Rajinikanth v Allianz Australia Insurance Limited
[2024] NSWPICMP 737
•24 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Rajinikanth v Allianz Australia Insurance Limited [2024] NSWPICMP 737 |
CLAIMANT: | Daniel Rajinikanth (formerly Rao) |
INSURER: | Allianz Insurance Australia Ltd |
REVIEW PANEL | |
MEMBER: | Alexander Bolton |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 24 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of certificate of Medical Assessor about whether the following injuries were threshold injuries; injury to the cervical spine, injury to the lumbar spine, injury to the right shoulder, injury to the left shoulder, injury to the right elbow, and injury to the left knee; claimant was injured in a motor vehicle accident on 1 September 2022 in a T-bone collision resulting in his car being written off for insurance purposes; amongst other things the claimant suffered an interstitial delamination in his subscapularis and infraspinatus tendons which the claimant submitted was a non-threshold injury; claimant submitted that he had also suffered two clinical signs of radiculopathy but the Medial Review Panel (Panel) was not satisfied that this was correct; claimant’s treating surgeon reviewed an MRI scan and confirmed this showed a subacromial bursitis and possible rotator cuff tendinosis but no tear and with which the Panel agreed; Held –Medical Assessment Certificate affirmed; the claimant had suffered threshold injuries. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION DETERMINATION The Panel affirms the certificate of Medical Assessor Herald dated 8 November 2023. The Panel finds that the following injuries caused by the accident; (a) injury to the cervical spine; (b) injury to the lumbar spine; (c) injury to the right shoulder; (d) injury to the left shoulder; (e) injury to the right elbow, and (f) injury to the left knee are threshold injuries under the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
This is a review of a certificate, and reasons of Medical Assessor Herald (Medical Assessor) dated 8 November 2023.
When this matter was first referred to the Review Panel (Panel), the claimant was a identified by the name Daniel Rao. Since that time, the claimant has changed his surname and is now identified as Daniel Rajinikanth.
The Panel notes that the parties have accepted part of the decision of Medical Assessor Herald where he concluded:
(a) the following treatment and care:
• the need for further sessions of chiropractic treatment, and
• the need for further physiotherapy treatment
does relate to the injury caused by the motor accident.
(b) The following treatment and care:
• the need for further sessions of chiropractic treatment, and
• the need for further physiotherapy treatment
is reasonable and necessary in the circumstances.
(c) The following treatment or care:
• the need for further sessions of chiropractic treatment, and
• the need for further physiotherapy treatment
will improve the recovery of the claimant.
The Panel is only required to review that part of the decision of the Medical Assessor where he concluded:
“The following injuries caused by the motor accident:
·Soft tissue injury to the Cervical spine, Lumbar spine, both shoulders, right elbow and left knee.
are threshold injuries for the purposes of the Motor Accident Injuries Act (the Act).”
Therefore, this is a dispute between the claimant and the insurer only about whether the injuries caused by the motor accident are threshold injuries under Schedule 2, s 2(e) of the Motor Accident Injuries Act 2017 (the Act).
The following injuries were referred by the Personal Injury Commission (the Commission) for further assessment:
(a) whether injury to the cervical spine – soft tissue injury/ discal injury with radiculopathy into upper limbs caused by the motor accident is a threshold injury for the purposes of the Act.
(b) Whether injury to the lumbar spine – soft tissue/ discal injury with radiculopathy into lower limbs caused by the motor accident is a threshold injury for the purposes of the Act.
(c) Whether injury to the right shoulder – rotator cuff injury/ Interstitial delamination in the subscapularis and infraspinatus tendons and tendinosis with swelling of the anterior and posterior rotator cuff interval, which represents focal tendinosis and a subtle intrasubstance tear caused by the motor accident is a threshold injury for the purposes of the Act.
(d) Whether injury to the left shoulder – rotator cuff injury caused by the motor accident is a threshold injury for the purposes of the Act.
(e) Whether injury to the right elbow – soft tissue injury caused by the motor accident is a threshold injury for the purposes of the Act.
(f) Whether injury to the left knee – soft tissue injury caused by the motor accident is a threshold injury for the purposes of the Act.
The accident
The accident occurred on 1 September 2022. The claimant was driving his car when a collision occurred on his driver's side with a vehicle said to be carrying heavy materials. The claimant reported that his car was a write off. This collision has been described as “T-bone” collision.
The claimant was driven from the accident scene, to obtain medical opinion and assistance, by his neighbour who was helping him out. The claimant reported that his car was a write off for insurance purposes.
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned (WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46]). The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel has come to its own conclusion and has taken its own history.
Threshold injury
A threshold injury is defined in s 1.6 of the Act as a “soft tissue injury” and a “threshold 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.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will not be a non-threshold injury.
Section 1.6(4) provides that regulations may be made to 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 MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident 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 the claimant’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 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.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury”.
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a threshold injury for the purposes of the Act. In respect of the medical assessment of whether an injury is a threshold injury or not, 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.
5.5 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.”
Does the claimant have radiculopathy?
Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in threshold injury assessments.
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in clause 5.6 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 ...
(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.”
For the claimant’s injury to fall outside the definition of threshold injury in s 1.6, he would need to have two of the above signs. Pain is not one of the five signs of radiculopathy which might indicate an injury to a spinal nerve root.
Claimant’s submissions
The claimant says the Medical Assessor failed to consider, acknowledge and to apply the objective radiological findings that were contained within the MRI of the right shoulder report of Dr Hazan dated 1 September 2022.
The claimant submits that this demonstrates that he had suffered “…Interstitial delamination identified in the subscapularis and infraspinatus tendons…” which, the claimant says on any plain reading, demonstrates that his right shoulder pathology unequivocally satisfies the statutory criteria for a finding of a non-threshold injury in relation to his right shoulder as per the provisions of s 1.6 of the Act
The claimant submits that no reference to the above evidence of interstitial delamination of the subscapularis and infraspinatus tendons was made by the Medical Assessor and that the summary scan by the Medical Assessor acknowledges an incomplete analysis of the claimant’s evidence and the omission of crucial objectively verifiable pathology which has resulted in a skewed and materially erroneous diagnosis.
The claimant says that it is baffling why the Medical Assessor provided a selective summary of the MRI scan dated 21 September 2022 and wholly failed to include the crucial recorded pathology of “…Interstitial delamination identified in the subscapularis and infraspinatus tendons…” which, the claimant says, on any plain reading, brings his injuries into the statutory definition of a non-threshold injury.
The claimant says that the common definition of tendon related interstitial delamination is the process of tearing where there is a longitudinal split and longitudinal separation of tendon fibres, which demonstrably falls within the statutory definition of a “non-threshold injury” on the evidence in this claim.
The claimant says that the Medical Assessor has based his findings on an incomplete evidentiary foundation and has made no mention of the above pathology and has not at all grappled with that evidence, which has resulted in material error.
The claimant says the Medical Assessor has not identified any objective evidence of immediate or relevant pre-accident right shoulder symptoms which would support a negative finding on causation and/or provide a basis for assessing pre-accident impairment and applying any appropriate assessment deductions, and has engaged in a exercise of “mere speculation” with regard to his conclusions as to the cause of the claimant’s post-accident right shoulder symptoms which are especially egregious in the face of the above radiological evidence, resulting in his methodology and his negative conclusions on causation and the “threshold” issue being demonstrably tainted by material error.
The claimant says that an MRI scan of 21 September 2022 confirmed the following:
(a) interstitial oedema of the superior fibrils of the subscapularis tendon, extending into the anterior rotator cuff interval, representing either focal tendinosis or a subtle intra-substance tear;
(b) mild interstitial delamination of the infraspinatus tendon insertion, and
(c) tendinosis with swelling of the anterior and posterior rotator cuff.
The claimant says that had the Medical Assessor properly considered and grappled with not only the claimant’s clinical histories, both pre and post-accident, but also with the entire contents of the, MRI scan dated 21 September 2022, the only available finding available to him in relation to the assessment is that the claimant suffered a non-threshold injury as defined by s 1.6 of the Act.
The claimant submits that noting the great inconsistency between the Medical Assessor’s findings and those found in the balance of the claimant’s evidence, none of those inconsistencies were put to the claimant so that he could have a fair chance to respond to them. The claimant submits that this has resulted in a material error in that the Medical Assessor has breached the requirements prescribed by Clause 6.41 of the Guidelines as the claimant submits that he has not been afforded a fair or reasonable chance to address those inconsistencies resulting in a denial of procedural fairness,
The claimant says that a review of the radiological scan taken after the subject accident will confirm that he in fact sustained a tear to the right shoulder, as confirmed in the MRI of the right shoulder on 21 September 2022.
The claimant says that had the insurer considered the medical evidence and the Guidelines properly, it would have found that there is objective evidence that demonstrates that the claimant has sustained a non-threshold injury on the basis that he has sustained a tear to the right shoulder.
The claimant submits that the objective evidence demonstrates that he has sustained a non-threshold physical injury, being a tear to the right shoulder.
The claimant says that with respect to the other injuries sustained by him as a result of the subject accident, the insurer has also concluded that these injuries are also threshold injuries.
The claimant says that according to clause 5.7 of the Guidelines, in assessing whether an injury to the neck or spine is a soft tissue injury, and assessment of whether or not radiculopathy is present is essential.
The claimant relies on the decision of David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227. The claimant says that the observation of radiculopathy can be established at any time.
The claimant says that the Review Panel in David’s case addressed this issue at [100]-[104], and noted the following:
“[100] The Guidelines make provision for the assessment for soft tissue and minor psychological or psychiatric injuries and refer to both an examination, diagnosis, and the assessment process. Clause 5.5 of the Guidelines state that the diagnosis ‘must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the Insurer’.
[101] There is no requirement in clause 5.5 that the assessment be undertaken by the Medical Assessor at first instance or, on review, by the Panel. The reference to ‘other suitably qualified person Independent from the insurer’, suggests that the assessment can be undertaken by a treating doctor.
[102] Clause 5.6 requires that the ‘the assessment of whether an injury caused by the accident is a minor injury’ is based on many factors including prior records and assessments by treating doctors. There is no reason why the reference in clause 5.6(d) to a ‘through physical ... examination’ must be undertaken by a Medical Assessor.
Presumably an insurer can make an admission that an injury is a non-minor injury without every case being disputed and referred for medical assessment. In those circumstances, the admission will be based on a thorough physical examination conducted by a treating doctor.
[103] Clause 5.7 notes that an ‘assessment of whether or not radiculopathy is present is essential’.
However, clause 5.7 refers to both ‘assessing’ and the ‘assessment’ as it refers to ‘assessing whether an injury’ and that an ‘assessment’ is ‘essential’.
[104] In our view clause 5.6 and the surrounding clauses do not require that the assessment be made by a Medical Assessor, and it is sufficient that it be based on a clinical assessment of a medical practitioner independent from the insurer. The meaning of Part 1, clause 4 of the Regulations is satisfied if the radiculopathy is present at any time, although to constitute radiculopathy, at least two clinical signs must be established as specified by clause 5.8.”
The claimant submits that his medical evidence confirms that upon examination with his treating doctors, the claimant presented with at least two clinical signs of radiculopathy, which satisfies the criteria for radiculopathy as determined by David’s case.
The claimant submits that his treating evidence demonstrates the existence of post-accident radiculopathy which satisfy a conclusion of a non-threshold injury as per the provisions of s 1.6 of the Act.
The claimant submits that as a result of the accident on 3 September 2022 he has suffered non-threshold injuries.
The claimant clarifies by way of a further submission in 1 August 2024, that the basis of the review application was that the subject findings of the Medical Assessor contain an obvious error, in that the Medical Assessor has failed to consider, acknowledge and to apply the objective radiological findings which demonstrates that the claimant had suffered a non-threshold injury in relation to his right shoulder as per the provisions of s 1.6 of the Act, noting, the claimant submits, the scans confirm a tear.
Insurer’s submissions
With respect to the claimant’s submissions regarding the MRI of the right shoulder, the insurer makes the following submissions:
(a) the Medical Assessor listed the right shoulder MRI scan and its report under section 22 of his certificate. The claimant brought the medical imaging with him to the assessment. The Medical Assessor confirmed he saw the imaging and read the report. The insurer says it is clear from the certificate that the Medical Assessor considered the MRI in his determination.
(b) The Medical Assessor viewed the imaging and formed an independent medical opinion following his assessment of it. He identified, “Tendinosis with swelling at the anterior and posterior rotator cuff interval. No significant joint or bursal effusion.” The insurer says that the Medical Assessor formed his opinion based on the films and report. He concluded that no tear was present. The insurer says that the Medical Assessor is allowed to reach a clinical opinion based on the evidence before him.
(c) The findings by the radiologist are inconclusive as to whether a tear is present. The MRI states “This may represent either focal tendinosis or a subtle intra-substance tear”. The insurer says that the radiologist has not concluded a tear exists and the finding is inconclusive, and so the Medical Assessor was entitled to bring his expertise and independent clinical discretion to bear.
(d) With regard to the radiologist finding of “interstitial delamination”, the insurer says that this term is not synonymous with or necessarily indicative of tearing. The characteristics of interstitial delamination can vary and can be subject to medical interpretation. The insurer says that the Medical Assessor again, applied his clinical discretion and expertise and concluded that this finding was not a tear.
(e) The Medical Assessor reviewed all relevant documentation, performed an examination, undertook his own clinical analysis of the bilateral shoulders, applied his clinical discretion and then provided reasons for his determination of causation and diagnosis in his certificate.
The insurer referred to the claimant submitting that the Medical Assessor failed to allow the claimant a fair or reasonable chance to address inconsistencies, which resulted in a failure to afford procedural fairness. In response, the insurer says that the submission is irrelevant to the assessment. The insurer says that the Medical Assessor stated in his certificate “His condition is consistent. There is no evidence of exaggeration. He had no features of radiculopathy.”
The insurer says that therefore, the Medical Assessor did not find any inconsistencies and had no reason to ask the claimant to address inconsistencies.
The insurer submits that the Medical Assessor considered the evidence, conducted an in-depth physical examination and provided a clear path of reasoning. Therefore, the insurer says, there was no reason for the Medical Assessor to allow the claimant to address inconsistencies when none were identified.
The insurer submits that the comments made by the Medical Assessor clearly informed his diagnosis of a soft tissue injury to the right shoulder. He found no symptoms of verifiable radiculopathy on examination in accordance with the requirements of clause 6.138 of the Guidelines. The insurer says that the Medical Assessor references his review of the radiology reports and medical imaging and identified pre-existing pathology and ultimately found no evidence of non-threshold injuries in accordance with section 1.6 of the Act
Cervical spine
The insurer submits the claimant sustained a threshold injury to the cervical spine as a result of the accident, in the absence of injury to the nerves, presence of a fracture or a complete or partial rupture of the tendon, ligament, menisci or cartilage.
The insurer referred to an Allied Health Recovery Request (AHRR) which noted “Acute R sided Whiplash injury”, by the claimant’s chiropractor.
The insurer then refers to an MRI completed on 21 September 2022 which referred to the cervical spinal alignment to be normal and that there was no fracture or focal bone lesion. Following on from this, the insurer disputes that evidence has been provided to substantiate the presence of a disc bulge at C4/C5 to be acute in nature.
The insurer says that non-specific pain was described in the report of Dr Nouh dated 20 December 2022. Accordingly, the insurer submits the claimant sustained a soft tissue injury which is a threshold injury.
The insurer disputes a finding of radiculopathy has been made pursuant to Clause 5.8 of the Guidelines.
Lumbar spine
The insurer submits the claimant sustained a threshold injury to the lumbar spine as a result of the accident, in the absence of injury to the nerves, presence of a fracture or a complete or partial rupture of the tendon, ligament, menisci or cartilage.
The insurer says that in particular, the claimant was diagnosed with “lower back pain” as per Certificates of capacity/certificates of fitness.
The insurer disputes a finding of radiculopathy has been made pursuant to Clause 5.8 of the Guidelines.
Right shoulder and right elbow
The insurer submits the claimant sustained threshold injuries to the right shoulder and right elbow. The insurer disputes that it has been substantiated the accident caused a right shoulder tear after consideration of the specialist opinion who viewed the MRI.
The insurer referred to the report of Dr Nouh dated 11 October 2022 who had noted that the shoulder MRI showed subacromial bursitis and possible rotator tendinosis, but no tear.
The insurer also noted that in a general practitioner (GP) consultation note dated 6 September 2022, it was recorded “examination consistent with subtrochanteric bursitis. rotator cuff tear to be excluded”.
The insurer also referred to an X-ray performed of the claimant’s right elbow, right humerus and right shoulder dated 5 April 2023 which noted:
“…normal alignment at the glenohumeral joint. No subacromial bony spurring. No narrowing of the subacromial space. There appears to be minor widening of the acromioclavicular joint space with early subchondral cystic changes at the lateral end of the clavicle suggesting early degenerative changes. No focal bony abnormality of the humerus. There is normal alignment at the elbow joint. No focal bony abnormality”.
The insurer referred to an MRI of the right upper arm and elbow dated 5 April 2023. Following on from this the insurer referred to a comment by Dr Nouh who said: “An MRI scan of his elbow and arm showed a small elbow effusion and possible ulnar nerve neuritis, however, that does not correlate with his symptoms as he has no elbow pain”. The insurer said that in relation to the X-rays of the right shoulder and elbow , Dr Nouh had outlined they looked unremarkable.
Left shoulder
The insurer submits that in the absence of injury to nerves or a complete or partial rupture of the tendon, ligament, menisci or cartilage, then the claimant’s injury to the left shoulder is a threshold injury under the Act, should a finding of causation be made.
The insurer submitted that there was no reference to the left shoulder pursuant to the claimant’s application for personal injury benefits form. The insurer says that additionally, there is no reference to the left shoulder diagnosis within the Certificate of capacity/Certificate of fitness dated 29 September 2022 and 1 March 2023 (A6).
Left knee
The insurer says that in the absence of injury to nerves or a complete or partial rupture of the tendon, ligament, menisci or cartilage, then the claimant’s injury to the left knee is a threshold injury under the Act.
Medical evidence
The following radiological and medical imaging has been provided:
On 21 September 2022 the claimant had an MRI scan of his right shoulder. This noted
“1. Interstitial oedema of the superior fibrils of the subscapularis tendon, extending into the anterior rotator cuff interval, representing either focal tendinosis or a subtle intra-substance tear.
2. Mild interstitial delamination of the infraspinatus tendon insertion.
3. Tendinosis with swelling of the anterior and posterior rotator cuff.”
On the same day, the claimant also had an MRI scan of his cervical and thoracic spine. It was reported that there was C4/5 mild broad based central disc bulge. No other abnormality was detected . Otherwise, it was a normal study.
On 9 March 2023 the claimant had a bone scan of his thoracic spine. No abnormality detected.
There are six reports from Dr Nouh, the claimants treating orthopaedic surgeon, to the claimant’s GP.
Dr Nouh in his report to the claimant’s GP of 11 October 2022, noted the MRI scan of 21 September 2022 showed a mild broad based disc bulge. He said that this did not impinge the exiting nerve root at L4. Regarding the right shoulder, Dr Nouh said that examination was in keeping with impingement pathology.
Dr Nouh said that the MRI scan showed subacromial bursitis and possible rotator cuff tendinosis but no tear.
The MRI scan of 21 September 2022 was inconclusive as it said that the claimant either had focal tendinosis or a subtle intra-substance tear. Dr Nouh, however, was not of the opinion that any tear had been suffered.
The clinical notes of the claimant’s GP do not evidence two or more signs of radiculopathy as having been identified.
Medical Assessor Herald provided his certificate and reasons of 8 November 2023. Regarding the claimant’s injuries to both shoulders the Medical Assessor said that these were soft tissue injuries to both shoulders and most likely secondary to scapulothoracic muscular dyskinesis.
The Medical Assessor examined the claimant and reported:
“Cervical spine examination
On examination of cervical spine, he has tenderness in the mid cervical spine. He has forward flexion at about 75% of range and lateral flexion at 75% range and 50% extension. He has a positive Spurlings test that radiates to both shoulder blades but a normal neurological examination to his upper limbs.
Lumbar spine examination
On examination to his lumbar spine, he has a full range of motion to his lumbar spine. No tenderness and his lumbar spine is stable.
Bilateral shoulder examination.
On examination of both shoulders, he has tenderness on the greater tuberosity and positive impingement signs.
Right elbow
On examination of his right elbow, he has a full range of motion in his elbow and is stable with no pain or tenderness.
Left knee
On examination of his left knee, he has a full range of motion on his left knee with no pain, and no tenderness, and his knee is stable.”
The Medical Assessor concluded that the claimant’s injuries were consistent with soft tissue injuries to his cervical spine and bilateral shoulders. The injuries to the claimants left knee and right elbow had resolved. He assessed that the claimant only had threshold injuries.
Panel medical examination
The claimant was to have been examined by Medical Assessor Moloney on 5 July 2024 but failed to attend the examination. A new time was fixed for 4 October 2024 and the examination took place at that time.
Medical Assessor Moloney’s report follows:
“Mr Rajinikanth attended the medical suites at PIC on 4 October 2024. He was unaccompanied.
Pre-accident history
Mr Rajinikanth stated that he was in good health prior to the accident and had no previous injuries of those assessed today. He was living with his wife and 2 children aged 18 and 12. Prior to the accident he regularly played cricket and badminton. He was working full-time at Telstra as a project manager.
History of motor accident
Mr Rajinikanth was the driver of his car on 1 September 2022 when a car failed to give way and collided with the driver side of his car. He was wearing a seatbelt at the time and airbags were deployed. He states that the impact was at speed pushing his car sideways. He was unable to get out of the driver’s door and had to climb over to the passenger side. His car was later declared a write-off.
A neighbour collected him from the scene of the accident and took him home.
History of symptoms and treatment following the motor accident
Mr Rajinikanth consulted his GP the next day who organised several scans, prescribed analgesics and referred him for physiotherapy. At that time, he continued to have pain in both shoulders and upper arms with neck pain. His GP referred him to an orthopaedic surgeon Dr Nouh for persistent right shoulder pain. Dr Nouh recorded that he had pain in the cervical spine and right shoulder region radiating down the arms at times. Dr Nouh treated him with a cortisone injection into the right glenohumeral joint which gave some initial improvement and follow-up physiotherapy which was of little benefit. Mr Rajinikanth states that he has persistent pain in the right shoulder radiating into the neck which wakes infrequently at night and a follow-up cortisone injection was of no benefit. He had physiotherapy for 4-5 months.
Due to persistent pain, Dr Nouh recommended an arthroscopic subacromial decompression surgery.
There have been no further injuries or accidents sustained since the subject motor accident.
Current symptoms
Mr Rajinikanth has persistent right shoulder pain with an ache in the trapezius muscle region and is associated with stiffness in the cervical spine which he occasionally cracks. There are occasional headaches, and he is unable to sleep on his right side. He states that the left shoulder and arm are asymptomatic but very occasionally he feels a’ shock wave’ sensation in the left arm which is relieved with self-manipulation.
There is no further pain in the right elbow or right arm which has now resolved. He states that his knees are asymptomatic. There is an occasional central low back pain which occurs with prolonged sitting.
He avoids lifting heavy objects and has not returned to any sporting activity. He continues to work for Telstra but is mainly home-based and goes into the office once or twice per week by train. He states that he has no trouble walking and drives without difficulty. He has however ceased his own lawn mowing and gardening.
Current treatment
Present medication is ibuprofen 2 to 3 per day, Voltaren gel and heat packs. No manual therapy is being undertaken at present and he sees his GP when needed. There are no appointments for any follow-up with his specialist.
Clinical examination
Mr Rajinikanth walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is right-handed and height was measured at 169 cm and weight of 67 kg.
Cervical spine
On testing range of movement, flexion/extension side bending rotation were all 80% of expected range with no asymmetry. On palpation there was tenderness over both trapezius muscles and the cervical spine and upper thoracic spines. No guarding or spasm was noted in the cervical musculature.
On neurological examination of the upper limbs, reflexes were of low amplitude but symmetrical with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the upper arms 28 cm in the right and 27 cm on the left (10 cm above the olecranon process) and in the upper forearms 26 cm in the right and 25.5 cm on the left (5 cm below the olecranon process). This is consistent with a right-handed man.
Right elbow
On palpation there was no tenderness around the right elbow with a full range of flexion of 140° and 0° extension, supination and pronation were both 80°.
Lumbar spine
Mr Rajinikanth walked with a normal gait and was able to walk on his heels and toes and squat normally. On testing range of movement, he had a full range of flexion/extension and side bending. On palpation there was no guarding or spasm noted in the lumbar musculature. Straight leg raise when lying was 80° bilaterally and sciatic nerve root tension tests were negative.
On neurological examination of the lower limbs, reflexes were symmetrical with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumferences of the lower thighs 37 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 32 cm bilaterally.
Knees
On inspection of the knees no effusions were apparent and on passive movement no crepitus was detected. Both knees had a flexion range of 140° and 0° extension. No ligament laxity was noted in either knee. There was no tenderness on patella compression.
Shoulders
On inspection of the shoulders, no muscle wasting was apparent and on palpation, tenderness over both scapulae and acromioclavicular joints. There was a diffuse tenderness over the entire right shoulder but no tenderness in the sternocleidomastoid muscles, scalenes or clavicles. There was some tenderness over the distal right deltoid insertion. On passive movement no crepitus was detected in the right shoulder joint.
Active movement was measured using a goniometer and repeated 3 times.
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
110°/90°/90°
150°/140°
Extension
40°
60°
Adduction
30°
40°
Abduction
110°/90°
140°
Internal Rotation
70°
80°
External Rotation
80°
80°
Mr Rajinikanth stated that decreased movement in the right shoulder was due to pain over the supraspinatus muscle and rhomboids with no referral of pain from the cervical spine on movement. Impingement tests were negative on the left and positive on the right. He considers that range of movement decreased in the last year but is unsure why.
Radiological studies were provided by the claimant.
A bone scan was dated 9 March 2023. This showed no abnormalities.
An x-ray of the right shoulder and elbow dated 3 April 2023. No abnormalities were evident.
MRI cervical and thoracic spine dated 21 September 2022. This showed mild broad-based central disc bulge at C4/5.
MRI right shoulder dated 21 September 2022. This showed some subacromial bursitis and tendinosis but no significant insertional tear.
Diagnosis and causation
The Panel has determined that Mr Rajinikanth sustained a soft tissue injury to his cervical, thoracic and lumbar spine and right shoulder at the time of the accident. This was recorded by the treating GP on 6 September 2022 and also in the certificate of capacity dated 2 September 2022. Initially there was also pain in the left knee and right elbow. These injuries were investigated radiologically soon after the accident.
The injury to the left knee and right elbow have now fully resolved. There is no documentation of any injury to the left shoulder and the treating GP recorded left shoulder pain persisting for a few months just prior to the accident with pain in the pectoral muscle region on abduction. The Panel does not consider that there has been a direct injury to the left shoulder in the subject accident.
Injuries assessed today are all threshold injuries. In consideration of the right shoulder, the MRI dated 21 September 2022 reported tendinosis but no significant insertional tear or separation. The initial report recorded either focal tendinosis or subtle intrasubstance tear. However, the treating orthopaedic surgeon Dr Nouh determined that the shoulder MRI showed subacromial bursitis and possible rotator cuff tendinosis but no tear. Assessor Herald viewed the MRI and also determined there was no tear apparent. The Panel came to the same conclusion. Therefore, the right shoulder remains a threshold injury.”
The Panel adopts the report and findings of Medical Assessor Moloney.
Causation
The claimant was driving a car which was collided into in a “T-bone” collision on his right side. The other vehicle was said to have been carrying heavy materials.
The Medical Assessor had to also consider a treatment and care dispute which is not the subject of this review. The Medical Assessor was satisfied that there was a need for treatment and care which was caused by the accident. The Medical Assessor did not however, provide any reasons why he considered the claimants injuries arose from the accident.
There is very little information about the accident, but on the understanding of the Panel, it considers that the impact would have involved some force on the claimant’s right side. In the experience of the Medical Assessors forming this Panel, it would not be unreasonable for the claimant to suffer the injuries claimed by him to his cervical and lumbar spines and to his right side, as arising from the accident in a right sided T-bone collision with a heavy vehicle.
Reasons
The claimant had an MRI scan his right shoulder on one September 2022. The claimant said that this demonstrated “an interstitial delamination identified in the subscapularis and infraspinatus tendons”. As has been noted by Medical Assessor Moloney, the claimant’s treating orthopaedic surgeon, Dr Nouh, determined that the shoulder MRI showed subacromial bursitis and possible rotator cuff tendinosis but no tear. The Medical Assessor also reviewed the MRI and also determined that there was no tear apparent. The Panel came to the same conclusion.
The claimant has submitted that the common definition of tendon related interstitial delamination is the process of tearing where there is a longitudinal split and longitudinal separation of tendon fibres. The claimant says that this demonstrably falls within the statutory definition of a non-threshold injury on the evidence in this claim. The Panel does not agree. The claimant has not provided the source of the “common definition” upon which he relies. In any event, for the reasons discussed below, the Panel says findings of the radiologist are equivocal.
The insurer says that the radiologist, in finding an “interstitial delamination”, has not found something synonymous with or necessarily indicative of tearing. As the insurer says, the characteristics of interstitial delamination can vary and can be subject to medical interpretation. The Panel agrees with the submissions of the insurer that the findings by the radiologist are inconclusive as to whether a tear is present. The MRI report is not conclusive at all when the radiologist, discussing the interstitial oedema, has provided two outcomes being “either focal tendinosis or a subtle intrasubstance tear” (Panel emphasis) but not anything definitive. All of Dr Nouh, the Medical Assessor and Medical Assessor Moloney have exercised their clinical judgment and expertise and concluded that whilst there may have been a delamination, this is not a tear. Therefore, in this regard, the claimant has only suffered a threshold injury.
The claimant has submitted that the Medical Assessor noted inconsistencies with respect to the claimant’s evidence and that these inconsistencies were not put to the claimant for explanation. Medical Assessor Moloney did not find any inconsistencies on examination and consequently this issue was not raised. The Panel notes also that whilst there was a general issue of inconsistencies raised in the claimant’s submissions, no particular inconsistencies were identified or referred to by the claimant. The claimant, it seems, has chosen not to identify and discuss any perceived inconsistencies.
As was noted in the claimant’s submissions, the claimant says that his medical evidence confirms that upon examination with his treating doctors, the claimant presented with at least two clinical signs of radiculopathy, which satisfies the criteria for radiculopathy as determined by David’s case.
Regarding the signs of radiculopathy in the claimant’s cervical spine and lumbar spine, this was assessed by Medical Assessor Moloney. As set out in these reasons, for radiculopathy to be identified, two or more of the following clinical signs are found on examination:
(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, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
The Panel has found that the claimant did not satisfy this threshold as two or more clinical signs of radiculopathy were not identified.
With respect to the claimant’s submissions on this point, the Panel sent the following directions to the claimant on 29 May 2024;
“The claimant is, by close of business 12 June 2024 to identify, as it has submitted;
a. What two or more signs of radiculopathy were identified.
b. Who identified those two or more signs of radiculopathy.
c. When those two or more signs of radiculopathy were identified.
d. In what clinical setting those two or more signs of radiculopathy were identified.”
The claimant did not respond to the Panel and did not provide details of the particulars requested, despite several requests on behalf of the Panel, to the claimant’s solicitors.
Conclusion
Consequent upon the claimant suffering injuries arising out of an accident on 1 September 2022, the Panel is satisfied that the claimant suffered the following injuries:
(a) injury to the cervical spine – soft tissue injury which is a threshold injury for the purposes of the Act;
(b) injury to the lumbar spine – soft tissue which is a threshold injury for the purposes of the Act;
(c) injury to the right shoulder which is a threshold injury for the purposes of the Act;
(d) injury to the left shoulder – is a threshold injury for the purposes of the Act;
(e) injury to the right elbow – soft tissue injury which is a threshold injury for the purposes of the Act, and
(f) injury to the left knee – soft tissue injury which is a threshold injury for the purposes of the Act.
Determination
The Panel affirms the certificate of Medical Assessor Herald dated 8 November 2023.
The Panel finds that the following injuries caused by the accident:
(a) injury to the cervical spine;
(b) injury to the lumbar spine ;
(c) injury to the right shoulder;
(d) injury to the left shoulder;
(e) injury to the right elbow, and
(f) injury to the left knee
are threshold injuries under the Act.
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