Saliba v CIC Allianz Insurance Limited
[2022] NSWPICMP 493
•1 December 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Saliba v CIC Allianz Insurance Limited [2022] NSWPICMP 493 |
| CLAIMANT: | Ghassan Saliba |
INSURER: | CIC Allianz Insurance Limited |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 1 December 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered an injury on 17 March 2020 when the insured vehicle turned right and collided into the back side of his vehicle; this was a medical dispute about whether the claimant suffered a non-minor injury within the meaning of the Motor Accident Injuries Act 2017 in the motor accident; claimant bore the onus of proof in establishing that the injuries were not a minor injury; Briggs v IAG Ltd (No 2) referred to; the Panel concluded that the claimant suffered a minor injury; there was no radiculopathy in either the upper or lower limbs as defined by the Guidelines; the pathology in the cervical spine showed degenerative changes; it was unlikely that the motor accident caused injury to the nerves or partial tearing of the tendons, ligaments, menisci or cartilage; the right shoulder tear shown on the scan was in the insertion of the subscapularis tendon into the bone; it is a partial tear that is not normally associated with trauma and more likely degenerative and associated with overuse or repetitive motion; this conclusion is consistent with the claimant’s age and underlying diabetes which makes a person more prone to degenerative changes in the shoulders; the claimant’s age, the nature and extent of the partial tear, underlying health conditions such as diabetes and low impact forces from the motor accident probably show that the tear was probably pre-existing and asymptomatic prior to the motor accident; Held – original assessment confirmed; findings made that claimant sustained a minor injury. |
| DETERMINATIONS MADE: | Medical Assessment – Minor injury Review Panel Assessment of Minor Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 1 June 2022. |
REASONS
BACKGROUND
Mr Ghassan Saliba (the claimant) suffered injury in a motor accident on 17 March 2020 when another vehicle turned right and collided into the back right side of his vehicle.[1]
[1] Claimant’s bundle, p 7.
The insurer insured the owner and driver of the other motor vehicle for liability to pay to Mr Saliba any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue presently in dispute is whether Mr Saliba’s injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”.
Mr Saliba claims that injuries to the cervical spine and bilateral shoulders were not minor injuries as defined by the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Truskett who issued a medical assessment certificate dated 1 June 2022. Medical Assessor Truskett concluded that Mr Saliba sustained injuries to the cervical spine and shoulders which were a minor injury for the purposes of the MAI Act.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[3]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[4]
[3] Sections 3.11 and 3.28 of the MAI Act.
[4] Section 4.4 of the MAI Act.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by Mr Saliba within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after
1 March 2021, the new review provisions apply.The review provisions provide[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[6] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
The Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered.
STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the 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.”
Section 1.6 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 Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.
Clause 5.7 of the Guidelines 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.”
Radiculopathy is defined in cl 5.8 of the Guidelines 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 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.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[10]
[10] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the Act[11].
[11] See s 3B(2) of the Civil Liability Act 2002.
ASSESSMENT UNDER REVIEW
The Medical Assessor concluded that Mr Saliba suffered soft tissue injuries to the cervical spine and shoulders. The Medical Assessor concluded that the minor subscapularis defect of the right shoulder was degenerative and not acute based on the mechanism of the injury and Mr Saliba’s age.
SUBMISSIONS
Claimant’s submissions dated 23 August 2021[12]
[12] Claimant’s bundle, p 1.
The claimant submitted he sustained physical injuries to the cervical spine and both shoulders in the motor accident.
The claimant referred to the earliest certificates from Dr Salwa Kyrillos which recorded injuries to the cervical spine and both shoulders.
The claimant noted that initial complaints were to the right shoulder which were investigated by way of ultrasound and X-ray on 20 March 2020. Pain in the cervical spine developed “in the following days since the date of the accident” and neck pain was mentioned by the physiotherapist on 2 April 2020.
The claimant stated that he developed left shoulder pain “in or around June 2020 as a result of overcompensating for his injured right shoulder”. Investigations at that time revealed a small joint effusion with marked limitation of abduction.
Subsequent CT scan of the cervical spine revealed foraminal stenosis and possible bilateral C5 and C6 radiculopathy corresponding to foraminal narrowing.
Dr Bodel provided a report dated 22 January 2021 who identified non-verifiable symptoms from the cervical spine and confirmed the partial thickness tear in the right shoulder was caused by the motor accident.
It was submitted that the claimant suffered a right shoulder tear and cervical spine radiculopathy which constituted a non-minor injury as defined in the MAI Act.
Claimant’s submissions dated 28 June 2022[13]
[13] Claimant’s bundle, p 247.
These submissions were filed seeking a review of the Medical Assessment. The claimant submitted that the Medical Assessor failed to provide proper reasons of the cause of the pathology noting:
· the absence of prior right shoulder symptoms,
· the record of contemporaneous complaint, and
· fails to engage and explain the pathology other than by reason of his age.
The Medical Assessor failed to engage with Dr Bodel’s opinion. Further he accepted the opinion of Mr Griffiths who is a Bio-Medical and Mechanical Engineer but was not qualified to comment on the medical causes of abnormal shoulder pathology.
Insurer’s internal review dated 5 January 2020[14]
[14] Claimant’s bundle, p 58.
The insurer’s internal review referred in detail to the medical evidence and the opinion expressed by Mr Griffiths. It concluded that in light of Mr Griffith’s opinion, the claimant did not sustain a tear to the right shoulder.
Insurer’s submissions undated[15]
[15] Insurer’s bundle, p 1.
The insurer submitted that the general practitioner diagnosed a musculoligamentous injury to the cervical spine which was a minor injury for the purposes of the MAI Act.
The insurer submitted that considering Mr Griffith’s opinion, the claimant did not sustain a tear to the right shoulder.
Insurer’s submissions dated 28 July 2022[16]
[16] Insurer’s bundle, p 5.
These submissions were filed in response to the application to review the Medical Assessment.
The insurer submitted that the Medical Assessor considered the medical evidence, undertook a thorough physical examination, and considered causation and diagnosis.
The insurer submitted that the Medical Assessor considered the medical evidence and concluded that the injuries were minor injuries as defined in the MAI Act.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents in accordance with the initial direction.
Pre-accident medical records
The pre-accident clinical notes of the general practitioner refer to back problems.[17] There is no reference to prior shoulder or neck pain.
[17] Claimant’s bundle, pp 110 - 129.
Motor accident
Mr Saliba completed a claim form dated 1 April 2020.[18] He stated that he sustained pain in the right shoulder and neck as a result of the motor accident.
[18] Claimant’s bundle, p 6.
A photograph shows damages towards the driver’s rear side of the vehicle.[19]
[19] Claimant’s bundle, pp 26, 31 – 32.
Mr Saliba provided a statement dated 21 April 2020.[20] He stated that he suffered right shoulder pain on the day after the motor accident.
[20] Claimant’s bundle, p 11.
Medical evidence
The claimant attended his general practitioner on 19 March 2020 complaining of right shoulder pain and was referred for scans.[21] Right shoulder pain is mentioned in subsequent visits. Left shoulder pain is first mentioned in a clinical note on 29 June 2020.[22]
[21] Claimant’s bundle, p 131.
[22] Claimant’s bundle, p 130.
On 26 March 2020 the general practitioner provided a certificate of capacity due to right shoulder tendinitis/partial tear.[23] In the certificate the claimant recorded that he worked for 15 hours over three days following the motor accident but stopped because he had shoulder and neck pain.
[23] Claimant’s bundle, p 189.
In a report dated 22 June 2021, Dr Kyrillos noted that initial presentation was on
19 March 2020 with complaints of right shoulder symptoms. Subsequently there were complaints of neck pain and left shoulder pain.[24][24] Claimant’s bundle, p 97.
Dr Wade Harper, orthopaedic surgeon, provided a report dated 17 June 2020.[25] The doctor opined that the claimant had developed post-traumatic adhesive capsulitis which was expected to improve over a 12-18 month period following the motor accident.
[25] Claimant’s bundle, p 99.
In a subsequent report Dr Harper noted that the claimant had a resolving right shoulder adhesive capsulitis and left shoulder subacromial impingement.[26]
[26] Claimant’s bundle, p 100.
A report by Mr Hyde, exercise physiologist, noted minimal progress from treatment in late 2020.[27]
[27] Insurer’s bundle, p 28.
Qualified opinions
Dr James Bodel, orthopaedic surgeon provided a report dated 22 January 2021.[28]
[28] Claimant’s bundle, p 82.
Dr Bodel expressed disagreement with Mr Griffiths conclusion and opined that the motor accident could have caused a partial thickness tear of the subscapularis tendon in the right shoulder. The doctor opined that this is a non-minor injury sustained in the motor accident.
Dr Bodel otherwise found non-verifiable signs of radiculopathy in both upper limbs with normal reflexes and no sensory loss in any dermatome.
Mr Michael Griffiths, Bio-Medical and Mechanical Engineer concluded that the reduction in forward velocity was less than 5 km per hour and closer to 0 km per hour. Mr Griffiths quoted an article that stated that overheard work or heavy lifting often caused tendinitis but that “a direct blow to the shoulder area … can also cause shoulder tendinitis”.[29]
[29] Insurer’s bundle, p 64.
Mr Griffiths then concluded that whilst there are a variety of activities which can cause tendon injury, they “all involve relative (and often repetitive) movement of the upper arm ball type joint to the shoulder socket type joint”. He then acknowledged that a direct blow to the shoulder can cause this injury although noting that there was a minor reduction in forward velocity.[30]
[30] Insurer’s bundle, p 64.
Mr Griffiths referred to the three-day delay in seeing the general practitioner. We note that the delay was only two days. In the Panel’s view this is not a significant delay in attending a general practitioner.
Based on the minor loss on velocity, Mr Griffiths concluded that Mr Saliba “could not have received injury to his shoulder in this incident”.[31] He opined that more probable alternatives of shoulder injury include occupational activities, recreational activities, the 1996 car crash and the 2009 workers compensation incident.
[31] Insurer’s bundle, p 65.
We observe that these incidents were suggested by Mr Griffiths as causative despite an absence of allegation of right shoulder injury in those events and clinical records predating the motor accident showing an absence of right shoulder complaint.
Radiology
An ultrasound of the right shoulder dated 20 March 2020 showed a small partial articular surface tear of the subscapularis at its bony insertion.[32]
[32] Claimant’s bundle, p 102.
A left shoulder ultrasound dated 3 July 2020 reported a small joint effusion with the possibility of adhesive capsulitis.[33] A repeat left shoulder ultrasound dated
5 January 2021 showed no specific abnormality.[34][33] Claimant’s bundle, p 103.
[34] Claimant’s bundle, p 105.
A right shoulder injection was undertaken on 29 July 2020.[35]
[35] Claimant’s bundle, p 104.
A CT scan of the cervical spine dated 28 January 2021 showed multilevel degenerative changes, potentially significant foraminal stenosis and marked loss of disc height between C3 and C7.[36]
[36] Claimant’s bundle, p 108.
RE-EXAMINATION
The Panel determined that Mr Saliba be re-examined by Medical Assessor Moloney on 23 November 2022. The re-examination report is as follows:
“Mr Saliba attended the medical suite at PIC on 23 November 2022. He was unaccompanied and the interpreter, Mr Hafez Assoum NAATI no. XXXX was present during the examination and interview.
Pre-accident history
Mr Saliba stated that he migrated from Lebanon in 2007 and initially worked as a labourer. At the time of the accident, he was working full-time as an uber driver. He lives with his wife and 2 sons. There was a past history of a fracture to the right humerus in 1996 after a car accident which was treated with the plate and screws internally. In 2009, he injured his lower back at work and was off work for 8 years. At that time, he was assessed by Dr Mobbs, neurosurgeon who told him that no surgery was needed. There is also a past history of diabetes and hypercholesterolemia.
History of accident and subsequent treatment
Mr Saliba states that he was driving his car on 17 March 2020 when another vehicle collided with the right hand rear wheel of his car. He was wearing a seatbelt at the time, but airbags were not deployed. The ambulance or police did not attend the scene of the accident. Mr Saliba drove his car to the side of the road and exchanged details with the other driver. He was able to drive home.
He consulted his GP, Dr Kyrillos 2 days after the accident and had pain in the right shoulder region and neck. His GP referred him to Dr Harper, an orthopaedic surgeon who told Mr Saliba that surgery wasn’t needed, and physiotherapy was organised and later on a cortisone injection to the right shoulder joint. Mr Saliba states that his left shoulder became painful a few weeks after the accident.
Apparently, Nerve conduction studies were organised in 2021 at Prince of Wales Hospital by his GP and he was told that there was nothing seriously wrong in the results.
There was a further motor vehicle accident when he was a driver and 2021 but he states that there was no injury caused in this accident.
Current symptoms
Mr Saliba states that he has constant pain in the right shoulder which is very tender over the anterior joint and this increases with any attempt to raise his right arm above shoulder height. There are occasional episodes of pins and needles and numbness in the 4th and 5th fingers and thumb of the right hand, and he wakes at night sometimes with this discomfort. There is also a constant pain in the left shoulder anteriorly which is not as severe as the right shoulder. The left arm is asymptomatic. There is a long-standing low back pain which has not altered since the accident. Currently, he has no pain in the neck region.
At present, he is able to walk and drive for 20 to 30 minutes before pain in the shoulders occurs. This restriction has prevented him from returning to work as an uber driver. He also states that he undertakes some light household duties.
Present treatment
At present, Mr Saliba takes approximately 4 Panadol osteo per day, Panadeine Forte between 2 to 6 per day depending on the pain, Epilim 200mg a day, Mobic 15 mg per day, Somac One-A-Day, Diabex and Effexor. No manual therapy is being undertaken at present although he did have physiotherapy for 5 sessions under Medicare this year. He does his own home gym program and consults a psychologist.
Clinical examination
Mr Saliba walked into the rooms with a normal gait and sat comfortably during the interview. His height was 176 cm in weight 82 kg. He states that he is right-handed
Cervical spine
On testing range of movement, flexion/extension was 80% of expected range, side bending was 70% of expected range and rotation 60% of expected range bilaterally with no asymmetry. On palpation, there was tenderness over the mid-cervical spines and trapezius muscles more so on the right side. No guarding or spasm noted in the cervical musculature.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power. There was a slight decrease in sensation over the right 4th and 5th fingers compared to the left. There was a surgical scar down the right upper arm due to the previous internal fixation of the humerus fracture. No muscle wasting was apparent with the circumferences of the upper arms 28 cm on the right and 27 cm on the left (10 cm above the olecranon process) and in the upper forearm 27.5 cm on the left and 27 cm on the right (5 cm below the olecranon process).
Shoulders
On inspection no muscle wasting was apparent and on palpation there was tenderness over the right acromioclavicular joint without crepitus. There was also tenderness over the right bicipital groove. On shoulder movement, there was minimal scapular involvement. Passive movement was resisted past 90 degrees of abduction. Impingement tests were equivocal. Active movements were measured using a goniometer and repeated 3 times. Mr Saliba stated that shoulder movement was limited due to pain over the anterior shoulder region, and he feels the shoulders have been deteriorating recently.
Shoulder Movements Active ROM Measured
RIGHTActive ROM Measured
LEFTFlexion 70°/60° 100°/90°/80° Extension 30° 40° Adduction 40° 40° Abduction 80°/60° 100°/90° Internal Rotation 70° 80° External Rotation 80° 80°
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[37] and Insurance Australia Ltd v Marsh.[38]
[37] [2021] NSWCA 287 at [40], [41] and [45].
[38] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[39] that radiculopathy can be present at any time to establish that the injury is not minor for the purposes of the MAI Act.
[39] [2021] NSWPICMP 227 at [84] – [104].
We adopt the reasoning in Lynch v AAI Ltd[40] that the claimant bears the onus of proof in establishing that any injury is not a minor injury for the purposes of the MAI Act. The conclusion on onus is consistent with the observations of Wright J in Briggs v IAG Ltd (No 2)[41] when the Court noted that a causal finding on whether an injury was non-minor could be open on the evidence when the expert opinion was that it was possible. His Honour observed:
“The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cl 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.” (emphasis added)
[40] [2022] NSWPICMP 6 at [44] – [62].
[41] [2022] NSWSC 372 at [73].
The Panel adopts the examination report of Medical Assessor Moloney and adds the following reasons.
Cervical spine injury
There is no evidence of traumatic changes in the cervical spine. The nature of the cervical spine injury is soft tissue injury possibly aggravating degenerative changes.
The motor accident did not cause or aggravate any pathology in the cervical spine capable of being classified as a non-minor injury. The motor accident did not cause an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
There are no recorded observations of two signs of radiculopathy as defined in cl 5.8 of the Guidelines. Dr Bodel observed non-verifiable signs of radiculopathy which does not satisfy any signs of radiculopathy.
Based on the examination findings of Medical Assessor Moloney, Mr Saliba did not have two objective signs of radiculopathy at the recent examination. We could not otherwise identify within the materials, two objective signs of radiculopathy in the cervical spine as defined by the Guidelines.
For these reasons we conclude that Mr Saliba has not satisfied, at any time, two clinical signs of radiculopathy from the cervical spine.
Right shoulder injury
Mr Saliba attended his general practitioner on 19 March 2020 who recorded complaints of right shoulder pain.
We accept that there were no prior right shoulder symptoms. This conclusion is based on Mr Saliba’s history and the absence of any reference to right shoulder pain in the clinical notes.
Mr Griffiths opined that the right shoulder injury was probably caused by other matters such as accidents in 1996 and 2009. This opinion is illogical given the complete absence of any record of prior symptoms and the claimant’s denials that there were any prior symptoms. The later event in 2009 involved a low back injury and involved speculation by Mr Griffiths that the right shoulder was injured when Mr Saliba’s complaints were then solely directed to low back symptoms.
Mr Griffiths is probably outside his expertise in offering an opinion of medical causation.
If the motor accident had caused, aggravated or extended the right subscapularis tear, then the injury is not a minor injury as defined in the MAI Act as it would involve a partial rupture of tendons or ligaments.
The weighing of whether the tear was aggravated by the motor accident involves both a medical and non-medical determination.
The absence of prior right shoulder symptoms is relevant but not determinative as these tears can be asymptomatic.
Given the nature of the motor accident, that is a collision at low speed, as Mr Griffiths identified (a matter probably within his expertise), the forces imposed on the shoulder were extremely minor.
We accept that Mr Saliba complained of right shoulder pain within a day after the motor accident and he attended his general practitioner after two days. The temporal connection suggests a high probability of a causal relationship between the onset of pain in the right shoulder and the motor accident. Mr Griffiths ignored the temporal connection and suggested the delay of three days in attending a doctor and the notion of financial compensation can explain the complaints. We do not accept that part of his opinion.
We accept that the motor accident caused the onset of pain in the right shoulder. The issue is whether the motor accident caused or aggravated the partial tear.
The tear shown on the scan was in the insertion of the subscapularis tendon into the bone. It is a partial tear that is not normally associated with trauma and more likely degenerative and associated with overuse or repetitive motion. This conclusion is consistent with the claimant’s age and underlying diabetes which makes a person more prone to degenerative changes in the shoulders.
Against that background, the clinical examination undertaken by Medical Assessor Moloney was relevant to whether the subscapularis tear was caused or aggravated by the motor accident.
Given the nature of the clinical complaints recorded by the general practitioner and the physiotherapist, the right shoulder symptoms did not emanate from the neck. In accordance with Medical Assessor Moloney’s findings, clinically the shoulder pain could not be localised to the position of the partial subscapularis tear.
The Panel is not satisfied that the partial tear of the subscapularis was caused or aggravated by the motor accident. We consider that the claimant’s age, the nature and extent of the partial tear, the clinical findings, underlying health conditions such as diabetes and low impact forces from the motor accident show that the tear was probably pre-existing and asymptomatic prior to the motor accident. The motor accident caused a soft tissue injury in the right shoulder but did not cause or contribute to the partial subscapularis tear.
Left shoulder injury
The left shoulder was not injured in the motor accident. The onset of pain in the left shoulder arose some months after the motor accident. There may have been some overcompensation over the months following the motor accident due to the right shoulder pain which then caused some left shoulder restriction.
However, there is no suggestion and no basis to conclude that there was any partial tear of the left shoulder due to the overcompensation. We observe that the claimant did not allege otherwise.
CONCLUSION
We are satisfied that the injuries sustained in the motor accident by Mr Saliba are minor injuries as defined by the MAI Act and the Guidelines. For these reasons we conclude that the certificate issued by Medical Assessor Truskett is confirmed.
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