Ragni v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 594
•16 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ragni v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 594 |
| CLAIMANT: | Matteo Ragni |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 16 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment; whether physical injuries caused by the motor accident are threshold injuries; claimant a 42-year-old male who alleges injury as a result of a rear-end collision at an intersection; single Medical Assessor certified physical injuries as threshold injuries; issue of whether a partial rotator cuff tear was caused by the accident; issue as to whether injuries give rise to radiculopathy; insurer relied on biomechanical expert opinion; question as to whether a subsequent motor accident gave rise to the shoulder pathology; Held – the tear was caused by the accident and therefore not a threshold injury; criteria of radiculopathy not met; original certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Ian Cameron dated 5 January 2022 and issues a new certificate determining that: 2. The following injuries caused by the motor accident are not threshold injuries for the purposes of the Motor Accident Injuries Act 2017: · soft tissue injury to right shoulder with scan evidence of partial rotator cuff tear. 3. The following injuries caused by the motor accident are threshold injuries for the purposes of the Motor Accident Injuries Act 2017: · soft tissue injury to cervical spine with radicular complaints affecting the left shoulder, left upper extremity to the left hand, and · soft tissue injury to lumbar spine with radiating radicular symptoms to the left lower extremity. |
STATEMENT OF REASONS
INTRODUCTION
Mr Matteo Ragni (the claimant) is a 42-year-old male who alleges injury as a result of a motor vehicle accident which occurred on 24 June 2021. He was the driver of a vehicle that was stationary at an intersection in Ashfield, NSW. The insured vehicle collided with the rear of the claimant’s vehicle.
The claimant subsequently lodged an application for personal injury benefits (claim form) with the insurer of the vehicle, Allianz Australia Insurance Ltd (Allianz), on or about 16 February 2021.
The issue in dispute between the parties is whether any physical injury suffered by the claimant as a result of the accident is a threshold injury (previously known as a minor injury – any reference to ‘minor injury’ in this determination is a reference to ‘threshold injury’).
A threshold injury determination is an important one in terms of an injured person’s entitlements under the Motor Accident Injuries Act 2017 (MAI Act). If a determination finds that the motor accident has caused a non threshold injury then the gateway to ongoing statutory benefits beyond 26 weeks and an entitlement to claim common law damages is opened.
It appears that liability for payments of statutory benefits was initially accepted by the insurer. However, on or about 14 May 2021, the insurer denied liability for ongoing statutory benefits after 26 weeks. One of the reasons given was that the insurer considered the claimant’s injuries to be minor injuries (now known as a “threshold injury”) for the purposes of s 3.28 and 3.11 of the MAI Act.
An internal review decision of the insurer dated 6 July 2021 affirmed the original decision.
Subsequently an application was lodged with the Personal Injury Commission (the Commission) to determine the dispute.
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 a 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
The dispute about whether the claimant’s accident injury is a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The medical dispute was assessed by Medical Assessor Ian Cameron (Medical Assessor). The Medical Assessor gave a certificate dated 5 January 2022 wherein he certified that the claimant suffered soft tissue injuries to the following body parts:
· head;
· left shoulder;
· cervical spine;
· right shoulder;
· lumbar spine;
· thoracic spine;
· left knee;
· right knee, and
· left hip.
He certified that each injury was a minor injury (now known as threshold injury) for the purposes of the MAI Act.
THE REVIEW
The claimant sought a review of the medical assessment in accordance with s 7.26 of the MAI Act (review). On 21 February 2023 the President’s Delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
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 new review provisions provide[1] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
[1] Section 7.26(5A) of the MAI Act.
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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: Rule 128 of the Rules.
The Panel issued interim directions dated 28 March 2023 requesting paginated and indexed bundles of all documents relied upon by the parties.
Following an initial teleconference, the Panel issued interim directions dated 4 July 2023 to the parties requesting submissions on an issue identified by the Panel not previously addressed by the parties. In this regard, the parties were asked to provide written submissions regarding a second and subsequent motor vehicle accident that the claimant was involved in occurring on 4 May 2021. The Panel noted that the claimant’s general practitioner (GP) on 10 May 2021 records right shoulder symptoms. Submissions from both parties were received on this issue.
The Panel convened a second time and decided that an examination of the claimant was required. A re-examination conducted by Medical Assessor Oates was arranged to occur at the Commission medical suites on 12 September 2023.
The Panel convened once again via teleconference on 19 September 2023.
LEGISLATIVE FRAMEWORK
The term ‘threshold injury’ is defined in s 1.6 of the MAI Act. It provides that a threshold injury is a soft tissue injury or a threshold psychological or psychiatric 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 also provides that the regulations may exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold 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.
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 a motor accident is a threshold injury for the purposes of the MAI 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:
“General provisions for assessment
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 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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 5.6 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 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.”
Clause 5.9 of the Guidelines provides that neurological symptoms of the neck or spine that do not meet the assessment criteria for radiculopathy, will be assessed as a threshold injury.
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[i]
ORIGINAL MEDICAL ASSESSMENT
Medical Assessor Cameron opined the claimant had suffered multiple soft tissue injuries as a result of the accident. The Medical Assessor noted radiological evidence of labral tears in the right shoulder.
The Medical Assessor concluded that it was not established that the labral tears occurred in the subject motor accident. He opined that: “they are common in asymptomatic people and the mechanism of injury does not support them as being caused by the subject motor accident.”
Non-verifiable radicular complaints were found, however, the Medical Assessor concluded that the claimant did not have radiculopathy as defined by the Guidelines. He noted that nerve conduction studies are not to be used in establishing radiculopathy as they are inaccurate in this situation.
SUBMISSIONS
Claimant’s original submissions dated 12 August 2021
The submissions refer to a certificate of capacity dated 3 February 2021 which included a diagnosis of “shock cervical left shoulder right shoulder intrascapular lower back pain left knee pain” in support of the submission that all of the injuries are causally related to the subject accident.
It is further noted that the GP records demonstrate no orthopaedic complaints from the claimant from September 2020 to the date of the accident. However, since the accident, there are regular complaints to the GP.
The submissions assert that the evidence demonstrates the presence of radiculopathy in the cervical and lumbar spine.
In respect of the right shoulder it is submitted that the findings of an MRI of the right shoulder dated 17 June 2021 demonstrates an intrasubstance and labral tears which are to be classified as non threshold injuries.
Claimant’s application for review submissions dated 6 June 2023
The submissions assert that the Medical Assessor failed to provide adequate or sufficient reasoning when concluding that the labral tears were not caused by the accident and are common in asymptomatic people, and the mechanism of injury does not support a finding that the tears are causally related.
It is submitted that the Medical Assessor failed to explain what evidence he relied upon to establish that the tears were not caused by the accident. It is also submitted that the Medical Assessor failed to provide reasoning as to why the claimant belonged to the category of asymptomatic people, especially considering his age. The claimant submits that the subject accident has been “entirely disregarded by the Assessor.”
It is submitted that the Medical Assessor failed to take into consideration the claimant’s
pre-accident functioning, and had the right shoulder injury have been present prior to the accident he would not have been able to engage in his employment as a cleaner of buses and pilates instructor.
Insurer’s review submissions (undated)
The insurer refutes the claimant’s suggestion that the Medical Assessor failed to provide sufficient reasons.
In addition, the insurer refutes the assertion that the Medical Assessor may not rely on their expertise in opining that pathology found on imaging is present in the asymptomatic population, without referencing a specific targeted medical review. The insurer refers to the case of Raina v CIC Allianz Insurance Limited [2021] NSWSC 13, where Campbell J distinguishes between a Medical Assessor’s expertise from procedurally unfair consideration of medical literature. The insurer submits that the claimant’s position effectively flips the onus of proof onto the Medical Assessor to require them to explain why pathology was pre-existing.
The insurer submits that the terminology of radiculopathy used in treating reports, may not satisfy the definition of radiculopathy under the legislation. Further, in accordance with the Guidelines, nerve conduction studies are not to be used in establishing radiculopathy.
The insurer relies upon the content of the M&A Investigations containing photographs and contemporaneous accounts of the mechanism of the accident.
The insurer submits that the energies involved in the accident could not cause the pathology identified in the subsequent imaging.
Claimant’s further submissions dated 25 July 2023
Submissions were provided via email by the claimant’s representatives. The submissions state that there were no injuries (whether aggravation or frank) following the second and subsequent motor accident of 4 May 2021.
It is submitted that the second accident was minor and at low speed. He was travelling slowly in traffic on a busy street in Darlinghurst, NSW when the at fault driver pulled out of a parallel parking spot when he clipped the rear passenger bumper of the claimant’s vehicle causing minor damage in the form of scratches and a minor dent.
It is noted that a personal injury claim was not lodged after such accident, and a property damage claim was made which resulted in a small amount being paid.
Provided with the submissions are photographs of the damage to the claimant’s vehicle taken by the claimant immediately following the accident.
It is submitted that such a low impact motor accident could not be suggestive of such a pathology in the right shoulder (whether aggravation or frank).
Also provided with the submissions are clinical notes of Mr James Galotta, physiotherapist. It is submitted that the GP clinical notes and the physiotherapy notes demonstrates complaints of right shoulder pain after the subject accident and before the second motor accident.
Insurer’s further submissions dated 21 August 2023
These submissions are in response to the Panel’s directions regarding the provision of submissions relating to the occurrence of a second motor vehicle accident, as noted in the clinical notes of Norton Street Medical Centre.
The insurer refers to the relevant entries of the clinical notes after the subject accident of 3 February 2021. The insurer notes the numerous mentions of left shoulder pain and right shoulder pain up until 26 April 2021 when only the left shoulder pain is mentioned.
The insurer contrasts these entries with the clinical entries after the second motor accident of 10 May 2021. The insurer notes the various entries thereafter that mention right shoulder pain.
The insurer submits the clinical notes demonstrate the after the subject accident the claimant reported pain in both shoulders with worse symptoms on the left. In contrast, the clinical notes after the second accident demonstrate the symptoms in the right shoulder becoming much worse, and that due to the severity of the symptoms the doctor referred the claimant for an MRI of the right shoulder.
The submissions also attach a collision and biomechanics report of Dr Andrew McIntosh dated 4 February 2022. Dr McIntosh found that the accident was low speed, and the change in velocity of the claimant’s vehicle was most likely in the range of 8 to 13 kmph and was very unlikely to have caused a shoulder injury.
The insurer also refers to a further accident of 17 May 2023 which involves a claim with QBE Insurance. The insurer states that a request for a copy of the relevant claims file has been made and will be provided. Such material has not been subsequently received by the Panel.
MATERIAL BEFORE THE REVIEW PANEL
All material provided by the parties has been noted and considered.
The claimant was taken to Bankstown-Lidcombe Hospital from the scene of the accident. A low speed motor accident was noted with complaints of stiffness. Nil cervical spine tenderness or chest pain noted.
A further emergency department discharge summary of Bankstown-Lidcombe Hospital noted the claimant to present with musculoskeletal pain on 18 February 2021 on the background of a motor accident two weeks prior. The claimant complained of worsening back pain in the thoracic area.
The clinical notes of Norton Street Medical Centre have been considered. The notes commence on 8 September 2020. Consultation notes prior to the accident mainly document mental health issues relating to Mr Ragni’s family situation.
The subject motor accident is noted by the Dr Tringali, GP, on 13 February 2021. The claimant is recorded to have complained of symptoms in his cervical spine, back, lower limbs and intrascapular left arm pain and left and right shoulder pain. Similar complaints are made in subsequent consultations. Complaints of left shoulder pain are made more frequently from April 2021 as compared to the right shoulder.
The consultation of 10 May 2021 following the second motor accident is noted that documents cervical spine and back pain and right shoulder pain. In a subsequent consultation three days later the doctor notes right shoulder pain, impingement syndrome. Left shoulder pain is also noted. The doctor refers the claimant for an MRI of the right shoulder.
Consistent complaints are made by the claimant in subsequent consultations, involving pain in the lower limbs, back and both shoulders.
The claimant was referred to neurosurgeon, Dr Richard Parkinson. In a report to the claimant’s GP, Dr Tringali, dated 28 September 2022, Dr Parkinson takes a history of the subject motor accident. The doctor notes:
“He ended up in accident and emergency and had symptoms in his arm which he has never had before, and which have continued ever since.
Immediately following the accident he noted pain radiating into the right cervical paraspinal region, and into the lateral shoulder and upper arm, triceps, extensor forearm, with parasthesias over the entire palm. The paraesthesias have continued, and he has noticed some progressive weakness in the arm, and so I note a labral tear in his right shoulder has been diagnosed…”Dr Parkinson stated that he was a bit concerned about the aetiology of the injury and recommended an MRI of the brain and right brachial plexus. In a subsequent report dated 27 October 2022, Dr Parkinson noted nerve conduction studies confirmed C5/6 and C6/7 nerve compression and motor radiculopathy. He states: “there is no doubt he has suffered a stretch injury to the nerve as a result of the motor vehicle trauma…”
The claimant was also referred to orthopaedic surgeon, Dr Herald. In a report dated 5 April 2022 to Dr Tringali, Dr Herald notes a history of the motor accident with increasing back pain, with neck pain radiating to both shoulders. Left hip pain and bilateral shoulder pain is also noted.
A further report of Dr Herald of 23 August 2022 noted the claimant continuing to complain of shoulder pain. It was noted that in addition to shoulder pain the claimant was having neck pain and radiculopathic symptoms in both upper limbs.
The content of the M&A Investigations report dated 5 April 2021 was noted, including statements of the claimant and the insured driver. Also noted were various photographs of the claimant’s vehicle, the insured vehicle and video footage of the aftermath of the accident which depicts the claimant sitting, walking and standing around the vehicles and kerb.
Also noted are photographs provided by the claimant’s representatives of the claimant’s vehicle following the second motor accident.
The insurer has also provided a copy of a report of collision and biomechanics report of Dr Andrew McIntosh dated 4 February 2022. Dr McIntosh concludes that it is plausible that the accident may have caused a whiplash associated disorder/soft tissue injury to the cervical spine. However, he concludes that the accident is “very unlikely” to have caused a whiplash injury, as well as a thoracic spine injury, a disc injury to the spine, a shoulder injury, head injury or extremity injury.
RE-EXAMINATION
Mr Ragni attended the Commission’s Medical Examination Suite on 12 September 2023 for re-examination by Medical Assessor Oates as arranged.
A telephone Italian interpreter, Mr Tony Cavallaro (NAATI No. 650), was available for the assessment.
History
Pre-accident medical history and relevant personal details
Mr Ragni came from Italy in 2013 and in that country, he had worked in hospitality and as a pilates instructor and personal trainer.
When he came to Australia, he worked as a chef and pilates instructor. He later did a wine sales consultancy.
He was married but this broke down in 2018. He has a son aged four who lives with the mother. He was divorced in January 2021 and has no partner at the moment.
He lives in a large share house with five housemates; two females and three males.
Before the accident, he did yoga and pilates classes. He is a non-smoker and would drink about three glasses of wine per week.
Because there was no hospitality work because of the COVID restrictions at the time of the accident, he was working as a cleaner and also did some pilates instructing.
He had endocarditis in 2006, and in 2018 attending some counselling therapy following the marital breakdown but did not take any medications.
History of the motor accident
Mr Ragni is right hand dominant.
He said on 3 February 2021, he was stopped at a red traffic light on Milperra Road in heavy traffic. He was driving a Toyota Starlet 1984 model with no passengers. The traffic started to move off on the green light, but then had to stop again suddenly and the car behind him failed to stop in time, and he was rear-ended by a large Jeep.
He had one foot on the clutch and the other foot on the brake, and was gripping the steering wheel firmly at the time of impact. He can’t recall if his car was pushed forward and cannot recall whether his head hit the steering wheel or hit his arms, which were on the steering wheel.
He felt immediate neck soreness and soreness in both shoulders and the upper back. He doesn’t recall any impact injury and was not bleeding. He was shocked and dazed but not unconscious.
I asked him about the insured driver’s report that Mr Ragni’s vehicle rolled slowly back into the front of his vehicle before rolling forward to a stop. Mr Ragni told me that this is not true at all.
Mr Ragni said his car was written off.
An ambulance was called and he was taken to Bankstown-Lidcombe Hospital, where he was given analgesics for neck, shoulder and back pain, and had CT scan. This was of the head.
History of symptoms and treatment following the motor accident
He then saw his GP, Dr Tringali, about one week after the accident complaining of frontal headaches, neck pain and bilateral shoulder pain. On the left side, the pain radiated from the base of the neck, through the shoulder, down the left arm; and on the right side there was shoulder pain separate from the neck. He also had left knee and left leg pain. There were no radiating symptoms to the right arm. He was treated with Panadol.
He attended the hospital again on 18 February 2021 and tenderness in the mid-line thoracic spine was noted and he was diagnosed with musculoskeletal pain.
His GP referred him to physiotherapy but this was declined by the insurer at first and later permitted. He attended eight sessions with Mr J Gullotta, chiropractic, with treatment to the neck, right shoulder and upper back, with some benefit to the neck.
There was tingling in the right upper arm and down the left arm to the hand, only to the 4th and 5th fingers of the left hand, and now moreso in the 4th finger. The amount of tingling in the finger is affected by the position of his neck.
He was referred to Professor Tan in October 2021. He was diagnosed with a labral tear of the right shoulder and treated with Mobic. He saw Dr Burne, sports physician, in December 2021. He recommended facet joint injections to the cervical spine for the referral pattern in the C6 and C7 nerve roots following treatment with the exercise physiologist and physiotherapist.
He then saw Dr Jonathan Herald, orthopaedic surgeon, in April, August and October 2022. He recommended cortisone injections for the neck and right shoulder but liability was declined, so these did not occur. He was advised these as diagnostic procedures to determine if the pain was coming more from the neck or from the right shoulder itself. He had update MRI scans of the right shoulder, neck and left hip.
He had a nerve conduction study on 6 September 2022 which was reported as being possibly consistent with chronic radiculopathy left C7, right tC5/6 and left C5/6.
He was referred to Dr Parkinson, neurosurgeon, whom he saw on 28 September 2022 and he diagnosed a possible left C7 radicular compression. He ordered an MRI scan of the brain and right brachial plexus and these were both normal.
At review, Dr Parkinson suggested keyhole decompression at right C5/6 and left C6/7 levels in the cervical spine. Mr Ragni told me he had paid for these specialist consultations himself, as the insurer had declined liability.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Ragni said on 4 May 2021, he had a subsequent accident when a car, which was parked on the left-hand side of the road, came out into the traffic without signalling and hit his left rear wheel whilst he was moving at about 10-15kmph.
He says he did not note any additional injuries at all.
He was given $2,000 by the insurer to cover the damage to his vehicle.
He saw his GP on 10 May 2021 and again on 13 May 2021, when he was sent for an MRI scan of the right shoulder. This was reported to be on account of increased right shoulder pain with impingement.
I asked Mr Ragni about the GP records following the subsequent MVA of 4 May 2021, which seemed to indicate a worsening of pre-existing right shoulder symptoms and resulting in referral for an MRI scan of the right shoulder on 13 May 2021. He told me that the first accident was definitely the cause of the right shoulder injury and that he did not recall any added right shoulder pain resulting from the second motor vehicle accident. Submissions from the claimant’s solicitor reflect this.
He said that three months ago, in approximately June 2023, he was in a third motor vehicle accident at Chatswood, which gave him a big fright and he was taken by ambulance to hospital. He had MRI scan he thinks of the neck and lumbar spine, but was told there was no further damage to these parts.
He had physiotherapy twice a week for eight to nine sessions, with treatment to the back and a bit on the neck and also the right hip which was painful.
Current symptoms
He has neck pain with pins and needles radiating down the left arm to the 3rd and 4th fingers of the left hand. His left hip is sore. He has low back pain with tingling in the left foot and at times in the left calf. He also has ongoing right shoulder pain.
He can’t sleep very well now since the third accident because of increased anxiety. He currently drives a manual Mazda 2 but is very nervous when driving, and a friend of his is helping him with his current part-time job of wine deliveries.
The landlord pays a cleaner to come two hours per week but he makes his own bed, washes his clothes and does cooking. One of the roommates mows the lawn and one of the female roommates does the gardening.
He is independent with person care but does notice right shoulder and neck pain when taking a jacket on and off.
After the index accident of 3 February 2021, he returned to work after a couple of days but noticed increased pain in the right shoulder, neck, left hip, left knee and left ankle, and he had to stop pilates instructing after about two months because of this pain.
He was not having any hospitality work at the time because of the COVID emergency and worked as a cleaner for three or four months, but found it too heavy so he took a COVID disaster payment.
Currently, he works in two part-time positions of self-employment. He had started a wine import and sales and tasting business, which occupies about five hours a week, and he has a tasting for two to three hours about every three months. He is also a trainer of chefs and has his own ABN and works in this job five to eight hours per week.
Current and proposed treatment
He has Mobic about twice a week. He was taking Endep but stopped it, as it was too strong and he couldn’t wake up in the morning.
He takes Sertraline for anxiety and depression, and has been referred to a psychiatrist since the third accident.
He started Somac or a similar drug as a precautionary measure about one months ago and also takes an anti-nauseant as required.
Clinical examination
General presentation
He was of slim build with height 181cm and weight 75kg.
He could stand erect and walked without a limp and sat comfortably whilst relating the history and transferred freely out of a chair and on and off the examination couch.
Cervical spine
Normal contour. There was dysmetria with flexion being two-thirds of normal with extension one-half with complaint of left-sided basal neck pain. Lateral flexion was one-half bilaterally with complaint of left-sided neck pain. Rotation two-thirds bilaterally.
Reflexes and power in the upper limbs were normal. Sensation was normal in the right upper limb but partially reduced to pin prick in the left C7 distribution of the left hand.
Upper arm girth; right 28.5cm, left 29cm measured at 10cm above the elbow crease.
Forearm girth; right 28cm, left 27cm measured at 5cm below the elbow crease.
There were non-verifiable radicular complaints affecting the left upper extremity. There was no guarding and no focal tenderness.
Thoracic and lumbar spine
Lordosis was preserved. There was no dysmetria with flexion being two-thirds of normal range, extension two-thirds of normal range and lateral flexion was also two-thirds of normal range bilaterally. Rotation of thoracic spine was three-quarters of normal range bilaterally.
Reflexes, including medial hamstring jerk, were symmetrical. Plantar responses were both flexor. Power; right equals left. Sensation was intact apart from partial decrease to pin prick in the left S1 distribution.
Sciatic nerve root tension sign was negative bilaterally. There was no guarding and no focal tenderness in the thoracic and lumbar spine.
Thigh girth; right equals left equals 44cm measured at 10cm above the superior patellar pole.
Leg girth; right equals left equals 37.5cm measured at 13cm below the inferior patellar pole.
Right and left shoulders
There was early right deltoid wasting with tenderness at the apex of the right shoulder.
Active range of movement of all joints referred to below were measured with a goniometer.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 90° 180° Extension 30° 50° Adduction 30° 40° Abduction 90° 180° Internal Rotation 50° 90° External Rotation 60° 90°
Lower extremity
Hip Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 90° 90° Extension Normal Normal Adduction 30° 30° Abduction 40° 40° Internal Rotation 30° 15° External Rotation 35° 25°
There was tenderness over the lateral left hip but no gait abnormality.
Knee Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 120° 120° Extension 0° 0°
Consistency
The claimant presented in a straightforward manner. There were no inconsistencies noted.
Imaging
From the file:
· 12/04/21 MRI cervical spine;
· 17/06/21 MRI R shoulder – partial thickness intrasubstance subscapularis tendon tear. Labral tears;
· 18/11/21 MRI L hip;
· 19/07/22 MRI cervical spine;
· 21/07/22 MRI R shoulder – subscapularis intrasubstance tendon tear, labral tear, and
· 04/10/22 MRI brain and right brachial plexus.
DIAGNOSIS, CAUSATION AND REASONS
The diagnoses are:
· soft tissue injury to cervical spine with radicular complaints affecting the left shoulder, left upper extremity to the left hand;
· soft tissue injury to right shoulder with scan evidence of partial rotator cuff tear, and
· soft tissue injury to lumbar spine with radiating radicular symptoms to the left lower extremity.
The accident was a cause of these injuries, as these body parts are mentioned in the early contemporaneous medical evidence, including spine in hospital records, shoulders neck to left arm and back to left hip and leg in GP records. A consistent history is also recorded by the treating specialists, Dr Parkinson and Dr Herald.
The claimant’s account to the Medical Assessor and evidence presented to the Panel does not indicate that the second accident of 4 May 2021 caused any significant aggravation to the above injuries. The Panel accept the claimant’s evidence that the second accident did not cause an increase in his right shoulder symptoms and instead the symptoms began
after the subject accident. It is noted that this is consistent with the history provided to Dr Parkinson, who records ongoing right shoulder complaints after the subject accident, but prior to the second motor accident.The history given by the claimant to the Medical Assessor indicates that there was temporary exacerbation of symptoms of the neck and low back but no additional aggravation, that is, permanent worsening to the injuries caused by the subject accident from the third accident of June 2023.
The Panel noted the contents of report of the Collision and Biomechanics report of
Dr McIntosh which evidences the low energies involved in the subject accident. The Medical Assessors are not aware of any simplistic direct relationship between the extent of external damage to a motor vehicle and the occurrence of injury to the occupant/s of said vehicle. The Panel notes the claimant was (a) taken to hospital by ambulance, and (b) assessed and treated at the hospital emergency department and discharged with anti-inflammatory and analgesic medications for follow up by his GP, followed by (c) a further hospital emergency department assessment for musculoskeletal injuries. Had there been no injury, the above actions would not have taken place. The Medical Review Panel used their clinical judgement to determine that the accident did cause the injuries as outlined above.The Panel notes the original Medical Assessor’s comment that intrasubstance or labral tears (of the shoulder) are common in asymptomatic people and the mechanism of injury does not support them being caused by the accident, however the history obtained at Panel’s re-examination was that the rear impact occurred whilst the claimant was gripping the wheel firmly with his hands, which could result in a mechanical force being transmitted through the upper extremities, and the shoulders became symptomatic immediately after the accident, and were still so a week later when he consulted his GP. A reasonable person might have waited a few days to see if the accident-related symptoms settled down, but this was not the case here, hence the GP visit ensued. The Panel is of the view that population studies showing various coincidental radiological abnormalities in asymptomatic subjects do not, with respect to the Medical Assessor, apply in this situation where the subject, Mr Ragni, was symptomatic.
Threshold injury
The cervical spine injury is a threshold injury because there is no evidence of complete or partial rupture of tendons, ligaments, menisci, or cartilage and there is no evidence of cervical radiculopathy, including two or more of the neurological criteria.
The lumbar spine is a threshold injury for the same reasons applicable to the cervical spine above.
The right shoulder is a non-threshold injury because there was no history given of a right shoulder injury or symptomatic problem prior to the subject accident, and the right shoulder was mentioned in the early contemporaneous evidence, although pain initially was worse on the left side.
The subject motor vehicle accident is, in the opinion of the Medical Review Panel, the most likely cause, of a partial rotator cuff tear of the right shoulder, demonstrated on MRI scan, thus satisfying the definition of non-threshold injury. There was no sufficient break in the chain of causation between the subject accident and the right shoulder injury, based on the evidence before the Panel.
The injuries to the thoracic spine, left and right knee and left hip are threshold injuries, as there is no evidence of complete or partial rupture of tendons, ligaments, menisci or cartilage.
CONCLUSION
For these reasons the Panel revokes the certificate of Medical Assessor Cameron. A new certificate is attached at the commencement of these Reasons.
[i] See s3B(2) of the Civil Liability Act 2002.
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