it demonstrated a previous hemi-laminectomy and microdiscectomy at L4/5 which he said was incorrect as the claimant had not had any surgery.
Neurology
In his report, Medical Assessor Shahzad noted that:
“Examination of the lower limbs did not identify any abnormal neurology. Muscle power, tone and deep tendon reflexes were normal bilaterally in the lower limbs. On examination, he reported variable pins and needles distally from the ankle joints.”
In his report, Dr Berry says:
“On the basis of my examination on 28 July 2022, the claimant was noted to have an asymmetrical range of back movement with no evidence of radiculopathy in the lower limbs, in particular, reflexes were intact. There was no sensory abnormality and no nerve root tension sign. There was no muscle wasting and no radiological evidence of nerve root compression.”
Is the claimant’s left shoulder injury a threshold injury?
On balance, the medical Review Panel is satisfied that the injury to the left shoulder is a non-threshold injury. In coming to that conclusion, the panel has had regard to:
(a) the absence of complaint in relation to the left shoulder for some time prior to the motor vehicle accident;
(b) the mechanism of the accident, the impact which was sufficient to force one vehicle into the rear of a preceding vehicle and the claimant’s chest struck the steering wheel. In all probability, the claimant would have had his hands on the steering wheel at the time of impact and there is no evidence to suggest otherwise;
(c) the contemporaneous complaint of left shoulder pain at the hospital and to the general practitioner, and
(d) the consistency of complaints of left shoulder symptoms at subsequent examinations
Is the claimant’s back injury a threshold injury?
The review panel is satisfied that the left shoulder intersectional tear was most likely caused by the motor vehicle accident.
There is no evidence to suggest that the claimant suffered any injury to the left shoulder and in any of the falls that occurred subsequent to the motor vehicle accident.
Is the lumbar spine injury a threshold injury?
The Review Panel is satisfied that the lumbar spine injury is a threshold injury.
At the time of the examination by Medical Assessor Shahzad and subsequently by Dr Berry, which is the relevant examination for the purposes of the review, there were no signs of radiculopathy found on examination which would satisfy the requirements of cl 5.8.of Section 1.65 of the Guidelines.
In accordance with its obligations, the Review Panel:
(a) has had regard to the history including the pre-accident history and pre-existing conditions;
(b) reviewed the relevant records available at the assessment;
(c) considered the comprehensive description of the injured person’s current symptoms;
(d) conducted a careful and thorough physical examination, and
(e) had regard to diagnostic tests available at the assessment and imaging findings as set out in the report of Medical Assessor Shahzad.
CONCLUSION
The panel has found the claimant’s lower lumbar injury is a threshold injury, not a non-threshold injury.
The panel has found that the claimant has suffered a non-threshold injury to the left shoulder.
The panel will issue a fresh certificate adopting bindings and the new terminology.
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