Saad v QBE Insurance (Australia) Limited
[2023] NSWPICMP 673
•13 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Saad v QBE Insurance (Australia) Limited [2023] NSWPICMP 673 |
| CLAIMANT: | Therez Saad |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 13 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident on 13 January 2021; Medical Assessor (MA) Woo certified injury to cervical spine, lumbar spine, left and right shoulder, right knee, right leg and right foot were soft tissue injuries; therefore, threshold injuries; MRI of the lumbar spine and MRI of the left shoulder caused by injury but not reasonable and necessary in the circumstances and not likely to improve recovery of claimant; dispute as to causation of left shoulder; whether two or more signs of radiculopathy made by medical practitioner or other suitably qualified person as per David v Allianz Australia Insurance Limited; Held – causation left shoulder established; physiotherapist meets definition of other suitably qualified person; Panel not satisfied physiotherapist had established muscle weakness or sensory loss anatomically located to an appropriate spinal nerve root distribution; Panel not satisfied reference to radicular complaints sufficient to show radiculopathy for the purposes of the Motor Accident Injuries Act 2017; Panel finds claimant sustained soft tissue injuries; Panel affirms certificate of MA Woo as to threshold injury; Panel affirms certificate of MA Woo in relation to treatment dispute. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel affirms the certificate of Medical Assessor Alexander Woo dated 4 June 2023. ASSESSMENT OF TREATMENT AND CARE The Review Panel affirms the certificate of Medical Assessor Alexander Woo dated 4 June 2023. |
STATEMENT OF REASONS
INTRODUCTION
On 15 April 2020 Mrs Therez Saad (the claimant) was driving her motor vehicle along Old Canterbury Road, Hurlstone Park when she stopped at traffic lights on New Canterbury Road. Her vehicle was then struck from behind by the insured vehicle (the accident).
QBE Insurance (Australia) Limited is the relevant insurer with liability to pay any statutory benefits to Mrs Saad under the Motor Accident Injuries Act 2017 (MAI Act).
On 12 May 2020 Mrs Saad lodged an Application for personal injury benefits with the insurer alleging injuries to her neck, lower back, right knee, right leg and right foot.
Under the provision of the MAI Act in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.[1]
[1] Section 3.28 of the MAI Act.
Mrs Saad was 65 years of age at the date of accident and is now 69 years of age.
Threshold injury dispute
On 10 August 2020 the insurer determined that Mrs Saad had sustained a minor (threshold) injury and denied liability for statutory benefits beyond 26 weeks after the accident.
On 3 September 2020 Mrs Saad sought an Internal Review of the minor (threshold) injury decision and on 16 September 2020 the insurer affirmed the determination that the claimant’s injuries met the definition of a minor (threshold) injury.[2] In its determination the insurer advised they had not had the benefits of reviewing the general practitioner’s notes which had been requested on 19 May 2020 and again on 19 September 2020. The insurer also noted it had not had the benefit of MRI scans which had been approved but not yet undergone by Mrs Saad.
[2] Insurer’s bundle p 13.
On 14 November 2022 Mrs Saad filed an application in the Personal Injury Commission (Commission) in respect of the minor (threshold) injury dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the motor accident is a threshold injury for the purposes of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]
[3] Section 7.20 of the MAI Act.
Treatment disputes
On 24 March 2022 the claimant’s treating orthopaedic surgeon Professor Ghabrial referred the claimant for an MRI scan of the lumbar spine and of the left shoulder.
On 7 April 2022 the insurer declined to fund the MRI scans of the lumbar spine and the left shoulder. On 10 May 2022 the claimant sought an internal review of that decision.
On 19 May 2022 the insurer affirmed the determination that the MRI of the lumbar spine and the MRI of the left shoulder were not reasonable and necessary in the circumstances and would not improve the claimant’s recovery in relation to an injury caused by the accident.[4]
[4] Insurer’s bundle p 20.
Mrs Saad filed an application in the Commission in respect of the treatment dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether proposed treatment relates to the injury caused by the accident and is reasonable and necessary in the circumstances.
In accordance with the Motor Accident Injuries Amendment Regulation 2023 (Regulation) the Panel has the power to determine the dispute as to recovery of the injured person in that it provides that Schedule 2, cl 2(c) of the MAI Act, as in force immediately before its repeal on 1 April 2023 continues to apply to a motor accident which occurred before 1 April 2023.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[5]
[5] Section 7.20 of the MAI Act.
Both the threshold injury dispute and the treatment disputes were referred to Medical Assessor Woo.
THRESHOLD INJURY – STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[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.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 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.
5.8 Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see 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.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In Briggs v IAG Limited trading as NRMA Insurance[6] his Honour Justice Wright stated at [35]:
[6] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
TREATMENT DISPUTES – STATUTORY PROVISIONS
Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person-
(a)The reasonable cost of treatment and care,
(b)Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,
(c)If the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and cate for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
DOCUMENTS CONSIDERED BY THE REVIEW PANEL
The Panel issued a Direction to the parties on 28 August 2023. The claimant was directed to upload to the portal an indexed, paginated bundle of all documents sought to be relied upon by the claimant in the review. On 8 September 2023 the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 97 (claimant’s bundle).
The Panel noted the insurer uploaded a paginated and indexed bundle of documents in reply on 12 July 2023 (Insurer’s bundle). The Panel directed the insurer by close of business 25 September 2023, to upload to the portal any additional documents sought to be relied upon in an indexed and paginated bundle or to advise if the entirety of the documents sought to be relied upon had already been uploaded to the portal in the existing bundle.
On 19 October 2023 the insurer confirmed no further documents were sought to be relied upon.
ASSESSMENT UNDER REVIEW
Medical Assessor Woo issued a certificate dated 4 June 2023 in which he certified that the following injuries caused by the accident were threshold injuries for the purpose of the MAI Act:
· cervical spine – soft tissue injury
· left shoulder – soft tissue injury;
· right shoulder – soft tissue injury;
· lumbar spine – soft tissue injury
· right knee – soft tissue injury;
· right leg – soft tissue injury, and
· right foot – soft tissue injury.
Medical Assessor Woo also certified that the following treatment and care did not relate to the injury caused by the accident, was not reasonable and necessary in the circumstances and would not improve the recovery of the claimant:
· the requested MRI of the lumbar spine as per referral dated 24 March 2022, and
· the requested MRI of the left shoulder as per referral dated 24 March 2022.
The injuries referred for assessment to Medical Assessor Alexander Woo in respect of the dispute as to threshold injury were the following:[7]
· injury to the neck – cervical radiculopathy, disc vertebral changes C5/6, C6/7, T5/6 and T8/9, uptake in the right sided facet joints at C3/4, severe foraminal narrowing bilaterally with impingement on the nerve roots to the cervical spine;
· injury to the left shoulder – subscapularis and supraspinatus tendinosis, subacromial bursitis;
· injury to the right shoulder – rotator cuff impingement;
· injury to the lower back – lower lumbar facet arthrosis, lumbar spine radiculopathy, facet joint arthritis at L4/5 and L5/S1;
· injury to the right knee – soft tissue injury;
· injury to the right leg – soft tissue injury, and
· injury to the right foot – soft tissue injury to right foot, mild osteoarthritis throughout the interphalangeal joint of the 1st MTP joint with slight hallux valgus.
[7] Claimant’s bundle p 24.
The following treatment disputes were also referred for assessment:
· whether the requested MRI scan of the lumbar spine as per referral dated
24 March 2022 relates to the injury caused by the accident;· whether the requested MRI scan of the lumbar spine as per referral dated
24 March 2022 is reasonable and necessary in the circumstances;· whether the requested MRI scan of the lumbar spine as per referral dated
24 March 2022 will improve the recovery of the injured person;· whether the requested MRI scan of the left shoulder as per referral dated
24 March 2022 relates to the injury caused by the accident;· whether the requested MRI scan of the left shoulder as per referral dated
24 March 2022 is reasonable and necessary in the circumstances, and· whether the requested MRI scan of the left shoulder as per referral dated
24 March 2022 will improve the recovery of the injured person.Medical Assessor Woo obtained a history of the following prior injuries:
· injury to the head, neck, chest and lower back in a motor vehicle accident in 1996;
· injury to the right knee and right shoulder in a fall in a car park in 1998 followed by an arthroscopy performed by Dr Warwick Bruce, and
· two workers compensation claims, noting the claimant worked with Telstra performing administrative duties from 1979 to 1999.
Medical Assessor Woo reported following the accident Mrs Saad started to have pain involving her neck, lower back, right foot, both shoulders and right knee.
On examination Medical Assessor Woo reported tenderness in the cervical spine. Range of movement was ¾ normal in all directions with voluntary guarding. He found no dysmetria and no real muscle guarding. Reflexes were normal, there was no weakness and no atrophy, and no sensory loss related to any spinal nerve root distribution.
Medical Assessor Woo found tenderness in the lumbar spine, and range of movement half normal with voluntary guarding. He reported straight leg raising was 85% on both sides with lower back pain. Sciatic nerve root tension signs were negative. Reflexes were normal with no wasting and no atrophy. Whilst Mrs Saad reported sensation loss of the right lower limb it was not localised to any spinal nerve root distribution.
Medical Assessor Woo noted tenderness in both shoulders with range of movement restricted by pain. He reported the following:
Shoulder movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
120º
120º
Extension
30º
40º
Adduction
40º
40º
Abduction
120º
120º
Internal Rotation
70º
80º
External Rotation
90º
90º
Medical Assessor Woo found no definite impingement signs in both shoulders.
In relation to the lower extremity, he found no effusion in either knee and reported both knees had equal and normal range of movement. There was no ligamentous instability, clinical signs of meniscal injury were negative and there was hallux valgus of both feet. Range of movement was similar and equal in both feet.
Medical Assessor Woo noted clinical notes showed longstanding pre-existing conditions/degenerative changes in the cervical spine, lumbar spine, both shoulders, the right knee and right foot. He reviewed the available imaging findings which he found were consistent with longstanding pre-existing degenerative changes with no evidence of acute trauma.
Medical Assessor Woo concluded Mrs Saad had sustained soft tissue injuries to her cervical spine, left shoulder, right shoulder, lumbar spine, right knee, right leg and right foot. He also reported she had aggravation of pre-existing conditions/degenerative changes following the accident.
In the absence of any fracture, any complete or incomplete rupture of tendons, ligaments, menisci or cartilage or two or more of the five signs of radiculopathy in the upper and lower limbs Medical Assessor Woo concluded the injuries sustained by the claimant were threshold injuries.
Medical Assessor Woo found the claimant’s injuries had stabilised and there was no indication for further MRI investigation of the left shoulder and lumbar spine. He found those investigations were not reasonable and necessary in the circumstances and would not improve the claimant’s recovery.
REVIEW PROCEDURE
The claimant lodged an application for review of the assessment of Medical Assessor Woo on 30 June 2023 within 28 days of the date on which the certificate of Medical Assessor Woo was made available to the parties.
On 25 August 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[8]
[8] Claimant’s bundle p 5.
Part 5 of the Personal Injury Commission Act, 2020 (PIC Act) enables the Commission to make rules with regard to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[9]
[9] Section 41(2) of the PIC Act.
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 proceedings solely based on the written application.[10]
[10] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 2 November 2023 the Panel concluded a medical re-examination was required.
EVIDENCE
Application for personal injury benefits
In the Application for personal injury benefits dated 12 May 2020 the claimant listed injuries to her neck, lower back, right knee, right leg and right foot.[11]
Treating medical records
[11] Claimant’s bundle p 27.
Clinical records of Dr Ashraf El Gamal, general practitioner
Prior to the accident the claimant consulted Dr El Gamal for related complaints as follows:
· 24 February 2010 – painful, swollen and tender right toe - 2nd MTP (metatarsophalangeal Joint);
· 3 March 2010 – right metatarsal fracture;
· 6 July 2010 – bilateral foot pain;
· 16 July 2010 – back pain;
· 8 December 2010 – back pain;
· 19 January 2011 – neck pain;
· 14 February 2011 – bilateral shoulder pain;
· 19 September 2011 – left shoulder pain;
· 3 October 2012 – neck pain;
· 20 December 2012 – back pain;
· 27 February 2013 – lumbo-sacral back pain;
· 2 August 2023 – neck pain;
· 22 September 2014 – left shoulder pain;
· 18 June 2015 – back pain;
· 4 March 2016 – back pain, and
· 21 March 2016 – back pain
Mrs Saad consulted Dr El Gamal on 16 April 2020. He referred the claimant for an X-ray of the lumbo-sacral pain noting she had sciatica of the right leg.[12] He reported:
“Neck pain. Back pain. Injury. MVA driver of a car that was hit from the back on 15/04/2020 while stationary. Pain lumber region pain radiates to right leg and right foot”.
[12] Insurer’s bundle p 88.
On 17 April 2020 and on 28 April 2020 the claimant consulted Dr El Gamal in relation to back pain.
On 5 May 2020 Dr El Gamal reported neck pain and back pain. He noted the pain radiates to the right leg. He also reported “tender right 2nd toe”.
Dr El Gamal issued a Certificate of capacity/certificate of fitness dated 11 May 2020 in which he provided the following diagnosis of the motor accident related injuries:
“Neck pain, lower back pain, sciatica, right leg, right foot pain”.[13]
[13] Insurer’s bundle p 26.
On 28 May 2020 and 22 June 2020, the claimant saw Dr El Gamal in respect of back pain.
On 3 July 2020 Dr El Gamal recorded left shoulder pain.[14] Whilst not swollen it was tender. He noted no deformity and no restriction.
[14] Insurer’s bundle p 91.
Dr Mona Bishay, clinical records
On 12 July 2017 Dr Bishay referred Mrs Saad to Dr Ghabrial regarding neck and lower back pain.
Mrs Saad saw Dr Bishay for osteoporosis on 1 June 2020. On 4 July 2020 she reported acute left shoulder pain and recommended an X-ray and ultrasound.[15]
[15] Claimant’s bundle p 42.
On 7 July 2020 she reported left tennis elbow, left shoulder pain, and lower neck pain. On
10 July 2020 and on 31 July 2020 Dr Bishay reported the claimant attended in respect of a left rotator cuff injury.On 4 September 2020 Dr Bishay reported inter alia complaints of right sciatica, she noted the left shoulder was slow improving, right shoulder pain flared up, neck pain and stiffness and frequent daily headache. Mrs Saad reported difficulty with her housework specifically vacuuming, mopping, and cleaning the shower screen.
On 9 October 2020 Mrs Saad attended in respect of neck pain. On 8 January 2021 Mrs Saad complained of acute right shoulder pain.
On 5 February 2021 Dr Bishay reported lower back pain and requested a CT guided steroid injection to the lumbar spine.[16]
[16] Claimant’s bundle p 39.
The next relevant attendance was on 14 July 2021 when Dr Bishay reported the neuropathic pain had improved and Mrs Saad had ceased Lyrica. On 24 August 2021 Mrs Saad attended in respect of lower back pain. Attendances thereafter until 6 May 2022 were in relation to unrelated complaints.
Professor Ghabrial
In a form where Professor Ghabrial reported his examination of the cervical spine on 15 July 2017 he noted muscle guarding, restricted movement in all directions and tenderness of the lower cervical spine. He ticked motor power, sensation and reflexes as normal.
On 24 March 2022 Professor Ghabrial completed an Upright Multipositional MRI Request Form for a left shoulder MRI and a lumbar spine MRI.[17] Professor Ghabrial has written under the heading Clinical Notes on the Request Form, “? R L5/S1 pain & R L5 radiculopathy”.
[17] Claimant’s bundle p 65.
Jonathon Khoo of Khool Physiotherapy
In a report dated 11 May 2020 Mr Khoo reported he was treating the claimant for lower back, neck and foot pain post-accident. He reported she was “complaining of pain in her neck and going down her R arm in a C6/7 distribution, with pins and needles and numbness in the same and also the R leg in a L2/3/4 distribution and numbness and weakness in same”. [18]
[18] Claimant’s bundle p 34.
Mr Khoo reported movement in the claimant’s back was fair and the X-ray reported her back was normal. He noted her neck movements were markedly stiff with approximately half full range of movement in lateral flexion in both directions. He noted her shoulder seemed to be moving well with minimal signs of impingement.
Benchmark Activities of Daily Living Assessment, 22 June 2020
Mrs Isabel Liu-Batista, occupational therapist undertook an Activities of daily living (ADL) assessment on 15 June 2020 at the claimant’s home.[19]
[19] Insurer’s bundle p 36.
Mrs Liu-Batista reported pain in the right leg, restricted range of movement of the right knee, constant aching and stiffness in the neck, tension headaches, swelling and pain in the second digit of the right foot, pain and restricted range of movement of the right shoulder, constant lower back pain and anxiety when driving.
Mrs Saad described difficulty with household tasks, including meal preparation, bed making, shopping, cleaning and laundry.
Dr Matthew Giblin, orthopaedic specialist
Dr Giblin saw Mrs Saad at the request of Dr Bishay and provided a report dated 17 August 2020.[20]
[20] Claimant’s bundle p 48.
He reported following a motor vehicle accident in 1996 Mrs Saad had some minor intermittent neck and low back discomfort up until the accident.
On examination of the cervical spine, he found a restricted range of movement, particularly with right lateral rotation accompanied by pain and spasm. He noted slight restriction of both shoulder movements with pain in the trapezius. Whilst Mrs Saad complained of weakness in the right upper limb, he could not find any hard neurological signs. In the left upper limb, he reported some weakness of both elbow flexion and extension. Dr Giblin thought the shoulder pain probably came from the neck.
On examination of the lumbar spine, he reported she could forward flex to the knees, straight leg raising was 80 degrees bilaterally with pain at the extremes and no significant peripheral neurological signs. He reported difficulty dorsiflexing the toes of the right foot, noting the injury to the big toe may have caused the restricted movement. Both ankle jerks were depressed. He reported a reasonable range of movement of the hips.
Dr Giblin reviewed the claimant on 4 November 2020 after Mrs Saad underwent investigations.[21] He concluded most of the symptoms in the neck were in the cervico/thoracic region. He reassessed the shoulder and noted some tenderness over the left AC joint which he stated may be the cause of the pain in the shoulder.
[21] Claimant’s bundle p 50.
He reported the MRI of the lumbar spine showed no evidence of radiculopathy, just facet joint arthritis at L4/5 and L5/S1 and generalised disc bulges.
He reported the MRI of the cervical spine showed the claimant had severe foraminal narrowing bilaterally with potential impingement of the nerve roots through the cervical spine. Clinically he did not find any symptoms of radiculopathy.
Ryde Hospital
On 8 January 2021 Mrs Saad presented to the Emergency Department with right shoulder pain and restricted movement.[22] She described sudden onset as she was lifting her arms, on the background of intermittent shoulder pain since the accident. On examination her shoulders were noted to be symmetrical, her shoulder was tender when palpated and she could passively lift the arm to about 45 degrees. A shoulder X-ray did not show any dislocation, fracture or obvious soft tissue injury. She was discharged home with Endone and Nurofen.
[22] Claimant’s bundle p 89.
Imaging/investigations
DEXA bone mIneral densitometry, 29 November 2010 – the report concludes:
“Lumbar spine – these findings are consistent with moderately severe osteopenia”, and …
“Femoral neck – these findings are consistent with mild osteopenia”.[23]
[23] Insurer’s bundle p 126.
X-ray lumbar spine, 16 April 2020 – the report reads:
“History
Sciatica right leg.
Findings:
There is a mild lateral curvature of the lumbar spine convex to the left. Sagittal alignment is normal. NO vertebral body height loss is seen.
Disc heights appear preserved. There is mild lower lumbar facet arthrosis noted….”[24]
[24] Claimant’s bundle p 43.
CT cervical and lumbar spine, 20 May 2020 – the report reads:
“Cervical spine
No evidence of recent fracture. There is slight reversal of the cervical lordosis centred at C4. Minor anterolisthesis is seen C3 on C4.
There is multilevel discovertebral degeneration, most pronounced at C5/6 where there is some moderate discal height loss. There is mild facet arthrosis greatest at right C3/4.
At C2/3, there is left paracentral disc osteophyte complex causing minor canal stenosis. There is no significant foraminal stenosis.
At C3/4, there is disc osteophyte complex with central left/paracentral disc protrusion causing mild to moderate canal stenosis. There is mild left and moderate right foraminal stenosis with potential irritation of the exiting right C4 nerve root.
At C4/5, there is disc osteophyte complex causing mild to moderate canal stenosis. There is mild left and moderate right foraminal stenosis with potential irritation of the exiting right C5 nerve root.
At C5/6, there is disc osteophyte complex with a left paracentral disc protrusion causing mild to moderate canal stenosis. There is mild to moderate bilateral foraminal stenosis with potential for irritation at exiting bilateral C6 nerve roots.
At C6/7, there is disc osteophyte complex causing mild canal stenosis. There is mild to moderate bilateral foraminal stenosis with potential irritation of the exiting C7 nerve roots.
At C7/T1, there is no significant disc protrusion, canal or foraminal stenosis.
Lumbar Spine
There is no evidence of recent fracture within the lumbar spine. There is minor anterolisthesis of L4 on L5. Otherwise, normal alignment.
No vertebral body height loss is demonstrated. Disc heights appear preserved. There is minor anterior osteophytosis most pronounced at L1/2. There is mild multilevel facet arthrosis, greatest at left L4/5 and L5/S1.
At L1/2, there is no significant disc bulge, canal or foraminal stenosis.
At L2/3, there is no significant disc bulge, canal or foraminal stenosis.
At L3/4, there is minor disc bulge without significant canal or foraminal stenosis.
At L4/5, there is a disc bulge causing mild canal stenosis. There is no significant foraminal stenosis.
The visualised retroperitoneum shows no significant pathology.”
X-ray right foot, 20 May 2020 – the report reads:
“There is no evidence of recent fracture or malalignment particularly involving the 2nd digit. There is mild OA throughout the interphalangeal joints at the 1st MTP joint with slight hallux valgus noted. The midfoot and subtalar joints appears preserved. There is spurring at the Achilles tendon insertion and plantar fascia origin consistent with enthesopathy.”[25]
[25] Claimant’s bundle p 45.
X-ray left shoulder, 4 July 2020 – the findings are as follows:
“No established OA. Minor hypertrophy AC joint. No subacromial spur. No soft tissue calcification.”[26]
[26] Claimant’s bundle p 46.
Ultrasound left shoulder, 7 July 2020 – the findings are as follows:
“Normal location and appearance of the long head of biceps tendon. There is mild subscapularis and moderate supraspinatus tendinosis. No rotator cuff tendon tear. The infraspinatus and teres minor tendons are normal.
Mild subacromial bursitis with impingement at 90 degrees abduction.
No active acromioclavicular joint synovitis.
No glenohumeral joint effusion or posterior labral cyst.”[27]
[27] Claimant’s bundle p 47.
MRI cervical spine, 6 October 2020 – the findings are as follows:
“C2/C3: Prominent endplate osteophytes and facet joint arthropathy is causing moderate foraminal narrowing on he left has the potential to irritate the left C3 nerve root.
C3/C4: Moderate to severe uncovertebral and facet joint degenerative changes causing moderate grade spinal stenosis and severe foraminal narrowing has the potential to irritate both C4 nerve roots.
C4/C5: Severe uncovertebral and facet joint degenerative changes causing moderate spinal stenosis and severe foraminal narrowing has the potential to irritate both C5 nerve roots.
C5/C6: Severe uncovertebral and facet joint degenerative changes causing moderate spinal stenosis and severe foraminal narrowing has the potential to irritate both C6 nerve roots.
C6/C7: Severe uncovertebral and facet joint degenerative changes causing mild central and moderate foraminal narrowing bilaterally has the potential to irritate both C7 nerve roots.
C7/T1: No significant compressive pathology.
No cord signal abnormality. No acute fracture or dislocation. No destructive bony lesion. No prevertebral oedema. Posterior fossa of the brain appears unremarkable.”[28]
[28] Claimant’s bundle p 51.
MRI lumbar spine, 11 October 2020 – the findings are as follows:
“At L1/L2: No significant compressive pathology.
At L2/L3: No significant compressive pathology.
At L3/L4: No significant compressive pathology.
At L4/L5: Minor broad-based disc bulge and prominent facet joint arthropathy is causing mild central and foraminal narrowing.
Conus terminates at L1. Normal lumbar lordosis. No acute fracture or destructive bony lesion. Paraspinal structures unremarkable.”[29]
[29] Claimant’s bundle p 53.
Whole body bone scan with spect/CT of the lumbar spine – Dr Brittain opined:
“Degenerative arthritis in the right facet joint at the C3-4 level.
Discovertebral degenerative arthritis at the C5-6 and C6-7 levels.
Degenerative arthritis in the right facet joint at the T5-6 level.
Discovertebral degenerative arthritis at the T8-9 level.
Degenerative arthritis in the left facet joints at the L4-5 and L5-S1 levels.
Arthritis in both sacroiliac joints and both knee joints and the MTP joints of both big toes.
The increased activity in the greater trochanter of both femurs is consistent with bursitis/enthesitis.
The increased uptake in the left calcaneus is consistent with plantar fasciitis.”[30]
SUBMISSIONS
[30] Claimant’s bundle p 56.
Claimant’s submissions
The claimant provided submissions dated 30 June 2023.[31]
[31] Claimant’s bundle p 1.
The claimant submits there is an inconsistency in the certificate of Medical Assessor Woo where he found there were no clinical findings to support the need for MRI scans of the left shoulder and the lumbar spine, yet he found the claimant did sustain soft tissue injuries to both the left shoulder and the lumbar spine.
In relation to the threshold dispute the claimant submits there is no evidence to show Medical Assessor Woo examined the whole of the medical evidence, noting he did not refer to the report from Khool Physiotherapy dated 11 May 2020. The claimant notes that report states:
“…She is complaining of pain in her neck going down her right arm in a C6/7 distribution, with pins and needles and numbness …and also the right leg in a L2/3/4 distribution and numbness and weakness in the same.”
The claimant submits this is evidence of radiculopathy.
The claimant also notes that Dr Giblin diagnosed radiculopathy in the neck on 17 August 2020, noting muscle spasm and muscle weakness in the right arm.
Further the MRI of the cervical spine dated 6 October 2020 states, “Clinical notes: Neck pain, Bilateral radiculopathy”.
The claimant relies upon the decision of David v Allianz Australia Insurance Limited[32] which is authority for the proposition that radiculopathy must have occurred at some point but not necessarily at the time of the examination by the medical assessor.
[32] David v Allianz Australia Insurance Limited [2021] NSWPICMP 227.
The claimant notes this rationale was relied upon in Karam v Insurance Australia Limited trading as NRMA Insurance[33] where the review Panel was satisfied with the report of a medical practitioner who had diagnosed radiculopathy even though the Panel itself had not found any signs of radiculopathy at the time of the examination.
[33] Karam v Insurance Australia Limited trading as NRMA Insurance [2022] NSWPICMP 429.
The claimant also notes that Professor Ghabrial in his referral for an MRI scan referred to “L5 radiculopathy” suggesting that the claimant must have exhibited signs of lumbar radiculopathy to Prof Ghabrial at the time of his examination.
Insurer’s submissions
The insurer provided submissions dated 12 July 2023 addressing the question to be determined by the Delegate, that is whether the assessment of Medical Assessor Woo was incorrect in a material respect.[34]
[34] Insurer’s bundle p 2.
The insurer submits there is no evidence that the claimant suffered from clinically verified radiculopathy or that clinical signs of verified radiculopathy had been identified by treatment providers or the claimant’s experts.
The insurer notes the claimant submits that Dr Giblin had diagnosed radiculopathy in her neck. However, the insurer submits that in his report dated 17 August 2020, Dr Giblin did not diagnose radiculopathy in the neck but stated, 'she complains of general weakness in the right upper limb, but I couldn’t identify any specific hard neurological signs.' Furthermore, on 4 November 2020 Dr Giblin stated, 'clinically however, she doesn’t seem to have symptoms of radiculopathy'.
In response to the claimant’s submissions that the Khool Physiotherapy report identified radiculopathy in the cervical and lumbar spines, the Insurer submits that the report merely lists the claimant’s subjective complaints of radiculopathy symptoms. The insurer submits Mr Khoo did not confirm any finding of clinical signs of radiculopathy on examination.
The insurer disputes the claimant’s assertion that the reference to bilateral radiculopathy in the cervical spine MRI report of 6 October 2020 and the reference to 'L5 radiculopathy' in the lumbar spine MRI referral of Professor Ghabrial of 24 March 2022 confirm radiculopathy. The insurer submits these references do not establish that the claimant has been found to have demonstrated two of the five clinical signs of radiculopathy on examination. The insurer submits it is pure speculation for the claimant to allege that she “must have exhibited signs of lumbar radiculopathy to Prof Ghabrial at the time of his examination”.
The insurer also provided submissions dated 5 December 2022 in response to the initial threshold dispute and in response to the initial treatment dispute.
The insurer notes the claimant’s pre-existing injuries:
· Dr Giblin reported the claimant was involved in a prior motor vehicle accident in 1996 and suffering minor intermittent neck and low back discomfort up until the accident for which she took an occasional Panadol on a need be basis.
· In her Application for personal injury benefits the claimant reported her involvement in the motor vehicle accident on 14 June 1996 when she injured her head neck, chest and lower back. She also reported sustaining injury to her right knee and right shoulder when she tripped in a carpark in 1998.
· Clinical records reveal a past history of back pain from 8 December 2010 to 21 March 2016, ongoing neck pain from 19 January 2011 to 2 August 2013 and ongoing left shoulder pain from 14 February 2011 to 22 September 2014.
· A dual energy X-ray bone mineral densitometry performed on 29 November 2010 revealed moderately severe osteopenia in the lumbar spine and mild osteopenia in the femoral neck.
The insurer submits that there is no evidence to suggest the injuries sustained by the claimant were anything other than soft tissue injuries. The insurer notes that following the accident no acute injuries were recorded by Dr El Gamal.
The insurer submits there is no evidence to establish that the injuries to the left shoulder and left arm were sustained in the accident as they were not reported in the Application for personal injury benefits dated 12 May 2020, or in the certificate of capacity issued by
Dr El Gamal dated 11 May 2020. Symptoms relating to the left arm and left shoulder were not reported until July 2020, approximately three months after the accident.The insurer submits the injuries to the claimant’s neck, lower back, right knee, right leg and right foot are threshold injuries. In regards to the injuries to the neck and lower back the insurer submits there is no evidence to demonstrate the presence of two or more clinical signs of radiculopathy as required by the Guidelines. The insurer notes whilst the clinical records demonstrate complaints of pain, an injury to a spinal nerve root which manifests in neurological signs (other than radiculopathy) is a soft tissue injury for the purposes of the MAI Act.
In relation to the treatment dispute the insurer notes the claimant was diagnosed with lumbar osteopenia in 2010, Dr Giblin found no evidence of radiculopathy or of an acute injury and there is insufficient justification to demonstrate the need for an MRI of the lumbar spine. The insurer submits the MRI of the lumbar spine is not reasonable and necessary in the circumstances and will not improve the claimant’s recovery in relation to the injury caused by the accident.
In relation to the left shoulder MRI the insurer submits the left shoulder injury is not related to the injury because of the lack of contemporaneous complaint and where an MRI of the left shoulder will not improve the claimant’s recovery in relation to an injury caused by the accident.
THE MEDICAL EXAMINATION
Mrs Saad attended the medical suites at the Commission on 6 December 2023 where she was examined by Medical Assessor Moloney. She was unaccompanied.
Pre-accident history
Mrs Saad states that she is married and lives with her husband and has three adult children. She is now on an age pension but prior to that was on a disability pension due to chronic neck and low back pain sustained in the motor vehicle accident in 1996. She states that prior to the accident she was caring for her mother who is now deceased and undertook all the housework and cooking.
There was a motor vehicle accident in 1996 when she sustained a neck and low back injury which was treated with physiotherapy and acupuncture.
History of the accident
On 15 June 2020, Mrs Saad was the driver of her car which was stationary when hit from the rear. Her son was in the car at the time, and they drove to the side of the road to exchange details. She was wearing a seatbelt at the time, but airbags were not deployed. She was able to get out of the car but felt panicky at that time. She considers that she hit her right foot on the accelerator at the time of the accident. She was able to drive home.
Subsequent history and treatment
On the night of the accident, she noted swelling and pain over the first and second toe of the right foot. She consulted her general practitioner the next day who investigated with an X-ray of the right foot which was negative. She then developed neck and low back pain which radiated into the right leg and arm. The general practitioner referred her for physiotherapy. Due to a slow response, she was referred to Dr Giblin, an orthopaedic surgeon. He recommended cortisone injections to the neck, lumbar spine and right knee but she declined this treatment as she felt panicky.
She also consulted another orthopaedic surgeon, Dr Ghabrial who had treated her for the previous neck injury. This was a consultation by video, and he requested further MRI scans of the neck and low back which was declined by the insurance company.
Mrs Saad stated she had sustained no further injuries since the accident.
Current symptoms
There is a constant low back pain which radiates down the right leg to the level of the ankle. This is over the lateral right thigh and lateral and anterior shin region. There is also pain in the right anterior ankle region which is aggravated by walking, and she feels unbalanced due to this but has had no falls. There is slight radiation of pain down the left leg.
The neck pain fluctuates, and she gets an occasional ache in the right anterior chest wall. There is a feeling of pins and needles in the right hand and wrist with weakness in grip which wakes her at night. There is also pain in the right forearm which fluctuates and increases with driving. The left arm is better, but she does get an occasional ache in the left forearm and wrist. Mrs Saad can drive short distances, she can go shopping and she does light housework.
Current treatment
Present medication is Panadol osteo six per day and occasional Panadol. There is an occasional Nurofen consumed but she has ceased Mobic and Endone.
Acupuncture was self-funded and ceased recently. She still attends a physiotherapist with massage once a week and her general practitioner when needed.
Clinical examination
Mrs Saad walked into the medical suite with a normal gait and sat comfortably during the interview. She stated she is right-handed. Height was measured at 156cm and weight 71kg.
Cervical spine
On testing range of movement, flexion/extension was 80% of expected range bilaterally, rotation was 70% of expected range and side bending 50% of expected range bilaterally with no asymmetry. On palpation there was tightness in the trapezius muscle, but no guarding or spasm was noted in the cervical musculature.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and on testing for sensation there was a global decrease in the left arm compared to the right, but no muscle wasting was apparent with the circumference of the upper arms 28cm bilaterally (10cm above the olecranon process) and in the upper forearm 24cm bilaterally.
There is evidence of De Quervain’s syndrome in both wrists on testing with tenderness and tightness over both extensor muscles of the forearms. This is not related to the accident.
Shoulders
On palpation, there was tenderness bilaterally over the acromioclavicular joints, but no muscle wasting was noted on inspection. On passive movement no crepitus was detected and impingement tests were negative. Active movements were measured using a goniometer and repeated three times. There was no referral of pain from the cervical spine during shoulder movement.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 160° 150° Extension 40° 40° Adduction 40° 40° Abduction 140° 130° Internal Rotation 80° 90° External Rotation 70° 80°
Lumbar spine
Mrs Saad walked with a normal gait and could walk on her heels but not her toes due to pain in the right foot. She could squat to 50% of expected range. On testing range of movement, there was a normal range of flexion/extension and side bending was 70% of expected range bilaterally with no asymmetry. On palpation, no guarding or spasm was noted in the lumbar musculature.
On neurological examination of the lower limbs, reflexes were weak but equal with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the lower thighs measuring 39 cm bilaterally (10cm above the olecranon process) and at the maximum circumference of the calves it was measured 34cm bilaterally.
Knees
On inspection of the knees no effusions were noted and on passive movement no crepitus was detected. There was no ligament laxity noted with near normal range of movement.
Knee Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 120° 120° Extension 0° 0°
Right leg/foot
On palpation there was tenderness over the anterior right ankle joint but a normal range of movement with no effusions apparent.
On palpation of the metatarsal joints and toes no tenderness was apparent. There was a slight bilateral hallux valgus and a normal range of movement in the toes and metatarsal joints.
Imaging
Mrs Saad provided a bone scan dated 12 October 2020 and a CD with scans of the cervical lumbar spine stated 9 October 2020. The bone scan showed hotspots over the journey of arthritis in the cervical, thoracic and lumbar spines, grated cantor of both femurs and the metatarsophalangeal joint (MTP) joints of both big toes. Medical Assessor Moloney agreed with those findings.
The MRI of the cervical and lumbar spines showed some degenerative changes with a mild disc bulge of L4/5. Medical Assessor Moloney was unable to visualise any annular fissures.
PANEL FINDINGS
Diagnosis and causation
There is a dispute as to causation of the left shoulder injury.
The insurer submits there is no evidence to establish that the injuries to the left shoulder and left arm were sustained in the accident as they were not reported in the Application for personal injury benefits dated 12 May 2020, or in the certificate of capacity issued by
Dr El Gamal dated 11 May 2020. The first record of symptoms pertaining to the left shoulder was on 3 July 2020. The claimant underwent an X-ray of the left shoulder on 4 July 2020 and an ultrasound on 7 July 2020 which demonstrated mild subacromial bursitis with impingement.On 17 August 2020 Dr Giblin reported that following the accident Mrs Saad had problems with her neck and into the right upper limb and about a month later into the left upper limb. On 4 November 2020 Dr Giblin reported some tenderness over the left AC joint which he noted was reproducible.
In Briggs Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty but simply a decision on probability.[35]
[35] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
Whilst Mrs Saad had a pre-existing history of left shoulder pain the records suggest she had not complained of left shoulder pain since 22 September 2014.
The Panel accepts that the accident could have caused or contributed to injury to the left shoulder and notwithstanding the lack of contemporaneous complaint the Panel is satisfied based on the history of complaint from July 2020 and the findings of Dr Giblin that the accident did cause the claimant to sustain a soft tissue injury to her left shoulder.
The Panel also notes the claimant has had a long standing clinical history of neck and lower back pain, noting her involvement in the 1996 motor vehicle accident and the injury she sustained to her right knee and right shoulder in a fall in 1998. This is consistent with the available imaging which is consistent with long standing pre-existing degenerative changes with a mild disc bulge at L4/5 and with the bone scan dated 12 October 2020 which confirmed the presence of arthritis in the cervical, thoracic and lumbar spines.
However, whilst Dr Bishay referred the claimant to Dr Ghabrial for neck and lower back pain on 12 July 2017 and Dr Ghabrial saw the claimant on 15 July 2017, in respect of the cervical spine, there is no further complaint recorded until after the accident.
The Panel notes there is no dispute the claimant sustained injury to her neck, lower back, right knee, right leg and right foot in the accident noting the complaints recorded by
Dr El Gamal on 16 April 2020, the subsequent investigation and treatment and where these injuries were referenced in the Application for personal injury benefits dated 12 May 2020.
Threshold Injury
Lumbar spine
The Panel notes the claimant’s reliance on the principle established by the decision in David[36] and the application of that principle in Karam[37] and accepts that it is possible to establish radiculopathy at any time even if the Panel itself does not find any signs of radiculopathy at the time of the examination.
[36] David [2021] NSWPICMP 227.
[37] Karam [2022] NSWPICMP 429.
The Panel notes that clause 5.8 of the Guidelines requires the presence of two or more clinical signs of radiculopathy found on examination to satisfy the definition of radiculopathy. The Panel also notes that clause 5.5 requires the diagnosis to be made on a clinical examination by a medical practitioner or other suitably qualified person.
The claimant submits that Jonathon Khoo of Khool Physiotherapy identified two signs of radiculopathy noting in his report dated 11 May 2020 he stated:
“…She is complaining of pain in her neck going down her right arm in a C6/7 distribution, with pins and needles and numbness …and also the right leg in a L2/3/4 distribution and numbness and weakness in the same.”
The Panel accepts that a physiotherapist would meet the definition of other suitably qualified person.
The claimant submits that the words “and also the right leg in a L2/3/4 distribution and numbness and weakness in the same” establish muscle weakness and reproducible sensory loss in accordance with clause 5.8(d) and (e) of the Guidelines. However, clauses 5.8 (d) and (e) of the Guidelines require both muscle weakness and sensory loss to be anatomically localised to an appropriate spinal nerve root distribution.
Where Mr Khoo has not specifically identified the lumbar spine level which he considered gave rise to radiculopathy, referring only to a L2/3/4 distribution, it is not possible based on his report to be satisfied that the muscle weakness and or sensory loss identified in his report is anatomically located to an appropriate spinal nerve root distribution or even to the same spinal nerve root distribution. For example, it is possible that the muscle weakness is related to the appropriate nerve root distribution for a L2/3 spinal injury whilst the sensory loss is related to the appropriate nerve root distribution for a L3/4 spinal injury.
Having regard to the lack of specificity in his report, the Panel is not satisfied that Mr Khoo identified two or more signs of radiculopathy in accordance with clause 5.8 of the Guidelines although accepts he identified radicular complaints.
The Panel notes that the term “radiculopathy” is used loosely and often refers to radicular complaints. The Panel does not accept the reference to “bilateral radiculopathy” in the cervical spine MRI report of 6 October 2020 establishes that the claimant had demonstrated two of the five clinical signs of radiculopathy on examination. Likewise, in the absence of evidence to establish that Professor Ghabrial identified two of the five clinical signs of radiculopathy on examination the Panel does not accept that the reference to “L5 radiculopathy” in the lumbar spine referral of 24 March 2022 is sufficient to establish radiculopathy in accordance with the Guidelines.
The Panel also notes the lack of consistency between Mr Khoo and Professor Ghabrial where Mr Khoo suggested radiculopathy at the L2/3/4 levels and Professor Ghabrial referred to L5 radiculopathy. Notwithstanding radicular complaints the Panel is not satisfied the claimant’s treating practitioners have identified two or more of the five clinical signs of radiculopathy to establish radiculopathy in the lumbar spine for the purposes of the MAI Act.
On examination Medical Assessor Moloney was not able to establish Mrs Saad had two or more of the five clinical signs of radiculopathy required by the Guidelines to establish the claimant has sustained lumbar radiculopathy.
The Panel finds that at no time since the accident has the claimant been able to establish two or more clinical signs to establish the presence of lumbar radiculopathy. The Panel finds the injury to the lumbar spine is a soft tissue injury and therefore, a threshold injury.
Cervical spine
The claimant also submitted that Dr Giblin diagnosed radiculopathy in the neck on 17 August 2020. However, the Panel does not accept Dr Giblin diagnosed two of the five clinical signs of radiculopathy on examination where he also stated, “she complains of general weakness in the right upper limb, but I couldn’t identify any specific hard neurological signs” and further notes that on 4 November 2020 Dr Giblin reported Mrs Saad did not seem to have symptoms of radiculopathy.
On examination Medical Assessor Moloney was not able to establish Mrs Saad had two or more the five clinical signs of radiculopathy required by the Guidelines to establish the presence of cervical radiculopathy.
The Panel finds that at no time since the accident has the claimant been able to establish two or more clinical signs to establish the presence of cervical radiculopathy. The Panel finds the injury to the cervical spine is a soft tissue injury and therefore, a threshold injury.
Injury to both shoulders, injury to the right knee, the right leg and the right foot
The Panel finds the claimant has not been able to establish that she has sustained an injury to nerves, or a complete or partial rupture of tendons, ligaments, menisci or cartilage to either shoulder, to the right knee, to the right leg or to the right foot.
Accordingly, the Panel finds the claimant has sustained soft tissue injuries to both shoulders, to the right knee, to the right leg and to the right foot. These constitute threshold injuries under the MAI Act.
TREATMENT DISPUTES
MRI scan of the lumbar spine as per referral dated 24 March 2022
The Panel notes the referral by Professor Ghabrial of 24 March 2022 was for an Upright Multipositional MRI scan of the lumbar spine to be performed in both a recumbent and seated position. In the Upright Multipositional MRI Request Form Professor Ghabrial suggests the presence of right L5/S1 pain and the possibility of an L5 radiculopathy.
The Panel notes Mrs Saad had undergone an upright multipositional MRI of the lumbar spine on 11 October 2020 which identified a minor broad-based disc bulge and facet joint arthropathy causing mild central and foraminal narrowing.
Where Professor Ghabrial was treating Mrs Saad for injury sustained in the accident the Panel accepts the proposed MRI scan relates to the injury caused by the accident.
The Panel notes that disc bulges can evolve over time into disc protrusions. If the claimant was displaying definite symptoms of weakness and sensory loss consistent with dermatomal loss, then the Panel is of the view a multipositional MRI scan would be justified.
Where the claimant had undergone an upright multipositional MRI scan of the lumbar spine on 11 October 2020 and in the absence of any evidence to establish a worsening of the claimant’s condition and where Dr Giblin reported he was unable to find any symptoms of radiculopathy the Panel is not satisfied the MRI scan of the lumbar spine is reasonable and necessary in the circumstances.
Further the Panel is not satisfied the MRI scan of the lumbar spine will improve the recovery of the claimant where it is a diagnostic investigation with no therapeutic benefit and where there is no evidence the MRI is likely to establish the presence of a disc protrusion leading to alternative treatment options.
MRI scan of the left shoulder as per referral dated 24 March 2022
Professor Ghabrial referred the claimant for an MRI of the left shoulder on 24 March 2022.
In the absence of any complaint pertaining to the left shoulder between 22 September 2014 and the accident and having regard to the Panel’s finding as to causation of the left shoulder injury the Panel is satisfied the proposed MRI scan relates to the injury caused by the accident.
The referral for the MRI scan reports the claimant was complaining of pain and stiffness in the left shoulder. Professor Ghabrial questioned the presence of a rotator cuff tear.
On 4 September 2020 Dr Bishay reported the left shoulder was slowly improving. On
17 August 2020 Dr Giblin only reported slight restriction of both shoulder movements and on 4 November 2020 he noted some tenderness over the left AC joint. The findings of Dr Giblin were consistent with findings of Medical Assessor Moloney on examination of the claimant.The Panel also notes the ultrasound of the left shoulder of 7 July 2020 reported no rotator cuff tendon tear and diagnosed mild subacromial bursitis.
The Panel does not consider the MRI of the left shoulder to be reasonable and necessary in the circumstances where the Panel is not satisfied there was a clinical basis for undertaking further investigation of the left shoulder having regard to the minor nature of the claimant’s left shoulder complaints.
There is also no evidence to suggest undergoing an MRI of the left shoulder would assist in medical management of the claimant’s left shoulder complaint or that it would be likely to improve her recovery.
The Panel affirms the certificate of Medical Assessor Woo dated 4 June 2023.
0
3
0