Rosier v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 825
•4 December 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Rosier v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 825 |
| CLAIMANT: | Karen Rosier |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Mohammed Assem |
| MEDICAL ASSESSOR: | Les Barnsley |
| DATE OF DECISION: | 4 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of Medical Assessment; threshold injury; cervical spine, soft tissue injury; right shoulder; tiny intrasubstance tear at the mid foot point; tenderness over the glenohumeral joint; signs of radiculopathy; lateral force in motor vehicle collision; tendinopathic changes with the supraspinatus tendon; frozen shoulder; non-threshold injury; Held – certificate revoked and replacement issued. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Murray Hyde Page dated · Cervical spine – soft tissue injury · Right shoulder – soft tissue injury where she now has a frozen shoulder is a non-threshold injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Karen Rosier, the claimant, was injured in a motor vehicle accident on the 5 May 2023. Following the accident the claimant lodged an application for Personal Injury Benefits. Thereafter the claimant sought a concession from the insurer that the injuries she sustained in the motor vehicle accident ought to be considered a non-threshold injury. After a review the insurer declined to make this concession.
The claimant was examined by Medical Assessor Murray Hyde Page on 2 May 2024 who, in a certificate dated 14 May 2024, determined that the two injuries referred to him, cervical spine- soft tissue injury and right shoulder- soft tissue injury where she now has a frozen shoulder, is a threshold injury for the purpose of the Motor Accident Injury Act (MAI Act).
The claimant sought a review of this determination, which was considered by President’s Delegate Tajan Baba who, in a decision dated 26 June 2024 issues a certificate confirming that she was satisfied there is reasonable cause to suspect that the medical assessment was incorrect in a material respect.
Thereafter the matter was referred to this Medical Panel who, in a MS Teams meeting of
22 August 2024 met and determined that it was necessary to conduct a re-examination of the claimant so as to consider as to whether or not the injury to the claimant’s cervical spine and right shoulder constitutes a non-threshold injury.
At the conference it was noted that there are diagnostic scans which are referred to in the Medical Certificate of Medical Assessor Murray Hyde Page but do not appear to be in the material before the panel. This was the subject of directions for the claimant to provide such material prior to the re-examination of the claimant.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Motor Accident Guidelines (the Guidelines) set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
The claimant attended at the Commission’s medical suites on 29 October 2024. The injuries referred to the Commission for assessment:
· Cervical spine – whether the injury to the cervical spine, chronic non-united fracture and whiplash with radiculopathy, caused by the motor accident is a threshold Injury for the purposes of the Act.
· Right shoulder – whether the injury to the right shoulder, tear in right shoulder with a burning pain that radiates down the arm, caused by the motor accident is a threshold injury for the purposes of the Act
At the outset of the examination the reason for the assessment and the nature of the questions and examination were explained to Miss Rosier. It was also explained that the assessment was not confidential and that the medical assessors would not be involved in her ongoing care.
Miss Rosier is currently 42 years old. She is no longer working in her prior position preparing home shopping orders at Woolworths and is currently working as a disability support worker. She has a past history of migraine, and chronic intermittent low back pain. She still has occasional low back pain. She has had a work injury to her right wrist which has resolved. She did have an MRI scan of the cervical spine in 2017. This was for investigation of headaches.
She has no previous history of shoulder problems or shoulder pain or neck pain.
Motor vehicle accident
She was involved in a motor vehicle accident on the 5 May 2023. She was the seat-belted driver of a Daewoo sedan. Her car was struck on the rear driver’s side by a car that had driven from her right at a T-intersection. She recalls her car being jolted forward and she thinks she was swung to the right as her right shoulder was restrained by the seatbelt. She parked the car and details were exchanged. Her car was drivable but was later written off. Emergency services did not attend.
History of treatment and symptoms following the motor vehicle accident
Over the next day or so, she developed neck and right shoulder pain, which had a shooting quality radiating down into the arm. The day after the accident she became aware of some tingling in the right arm and hand. She attended Belmont Hospital ED. and subsequently her local GP. She was referred for MRI scans of the cervical spine and shoulder.
The cervical spine issues were followed up by Dr Spittaler, who reviewed earlier MRI scans from 2017, and considered that she had a stable non traumatic pseudo-articulation of the tendons. She understands that this was unrelated to the accident.
Her neck pain slowly settled but she had persisting pain in the right shoulder. The pain is located across the shoulder cowl. The pain has a throbbing quality. She has had treatment with physiotherapy. She has had analgesics and has seen a pain specialist in Gosford. She has noticed a loss of movement. The arm feels as if it lacks strength. She has been recommended to have an injection, but she has had no injections to date.
She is no longer troubled by neck pain or frequent headaches. She has some intermittent tingling affecting all of the fingers on the right hand, which lasts two days at a time. The arm and hand feel globally weak. She is currently taking Nurofen and Panadol.
Review of documentation
Following complaints by the claimant of cervical right shoulder pain she underwent a CT scan of the cervical spine at Belmont Hospital on 7 May 2023 which had no evidence of acute injury. Additionally, she underwent an X-ray of the right shoulder which showed no obvious fracture.
The claimant was referred for an MRI scan of her right shoulder and cervical spine by her general practitioner, Dr Wijekoon. The diagnostic imaging report dated 24 May 2023, in particular the report of the right shoulder, notes the presence of “a tiny intrasubstance tear at the mid footprint.”
Examination
On examination, she was 168.5cm tall and weighed 114.4kg. In the cervical spine flexion and extension were normal. Right and left lateral flexion were normal as was right and left rotation. There was no tenderness, guarding or spasm.
Upper limb neurological examination revealed globally decreased power in the right arm. There was patchy sensory loss over the hands in a non-dermatomal distribution with blunted pin prick over the palms and all fingers. Biceps, triceps, and brachioradialis reflexes were all normal. There was no asymmetrical wasting in the upper limbs. The upper arm circumference measured 10cm above the lateral epicondyle was 41cm on the left and right. Forearm circumference measured 10cm below the lateral epicondyle was 26.5cm on the right and 25cm on the left. Spurling’s test was negative.
In the shoulders, there was marked tenderness over the glenohumeral joint and the over the acromion on the right side. There was no apparent wasting of the shoulder musculature. The following table details the range of active movements in the shoulders measured with a goniometer and reported in degrees.
| Flexion | Extension | Abduction | Adduction | Internal Rotation | External rotation | |
| Right | 50 | 30 | 50 | 10 | 30 | 20 |
| Left | 180 | 50 | 180 | 50 | 80 | 80 |
There were no inconsistencies at any stage.
Cervical spine
The Panel noted that this is a threshold matter. It was first considered whether or not there was any radiculopathy in the upper limbs. The Panel was unable to identify any physical findings in the supplied documentation that would indicate the presence of radiculopathy according to the motor accident guidelines. The physical findings on re-examination did not meet the necessary criteria for the diagnosis of radiculopathy. Specifically, she did not manifest two of the required findings namely:
· loss or asymmetry of reflexes;
· positive sciatic nerve root tension signs;
· muscle atrophy and/or decreased limb circumference;
· muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
· reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution
The Panel then considered the question as to whether the intra substance tear observed in the supraspinatus tendon on the MRI after the motor vehicle accident was caused by the motor vehicle accident. The Panel firstly sought to address the medical question - could the accident have caused an injury to the tendon? It was noted that the accident involved a lateral force to the car and that she experienced a twist and was forced forward and into her seat belt. It was therefore felt that the accident could have caused an injury to the supraspinatus tendon through uncontrolled relative movements between the right arm and the torso. The Panel also noted that there were tendinopathic changes within the supraspinatus tendon. Whilst these could be argued to be the cause of the tear, it could also be argued that they weaken the tendon making it more likely to be injured. Therefore, the medical assessment was that the motor vehicle accident could cause a tear in the tendon.
The Panel then considered the non-medical questions as to whether the motor vehicle accident (MVA) did cause an injury to the tendon. The Panel noted the early onset of symptoms, the undisputed persistence of shoulder symptoms, and the development of a frozen shoulder with global restriction of movement and significant pain. Frozen shoulders can complicate any injury to a shoulder and the temporal relationship to the accident would indicate that it had complicated an underlying shoulder injury. It was therefore felt that on the balance of probabilities, the accident did cause the tear in the tendon. This is a non-threshold injury.
The Panel notes that the diagnostic imaging conducted on 24 May 2023 and verified by Dr Sabharwal identifies “mild supraspinatus tendinopathy and a tiny intrasubstance tear at the mid footprint.” Whilst the tear may be described as tiny it is, nevertheless a tear to the claimant’s supraspinatus which the Panel is of the view that it was a tear, albeit tiny, which occurred in the motor vehicle accident. That is, a tear in the right shoulder tendon.
The following injury is a non-threshold injury –
·Right shoulder – tear in the right shoulder tendon.
0
0
0