Sabty v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 647
•1 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Sabty v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 647 |
| CLAIMANT: | Huda Sabty |
| INSURER: | IAG Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 1 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of certificate and reasons of Medical Assessor (MA) Gorman dated 1 April 2022 going to determination of threshold injury; claimant injured in motor vehicle accident on 31 December 2020 when a reversing car in a car park struck the claimant’s vehicle; claimant suffered injuries to her lumbar spine, thoracic spine, left shoulder, right shoulder, chest and cervical spine and all injuries for determination about whether they are threshold injuries which was the determination of MA Gorman; claimant submitted that signs of radiculopathy were detected by other medical examiners and therefore relying on David v Allianz Insurance Australia Ltd there was evidence of radiculopathy without it needing to be seen on examination by MA; claimant submitted that the pathology identified after accident was evidence of causation; photographs and police report indicated minor collision; claimant had sought treatment to review chronic low back pain, low back pain and stiffness, decreased range of movements of the lumbar spine and difficulty walking, standing, bending and carrying objects two weeks before the accident; Panel not satisfied that the observations of radiculopathy made after the accident by the claimant’s medical practitioners were made in accordance with part 5.3 to 5.7 inclusive of the Guidelines and that two or more signs of radiculopathy were observed at any one time; Held – that the injuries suffered by the claimant in the accident on 31 December 2020 were threshold injuries and certificate of MA Gorman affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Determination 1. The Panel affirms the determination of Medical Assessor Gorman’s certificate dated 2. The Panel determines that the following injuries caused by the accident; · lumbar spine – soft tissue injury; · thoracic spine - musculoligamentous injuries; · left shoulder - muscular injury; · right shoulder – subacromial bursitis; · chest - injury and bruising to the chest, and · cervical spine – soft tissue injury are a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
Medical Assessor Gorman in his certificate dated 21 February 2023 found that the following injuries caused by the motor accident:
• lumbar spine – soft tissue injury;
• thoracic spine - musculoligamentous injuries;
• left shoulder - muscular injury;
• right shoulder – subacromial bursitis;
• chest - injury and bruising to the chest, and
• cervical spine – soft tissue injury
were threshold injuries for the purposes of the Act.
Threshold injury dispute to be assessed
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
(a) lumbar spine - lower back - muscular / discal injury / musculoligamentous injuries with radiculopathy into lower limbs;
(b) thoracic spine - mid-back - muscular / discal injury / musculoligamentous injuries;
(c) left shoulder - muscular injury;
(d) right shoulder - muscular injury;
(e) chest - injury and bruising to the chest, and
(f) cervical spine - neck - muscular / discal injury / musculoligamentous injuries with radiculopathy into upper limbs.
Legislative background/jurisdiction
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a decision maker. A ‘new decisionmaker’ is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new provisions apply. The new review provisions provide at s 7.26(5) of the Motor Accident Injuries Act 2017 (the MAI Act) that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a Medical Assessor – see s 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 the proceedings and may determine the proceeding solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned – see s 7.26(6) of the MAI Act.
The Panel issued a direction to the parties requesting the provision of respective bundles. The parties complied with this direction. The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it in much the same manner as parties not referring to or relying on a document in their own bundle and submissions.
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 MAI 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 medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
Threshold injury
A threshold 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 cl of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will not be a non-threshold injury.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether an injury is a minor injury. Relevantly to the matters in issue in the claimant’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury.”
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the Act. In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.5 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 Motor Accident Injuries Amendment Act 2022 (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.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52 week limitation period.
Does the claimant have cervical and/or lumbar 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 cl 5.6 as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ...
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”For the claimant’s injuries 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.
The accident
On 31 December 2020, the claimant was parked in a carpark when a car reversing from a parked position struck the driver’s side of her vehicle.
The claimant was able to self-extricate from her vehicle and drive herself home. She later called the ambulance to her home to transport her to the Liverpool Hospital.
Claimant’s submissions
Regarding the subject threshold injury dispute, the Commission allocated the subject dispute to be determined by Medical Assessor Gorman (the Medical Assessor), who made the finding that the following injuries were minor injuries for the purposes of the Act:
• lumbar spine – soft tissue injury;
• thoracic spine – musculoligamentous injuries;
• left shoulder – muscular injury;
• right shoulder – subacromial bursitis;
• chest – injury and bruising to the chest, and
• cervical spine – soft tissue injury.
The Medical Assessor, in his certificate on page 3 (paragraph 7) provided a list of the claimant’s pre-accident medical history and relevant personal details. In this list, the claimant notes that the Medical Assessor said that the claimant did not suffer from a pre-existing injury to any of the body parts which were referred to him for medical assessment.
On clinical examination on page 4-5 of his certificate, the Medical Assessor observed the following:
(a) her cervical spine had marked limitation in movement to one third normal in all planes;
(b) there was tenderness over the right cervical spine;
(c) her lumbar spine had marked limitation in movement to one third normal in all planes;
(d) there was mild tenderness over the lumbar spine;
(e) there was mild tenderness over the mid-thoracic spine;
(f) rotation of the thoracic spine as well as flexion and extension were markedly limited to one third normal in all planes, and
(g) in relation to the upper extremities, the Medical Assessor observed a significant (claimant’s emphasis) limitation in the range of movement in the shoulders, particularly on the right side.
The claimant noted that the Medical Assessor confirmed he then observed the claimant’s clinical records, where he noted the following:
“In AHRR Plan No. 1 of same date Ms Sabty was diagnosed with discogenic lumbar spine pain with some radicular referred pain into both legs following a L5/S1 distribution pattern, whiplash grade I-II and discogenic cervical spine pain with somatic referred pain radiating into the right shoulder.
This diagnosis remained unchanged in AHRR Plan No. 1 dated 1 June 2021, AHRR Plan No. 2 dated 25 June 2021 [A9], and AHRR Plan No. 3 dated 13 August 2021.
The AHRRs noted reduced cervical and lumbar range of movements, weakness over the left leg and reduced reflexes, and that Ms Sabty required assistance from family with respect to functional capacity. It is noted that Ms Sabty made little to no improvement with treatment”.The claimant said that the MRI of the lumbar spine dated 11 May 2021 confirmed the following:
“Mild multilevel cervical spondylosis. No evidence of right cervical nerve root impingement to account for the right-hand symptoms.
Desiccated L4/L5 disc associated with the annular fissure contacting and possibly
irritating the descending left L5 nerve. This is on the contralateral side to the sciaticsymptoms. No evidence of right lumbar nerve root impingement.”
The Medical Assessor concluded that the claimant’s injuries were minor injuries, and all the abnormal findings confirmed in her radiological scans “are age related degenerative changes and not sign of injury in the accident”.
The claimant submits that the Medical Assessor’s assessment was incorrect.
The claimant referred to the MRI scan to the lumbar and cervical spine dated 11 May 2021 which the claimant says confirmed two significant findings:
(a) firstly, the claimant has sustained an annular fissure, and
(b) secondly, the desiccated L4/L5 disc associated with the annular fissure contacts and irritates the descending left L5 nerve.
The claimant submits and says that as confirmed by the Commission Review Panel in the decision of Dordevic v AAI Limited trading as GIO [2022] NSWPICMP 279 (8 July 2022) at paragraph 36 and then paragraph 78 of that decision, the Review Panel confirmed the following:
“Paragraph 36 – If the annular tear was caused as a result of the accident, then this would fall under the definition of a non-minor injury; and
Paragraph 78 – ‘An annular fissure is the same as an annular tear and radiological evidence establishes causation. The annular fibrosis is the ligament that contains the nucleus pulposis which in this claimant’s case has ruptured and torn through the annulus.’ Thus, an annular fissure/ tear would fall within the definition of a non-minor injury.”The claimant says that notably, the annular tear is a tear to a fibrocartilage complex, which is a non-minor injury for the purposes of the Act.
The claimant says that the MRI scan performed on 11 May 2021 confirmed that the annular fissure was caused by the subject accident.
The claimant submits that given that she is relatively young (she was 41 years old at the date of the accident), she was involved in a significant collision, and she did not have any back complaints in the past, the annular tear in these circumstances was more likely than not to be caused by the subject accident rather than due to pre-existing degenerative changes, which the claimant says the Medical Assessor has incorrectly suggested.
The claimant says that while the Medical Assessor concluded that “all of the abnormal findings above are age related degenerative changes and not signs of injury in the accident”, the Medical Assessor did not provide a proper path of reasoning, or point to, any evidence of a pre-existing annular tear or back condition. The claimant says that, it should be noted that the scan itself, which was reviewed by the radiologist who performed the scan does not relate the annular fissure to “any degenerative changes” as suggested by the Medical Assessor.
The claimant says that the Medical Assessor has provided no alternative explanation for the development of the annular tear, other than a narrative that the injury is age related degenerative changes.
The claimant submits that the finding that the claimant has an annular tear to her lumbar spine which is caused by the subject accident is based on objective evidence, and also an MRI scan of the claimant’s spine which was performed after the subject accident.
It is submitted by the claimant that the Medical Assessor made impermissible, contradictory, and erroneous findings in relation to the following issues:
(a) the causation of the claimant’s injuries, and
(b) the claimant’s pre-accident state of health.
The claimant says that the Medical Assessor has failed to consider and engage with all relevant material particularly including the MRI of the cervical spine and lumbar spine and the claimant’s pre-accident medical records.
The claimant says that the Medical Assessor’s conclusion as to the cause, and extent of the claimant’s injuries caused by the subject accident is unsubstantiated. The claimant submits that a review of the MRI scan confirms that the claimant has sustained a threshold injury in accordance with the Act.
David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227
In addition to the above submissions, the claimant notes that the Medical Assessor’s assessment of her physical injuries is incorrect and relies on the recent decision of David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227 (David v Allianz decision) as summarised below.
In the David v Allianz decision, the Review Panel considered the assessment of a minor injury, and whether the observation of radiculopathy was established at any time, or, at the time of the examination by a Medical Assessor.
The Review Panel in the David v Allianz decision addressed this issue at paragraphs [100] –[104], and noted the following:
“[100] The Guidelines make provision for the assessment for soft tissue and minor psychological or psychiatric injuries and refer to both an examination, diagnosis, and the assessment process.
Clause 5.5 of the Guidelines state that the diagnosis ‘must be based on a clinical
assessment by a medical practitioner or other suitably qualified person independent from the Insurer’.
[101] There is no requirement in clause 5.5 that the assessment be undertaken by the Medical Assessor at first instance or, on review, by the Panel. The reference to ‘other suitably qualified person independent from the Insurer’ suggests that the assessment can be undertaken by a treating doctor.
[102] Clause 5.6 requires that the ‘the assessment of whether an injury caused by the accident is a minor injury’ is based on many factors including prior records and assessments by treating doctors. There is no reason why the reference in clause 5.6(d) to a ‘through physical ... examination’ must be undertaken by a Medical Assessor. Presumably an insurer can make an admission that an injury is a non-minor injury without every case being disputed and referred for medical assessment. In those circumstances, the admission will be based on a thorough physical examination conducted by a treating doctor.
[103] Clauses 5.7 notes that an ‘assessment of whether or not radiculopathy is present is essential’. However, clause 5.7 refers to both ‘assessing’ and the ‘assessment’ as it refers to ‘assessing whether an injury’ and that an ‘assessment’ is ‘essential’.
[104] In our view clause 5.6 and the surrounding clauses do not require that the assessment be made by a Medical Assessor, and it is sufficient that it be based on a clinical assessment of a medical practitioner independent from the insurer. The meaning of Part 1, clause 4 of the Regulations is satisfied if the radiculopathy is present at any time, although to constitute radiculopathy, at least two clinical signs must be established as specified by clause 5.8 (claimant’s emphasis).”The claimant says that the Medical Assessor in the consideration of the subject dispute, reviewed various documents provided to him.
The claimant says that the documents provided to the Medical Assessor in relation to the subject assessment confirm that upon examination with her treating doctors, the claimant presented with at least two clinical signs of radiculopathy, which satisfies the criteria for radiculopathy as determined by the case of David v Allianz decision. This is set out below:
(a) the claimant was referred to Dr Renata Abraszko (neurosurgeon and spinal surgeon) in relation to the injuries she sustained in the subject accident. On
5 August 202, Dr Abraszko provided a report which confirmed the following:“I recommended an MRI of the right shoulder and a whole body scan…The MRI of the cervical spine revealed C5-C6 left sided disc bulge not causing significant canal narrowing. On the MRI of the lumbar spine, there is disc dessication at L4-L5 level possibly compressing the left L5 nerve root.”
In the clinical records of Physio Goals the following was confirmed: discogenic lumbar spine pain with radicular referred pain into the both legs following an L5/S1 distribution pattern:
“Whiplash grade I-ii
Discogenic cervical spine pain with somatic referred pain radiating into the
right shoulder
Lumbar spine:
Ext: unable, flex: 40 degrees
SLRL L=R= 40 degrees
Reem reports a 6-8/10 pain intensity in the lumbar spine with radicular
referred pain into the left leg.
Antalgic gait.
Weakness noted over the left leg.
Reduced reflexes noted
On 3 February 2021, the physio observed pain located over L5/S1 and
C5/C6.”The claimant submits that the above observations were again reported by the claimant’s general practitioner (GP) in their clinical records.
Based on the examination/clinical findings of the Medical Assessor during the assessment, and the David v Allianz decision, the claimant submits that she has a threshold injury as she has satisfied the requirement of at least two clinical signs of radiculopathy.
In line with the principles enunciated in the authority of David v Allianz decision, the claimant submits that the Medical Assessor was bound to make a finding of ‘non-minor injury’ as the claimant’s treating evidence “demonstrates the existence of post-accident radiculopathy which satisfy the statutory definition of a ‘minor injury/soft tissue injury’ as per the provisions of s 1.6 Motor Accident Injuries Act 2017 (NSW) (‘MAIA’)”. (claimant’s emphasis).
The claimant says that despite the points addressed above, the Medical Assessor determined that the claimant sustained a threshold injury.
The claimant submits that when considering the medical evidence provided to the Medical Assessor at the time of assessment, and the Medical Assessor’s findings, it is clear that the criteria set out in the relevant legislation, the regulations, and the guidelines has been met to establish that the claimant has a non-minor injury as a result of the subject accident.
Based on the examination/clinical findings of the Medical Assessor during the assessment, the radiological scan which confirms an annular tear, and the recent decision of David v Allianz decision, the claimant submits that she has a non-threshold injury as she has satisfied the requirement of at least two clinical signs of radiculopathy.
It is therefore submitted that the Medical Assessor has failed to adequately apply the relevant legislative framework when determining the minor injury dispute.
Insurer’s submissions
The insurer says the claimant’s submission regarding the finding of causation of the lumbar spine pathology identified on MRI are redolent of the post hoc ergo propter hoc fallacy. The argument being that because the pathology was identified after the subject accident, it must have been caused by the subject accident.
The insurer submits, in effect the claimant’s submissions and requirements reverses the onus of proof requiring the Medical Assessor to disprove the accident was not the cause of the pathology by requiring the Medical Assessor of pointing to evidence the pathology was caused by some other event.
The insurer highlights the Medical Assessor examined the MRIs of the cervical and lumbar spine and commented at as follows:
“Comment:
Mild multilevel cervical spondylosis. No evidence of right cervical nerveroot impingement to account for the right-hand symptoms.Desiccated L4/L5 disc associated with the annular fissure contacting and possibly irritating the descending left L5 nerve. This is on the contralateral side to the sciatic symptoms. No evidence of right lumbar nerve root impingement.
My comment: all of the abnormal findings above are age related degenerative changes and not signs of injury in the accident.”
The insurer notes the claimant refers to Dordevic v AAI Limited trading as GIO [2022] NSWPICMP 279. The insurer highlights at [77] the Review Panel was satisfied the subject accident caused the non-threshold disc pathology. The Insurer submits it was open for the Medical Assessor to consider and determine whether the pathology evidence on imaging was caused by the subject accident or not caused by the subject accident as the Review Panel did in Dordevic.
The insurer submits the Medical Assessor discharged his obligation to provide reasons by obtaining a history of the subject accident, conducting an examination, reviewing the imaging, and in his professional experience determining the pathology was consistent with degenerative findings rather than traumatic pathology caused by the subject accident.
The insurer notes the submission with respect to David v Allianz decision alleging evidence of radiculopathy in the medical records. The insurer submits the medical records highlights at [39] fail to evidence two or more signs of radiculopathy as defined under cl 5.8 of the Guidelines. Relevantly the radicular features are not attributed to a dermatomal distribution, there are no altered reflexes, weakness is not attributed to a relevant myotomal distribution, and there is no positive sciatic nerve root tension test.
The insurer highlights the property damage evidencing only minor damage. The insurer submits the mechanism of accident did not and could not cause the pathology evidenced on imaging. The total cost of repair was $3,005.05. This included parts of $1,446.58 and the balance for labour and miscellaneous items. This has not been challenged by the claimant. The insurer says that photographs attached to the insurer’s bundle of documents show relatively minor panel damage to the driver’s side door and front fender.
The police report refers to minor property damage occurring only. The ambulance report refers to a low speed incident in a car park. The claimant reported to the attending ambulance officer that she had a pre-existing history of back problems which had been aggravated by the low speed impact.
Dealing with the original threshold injury assessment, the insurer made the following submissions;
(a) The claimant alleges that the following injuries were sustained in the subject accident:
(a)injury to the neck with radiculopathy into upper limbs;
(b)injury to the chest;
(c)injury to the right shoulder;
(d)injury to the left shoulder;
(e)injury to the back with radiculopathy into the lower limbs, and
(f)psychiatric condition – anxiety, depression, and post-traumatic stress disorder.
(b) Regarding the claimant’s pre-accident medical condition the insurer referred to clinical records from Liverpool Family Medical Centre which the insurer says indicates that the claimant suffers from the following pre-existing injuries and/or conditions:
(a)chronic neck pain (2006 - ongoing);
(b)chronic lower back pain (2008 - ongoing);
(c)major depressive illness (2007 - ongoing), and
(d)adjustment disorder (2012).
The insurer refers to an ambulance attendance at the accident scene whereby the claimant was transported to Liverpool Hospital for treatment. The ambulance report records:
“…low speed MVA in carpark… o/e – pt denies any chest pain/sob/loc…pt reports previous back injury which has been aggravated by the impact – aching pain to right scapula, radiating to her lateral neck, aggravated by palpation and movement…denies any c-spine pain...”
Threshold injury submissions
The insurer submits that the available medical evidence supports that the claimant sustained soft tissue injuries to her cervical spine, lumbar spine, and right shoulder as a result of the subject accident and that these injuries fall within the definition of a threshold injury under
s 1.6 of the MAIA cl 4 of the MAI Regulation 2017 and the Guidelines.The insurer submits that there is no evidence that the claimant sustained a fracture, an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci, or cartilage.
The insurer says that Dr Quader diagnosed the claimant with neck pain, lumbar back pain, and right shoulder pain. It is submitted that these injuries fall within the definition of a soft tissue injury under s 1.6(2) of the Act.
The insurer highlights that, the clinical records from Liverpool Family Medical Centre, indicate that the claimant had a pre-existing history of chronic neck and low back pain since 2006 and 2008, respectively.
The insurer says that an MRI of the cervical spine and lumbar spine performed on
11 May 2021 demonstrated mild multilevel cervical spondylosis and no evidence of right cervical nerve root impingement, and a desiccated L4/L5 disc associated with an annular fissure contacting and possibly irritating the descending left L5 nerve. However, the insurer says this was on the contralateral side to the sciatic symptoms.The insurer highlights that the epidemiological evidence relating to the incidence of spinal disc bulges in the population has identified a high prevalence of disc bulging on diagnostic imaging in asymptomatic individuals. The insurer says that the finding of a disc bulge or protrusion or annular tear on post-accident imaging does not establish that trauma from the accident has caused this. Rather, the insurer says that the evidence supports that diagnostic imaging findings of disc bulges or protrusions are universally constitutional, degenerative and age-related.
The insurer also refers to a report of M Coroneos from volume 55 of the European Journal of Radiology which it says has confirmed that the high incidence of spinal abnormalities such as bulges, protrusions, herniations and disc osteophyte complex are terms used interchangeably. Although they give the impression of a traumatic causation, these changes are often part of the aging and degenerative process given their prevalence in the asymptomatic population.
The insurer submits that, it is indicative from the MRI scans of the cervical spine and lumbar spine that the claimant had pre-existing, and degenerative problems affecting her cervical and lumbar spine which is considered to be unrelated to the subject accident and not caused by any acute trauma. The insurer notes that ‘disc desiccation’ is one of the most common features of degenerative disc disease.
The insurer says that cl 5.7 of the Motor Accident Guidelines states that an assessment of whether there is radiculopathy is essential in assessing whether an injury to the neck or spine is a minor injury.
The insurer submits that the claimant’s injuries do not satisfy the criterion of radiculopathy as set out in cl 5.8 of the Guidelines.
Despite the persistence of symptoms, the insurer says that there is no evidence from the clinical examination from her treating providers that satisfies the diagnosis of radiculopathy as defined within the Guidelines.
Therefore, based on this information, the insurer submits that the physical injuries sustained by the claimant in the subject accident are minor injuries.
Medical evidence
The Medical Assessor examined the claimant on 21 February 2023. On examination, he noted her cervical spine had marked limitation in movement to one third normal in all planes.
There was no muscle spasm or guarding. There was tenderness over the right cervical spine. Power, sensation and reflexes in the upper limbs was normal.
The claimant’s lumbar spine had marked limitation in movement to one third normal in all planes. There was no muscle spasm or guarding. There was mild tenderness over the lumbar spine. Power, sensation and reflexes in the lower limbs was normal.
There was mild tenderness over the mid-thoracic spine. Rotation of the thoracic spine as well as flexion and extension were markedly limited to one third normal in all planes. There were no radiating sensory symptoms around the chest.
The claimant had a limited range of shoulder movements, particularly on the right, as outlined below:
Shoulder Movements Active ROM Measured RIGHT Active ROM Measured LEFT Flexion 90° 160° Extension 20° 50° Adduction 20° 50° Abduction 90° 160° Internal Rotation (at side) 80° 90° External Rotation (at side) 90° 90°
Her chest was not tender. Air entry was normal bilaterally.
The Medical Assessor discussed an MRI of the lumbar spine dated 11 May 2021. This reported:
“Lumbar spine alignment was normal. Vertebral body heights are maintained. No previous lumbar spine fracture identified.
Radiologists Comment:
Mild multilevel cervical spondylosis. No evidence of right cervical nerve root impingement to account for the right-hand symptoms.
Desiccated L4/L5 disc associated with the annular fissure contacting and possibly irritating the descending left L5 nerve. This is on the contralateral side to the sciatic symptoms. No evidence of right lumbar nerve root impingement.”The Medical Assessor said that all of the abnormal findings were age related degenerative changes and not signs of an injury from the accident.
The Medical Assessor reviewed each injury in turn:
(a) lumbar spine – soft tissue injury – there is ongoing pain and stiffness but there is no evidence of radiculopathy;
(b) thoracic spine - musculoligamentous injuries – there is ongoing pain, tenderness and stiffness but no evidence of nerve root or bone injury;
(c) left shoulder - muscular injury – there is no evidence of rotator cuff injury – ongoing pain and stiffness but no evidence of bone or cartilage injury;
(d) right shoulder – subacromial bursitis – there is no evidence of rotator cuff injury;
(e) chest - injury and bruising to the chest – this has resolved – there was no evidence of bone or lung injury, and
(f) cervical spine – soft tissue injury – there is ongoing pain and stiffness but no evidence of radiculopathy.
Causation
The Medical Assessor said:
(a) lumbar spine – soft tissue injury – the region was painful soon after the accident and caused by the accident;
(b) thoracic spine - musculoligamentous injuries– the region was painful soon after the accident and caused by the accident;
(c) left shoulder - muscular injury– the region was painful soon after the accident and caused by the accident;
(d) right shoulder – subacromial bursitis– the region was painful soon after the accident and caused by the accident;
(e) chest - injury and bruising to the chest– the region was painful soon after the accident and caused by the accident, and
(f) cervical spine – soft tissue injury– the region was painful soon after the accident and caused by the accident.
The Medical Assessor concluded that the following injuries were caused by the accident:
(a) lumbar spine – soft tissue injury;
(b) thoracic spine - musculoligamentous injuries;
(c) left shoulder - muscular injury;
(d) right shoulder - muscular injury;
(e) chest - injury and bruising to the chest, and
(f) cervical spine – soft tissue injury.
The Medical Assessor also said that the following injuries were not caused by the accident:
(a) cervical spine – radiculopathy into upper limbs, and
(b) lumbar spine – radiculopathy into lower limbs.
Regarding a determination about whether the injuries were threshold injuries, (at the time known as minor injuries) the Medical Assessor reviewed each injury in turn, saying:
“Lumbar Spine – soft tissue injury – there is ongoing pain and stiffness but there is no evidence of radiculopathy – there is no sign of nerve injury nor rupture of ligaments, cartilage or tendons so this is a minor injury
Thoracic Spine - musculoligamentous injuries – there is ongoing pain, tenderness and stiffness but no evidence of nerve root or bone injury – there is no sign of nerve injury nor rupture of ligaments, cartilage or tendons so this is a minor injury
Left Shoulder - muscular injury – there is no evidence of rotator cuff injury – ongoing pain and stiffness but no evidence of bone or cartilage injury – there is no sign of nerve injury nor rupture of ligaments, cartilage or tendons so this is a minor injury
Right Shoulder – subacromial bursitis – there is no evidence of rotator cuff injury – there is no sign of nerve injury nor rupture of ligaments, cartilage or tendons so this is a minor injury
Chest - Injury and bruising to the chest – this has resolved – there was no evidence of bone or lung injury – there is no sign of nerve injury nor rupture of ligaments, cartilage or tendons so this is a minor injury
Cervical Spine – soft tissue injury – there is ongoing pain and stiffness but no evidence of radiculopathy – there is no sign of nerve injury nor rupture of ligaments, cartilage or tendons so this is a minor injury.”Within the certificate of the Medical Assessor, he refers to clinical notes having been produced from Liverpool Hospital. No notes were provided in the bundles of documents from either party.
The claimant has provided clinical notes of Liverpool Family Medical Centre, Physio Goals and Dr Abrazsko. Very little is submitted about the entirety of these notes by the claimant.
In the clinical records of Physio Goals the following was confirmed:
“Discogenic lumbar spine pain with radicular referred pain into the both legs following a L5/S1 distribution pattern. Whiplash grade I-ii
Discogenic cervical spine pain with somatic referred pain radiating into the right shoulder
Lumbar spine:
Ext: unable, flex: 40 degrees
SLRL L=R= 40 degrees
Reem reports a 6-8/10 pain intensity in the lumbar spine with radicular
referred pain into the left leg.
Antalgic gait.
Weakness noted over the left leg.
Reduced reflexes noted.”On 3 February 2021, the physiotherapist observed pain located over L5/S1 and C5/C6.
Clinical notes for treatment of the claimant by Dr Ibrahim show that the claimant received treatment on 14 December 2020, two weeks prior to the accident, for review of chronic low back pain, lower back pain, stiffness, decreased range of movements of the lumbar spine and that walking, standing, sitting, bending and carrying objects aggravated her pain.
A telehealth consultation on 22 January 2021 was the first consultation post-accident. This noted a hospital discharge summary, a complaint “still back pain, neck pain and left shoulder pain”. Entries thereafter for neck pain, upper back pain, left shoulder pain chest pain and breast pain since the accident were noted on 15 and 19 February 2021 and 22 March 2021. On this last occasion it was noted that there was a past history of occasional lumbar back pain but now the claimant was in constant pain which occasionally extended to her right leg.
The insurer noted that the claimant presented to GP, Dr Ibrahim, on 22 January 2021 complaining of neck pain, back pain and left shoulder pain.
The insurer says that on 15 February 2021, Dr Ibrahim recorded that the claimant was continuing to complain of neck pain and stiffness radiating to the upper arms, upper back pain, left shoulder pain, chest pain and breast pain . The claimant had restricted cervical range of movement.
On 19 March 2021, Dr Ibrahim recorded that the claimant was experiencing neck pain, back pain, and right shoulder pain. She was also unable to sleep, was irritable, had nightmares, and felt stressed and sad.
Dr Quader completed an initial certificate of capacity / certificate of fitness on 22 March 2021 providing a diagnosis of neck pain, lumbar back pain, right shoulder pain, and post-traumatic stress disorder. It was noted that the claimant had a history of pre-existing lumbar back pain. The claimant was referred to psychologist, Ms Zeina Boutros, for an opinion and management of post-traumatic stress disorder.
The claimant commenced physiotherapy treatment on 21 April 2021 at Physio Goals. In AHRR Plan No. 1 of the same date, the claimant was diagnosed with discogenic lumbar spine pain with some radicular referred pain into both legs following a L5/S1 distribution pattern, whiplash grade I-II and discogenic cervical spine pain with somatic referred pain radiating into the right shoulder. This diagnosis remained unchanged in AHRR Plan No. 1 dated 1 June 2021 . AHRR Plan No. 2 dated 25 June 2021 [A9], and AHRR Plan No. 3 dated 13 August 2021.
The AHRRs noted reduced cervical and lumbar range of movements, weakness over the left leg and reduced reflexes, and that the claimant required assistance from family with respect to functional capacity. It was noted that the claimant had made little to no improvement with treatment.
An ultrasound of the right shoulder or upper arm was performed on 23 April 2021 which showed subacromial bursitis. There was no evidence of a rotator cuff tear.
An MRI of the cervical spine and lumbar spine was performed on 11 May 2021. This demonstrated mild multilevel cervical spondylosis and no evidence of right cervical nerve root impingement, and a desiccated L4/L5 disc associated with an annular fissure contacting and possibly irritating the descending left L5 nerve. However, this was on the contralateral side to the sciatic symptoms. There was no evidence of right lumbar nerve root impingement.
Subsequently, on 17 May 2021, the claimant underwent an ultrasound guided injection into the right subacromial/subdeltoid bursa.
The claimant was referred to a neurosurgeon, Dr Renata Abraszko, on 17 May 2021 for an opinion and management of neck and lumbar back pain. There is a report of Dr Abraszko within the claimants bundle of documents, to Dr Quader dated 5 August 2021.
109.The claimant said to Dr Quader that she had chronic back pain before the accident as well as chronic neck pain. Inconsistently, Dr Abraszko said that the claimant had told her that before the accident she had not had any neck or back pain. Dr Abraszko recommended an MRI of the right shoulder and a whole body bone scan. She reported that the MRI of the cervical spine revealed C5-C6 left sided disc bulge not causing significant canal narrowing. On the MRI of the lumbar spine, there was disc desiccation at L4-L5 level, possibly compressing the left LS nerve root.
Scans and X-rays:
“31 December 2020 - Chest X-ray –
Findings:
The lungs were clear. The heart not enlarged. There was no evidence of pneumothorax or recent rib fracture. There is minor irregularity of the left night rib which suggests an old fracture. No abnormalities were found on examination.
31 December 2020 - X-ray Right Shoulder or Right Scapula–
Findings:
There was no fracture or dislocation seen.
23 April 2021, Ultrasound Right Shoulder, or Upper Arm:
Findings:
• Subacromial Bursitis,
• No evidence of a rotator cuff tear.11 June 2021, MRI Cervical Spine, MRI Lumbar Spine.
The notes record the patient was nervous with claustrophobia. Some images are degraded by movement.
Findings:
Cervical spine alignment is normal. Vertebral body heights are maintained. No previous cervical spine fracture identified.
Lumbar Spine:
Lumbar spine alignment is normal. Vertebral body heights are maintained. No previous lumbar spine fracture identified.
Comment:
· Mild multilevel cervical spondylosis. No evidence of right cervical nerve root impingement to account for the right-hand symptoms.
· Desiccated L4/L5 disc associated with the annular fissure contacting and possibly irritating the descending left L5 nerve. This is on the contralateral side to the sciatic symptoms. No evidence of right lumbar nerve root impingement.”
Medical examination
The claimant was examined on behalf of the Panel by Medical Assessor Gibson. The report of Medical Assessor Gibson follows:
“Ms Sabty was accompanied to the assessment by interpreter Hafez Assoum CPN5KR53J.
Pre Accident Medical History
Relevant Personal Details
Ms Sabty was involved in a minor motor accident over ten years ago, but sustained no physical injury. There were no other motor accidents. There was no history of any prior accidents or injuries.
She has hypertension and longstanding gastro-oesophageal reflux but takes no medication. She takes thyroxine for Hashimoto's disease.
She has had gynaecological surgery in 2018 and a colonoscopy in 2020, but there was no other history of any surgical procedures.
She denied having had any other or any musculoskeletal symptoms prior to the subject accident. When asked specifically about neck pain, she said at times she had physiotherapy or massage therapy for her neck, as if she slept poorly she would develop some neck pain.When asked about any prior low back symptoms, she said she had some upper back pain at times, but no lower back pain. On further clarification, she said she had had some low back symptoms but these were ‘not in the same area.’ When it was explained that the prior history of neck and back symptoms was very relevant to the assessment, she said that, although she had low back symptoms these were nowhere near as severe as following the subject accident. She said she had visited a number of general practitioners prior to the subject accident, including Dr Hassan in Liverpool. She couldn’t recall when she had first visited neurosurgeon, Dr Renata Abraszko. She added that she has ‘very bad memory.’
History Of the Subject Accident
Ms Sabty had been driving with her seat belt fastened. She had no passengers in the car at the time as she had just dropped her two sons at her other son's shop. She was on her way to do some work experience as a hairdresser and added that she was hoping to become a hairdresser and start her own business.
She said she was driving through the car park at low speed when another vehicle, which was travelling a lot more quickly collided with her car. There had been two impacts to the front driver side door of her car.
She said her whole body felt numb after the accident. She couldn’t move. One of her sons, who was nearby contacted an ambulance. She was taken to Liverpool Hospital where she had imaging of her chest and right shoulder and some bloods taken. She said she had bruising over her back and shoulders and her "whole body."
She was discharged from Liverpool Hospital after a few hours.
Current Treatment
Ms Sabty takes one Panadeine Forte tablet at night, a Lyrica tablet twice daily and Nurofen three times a day. She applies a nonsteroidal anti-inflammatory cream.
She visits her general practitioner, Dr Ibrahim or other general practitioners as required. She has weekly physiotherapy. She feels this treatment doesn’t work, but she persists nevertheless.
When asked about planned treatment, she said neurosurgeon, Dr Renata Abraszko, had recommended she have some spinal surgery, or at least a further injection. She said her last review with the doctor was a few weeks ago.
Current Complaints
Ms Sabty described constant central neck pain which extends to right shoulder. She added that the pain affects her psychologically.
There were symptoms extending into both upper limbs, described at times as being like an electric shock, at other times numbness and weakness, more commonly present on the right, occasionally present on the left. The distribution described encompassed the entire arm, forearm and hand.
In relation to her right shoulder, there is quite a lot of pain and movements are restricted.
There is no longer any pain in the left shoulder, but in the early phase after the subject accident ‘her whole body was aching.’
There is still intermittent central and left-sided chest pain.
There is constant pain across the low back which doesn’t radiate elsewhere.
Physical Examination
Ms Sabty was 162cm tall and weighed 64kg. She was left-handed. She had a normal gait. She could walk on heels and toes and squat fully.On examination of the chest wall there was mild sternal tenderness extending to the upper left costochondral junctions.
On examination of the cervical spine, there was tenderness in the midline, particularly over the lower cervical vertebrae and extending to the right trapezius region. Flexion and extension were to half normal, rotation was to half normal bilaterally and lateral flexion was to two-thirds normal bilaterally. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the upper limbs, circumferential measurements were consistent with left hand dominance, upper limbs measuring 29cm, arms and forearms 25cm bilaterally. Sensation was reduced globally in the right upper limb. There was no dermatomal sensory loss. There was subjective weakness but upper limb power was normal and symmetrical. Upper limb reflexes were present and bilaterally equal.
On examination of both shoulders, there was tenderness over the anterior aspect of the right shoulder. Impingement was negative bilaterally. Active shoulder movements were as follows:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion
100 °
140 °
Extension 30 ° 50 ° Internal Rotation 60 ° 80 ° External Rotation 60 ° 80 ° Abduction 90 ° 170 ° Adduction 30 ° 50 ° When asked why her shoulder movements were also restricted on the left side, she said shoulder movements were restricted by neck pain.
On examination of the thoracic and lumbar spine, there was midline tenderness mid thoracic and all lumbar segments. There was overreaction to light touch. Flexion and extension was to one third normal, rotation was to normal range bilaterally and lateral flexion was to two-thirds normal range bilaterally. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the lower limbs, circumferential measurements were equivalent at thigh and calf, therefore there was no muscle wasting. There was normal power and reflexes but some subjective and non-dermatomal sensory loss over the right compared with left lower limb.
The Medical Assessor reported that the claimant was involved as a seat belted driver in the subject accident of 31 December 2020. This accident had occurred in a parking lot. He said that her vehicle had sustained minor panel damage, as noted in the police report which had recorded that ‘VEH2 was travelling in a westerly direction at Norfolk Serviceway and the front portion of VEH1 collided with the front offside of VEH2 causing minor damage.’ The Panel examined the photographs of the damage and noted there was no cabin intrusion or air bag deployment.The ambulance report had recorded her reports of having a history of back problems, which she felt had been aggravated by the impact and complaints of “aching pain to right scapula, radiating to her lateral neck, aggravated by palpation and movement.”
She had been taken to Liverpool Hospital and was discharged following assessment and imaging. She had a telehealth consultation with her general practitioner, Dr Ibrahim on 22 January 2021 who had recorded ‘still back pain, neck pain and left shoulder pain.’ On 15 February 2021 the doctor notes ‘She is still complaining of neck pain, upper back pain, left shoulder pain, chest pain, breast pain since her MVA.’ Then on 19 March 2021 ‘since having neck, right shoulder and back pain.’ Then on 22 March 2021 ‘…in constant pain from neck, shoulder and lower back getting numbness to right UL past history of occasional lumber back pain but now in constant pain occasionally goes to right leg.’
Ultrasound right shoulder 23 April 2021 showed ‘Subacromial bursitis. No evidence of a rotator cuff tear.’ MRI scan cervical and lumbar spine of 11 May 2021 showed ‘Mild multilevel cervical spondylosis. No evidence of right cervical nerve root impingement to account for the right-hand symptoms. 2. Desiccated L4/L5 disc associated with an annular fissure contacting and possibly irritating the descending left L5 nerve. This is on the contralateral side to the sciatic symptoms. No evidence of right lumbar nerve root impingement.’
The Panel considered all the evidence on file. The subject accident was minor and not in their opinion likely to cause anything more than minor injuries.
Section 1.6(2) of the Act states that ‘A soft tissue injury is (subject to this section) an 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.’
Schedule 1 [2] clause 4 of the Motor Accident Injuries Regulation 2017 states ‘1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.’
The Panel considered each of the listed injuries in turn.
Cervical Spine – there was no evidence of radiculopathy on clinical examination and imaging findings did not show injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Thoracic Spine – there was no evidence of radiculopathy on clinical examination and imaging findings did not show injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Lumbar Spine – there was no evidence of radiculopathy on clinical examination and imaging findings did not show injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The Panel noted the finding of annular tear on the imaging studies of the lumbar spine. And also, as noted in the report, the imaging abnormality was not on the same side as the symptoms. In the Panel’s opinion the annular tear was an incidental finding and consistent with degenerative disc pathology, rather than acute subject accident-related trauma. Degenerative changes are commonly found in spinal imaging in both asymptomatic and symptomatic individuals, and so imaging must be determined in a clinical context.In the context of Ms Sabty's case, a comprehensive clinical examination and diagnostic imaging of the lumbar spine revealed no evidence of radiculopathy or injuries to nerves, tendons, ligaments, menisci, or cartilage. However, an annular tear was detected on the imaging studies. It's crucial to note that this abnormality did not align with the side where Ms Sabty reported symptoms. This observation aligns with the broader clinical context, particularly considering her age of 44, previous back complaints, the low-speed nature of the accident, and the relatively minor costs of repairs of $3,505.05.
Age-related degenerative changes such as disc desiccation and annular tears are commonly observed in spinal imaging. Disc desiccation, specifically, leads to a narrowing of the intervertebral spaces and may manifest as annular 'bulges' on CT or MR scans. These bulges are often not symptomatic and should not be interpreted as conclusive evidence of pathology. Given all these factors, the Panel concludes that the detected annular tear is most likely an incidental finding, more consistent with age-related degenerative changes than with trauma resulting from the accident. Therefore, the imaging findings should be viewed within this broader clinical and circumstantial context.Left Shoulder – there was no evidence of radiculopathy on clinical examination and imaging findings did not show injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Right Shoulder – there was no evidence of radiculopathy on clinical examination and imaging findings did not show injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Chest – there was no evidence of radiculopathy on clinical examination and imaging findings did not show injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
The Panel adopts the findings of Medical Assessor Gibson. All of the injuries referred to the Panel for consideration are threshold injuries.
Causation
The claimant was involved in an accident in a car park on 31 December 2020. The incident was described by the attending ambulance officer as a low speed accident.
The collision was said to have occurred when the insured car reversed into the stationary car of the claimant. There is no evidence before the Panel that this was a high speed incident. It is the observation of the Panel that it is unlikely that a car which was reversing in a car park would have done so at speed.
The insurer has submitted that the mechanism of accident did not and could not cause the pathology evidenced on imaging. The insurer has highlighted to the Panel that the total cost of repair was $3,005.05. This included parts of $1,446.58 and the balance for labour and miscellaneous items. These figures have not been challenged by the claimant.
Photographs attached to the insurers bundle of documents show what appears to be relatively minor panel damage to the driver’s side door and front fender with no intrusion into the cabin.
The police report refers to minor property damage occurring only.
The claimant reported to the attending ambulance officer that she had a pre-existing history of back problems which had been aggravated by the low speed impact.
The claimant reported to the attending ambulance officer that she had a pre-existing history of back problems which had been aggravated by the low speed impact. However, to
Dr Abrazsko, the claimant denied any pre-existing injury. And yet, clinical records from Liverpool Family Medical Centre indicate that the claimant suffers from the following pre-existing injuries and/or conditions:(a) chronic neck pain (2006 - ongoing);
(b) chronic lower back pain (2008 - ongoing);
(c) major depressive illness (2007 - ongoing), and
(d) adjustment disorder (2012).
Clinical notes for treatment of the claimant by Dr Ibrahim show that the claimant received treatment on 14 December 2020. This treatment was two weeks prior to the accident. The treatment related to review of chronic low back pain, lower back pain, stiffness, decreased range of movements of the lumbar spine and that walking, standing, sitting, bending and carrying objects aggravated her pain. The claimant has not disclosed this to all practitioners. The claimant’s submission that she did not have a back injury before the accident is not correct.
The claimant did not consult her GP following the accident until she saw Dr Ibrahim on
22 January 2021. This is three weeks post-accident. If the claimant had suffered an acute injury to her lumbar spine at the time of the accident and because of the accident, then the Panel would have expected the claimant to have immediate and considerable pain and to make an immediate complaint about this.By way of a clinical observation’s the accident was not likely the cause of this type of injury of an annular tear as there were no immediate symptoms
With respect to the causation of the claimant’s injuries, the Panel finds that she has not suffered an annular tear as there was no immediate complaint about this, following a low speed impact and noting that the onset of acute pain would be expected for an injury of this nature.
Regarding observations of radiculopathy which are relied upon by the claimant, the Panel notes that the claimant is relying on observations of Dr Abraszko, her physiotherapist and her GP. The Panel is not satisfied that the assessments by those practitioners has been made in accordance with Part 5.3-5.7 inclusive of the Guidelines and that two or more signs of radiculopathy were observed at any one time.
Conclusion
The Panel concludes that the claimant has suffered threshold injuries.
The Panel affirms the certificate of Medical Assessor Gorman.
Determination
The Panel affirms the determination of Medical Assessor Gorman’s certificate dated
1 April 2022The Panel determines that the following injuries caused by the accident;
•lumbar spine – soft tissue injury;
•thoracic spine - musculoligamentous injuries;
•left shoulder - muscular injury;
•right shoulder – subacromial bursitis;
•chest - injury and bruising to the chest, and
•cervical spine – soft tissue injury
are a THRESHOLD INJURY for the purposes of the MAI Act.
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