Samhon v QBE Insurance (Australia) Limited
[2022] NSWPICMP 281
•8 July 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Samhon v QBE Insurance (Australia) Limited [2022] NSWPICMP 281 |
| CLAIMANT: | Sarah Samhon |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL: | Member Susan McTegg |
| DATE OF DECISION: | 8 July 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – Medical Review Panel; Motor Accident Injuries Act 2017; minor injury; cervical spine; lumbar spine; soft tissue injury; radiculopathy; the claimant suffered injury in the motor accident; soft tissue injury to the cervical spine and lumbar spine; Held- no evidence of radiculopathy and radiological imaging did not identify any nerve root impingement; clause 5.8 of the Motor Accident Guidelines; soft tissue injury to the cervical and lumbar spine; minor injury finding confirmed. |
| DETERMINATIONS MADE: | The Review Panel revokes the certificate of Medical Assessor Menogue dated 14 December 2021 and issues a new certificate determining that the following injuries caused by the motor accident are minor injuries: · Lumbar spine – soft tissue injury; and · Cervical spine – soft tissue injury. |
STATEMENT OF REASONS
INTRODUCTION
Ms Sarah Samhon (the claimant) was driving her vehicle on 24 April 2020 when it was T-boned on the passenger side by another vehicle causing her vehicle to rotate 180 º (the accident). The airbags on the left-hand side of the vehicle deployed.
In the Application for personal injury benefits[1] Ms Samhon stated she sustained the following injuries as a result of the accident:
(a) injury to the cervical spine;
(b) injury to the lumbar spine;
(c) injury to the head;
(d) injury to the chest;
(e) injury to the hip;
(f) injury to the right leg; and
(g) injury to the tailbone.
[1] AD1.
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Samhon under the Motor Accident Injuries Act 2017 (MAI Act).
Medical Assessor Nigel Menogue issued a certificate dated 14 December 2021 in which he certified that the injury sustained by Ms Samhon is a minor injury for the purposes of the MAI Act.
As a result, Ms Samhon has no entitlement to ongoing statutory payments or any entitlement to pursue a claim for damages arising out of the accident.
Ms Samhon has sought a review of the certificate of Medical Assessor Menogue.
BACKGROUND
Ms Samhon is 47 years of age and in receipt of a disability pension.
On 6 February 2019 Ms Samhon lodged an Application for Personal Injury Benefits.
On 15 August 2020 the insurer issued a Liability Notice – benefits after 26 weeks informing the claimant that her physical and psychological injuries were minor injuries and that her entitlement to treatment and care expenses would cease on 23 October 2020.
On 7 July 2020 the insurer issued a “Liability Notice- Claim for damages” in which it was determined that the insured driver owed the claimant a duty of care and breached that duty of care causing the claimant to suffer some injury, loss or damage. However, the insurer determined the injury sustained by the claimant was minor and therefore the claimant was not entitled to pursue a claim for damages.
On 14 September 2020 Ms Samhon sought an Internal Review of that decision. On 1 October 2020 the insurer issued their Internal Review - Certificate of Determination and Statement of Reasons. This decision affirmed the insurer’s earlier decision that all the injuries suffered by Ms Samhon in the accident fell within the definition of minor injury.
The claimant filed an application with the Dispute Resolution Service (DRS) seeking a medical assessment to resolve the minor injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[2].
ASSESSMENT UNDER REVIEW
[2] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Nigel Menogue who assessed
Ms Samhon and issued a certificate dated 14 December 2021.[3] The injuries referred for assessment were described as follows:· cervical spine – whether injury to the cervical spine – radiculopathy – caused by the motor accident is a minor injury for the purposes of the Act; and
· lumbar spine - whether injury to the lumbar spine – radiculopathy – caused by the motor accident is a minor injury for the purposes of the Act.
[3] AD2 6.
Assessor Menogue reported Ms Samhon experienced intermittent neck and back pain prior to the accident.
Assessor Menogue found there was evidence to support soft tissue injury to the neck and lumbar spine as a result of the accident. Assessor Menogue reported he obtained a history of discomfort involving the upper limbs spreading into the hands in a non-anatomic fashion and where the description of pain and sensory changes did not follow any anatomically derived dermatome. Similarly, he concluded the widespread and non-specific low back pain spread to the buttocks and both limbs in a non-anatomic fashion with varied sensory changes.
Assessor Menogue did not identify radiculopathy in either the cervical or lumbar spine.
Assessor Menogue also noted that the imaging performed of both the cervical and lumbar spine did not identify evidence of any nerve root impingement that might produce clinical signs consistent with verifiable radiculopathy.
However, he erred in concluding he was required to find clinical signs of verifiable radiculopathy in accordance with the June 2019 Permanent Impairment Guidelines in assessing minor injury where those Guidelines are not relevant to either the MAI Act or the assessment of minor injury.
Assessor Menogue found the following was a minor injury:
· cervical spine – soft tissue injury; and
· lumbar spine – soft tissue injury.
REVIEW PROCEDURE
An application for review of the medical assessment of Assessor Menogue was lodged on 11 August 2021 within 28 days of the date on which the certificate of
Assessor Assem was made available to the parties on 16 July 2021.On 21 September 2021, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
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 clause 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 new review provisions provide 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) [4]. Accordingly, the President’s delegate referred the matter to this Panel to assess.
[4] 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[5].
[5] 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.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, section 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued a Direction to the parties on 9 December 2021 (the first Direction) requiring each party to file an indexed, paginated documents of documents. In response to this Direction the solicitor for the claimant filed a bundle of documents (AD1) paginated from pages 1 to 55. The solicitor for the insurer filed a bundle of documents (AD2) paginated from pages 1 to 576.
On 12 May 2022 the solicitor for the insurer uploaded to the portal an Application to Admit Late Documents (AD3) seeking to rely upon the records of Myhealth Medical Centre, Liverpool and records of Fairfield Hospital. On 18 May 2022 the solicitor for the insurer uploaded to the portal an Application to Admit Late Documents (AD5) seeking to rely upon records of Liverpool Hospital. On 18 May 2022 the Panel noted those records were all treating records and in the interests of procedural fairness, the Panel invited the claimant on or before 1 June 2022 to indicate whether there was any objection to the Panel considering those records in making a determination and to provide further submissions, if required.
No response was received from the claimant. Indeed, on 23 June 2022 the claimant also filed an Application to Admit late Documents (AD7) seeking to rely on the same records from Liverpool Hospital.
These documents comprise treating records and they are relevant to the issue to be determined by the Panel. Furthermore, consideration of these records by the Panel reduces the likelihood of an application for further assessment on the basis treating records have become available which were not considered by the Panel. Admission of these documents is consistent with the objects of the PIC Act to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible. The Panel proposes to admit these records.
On 19 May 2022 the Panel agreed an examination was required.
MINOR INJURY- STATUTORY PROVISIONS
A minor injury is defined in section 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, clause 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to section 10.2 of the MAI 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 MAI Act. Version 8.2 of the Guidelines commenced on 8 April 2022 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:
“5.3The 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.
5.4Diagnostic imaging is not considered necessary to assess minor injury.
5.5A 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.
5.6The 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.”
Clause 5.7 of the Guidelines states that 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. Clauses 5.8 and 5.9 are in the following terms:
“5.8Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9Where 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.”
EVIDENCE BEFORE THE REVIEW PANEL
Treating medical evidence
Pre-accident treating records
On 19 January 2016 Ms Samhon presented at Liverpool Hospital in respect of bruising and swelling of the thighs as a result of exposure to a car bomb 10 days earlier in Iraq. She denied any fractures of nerve damage.
Ms Samhon first consulted Dr Yeasmin from Myhealth Medical Centre Liverpool on 22 February 2016. Dr Yeasmin reported Ms Samhon had sustained extensive bruising to both legs in a bomb blast injury when visiting family in Iraq in January 2016 resulting in ongoing pain in both lower legs. Dr Yeasmin referred Ms Samhon to the Pain Management Clinic at Liverpool Hospital with longstanding back pain.[7]
[7] AD5 p 168.
Ms Samhon sustained injury in an earlier motor vehicle accident on 23 June 2016 (the June 2016 accident). She attended Liverpool Hospital on 24 June 2016 complaining of severe neck, lower back and right knee pain.[8] There was ongoing left shoulder pain and paraesthesia involving her left side.
[8] AD2 p 276 and AD5 p 13.
A CT scan of the cervical spine on 25 June 2016 was reported to be normal. [9]
[9] AD5 p 128.
Ms Samhon commenced treatment with Dr Emil Guirguis on 29 June 2016. He diagnosed mechanical derangement of the cervical and lumbar spine.[10]
[10] AD2 p 158.
Ms Samhon underwent an MRI of the cervical spine on 13 July 2016.[11] The report concluded:
“No neural impingement. Minimal disc bulges in the upper cervical spine. No disc protrusion, canal or foraminal stenosis.”
[11] AD2 p 175.
According to the medical records at Liverpool Hospital, Ms Samhon was examined on 19 July 2016 and reported that she was unable to sit or stand for more than 5 to 10 minutes.
Ms Samhon underwent an MRI scan of the lumbar spine on 20 July 2016.[12] The report concluded:
“Lumbar discs define normally. No evidence of disc protrusion.
Conus and cauda equina define normally.”
[12] AD2 p 174.
Ms Samhon first consulted Dr Touma on 6 September 2016.[13] Dr Touma recorded
Ms Samhon’s involvement in the earlier accident and noted ongoing neck pain, mid back pain, headache, right shoulder pain and right lower back pain. He noted restricted range of movement of the neck and lower back and pain on palpation all over the spine. He referred Ms Samhon for physiotherapy treatment withMoustafa Moutassallem of Physio Interactive.[13] AD2 p 205.
On 31 December 2016 Ms Samhon T-boned another vehicle while travelling approximately 50 kmph (the December 2016 accident).[14] She sustained injuries to her head, neck, right clavicle, right shoulder and upper back. She complained of numbness in her hands and feet. A bone scan on 13 April 2017 was normal. When questioned
Ms Samhon had no recollection of this event.[14] AD5 p 125 and 195 – 202.
A CT scan of the spine and pelvis undergone at Liverpool Hospital was normal.[15]
[15] AD5 p 333.
A CT scan of the cervical spine undergone at Liverpool Hospital reported:
“1. C0-C1 fusion as previously described.
2. Intact odontoid process and C2.
3. No vertebral fracture. No facet joint subluxation or dislocation.
4. Normal alignment to the T3 level. No prevertebral soft tissue swelling.”
Ms Samhon consulted Dr Mark Sheridan, neurosurgeon on 18 January 2017 in respect of persisting neck pain and pain and paraesthesia in the arms. He stated there was no need for surgery and suggested seeing a pain management specialist for injections or similar treatment.[16]
[16] AD2 p 240.
On 2 February 2017 Dr Yeasmin reported “ongoing complex pain issues” and on 3 October 2017 Dr Yeasmin reported “Left shoulder pain with radiation to left arm”. She noted abduction was limited.
Ms Samhon consulted Dr Magdy Girgis on 17 February 2017 when she recorded ongoing neck pain, mid back pain, headache, right shoulder pain and right lower back pain.
Ms Samhon underwent a nuclear medicine bone whole body and SPECT/CT on 13 April 2017. The study was unremarkable and failed to demonstrate any abnormality.[17]
[17] AD5 p 113.
On 15 August 2017 Dr Rosa Hou, pain medicine specialist at Liverpool Hospital indicated her impression was of ‘“whole body pain” in the context of two recent accidents, post-traumatic stress disorder, anxiety and social stressors’.[18]
[18] AD2 p 237.
On 2 June 2018 Dr Hou reported that an MRI scan of the lumbar spine of 2016 showed mild bilateral facet arthrosis at C7/T1.
On 13 December 2018 Ms Samhon attended Fairfield Hospital after accidentally accelerating and hitting a wall whilst reversing a car from her garage at home. She reported generalised pain all over the body including the chest, mid back, hip and lower legs. It was reported there was no neck pain.[19]
[19] AD3 P 118 & 120 & 196.
The progress notes of her treating physiotherapist dated 2 February 2019 note, ‘symptoms continue to get worse despite attending for various forms of physiotherapy and pain management therapy over the years. Specifically, symptoms that were troubling her included swelling in her lower back and lower legs, numbness in the bilateral hands that is constant, sensation of heaviness in her right hands and in her right leg, an inability to step on her right heel because of pain on the heel on the right-hand side, in the sole of her foot and other electric shock sensation that affects her whole right side of her body. She intermittently experiences a heaviness and pain associated with the left side of the lower limb, however the right is more troubling.[20]
[20] AD5 p 381.
On 8 March 2019 Dr Yeasmin reported Ms Samhon had ongoing physical pain and was finding it difficult to walk for a long time.
On 9 April 2019, she continued to report a worsening of her symptoms as a result of two previous motor vehicle accidents. She was prescribed Gabapentin and Palexia.
On 27 March 2020, four weeks before the accident, Dr Yeasmin diagnosed right sciatica and recorded the following:
“Worsening LBP for 304/7 on b/g chronic pain
Radiating to rt lower leg
Pins and needles as well
No weakness or numbness in LL.
O/E
Midline tenderness at L5-S1
All ROM limited due to pain
Normal LL power
No foot drop
SLR test was not done as Pt is in distress++.”[21]
[21] AD3 p 99.
Post-accident treating records
Ms Samhon attended Liverpool Hospital the day after the accident on 25 April 2020 with neck pain and headache. A CT scan of the head and cervical spine was normal, and she was discharged home on regular analgesia, with a script for Endone for five days.[22]
[22] AD5 p 429.
On 1 May 2020 Dr Hou reported the claimant’s involvement in the accident and noted she had presented to Liverpool Hospital with headache, neck and lower back pain.
Ms Samhon consulted Dr Girgis on 13 May 2020 and again on 15 May 2020. On 13 May 2020 she recorded:
“Driver in MVA on 24/4/2020
car hit from passenger side - big impact went to Liverpool hospital
c/o.
R temple pain --headache.
Neck pain --tingling sensation R hand finger.
mid + Lower back pain.
ateirior mid/lower sternal and R rib pain.
R hip /thigh pain.
pain radiate back of R leg.
menorrhagia since 2nd day of the accident.
anxiety--insomnia --fear to drive. [sic]”
On 22 May 2020 Ms Samhon consulted Dr Yeasmin. She reported Ms Samhon had worsening physical pain since her involvement in the accident.
On 26 May 2020 Dr Girgis reported headache, neck pain, mid and lower back pain, sternal and right rib pain, right hip, heel, knee and thigh pain and pain radiating to the back of the right leg.[23] Ms Samhon was experiencing anxiety, insomnia and fear of driving. She was depressed and not sleeping.
[23] AD2 p 72.
On 12 June 2020 Dr Girgis reported pain radiating to the right leg was like electricity and on 22 June 2020 Dr Girgis reported a tingling sensation in both hands.[24] On 21 August 2020 Dr Girgis reported Ms Samhon had experienced severe back pain and been taking up to six to eight Panadeine Forte per day.
[24] AD2 p 97.
Ms Samhon had a CT scan of the cervical spine on 24 August 2020 which reportedly showed no evidence of focal disc herniation or foraminal stenosis or nerve compression. A CT scan of the lumbar spine disclosed mild broad-based disc bulges without nerve compression at L4/5 And L5/S1 levels.
An MRI of the lumbar spine dated 13 November 2020 found ‘No definite lumbar spine pathology to account for the clinical findings’.[25]
[25] AD5 p 478.
On 2 November 2020 Dr Hou stated the claimant was still in a lot of pain since the accident and described lumbar radiculopathy, “numbness” of the right leg and toes. She concluded Ms Samhon had worsening headache, neck and lower back pain.[26]
[26] AD5 p 70.
On 20 June 2021 Ms Samhon was conveyed by ambulance to Fairfield Hospital after experiencing pain, palpitations and generalised body numbness. She reported she had sustained lower back pain since the accident radiating to the back of both legs.[27]
[27] AD3 p 175.
On 13 November 2020 the claimant underwent an MRI of the lumbar spine at Liverpool Hospital.[28] The report states:
[28] AD5 P 480.
“Clinical History:
Motor vehicle accident in April 2020. There is persistent lumbar pain and new onset of lumbar radiculopathy. ? disc protrusion or canal stenosis.
Findings:
Lumbar spine alignment in the sagittal plane appears normal. There is no vertebral body subluxation.
The vertebral body heights are preserved with no compression fractures.
The intervertebral disc heights are preserved.
A high T1 and T2 signal lesion in the T11 vertebral body is consistent with a haemangioma.
Mild degenerative facet joint change at L3-L4 and L4-L5 results in mild encroachment on the lateral recesses, but there is no nerve compression demonstrated.
Elsewhere the spinal canal and exit foraminae are adequate.
There is a left adnexal cyst – query ovarian in origin. There appears to be fluid in the uterine lumen. These latter findings may be correlated with a pelvic ultrasound.
Conclusion:
No definite lumbar spine pathology to account for the clinical findings.”
Clinical notes of Royale Medical Centre as of 21 September 2021 show Ms Samhon has continued to consult Dr Girgis with complaints of neck pain and reduced range of motion, tingling/numbness of the right 4th and 5th fingers, headache, back pain, and stiffness with reduced range of motion and pain radiating down the back of the right leg to the foot.[29]
Medico-legal reports/Medical Assessment Certificates
Dr Drew Dixon
[29] AD2 p 537.
Dr Dixon provided a report dated 14 August 2017 after assessing Ms Samhon in respect of her claim for damages arising out of the June 2016 accident.[30]
[30] AD2 p 182.
Dr Dixon diagnosed neck and back strain injuries together with a seat belt injury to her right shoulder and left shoulder brachalgia with trapezial muscle pain from the neck strain injury.
Dr Chris Harrington
Dr Harrington provided a report dated 31 October 2017 after assessing Ms Samhon in respect of the June 2016 accident.[31] He reported complaints of neck pain, occipital headache and intermittent numbness in both hands.
[31] AD2 p 191.
Dr Harrington reported MRI scans of both the cervical and lumbar spine were normal for her age. Dr Harrington diagnosed a soft tissue injury to the cervical spine and a minor soft tissue injury to the lumbar spine. He assessed DRE Lumbar Category I or 0% WPI for the lumbar spine and DRE Cervical Category II or 5% WPI for the cervical spine noting the asymmetric loss of movement.
Medical Assessor Ashwell
Medical Assessor Ashwell assessed Ms Samhon in respect of the June 2016 accident and provided a Certificate dated 22 February 2018.[32]
[32] AD2 p 489.
Assessor Ashwell concluded Ms Samhon had sustained soft tissue injury to the cervical and lumbar spine and referred pain from the cervical spine to both the right and left shoulder. He assessed 5% WPI for the cervical spine, 4% WPI for the right shoulder and 4% WPI for the left shoulder resulting in a total WPI of 13%.
Dr Antoun and Dr Perla
On 5 June 2020 Dr Tony Antoun and Dr S Perla of Medical Assist Network prepared a report following a discussion with Dr Girgis[33]. Even though Dr Girgis stated
Ms Samhon presented with ongoing neck and back pain, and she was concerned she had radiculopathy Drs Antoun and Perla concluded Ms Samhom had sustained soft tissue injures involving neck, back, chest and right knee that should have resolved. They concluded there were no true clinical radicular signs described only self-reported symptoms and MRI scans were not reasonable and necessary.[33] AD2 p 73.
Drs Antoun and Perla confirmed their earlier opinion in reports dated 30 June 2020 and 21 July 2021 following a review of medical records and discussion with Dr Girgis.[34]
Dr Girgis reportedly described Ms Samhon’s symptoms “as self-reported with no specific dermatomal signs just vague complaints”.
Dr Tony Antoun
[34] AD2 p 75 and 77.
Ms Samhon was reviewed in person by Dr Tony Antoun on 6 August 2020. He provided a report dated 8 August 2020.[35] He reported complaints affecting the whole right side of Ms Samhon’s body including the cervical spine, the right upper extremity including total arm numbness to the hand and all fingers, lower back pain, right hip pain, buttock pain and total numbness in the right leg and all ties. Dr Antoun also reported Ms Samhon had difficulty walking with the right leg pain and could only sit and stand for up to five minutes before needing to move.
[35] AD2 p 80.
Dr Antoun concluded Ms Samhon had sustained soft tissue injuries with no clinically verifiable radicular signs. He found Ms Samhon had sustained cervical spine musculoligamentous strain, soft tissue injury to the right shoulder, lumbosacral musculoligamentous strain and soft tissue injury to the right hip. He found Ms Samhon was deconditioned due to her long-standing chronic pain.
Dr Mastroianni
Ms Samhon saw Dr Mastroianni, occupational physician at the request of her lawyers on 4 November 2020.[36] He reported complaints of pain from the back of the head to the sacrum, pain and numbness in the right arm radiating to the hand affecting the 3rd, 4th and 5th fingers and a tendency to drop things. He also reported complaints of pain and numbness in the right leg affecting the outer aspect of the leg and foot.
[36] AD1 p 4.
On examination Dr Mastroianni observed a stooped posture and difficulty standing upright because of lower back pain. He noted muscle guarding in the lumbar spine and tenderness in the cervical spine and lower lumbar segments. He noted neck and back movements were restricted and whilst the shoulders were not tender, he found they were restricted secondary to neck pain.
Dr Mastroianni found no wasting of the arms; reflexes were normal and symmetrical and there was no motor deficit.
He recorded decreased sensation to light touch and sharp stimuli in the medial forearm and the fourth and fifth digit in the distribution of the C8 nerve root.
Dr Mastroianni reported decreased muscle tone in the lower limbs. Knee and hamstring jerks were normal and symmetrical. He found the right ankle jerk was sluggish compared to the left and he found decreased sensation on the outer aspect of the lower leg and foot in the L5-S1 dermatome.
He reported power in the limbs was normal. Whilst the straight leg raise was not diagnostic whilst supine he noted whilst sitting a straight leg raise equivalent of 80° was possible with negative nerve root tension signs and negative slump test.
Dr Mastroianni expressed the following opinion as to diagnosis and minor injury:
“She has muscle guarding in the lumbar spine, tenderness in the cervical and lumbar spine and radicular symptoms in the right arm and right leg.
Although she has radiculopathy in the right arm, she does not satisfy the definition of radiculopathy as per the MAA Guidelines as she only has one sign, abnormal sensation in a nerve root distribution. Loss of sensation localised to a spinal nerve root (C8-T1).
In the lumbar spine she has abnormal sensation in the L5-S1 distribution and asymmetry of reflexes. She satisfies the definition of radiculopathy as per the MAA Guidelines, page 33, section 1.138.
The claimant therefore has radiculopathy and in accordance with Section 1.6 and clause 4 of the Motor Accident Injuries Regulation 2017 she does not have a soft tissue injury.”
SUBMISSIONS
Claimant’s submissions[37]
[37] AD1 p 2.
The claimant provided submissions dated 31 December 2021 addressing the error made by Assessor Menogue in applying the 2018 Guidelines for the assessment of permanent impairment when undertaking an assessment as to minor injury under the MAI Act.
The claimant submits the Medical Assessor was required to ask himself whether the accident has caused a minor injury, and not whether there are clinical signs of that injury on assessment.
Insurer’s submissions
The insurer provided submissions dated 28 February 2022.[38] The insurer concedes Assessor Menogue referred to the Permanent Impairment Guidelines when conducting his minor injury assessment but disputes those references amount to a material error.
[38] AD2 p1.
The insurer submits that the Guidelines, with respect to radiculopathy, do call for a review of the historical material and an assessment of the claimant’s clinical signs at the time of the assessment. The insurer notes clause 5.7 of the Guidelines states as follows:
“5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential”.
The insurer submits the Guidelines requires symptoms of radiculopathy to be present at the time of the clinical assessment. If they are not present at the time of an assessment, the radiculopathy cannot be verified and therefore, cannot be diagnosed.
The insurer notes that during his assessment of the lumbar spine Assessor Menogue “found no evidence of non-uniform loss of motion, while neurological examination of the lower limbs did not identify evidence of asymmetrical power loss, muscle wasting or sensory disturbances that followed an anatomically derived dermatome”. On this basis the insurer submits symptoms of radiculopathy were not “present” during
Assessor Menogue’s assessment as required by clause 5.8 of the Guidelines.
THE MEDICAL EXAMINATION
Ms Samhon was examined by Medical Assessor Assem on 29 June 2022. Ms Samhon attended the appointment alone. Ms Abida Chahal, official Arabic speaking interpreter, NAATI number CPN78AU32Y was on the phone for assistance.
Ms Samhon is 47 years old and is originally from Iraq immigrating in 2010. She is right hand dominant and is studying a certificate 3 in pathology hoping to qualify as a pathology technician. She reported pain throughout her entire body and wants to distract herself from pain. She has difficulty sleeping at night.
Photographs of the damaged vehicle were viewed in her presence. She states that the force of the impact pushed her to the right. She presented with pain on the right side of her body. The air bag was deployed. An ambulance attended the scene, but she was frightened to travel to hospital due to the COVID-19 pandemic.
After the accident, Ms Samhon presented to Liverpool Hospital the following day and on 1 May 2020, one week after the accident she was reviewed by Dr Hou complaining of an exacerbation of injuries to her neck, lower back and coccyx.
She takes Panadol Osteo, Endone and Tramadol. She states that she has been relying on a walking stick for support as she experiences severe pain, has difficulty negotiating steps and sometimes feels ‘frozen’. The tingling in her feet started six weeks after the accident. I brought to her attention that she was reporting numbness before the accident. She states that she feels that her body no longer belongs to her. She states for one month after the accident she didn’t have any symptoms then she developed severe widespread pain. She took two tablets of Endone before this appointment.
Clinical Examination
General presentation
On examination she ambulated with a slow cautious gait and a slight variable limp relying on a four-pronged Canadian crutch for support with her right arm. She demonstrated pain behaviour in the form of grimacing vocalisation. There was widespread tenderness on light superficial palpation.
She was wearing an elastic left wrist support, a soft lumbar corset and a TED stocking to the middle of her right calf. She had a normal posture.
She was advised at the time of the examination not to engage in any manoeuvre beyond what she could tolerate or which she felt may cause harm or injury.
Cervical spine (cervicothoracic)
Examination of the cervical spine showed widespread tenderness and muscle guarding. Cervical movements were markedly restricted in all directions to less than one-quarter of normal range. Gentle tapping of her right supinator jerk reflex on top of my left index finger caused complaints of severe pain. Ms Samhon refused further testing of her upper limb reflexes. There was a patch reduction of sensation not corresponding to any specific dermatomal pattern and global weakness. She was only able to abduct both arms to 30 degrees complaining of pain in her neck and back. There was no measurable difference in the circumference of her upper arms or forearms.
MOVEMENTS RANGE EXHIBITED Flexion 1/4 Extension 1/4 Rotation to the right 1/4 Rotation to the left 1/4 Lateral bending to the right 1/4 Lateral bending to the left 1/4 Neural Tension Tests
TEST RIGHT LEFT Passive neck flexion Negative Negative Brachial plexus stretch Negative Negative
Lumbar spine (lumbosacral)
Ms Samhon reported tenderness on palpation. There was no muscle guarding or spasm. Lumbar movements were globally restricted to less than one-quarter of normal range in flexion, extension, lateral flexion and rotation.
Neurological examination of the lower limbs showed normal symmetrical knee jerk and ankle jerk reflexes. There was slight pitting oedema in her legs. The circumference of her left calf was 0.5 cm less than the right. She reported patchy sensory loss that did not conform with any specific dermatomal distribution. Strength was globally reduced. Neural tension signs were negative.
REFLEX LEFT RIGHT Knee Jerk Normal Normal Ankle Jerk Normal Normal
CONSISTENCY
Ms Samhon has chronic widespread pain and patchy sensory loss. There was no evidence of radiculopathy and radiological imaging did not identify any nerve root impingement.
CONCLUSION
The Panel finds Ms Samhon experienced pain in the cervical and lumbar spine prior to the accident but accepts she has sustained an aggravation of soft tissue injury to both the cervical and lumbar spine as a result of the accident.
However, the Panel found no evidence of loss or asymmetry of reflexes, no muscle wasting or decreased limb circumference, no positive sciatic nerve root tension signs, no evidence of muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Unlike Dr Mastroianni, Medical Assessor Assem did not find radiculopathy in the lumbar spine. The findings of Medical Assessor Assem are consistent with the findings on examination of Dr Antoun and Medical Assessor Menogue.
Where Ms Samhon does not meet the assessment criteria for radiculopathy her injury is assessed as a minor injury in accordance with clause 5.9 of the Guidelines.
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