Ruiz-Diaz v QBE Insurance (Australia) Limited
[2022] NSWPICMP 329
•17 August 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ruiz-Diaz v QBE Insurance (Australia) Limited [2022] NSWPICMP 329 |
| CLAIMANT: | Andrea Ruiz-Diaz |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel: | Member Belinda Cassidy Medical Assessor Tai-Tak Wan |
| DATE OF DECISION: | 17 August 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – Medical assessment of minor injury and claimant’s review under section 7.26 of the Motor Accidents Injury Act 2017; injuries referred to Medical Assessor Ian Cameron were cervical spine (disc protrusion and radiculopathy), thoracic spine (whiplash associated disorder) and a head injury (concussion, post-concussion syndrome and memory loss); re-examination conducted; Held — the Panel had concerns about accuracy of claimant’s recall; Panel accepted soft tissue injuries occurred to the claimant’s cervical and thoracic spine but no evidence that the claimant had two of the five signs of radiculopathy at any time since the accident; the Panel did not accept that the claimant’s disc bulge was caused by the accident; the claimant alleged she had hit her head on the back seat and a glass panel above and behind the head rest and sustained a head injury which manifested in concussion and symptoms included visual disturbance, loss of memory and vertigo; the Panel satisfied the claimant sustained a soft tissue injury to the back of her head but not a head injury resulting in an injury to the brain including concussion, post-concussive syndrome or memory loss. |
DETERMINATIONS MADE: | Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate of Assessor Cameron dated 6 November 2021. 2. Certifies that the physical injuries sustained by Andrea Ruiz-Diaz, that the Panel was asked to assess, are minor injuries for the purposes of the Act. |
STATEMENT OF REASONS
introduction
Claim and dispute summary
Ms Ruiz-Diaz (the claimant) was involved in a rear-end motor vehicle accident on 17 March 2020. She was a passenger in her husband’s Ford Transit single cab utility, which was run into by a truck.
Ms Ruiz-Diaz made a claim against QBE, the third-party insurer of the truck.
A medical dispute has arisen in connection with the claim as to whether or not Ms Ruiz-Diaz’s injuries are “minor” injuries within the statutory definition or not.
Ms Ruiz-Diaz referred that medical dispute to the Personal Injury Commission (the Commission) for determination. Part of that dispute was referred to Medical Assessor Ian Cameron who certified on 6 November 2021 that the injuries he was asked to assess were all “minor” injuries.
Ms Ruiz-Diaz was dissatisfied with that result and lodged with the Commission an application seeking a review. Delegate of the President of the Commission, Ms Baba determined there was reasonable cause to suspect a material error in the decision of Assessor Cameron and the President then convened the Panel.
The Panel has convened with a teleconference on 27 April 2022. A re-examination was conducted by Assessor Tai-Tak Wan on 27 June 2022 and a further teleconference was held on 5 August 2022.
Other assessment summary
Ms Ruiz-Diaz has been examined by other Medical Assessors as follows:
(a) 23 June 2021 – Assessor Michael Steiner was asked to assess the claimant’s eyes to determine if she had injured her optic nerve. His finding was the claimant had not injured her optic nerve and therefore there was no need for him to determine the issue of minor / non-minor injury.
(b) 26 October 2021 - Assessor Enrico Parmegiani was asked to assess the claimant’s psychological or psychiatric injury. His finding was that the claimant suffered from a panic disorder which was not a minor injury.
(c) 5 November 2021 – Assessor Robert Payten was asked to assess the claimant’s ear injury and the development of vestibulopathy. His finding was that these injuries were not caused by the accident and therefore there was no need for him to determine the issue of minor / non-minor injury.
Assessor Parmegiani’s assessment was the subject of an application for Review. Delegate of the President, Ms O’Carroll determined there was reasonable cause to suspect a material error in that assessment. A Panel has been convened to determine that dispute, but the dispute has not yet been finalised.
Assessor Steiner’s assessment was the subject of an application for Review which has been finalised. Delegate of the President, Ms Edwards determined there was no reasonable cause to suspect a material error in that assessment.
No application for review of Assessor Payten’s assessment has been made by either party.
LEGISLATIVE BACKGROUND
Jurisdiction
Ms Ruiz-Diaz’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 which is that, under 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 “minor” injuries.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
Minor injury
A minor injury is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 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.”
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-minor 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 minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines minor 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 minor injury. Relevantly to the matters in issue in Ms Ruiz-Diaz’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[1]. 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 minor injury”.
[1] Chapter 6 of the Guidelines.
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 “minor injury” for the purposes of the MAI Act[2]. In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
[2] 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 or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor 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 minor 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 set out in Part 5 of the Guidelines does not appear to be limited to the assessment of minor 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
Part 7 of the MAI contains provisions relevant to the resolution of disputes. Division 7.5 provides for the internal review by insurers of medical disputes before a matter can be referred for medical assessment, procedures for medical assessment and the ability for a party to seek one further medical assessment and the review of medical assessments[3].
[3] Sections 7.19, 7.20, 7.24 and 7.26.
The insurer’s application for review is made under s 7.26 of the MAI Act. Pursuant to s 7.26(5A) the Panel is to be constituted of a Member of the Commission and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before the Panel[4].
[4] Section 41(2)(b).
The Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act and Rule 128 provides that a Review Panel can determine how it conducts and determines the proceedings before it.
assessment under review
The Panel notes that Assessor Cameron was referred the following injuries to assess:
(a) cervical spine - disc protrusion (partial rupture of cartilage);
(b) cervical spine - cervical radiculopathy;
(c) thoracic spine - whiplash associated disorder, and
(d) head - concussion; post-concussion syndrome; memory loss.
The claimant was assessed on 29 October 2021 and Assessor Cameron issued his certificate on 6 November 2021.
Assessor Cameron has a history of the rear end collision and that the claimant felt shocked and had pain in multiple areas of her body. Ms Ruiz-Diaz said she did not go to hospital because the Covid lockdown had just started and so she rang her general practitioner (GP). Because of ongoing neck pain Ms Ruiz-Diaz said she saw her GP on 21 March 2020. She had a number of investigations and 30 sessions of physiotherapy. She was referred to Dr Schwartz a neurologist.
The claimant complained to Assessor Cameron of constant pain in the base of her neck as well as higher up the neck. She complained of headaches every two to three days, sometimes pain behind the left eye, vertigo and long-term memory problems.
Ms Ruiz-Diaz says she takes Panadeine, Nurofen and Voltaren.
On examination, Assessor Cameron noted the claimant weighed 70 kgs. He found:
(a) no cognitive impairment detected (and she scored 30/30 on a mini mental state examination);
(b) no non-radicular signs and no radiculopathy in the neck, thoracic or lumbar spine, and
(c) no neurological abnormalities in the upper or lower limbs.
Assessor Cameron reviewed the documents provided by the parties as follows:
(a) clinical records of Dr Sahib diagnosed whiplash;
(b) an MRI of the claimant’s neck showed a C4 disc protrusion with some C5/6 foraminal narrowing;
(c) an MRI of the brain was said to be a normal study;
(d) reports of Dr Schwarz did not identify definite evidence of neurological dysfunction;
(e) a report of Dr Myers said there was no ocular cause for the claimant’s left eye pain, and
(f) nerve conduction studies were normal.
Assessor Cameron diagnosed:
(a) soft tissue injury to the cervical spine, that is a whiplash disorder;
(b) soft tissue injury to the thoracic spine;
(c) no evidence of a disc protrusion caused by the accident;
(d) no evidence of radiculopathy as defined in the Guidelines, and
(e) there was “no definitive evidence of a significant head injury. There is no loss of consciousness, no post traumatic amnesia, no evidence of brain imaging abnormality. In addition, there are no objective signs of memory or cognitive impairment.”
He therefore found the claimant had sustained soft tissue injuries to her neck, thoracic spine and head and that these were minor injuries within the statutory definition.
Review of the evidence
Claimant’s evidence
The claimant’s application for personal injury benefits (claim form) was dated 25 March 2020[5]. In it the claimant:
(a) says she was waiting at an intersection when “a truck smashed into us from behind”;
(b) provides no particulars of injury;
(c) indicates she did not receive ambulance or hospital treatment;
(d) provides no particulars of any treatment (although she had at that stage seen Dr Salib), and
(e) says she is not in employment but in receipt of a Centerlink carer’s payment.
[5] Page 44 of the insurer’s bundle.
Ms Ruiz-Diaz provided a statement dated 31 May 2022 with her final submissions. She says:
(a) Professor Cameron did not ask her for details about her accident or her symptoms;
(b) the vehicle she was in had no backseat. There was a wall behind her seat with a glass panel behind her head;
(c) she remembers being stopped, then a huge bang and her head “being flung backwards and it striking the headrest and the glass panel above and behind it”. She says, “it was a hard strike to the back of my head and the left side”;
(d) her memory then is blurry and she says that she was in shock, confused and could not get out of the car. She said “I do not know if I blacked out for a short time … as my memory is patchy about that period of time”;
(e) she was in pain in her head, neck and chest;
(f) the accident happened at the beginning of the pandemic and so she and her husband were reluctant to got to hospital or their GP. The car was driveable so they drove home;
(g) “I remember feeling very fuzzy, out of it and disoriented. I was not myself. I felt drained, confused, and in pain. I had a very bad headache, and pain in my neck and across the top of my shoulders. I had pain at the back of my head due to the strike and pain in my chest due to the seatbelt. I felt nauseous and my headaches developed into migraines over the days that followed”;
(h) she rang her GP one or two days later and was told to come in if things did not get better. Her neck pain and headaches had got worse and were associated with a stabbing pain at the back of her left eye. She says she was lightheaded and unsteady on her feet;
(i) she went to see Dr Salib on 21 March 2020. She says at that time her confusion and disorientation had subsided significantly but her neck, chest, shoulder pain, nausea and headaches continued to be a serious problem;
(j) her neck pain continued to deteriorate, and she developed burning pain radiating into her shoulders, upper back and down her arms with pins and needles and numbness;
(k) about two months after the accident, she woke up in bed with the room spinning constantly which made her nauseous and she almost vomited. Her balance had been off since the accident, but this was more severe, and she has continued having episodes of vertigo lasting a couple of hours every couple of weeks associated with headaches;
(l) the stabbing left eye pain persisted and she was referred to Dr Myers, and
(m) before the accident she had occasional neck symptoms and headaches but nothing like those she is experiencing since the accident.
Dr Salib’s records
Dr Salib has completed a number of certificates of fitness/capacity. The first is dated 21 March 2020 and his diagnosis was “whiplash” which is repeated in the others. The claimant’s certified capacity for activities has changed over time as follows:
(a) 27 March 2020 - lifting, carrying, pushing and pulling not more than 5 kgs with capacity for normal hours of work and normal days;
(b) 1 May 2020 - no restrictions, but no capacity for any employment at all;
(c) 29 May 2020 - no restrictions but no capacity, and
(d) 3 July 2020 - no restrictions but no capacity.
Dr Salib has provided his records[6] which indicate:
[6] These commence at page 134. The insurer’s bundle of documents includes, at page 60, a referral from Dr Salib to South Terrace Health Centre. This referral does not relate to the claimant but relates to her husband and has not been considered by the Panel.
(a) 21 March 2020 – car accident hit from behind, neck pain and stiffness radiating to shoulders and headache. No paraesthesia or weakness in upper limbs. On examination full range of cervical spine, mild post neck tenderness. No bruises. Did not work Wednesday – Friday.
(b) 27 March 2020 – review for whiplash. Has not started physiotherapy.
(c) 6 April 2020 - telephone consultation review whiplash – neck pain severe burning, interfering with her sleep, tingling down both arms, will start physiotherapy tomorrow. Maxigesic not good enough trial Voltaren.
(d) 16 April 2020 – neck pain is worse radiating down between her shoulder blades to both shoulders down both arms with pins and needs in both arms. Had four sessions of physiotherapy. Voltaren is upsetting her stomach. Changed to Mobic.
(e) 22 April 2020 – anterior central chest pain intermittent four days better by Panadol, jaw pain and neck pain and bilateral upper arm paraesthesia and upper back pain.
(f) 27 April 2020 – complains of occipital headache and severe neck pain radiating to her both shoulders. MRI report and review, if not getting better neurosurgical review.
(g) 30 April 2020 – not comping well with her pain, poor sleep, feeling frustrated, Panadeine forte making her vomit, neck pain and bilateral shoulder pain and numbness of her hands. Anterior chest pain not all time, feels it in afternoon and with sitting – chest sore to touch.
(h) 1 May 2020 – “MVA chest pain and tenderness worse by breathing” – on examination markedly tender over sternum and costal cartilages referral for MRI.
(i) 14 May – MRI chest wall normal – reassured advised physiotherapy and modification of activities
(j) 29 May 2020 – review had physio twice weekly nil improvement – current symptoms posterior neck pain and stiffness and headaches – light-headedness and nausea. Anterior chest wall pain and tenderness, Anterior left shoulder pain and left upper limb pain – stressed with constant pain. On examination restricted ROM in cervical spine, limited ROM in shoulder, referral pain specialist and imaging left shoulder.
(k) 3 June 2020 – red left eye not right eye, left and right eye not swollen, no discharge either eye, normal external ocular movements on left and right – on examination nasal subconjunctival haemorrhage preceded by headache.
(l) 3 June 2020 - MRI head referral requested due to ongoing dizziness, nausea and headache insurer advised her to get a referral to neurologist.
(m) 15 June 2020 – ongoing dizziness, nausea and headache referral to neurologist.
(n) 30 June 2020 – bilateral upper limb pain, tingling and numbness, constant nausea head spinning worse dizziness, tight neck and shoulder muscles not responding to physio.
(o) 3 July 2020 – discussion with case manager – strongly support neurologist review.
(p) 3 July 2020 – left upper limb pain, left cervical radiculopathy Lyrica prescribed 25mg twice a day after meals.
Other GP records
While Dr Salib’s notes commence in November 2017, the following appear in his pre-accident records:
(a) the claimant had gastric sleeve surgery in 2009;
(b) she weighed 69 kgs on 22 November 2017 and was 166cm tall;
(c) cough and wheeze, chest tightness and dizziness related to asthma May 2019;
(d) fall over a ball in May 2019, chest pain and left forearm pain;
(e) fall at McDonalds in November 2019 – slipped on a hot chip and developed bruises on her knees and arms, left ankle pain, and
(f) weight loss to 60.8kgs on 13 February 2020.
The claimant has attended the Round Corner Medical Practice at Dural since 2010 of interest are:
(a) the claimant’s reported height varied from 167cm to 170cm;
(b) 16 November 2010 - gastric banding and a weight of 56kgs recorded;
(c) 26 June 2011 – bilateral headache with no blurred vision – long discussion regarding headaches migraine ? sinus ? tension. She was reassured and advised to get her eyes reviewed;
(d) 2 December 2011 – hit by car backing out of a car park half an hour before, hard jolt, pain in the right shoulder, full range of motion at neck and shoulders;
(e) October 2013 – left loin pain and kidney stones;
(f) May 2014 – again suspected kidney stones;
(g) 14 December 2015 – requested CT scan of the head for left sided arm tremor and with history of father having had cerebellar disease;
(h) May 2016 – kidney stones;
(i) 1 August 2016 – had “moving sensation” and dizziness episode when driving this PM lasted for 10 mins still feels light-headedness;
(j) 27 October 2016 – left arm numb and weak for one day, feels dizzy for three days, left arm normal tone, power and reflex;
(k) 25 November 2016 – pain in back of neck radiating to back of scalp, unwell, on and off dizziness, three days. Has also had right knee pain for three days. Worried as father died of cerebellar atrophy in his 60’s. Started with dizziness;
(l) 23 October 2017 – memory impairment and anxiety as father has cerebral atrophy and MRI brain scan was requested, and
(m) 13 March 2020 – sharp stabbing abdominal pain under belly button now a dull ache (further attendances 14 March and 16 March 2020 for this condition).
Allied health records
There are multiple allied health requests for chiropractic treatment made by Benjamin Trautman of the South Terrace Health Centre[7]. In the light of the issues in his case the current signs and symptoms include the following:
[7] Commencing at page 106 of the insurer’s bundle.
(a) 2 April 2020 – cervical whiplash / neck – tender, burning, MRI required due to radiculopathy, headaches 9/10 daily, right arm numbness to forearm, elbow pain, thoracic spine right shoulder blade / rib cage pain;
(b) 21 April 2020 – patient reports continued pain / headaches and lack of sleep due to pain. Encouraged not to have a pain focused mindset and remain positive, headaches have reduced mildly;
(c) 29 May 2020 – patient still suffering severe headaches / migraine like symptoms. Her on-going vertigo / nausea does fit with cervicogenic causes. Neck pain and headaches are the biggest problem. Objective pain and functional scoring show improvement. Headaches have reduced mildly in frequency and intensity. Elbow pain running down to wrist in right arm. Able to lift up to 1 kg, stand 15 mins;
(d) 29 June 2020 – still has constant / severe headaches but is getting some relief from therapy. Reduction in muscle spasm, arm symptoms slowly improving. Able to lift up to 2 kgs, stand 20 mins;
(e) 24 July 2020 – high frequency of headache still present daily and lack of sleep. Severe nausea with headaches since the accident to the point of vomiting. Has lost 5 kgs. Headaches originate from the suboccipital region of the neck and refer to the front of her face/eyes. Some improvement. Able to lift up to 3 kgs and stand 30 mins;
(f) 13 August 2020 – high frequency of headache 3 – 5 days a week, reduction in nausea but still present due to vertigo. Continued improvement. Due to high pain levels we recommend pain specialist. Able to lift up to 3kgs and stand 30 mins, and
(g) 25 September 2020 – notes the results from Dr Myers and Dr Schwartz and GP to refer her to psychologist due to pain, anxiety, depression and PTSD.
“It is of my opinion as the treating practitioner that Andrea has suffered genuine injuries sustained from her MVA. Despite some of her symptoms being difficult to directly draw to her pathology, her injuries are consistent with cervical related whiplash / radiculopathy and eye trauma causing vertigo, headaches and dizziness. For this reason, I do believe continued treatment is required to decrease muscle tension in the neck and head and facilitate ROM and increase to her functional capacity.”
Investigations and referrals
On 10 April 2020 the claimant was referred for an MRI of her cervical spine with the clinical history recorded of “neck pain with referred arm pain”. She had the MRI on 23 April 2020[8]. The conclusion by the radiologist was disc dehydration and C2/3 and C3/4 without disc bulge or protrusion, a 4mm disc protrusion at C4/5 flattening the cord and a C5/6 disc bulge with endplate osteophytes on both sides partially effacing the exiting C6 nerve roots without definite neural impingement. There was a minor disc bulge at C6/7. Clinical correlation was said to be essential in attributing the C5/6 disc bulge and endplate osteophytes with the claimant’s pain.
[8] The referral is at page 51 of the insurer’s bundle and the MRI report at page 52.
On 13 May 2020 the claimant underwent an MRI of her chest wall with the clinical history recorded of “MVA. Worsening anterior chest wall pain and tenderness”. The result was said to be “no abnormality seen to explain” the claimant’s symptoms[9].
[9] Page 54 of the insurer’s bundle.
On 29 May 2020, Dr Salib referred the claimant to Dr Alan Nazha for pain management. There is no evidence of any consultation with Dr Nazha before the Panel. The history in the referral includes the following:
(a) front passenger – seatbelt was on in small truck hit by a larger truck;
(b) complains of neck pain and stiffness radiating to shoulders and headache;
(c) “no paraesthesia or weakness in upper limbs”;
(d) on examination full range of cervical spine;
(e) mild post neck tenderness, and
(f) no bruises.
On 12 June 2020 the claimant had an MRI of her brain due to “MVA. Ongoing dizziness, headache” and the conclusion of the report was “Normal study”[10].
[10] Page 56 of the insurer’s bundle.
On 17 August 2020 the claimant had a whole of body bone/spect and CT scan because “Motor vehicle accident (passenger seat). Neck pain radiating to [arm]. Clinical, whiplash injury to the spine”. The results[11] were:
(a) “no scan evidence to suggest recent / acute fractures in the skeleton” although there was “active disc degenerative changes with disc protrusions, flattening of the cord (mild) at C5/6”;
(b) there was loss of cervical lordosis which was consistent with muscle spasm in the cervical spine;
(c) no active facet joint arthritis in the cervical spine;
(d) no abnormalities noted in the thoracic spine and ribs and evidence of arthritis in the acromioclavicular joints on both sides;
(e) minimal endplate degenerative arthritis in the lower back;
(f) mild arthritis in the knees, and
(g) mild to moderate arthritis in the big toe joints of both feet.
[11] Page 57 of the insurer’s bundle.
On 21 August 2020, the claimant underwent nerve conduction studies of both arms and the conclusion was said to be “Normal study. There is no neurophysiological evidence of a significant cervical radiculopathy or peripheral nerve dysfunction.”[12]
[12] Page 66 of the insurer’s bundle.
On 21 August 2020, the claimant had investigations into her complaints of dizziness and the report concludes “Normal study. There is no electrophysiological evidence of peripheral vestibular dysfunction”.[13]
[13] Page 67 of the insurer’s bundle.
Treating specialists
The claimant was referred to Associate Professor Schwartz[14] neurologist. In an email Dr Schwarz’s staff advised the claimant’s solicitor “we do not have any handwritten notes on file for this patient; all records of consultations … are via clinical letters only”.
[14] No disrespect is intended, but for simplicity the Panel will refer to Associate Professor Schwartz as Dr Schwartz. Dr Schwartz letters are included in the insurer’s bundle. Attached to the claimant’s final submissions were Dr Schwartz’s records which do not include any additional documents of relevance.
The insurer relies on both his letters to the claimant’s GP, Dr Salib of the S& P Family Medical Practice, while the claimant only refers to the second letter.
In his first letter dated 10 August 2020, Dr Schwartz has a history of the claimant suffering “neck and headache, vertigo and paraesthesia in her upper limbs temporally related to a motor vehicle accident on 17 March this year”. He noted a pre-accident history “many years ago” of migraine. He has a history of the claimant working with her husband in his business which the Panel notes is contrary to the history in her claim form of her not working and being in receipt of the Carer’s payment. Dr Schwartz does not record a history of the claimant having any eye or vision problems or nausea or vomiting which she complained of to Dr Myers.
In his second letter dated 21 August 2020, Dr Schwartz:
(a) her CT bone scan confirm the degenerative vertebral disease without “clear-cut” arthritis in the facet joints;
(b) nerve conduction studies were normal with no evidence of nerve entrapment in Ms Ruiz-Diaz arms;
(c) “no evidence of a significant cervical radiculopathy”, and
(d) vestibular function testing is normal.
Dr Schwartz noted the disparity between the claimant’s subjective symptoms and the objective evidence. However, he expressed the view that the claimant:
“… has suffered a posttraumatic exacerbation of degenerative cervical disease, causing neck pain and a cervicogenic headache with a probable posttraumatic tension headache as well. In addition, I feel that Andrea’s accident probably exacerbated a cervical radiculopathy. I also feel that Andrea may well have suffered a posttraumatic vestibulopathy.”
He suggests that no test can be 100% accurate and that a normal study does not mean that a condition does not exist.
He made recommendations for treatment and noted that the claimant was disappointed and frustrated that there was no “objective evidence of a neurological issue”.
The claimant was referred to Dr Phillip Myers who has provided a report to Dr Joyce Chang of the Castle Towers Shopping Centre. He has a history from the claimant of “chronic severe headaches situated behind the left eye and in the vertex” which he relates to a “closed head injury from a car accident some five months ago when she was rear-ended”. He also records:
(a) no loss of consciousness at the time of the accident, and
(b) Ms Ruiz-Diaz complains of ongoing nausea, headache and vomiting.
Dr Myers does not record a history of neck pain or vertigo which Ms Ruiz-Diaz complained of to Dr Schwartz.
His examination revealed mild exophoria for distance and a moderate exophoria for near with slow recovery. Dr Myers could find no direct “ocular cause” for the claimant’s left eye pain and expressed the view:
“It would appear that Andrea has a closed head injury related to her MVA and that she is suffering ongoing effects of this.”
He recommended the claimant undertake eye exercises to improve muscle control for near visual tasks and referred her to Liane Wilcox a head injury specialist orthoptist.
The claimant attended upon Liane Wilcox, and she has provided a report to Dr Myers dated 10 September 2020. Ms Wilcox has a history of neck pain and a constant ache behind her left eye, constant nausea, headaches and symptoms of head spinning. She confirmed the presence of exophoria and talked about eye exercise treatment. She expresses the view:
“Reduced convergence can be related to a closed head injury and it is possible that this problem has occurred form her injury. As I have not examined Andrea previously it would be difficult to be 100% confident of this.
Her symptoms are quite extensive and again I am not entirely confident that all of them are arising from the reduced convergence, reduced fusional convergence and the moderate exophoria”.
Other Assessments
Assessor Steiner
The history recorded by Assessor Steiner is that the claimant’s husband’s vehicle was hit hard by the vehicle behind, there were no airbags and she “bumped her head hard on the headrest”. He records that she did not lose consciousness and went home.
He records that after a few days she developed headache and neck pain and throbbing of her left eye with attacks of vertigo. She said she had fallen a three or four times saying she “missed a step”.
Ms Ruiz-Diaz complained of feeling dizzy and that two months ago (this would be around April 2021) she had an attack of flashing vision on her right side followed by nausea and headache.
He found there was no damage to the eyes, or the optic nerve and the referred injury was therefore not an injury.
He says at [18] “She has a significant convergence weakness and exophoria for near which are almost certainly related to her closed head injury” and at [23] “The convergence weakness caused by the closed head injury would be classed as a minor injury”.
Assessor Parmegiani
The history taken by this Assessor includes a reference to Dr Koleda as the claimant’s GP in Smithfield. Apparently, the claimant has changed medical practices.
He has a consistent history of the rear-end collision. Ms Ruiz-Diaz is recorded as saying “she hit the back of her head on the back of the cab’s wall”. She said she sat stunned in the vehicle and could not move because of the pain and the shock.
Assessor Parmegiani also has a history of the claimant’s husband driving them home and that the police or ambulance were not called, and they did not want to go to hospital because of Covid.
The history goes on to say that the claimant’s pain worsened over two days and she went to her doctor who she describes as “very blasé and brushed it off”. She says that she has not been referred to any specialist because the insurer has refused to fund it. The Panel notes the claimant has been referred to a neurologist and a pain specialist and an ophthalmologist. She reported difficulty sleeping, pain particularly in the back of her neck and constant headaches. The claimant said she reported all her symptoms to her GP but “he had just ignored her” which led to the change in doctor. The Panel notes the claimant’s GP referred her for physiotherapy, radiological investigations and specialist opinion.
In terms of psychiatric symptoms, she said she has had anxiety and irritability and “regular panic attacks” one of which required a trip to hospital as she thought she was having a heart attack. He considered these a reasonable response to the accident and therefore, her panic disorder and adjustment disorder were caused by the accident. The Panel notes there does not appear to be any record elsewhere of panic attacks.
Assessor Payten
On 5 November 2021, Assessor Payten took a history from the claimant that she had never had migraine since she was 20 and that she had no history of vertigo, tinnitus, deafness or imbalance. She gives a consistent account of the accident and its immediate aftermath saying that she “felt the back of her head hit the headrest” and she then says she felt the seatbelt dig into her chest. The Panel notes the seatbelt history does not appear elsewhere and that the claimant’s GP records no bruises being present on 21 March 2020, four days after the accident. The medical members of the Panel would expect bruises to still be visible at that time if there had been a seat belt digging into her chest.
The claimant said that she rang her GP two days after the accident, saw him four days after the accident because of increasing pain in the back of her head and neck area and left sided headaches in the front and occipital area.
Ms Ruiz-Dias gave a similar history of waking up two months after the accident with the room spinning and that she almost vomited. This attack lasted three hours and she saw a doctor who was not Dr Salib. She had two further severe attacks and in early June told Dr Salib about them. The claimant says she is aware of flashes of light in front of the left eye, worse left sided headache and always nausea. The Panel notes Assessor Steiner had a history of right eye flashes and that there is no mention of these first three attacks in the Round Corner records or Dr Salib’s records. The claimant may have a third GP whose records are not before the Panel.
The claimant also complains of recurrent bouts of vertigo, usually lasting a few hours at a time with worse headache on the left side every couple of weeks.
Assessor Payten says at [18]:
“The recurrent attacks of vertigo … have not been as a result of a concussive injury to the inner ear at the time of the accident. This is because had such damage occurred, she would have been vertiginous immediately after the accident rather than the attacks beginning two months later.”
He acknowledges her head hit the head rest, but he notes she did not lose consciousness was able to get out of the vehicle, walk around before being driven home. He suspected the cause of her vertigo was migrainous vertigo and he diagnosed vestibular migraine associated with her left sided headaches.
Assessor Payten does not have a history from Ms Ruiz-Diaz of visual disturbance other than the left eye flashes of light.
SUBMISSIONS
Claimant’s submissions in support of the review
The claimant’s submissions in support of the application for review[15] refer at [1] to the mechanism of the accident as being a forward body movement before the claimant’s head was “thrown backwards, striking the panel of the cab behind her”.
[15] These submissions are dated 6 December 2021 and are found at page 2 of the claimant’s bundle.
The claimant says at [2] that after the accident the claimant “suffered symptoms in her neck, both shoulders and arms, and back” as well as experiencing “headaches, memory loss, and signs of vestibulopathy including vertigo and dizziness”. The claimant also alleges problems with her vision and psychological symptoms.
The claimant refers to the diagnoses of Dr Schwartz at [3] and Dr Myers at [4].
The claimant refers at [5]-[9] to the assessment of Medical Assessor Steiner who diagnosed “exophoria for near with convergence weakness” which he said was “almost certainly related to her closed head injury” but found the claimant had a minor injury. The claimant challenged his decision on the basis that a closed head injury was an injury to the brain which is an organ an injury to which therefore cannot be a minor injury. The President’s delegate refused the application for Review on the basis that Assessor Steiner was only being asked to assess an injury to the “visual system” and that Assessor Cameron was assessing the head injury. The claimant says at [10] that Assessor Steiner’s finding of a head injury is inconsistent with Assessor Cameron’s.
The claimant argues:
(a) Assessor Cameron was required to assess “concussion, post-concussion syndrome and memory loss” and that he did not do so. The claimant argued that a concussion is an injury to the brain, which is an organ and an injury to it cannot therefore be a minor injury;
(b) the assessment was required to consider whether the accident had caused a non-minor injury regardless of whether the injury has resolved at the time of the examination. The assessor asked himself the wrong question because he asked himself whether the claimant had sustained a “significant head injury” but not whether the claimant had sustained any brain injury at all. The assessor used the permanent impairment criteria for brain injury, which was irrelevant to the issue of minor injury;
(c) the Assessor did not apply the civil standard of proof because he used the phrase “there is no definite evidence of a significant head injury” which the claimant says is a higher standard even than the criminal standard;
(d) the Assessor failed to give adequate reasons addressing arguments raised in the submissions including:
(i)the concussion;
(ii)whether any pre-existing disc protrusion further protruded, and
(iii)the absence of any pre-accident symptoms;
(e) the Assessor did not take into account Dr Schwartz’ finding of radiculopathy and that the insurer bore the onus of proving there were not two signs of radiculopathy present, and
(f) the findings of Assessor Steiner as to closed head injury are inconsistent with Assessor Cameron’s determination that there was no head injury.
Insurer’s submissions opposing the review
The insurer’s submissions[16] noted that the claimant’s claim form alleged injuries to the head, eyes, ears and her cervical and thoracic spine.
[16] These are dated 20 December 2021 and are found at page 1 of the insurer’s bundle.
The insurer says:
(a) the Assessor did deal with the concussion and post-concussive injury when all of this decision is read together. The insurer also refers to the biomechanics of the accident. The Assessor’s reasons were adequate and that the claimant has adopted “a demonstrably erroneous and unreasonably narrow reading” of his certificate;
(b) Assessor Cameron used the impairment assessment criteria to determine whether there was evidence of a traumatic brain injury. He is required to form his own opinion based on the evidence before him including his examination and the history from the claimant; Assessor Cameron was required to decide whether the claimant had sustained a head injury and if so whether that head injury was of sufficient severity to have caused a brain injury;
(c) the use of the word “definite” was used consistently throughout as a substitute for “objective” and he formed the view, which he is entitled to do, that there was insufficient objective evidence to conclude a brain injury was sustained;
(d) the claimant did not report to Assessor Cameron that she struck her head and he engaged with the issue of concussion and brain injury noting a lack of objective support for it;
(e) the claimant’s solicitor has hypothesised as to the further bulging of the claimant’s disc which is said to be a non-minor injury which has no medical basis;
(f) the insurer says that the claimant’s submission with regards to the burden of proof is an “attempt to circumvent the medical assessment process and … accept the evidence of the claimant’s treating doctors without scrutiny, analysis or reference to the …Guidelines”;
(g) the insurer says a medical assessor’s role is to assess the injuries afresh and is not bound by submissions, previous decision or medical examinations, and
(h) the application for review of Assessor Cameron must be considered alone and not in the light of any grievances with Assessor Steiner’s certificate. Assessor Steiner conceded he had no expertise to diagnose a head injury and had formed an opinion as to the source of her vision problems.
The claimant’s supplementary submissions
The claimant lodged supplementary submissions after the application for review was allowed[17]. She says:
[17] These submissions are dated 9 April 2022 and are found at page 11 of the claimant’s bundle.
(a) the insurer appears to accept the claimant suffered symptoms of concussion which suggests she did in fact sustain a concussion in the accident. A concussion is a mild traumatic brain injury and as the brain is an organ, any injury to it must be a non-minor injury;
(b) objective evidence of memory loss, cognitive impairment etc maybe required to assess permanent impairment but not to assess minor injury disputes;
(c) the Panel need only form the view “on the balance of probabilities” that the claimant suffered a concussion in the accident for the claimant’s injuries to be determined non-minor;
(d) the mechanism of injury, which the claimant’s solicitor concedes was misdescribed in their original submissions was consistent with a head strike and the submissions rely on the “oral testimony” of the claimant to Assessor Parmegiani (whose assessment is currently under review);
(e) the insurer does not put forward evidence to support its submission that the claimant sustained a soft tissue injury to the head and that “the evidence is consistent with a concussion, which is not a soft tissue injury as it is a mild TBI”;
(f) the insurer is wrong to say the Guidelines in respect of permanent impairment apply because this is a minor injury dispute;
(g) the insurer is wrong to say that a finding of non-minor injury requires an abnormality in brain imaging, post-traumatic amnesia or objective evidence of memory or cognitive impairment because a diagnosis of concussion does not require such evidence;
(h) the symptoms of concussion, as experienced by the claimant and recounted in her history and complaints were recorded by Assessor Cameron and these were sufficient to support a diagnosis of concussion;
(i) Assessor Cameron offers no diagnosis of what the claimant has, but says what she does not have “a significant head injury”;
(j) in terms of the claimant’s neck injury, the claimant refers to case study 48 from the State Insurance Regulatory Authority’s website which was a Panel decision in respect of a 60-year-old claimant who had pre-existing degenerative changes and who had sustained a “partial rupture of fibrocartilage occasioned by the accident which caused the symptoms to present”;
(k) the insurer asserts Assessor Steiner “speculated” that the claimant’s exophoria was caused by a closed head injury and the claimant takes issue with that. The claimant says her exophoria came on after the accident and was caused by either an injury to her eye or the optic nerve however Assessor Steiner expressed the view it was caused by a traumatic brain injury. If the Panel finds there is no brain injury, then the claimant has left with no reason for the claimant’s exophoria, and
(l) a further examination must be undertaken to assess the cervical injury.
Panel’s report and directions
The Panel issued directions to the parties on 3 March 2022 for the provision of bundles of documents to facilitate the Panel’s deliberations. Both parties complied with the directions.
The Panel met on 28 April 2022 and reported to the parties on 3 May 2022. The document issued to the parties included the following further directions:
(a) the insurer was, by 24 May 2022 to upload to the portal an update on the status of the other medical assessments and reviews and submissions in response to the matters raised by the Panel; and
(b) the claimant was, by 31 May 2022 to upload to the portal:
(i)copies of Dr Schwartz’s notes;
(i)details of the claimant’s GP before Dr Salib and copies of their notes, and
(i)submissions in response to any of the matters raised by the Panel.
Claimant’s final submissions
The claimant’s final submissions lodged after the Panel’s directions were provided along with the documents requested by the Panel.
The claimant notes that Dr Schwartz does not have any notes only his reports and these were provided.
The claimant has provided records from the practice she attended before Dr Salib, and those have been summarised by the claimant’s solicitor. The claimant acknowledges a single episode of neck pain in November 2016, episodes of dizziness three to four years before the accident and a referral for a CT scan of her head due to a hand tremor in December 2015 and a brain MRI in October 2017 due to her father’s death from cerebral atrophy.
The claimant has provided a statement which explains these conditions and says she did not proceed to have the CT or the MRI of her head / brain.
The claimant provides submissions requesting a medical examination.
The claimant says the article provided by the insurer proposes a uniform definition of “mild traumatic brain injury”. The claimant says, “whether the Claimant suffered a concussion, a mild TBI, a moderate TBI or some other kind of acute brain injury is irrelevant as these are all injuries to an organ (the brain) and so not minor injuries”.
The claimant says the insurer’s article supports her diagnosis.
The claimant also provided further submissions regarding her allegation of a brain injury including a journal article concerning concussion. The claimant draws the Panel’s attention to a description of concussion, difficulties in diagnosing concussion, the importance of a clinical history and says, “it is really beyond question that she suffered a concussion in the accident” and that there is no support whatever for the insurer’s insistence for objective evidence but that exophoria is an objective sign of an acute brain injury and two ophthalmologists have expressed the view that the claimant has exophoria caused by a head injury.
Insurer’s final submissions
The insurer’s supplementary submissions are dated 24 May 2022. The insurer provides an update on the other assessment matters and reviews and then at [8] agrees with the Panel’s formulation of the “injuries in issue”. The insurer submits in particular that the Panel must consider whether a head injury was sustained in the accident and if so whether it gave rise to a brain injury.
The insurer repeats its previous submissions that the claimant has not sustained an injury to her brain and attached to the submissions a copy of a World Health Organisation (WHO) task force document which proposes a “common criteria” definition of mild traumatic brain injury.
re-examination findings
The claimant attended the rooms of Assesor Tai-Tak Wan in Fairfield on 27 June 2022.
History as provided by the injured person
Pre-accident medical history and relevant personal details
Mrs Ruiz-Diaz is is 50-years-old, and unemployed. She used to work for her husband, doing office work, about 40 hours per week. She said she has stopped working since the accident.
Past health
Ms Ruiz-Diaz denied any other history of accidents, injuries or other relevant conditions sustained before the accident. In particular she denied any previous neck injury, head injury, visual disturbance, vertigo or dizziness.
She provided the following medical history:
(a) appendectomy around the age 13;
(b) bronchiectasis, diagnosed last year;
(c) gastric sleeve surgery in 2008;
(d) laparoscopic cholecystectomy at the age of 29, and
(e) left kidney stone 2021, treated by ultrasound treatment.
She denied any history of allergy to medication.
Social history
The claimant said she was born in Uruguay and came to Australia in 1974. She reported her high school performance was above average with her best subject being mathematics and her worst subject physics. She studied at university for two years but did not complete the course because her parents were sick, and she had to work. She did office work for about 10 years, then worked as a mortgage broker, then worked for her husband, on and off, as she also took care of their children.
She lives with her husband (a property developer) and their four children in a split-level house. There are seven steps at home, and she reported no problems walking up and down steps. This appears to be contrary to the history given to Assessor Steiner who reports the claimant has had three or four falls having “missed a step”.
She was a non-smoker and non-drinker before the accident, and she did not play sport or go to gym regularly.
History of the motor accident
Mrs Ruiz-Diaz said that on 17 March 2020, at around 11.00pm, she was a front seat passenger in a Transit Utility driven by her husband. She was wearing a seat belt and there was a headrest. While stationary before a traffic light, waiting to turn left, her vehicle was hit by a large truck from behind. She said her head hit the headrest and then the glass window behind the headrest. She said she was dazed and disorientated for a short time, and complained of immediate pain in head, neck and left shoulder and right hip. Airbags were not installed because it was an old vehicle. She said she did not get out of their vehicle, but her husband did.
The driver of the offending truck apologised, police and ambulance did not attend the scene. Their vehicles were both drivable and the claimant’s husband drove them home.
Because of Covid, they did not attend hospital, but she called her GP, Dr Salib the following day and then visited his clinic a few days later.
History of symptoms and treatment following the motor accident
Ms Ruiz-Diaz stated that after the accident, she had nausea and vomiting, neck pain and migraine (she admitted that she has history of migraine 30 years ago). She also complained of dizziness and vertigo. She consulted her GP Dr Salib on 21 March 2020. He ordered an MRI scan of the head and other investigation which were done.
She was referred to physiotherapy about one month after afterwards which she had three times a week for about six months. She also seen by a chiropractor a few times a week.
She was referred to see a neurologist, Dr Schwarz. The claimant also said she was referred to see another neurologist, Dr Cordata to undertake an “ear balance” check. She said she was offered a Botox injection to her neck but she declined the treatment. The Panel notes that according to the documentation, Dr Cordata undertook tests at the request of Dr Schwartz.
The claimant said she changed her GP from Dr Salib to Dr Koleda, from Smithfield about six months after the after the accident and he arranged a “full body scan” although Ms Ruiz Diaz was not clear what the result was.
She could not recall seeing any head injury physician, rehabilitation physician, neurosurgeon, or neuropsychologist. She could not remember doing detailed memory tests with any doctors.
She consulted an optometrist about four months after the accident. She was referred to see an ophthalmologist, who further referred her to see another practitioner because “her eyes stay out”.
She could not recall seeing any psychologist or psychiatrist after the accident.
Details of any relevant injuries or conditions sustained since the motor accident
Ms Ruiz-Diaz denied any history of significant accidents, injuries or other relevant conditions sustained since the car accident.
Current symptoms
Her current complaints are as follows:
(a) neck pain, 9/10 on the Visual Analogue Scale (VAS). It is a constant “burning pain”. It is increased by moving the neck, or prolonged sitting;
(b) pain in left shoulder, 8/10 on the VAS. It is an intermittent ache, and sometimes radiates to the middle fingers, and other fingers. When asked to show where the pain is, she pointed to the left upper arm;
(c) pain across the shoulders. When asked to point to where the pain is, she pointed to trapezius muscle region;
(d) headache, 6/10 on the VAS. It is a constant burning ache, mainly at the back of the left eye;
(e) nausea associated with “spinning”, more often initially but now less often, and may have nausea without spinning. She said she has had six attacks this year, and the last one was last Sunday which was mild but lasted for a day;
(f) her sleep is not good, both due to early waking and late sleeping;
(g) her memory is not good since the accident. She said sometimes she forgets the phone numbers or paying the bills. Her husband sometimes blames her forgetting to do thing he asks her to do. She uses the notes feature in her mobile phone to record important appointments, and
(h) she said she is depressed but is not taking any anti-depressant or seeing any psychologist. She said she is always angry because of the chronic pain. She has never seen any pain medicine physician.
She reported no problems in her bowel and bladder functions since the accident.
She said that, at most, she can sit for 20 minutes, stand for 30 minutes, walk for 30 minutes. She said she can drive for one hour.
She is independent in her personal hygiene care and most activities of daily living (ADL). She said that prior to the subject MVA, she did most of the domestic duties.
She does not watch any sport and did not do so before the subject MVA. She spends more of her time watching television.
She has three good friends, and she socialises with them normally. They have gatherings about once every three weeks.
Current and proposed treatment
Ms Ruiz-Diaz stated that she takes the following medication:
(a) Voltaren 50 mg - 1 tablet twice daily for her pain;
(b) Symbicot - 2 puffs a day for her asthma, and
(c) Panadol - 2 tablets as required for pain.
She said she once tried Lyrica and Mobic but stopped because of the side effects. The Panel notes the records of Dr Salib state Voltaren was upsetting her stomach (16 April 2020) as a result of which Mobic was prescribed instead. A review of the Mobic medication was conducted (30 April 2020) and a repeat provided on 29 May 2020 and there is no recorded complaint of nausea due to Mobic. Panadeine Forte is reported to have made her vomit (30 April 2020) and Panadeine extra was prescribed in its place. Lyrica was not prescribed until 3 July 2020. There are no records after this date.
Currently she is not having any regular therapies, such as physio, occupational therapy or psychotherapy.
Findings on clinical examination
Clinical examination
Ms Ruiz-Diaz was oriented and alert. She said she was 167cm tall and weighed 70kg. She walked without any walking aids in a normal symmetrical gait. She had no problems walking on tip toes, on heels, or squatting. She had good high-level balance and could walk in a tandem (heel-toe) way. She dressed and undressed independently. She could get on and off the examination couch independently. She is right-handed.
Examination of the head showed no conspicuous scars, swellings or deformities. Smell sensation was normal. Visual fields tested by confrontation were normal on both eyes. There was no nystagmus or diplopia. Pupils were equal and reactive. Active movements of eyes were clinically normal in all directions. Hallpike test was normal. There were no motor or sensory deficits in the face and head. All the cranial nerves were intact. There was no difficulty in communication, both in expression and comprehension. Romberg’s test was normal. There were no cerebellar signs.
Mental state screening
Ms Ruiz-Diaz scored 28/30 in Folstein Mini Mental test (MMSE). She lost two points in short term verbal memory test. However, Assessor Wan is of the view that having observed the claimant undertaking the test and according to his clinical experience in administering this test, the short-term memory result was most likely due to the claimant giving inadequate attention or maximum effort to the testing. Ms Ruiz-Diaz had no problem in copying figures including three dimensional cubes. She had no problem in alternating sequences. She drew a clock showing the current time well. Regarding written arithmetic tests, she gave the correct answer for addition, subtraction and multiplication, but refused to do the division, saying she would not be able to do it. She gave reasonable answers when asked to interpret some common sayings. She gave fast, correct and good answers for three differences and three similarities between apple and orange.
In summary, there was no cognitive impairment detected in the mental state screening tests. The difficulty in short term verbal memory was most likely due to inadequate effort and the claimant not paying particular attention to that part of the test. Abstract thinking was normal.
It is well known that the screening mental tests may not be sensitive to detect subtle change in less than severe traumatic brain injury, which would normally require a comprehensive neuropsychological assessment. However, no neuropsychological assessment results were available in this case.
Neck – cervicothoracic spine
Examination of Ms Ruiz-Diaz’s neck showed mild tenderness over the occipital region but no muscle spasm or guarding.
Ms Ruiz-Diaz complained of subjective impaired sensation of touch and pain in whole left upper limb, which on testing, did not follow any dermatomal or peripheral nerve distribution.
There was mild but symmetrical restriction in active movements in all directions as recorded below[18]. There was therefore no evidence of dysmetria (asymmetrical loss of motion).
[18] All the measurements are those of active movements. All the active ranges of movements (ROM) of the spine were measured using a goniometer and inclinometer.
The claimant’s symptoms in her cervicothoracic spine did not fulfil the criteria of radiculopathy or non-radicular signs.
Cervical spine
Flexion
Extension
Rotation to right
Rotation to left
Lateral flexion to right
Lateral flexion to left
ROM
4/5 normal
4/5 normal
4/5 normal
4/5 normal
4/5 normal
4/5 normal
Thoracic spine - thoracolumbar
Examination of the upper back showed no tenderness, muscle spasm or guarding.
All active movements of the thoracic spine were symmetrical and within normal limits. There was no evidence of any non-verifiable radicular complaints or radiculopathy on examination.
Thoracic spine
Flexion
Extension
Rotation to right
Rotation to left
Lateral flexion to right
Lateral flexion to left
ROM
Normal
Normal
Normal
Normal
Normal
Normal
Lumbar spine - (lumbosacral)
While the claimant has never alleged an injury to her back, Ms Ruiz-Diaz’s lower back was examined in order to exclude any serious brain or neck injury. Examination showed no tenderness, muscle spasm or guarding. Active movements of the lumbar spine were normal, with no dysmetria.
There was no evidence of any non-verifiable radicular complaints or radiculopathy.
Lumbar spine
Flexion
Extension
Rotation to right
Rotation to left
Lateral flexion to right
Lateral flexion to left
ROM
4/5 normal
4/5 normal
Normal
Normal
4/5 Normal
4/5 Normal
Straight leg raising was 80° on both side in supine position and 90° in sitting position.
Arms
Examination of the upper limbs showed no gross muscle wasting on either side. Measurement of mid-upper arm circumference showed that right side was 0.5cm larger than the left side. Measurement of mid-forearm circumferences were equal on both sides
Muscle power was 4+ (out of five) in both upper limbs, both proximally and distally. The slight reduction in power on testing appeared due to pain in neck and shoulders and did not follow any spinal nerve root or peripheral nerve distribution.
Reflexes were normal and symmetrical in the upper limbs.
The claimant complained of subjective impaired sensation of touch and pain in the whole of the left and right upper limb, which was not confirmed by the two-point discrimination test, and did not follow any dermatomal or peripheral nerve distribution.
Examination of the shoulders showed tenderness in the trapezius muscle region. Active movements of both shoulders were symmetrical and largely within normal limits[19].
[19] All the active ranges of movements (ROM) of the limbs were measured using a goniometer and expressed in a numeral which is the number of degrees measured.
Shoulder
Flexion
Extension
Abduction
Adduction
Internal Rotation
External rotation
Right
180
50
175
50
80
80
Left
180
50
175
50
80
80
Examination of the elbows showed no tenderness or swelling. Active movements of the elbows were symmetrical and within normal limits.
Examination of the wrists and hands showed no deformity or swelling. Active movements of the wrists, hands and fingers were all symmetrical and within normal limits.
Legs
Examination of the lower limbs showed no gross muscle wasting. Measurement of mid-thigh circumference and mid-calf circumference showed that they were equal on both sides. Muscle power was grade 4+/5 and symmetrical, both proximally and distally, most likely due to pain or inadequate effort. Reflexes were normal and symmetrical on both lower limbs. There was no sensory impairment in both lower limbs.
Examination of the hips showed no deformity or swelling. There was no tenderness over the hip regions. The Faber test was normal on both sides. Active movements of the hips were within normal limits:
Examination of the knees showed no deformity, swelling or effusion. There was no crepitation on moving the knees. There was no excessive anterior-posterior or medial-lateral laxity, suggesting that the cruciate and collateral ligaments were intact. McMurray’s test was normal on both sides, suggesting that the menisci were intact. Active movements of both knees were symmetrical and within normal limits.
Examination of the ankles showed no deformity or swelling. Active movements of the ankles and feet were symmetrical and within normal limits.
Examination of the abdomen and chest was unremarkable.
Consistency of presentation
Overall, the clinical findings are consistent with the complaints made by the claimant.
Relevant imaging studies and other investigations
Medical Assessor Wan reviewed the films and reports of the MRI of her brain which were brought to the examination by the claimant. The 12 June 2020 MRI, reported by Dr Mark Waterland was normal and Assessor Wan agreed that this report was accurate.
The claimant said she has had an MRI of her cervical spine on 22 June 2022 showing a “disc lesion in C3/4”, but the films and reports were not taken to the examination and have not been provided to the Panel. The Panel requested a copy of this MRI but the claimant’s solicitor advised there was no 22 June 2022 MRI, no disc lesion at C3/4 and the last MRI was taken in February 2022. The claimant’s solicitor said there was some “miscommunication” from his client.
No other films or scans were brought to the assessment by Ms Ruiz-Diaz.
Panel’s consideration of the issues
Reliability of the claimant’s evidence
Clause 5.6 of the Guidelines provides guidance to treating practitioners, medico-legal practitioners and medical assessors as to how to conduct a medical assessment and is set out below:
“5.6 The assessment of whether an injury caused by the accident is a minor 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 Panel notes that having “a comprehensive accurate history” is vital for an accurate and robust assessment.
The Panel notes that the claimant reported to her chiropractor on 24 July 2020 that she has lost 5kg since the accident because of a loss of appetite caused by her nausea, dizziness and vomitting since the accident. On 17 March 2017, the claimant’s weight was recorded by Dr Salib as 68kg. On 13 February 2020 a few weeks before the accident her weight was recorded as 60.8kg. Ms Ruiz-Diaz’s weight was recorded by Assessor Cameron and Assessor Wan on information provided by the claimant as 70kg. It would appear therefore that the claimant may have actually gained and not lost weight in the last 2.5 years.
The claimant told Assessor Wan she had ceased taking Mobic due to nausea and vomitting. The records of Dr Salib indicate Ms Ruiz-Diaz was prescribed Mobic, received a repeat prescription for it and has not complained to Dr Salib of an adverse reaction to it. Ms Ruiz-Diaz told Assessor Cameron and Assessor Wan she was taking Voltaren daily. Dr Salib’s records note that she did complain of an adverse reaction to Voltaren which he ceased.
The claimant reportedly told Dr Schwartz she had been working for her husband. The claimant told Assessor Wan she had been working for her husband for 40 hours a week before the accident. This is contrary to the history she provided in her claim form which suggests she was not employed and worked as a carer in receipt of Centrelink benefits.
The claimant told Assessor Wan that she had an MRI scan undertaken on 22 June 2022 showing a C3/4 disc lesion. The claimant’s solicitor says there was no 22 June 2022 MRI, just the one taken on 22 February 2022 which did not show a C3/4 disc lesion.
The Panel notes Assessor Payten has history of left eye symptoms (includes flashes in her vision) whereas Assessor Steiner has a history of right eye flashes. There is no mention in Dr Salib’s records, or the report of Dr Myers of any flashes at all.
The insurer has not made any suggestion that the claimant is not a credible witness and the Panel does not intend to make any such finding. The claimant herself says she has a poor memory and she relates that memory loss to the accident. Dr Salib’s notes on 23 October 2017 have a record of memory impairment and anxiety. The Panel also notes the report of Dr Schwartz who suggests the claimant has been looking for a neurological answer to her multiple issues.
The Panel notes it is now more than two years since the accident and the Panel does not expect the claimant to remember each and every event or detail of the last two years. The Panel has recounted the above as examples which have caused the Panel concern as to the accuracy of the histories provided by the claimant. The Panel will therefore approach with caution the claimant’s evidence given in her history to Assessor Wan.
Cervical spine injury
The Panel accepts that the claimant injured her neck in the accident and has continued symptoms in the cervical spine area. The Panel is comfortably satisfied she has sustained a soft tissue injury to her cervical spine in the accident.
Does the claimant have cervical 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 minor 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 Ms Ruiz-Diaz’s cervical spine injury to fall outside the definition of minor injury in s 1.6, she 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.
On the day Assessor Wan examined the claimant, the Panel’s findings are that the claimant does not have radiculopathy because:
(a) loss of or asymmetry of reflexes – all Ms Ruiz-Diaz’s reflexes were present and equal on both sides;
(b) positive sciatic nerve root tension signs are not relevant in assessments of the cervical spine;
(c) muscle atrophy and or decreased limb circumference - while the claimant did have a 5mm difference between her upper arm circumference when comparing the right to the left, this is, in the clinical judgment of the medical members of the Panel within normal limits considering Ms Ruiz-Diaz is right hand dominant;
(d) muscle weakness – on testing, there was no muscle weakness found by Assessor Wan, and
(e) reproducible sensory loss anatomically localised to an appropriate nerve root distribution – the claimant complained of loss of sensation over the whole of her arm which did not correspond to an appropriate nerve root distribution.
The Panel is not therefore satisfied that at the time of Assessor Wan’s examination the claimant satisfies the statutory test of radiculopathy.
Has the claimant had radiculopathy at any time since the accident?
The insurer did not dispute the Panel’s preliminary view that if the Panel was satisfied that radiculopathy had been present at some time since the date of the accident, then the claimant must be found to have a non-minor injury.
Dr Salib has referred in his notes to a diagnosis of radiculopathy. Dr Schwartz formed the view the claimant had “probably exacerbated a cervical radiculopathy”.
The medical members of the Panel are of the view that treating doctors will often diagnose “radiculopathy” when a patient complains of pain coming from a part of the spine and radiating into another party of the body. Radiating pain is not one of the five signs of radiculopathy found in cl 5.6 of the Guidelines.
Dr Salib recorded on 25 February 2020 that the claimant had no paraesthesia (sensory loss) or weakness in her upper limbs and a full range of cervical spine movements. On 6 April 2020 the claimant first complained of burning and tingling down her arms which has been a feature in his notes and other report since then. Dr Salib does not record loss of reflexes, muscle weakness or muscle atrophy which would enable the Panel to determine whether on examination by Dr Salib, Ms Ruiz-Diaz would have satisfied the statutory test found in cl 5.6.
Dr Schwartz’s letter of 10 August 2020 has a history from the claimant of paraesthesia “temporally”’ related to her motor accident. The Panel notes the first medical record of paraesthesia occurred some six weeks after the accident. Dr Schwartz notes tone and power were normal with reduced ankle jerks. He also does not identify or verify as present, any of the signs which would enable the Panel to determine the presence of radiculopathy as required by the Guidelines. The Panel called for his clinical notes to ascertain if he had recorded such findings in them, but no such notes exist.
The Panel is not therefore satisfied that the claimant has experienced radiculopathy within the definition in the Guidelines at any time since the accident.
Does the claimant have a disc bulge or tear caused by the accident?
In the April 2020 MRI of the claimant’s cervical spine, the radiologist reported disc dehydration at C2/3 and C3/4 without disc bulge or protrusion, a 4mm disc protrusion at C4/5 flattening the cord and a C5/6 disc bulge with endplate osteophytes on both sides partially effacing the exiting C6 nerve roots without definite neural impingement. There was a minor disc bulge at C6/7. Clinical correlation was said to be essential in attributing the C5/6 disc bulge and endplate osteophytes to the claimant’s pain.
Disc desiccation or dehydration is the natural process of aging. As the human body ages, the discs between two vertebra lose moisture and therefore their plumpness. The outer ring of the disc as it ages and dries develops fissures or tears and the inner part of the disc can bulge or protrude into or extrude through these fissures or tears. Disc fissures or tears and bulges and protrusions can also occur in traumatic situations such as work related, domestic or car incidents or accidents where sufficient loading is placed on the spine.
The Panel acknowledges that there are no significant complaints of neck pain before the accident in the records and certainly no evidence of any neurological investigations or radiological studies undertaken of Ms Ruiz-Diaz’s neck before 17 March 2020.
The medical members of the Panel note that in their clinical experience, focal disc protrusion is a common radiological finding in the asymptomatic general population of the age of the claimant. Ms Ruiz-Diaz displayed no symptoms soon after the accident suggesting a cervical disc protrusion did not occur at that time. There are current complaints of pain in the neck radiating from the neck to all over the arms and hands but there were no clinical neurological signs in the upper limb suggestive of C5/6 nerve root compression (or other spinal nerve root injury) evident before Assessor Wan.
The Panel is not satisfied that the findings on the claimant’s cervical MRI were accident related and the medical members of the Panel share the view of the claimant’s treating neurologist, Dr Schwartz that Ms Ruiz-Diaz aggravated pre-existing degenerative changes in her spine (including any disc bulges tears or fissures) in her 17 March 2020 motor vehicle accident.
The claimant argues in her submissions that even if there was a pre-existing (pre-accident) tear and bulge of a disc that the tear could have further ruptured and the disc further bulged and that this is also a non-minor injury. The claimant asserts that the insurer bears the onus of proof in satisfying the Panel that the claimant has a non-minor injury.
The Panel doubts that the nature of its proceedings require a consideration of the onus of proof. The Panel considers the claimant must satisfy the Panel as to the general nature of the injury sustained in the accident and that the insurer must satisfy the Panel that such an injury is non-minor. There is no medical evidence before the Panel provided by the claimant to support the claimant’s argument that there has been a further tear or further fissure and therefore further rupture of the outer ring of any disc and no evidence provided by the claimant to suggest there has been a further bulge of any disc. The Panel repeats its finding that the radiology reveals common age-related changes in the cervical spine which have not caused neurological signs and symptoms in the claimant’s upper limbs and which do not correlate to the claimant’s extensive complaints of pain.
Thoracic spine injury
None of the claimant’s submissions raise any issues in respect of Assessor Cameron’s assessment of the thoracic spine however, noting the general submissions with respect to the issue of radiculopathy, the Panel will consider this injury.
The claimant has consistently complained of neck pain since the accident. In the Allied Health request of 2 April 2020 is a reference to the thoracic spine which Mr Trautman believes is “soft tissue damage only”. No investigations of a thoracic spine injury have been undertaken and there is no thoracic spine radiology.
The medical members of the Panel note that injured persons sometimes identify upper back (thoracic) pain as neck pain or pain between the shoulder blades (and lower down) as neck pain.
The Panel notes that Ms Ruiz-Diaz complained of neck pain radiating into the shoulders on 21 March 2020 and on 6 April 2020 complained of pain between her shoulder blades and on 29 May 2020, Dr Salib gave her a referral for imaging of her left shoulder. The Panel has no record of that imaging, if it was done.
The Panel is satisfied that the claimant did sustain an injury to her thoracic spine which has now settled.
Does the claimant have thoracic radiculopathy?
There was no thoracic radiculopathy, within the meaning of cl 5.8 of the Guidelines, evident to Assessor Wan on his examination. There was no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness, or reproducible sensory loss that could be anatomically localised to an appropriate dermatome.
Has the claimant had thoracic radiculopathy at any time since the accident?
For the reasons set out above in relation to the cervical spine, there is no record in Dr Salib’s notes or the reports of Dr Schwartz of any signs or symptoms that would satisfy the test in cl 5.8 and establish thoracic radiculopathy.
Injury to the head
The head is a complex part of the human anatomy. Simply, and in lay terms it is that part of the body above the neck and includes hard tissues (such as the bone of the skull or teeth) and soft tissues (such as the skin and the brain). An injury to the head could involve a visible injury to an external part of the head, such as a laceration to the scalp or a visible injury to an internal part of the head such as the tongue. An injury to the head could also involve an injury visible or diagnosable only with specialised equipment (such as a detached retina in the eye) or with radiology (such as a fractured skull) or identified by testing (such as hearing loss).
Dr Salib does not record a head strike in his first note of 21 March 2020.
The claim form lodged by the claimant dated 25 March 2020 does not list any injuries at all. Dr Salib’s certificates of capacity do not mention an injury to the claimant’s head. The first allied health request dated 2 April 2020 also makes no mention of a head injury. Dr Schwartz in August 2020 does not record in his history any mention of the claimant hitting her head but notes the claimant has been searching for a neurological explanation as to her symptoms. Dr Myers in August 2020 has a history from the claimant of a “closed head injury” with “no loss of consciousness at the time”.
Assessor Steiner has a history of a bump on the head caused by the claimant hitting her head on the headrest. There is no mention of the glass panel.
Assessor Parmegiani took a history from the claimant of her hitting her head on the panel behind the seat, but he does not mention the headrest.
Assessor Payten has a history of Ms Ruiz-Diaz head hitting the headrest (no mention of the panel) and of the seat belt digging in (which is not reported elsewhere).
The claimant’s statement dated 31 May 2022 contains considerable detail of the accident including the claimant’s memory of being flung backwards and her head “striking the headrest and the glass panel above and behind it”.
The claimant gave a similar history to Assessor Wan.
The Panel notes the claimant is somewhere between 166 and 170cm tall (about five foot four to five foot six inches). The Panel has doubts that in a rear-end collision where both vehicles were drivable after the event, that the claimant could hit her head on both the headrest and the glass panel behind and above it. In the absence of any relevant biomechanical evidence the Panel accepts the claimant did hit her head on some part of the car in the accident, most likely the headrest.
What is the nature of the injury to the claimant’s head?
Assessor Payten certified that the claimant did not injure her ears in the accident and that her vestibulopathy is likely related to migraines and headaches.
Assessor Steiner certified that the claimant did not injure her optic nerve(s) in the accident, that she has exophoria which was a minor injury and “almost certainly related to her closed head injury”.
Exophoria is a weakness in the eye muscles or poor eye co-ordination which results in one eye to drift outwards or away from the other eye. Assessor Steiner and Dr Myers have confirmed that Ms Ruiz-Diaz has exophoria and the Panel must accept their expert opinions.
Whatever its cause, exophoria as an ophthalmic condition is, as Assessor Steiner has indicated, a minor injury.
Having read the claimant’s submissions as a whole, the claimant appears to be saying that her constellation of current symptoms including dizziness, vertigo, nausea, visual problems and migraine or headaches are a result of a head injury sustained when she hit her head in the car accident on 17 March 2020.
The claimant says her head injury resulted in a concussion which is an injury to the brain. The claimant says that this is a non-minor injury because any brain injury, regardless of its severity or its categorisation or classification, is an injury to an organ and an injury to an organ falls outside the definition of minor injury in s 1.6.
The Panel notes Assessor Steiner made no actual finding there was a head injury but appears to assume there was one based on the history he was given that a few days after the accident the claimant had a severe headache, neck pain and throbbing of her left eye and attacks of vertigo. This is not the history reflected in the notes of Dr Salib or elsewhere which suggest the first complaint of headache to him occurred on 27 April 2020 (and to the chiropractor on 2 April 2020) and headaches with light-headedness and nausea were first complained of on 29 May 2020. Dr Myers has taken a relatively similar history of ongoing nausea, headaches and vomiting following her car accident and he too has approached the issue of diagnosis that the history is correct and suggests these symptoms relate “directly to a closed head injury”. The first mention of a stabbing pain behind the left eye occurs in the claimant’s statement of May 2022.
The Panel suggests that with great respect to Dr Myers and Assessor Steiner they are not medical practitioners with expertise in the brain injury field.
The claimant’s history to Assessors Steiner and Payten were that symptoms of nausea, vertigo and vomiting came on two months after the accident (which is consistent with Dr Salib’s notes) but she suggested to Assessor Wan that all her symptoms came on shortly after the accident.
There is certainly no medical evidence of a head injury resulting in brain injury. There is for example no documented loss of consciousness, no documented post-traumatic amnesia, and no evidence of brain imaging abnormality. On examination by Assessor Wan there was no retrograde and anterograde amnesia. The claimant could remember events just before and after the accident. Mental status screening tests have not shown any objective signs of any cognitive impairment, significant memory impairment or executive function impairment and imaging of the brain has not revealed any abnormality.
Did the claimant sustain a concussion?
The medical members of the Panel note that concussion is the result of a traumatic head injury that causes a brain injury and impairment of brain function. The effects of a concussion are usually transient or temporary and can include symptoms including headache, dizziness, problems with concentration, memory, balance, co-ordination and so on. Some concussions are so severe that there is a loss of consciousness.
The Panel notes Ms Ruiz-Diaz has not reported any loss of consciousness following the accident and she is not amnesic of events immediately before, during or after the collision. The Panel specifically notes that the claimant told Dr Parmegiani she recalls seeing her husband move backwards and forwards in his seat.
The Panel notes that none of the medical records or reports from the claimant’s treating doctors or other Assessors have diagnosed a concussion. The suggestion of a concussion comes from the claimant’s submissions which were written by her solicitors.
The medical members of the Panel are of the view that if the claimant sustained an injury to her head sufficient to result in a concussion, the claimant would have reported severe pain in the head at the location of the head strike immediately after the accident and physical symptoms would have been experienced immediately or within days of the accident. The Panel notes Dr Salib recorded headache (but not a head strike or pain consistent with a head strike) on 21 March 2020 and occipital headache on 27 April. Dr Schwartz (who did not record a history of eye or visions problems, nausea or vomiting) was of the view the claimant’s headaches were cervicogenic (related to her neck pain) and possibly caused by tension. He considered the claimant may have post-traumatic vestibulopathy. Vestibulopathy was ruled out by Assessor Payten who noted the two-month delay in the onset of vestibular symptoms was not consistent with a concussive injury to the inner ear at the time of the accident.
The Panel notes Dr Salib’s records document light-headedness and nausea on 29 May 2020 and eye symptoms on 3 June 2020. The claimant’s history to several doctors is of vomiting, head spinning and nausea coming on suddenly two months after the accident. This slow development of symptoms is not, in the clinical experience of the medical members of the Panel an indication of concussion. In particular the development of exophoria first experienced and reported months after the accident is not an indication of a concussion sustained as a result of the accident.
The medical members of the Panel are therefore not satisfied that the claimant sustained an injury to her head that has caused a concussion.
There is no evidence of any open wound to Ms Ruiz-Diaz’s head. The Panel is not satisfied that the claimant sustained a closed head injury resulting in a concussion or any other injury to her brain in the accident.
As the claimant has not sustained, in the Panel’s view a concussion, there is no issue of her having a post-concussion syndrome as alleged. The Panel also notes the claimant’s allegation of injury includes memory loss. The Panel is also not satisfied that any memory loss the claimant alleges is due to a brain injury or any injury to her head that she sustained in the accident.
CONCLUSION
The medical members of the Panel are satisfied that the claimant sustained the following injuries in the accident:
(a) cervical and thoracic spine – soft tissue injuries but not a disc protrusion or the “partial rupture of tendons, ligaments, menisci or cartilage”;
(b) cervical and thoracic spine – soft tissue injuries but not an injury to a spinal nerve root manifesting in radiculopathy, and
(c) head – soft tissue injury to the back of the head but not an injury to the brain resulting in any symptoms including concussion, post-concussive syndrome or memory loss.
It therefore follows that none of the physical injuries the Panel was asked to assess fall outside the definition of ‘minor injury’ in s 1.4 of the MAI Act.
The assessment of Assessor Ian Cameron is confirmed.
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