Rayner v AAI Limited t/as GIO
[2023] NSWPICMP 201
•9 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Rayner v AAI Limited t/as GIO [2023] NSWPICMP 201 |
| CLAIMANT: | Anne Rayner |
INSURER: | AAI Limited t/as GIO |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Leslie Barnsley |
| MEDICAL ASSESSOR: | Trudy Rebbeck |
| DATE OF DECISION: | 9 May 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about threshold (formerly minor) injury and review of assessment under section 7.26 of Medical Assessor McGrath; claimant involved in car accident March 2018 alleging injury to neck and thoracic spine; all injuries assessed as “minor injuries”; saw GP a few days after the accident and had physiotherapy for six months; for almost three years the claimant did not see a doctor or allied health practitioner for any accident-related issue; Held – the claimant sustained a whiplash associated disorder and musculo-skeletal thoracic pain; claimant did not injure any of her cervical discs in the accident; all changes on radiology were age related and not traumatic; claimant did not sustain an injury to her spinal nerve as there were none of the five signs of radiculopathy present at the time of the re-examination or suggested in the notes or reports of other examiners; claimant aggravated pre-existing asymptomatic degenerative changes in her spine producing pain; pain is a symptom and aggravation injury is a threshold injury; in conclusion, the claimant did not sustain any non-threshold injuries. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate of Medical Assessor McGrath 7 August 2022. 2. Certifies that the injuries sustained by Ms Rayner are threshold injuries for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Anne Rayner (was involved in a rear-end motor accident on 24 March 2018. She was the front seat passenger in a car driven by her husband and says she was injured in the accident.
On or about 5 April 2018, Ms Rayner made a claim against GIO, the third-party insurer of the vehicle that ran into the Rayners’ vehicle.
A dispute arose in connection with that claim about whether the claimant’s injuries sustained in the accident were “minor” injuries within the statutory definition.[1] On 7 August 2022 Medical Assessor McGrath determined they were. The claimant was disappointed with that decision and lodged an application for review with the Personal Injury Commission (the Commission).
[1] On 7 August 2018 the insurer denied liability for statutory benefits after 26 weeks on the basis the claimant’s injuries were only “minor” injuries. On 19 September 2020 the claimant’s solicitors requested an internal review of that decision and on 6 October 2020 the internal review affirmed the original decision.
On 11 October 2022, a delegate of the President of the Commission determined the application for review finding there was reason to suspect a material error in Medical Assessor McGrath’s assessment and on 13 October 2022, the President convened the Review Panel.
LEGISLATIVE FRAMEWORK
Jurisdiction
Ms Rayner’s claim is governed by the provisions of the Motor Accident 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.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that, in accordance with ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “threshold” injuries.
Threshold injury
A threshold injury is defined in s 1.6 of the MAI Act as a “soft tissue injury”[2] and s 1.6(2) of the MAI 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.”
[2] Thee MAI Act also provides for threshold psychiatric or psychological injuries but as the issues in these proceedings relate solely to Ms Rayner’s physical injuries there is no need to refer to them.
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.
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, 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 Ms Rayner’s claim, clauses 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and clause 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.[3] 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”.
[3] Chapter 6 of the Guidelines.
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 MAI Act.[4] In respect of the medical assessment of whether an injury is a threshold injury or not, the Guidelines relevantly provide:
[4] The current version of the Guidelines I version 8.2 effective 8 April 2022.
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury … caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
The method of assessment in Part 5 does not appear to be limited to the assessment of threshold injury disputes by medical assessors and Panel members but would appear to extend to medico-legal or other experts retained by the claimant and the insurer upon which the insurer’s liability notices are based under s 6.19(2).
Dispute resolution
If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[5]
[5] Schedule 2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor McGrath’s, further medical assessments and the Review of medical assessments by a review panel.[6]
[6] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
Medical Assessor McGrath examined the claimant on 4 August 2022 and issued a certificate dated 7 August 2022. He records that he was asked to assess:
(a) whether the posterior disc protrusion – lower back injury caused by the motor accident is a minor injury for the purposes of the Act;
(b) whether the neural foraminal stenosis – lower back injury caused by the motor accident is a minor injury for the purposes of the Act;
(c) whether the worsened arthritis in neck – neck injury caused by the motor accident is a minor injury for the purposes of the Act, and
(d) whether the whiplash – neck injury caused by the motor accident is a minor injury for the purposes of the Act.
In a letter from the claimant’s solicitors to the Commission dated 8 July 2022 is a request that the following additional injuries be determined:
(a) whether the aggravation of degenerative changes in the lumbar spine is a minor injury, and
(b) whether the aggravation of underlying changes in the cervical spine is a minor injury.
There is also within the file, an email from the claimant ‘s solicitor to the insurer (and then to the Commission) adding a final injury “whether the cervical disc protrusion is a minor injury for the purposes of the 2017 Act.”
Medical Assessor McGrath took the following history from the claimant:
(a) she is 55 years of age;
(b) she had a pre-accident bilateral carpal tunnel syndrome for which she had surgery but no previous accidents, falls or broken bones;
(c) she is a teacher with an interest in fine arts but no sporting interests other than walking;
(d) she was the front seat passenger in a car driven by her husband when it was run into from the rear. The car was driveable, and police and ambulance did not attend, and
(e) the accident happened on a Saturday afternoon. Three days later when the claimant returned to work (Monday) she felt neck pain. She saw her general practitioner (GP) and had six months of physiotherapy.
The claimant denied any lumbar pain at all but had pain between the shoulder blades in the upper thoracic region with less significant pain towards the base of her neck and no pain radiating to the shoulder blades or arms. She says this pain is constant and she has adapted her lifestyle (e.g. reduced working hours) which depresses her.
The claimant is having no current treatment.
On examination of her neck, Ms Rayner had a normal range of motion without spasm or guarding but pain at the end of range of movements. She had no non-verifiable radicular symptoms. Neurological examination of the upper limbs were normal and there was no radiculopathy.
When her thoracic spine was examined, there was discomfort at the end of a normal range of motion in the upper thoracic region. There were no neurological symptoms or signs.
He reviewed the 21 October 2021 bone scan which showed “increased uptake from C4 to C7” in the neck but no uptake in the upper thoracic region.
Medical Assessor McGrath assessed a soft tissue injury to the cervicothoracic spine. He found no evidence of lumbar spinal injury. He certified all injuries were “minor” injuries.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant argues that Medical Assessor McGrath did not consider four documents submitted by way of the late documents process including a medical report of Dr Khong dated 18 January 2022, a CT scan of 24 June 2018, an MRI of 10 August 2021 and a bone scan of 21 October 2021. The claimant says while the Medical Assessor refers to the bone scan because the claimant brought it with her, he has not referenced any other radiology in his decision suggesting he did not have them and has not read them.
The claimant also argues that Medical Assessor McGrath has not addressed the additional question of whether the cervical disc protrusion is a minor injury. The claimant says while the Medical Assessor diagnosed a soft tissue injury, he does not address whether the protrusion of the claimant’s cervical disc was caused by the accident.
Insurer’s submissions
The insurer says if the late documents were not provided to the Medical Assessor then the appropriate course of action would be for the Commission to return the medical dispute to the Medical Assessor with the documents and ask him to complete his assessment.
The insurer also notes that the CT scan of 24 June 2018 was attached to the insurer’s reply to the original application for medical assessment, the bone scan was also before the Medical Assessor and the claimant’s summary of the MRI from August 2021 was not correct.
The insurer concedes the Medical Assessor did not specifically answer the questions about whether the cervical disc protrusion was caused by the accident and if so whether it was a minor or non-minor injury.
The insurer says the claimant has not shown how the apparent failure to consider these documents or consider the unanswered questions would lead to a material change in the assessment.
Procedural matters
The Panel met on 5 December and reported to the parties on 6 December 2022. The Panel noted the four injuries Medical Assessor McGrath was asked to assess and acknowledged communication from the claimant’s solicitors to the Commission dated 8 July and 3 August 2022 requested the following additional injuries be assessed:
(a) whether the aggravation of degenerative changes in the lumbar spine is a minor injury;
(b) whether the aggravation of underlying changes in the cervical spine is a minor injury, and
(c) whether the cervical disc protrusion is a minor injury for the purposes of the MAI Act.
The Panel noted there was a clear record of a neck injury but no record of a lower back or lumbar injury and if so, the Panel requested the claimant confirm whether she alleged a lumbar spine injury and if so to point to the evidence that supports that injury.
The Panel confirmed receipt of the claimant’s bundle and the records from her pre-accident GP which included three consultations after the accident in 2018 and then a gap of three years until April 2021. The Panel observed there were no pre-accident records. The Panel advised it would proceed, subject to submissions or additional documentation, on the basis that the claimant did not attend Dr Ibrahim or Dr Nguyen or any other GP for complaints related to the motor accident in that nearly three-year period.
The Panel requested access to the radiology (not just the reports) and invited the parties to make final submissions.
Final submissions
The claimant has contacted the Commission to confirm there was no lower back injury sustained in the accident and that the claimant did not see any doctor between 2018 and 2021 in relation to her accident-related injuries.
On 11 April 2023 the Panel contacted the parties with regards to the re-examination and directed the claimant provide her radiology to the examining member of the Panel.
REVIEW OF THE EVIDENCE
Claim form, claim documents and statement
The claim form completed on 5 April 2018[7] identifies injuries to the neck and upper back. The claimant says:
“I have incurred whiplash related injuries, including consistently painful and stiff neck and upper back, reduced neck mobility and frequent headaches. These particularly impact my ability to sit whilst driving to work and also using a computer, both of which are a requirement of my occupation.”
[7] Page 8 of the claimant’s bundle.
There is a medical certificate from Dr Nguyen dated 5 April 2018[8] saying the claimant saw her today “complaining of same pain same site (as she did to Dr Ibrahim on 27 March 2018) which I think it is consistent with a muscular pain”. The claimant was said to be taking anti-inflammatory medication and required physiotherapy.
[8] Pages 14 and 15 of the claimant’s bundle.
A certificate of capacity signed by Dr John Ibrahim on 24 May 2018[9] identifies injuries to the neck only (pain and stiffness) following a slow speed rear end collision and says analgesia, physiotherapy and a CT scan of the cervical spine was necessary.
[9] Page 22 of the claimant’s bundle.
The claimant has provided copies of two photographs[10] which, while black and white, and not overly clear show:
(a) the claimant’s husband’s vehicle with impact damage to the number plate, bumper bar and boot, and
(b) the insured vehicle with what appears to be a broken grill or light on the front bumper area, number plate damage, deformation of the front grille and deformation of the bonnet.
[10] Pages 16 and 17 of the claimant’s bundle.
There is a CT scan dated 14 June 2018[11] which includes a history of “ongoing neck pain”. There are two disc protrusions reported at C3/4 and C4/5 with the latter indenting the theca more so on the right with neural foraminal stenosis. The comment was “cervical spondylosis. Multilevel abnormalities as described.”
[11] Page 37 of the claimant’s bundle.
There is a certificate of fitness dated 19 September 2018 from Dr Atta of Healthplus Menai[12] diagnosing a whiplash injury and advising the claimant have physiotherapy, take analgesia (Panadol and Nurofen) and that her work duties be modified to account for lifting and pushing / pulling restrictions.
[12] Page 19 of the claimant’s bundle.
The claimant provided a statement in support of her late claim application which says:[13]
[13] AD5 in the Commission’s electronic file.
(a) she is 56 years of age;
(b) she is a high school teacher
(c) she has never been involved in an accident or made a claim and was in good health before the accident;
(d) she was the front seat passenger, her husband was the driver and her two children were in the back. They were hit from behind by a car driving faster than them;
(e) police attended and made a report;
(f) the claimant did not seek treatment that day as she said she was more concerned for her daughters;
(g) she experienced pain and stiffness in her neck the next day and saw her GP Dr Ibrahim and had physiotherapy;
(h) she made her own motor accident claim after doing her own research;
(i) she received the insurer’s minor injury decision and thought she would recover so did not challenge it;
(j) physiotherapy continue paid for by the insurer beyond the first six months;
(k) during 2019 and 2020, “it became increasingly apparent to me that my neck injury was permanent and was not getting better”. She says that certain activities led to extreme pain “in my neck and back”. After each of these episodes “it takes around 2 weeks of rest to get back to a baseline of normal”, and
(l) the claimant saw Dr Eric Limb in December 2021.
Treating medical records and reports
The claimant was a patient of the Healthplus medical centre and saw Dr Ibrahim. Of that practice. Pre-accident records date back to January 2017. The claimant attended several times for vaccinations. On 23 August 2017 the claimant attended for “stress and anxiety associated with her family and it is recorded: flare up of left wrist OA – uses Mobic PRN”.
The notes from the date of accident include the following attendances.
(a) 27 March 2018 – Dr Ibrahim – slight residual neck stiffness, nil radiation to upper limbs, full unrestricted range of motion around cervical spine, mild trapezius stiffness. She was said to need massage and heat packs and was prescribed Celebrex;
(b) 5 April 2018 – Dr Nguyen – ongoing pain in upper thoracic spine and neck and shoulder (right) which had not improved with the Celebrex. Ms Rayner denied neurological symptoms and asked to see a physiotherapist. On examination there was no tenderness but mild neck stiffness although a full range of motion in the neck and shoulder. There was a normal neurological examination. Mobic was ceased and physiotherapy was arranged;
(c) 24 May 2018 – Dr Ibrahim – “still complains of neck pain and stiffness since MVA”. The claimant had been having regular physiotherapy and had a full range of motion but claimed tightness and pain when looking forward. Ms Rayner denied radiating pain or underlying neck injuries and was claiming injuries and compensation. She was referred for a CT scan;
(d) 12 April 2021 – Dr Ibrahim – “ongoing neck pain / interscapular region since MVA 2018”, claims worse pain on looking down, has to adjust desktop, unable to put washed clothes on the line and has to lift her phone to read it. Seeking legal action. Ms Rayner was referred to neurosurgeon Dr Saeed Kohan and prescribed Mobic, and
(e) 31 July 2021 – Dr Gulyaeva – chronic neck pain. Had whiplash injury two years ago. An MRI of the cervical spine was requested, and physiotherapy advised.
The claimant attended upon Dr Khong (neurosurgeon) who reported to Dr Ibrahim:[14]
(a) on 11 October 2021 – the claimant said at the time of the accident she was a passenger looking down at her mobile phone. She complained of ongoing lower posterior neck and interscapular pain, difficulty looking up and down, and there was occasional radiation to the right shoulder. She had no numbness, pins and needles or tingling. There was no pain radiating down the arms. Dr Khong recommended physiotherapy an up to date scan and he referred her to Dr Eric Limb to assist her with her CTP claim, and
(b) on 9 December 2021 – the claimant felt her carpal tunnel symptoms were returning (surgery in 1996). He considered her radiology from June 2018 to the MRI of August 2021 and the bone scan of 21 October 2021. His diagnosis was “she experienced a severe musculoligamentous strain as well as an exacerbation of pre-existing degenerative changes from which she has never recovered”. He suggested non-operative management but flagged that a C6/7 fusion could be considered.
[14] Pages 50-53 of the claimant’s bundle.
A report from Dr Khong dated 18 January 2022 has also been provided[15] it adds little to the picture. The insurer asked Dr Khong whether the claimant had a “minor injury”. It is not clear whether the insurer had provided him with a copy of the legislation, Regulation and Guidelines. He suggested the claimant did not have a minor injury but did not provide reasons which reference the statutory framework.
[15] Page 57 of the claimant’s bundle.
The claimant has included an allied health notice of commencement of physiotherapy dated 11 April 2018 from the Menai Metro Physiotherapy and Sports Injury practice.[16] The form refers to dull crown-like headache, thoracic and cervical spine and suggests postural retraining was necessary.
[16] Page 84 of the claimant’s bundle.
The allied health request for physiotherapy number 1 from the same practice and dated 12 October 2018 refers to a whiplash injury, cervical strain and headaches. The current signs were bilateral neck and thoracic spine pain. The claimant was reported to have had some physiotherapy soon after the accident and was almost pain free in June 2018 but has got more and more sore to the point she now has about 75% of the symptoms she previously had. The first service was said to be 11 April 2016.[17]
[17] This appears to be an error and the Panel is proceeding on the basis the first service was 11 April 2018.
Radiology
The claimant had a CT Scan on 14 June 2018[18] with a history of “ongoing neck pain” which reported cervical spondylosis and multilevel abnormalities including the following:
(a) C3/4 broad posterior disc protrusion and osteophytic ridge complex indenting the theca – nerve root exits are normal despite mild uncovertebral joint degenerative disease;
(b) C4/5 posterior disc protrusion and osteophytic ridge complex indenting the theca more on the right and with right neural foraminal stenosis;
(c) C5/6 disc and osteophytic ridge indenting the anterior theca and mild, right neural exit encroachment, and
(d) C6/7 minor posterior lipping and posterior central disc protrusion indenting the theca with minimal encroachment of the right nerve root.
[18] Page 37 and repeated at page 59 of the claimant’s bundle.
An MRI of 7 August 2021[19] was done with the clinical history of “? Neck pain post injury”. The reported conclusion was, “spondylotic changes most evident at C4/5 where there is severe right foraminal stenosis which may be irritating the exiting right C5 nerve root”. There was normal cord signal throughout the spine and the following features were noted:
(a) C2/3 – disc desiccation with minimal facet joint arthrosis;
(b) C3/4 – small circumferential disc and uncovertebral joint osteophytic ridge with minimal facet joint arthrosis;
(c) C4/5 – circumferential disc and uncovertebral joint osteopathic ridge. There was severe narrowing of the right neural exiting foramina and mild narrowing on the left;
(d) C5/6 – small circumferential disc and uncovertebral joint osteophytic ridge with mild facet joint arthrosis and minimal narrowing of the neural exit foramina on both sides;
(e) C6/7 – small circumferential disc and uncovertebral joint osteophytic ridge with mild facet joint arthrosis and minimal narrowing of the neural exit foramina, and
(f) C7/T1 – normal disc contour, no narrowing of the central canal or neural exit foramen.
[19] Page 60 of the claimant’s bundle.
A bone scan undertaken on 21 October 2021 found uptake with degenerative change involving C4/5 vertebral body endplates (mild) and moderate at C6/7 and no significant facet joint arthropathy.
Medico-legal reports
Dr John Bentivoglio provided a report to the insurer dated 9 December 2022.[20] He has a consistent history of the accident with symptoms in her neck not starting immediately but that they became significant about two or three days after the accident. She reported no previous neck problems. She did say she had a previous carpal tunnel surgery on the right in 1996.
[20] Contained within AD8 in the Commission’s file.
Ms Rayner said she had imaging done of her neck and referred for physiotherapy which did not help and she tried taking anti-inflammatory medications and with no relief she was referred to a specialist Dr Khong. Dr Khong advised her to have an injection in her spine and a bone scan but did not advise surgery.
The claimant reduced her workload but no longer has any treatment.
The claimant complained of pain that more interscapular than neck pain which can involve both shoulders and is worse on the right. She felt she had restricted neck movements and her symptoms were said to increase with activity and there has been no alteration in her level of symptoms recently. The claimant said she took Mobic or ibuprofen daily.
On examination of the neck, there was no spasm, three quarters of the normal range of motion and no muscle wasting in the forearms. There were no neurological abnormalities in the upper limbs. Ms Rayner complained of hearing crepitation in her neck but Dr Bentivoglio could not feel them.
Dr Bentivoglio diagnosed an aggravation of pre-existing degenerative changes in Ms Rayner’s spine. He said there was no evidence of nerve root irritation or compression and no significant radiation of symptoms into her upper limbs. He thought the cortisone injection would not make any difference or that surgery is necessary.
He expressed the view the injury was a “minor” injury for the purposes of the MAI Act.
Dr Vickery, psychiatrist provided a report to the insurer dated 16 January 2023.[21] The claimant told Dr Vickery she had neck symptoms the day after the accident and was referred for physiotherapy. She said she had reduced her activities because of pain and felt she. Was double checking her work. Dr Vickery made no diagnosis “as there is no clinically significant psychiatric impairment in social occupation or other important areas of functioning”.
[21] Contained within document AD8 in the Commission’s file.
Other assessments
The claimant’s psychological injury was assessed by Medical Assessor Friend. He examined the claimant on 6 April and issued his certificate of assessment on 16 April 2023.
Medical Assessor Friend has a consistent history of the accident and pain developing the next day at the back of her neck down to between her scapulae. She saw a doctor and had physiotherapy which relieved the pain a little.
Ms Rayner said she has adjusted the way she works and has stopped teaching Art but is working as a learning support teacher.
Medical Assessor Friend records the claimant has continued symptoms in her neck and upper back and that she is frustrated, angry and irritated as a result. She takes care with everything she does at home and generally does less around the home.
Medical Assessor Friend diagnosed an adjustment disorder with mixed anxiety and Depressed Mood caused by the accident. He refers to the legislation and notes this is a threshold (formerly minor) injury which does not allow the claimant to continue receiving benefits or claim damages.
RE-EXAMINATION FINDINGS
Anne Rayner was re-examined by Medical Assessor Rebbeck in her rooms in Sydney on 26 April 2023.
History
The following history was taken from Ms Rayner.
Pre-accident medical history and relevant personal details
Ms Rayner stated that she is married and lives with her husband and three children aged 15,19 and 25. She denied any significant pre-accident pain, specifically no previous neck, back pain or headaches. She has a history of carpal tunnel syndrome, undergoing surgery in 1996.
Before the accident, Ms Rayner stated that she had finished her Masters in Teaching, for which she received several awards. She commenced her first job after the masters, in a maternity leave position. She worked five days per week between this permanent part time job and other casual teaching.
Ms Rayner stated she was physically active before the subject accident and would walk 30 mins to an hour daily as well as do regular gym/floor exercises.
History of the motor accident
Ms Rayner told me that was a passenger in the vehicle her husband was driving. She was texting her friend and recalled her head was looking down at the time of the accident. She recalled receiving a “nasty jolt” when their vehicle was rear ended.
She recalled felling a “bit stiff” but they travelled home, as they were celebrating her son’s birthday that evening. Over the next few days she developed pain in her lower neck and upper back (thoracic spine).
History of symptoms and treatment following the motor accident
General practitioner
Ms Rayner said that she attended her GP who prescribed medicaitons and referred her to physiotherapy.
Physiotherapy
Ms Rayner explained that she attended physiotherapy for approximately six months. Sessions began at a frequency of around twice per week, then reduced to once per week. She recalls treatment consisting of manual therapy and exercises. When asked about the effect of this treatment, she said it provided temproary relief.
Ms Rayner has since self managed her pain by altering her posture and using heat, ice or medicaitons as required.
She stated that physiotherapy has ceased since the insurance company stoppped paying for treatment.
Medical specialists
Ms Rayner has consulted Dr Khong. She recalled that his advice was to take anti-inflammatories and that there is the potential for surgery, but he was not convinced surgery would help. Ms Rayner mentioned that injections were suggesteed but these were too expensive for her.
Psychology/counselling
Ms Rayner has also atteded the school counsellor who has helped with her distress. She has not had formal psychological assessment or treatment.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Rayner denies any significant injuries or conditions sustained since the motor accident.
Current symptoms
Ms Rayner completed a body chart which indicates where her current symptoms are. This has been reproduced below. She described her current symptoms as follows:
(a) posterior lower cervical, upper thoracic pain , worse on the right, varying in intensity from 5-9/10;
(b) intermittent posterior headache (intensity 4/10). She feels the headache is related to the neck pain, and
(c) intermittent pins and needles in the right hand (which she felt was similar to carpal tunnel symptoms).
She denied any arm pain or pins and needles anywhere else.
Symptoms are aggravated by sustained postures holding her arms up, looking down for long periods of time or moving her neck up and down. She can temporarily relieve symptoms by adjusting her posture and with rest. She finds it difficult getting to sleep when symptoms are aggravated.
[image unable to render]
Current function
Ms Rayner stated that her function is considerably affected due to the accident. With respect to her work, she stated that due to the pain she had to initially refuse causal jobs and permanent part-time jobs she was offered.
She eventually returned to work at her original school and stayed there for four years (until 2021). She gradually increased hours until she was working two to three days per week. She stated that she found the work painful, and it took her more time to complete tasks than usual due to the pain. She eventually left this job (teaching art and English) and moved to a new school to work as a special needs teacher. She stated she made this change as she felt she could control the tasks and the environment a bit more. Currently she works four days per week as this school.
Ms Rayner stated that she no longer does regular physical activity (such as walking) due to time constraints. She explained that because it takes her longer to complete her work tasks, she no longer has time to exercise.
With respect to her tasks at home, she has reduced her usual activities such as cooking and cleaning. As a result, the family eat more take-away food than before the accident. Ms Rayner was asked to rate her ability to perform some activities using the Patient Specific Functional Scale (range 0/10 (unable to do at all) to 10/10 (same as before the accident). These were rated as follows:
(a) cooking 2/10;
(b) working 1/10, and
(c) exercise 2/10.
Her global perceived recovery was rated at 1out of 5 (where the scale is minus 5/5 vastly worse to 0 unchanged to plus 5/5 completely recovered).
Questionnaires and beliefs
Ms Rayner completed the following questionnaires after the examination.
(a) Neck Disability Index: 31/50. This indicates moderate self-reported disability due to neck pain;
(b) the Orebro Musculoskeletal Pain Screening Questionnaire: 88/100. This indicates a high risk or poor outcome, and
(c) impact of Events Scale: 73/75 indicating possible post-traumatic stress symptoms.
Imaging brought to the assessment
Ms Rayner brought the following imaging to the assessment that were viewed by Medical Assessor Rebbeck:
(a) MRI cervical spine 7 August 2021; viewed on CD). The summary of the radiologist (Dr David Rowan) reads, “Spondylotic changes most evident at the C4,5 level where there is severe right foraminal stenosis which may be irritating the exiting right C5 nerve root”.
(b) X-ray cervical spine (21 October 2021; physical films viewed). The summary of the radiologist (Dr Philip Herald) reads “Endplate degeneration and disc height narrowing is demonstrated, moderate at C3 to C5 and severe at C5 to C7. There is not significant facet joint arthropathy”.
(c) Nuclear Medicine Bone scan (21 December 2021; printed images viewed). The summary of the radiologist’s report (Dr Philip Herald) reads “There is uptake consistent with degenerative change involving the C4,5 vertebral endplate (mild) and C6,7 vertebral body endplate (moderate)”.
After viewing the images of the three different methods above, Medical Assessor Rebbeck concurs with the radiologists’ reports.
The CT of Ms Rayner’s cervical spine dated 13 June 2018 was not brought to the assessment. The electronic link to the images was subsequently provided. Medical Assessor Rebbeck viewed these images. The summary of the radiologist s report (Dr Helen Scott) reads: “Cervical spondylosis. Multilevel abnormalities as described”. These are described as disc protrusions and osteophytic ridges at multiple levels including C3,4, C4,5, C5,6 and C6,7 report reads. After viewing the images, Medical Assessor Rebbeck agreed with the radiologist’s report.
Clinical examination
Cervical spine (cervicothoracic)
There was reduction in cervical range of motion, particularly in extension (30 degrees). There was pain at the end range of cervical flexion (60 degrees) and bilateral rotation (70 degrees).
There was reduced cervical flexor endurance (supine head lift hold was 10 seconds).
There was generalised tenderness to palpation over the facet joints but most evident at C2/3 and C5/7. There was tenderness to palpation over the trapezius and levator scapulae muscles.
Thoracic spine
There was normal range of motion for the thoracic spine, including normal range of flexion, extension, and rotation. There was reported pain at the end of range for cervical extension and right rotation.
There was tenderness to palpation over the facet joints of T3-5 bilaterally and over the posterior thoracic muscles.
Neurological assessment.
An upper limb neurological examination was normal. Specifically, there were normal responses to both the biceps and triceps reflex. There was normal myotomal strength. There was some (minimal) reduced sensation at the end of the middle finger on the right which is consistent with symptoms due to carpal tunnel problems and not in a dermatomal distribution suggesting nerve root injury. There was no muscle wasting or evidence of atrophy in either limb.
Comments on consistency
Ms Rayner presented in a consistent manner, with no obvious illness behaviour. She was pleasant and co-operative and was able to perform all of the active movements consistently.
CONSIDERATION OF THE ISSUES
Diagnoses
With respect to the cervico-thoracic symptoms, it is the clinical judgment of the medical members of the Panel that the claimant’s symptoms are consistent with a
(a) whiplash associated disorder (WAD) grade II, and
(b) musculo-skeletal thoracic pain.
The reasons for the diagnosis are:
(a) the area of Ms Rayner’s symptoms as described by her are felt in the lower cervical and upper thoracic region (see the body chart) and not in her arms. This is, in the clinical judgment of the medical members of the Panel, consistent with common symptoms reported following a rear-end whiplash mechanism injury;
(b) the reduced range of motion and tenderness to palpation fulfils the WAD classification of WAD grade II which is essentially a musculoskeletal injury;
(c) these symptoms commenced after the accident, and
(d) there is no prior history of neck or thoracic pain.
This diagnosis is consistent with that provided by the treating clinicians including the treating GP, physiotherapist and the opinion of neurosurgeon Dr Khong.
Is there an accident-related injury to a disc in Ms Rayner’s cervical spine?
The claimant’s application poses the question of whether the claimant’s cervical disc protrusions are a threshold injury for the purposes of the MAI Act.
It is the clinical judgment of the medical members of the Panel that the imaging changes seen on both the 2018 CT and the 2021 MRI are consistent with normal age-related degenerative changes in the cervical spine for the following reasons:
(a) the changes seen on the films are at multiple levels which indicates age-related degeneration of the whole cervical spine rather than accident-related trauma which the Panel would expect to see at a single level;
(b) the changes include osteophytic growth (bone spurs) with the discs which is an age-related change and is not traumatic;
(c) the claimant’s most recent imaging shows disc desiccation (drying out of the disc) at C2/3 which is an age-related degenerative change;
(d) while the claimant’s CT scan of 2018 suggested several disc protrusions, the most recent and more accurate MRI scan of 2021 showed small circumferential disc bulging at C3/4, C4/5, C5/6 and C6/7. A finding of circumferential disc bulging suggests a loss of volume of the discs at those levels as a whole as opposed to a specific fissure or tear. Circumferential disc bulging is consistent with age and does not indicate trauma to the disc, and
(e) the severe right foraminal stenosis at C4/5 and minimal narrowing at C5/6 and C6/7 is also not accident related because it is caused by the development of osteophytes (bony spurs) which occur over time and cannot be caused by a traumatic event such as a car accident.
The Panel is not satisfied that there is an accident-related injury to the disc at any level of the claimant’s cervical spine.
Is there an accident-related injury to a spinal nerve?
While a nerve is a soft tissue, an injury to a nerve is not a soft tissue injury and therefore not a threshold injury in accordance with s 1.6(2) of the MAI Act. However, the Regulation provides at cl 4(1) that an injury to a spinal nerve manifesting in neurological signs with radiculopathy present is not a soft tissue injury and is therefore not a threshold injury. If Ms Rayner has or has had radiculopathy as a result of a spinal nerve injury, then she would have a non-threshold injury.
Clause 5.8 of the Guidelines requires there to be two or more of the following clinical signs found on examination for the presence of radiculopathy to be established:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(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.
Radiating pain into the shoulders or down the arms is not one of the five signs of radiculopathy specified in the Guidelines.
On examination by Medical Assessor Rebbeck, all Ms Rayner’s reflexes were present and normal, there was no muscle atrophy in the upper limbs and no muscle weakness. While there was some sensory loss in the index finger on the right, it is the clinical judgment of the medical members of the Panel this is related to her carpal tunnel syndrome as it does not follow an appropriate dermatomal pattern indicating nerve root compression.
There is nothing in the GP records to suggest the presence of any of the five signs of radiculopathy at any consultation after the accident. The Panel notes that in 2018 Ms Rayner denied neurological symptoms in the upper limbs.
There is also nothing in the records of Dr Khong to suggest the claimant had any of the five signs of radiculopathy when Ms Rayner was examined by him.
When examined by Dr Bentivoglio there were also no signs of radiculopathy found on his examination.
The Panel is not therefore satisfied that the claimant has had a non-threshold injury in respect of any spinal nerve injury at any time since the date of the accident.
Is the worsening or aggravation of cervical spine changes a threshold injury?
The claimant’s application was amended to ask whether the claimant’s worsening arthritis in her neck and the aggravation of underlying changes in her cervical spine were not threshold injuries.
Osteoarthritis is a degenerative age-related condition which the medical members of the Panel note progresses and worsens as a person ages. Osteoarthritis is not caused by trauma although it can be aggravated by trauma.
The aggravation of age-related degenerative changes in the spine is an injury, but the underlying condition (such as in this case degenerative discs or osteophytes) must be considered as pre-existing and the degenerative changes present in Ms Rayner’s spine therefore were not caused by the accident.
The Panel has found that Ms Rayner’s accident did not cause any injury to the claimant’s discs, it did not cause the growth of osteophytes or the foraminal stenosis. The accident may have rendered symptomatic these previously asymptomatic features in her spine causing pain which is a symptom of injury.
The Panel accepts the claimant has pain in her cervical and thoracic spine and she has had that pain since the accident, but the presence of pain, and the level of it, is not recognised in the legislation as falling beyond the definition of threshold injury.
CONCLUSION
The Panel accepts the claimant has pain which could be due to an injury to any musculo-skeletal structure capable of nociception (producing pain). These include but are not limited to cervico-thoracic muscles, facet joints, ligaments and dura. The clinical examination indicates impairment of both movement and muscle endurance which would suggest either or both joint and muscle pain.
The Panel is of the view that the Ms Rayner was injured in the accident of 24 March 2018 and that her injury is that of a soft tissue injury to her neck and thoracic spine. A soft tissue injury is, pursuant to s 1.6(2) of the MAI Act a threshold injury.
The Panel has carefully considered the nature of the injuries and the statutory definition and for the reasons set out above is not satisfied the claimant’s injury is not a threshold injury.
A finding that the claimant’s only injuries are threshold injuries does not mean the claimant was not injured or that the injury is not significant to Ms Rayner, it simply means that within the framework of the motor accident statutory benefits scheme her injury is one which does not attract ongoing benefits or the ability to recover damages.
As the Panel has come to the same conclusion as Medical Assessor McGrath the Panel will confirm his certificate.
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