Simon v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Simon v QBE Insurance (Australia) Limited [2022] NSWPICMP 216
CLAIMANT:	Andrew Simon
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL:	Member Susan McTegg Dr Mohammed Assem Dr Margaret Gibson
DATE OF DECISION:	16 May 2022
CATCHWORDS:	MOTOR ACCIDENTS- The claimant suffered injury in the motor accident; the claimant suffered soft tissue injury to the cervical spine, lumbar spine and both shoulders; pre-accident cervical pathology Held-  soft tissue injury to the lumbar spine and right shoulder resolved; soft tissue injury to the left shoulder; in cervical spine the Panel found positive nerve root tension signs but unable to demonstrate two of the criteria for upper cervical radiculopathy; clause 5.8 of the Motor Accident Guidelines; soft tissue injury to the cervical spine; minor injury finding confirmed.
DETERMINATIONS MADE:	The Review Panel revokes the certificate of Medical Assessor Herald dated 15 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 (resolved); · right shoulder – soft tissue injury (resolved); · left shoulder – soft tissue injury; and · cervical spine – soft tissue injury.

REASONS
BACKGROUND

On 14 November 2020 Mr Andrew Simon (the claimant) was driving his car when he stopped to allow a car ahead of him reverse into a parking spot. The insured driver was unaware the traffic had stopped and collided with the rear of Mr Simon’s car at speed (the accident).
Mr Simon asserts he sustained the following injuries in the accident:
(a)     injury to the cervical spine;
(b)     injury to the lumbar spine;
(c)     injury to the right shoulder; and
(e)     injury to the left shoulder.
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to make statutory payments to for or on behalf of Mr Simon under the Motor Accident Injuries Act 2017 (the MAI Act).
On 22 November 2020 Mr Simon lodged an Application for Personal Injury Benefits.[1]
[1] A1 p 49.
On 2 February 2021 the insurer issued a “Liability Notice- benefits after 26 weeks” in which the insurer determined the injury sustained by Mr Simon was minor and that his entitlement to medical and care related expenses would cease 26 weeks after the date of accident.[2]
[2] A1 p 39.
On 25 February 2021 Mr Simon sought an Internal Review of that decision and on 19 March 2021 the insurer issued their Internal Review - Certificate of Determination and Statement of Reasons[3]. This decision affirmed the insurer’s earlier decision that all the injuries suffered by Mr Simon in the accident fell within the definition of minor injury.
[3] A1 p 32.
The claimant filed an application with the Personal Injury Commission (the Commission) seeking a medical assessment to resolve the minor injury dispute between the parties.
Pursuant to Schedule 2, clause 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[4].
[4] Section 7.20 of the MAI Act.
The minor injury dispute was referred to Medical Assessor Jonathan Herald.
Medical Assessor Jonathan Herald issued a certificate dated 15 December 2021 in which he certified that the injury sustained by Mr Simon is a minor injury for the purposes of the MAI Act. As a result, Mr Simon has no entitlement to ongoing statutory payments or any entitlement to pursue a claim for damages arising out of the accident.
Mr Simon has sought a review of the certificate of Medical Assessor Herald.

REVIEW PROCEDURE

An application for review of the medical assessment of Assessor Herald was lodged on 12 January 2022 within 28 days of the date on which the certificate of Assessor Herald was made available to the parties.
On 28 February 2022, 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 Commission[5]. Accordingly, the President’s Delegate referred the matter to this Panel to assess.
[5] 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[6].
[6] 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.[7]
[7] 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 documents relied upon by the claimant were uploaded to the portal and marked A1. At the request of the Panel the clinical records of Metella Road Family Practice were uploaded to the portal and marked AD1. At the request of the Panel the insurer uploaded further documents to the portal which were marked AD2 and the clinical records of Metella Road Family Practice. The claimant also uploaded further documents to the portal which were marked AD3 and included photographs of the damaged vehicles and the clinical notes of Metella Medical Centre.
On 7 April 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:
“5.3   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.”
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:
“5.8   Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9    Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury.”

EVIDENCE BEFORE THE REVIEW PANEL

Certificate of Medical Assessor Herald

The dispute was referred to Medical Assessor Herald who assessed the claimant on 29 November 2021 and issued a certificate dated 15 December 2021.[8]
[8] AD2 p 93.
The injuries referred for assessment were as follows:
(a)    cervical spine – injury to neck;
(b)    C4 nerve root irritation;
(c)    lumbar spine – injury to lower back;
(d)    shoulder – injury to both shoulders; and
(e)    arm – injury to left arm, intermittent numbness and paraesthesia in the left upper arm.
Assessor Herald reported Mr Simon had a back injury in 2012 with a L4/5 disc prolapse affecting his right lower limb. He underwent rehab, a cortisone injection and after about seven months he made a full recovery.
Assessor Herald also reported a right shoulder injury in 2006 following by a cortisone injection and a full recovery. In November 2016 Mr Simon had muscle cramps following a spider bite. In 2017 Mr Simon had right shoulder pain again but it improved with conservative treatment. In November 2019 Mr Simon had neck pain with neurological symptoms affecting both upper limbs as well as pins and needles in both feet.
Mr Simon was uncertain whether the neck pain was caused by having his neck cracked in Thailand a month earlier or lifting and carrying heavy bricks.
Mr Simon was involved in the accident on 14 November 2020 and initially present with neck pain although by 8 December 2020 he had developed numbness and tingling to his left upper limb.
Assessor Herald reported following the accident Mr Simon saw his general practitioner (GP) in respect of back pain and stiffness. Over the following three weeks he developed neurological symptoms including headaches, radiating pain from the neck and neurological symptoms to the left upper limb.
As at the date of assessment Assessor Herald reported Mr Simon had “neck pain and stiffness with left upper limb weakness affecting predominantly the C6 innervated muscles”. He noted features of impingement syndrome of the left shoulder.
On examination Assessor Herald reports stiffness and tenderness of the cervical spine. He noted a positive Spurling’s test to the left upper limb and stated his neurological examination was consistent with radiculopathic symptoms to the left upper limb. Assessor Herald also reported “some altered sensation or numbness in the T1 distribution in the ulnar nerve region of little and ring fingers” and some generalised weakness of the left upper limb.
Assessor Herald reported the lumbar spine revealed no tenderness and a full range of motion with no discomfort. He reported a full range of motion of both shoulders although he reported the left shoulder had some positive impingement signs and pain with extremes of movement.
Assessor Herald found the following injuries were caused by the accident:
(a)    lumbar spine soft tissue injury;
(b)    bilateral shoulders soft tissue injury; and
(c)    cervical spine soft tissue injury with left upper limb radiculopathic symptoms.
Assessor Herald found that these injuries were considered minor injuries. He reported the left C3/4 foraminal stenosis due to an osteophyte and left C4 radiculopathy which he may have aggravated in the past was a pre-existing condition.

Clinical notes of Metella Road Family Practice

On 29 October 2015 Mr Simon consulted Dr Tezjan and thereafter Westmead Hospital with pain and stiffness in his joints with associated nausea and light-headedness believed to be caused by a spider bite.
On 30 September 2016 Mr Simon consulted Dr Nasr in respect of back pain. He was prescribed Naprosyn and Panadeine Forte.
On 28 March 2017 Mr Simon consulted Dr Zaman. He reported three weeks ago
[9] AD2 p 56.
Mr Simon was lifting himself up on a bar and after returning home found he could not lift his right shoulder.[9] Forward flexion was painful, and he said he felt his shoulder was getting caught. Mr Simon was unable to tell if chiropractic or physiotherapy treatment had provided any improvement.
Mr Simon had an ultrasound of the right shoulder on 30 March 2017 which disclosed
mild subacromial bursitis but an intact rotator cuff.[10]
[10] AD1 p 14.
On 28 June 2017 Mr Simon was reviewed by Dr Alam.[11] He reported Mr Simon was requesting a referral for an MRI of the right shoulder. He noted he had undergone a cortisone injection five weeks earlier and was attending physiotherapy twice a week and remedial massage once a week. Dr Alam noted the ultrasound of the shoulder showed mild subacromial bursitis and impingement.
[11] AD2 p 56.
On 29 June 2017 Mr Simon had an MRI of the right shoulder. The impression was of moderate supraspinatus tendinosis with a small intrasubstance footprint tear and evidence of subacromial/subdeltoid bursitis.[12]
[12] AD1 p 15.
Dr Zoud, oral and maxillofacial surgeon in a report dated 9 April 2019 stated Mr Simon “currently suffers with depression/anxiety and back/neck pain”.
On 11 November 2019 Mr Simon consulted Dr Mendis.[13] He reported:
[13] AD2 p 64.
“Pt has been having numbness of both hands and both feet for past 7 days
R) hand middle finger numbness
L) hand 4^th and 5^th finger numbness
Bilateral feet – pins and needs
Slight weakness in both hands
Pt is personal trainer cross fit
Pt has still been working
Pt moved bricks at home – to other side of house
100K in deadlifts
Pt was bending over a lot when lifting bricks
In Thailand – pt had his neck cracked (without consent) 1 month ago
Pt got new Tatoos in Thailand.” [sic]
Dr Mendis diagnosed cervical radiculopathy and referred Mr Simon for an x-ray of the cervical and thoracic spine.
Mr Simon had an x-ray of the cervical and thoracic spine on 11 November 2019.[14] The report concluded:
“Some exit foraminal narrowing is present perhaps greatest on the left at C3/4. Consider correlation with other forms of imaging if required.”
[14] AD2 p 25.
Mr Simon consulted Dr Gunatilake on 12 November 2019 following the x-ray.[15]
Dr Gunatilake reported:
“Shooting pain of the 3^rd digit of the left hand
Associated with numbness sensation of bilateral 3^rd and 4^th digits
Associated with tingling sensation of the hands
Present for past week
Nil bovious trigger to symtps – was moving bricks recently” [sic]
[15] AD1 p 59.
Dr Gunatilake felt the x-ray results were not consistent with the presenting symptoms. He advised Mr Simon to monitor his symptoms and trial Naprosyn. He printed an imaging request form for an MRI scan of the cervical spine. He suggested Mr Simon hold the form pending his progress.
The next relevant attendance was not until 19 November 2020 when Mr Simon consulted Dr Zaman who recorded:[16]
[16] AD2 p 66.
"Saturday - car rear ended; patient stationery – 50-60 km/hr
Air bag did not deploy
Wearing seat belt
Saw medical centre afterwards – nil specific concerns
Nil police or ambulance
Neck and back feels very tight now
Stabbing pain between shoulder blades
Tender to rotate
Pain w sleep due to movement”
On examination Dr Zaman reported:
“Generalised tenderness C/T/L spine midline and paraspinal
Trap muscles tender on palpation
Normal ROM C/T/L spine but tender/tightness on movement.”
Dr Zaman recommended rest, heat pack, warm showers, Celebrex and said may need physiotherapy.
In a Certificate of Capacity dated 22 November 2020 Dr Zaman provided a diagnosis of “generalised muscular neck and back pain”.[17]
[17] AD1 p 30.
In the claim form dated 22 November 2020 Mr Simon described his injuries as follows:
“I have pain from lower back all the way to my neck. Experiencing sharp ‘knife like’ pain in between shoulder blades which increase the longer I’m standing or even doing any minor activity e.g., holding my 22-month-old daughter. I have pain on both sides when I try to rotate e.g., grabbing seat belt. Pain in my upper back when I look up/down or side to side.”
On 24 November 2020 Dr Zaman recorded:
“Ongoing generalised back pain since last review. Using NSAID’s. Pain w movement, twisting.”
On examination he noted:
“Generalised midline and paraspinal tenderness.”[18]
[18] AD2 P 67.
On 26 November 2020 Dr Zaman reported Mr Simon was using Panadeine Forte for back pain and was to commence physiotherapy on Saturday.[19]
[19] AD2 p 67.
On 1 December 2020 Mr Simon commenced physiotherapy. The Allied Health Recovery Request (AHRR) refers to “Cervical spine pain + C6/7 nerve root irritation. Non-specific lumbar spine pain”.[20]
[20] AD2 p 141.
On 8 December 2020 Dr Zaman referred Mr Simon for an MRI of the cervical spine and an x-ray of the thoracic and lumbar spine. He recorded:
“Has seen PT 3 times
Has noted mild improvements, increased ROM but nil sig change
Ongoing generalised back and neck pain radiating into head
Still have normal C spine movements
Last week coughed when incorrectly swallowed food
After cough, sudden onset of pain radiating down inner aspect left arm and now persistent pins and needles hand fingers 4 and 5
Nil further redicular pain.
O/E
Bilat hands – slightly reduced pain sensation left ahdn ulnar nerve distribution
Normal and equal to soft sensation
Power UL 5/5 bilat” [sic][21]
[21] AD2 p 30.
Mr Simon underwent an x-ray of the thoracolumbar spine on 21 December 2020.[22] No abnormality was reported.
[22] A1 p 63.
On 22 December 2020 Dr Zaman noted hand paraesthesia ulnar nerve distribution. He recorded:
“Seeing PT. Back pain and stiffness has improved. Ongoing pain paraspinal muscles. Better ROM.”[23]
[23] AD2 p 31.
Mr Simon underwent an MRI of the cervical spine on 31 December 2020.[24] The report states:
“Severe left C3/4 foraminal stenosis due to a facet joint osteophyte with compression of the left C4 nerve root. No other level of neural compromise.”
[24] A1 p 62.

On 15 January 2021 Dr Zaman recorded:
“MRI done C spine
C4 nerve impingement L side w osteophyte
Pain across upper left side back
However, does not correlate w sensory Sx. on L arm.
Seeing PT weekly
Pt states happy w progress
Seeing ‘whiplash specialist’ next week as arranged by insurance
Increased ROM but not back to normal
Requiring regular analgesia still2012 0 L4/L5 minor disc bulge
Otherwise nil Hx. of back injury
…
Will obtain report from PT re restrictions and see whether can cont. regular occupation with restrictions in place.
Runs crossfit classes which are 1 hour each.” [sic][25]
[25] AD2 p 31.
In a Questionnaire regarding treatment and RTW, Dr Zaman reported current symptoms as “paraspinal lower cervical & thoracic spine pain & stiffness”. He described pre-existing conditions as “2012- L4/L5 minor disc bulge” and his diagnosis was “soft tissue injury/muscular strain”.
A certificate of capacity dated 25 February 2021 provides the following diagnosis:
“Whiplash Associated Disorder Grade II – neck and thoracic pain, nonspecific lumbar spine pain; C4 nerve irritation secondary to pre-existing foraminal stenosis.”

Dr Zaman report, 16 December 2020

In a report to QBE addressing Mr Simon’s presentation following the accident
Dr Zaman stated:[26]
“He initially was experiencing neck and back pain which seemed muscular in origin and was recommended to start physiotherapy.
Unfortunately, in early Dec 2020 he developed left arm pins and needles which made me suspicious of a nerve impingement in his neck. Considering his recent trauma in the accident it is worthwhile imaging his neck with an MRI to ensure there is no significant structural damage which is pinching a nerve.
I have also recommended X-rays of his thoracic and lumbar spine because his recovery has been slow with his physiotherapist.”

[26] AD1 p 28.

Dr Zaman report, 30 March 2021

Dr Zaman provided a report dated 30 March 2021 in which he stated Mr Simon presented on 19 November 2020 following the accident on 14 November 2020.[27]
[27] A1 p 57.
Mr Simon reported his car was rear ended at approximately 50 kmph whilst he was stationary. His car was pushed forward and hit the car in front. Whilst Dr Zaman reported he was wearing a seat belt and the airbag deployed, the clinical record of 19 November 2020 stated the airbag did not deploy. He stated Mr Simon consulted another medical practitioner initially and was given pain relief.
Dr Zaman reported ongoing generalised neck and back pain radiating into the back of the head. He states at that time there were no neurological symptoms, and he diagnosed a soft tissue injury of the muscles and tendons of the neck and back, a low-grade whiplash injury.
Dr Zaman stated Mr Simon presented on 8 December 2020 and reported in the preceding week while coughing he developed sudden pain radiating down the inner aspect of his left arm. The pain resolved but he had persistent symptoms of pins and needles in his left-hand 4^th and 5^th finger. As a result, Dr Zaman referred Mr Simon for an MRI scan.
Dr Zaman concluded:
“…. Andrew has suffered from whiplash injury (with neck complaints and musculoskeletal signs) and C4 nerve root irritation secondary to his pre-existing foraminal stenosis and osteophyte formation.”
Dr Zaman stated Mr Simon had not suffered a minor injury because he was displaying the symptoms of nerve root irritation on the background of pre-existing spinal disease.

Dr Zaman report, 14 April 2021

Further in a report dated 15 April 2021 Dr Zaman stated the initial hand symptoms after the accident would be considered neurological in origin, and likely a result of nerve irritation caused by the muscle spasm and inflammation associated with the whiplash injury.[28] He concluded:
“Therefore, in my opinion, his motor vehicle accident was the cause of his whiplash injury and the neurological symptoms in his hands. In addition. [sic] the accident aggravated the C4 nerve root compression secondary to pre-existing osteophyte formation which then resulted in symptoms in the upper arm.”

Report of Dr Jefferies of Active Recovery Clinic, 20 January 2021
[28] A1 p 59.

Mr Simon was assessed by Dr David Jefferies of the Active Recovery Clinic (ARC) on 20 January 2021 on referral from the insurer. Dr Jefferies made the following observations:
“There was no obvious deformity, bruising, skin change or muscle wasting.
Range of movement - Flexion: 45° with pain in base of neck and radiating down to the thoracic spine. Extension: 30° base of skull pain. Left Rotation: 50. Right Rotation: 60° no pain. Left lateral tilt: 45°. Right lateral tilt: 45° with pain in the left side of the neck. Quadrant test of the cervical spine reproduced radicular pain in the C4 dermatome on the left side.
Palpation - There was pain on palpation of the cervical spine both centrally at C4-C6 and over the left C4 nerve root.
Neurological exam - There was reduced sensation of the C4 dermatome with mild C5 reduced sensation. Otherwise, the upper limb tone, power and reflexes were normal and symmetrical.”
Dr Jefferies diagnosed:
1. “● whiplash associated disorder – Grade II: and
· C4 nerve irritation secondary to pre-existing foraminal stenosis.”[29]

Report of Dr Dan, 17 February 2021
[29] AD2 p 154.

Dr Luke Dan reviewed Mr Simon who was three weeks into the ARC program. He provided a report dated 17 February 2021 where he reported Mr Simon had made good progress with the benefits of physiotherapy and soft tissue muscle massage.[30] He noted Mr Simon was still suffering from pins and needles in his left hand, 5^th finger and 4^th finger. However, on neurological assessment he reported Mr Simon had equal full power in both his upper limbs proximally and distally and no focal power deficit at his left hand. His sensation was reportedly intact.
[30] AD2 p 161.

Report of Dr Dan, 17 March 2021

On 17 March 2021 Dr Dan reported Mr Simon had been suffering from low mood, although he noted he had returned to doing some gym-based instruction 2-3 hours a day 4 days a week.[31] He had a full pain-free range of motion of both shoulders. Right lateral flexion was still reduced by about 10% compared to the left due to what
[31] AD2 p 163.
Mr Simon described as stiffness in his neck.

Report of Dr Raymond Wallace, 14 April 2021

Dr Wallace, orthopaedic specialist reviewed Mr Simon at the ARC Whiplash Clinic on 14 April 2021.[32] He reported:
“At his cervical spine, he notes intermittent aching pain at the left lateral aspect of his neck radiating to the superior border of the left trapezius muscle as well as to the mid interscapular region of the thoracic spine. He describes the pain as an intermittent ache which is worse on lifting overhead, repetitive activity or on certain movements of his head and is relieved by lying down or rest.
He notes intermittent paraesthesia at the ring and little fingers of his left hand which has reduced over the last month.
He notes some ongoing weakness at his left arm and stiffness at his cervical spine.”
[32] AD2 P165.
On examination Dr Wallace reported:
“Examination of his cervical spine shows no swelling or deformity. He has a range of movement of flexion 30°, extension 20°, left rotation 40° and right rotation 60°, left lateral tilt 30° and right lateral tilt 30°. There is tenderness at the C5, C6 and C7 spinous processes as well as at the T6/7 spinous processes.
Neurological examination of his upper limbs shows equal and symmetrical reflex.
His power and light touch sensation are intact.”
Dr Wallace diagnosed a whiplash associated disorder grade II.

Jeffery Yuen, physiotherapist, report 5 February 2021

Mr Yuen reported Mr Simon had presented on 28 November 2020 reporting cervical and lumbar spine pain following the accident. He stated:
“Andrew reports left arm radicular symptoms which becomes aggravated with prolonged sitting, repetitive lifting and neck rotation activities but aside from this, his intensity of pain and frequency of symptoms have been gradually resolving.”

SUBMISSIONS

Claimant’s submissions[33]

[33] A1 p 1.

The claimant provided submissions dated 11 January 2022 aimed at the question to be determined by the Delegate of the President, that is, whether there was reasonable cause to suspect error in a material respect in the certificate of Assessor Herald.
The claimant submits Assessor Herald found two out of the five criteria required to meet the definition of radiculopathy set out in Part 5.8 of the Guidelines.
The claimant notes that Assessor Herald found stiffness of the cervical spine and tenderness over the mid cervical region. He observed a positive Spurling’s test to the left upper limb and his neurological examination was consistent predominantly with radiculopathic symptoms to the left upper limb.
Assessor Herald also found some altered sensation or numbness in the T1 distribution in the ulnar nerve region of the little and ring fingers. Assessor Herald also reported
Mr Simon had some generalised weakness of his upper limb with generalised weakness of biceps flexion and triceps extension and also weakness of wrist extension and wrist flexion.
The claimant submitted Assessor Herald did not explain why he drew a distinction between radiculopathic symptoms and “definite radiculopathy”.
The claimant also submits that, having regard to the opinion of the physiotherapist there was also C6/7 nerve root irritation and that any radiculopathy need not be limited to the C4 level. The claimant notes the C6/7 dermatomal distribution is to the index finger and pinky finger, where Assessor Herald found altered sensation or numbness.
The claimant also provided submissions in support of the application to the Commission for assessment of the permanent impairment dispute.[34] The claimant submits that due to the evidence of nerve impingement and verifiable radiculopathy, he is suffering from a non-minor injury.
[34] AD1 p 16.

Insurer’s submissions

The insurer provided submissions dated 28 May 2021 in respect of the initial minor injury dispute.
The insurer notes Mr Simon was diagnosed with pre-accident cervical radiculopathy in 2019 which involved symptoms of numbness in both hands, particularly in the right-hand middle finger, and left-hand 4^th and 5^th finger. The insurer noted an x-ray of the cervical spine performed in November 2019 revealed foraminal narrowing at C3/4.
The insurer submits that the MRI performed just over one-month post-accident revealed severe foraminal stenosis due to facet joint osteophyte at C3/4, the same location as the claimant’s pre accident condition causing radicular symptoms.
The insurer submits the post-accident pathology does not demonstrate any significant change to the claimant’s pre-accident findings, he did not sustain any acute injury to the cervical spine in the accident and his symptoms are related to his pre-accident cervical radiculopathy.
The insurer submits the claimant, at most, sustained a minor soft tissue aggravation to the cervical spine in the accident which has now resolved.
In respect of the lumbar spine the insurer submits there is no evidence of two or more clinical signs of radiculopathy in the lumbar spine. Dr Zaman provided a diagnosis of “soft tissue injury/muscular strain” and the physiotherapist of “non-specific lumbar spine pain”. The insurer submits the claimant sustained, at most, minor soft tissue injury to the lumbar spine in the accident.
In relation to both shoulders the insurer notes neither the claimant’s GP nor physiotherapist provided any diagnosis in relation to either shoulder. Furthermore, the March 2021 ARC report records a pain-free range of motion in both shoulders.
The insurer submits the claimant did not sustain any acute injury to the shoulders in the accident and if he did, it was, at most, a soft tissue injury to the shoulders which has now resolved.
The insurer provided further submissions dated 8 February 2022, addressing the question to be determined by the Delegate of the President. The insurer submits it is possible to exhibit radicular symptoms in the absence of radiculopathy itself.

THE MEDICAL EXAMINATION

Mr Simon was examined by Medical Assessor Assem at his rooms at Parramatta on 11 May 2022.

History

Mr Simon confirmed that the history provided by Assessor Herald was correct. He clarified that his neck was cracked during a trip to Thailand in October 2019 and after lifting heavy pavers, he developed numbness in both hands and feet. He was reviewed by Dr Mendis on 11 November 2019 with numbness involving the right middle finger and left 4th and 5th digits. Plain x-rays of the cervical spine demonstrated foraminal narrowing maximal at the C3/4 level. He claims that his symptoms rapidly subsided.
At the time of the accident, he was driving a Holden commodore station wagon vehicle when he was rear ended by another vehicle. The force of the impact pushed his vehicle forwards causing a secondary collision with the vehicle in front. We viewed photographs of his damaged vehicle showing very minor damage to the front and rear. He reported that the tow bar took the impact resulting in damage to the chassis. We also viewed photographs of the offending vehicle showing moderate damage to the front. The police and ambulance did not attend the scene. He was able to drive the vehicle home. It was later repaired at an unknown cost.
He sustained a whiplash injury to the cervical spine. He experienced immediate burning pain involving the entire spine and sought medical attention from a medical centre at Blacktown before consulting his regular GP.
I brought to his attention that Dr Zaman documented new onset of paraesthesia in his left hand and arm on 8 December 2020. He stated that the symptoms were present after the accident and flared up after coughing.
He continues to experience constant neck discomfort and stiffness. His symptoms are worse with cervical rotation to the left. There is a shooting pain in his left arm and ‘pins and needles’ involving the left 3rd, 4th, and 5th digits. He also reported intermittent lower back discomfort but there was no radiation to his lower extremities.
He has been the owner/ operator of a cross-fit gym for the past 12 years. He is no longer able to demonstrate or participate in exercise classes. He lives with his wife and three of his four children in a property at Greystanes. He has difficulty doing the heavier household chores, gardening, or yard work. He has not been able to complete renovations to his house.

Examination

Dr Herald documented a positive Spurling’s test to his left upper limb. He stated that the examination procedure resulted in a flare up of his symptoms causing a shooting pain in his left arm. The Spurling test was not repeated because of a concern it may aggravate the claimant’s condition. The shoulder abduction test was positive with a burning pain over the anterior trapezius region and lateral aspect of his left shoulder consistent with the C4/5 dermatomal distribution.
There was reduced sensation over the left 3rd, 4th, and 5th digits (C7/8) that did not correspond with the pathology at the C3/4 level. He had global weakness involving the entire left upper extremity. His reflexes were brisk and symmetrical. The circumference of his left upper arm was only 0.5 cm less than the right. There was no measurable difference in the circumference of his forearms.
Cervical movements were moderately restricted on rotation and lateral flexion to the left to 2/3 normal range compared to normal range on the right. Cervical extension was ½ normal range compared to normal cervical flexion. Left shoulder movements were also restricted in forward flexion and abduction to 80 degrees due to pain arising from the cervical spine. Shoulder adduction, internal rotation and external rotation was normal. Left shoulder extension was slightly reduced to 40 degrees.
He had a normal range of lumbar movements without tenderness, pain, muscle guarding, spasm or asymmetry of motion. Neurological examination of his lower extremities was normal with normal power, tone, sensation and reflexes. There was no measurable difference to the circumference of his calves.

PANEL FINDINGS

The Panel finds the following injuries were caused by the accident:
·lumbar spine – soft tissue injury (resolved);
·right shoulder – soft tissue injury (resolved);
·left shoulder – soft tissue injury; and
·cervical spine – soft tissue injury.
Mr Simon has severe left C3/4 foraminal stenosis with positive root tension signs causing a reproduction of symptoms in the C4 dermatomal distribution. Although he has sensory symptoms involving the ulnar border of his hand, those symptoms did not correspond with the pathology identified on radiological imaging at the C3/4 level. There was no weakness, muscle atrophy or abnormalities of his upper limb reflexes.
Whilst Mr Simon had positive nerve root tension signs, he was unable to demonstrate on examination two of the criteria for upper cervical radiculopathy corresponding to a specific nerve root distribution as required by clause 5.8 of the Guidelines.
In accordance with clause 5.9 of the Guidelines the Panel finds Mr Simon has sustained a minor injury.

[2022] NSWPICMP 216

16 May 2022