Saleh v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 14
•9 January 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Saleh v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 14 |
| CLAIMANT: | Mohamad Saleh |
| INSURER: | IAG Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 9 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Claimant involved in motor vehicle accident on 22 October 2018 injuring his cervical spine, lumbar spine, right hip, right shoulder and chest and subsequently requiring fusion surgery at C4/5 and C5/6 levels; an issue was whether he suffered threshold injuries; question of whether fusion surgery in 2023 was causally related to the accident; question of whether surgery involving the cutting of skin at the surgery site was a threshold injury; Panel satisfied that the surgery followed a conservative course of treatment which had failed and surgery was a logical next form of treatment; Panel not satisfied claimant had demonstrated two or more signs of radiculopathy; Panel not satisfied that the claimant had demonstrated a supraspinatus tear of his shoulder where an ultrasound showed only a suggestion of this but a subsequent MRI scan being more sensitive showed no evidence of a rotator cuff tear; Panel satisfied that surgery was a non-threshold injury but that the claimants injuries to his lumbar spine, right hip, right shoulder and chest are soft tissue threshold injuries; Held – certificate of MA Cameron revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The certificate of Medical Assessor Cameron dated 3 January 2023 is revoked. 2. As a result of the accident, the claimant has required fusion surgery at the C4/5 and C5/6 levels. This is a non-threshold injury. 3. The injuries to the claimant’s lumbar spine, right hip, right shoulder and chest are soft tissue injuries and are threshold injuries. |
STATEMENT OF REASONS
INTRODUCTION
This is a review of the certificate and reasons of Medical Assessor Cameron (the Medical Assessor) dated 3 January 2023.
The Medical Assessor found the following injuries caused by the motor accident:
• cervical spine – soft tissue injury with aggravation of cervical spondylosis;
• lumbar spine – soft tissue injury;
• right Shoulder – soft tissue injury;
• right Hip – soft tissue injury, and
• chest – soft tissue injury
were threshold injuries for the purposes of the Motor Accident Injuries Act 2017 (the Act).
The Medical Assessor also found the following injuries referred to him for assessment were not caused by the motor accident.
(a) left hand – radiculopathy; Carpel Tunnel Syndrome; in both hands, fingers and wrist;
(b) right Hand – radiculopathy; Carpel Tunnel Syndrome; in both hands, fingers and wrist left wrist – Carpel Tunnel Syndrome; in both hands, fingers and wrist;
(c) right Wrist – Carpel Tunnel Syndrome; in both hands, fingers and wrist;
(d) left shoulder – radiculopathy;
(e) left Arm – radiculopathy;
(f) right Arm – Radiculopathy
(g) left Leg – radiculopathy; pain radiating from the back into both legs;
(h) right Leg – radiculopathy; pain radiating from the back into both legs; sciatic pain/neuropathic;
(i) cervical Spine – post surgery scarring, and
(j) oesophagus – injury to the vocal cords; due to the anterior interior cervical operative.
The Medical Assessor said that a decision as to whether these injuries were threshold injuries was not required for the purposes of the Act.
LEGISLATIVE BACKGROUND
The legislation
Part 7 of the Act contains provisions relevant to the resolution of disputes. Division 7.5 provides for the internal review by insurers of medical disputes before a matter can be referred for medical assessment, procedures for medical assessment and the ability for a party to seek one further medical assessment and the review of medical assessments.
The insurer’s application for review is made under s 7.26 of the Act. Pursuant to s 7.26(5A) the Review Panel is to be constituted of a Member of the Personal Injury Commission (Commission) and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before the Review Panel.
The Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act and Rule 128 provides that a Review Panel can determine how it conducts and determines the proceedings before it.
Consideration of the issues by the Review Panel
Clause 5.6 of the Motor Accident Guidelines (the Guidelines) provides guidance to treating practitioners, medico-legal practitioners and medical assessors as to how to conduct a medical assessment and is set out below:
“5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Does Mohamad Saleh (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 clause 5.6 as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ...
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
For the claimant’s injuries to fall outside the definition of minor injury in s 1.6, he 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 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.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
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 clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will not be a non-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 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 Review 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 accident
The accident occurred on 22 October 2018.
There was a sudden emergence of a vehicle without warning. The claimant was driving along St George Parade in Hurstville and the insured driver was said to be travelling at 60 kmph and failed to obey a stop sign. The claimant was T-boned on the left side of his vehicle resulting in neck, right shoulder and lower back pain requiring conservative treatment and then surgery regarding his neck. When the collision occurred, the claimant’s car was pushed over the gutter and came to a stop when it hit a pole. Photographs of the damage to the claimant’s car have been provided and show considerable damage to the right side and front of the car.
Documentation
The parties have each presented their respective bundles of documents upon which they rely. The Review Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Review Panel or a Review Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
Claimant’s submissions
The claimant referred to the Medical Assessor determining that, in relation to the list of injuries which he was required to assess, those injuries were either ‘minor’ injuries for the purposes of section 1.6 of the Act or were not caused by the accident. On this basis, the claimant says that the Medical Assessor did not determine whether those injuries were minor or non-minor.
Consequently, the claimant submitted that the Medical Assessor has fallen into ‘error’ as he had failed to determine that the claimant’s cervical spine, lumbar spine, right shoulder and right hip were non-threshold injuries, noting, the claimant submitted that there was ample evidence which suggested the injuries fell outside of the definition of s 1.6 of the Act.
The claimant submits that had the Medical Assessor not fallen into error, the injuries sustained as a result of the subject accident, namely the cervical spine (surgery and scarring), right shoulder and lumbar spine, would have been deemed non-threshold (and found to have been caused by the accident), therefore entitling the claimant to continued statutory benefits.
The claimant has submitted that several errors were made by the Medical Assessor in making his determination.
Error 1 – the claimant submits that the Medical Assessor erred in a material respect by determining that the cervical spine surgery (and therefore the scarring caused by the surgery) was not caused by the accident of 22 October 2018
The claimant says that the Medical Assessor in his certificate has stated “Mr Saleh has sustained a soft tissue injury to his cervical spine. This could be termed an aggravation of pre-existing asymptomatic cervical spondylosis.” He also states, “There is not sufficient indication for cervical fusion because there is no evidence of persistent radiculopathy with clear symptoms… the cervical spinal fusion was not caused by the accident”.
The claimant submits that by adopting this line of reasoning, the Medical Assessor has fallen into error. The claimant submits that the Medical Assessor has firstly either asked himself the wrong question or failed to understand how the test of causation is to be applied.
The claimant submits that a fair reading of the assessment and conclusion that there was not sufficient indication for cervical fusion, is that what the Medical Assessor appears to have done is determine whether the fusion surgery was reasonable and necessary rather than whether the surgery was caused by the accident. By doing so, the claimant submits that the Medical Assessor made a material error because, it is submitted, the surgery was clearly caused by the accident.
The claimant submits that the Medical Assessor failed to have any regard to the following, which he says are important factors in determining causation:
(a) whether or not the accident made at least a material contribution to the need for surgery, and
(b) whether the need for surgery would have not arisen but for the accident.
Because of this failure, the claimant submits that the Medical Assessor has fallen into ‘error’.
The claimant submits that whilst it is acknowledged the claimant did suffer pre-existing degenerative changes in the cervical spine prior to the accident, and which is noted on the MRI Scans undertaken post-accident, there is no evidence which suggests that his pre-existing condition could have possibly resulted in his symptomatology remaining persistent from the date of the accident and ongoing.
The claimant submits that more notably, it is clear that the accident has caused an aggravation/acceleration in the cervical spine which has caused the need for the surgery to take place.
The claimant says that Dr Millons who saw the claimant for the workers compensation insurer, who funded the operation noting that the claimant was working as a taxi driver at the time of the accident appears to accept that the surgery was a consequence of the accident.
The claimant submits that the accident to which the claimant was subjected, being an accident of strong force, with the claimant being hit from the right side by a vehicle travelling at approximately 50kmph causing the claimant’s vehicle to veer and hit a pole leading the airbags to deploy, is consistent with a physical factor that could, and in fact did, contribute the occurrence of a medical condition to which the claimant has suffered.
The claimant says that based on the medical material and the clinical history, prior to 22 October 2018, the claimant did not experience pain relating to the neck. However, on attendance to the hospital immediately post-accident, the claimant reported pain in the neck. The claimant says that this was subsequently reported to his general practitioner (GP) again on 25 October 2018 and has clearly been consistent since. Therefore, the claimant submits that causation of the neck injury to the “physical factor” has been made out.
The claimant submits that moreover, given the sudden onset of worse pain and the cervical spine reported immediately post-accident, it is clear the motor vehicle accident caused aggravation at the C4/5 and C5/6 vertebrae, leading to the impingement of the C5 nerve root, consistent with the radiological findings dated 23 November 2018 together with the reported symptomology.
The claimant says that whilst the Medical Assessor concluded that the claimant suffered from ‘pre-existing degenerative changes’, any such pre-existing pathology was asymptomatic prior to the accident.
The claimant says that the accident caused an aggravation and symptomology and, based on the evidence, caused a significant worsening of any the pre-existing condition.
The claimant submits that the Medical Assessor should have answered both questions posed by clause 6.6 of the Guidelines in the affirmative.
The claimant says that the Medical Assessor has failed to engage with this question and, in the alternative has answered the questions about causation incorrectly.
The claimant says that the Medical Assessor’s acknowledgement that the accident caused an aggravation of an asymptomatic condition, shows also to be consistent with that of which the claimant reports immediately post-accident and consistently since that time. That is, immediately after the accident, there was neck pain on the right side. Furthermore, the claimant submits that as per the progress of the treatment, the clinical notes of Dr Awada and Physio Interactive Arncliffe clearly indicate ongoing complaints of pain in the right side of the neck from the date of accident.
The claimant says that based on this information, it is fair to conclude that the cervical spine injury, which has warranted the need for a cervical spine fusion surgery, was caused by the accident.
The claimant says that contemporaneous evidence can link the cervical spine injury to the accident. The claimant says that this is substantiated particularly in the clinical notes from Dr Awada, Physio Interactive along with the Certificate of Capacity’s issued by the treating GP.
The claimant submits that notwithstanding the asymptomatic pre-existing cervical spine injury, the evidence of right sided neck pain post-accident and the substantial medical treatment thereafter was largely, if not entirely caused by the accident.
The claimant submits that the Medical Assessor has failed to consider whether the accident and subsequent injury was caused or materially contributed to by the motor accident. The claimant says that there is no requirement that the accident be the sole cause. The claimant says that so long as it is established it is a contributing cause, then causation is established.
The claimant submits that the Medical Assessor has reasoned his determination by simply referring to asymptomatic degenerative changes and fails to consider whether the symptomology in the cervical spine which required surgical intervention thereafter would have occurred if not for the accident.
The claimant submits that clearly, the balance of the evidence supports the following propositions:
(a) the accident could have caused or contributed to the worsening of the cervical spine condition ultimately leading to the surgery, and
(b) the accident did in fact cause or contribute to the worsening of the cervical spine condition which ultimately led to surgery.
The claimant submits that there is no issue that scarring is a non-threshold injury. Consequent upon this, the claimant submits that the cervical fusion is causally related to the subject accident and the scarring caused by undertaking such a surgery amounts to a non-threshold injury pursuant to the Act.
The claimant says that there is no issue that scarring is a non-minor injury.
Error 2 – the Medical Assessor erred in determining that there is no evidence of radiculopathy in the medical evidence or on examination.
The claimant says that pursuant to the Guidelines version 8.2, Clause 5.8 indicates:
“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.”
It is submitted by the claimant that pursuant to the decision in David v Allianz Australia Insurance Limited [2021] NSWPICMP 227:
“Radiculopathy is an example where the symptoms fluctuate over time because the extent of the compression of the spinal nerve root may vary due to inflammation on the nerve root. Symptoms may subside if the inflammation reduces and return because the injured disc is exacerbated by innocuous activities”.
The claimant submits that he has reported continuously since the time of the accident a fluctuation of his radicular symptoms. This is particularly evidenced in the clinical notes of Physio Interactive which focus on reducing the claimant’s fluctuating symptoms. It is submitted that such symptomology is consistent with the diagnosis and the definition of the diagnosis pursuant to the Guidelines.
The claimant submits that while the Medical Assessor states in his assessment that on the medical evidence provided to him there was no evidence of radiculopathy, this is incorrect. The claimant says that the reports indicate instances of radiculopathy in accordance with Clause 5.8 of the Guidelines:
(a) Allied Health Recovery Request dated 16 November 2018: “bilateral neck and upper trapezius pain referring into the periscap region, pain refers to elbow… positive ULTT 100 degrees elbow extension...” – Clause 5.8 (e) and (d) is made out.
(b) Report Physio Interactive dated 24 August 2020: “Mr Saleh continues to rep constant pain in the cervical spine, mostly right sided and into the upper trapezius region –Clause 5.8 (e) is made out Reported intermittent pain and paraesthesia referring down the right arm into the hand” – Clause 5.8 (e) is made out.
(c) Allied Health Recovery Request dated 21 August 2020: “right sided neck and upper trapezius pain Intermittent PVAS 5-6/10 referring into the periscap region,,, Intermittent pain and paraesthesia into the right arm /hand, accompanied w/weakness and reduced fine motor control…” – Clause 5.8 (d) and (e) is made out.
(d) Report of Professor Justin Paoloni dated 18 August 2021 on examination notes: “he continued to have night pain and paraesthesia superior shoulder and arm down to the hand (C5 & C6 distribution… there is pain with strength testing of right supraspinatus and ER with positive impingement signs” – Clause 5.8 (d) and (e) is made out.
Further to the above submissions in relation to the cervical spine, the claimant also submits that the Medical Assessor has, by failing to consider or properly consider the evidence regarding radiculopathy, fallen into error in his assessment of the lumbar spine injury as a threshold injury.
The claimant submits, he has exhibited symptoms consistent with radiculopathy in accordance with Clause 5.8 of the Guidelines, as such satisfying the definition of a non-threshold injury in accordance with s1.6 of the Act.
The claimant relies on the clinical notes of Physio Interactive which he submits consistently document entries which satisfy the criteria of radiculopathy, more notably the following:
(a) Allied Health Recovery Request dated 19 May 2020: “intermittent bilateral side pain referring into the right and left gluteal and hamstrings.. worse pain down R leg, antalgic gait and increased weakness +++” – Clause 5.8 (d) and (e) is made out.
(b) Physio Interactive Progress Report dated 24 August 2020:
“reported intermittent anterior right groin pain, mostly experienced prolonged sitting… referred pain and paraesthesia intermittently in the gluteal region, as well as the right posterior thigh… Slump: positive on right side… Single leg squat: right leg ¼ range” – Clause 5.8 (d) and (e) is made out.
(c) Allied Health Recovery Request dated 28 July 2021: “Positive SLR Test on right… at 75 degrees… intermittent bilateral side pain referring into the right and left glutes and hamstrings… SL Squat: unable R leg;” – Clause 5.8 (d) and (e) is made out.
(d) Allied Health Recovery Request dated 5 August 2021: “constant sharp pain occurring from middle of the lumbar spine down to the right glute and down into the leg to the feet… some weakness present in the right leg” – Clause 5.8 (d) and is made out.
(e) Physio Interactive Report dated 26 August 2021: “constant sharp pain occurring from the middle of the lumbar spine down to the right glute and down the leg to feet… there is some weakness present in the right leg” – Clause 5.8 (d) and (e) is made out.
The claimant submits that more notably, the entries specified above are in contradiction to the Medical Assessor’s findings that “radiculopathy as defined by the Guidelines is not currently present and has not been present since the subject motor vehicle accident (based on the available medical evidence” (Page 8 of the Medical Assessor’s reasons).
The claimant submits that in accordance with the listed clinical entries, the claimant has suffered a non-threshold injury in the lumbar spine which meets the criteria of “radiculopathy” as set out in the Guidelines.
The claimant submits that a fair reading of the Medical Assessor’s reasons would suggest that he was not fully cognisant of the relevant material (or failed to take that material into account) which has led to his assessment being incorrect in a material aspect.
The claimant submits that the Medical Assessor has erred in a material respect by failing to find radiculopathy and therefore erred in his finding of threshold injury notwithstanding the clear evidence above.
Error 3 – the Medical Assessor erred in failing to engage in the available medical evidence with demonstrates a “focal tear” in the right shoulder (demonstrating a non-threshold injury) and incorrectly determined the injury as a threshold injury for purposes of the Act.
The claimant submits that the Medical Assessor has fallen into error in his assessment of his determination that the right shoulder injury is a minor injury.
The claimant says that the Medical Assessor acknowledges in his assessment the X-ray of the right shoulder dated 7 December 2018, which revealed “mild supraspinatus calcific tendinosis with focal rotator cuff tear”. However, the claimant says that notwithstanding this finding, the Medical Assessor has determined the right shoulder injury as a threshold injury for purposes of the Act. The claimant says that the Medical Assessor reasons his findings stating “there is no evidence that there was a “focal rotator cuff tear” at the right shoulder. The claimant says that the Medical Assessor has erred in a material respect with this finding.
The claimant says that the Medical Assessor makes a finding at the bottom of page 7 and the top of page 8 of his reasons that, whilst he found that the right shoulder was casually related to the accident however:
“There is no evidence that there was a ‘focal rotator cuff tear’ at the right shoulder. Rotator cuff abnormalities are common in asymptomatic people of Mr Saleh’s age.”
The claimant says that no reasoning is provided why the focal tear in the right shoulder was not considered to be caused by the accident. The claimant submits that the reasoning the Medical Assessor provided is not to the point and contradicts the material presented at assessment.
The claimant submits that the radiological conclusions show a clear “complete or partial rupture of tendons, ligaments, menisci or cartilage” notably a “focal tear”. The claimant also pointed out that he complained of right shoulder symptomology directly post-accident, and the radiological investigations relied by the claimant were undertaken approximately six weeks post-accident.
Regarding the injuries suffered by the claimant in the accident, he submits that no consideration is given to the extent of the impact nor the extent to which the accident would have mechanically caused the right shoulder injury suffered by the claimant.
The claimant also points to the fact there is no prior history or clinical reporting of right shoulder pain prior to the accident. Therefore, the claimant submits that the accident on the balance of probabilities, was the cause of the focal tear in the claimant’s right shoulder.
The claimant submits that had the Medical Assessor not fallen into error, the Medical Assessor would have assessed the claimant as having sustained non-threshold injuries, causally related to the subject accident, namely the cervical spine, right shoulder and lumbar spine, and more notably, the claimant submits, the cervical spine fusion surgery would have been determined as “causally related” to the subject accident.
Claimant’s supplementary submissions
The claimant provided further submissions in reply to the insurer’s submissions provided on 6 February 2022.
The claimant referred to the insurer's submissions at paragraphs [4]-[8] where it was submitted that there is no support in the materials for the assertion that there are two or more clinical signs of radiculopathy. The claimant noted that the insurer does accept, at [5], that there is a clinical sign of radiculopathy meeting the guideline in criteria 5.8(e) in "paraesthesia superior shoulder and arm down to the hand (C5 & C6 distribution ..)”
The claimant refers to the insurer's submission that "referred pain" is not a clinical sign of radiculopathy as it does not follow a specific nerve root distribution. The claimant says that he does not agree with this submission as the treating doctors who have seen the applicant on multiple occasions consistently refer to referred pain which specifies the exact region where the pain is identified, consistent with sensory loss that is localised to a spinal nerve root distribution.
The claimant submits that while there may be no specific nerve root distribution, the referred pain suffered by the claimant and set out in the medical evidence, is indicative of a sensory loss which is anatomically localised to an appropriate spinal nerve root. The claimant says that it is simply common sense to apply a practical interpretation on of the qualifying definition of radiculopathy pursuant to the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment 4th edition and marry this with the unchallenged symptomatology experienced and reported by the claimant. The claimant says that it is this experience which should be given primacy.
It is further submitted by the claimant that the symptoms of radiculopathy pursuant to clause 5.6 on most occasions occur simultaneously. The claimant says that should one symptom of radiculopathy be found on assessment either before or during the assessment, it would be more likely than not that at least one of the other four clinical signs have been found to have occurred and therefore meet the definition of "non-threshold" having regard to the motor vehicle accident and the injuries resulting from that accident.
The claimant submits that more notably, the nerve conduction studies undertaken on 19 October 2021 state the following: "a single denervation potential in the right biceps brachii suggestive of mild active right C6 and/or C5 radiculopathy; otherwise, normal study." The claimant says that based on the clinical assessment in conjunction with the nerve conduction studies provided by the treating doctors, this is evidence the claimant does in fact suffer from radiculopathy in accordance with the Guidelines.
The claimant submits that the insurer also fails to consider the multiple entries relating to "paraesthesia into the right hand being accompanied with reduced fine motor control”. The claimant submits that this is clear evidence of muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution. The claimant says that there could be no source of this paraesthesia other than the claimant's serious cervical spine injury. The claimant submits that this meets the criteria in clauses 5.8(d) and 5.8(e).
Insurers submissions
The insurer disagrees that there is a material error.
The insurer says that the claimant asserts the Medical Assessor has erred in determining the cervical spine surgery is not caused by the subject accident. The insurer disagrees with this.
The insurer notes the claimant relies in the tests of causation with respect to whole person impairment found in Part 6 of the Guidelines. The insurer says that these are not relevant with respect to a threshold injury determination.
The insurer submits that what the claimant dismisses as relevant towards the reasonable and necessary nature of the procedure answers the issue of whether, in the absence of radiculopathy, myelopathy or spinal instability, the need and execution of the surgery was not caused by the subject accident.
The insurer submits the Medical Assessor is not required to subsequently identify what if any gave rise to that need. Under s 7.23 of the Act, the insurer says that the Medical Assessor was merely required to provide reasons for his determinations and there was no requirement to provide reasons for other issues not referred for his assessment. The insurer submits that the Medical Assessor has fulfilled his obligation in assessing whether the cervical spine injury is a threshold injury for the purposes of the Act and has provided sufficient reasoning for his determination.
The insurer refers to the assertion by the claimant that the Medical Assessor has erred in determining that there is no evidence of radiculopathy in the cervical spine and lumbar spine. The insurer disagrees with this.
The insurer referred to the claimant’s submissions where the claimant listed the medical evidence that shows radiculopathy in the cervical spine, in particular, the clinical findings meeting clause 5.8(d) and (e). The insurer submits this is incorrect.
The insurer referred to clause 5.8 of the Guidelines which says:
“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.”
The insurer refers to examples provided in the claimant’s submissions which includes referred pain, constant pain, pain and paraesthesia referring down the right arm into hand, and weakness.
The insurer says that firstly, pain/referred pain is not considered as one of the clinical signs for radiculopathy as defined in clause 5.8 of the Guidelines.
Secondly, the clinical findings documented by the physiotherapist in [32](a) to (c) of the claimant’s submissions are not localised to a specific spinal nerve root distribution as per Guidelines requirements. The insurer says they are generalised symptoms going down the whole arm and hand, and nor did the physiotherapist indicate the symptoms are localised to a specific nerve root distribution.
Therefore, the insurer submits that the clinical findings referred to in the claimant’s submissions do not meet clause 5.8(d) and (e).
The claimant asserts he does meet the criteria in clauses 5.8(d) and (e). However, the insurer submits that only the clinical sign of paraesthesia superior shoulder and arm down to the hand (C5 and C6 distribution…) meets clause 5.8(e). The other symptoms noted in [32](d): pain, pain on strength testing or positive impingement signs on eternal rotation in the shoulder do not meet, in the insurer’s submission any of the clinical signs for radiculopathy defined in clause 5.8.
The insurer submits that the claimant failed to identify two or more of the clinical signs for radiculopathy as defined in clause 5.8. Therefore, the insurer says that the claimant failed to identify any medical information that provides evidence of radiculopathy in the cervical spine as defined by the Guidelines.
The insurer says that in the claimant’s submissions, the claimant listed the medical evidence that shows radiculopathy in the lumbar spine, in particular, the clinical findings that meet clause 5.8(d) and (e). The insurer submits this is incorrect.
The insurer says that the examples provided in the claimant’s submissions includes referred pain, weakness, referred pain and paraesthesia. The insurer says that firstly, pain/referred pain is not considered as one of the clinical signs for radiculopathy as defined in clause 5.8 of the Guidelines.
Secondly, the clinical findings documented by the physiotherapist in are not localised to a specific spinal nerve root distribution as per Guidelines requirements. They are generalised symptoms going down lower limb and in the gluteal region. Nor, the insurer says, did the physiotherapist indicate the symptoms are localised to a specific nerve root distribution.
Therefore, the insurer submits, the clinical findings referred to in claimant’s submissions do not meet the clause 5.8(d) and (e) requirements.
Following on from this, the insurer submits that in accordance with the Medical Assessor’s opinion, the claimant failed to identify any medical information that provides evidence of radiculopathy in the lumbar spine as defined by the Guidelines.
Furthermore, the insurer submits that the clinical findings of the cervical spine and lumbar spine at the time of assessment did not satisfy the criteria of radiculopathy as defined in the Guidelines.
The insurer submits that in accordance with and based on the available medical evidence and clinical examination findings, radiculopathy is not currently present and has not been present since the subject accident.
The insurer says that the claimant asserts the Medical Assessor has erred in his determination that the right shoulder is a threshold injury. The insurer disagrees with this.
The insurer says that the Medical Assessor noted the following under his summary of relevant documentation:
“X-ray of the right shoulder on 7 December 2018 is reported as showing mild supraspinatus calcific tendinosis with focal rotator cuff tear, as well as mild subacromial/ subdeltoid bursitis with impingement on abduction”.
In addition, the insurer says the Medical Assessor noted:
“MRI of the right shoulder and brachial plexus were reported as showing no rotator cuff tear and no brachial plexus pathology”.
The insurer says that the Medical Assessor also noted the opinion of the treating specialist that there is no rotator cuff tear injury.
The insurer referred to the most recent report of Dr Paolini dated 19 August 2022. That said that there was stable chronic right anterolateral shoulder pain. He said there was supraspinatus tendinosis with subacromial bursitis.
Firstly, the insurer submits MRI imaging is a more accurate imaging than ultrasound to detect ligament tear.
Secondly, the insurer submits that taking into consideration the imaging findings and the opinion of Dr Paolini, treating specialist, the Medical Assessor is correct in determining that, there is no evidence that there was a “focal rotator cuff tear at the right shoulder”.
The insurer says that in the claimant’s submissions, the claimant asserts the Medical Assessor made a contradictory statement in relation to the focal tear. Referring to that part of the Certificate [pg.7 & 8], the insurer says that the Medical Assessor stated:
“……There is no evidence that annular fissuring of a lumbar intervertebral disc was caused by the motor accident. That is a degenerative change that is present in many asymptomatic people of Mr Salehs age. There is no evidence that there was a ‘focal rotator cuff tear’ at the right shoulder”.
The insurer says that rotator cuff abnormalities are common in asymptomatic people of the claimant’s age.
The insurer says that when reading the whole paragraph, it is evident that the Medical Assessor is explaining that certain pathology/imaging findings can be present but asymptomatic.
The insurer noted that the Medical Assessor stated that there was no evidence of annular fissuring in the claimant’s lumbar spine. The insurer says that the Medical Assessor explained that annular fissuring was a degenerative change that is present and asymptomatic people of age.
The insurer also noted that the Medical Assessor said that there was no evidence of focal rotator cuff tear at the right shoulder. The insurer says that the Medical Assessor goes on to explain that rotator cuff abnormalities are common and asymptomatic in people of claimant’s age.
The insurer noted the comments of the Medical Assessor that there was no evidence of a labral tear in the right hip. Again, the insurer says that the Medical Assessor goes on to explain that labral tear can be present and asymptomatic. The Medical Assessor said that there was no mechanism to explain a major force on the right hip in the accident and the imaging findings can be present in asymptomatic people.
The insurer says that when read in its entirety, it is evident that the Medical Assessor firstly comments on the pathology or lack of pathology in the medical evidence available, and then he goes on to explain how that particular pathology can be common and asymptomatic in people.
From this, the insurer submits the Medical Assessor is not making a contradictory statement and the claimant has failed to identify any errors that is of a material respect.
The insurer submits the Medical Assessor has taken into consideration the available medical evidence, the claimant’s symptoms post-accident and clinical examination findings and using his entire gamut of clinical skill and judgment has correctly determined that the left elbow injury is a threshold injury.
The insurer submits Medical Assessor Cameron has not erred in his determination.
Insurers submissions to claimant’s submissions about assessment of a minor injury
The insurer says that to satisfy the diagnosis of radiculopathy, clause 5.8 of the Guidelines state that these must be evidence of 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.
In further submissions, the insurer provided the following observations;
“In the application for personal injury benefits, the claimant alleges the following injuries caused as a result of the accident
injury to the neck
injury to the right shoulder
injury to mid lower back
shock and anxiety state
The certificate of capacity/certificate of fitness provided by the claimant’s GP on 25 October 2018 provided the following diagnoses;a)whiplash neck injury
b)Right shoulder pain
c)low back pain
d)abdominal pain
The ambulance report noted an assessment of central chest discomfort, cervical neck discomfort and lumbar discomfort. The claimant was taken to St George Hospital.
The discharge note from the hospital said the claimant presented without neurological deficit and no evidence of other injury. claimant was discharged after a period of review.
The clinical notes of the claimants GP indicate there was no significant deficits reported on neurological examination of the upper limbs.
The physiotherapist report provided a diagnosis on 29 March 2019 of mechanical discogenic lumbar spine pain and L4/5 and L5/S1 with associated facet joint degeneration, whiplash associated disorder with associated headaches and right shoulder impingement due to underlying subacromial bursitis and calcific supraspinatus tendinosis.
An MRI of the cervical spine on 23 November 2018 found mild-to-moderate discovertebral spondylotic changes most marked at C4/5 and C5/6 levels resulting in mild central canal stenosis. Uncovertebral osteophytic encroachment of exit foramina is noted most severe at C4/5 level on the right resulting in potential impingement of right C5 nerve root.
An MRI of the lumbosacral spine on 23 November 2018 concluded mild L4/L5 and L5/S1 posterior disc bulge with no significant central canal or neural exit stenosis. There is mild effacement of the ventral thecal sac.
An x-ray of the right shoulder on 7 December 2018 concluded no evidence of fracture or dislocation and minor supraspinatus calcific tendinosis with focal rotator cuff tear. Mild subdeltoid bursitis with impingement on abduction.
A report from Dr Ghahreman of 21 October 2019 noted nerve conduction studies and revealed evidence of bilateral carpal tunnel syndrome.”The insurer provided further submissions on 14 March 2023 in reply to the claimant’s further submissions.
The insurer referred to its submissions that the claimant did not have two or more of the following clinical signs for radiculopathy as defined in clause 5.8 at currently present or at any time since the subject motor accident.
The insurer highlights that the Medical Assessor noted from the clinical examination of the cervical spine, there was no non-verifiable radicular complaint or radiculopathy present. The Medical Assessor concluded that there was no evidence to indicate the need for cervical fusion “because there is no evidence of persistent radiculopathy with clear symptoms, or myelopathy or an unstable cervical spine.”
The insurer says that the dispute referred to the Review Panel is about threshold injury. Given there is no evidence of non-verifiable radicular complaints, radiculopathy or the need of cervical fusion, the insurer submits that the Medical Assessor has correctly determined that the injuries caused by the subject accident are threshold injuries for the purposes of the Act.
Medical evidence
The Medical Assessor provided the following summary of documentation before him.
The ambulance form confirms the incident on 22 October 2018. It noted the airbags were deployed. There was no disturbance of consciousness recorded. There was neck pain and chest pain noted. The Glasgow Coma Score is recorded as 15/15.
The discharge summary from St George Hospital showed an assessment on 22 October 2018. It noted right-sided neck discomfort without neurological deficit. There was assessment and discharge. This documentation was referred to by the Medical Assessor and subsequently lodged by the claimant as late documentation, for the Review Panel to consider, on 28 November 2023.
The Certificate of Capacity from Dr Awada listed the injury as, “Whiplash neck injury and possible discopathy lumbar spine, reactive anxiety."
Photographs of a taxi with damage to the driver’s side front were noted. The airbags were deployed.
MRI of the cervical spine on 23 November 2018 was reported as, “Mild to moderate discovertebral spondylitic changes most marked at C4/5 and C5/6 resulting in mild central canal stenosis…”
X-ray of the right shoulder on 7 December 2018 is reported as showing mild supraspinatus calcific tendinosis with focal rotator cuff tear, as well as mild subacromial/ subdeltoid bursitis with impingement on abduction.
Nerve conduction studies by Dr Schwartz dated 16 July 2019 stated, “There is electrophysiological evidence of bilateral median nerve entrapment at the wrist consistent with mild carpal tunnel syndrome with a superimposed minor right C6/7 radiculopathy.”
A report of Dr Al Khawaja,neurosurgeon,and is dated 2 July 2020. It noted ongoing pain which was from the neck and there was also shoulder pain. Further treatment was recommended.
The report of Dr Obeid, endocrinologist, dated 24 September 2020 stated there was type 2 diabetes diagnosed in 2013, hyperlipidaemia, renal calculi and that cervical disc surgery was scheduled. There was some right-sided hearing impairment noted. Other reports from Dr Obaid were noted.
The operation report from St George Private Hospital showed a C4/5 and C5/6 anterior cervical discectomy and fusion on 12 November 2020.
There is a report of Dr Stephenson dated 5 July 2021 and a supplementary report of 14 September 2023, This is a medicolegal orthopaedic surgeon’s report. He noted the motor vehicle crash. He said there had been an anterior cervical discectomy and fusion at C4/5 and C5/6. A Supplementary Report from Dr Stephenson dated 8 September 2021 provided a further assessment and response to specific questions.
A vocational and functional assessment dated 2 August 2021 stated there were physical, emotional and cognitive sequelae of the subject motor vehicle crash. It said that the claimant had made a transition to a school bus driver role. There was further assessment. The report was completed by Dr Ting.
A report of Dr Ghahreman dated 7 April 2021 summarised the treatments that he had provided. He said there was cervical discovertebral disease with foraminal stenosis at C4/5 and C5/6 and lumbosacral segmental lower back pain with facet inflammation contributions. It noted that there had been lumbar facet joint radiofrequency procedures performed. Medications were prescribed. It noted there were ongoing symptoms. He said that there had been C4/5 and C5/6 anterior cervical discectomy and fusion. Clinical notes of Dr Ghahreman have also been considered.
A report of Dr Paolini dated 24 May 2021 is a treating sports physician’s report. He stated there was ongoing right shoulder pain. He recommended platelet-rich plasma injection and an exercise program.
There were handwritten clinical records which appear to be the records of Dr Awada. Records from October 2018 do not record details of the motor vehicle collision.
A bone scan dated 25 October 2021 showed normal post-surgical changes with reference to the cervical spine and there was also a CT of the lumbosacral spine and sacroiliac joints, which showed disc bulges.
An MRI of the right shoulder and brachial plexus were reported as showing no rotator cuff tear and no brachial plexus pathology.
A report of Dr Paolini dated 22 November 2021 described further treatment. He said there was specific right shoulder pathology.
A report of Dr Millons dated 26 November 2021 is a medicolegal surgeon’s report. He noted multiple injuries following the motor vehicle crash. He commented on multiple issues. He provided an evaluation of whole person impairment. He used the WorkCover Guidelines. He assumed the cervical fusion was related to injuries sustained in the motor vehicle crash.
There was a report of Dr Paolini dated 19 August 2022. That said that there was stable chronic right anterolateral shoulder pain. He said there was supraspinatus tendinosis with subacromial bursitis. He noted ongoing right-sided neck pain and mechanical low back pain and right hip synovitis. There was to be further 50% glucose injections to the right shoulder.
There was a further report from Dr Paolini dated 24 August 2022. There are several various reports all by way of updating from Dr Paolini.
Updated records of Dr Awada have been provided. The consultation records are handwritten and difficult to read. A typed transcript was subsequently provided. They date from 1998 to 2 July 2021. As previously stated, there were no entries with reference to the motor vehicle crash during October 2018. The claimant subsequently provided typed/transcribed clinical notes of Dr Awada from 16 January 2016 to 6 July 2023.
A report of Dr Mobbs, treating neurosurgeon dated 5 April 2023 discusses various options including disc fusion.
The Medical Assessor said that in the accident on 22 October 2018, the claimant sustained a soft tissue injury to his cervical spine. The Medical Assessor said that this could be termed an aggravation of pre-existing asymptomatic cervical spondylosis. The claimant may also have sustained a soft tissue injury to his lumbar spine and possibly right shoulder and right hip and chest.
The Medical Assessor said that there was no evidence of radiculopathy as defined in the Guidelines. He said that the neurological signs then present reflected changes at multiple spinal levels.
The Medical Assessor said that there was not a sufficient indication for cervical fusion because there was no evidence of persistent radiculopathy with clear symptoms, or myelopathy or an unstable cervical spine. Therefore, the Medical Assessor said that the cervical spinal fusion was not caused by the subject motor vehicle crash.
Regarding causation, the Medical Assessor said that radiculopathy was listed as a component of 8 of the 16 injuries claimed by the claimant. The Medical Assessor said that this was not a correct listing of the injuries. The Medical Assessor confirmed that there was not an indication for cervical discectomy and fusion. He said that there was no evidence that annular fissuring of a lumbar intervertebral disc was caused by the accident. He said that this was a degenerative change that was present in many asymptomatic people of the claimant’s age. There was no evidence that there was a “focal rotator cuff tear” at the right shoulder.
The Medical Assessor said that rotator cuff abnormalities are common in asymptomatic people of the claimant’s age.
The Medical Assessor said that there was no evidence that a labral tear occurred at the right hip in the subject accident. There was no mechanism to explain major force on the right hip and the imaging findings can be present in asymptomatic people.
The Medical Assessor said that radiculopathy, as defined in the Guidelines was not currently present and had not been present since the accident based on the available information.
Carpel tunnel syndrome causing clinical signs was not present. The Medical Assessor said that the Guidelines did not allow the use of nerve conduction studies in defining injuries or impairments.
The Medical Assessor confirmed that the cervical spine surgery was not causally related to the accident and, therefore, it was his finding that sequelae of the surgery were not related to the motor accident.
Investigations
MRI cervical spine dated 23 November 2018 showed degenerative changes at C5/6 and C6/7.
CT cervical spine dated 16 March 2021 showed C5/6 and C6/7 fusions with apparent intervertebral disc replacements.
CT lumbar spine dated 25 October 2021 showed degenerative changes.
Report of a nerve conduction study from 19 October 2021 suggested mild neuropathic changes on the right side at C6 or C5.
Southern Neurology, nerve conduction studies requested by Dr Ghahreman: “Conclusion: There is electrophysiology evidence of bilateral median nerve entrapment at the wrist consistent with mild carpal tunnel syndrome with a superimposed minor right C6/7 radiculopathy”, Dr Ray Schwartz, neurologist, date 16 July 2019.
Radiological investigations request from Dr Ghahreman, MRI cervical spine 19 November 2019. Comment:
“Mild-to-moderate cervical discovertebral spondylitic changes most marked at C4/5 and C5/6 levels associated with mild central canal stenosis. No myelopathy is seen.
Osteophytic encroachment of exit foramina is noted most likely at C4/5 on the right with moderate-to-severe foraminal stenosis and potential impingement of corresponding right C5 nerve root. Stable appearance compared with study of 23 November 2018”, Dr Chris Chu, radiologist.
Whole body bone scan with tomography performed 23 May 2020: “There is active arthritis in the medium atlantoaxial joints and C4/5 discovertebral disease”, Dr Richard Quinn.
X-ray cervical post-surgery: “There is anterior fixation plate and screws at C4, C5 and C6 with inserts into the intervening two discs. No other bony lesion can be seen. There is slight vertebral body malalignment at C2/3 and C3/4”, Dr Carl Bryant, radiologist 13 November 2020.
Barium Swallow for dysphagia post-surgery, request by Dr Ali Ghahreman, 14 December 2020:
“A fixation plate and screws at C4, C5 and C6 with inserts into the intervening discs. There are inserts into the two intervening discs. The pharynx is normal in appearance. The fixation plate does not overly impinge upon the pharynx. During swallowing there was no contraction of the cricopharyngeal sphincter and there is no pharyngeal diverticulum. No oesophageal abnormality can be seen,”' Dr Carl Bryant.
MRI cervical spine on 6 April 2021: 'Previous surgery C4, C5 and C6. Comment:
“No highgrade central spinal canal stenosis, no cord compression. Spondylitic osteophytes leading to foramen narrowing at the levels mentioned above, noting these C1/2 lateral facet joints with the foramen narrowing of C5/6 from osteophytes which could irritate the left C6 nerve and osteophytes causing a moderate degree of foramen narrowing at C4/5 which could irritate the right C5 nerve and milder narrowing of C5/6 foramen narrowing due to osteophytes”, Dr Williams.
MRI lumbar spine comment date 3 May 2020, request from Dr Awada, his GP. Comment: “There is no significant neural compression. There is a small left-sided disc protrusion at L4/5 with mild spondylitic change, no canal or foraminal stenosis”, Dr Jeff Kuan, radiologist. On 13 November 2019, there was a right C5 nerve injection with steroid and local anaesthetic. Contrast showed good perineural spread along the right C5 nerve.
Dr William Clark, requested by Dr Ghahreman and previously 25 July 2019, the right C4/5 facet joint was injected with steroid and local anaesthetic again supervised by Dr William Clark.
Review Panel medical examination
The claimant was examined on behalf of the Review Panel by Medical Assessor Oates. His report follows.
“Mr Saleh attended the PIC Medical Examination Suite on 12 September 2023 as arranged for re-examination by Medical Assessor Oates.
An Arabic interpreter, Mr Hafez Assoum (NAATI No. CPN5KR53J), was present for the duration of the assessment.
HISTORY
Pre-accident medical history and relevant personal details
Mr Saleh confirmed he has had no injuries prior to the subject motor vehicle accident on 22 October 2018.
He had come to Australia from Lebanon in 1987 and had done taxi driving as his only job in Australia.
He has good general health, apart from type 2 diabetes mellitus which is controlled with medication.
He is married. His wife works part-time and there is a daughter aged 17 who is a TAFE student, still living at home.
Before the accident he did soccer and walking, and the outdoor work at home.
His wife does the housework. He is independent with personal care activities of daily living. He is a non-smoker and does not drink alcohol.
History of the motor accident
Mr Saleh is right hand dominant.
He said on 22 October 2018, he was driving a taxi with an elderly female passenger in the right rear seat, travelling at about 48kph, when he was T-boned on the right side of his vehicle when another car came through a stop sign from his right.
The collision caused him to lose control of the taxi and he mounted the footpath on the left side of the road and hit a pole. He had a seatbelt on and the airbags deployed.
Police, ambulance and fire brigade attended. He was not physically able to extricate himself from the vehicle so was removed by the ambulance officers. He was taken to St George Public Hospital.
At the time, he was complaining of neck and right shoulder and low back pain. He was in hospital about five hours, where he underwent imaging and was discharged with medication.
History of symptoms and treatment following the motor accident
He then saw the GP and was referred for MRI scan and subsequently had imaging controlled injections to the right shoulder, neck and back by the interventional radiologist.
He was treated with Neurontin for neuropathic pain and Pristiq for depression. He had physiotherapy which gave temporary relief only.
He was referred to Dr Ali Ghahreman, neurosurgeon. In November 2020, he performed C4/5 and C5/6 cervical fusion. Mr Saleh estimates he obtained about 50% improvement. He had two further injections to the neck after the operation.
He was referred to Professor Paoloni, sports physician, Kogarah. He had cortisone injection, platelet-rich plasma injection and traumeal injection to the right shoulder with no overall benefit. Professor Paoloni has requested approval for further PRP and traumeal injections.
He saw Dr Ralph Mobbs, neurosurgeon, regarding his back and was given two cortisone injections to the lumbar spine but there was no real benefit.
At last review a few months ago, Dr Mobbs said he may proceed with radiofrequency neurotomy but is awaiting approval from the insurer. If this is undertaken and is not successful, Dr Mobbs said he may need lumbar surgery.
Details of any relevant injuries or conditions sustained since the motor accident
On 12 May 2023, Mr Saleh was involved in a further motor vehicle accident. He was travelling in a car at about 58kph when a car came from a side street on his right, against a ‘no right turn’ sign, and hit the right rear wheel of his vehicle. He lost control and went to the other side of the road and hit two other cars.
He injured his right hip, right knee, right elbow and has hearing loss in the right ear. He had imaging through the GP, including MRI scans. He has appointments with a hip and knee specialist and is to undergo an injection with Dr Bryant, interventional radiologist, for the right elbow. He has an appointment with Dr Pohl, ENT surgeon, regarding his right ear in October 2023.Current Symptoms
He continues to have neck pain and right shoulder pain. He has numbness in the right thumb, index and middle fingers which is present constantly and at times in the other two fingers of the right hand.
He also has low back pain and right ankle pain and radiating pain to the sole of the foot, and to all the toes at times, which are affected by pins and needles. Sometimes his back is worse for a week or so and other times his neck is worse and disturbs his sleep a lot. He is quite nervous when driving.
His current treatment consists of Neurontin, which was originally prescribed by Dr Nazha, a pain management specialist whom he has seen previously. He takes 300mg once or twice a day. He has Pristiq 50mg per day, an anti-depressant, and is awaiting injections as a result of the second accident as noted above.
He no longer undertakes any physical recreations and his wife and daughter do the yard work now, but he is independent with personal care doing things slowly by himself.
He did not return to taxi driving after the motor vehicle accident but started driving a small school bus part-time from 2019.
He took a further 2-3 months off work after the neck operation and then resumed the driving six hours per week, doing morning and afternoon shifts picking up children and delivering them home again, and he is also in receipt of workers compensation benefits. This is on account of the subject accident of 22 October 2018.CLINICAL EXAMINATION
General presentation
He was of average build with height 174cm and weight 71.6kg.
He sat comfortably whilst relating the history and was able to stand erect and walked without a limp.
He transferred with some back discomfort out of a chair and on and off the examination couch.
Cervical spine
Slightly poke-neck contour. Flexion was two-thirds of normal range, extension one-half normal range, lateral flexion one-half normal range bilaterally. Rotation to the right was two-thirds normal and to the left one-half normal. There was guarding in the right paracervical muscles but no focal tenderness. There were non-verifiable radicular complaints.
Reflexes in the upper limbs were symmetrical. Power was reduced about the right shoulder because of pain inhibition. Sensation was partially reduced to pin prick in the right C6 distribution of the hand.
Upper arm girth; right 28cm, left 27cm at 10cm above the elbow crease.
Forearm girth; right 27cm, left 26.5cm at 5cm below the elbow crease.
Lumbar spine
Lordosis preserved. Flexion was three-quarters of normal range, extension limited to one-quarter normal range with complaint of low back discomfort. Lateral flexion was one-quarter normal range bilaterally and rotation in the thoracic spine was two-thirds of normal range bilaterally.
There were non-verifiable radicular complaints in the right lower extremity. Reflexes were symmetric with plantar responses both flexor. The ankle jerks needed reinforcement. Power in the lower limbs was normal. Sensation was intact apart from some reduction to pin prick in the right S1 dermatome.
Supine straight leg raising on the left was normal and on the right caused complaint of low back pain at 75° elevation. The sciatic nerve stretch test was negative. There was guarding in the right paralumbar area with tenderness in the right lower back.
Thigh girth; right 42cm, left 42.5cm measured at 10cm above the superior patellar pole.
Leg girth; right equals left equals 35cm measured at 15cm below the inferior patellar pole.
Upper extremities
There was some drooping of the right shoulder with right trapezial ridge slightly lower than the left.
Range of movement of both shoulders was measured with a goniometer.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 120° 180° Extension 50° 50° Adduction 30° 40° Abduction 100° 170° Internal Rotation 80° 90° External Rotation 60° 70° Right and left elbows, wrists and hands showed a full range of movement.
Tinel’s sign negative at the ulnar nerve at the elbow bilaterally. Tinel’s sign and Phalen’s sign at right and left wrists were negative.
Scarring
There was a well-healed, barely visible anterior neck scar from the cervical fusion surgery.
Imaging
The following films were brought to the PIC Medical Suites:·23 November 2018 – MRI cervical spine and lumbar spine
·1 December 2018 – X-ray and ultrasound right shoulder
·24 July 2019 – Imaging for injection of cervical spine
·24 October 2019 – MRI scan right shoulder
·13 November 2019 – Imaging for injection of cervical spine
·19 November 2019 – MRI cervical spine
·29 May 2020 – Report only of bone scan – 59 month history of chronic neck pain and bilateral shoulder pain following MVA – There is active arthritis at the medial atlanto-axial joints and C4/5 discovertebral disease. There is no facet joint uptake demonstrated to suggest arthritis.
·13 November 2020 – X-ray cervical spine
·14 December 2020 – Barium swallow performed because of dysphagia following neck surgery and this is treated by a soft diet. No abnormalities were revealed.
·16 March 2021 – CT scan cervical spine
·6 April 2021 – MRI scan cervical spine which was on disc and could not be viewed at the rooms.
·3 May 2021 – MRI lumbar spine which was on disc and could not be viewed at the rooms.
·5 July 2021 – X-ray right and left C3/4 injections.
·25 October 2021 – CT lumbar spine and sacroiliac joints, bone scan and MRI scan right shoulder – Bone scan shows normal post-surgical change at C4 to C6 levels, with features of mild left C1/C2 arthropathy and features of L5/S1 facet arthropathy bilaterally.
CT lumbar spine and sacroiliac joints showed small disc bulges in the lower lumbar spine but no evidence of canal stenosis or nerve root encroachment. There are degenerative facet joint changes noted inferiorly.
MRI scan right shoulder and brachial plexus shows no rotator cuff tear but extensive insertional tendinopathy in the supraspinatus tendon, as well as some tendinopathy in the critical zones/ myotendinous junction. Minor subscapularis insertional tendinopathy. Subacromial/ subdeltoid bursitis is likely.
MRI brachial plexus shows no brachial plexus pathology demonstrated allowing for motion artifact.pDiagnosis, Causation and Reasons
The diagnoses are:·cervical spine soft tissue injury with aggravation of pre-existing asymptomatic cervical spondylosis,
·lumbar spine soft tissue injury, with radiating symptoms to the hip and leg,
·right shoulder soft tissue injury,
·chest soft tissue injury.
These injuries are mentioned in the early contemporaneous medical evidence in the file, including ambulance record (chest and neck), hospital records (neck, right shoulder, low back pain), GP records (neck whiplash, lumbar spine), treating neurosurgeon records (neck pain to right upper extremity, and shoulders),
There are not two or more criteria present to support a diagnosis of cervical radiculopathy or lumbar radiculopathy, and there is no evidence clinically of carpal tunnel syndrome in the right wrist/ hand or left wrist/ hand.
The chest soft tissue injury has resolved.
There was no break in the chain of causation between the subject accident and the continuing cervical spine injury which, after failing conservative treatment, was treated by two level cervical spinal fusion.
The accident was a cause, more than negligible, resulting in the need for the cervical spinal fusion.
Threshold Injury
The cervical spine soft tissue injury is a non-threshold injury because it has been the site of surgery.
The lumbar spine, right hip, right shoulder and chest soft tissue injuries are threshold injuries.
In the case of the right shoulder, an initial ultrasound scan suggested a supraspinatus tendon tear, however subsequent MRI scans performed in October 2019 and October 2021 showed tendinopathy but no evidence of actual rotator cuff tendon tear. It is therefore classed as a threshold injury, noting that MRI scan is a much more sensitive imaging modality than ultrasound for showing anatomical detail of tendons.”
The Review Panel adopts the report and findings of Medical Assessor Oates.
Causation
The claimant was involved in a motor vehicle accident on 22 October 2018 which was sudden and of considerable force with several impacts. There was the initial impact by way of a T-bone effect to the right side the car which then pushed the car into and over the curb and subsequently the car came to a stop only when it hit a pole. The airbags in the claimant’s car were deployed.
Photographs have been provided of the damage to the car and this damage by way of general observation of the Review Panel, is not inconsequential.
The Review Panel is satisfied that the injuries suffered by the claimant in the accident are as a result of that accident and impact. The accident was a cause, which was more than negligible, resulting in the need for surgery by way of a cervical spine fusion at two levels.
The claimant was involved in another motor vehicle accident on 12 May 2023 in this accident the claimant injured his right hip, right knee and right elbow as well as suffering and hearing loss. The Review Panel is satisfied that the injury suffered in the second accident do not impact on its determination before us now.
Conclusion
The Review Panel is satisfied that as a result of the accident on 22 October 2018 the claimant suffered an injury to his cervical spine, and subsequently required a cervical fusion at the C4/5 and C5/6 levels. This surgery was performed in November 2020 by Dr Ghahreman, neurosurgeon. This surgery has obviously involved an incision of the skin and also the insertion of fixatures to the claimant’s cervical vertebra.
There has been discussion in other claims about whether injury to the skin is a non-threshold injury. To some degree, it depends on the nature of the injury. A mere scratch would not raise the issue having arisen in this claim.
The skin is an organ which covers the external surface of the body. It provides protection from physical injury and assists in the maintenance of the internal environment of the body.
The skin is comprised of two layers, an outer thin layer which is the epidermis, and an inner thick layer, which is the dermis.
The dermis is important in its function as it consists of a thick, strong fibrous layer of non-specialised cells whose function is to support the epidermis.
The skin is comprised of tissue as defined in section 1.6(2) of the Guidelines . Accordingly, an injury to skin could involve the cutting of fibrous tissues, fat and blood vessels.
injury in Nazari v AAI Limited [2023] NSWPICMP 62 and a non-threshold injury in Dhupar v AAI Limited [2023] NSWPICMP 99. The Review Panel though accepts that a mere abrasion, for example, is not intended to fall by way of definition as a non-threshold injury. The Review Panel does not accept the claimant’s submission that there is no issue that scarring is a non-threshold injury.
However, in this claim, the claimant has had to undergo surgery, which by its nature has damaged some of the claimants “nerves, ligaments, menisci or cartilage”. In this claim, the surgery has involved damage by way of tearing to the claimant’s nerves, ligaments, muscle and bone. This is a non-threshold injury.
The Review Panel is satisfied that the injury arising out of the accident to the claimant’s cervical spine has caused a need for fusion surgery. That being the case, on the event of the fusion surgery at two levels, a non-threshold injury arises.
Medical Assessor Cameron had found that the fusion surgery was not causally related to the accident. However, the Review Panel says that surgery is part of a course of a treatment regime which comes into play when other treatments have failed. The Review Panel is satisfied that the cervical spine injury was caused by the accident. Following a conservative course of treatment by his treating surgeon, Dr Ghahreman, which was not successful, then Dr Ghahreman has proceeded to the next logical mode of treatment consisting of surgery at the C4/5 and C5/6 levels. The accident made a material contribution to the need for surgery and in the opinion of the Review Panel, would not have arisen but for the accident.
As noted in the medical examination of Medical Assessor Oates, the Review Panel is satisfied that regarding injury to the claimant’s right shoulder, this is a threshold injury. At best, there was only a suggestion of a supraspinatus tear following an ultrasound scan of the shoulder. Subsequent imaging by way of more sensitive MRI scans showed no evidence of a rotator cuff tendon tear.
The Review Panel is not satisfied that there was evidence of two or more signs of radiculopathy on examination or on the basis of any other medical evidence indicating two or more signs of radiculopathy at the one time. The Review Panel is not satisfied that the claimant has exhibited symptoms consistent with radiculopathy in accordance with clause 5.8 of the Guidelines. In this regard, the claimant does not satisfy the definition of a non-threshold injury in accordance with s 1.6 of the Act.
Determination
The certificate of Medical Assessor Cameron dated 3 January 2023 is revoked.
As a result of the accident, the claimant has required fusion surgery at the C4/5 and C5/6 levels. This is a non-threshold injury.
The injuries to the claimant’s lumbar spine, right hip, right shoulder and chest are soft tissue injuries and are threshold injuries.
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