Singh v AAI Limited t/as GIO
[2023] NSWPICMP 71
•3 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Singh v AAI Limited t/as GIO [2023] NSWPICMP 71 |
| CLAIMANT: | Manjila Singh |
INSURER: | AAI Limited t/as GIO |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Tai-Tak Wan |
| MEDICAL ASSESSOR: | Clive Kenna |
| DATE OF DECISION: | 3 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; medical dispute about minor injury and review of assessment under section 7.26; claimant injured in rear end collision in March 2021 with arms outstretched gripping the steering wheel; claimant had previous accident in 2016 injuring neck, left shoulder and back; claimant alleged injury in current accident to shoulder and neck; claimant assessed by Medical Assessor Wijetunga who found all accident-related injuries to be minor injuries withing meaning of section 1.6; claimant sought review on basis 2021 radiology revealed tears to left subscapularis insertion and inferior labrum not present in radiology after 2016 accident; Held – no re-examination necessary; claimant conceded neck injury minor; insurer conceded if tears found to be caused they were non-minor injuries; test of causation is whether accident could have caused the injury and did cause the injury; claimant had worked full time after 2016 accident until 2021 accident without left shoulder issues and no regular ongoing attendances for left shoulder symptoms; claimant reported immediate complaints of left shoulder pain and radiology within two months revealed the tear; Panel satisfied tears revealed in 2021 radiology were caused by the accident and that this was an injury that is not a minor injury; Certificate of Medical Assessor Wijetunga revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Assessor Wijetunga dated 23 March 2022. 2. Certifies that the claimant’s left shoulder injury (particularised as a subscapularis tear and tear to the inferior labarum) is not a minor injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Manjila Singh was involved in a motor vehicle accident on 17 March 2021. She was the driver of a car, stationary at traffic lights, when her car was rear ended by another vehicle.
On or about 24 March 2021, Ms Singh made a claim for statutory benefits against GIO, the third-party insurer of the vehicle that collided with her vehicle.
A medical dispute has arisen in that claim about whether the claimant’s only injuries are “minor injuries” within the statutory definition[1] and the claimant referred that dispute to the Personal Injury Commission (Commission).
[1] The insurer denied liability for ongoing statutory benefits in a letter dated 29 June 2021. An internal review was conducted by the insurer on 3 August 2021.
On 23 March 2022, Medical Assessor Wijetunga determined the claimant’s physical injuries sustained in the accident were minor injuries.
The claimant sought a review of that decision and on 20 June 2022, a delegate of the President of the Commission determined there was reasonable cause to suspect an error in the assessment. On 26 August 2022, the President convened this panel.
LEGISLATIVE FRAMEWORK
Jurisdiction
Ms Singh’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance for all motor vehicles registered in New South Wales and a scheme of statutory benefits (under part 3) and compensation by way of lump sum damages (under part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. For example, under ss 3.11(1) and 3.28(1) of the MAI Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “minor” injuries. In a damages claim, under s 4.4 of the MAI Act, an injured person cannot recover any damages at all if their only injuries are “minor” injuries.
Minor injury
A minor injury is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
If a person injured in a car accident has soft tissue injuries only, then unless one of those soft tissue injuries falls within the excluding cl of s 1.6(2), the injured person’s statutory benefits cease and no damages may be recovered in accordance with
ss 3.11, 3.28 and 4.4.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury.
While an injury to a nerve is not a minor injury under s 1.6(2) of the MAI Act, part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) states that “an injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy)” is deemed as not a “minor” injury.
Dispute resolution
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including cl 2(e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
Chapter 7, division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Wijetunga’s, further medical assessments and the review of medical assessments by this Panel.[2]
[2] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Wijetunga assessed the claimant on 16 March 2022 issuing her decision a week later.
The Medical Assessor was asked to assess a single injury, that is an injury to the left shoulder being a “subscapularis tear and tear to the inferior labarum”.
The claimant is a disability care worker. Medical Assessor Wijetunga had a history recorded at [7] of a motor accident in 2016 which resulted in neck pain going into both shoulders and pain in both trapezii but the claimant said she did not recall any discrete left shoulder pain at the time.
The claimant told the Medical Assessor at the time of the current accident she was driving her car and stopped at an intersection. The claimant says her arms were outstretched on the steering wheel and her neck was jolted forward on impact.
Ms Singh said her airbags were not deployed and police and ambulance did not attend, and she drove herself home.
The claimant reported to Medical Assessor Wijetunga that she had neck and back pain immediately after the accident and she went to her general practitioner (GP) and had an MRI of her neck. Ms Singh reported shoulder pain radiating from her neck into the trapezius and said that this pain has now subsided, but that she has pain in the back area of the scapular.
This pain between the scapulars continues but is intermittent and is worsened with lifting and movement of her left arm.
Medical Assessor Wijetunga says, at [10], “Ms Singh describes pain in the inferior medial aspect of the scapular”. The Panel notes that the medial aspect of the scapular is the lower and sternum “end’ of the collar bone.
The examination in [12] revealed the following:
(a) no muscle atrophy with equal upper arm circumference suggesting no disuse of the left shoulder;
(b) no tenderness over the acromioclavicular joint, bicipital groove or greater tuberosity (where the rotator cuff inserts) and no tenderness over the deltoid;
(c) no tenderness over the subscapular region but there was tenderness over the inferior medial border of the scapular;
(d) impingement testing was negative;
(e) right shoulder movements triggered pain on the right side of the claimant’s neck;
(f) left shoulder movements triggered pain in the scapular region, and
(g) there was restriction in flexion and abduction but normal movements in the other planes of shoulder movement.
The claimant said that when she was examined by Dr Chen in May 2021 she had taken pain relief which was why she demonstrated full movement in her shoulders at that time. Medical Assessor Wijetunga put to the claimant that she was observed lifting her left shoulder when removing her jumper demonstrating a greater range of motion
(to 160 – 170 degrees) than on formal examination (150 degrees). The claimant says the pain worsens with repeated movement.
Medical Assessor Wijetunga reviewed the documentation including Dr Noorjahan’s notes.
Medical Assessor Wijetunga says that the claimant had a pre-accident left shoulder injury and pain mainly in the trapezius area. There were no specific findings on ultrasound and no tear identified in radiology from 2016.
Medical Assessor Wijetunga confirms there was no left shoulder pain documented in the GP records in 2018 or afterwards and that the claimant had continued to work in the disability sector which required heavy lifting. She said this confirms the claimant’s history that any left shoulder injury had resolved. The Panel notes there was one further entry on 23 April 2019 referring to left scapular pain but certainly no ongoing complaints of left shoulder pain from 2008 to the time of the accident.
The Medical Assessor noted the accident, and that the initial complaints were of neck and left sided thoracic pain and pain indicating a discrete left shoulder injury had occurred.
There appears to be other pain identified by Medical Assessor Wijetunga in the elevator scapulae which she says are part of the anatomy of the neck and not the shoulder joint. As there were no pre-accident complaints in this area, Medical Assessor Wijetunga diagnosed this as the area of the injury causing symptoms.
Medical Assessor Wijetunga says the pain described by the claimant was “very specific” to the area of the rhomboid muscles which join the scapular to the spine and which is not part of the left shoulder joint.
The Medical Assessor said that “clinical examination did not demonstrate any signs [or] symptoms reflecting a discrete shoulder injury”.
She said:
“The findings on ultrasound of the shoulder, do not correlate with the clinical examination, as there were no findings of pain near the subscapularis insertion or inferior labrum and there were no findings of tenderness along the deltoid muscle.”
Medical Assessor Wijetunga diagnosed a muscular injury of the elevators of the scapular and found that there was no evidence of tear or rupture of tendons, ligaments, menisci or cartilage in this particular area which would correlate to her clinical examination.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant acknowledges at [2.2] that she was involved in a previous motor accident on 11 April 2016 injuring her neck, head, left shoulder, middle back, lower back, left leg and shock but says she recovered from these and the claim was settled in 2017.
The claimant says at [2.3] she sustained a further left shoulder injury in the current car accident resulting in a tear to her subscapularis insertion and inferior labrum which is a non-minor injury.
In the alternative the claimant says at [2.4] if the tear was present before the accident and degenerative in nature, the accident “would have caused an aggravation” presumably a further tear which was also not a minor injury.
The claimant says at [3.1] - [3.9] that the Medical Assessor has failed to discharge her duty because she did not determine whether the tears visible on the MRI were caused by the accident or not but simply determined that the MRI findings did not correlate with the clinical examination.
The claimant says at [4.1] – [4.6] that the Medical Assessor did not engage with the claimant’s original submissions including the mechanism of injury and that the tears visible on MRI were caused by the accident. The claimant says at [4.7] and [4.8] that the insurer has engaged with the insurer’s submission that the tear was an incidental finding.
The claimant says at [5.1] – [5.6] that the central issue in dispute is whether “a tear to the left shoulder found on an MRI scan was caused by the motor accident”. The claimant says at [5.5] that the Medical Assessor says there was no tear but fails to explain the presence of the tears on the MRI.
Insurer’s submissions
The insurer says that on page 9 of her reasons, the Medical Assessor found the claimant’s area of pain was in the area of the elevator scapulae reflecting a muscular injury. She also said that her clinical examination of the claimant “did not demonstrate any signs or symptoms reflecting a discrete shoulder injury”. The insurer said the Medical Assessor did consider whether the tears on ultrasound were caused by the accident by virtue of these findings.
The insurer’s submissions in support of the original application refer to the claimant’s history of previous left clavicle fracture and recurrent pains in the left shoulder. The insurer noted there was no confirmation of causation from the claimant’s orthopaedic surgeon. The insurer says there is no evidence of any traumatic left shoulder injury.
Procedural matters
While the claimant included injuries to her neck and back in the claim form, these injuries were not referred for medical assessment. Similarly, the claimant has not referred any injury to her right shoulder for assessment. The Panel advised the parties it was proceeding on the basis that the only injury in issue is the claimant’s left shoulder.
The Panel also noted that the only issue between the parties was whether the claimant’s “subscapularis tear and tear to the inferior labarum” revealed on an MRI after the accident is an injury caused by the accident.
The Panel asked the claimant to consider whether she accepts the history obtained by, and the clinical findings of, Medical Assessor Wijetunga in sections [7] – [12] of her assessment.
The Panel asked the insurer to consider whether it agreed that, regardless of any issue of causation, the tears revealed on the MRI would be a non-minor injury.
The Panel requested any readily available medico-legal evidence in respect of the 2016 accident.
The Panel advised that it did not propose to re-examine the claimant as the issues in dispute were limited, there is significant documentation available and there are detailed examination findings recorded in Medical Assessor Wijetunga’s decision.
The Panel invited final submissions from both parties.
Insurer’s further submissions[3]
[3] Submissions are dated 27 October 2022 and are document AD4 in the Commission’s file.
The insurer provided a copy of the third-party insurer’s claim file arising out of the 2016 car accident.
The insurer agreed that a subscapularis tear or tear to the inferior labarum of the left shoulder, if caused by the accident, would be a non-minor injury.
The insurer agreed that if the claimant accepted the history and clinical findings recorded by the Medical Assessor that a re-examination was not required.
Claimant’s further submissions[4]
[4] Submissions are dated 30 December 2022 and are document AD8 in the Commission’s file.
The claimant refers to the medico-legal experts retained by both parties in respect of the claimant’s 2016 accident. The claimant says the 2016 ultrasound does not reveal there were any tears in the claimant’s shoulder and that at the time Dr Stephen examined the claimant in December 2016 the claimant had recovered from her injuries with a full range of motion. The claimant says the MRI scan of 17 March 2021 reveals a left shoulder tear and that as it was not present in December 2016, it must have been caused by the current accident.
The claimant says she “accepts the history recorded by Medical Assessor Wijetunga at sections 8, 9, 10, 11 and 12” although does not accept the history recorded at section 7. She says Medical Assessor Wijetunga recorded an incorrect history from the claimant who only had one previous motor accident, that is the one on 11 April 2016. She was an administrator in a boarding house in 2012 and before that she was a cleaner. The claimant conceded she had some left shoulder pain after the April 2016 motor accident but says that it had resolved by December 2016.
In a message relayed to the Panel through the portal on 20 January 2023, the claimant confirmed that she did not dispute the clinical findings of Medical Assessor Wijetunga but did not make any submissions about the re-examination.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The application for personal injury benefits (claim form)[5] lists injuries to the neck, lower back, both shoulders (left worse) and shock.
[5] Page 46 of the claimant’s bundle and dated 24 March 2021.
The form includes details of the 11 April 2016 accident and says, “I had prior MVA in 2016 but my injuries to neck [and] left shoulder [and] lower back recovered, and I was fully functional”.
Treating medical records and reports
The claimant’s pre-accident GP practice was the Priority Medical Centre (PMC) at Harris Park. Dr Noorjahan from that practice completed the certificate of fitness (medical certificate) attached to the claim form.
Dr Noorjahan’s records[6] commence in 2009 with an attendance for migraine, period pain, stress at work and depression.
[6] Page 56 of the claimant’s bundle.
On 2 December 2010 there is an entry relating to a car accident on the Saturday and presentation to Auburn Hospital’s emergency department where the claimant complained of neck pain and a diagnosis of whiplash was made. There do not appear to be any further entries relevant to this accident. The related discharge summary[7] notes left-sided headache, left side of neck and left shoulder pain.
[7] Page 168 of the claimant’s bundle.
There are other musculoskeletal attendances afterwards including 8 December 2011 (right arm pain and lower back pain), 7 April 2012 (right shoulder and radiating pain to the neck), 30 October 2012 (muscle sprains), 29 July 2013 (fall at work, injury to right hand and lower back), 12 January 2015 (right sacroiliac joint and back pain) and
27 April 2015 (fall at home and right lower back injury).
There are also a number of attendances for stress and anxiety associated with family and work issues and the claimant has been prescribed Cipramil (an antidepressant) for a number of years.
The claimant attended on Dr Seymour at the PMC on 11 April 2016, the day of her earlier accident. There was a likely whiplash injury diagnosis and potential rotator cuff injury flagged and the left shoulder had reduced flexion and abduction on examination. There is a reference to a chronic healed fracture of the left clavicle and continuing left shoulder and neck pain with pain in the back radiating to left hip and knee. The claimant attended physiotherapy at the PMC.
There are a number of attendances after the April accident however by
16 September 2016 “pain has decreased and is playing badminton (light games)”.
On 16 June 2017 there is an attendance with a note, “pain behind ear 1/52 … no fever no [discharge]. Still neck and back, shoulders pain”. On 24 March 2018 is a note “ongoing back pain”.
The claimant attended Dr Omar on 11 April 2018 with pain in the neck and upper back after the claimant’s husband “grabbed from the back of the neck dropped her on the floor sit on her abdomen”. The doctor records, “tender + left smm/left trapezius and left thoracic pvts muscles range of motion painful in the left side of side effects of the cervical spine”.
On 23 April 2019 is an entry with this note, “presented with pain left scapula medical aspect. Onset today sharp, present on left shoulder movements”. The diagnosis was likely musculoskeletal pain. The claimant was told to return if symptoms persisted but there were no further attendances.
The claimant attended Dr Noorjahan at PMC on the day of the accident with the notes reading, “pain in the neck and around shoulder” and the range of motion in both the neck and left shoulder was restricted and there was “pain on shoulder blade”. Ms Singh attended again on 23 March 2021 with neck pain “more at the left side” and she needed a medical certificate for work. On 24 March 2021 she saw Dr Noorjahan for the medical certificate to go with the claim form and physiotherapy was provided.
On 25 March 2021 the claimant started consulting with Dr Eric Lim from a practice called “The Workers Doctors” in Parramatta. Due to the pandemic, the consultation was undertaken by telehealth. In a report dated 25 March 2021 addressed to the insurer[8] Dr Lim diagnosed a cervical spine strain, bilateral shoulder strain, thoracic spine strain and acute stress disorder”. The claimant expressed concern about her ability to return to work, driving, lifting and carrying her clients. Dr Lim noted the recovery from the 2016 accident and listed the claimant’s symptoms as headaches, “neck pain and stiffness travelling down bilateral shoulders, bilateral arm pain” as well as upper back pain and psychological symptoms. Dr Lim’s advice was to moderate her activities, undertake pain management and take analgesics. He referred the claimant to a physiotherapist, psychologist, spinal surgeon and orthopaedic surgeon and certified the claimant unfit to work until 8 April 2021.
[8] Page 52 of the claimant’s bundle.
Dr Chen, orthopaedic surgeon provided a report dated 4 June 2021. He has a history of the car accident but no other previous issues and says, “initially she had neck pain but soon felt pain over her left shoulder”. He also records:
(a) pain is felt over the posterior side and more so over the scapula;
(b) pain is worse with movement and activity and there is no difference in pain with activities at waist level or overhead;
(c) the pain can radiate into the neck with occasional clicking;
(d) there was non-specific tenderness over her shoulder including the medial border of the scapula;
(e) there was no obvious wasting;
(f) glenohumeral joint was not irritable;
(g) range of motion was near full, and
(h) there was mild winging of the left scapula and dyskinetic movements.
His opinion was she had muscular pain and she required physiotherapy but was unlikely to require surgery. The referral to Dr Chen is dated 27 May and was accompanied by the MRI of 17 May 2021.
Radiology
A cervical and thoracic spine X-ray dated 11 April 2016[9] revealed mild disc and facet joint degeneration in the lower cervical spine but no acute bony injury in the cervical spine. A left shoulder X-ray of the same day showed no evidence of osteoarthritis but a possible chronic clavicular fracture. A left shoulder ultrasound found no tear or tendinosis of the rotator cuff but there was “thickening of the subacromial / subdeltoid bursa most likely representing post-traumatic bursitis with features of subacromial impingement but no tendon injury”.
[9] Page 173 of the claimant’s bundle.
An MRI dated 12 April 2021 of the cervical spine due to “neck pain and radicular symptoms following a MVA” revealed mild degenerative changes seen.
On 17 May 2021 the claimant had an MRI of her left shoulder with a history of “persistent pain and weakness post MVA”.[10] The conclusion was:
“subacromial bursitis. Supraspinatus and infraspinatus tendinosis without a tear. Small intrasubstance tear at the subscapularis insertion. Tear of the inferior labrum. Small focus of oedema along the deltoid muscle posteriorly suggestive of subacute strain.”
[10] Page 230 claimant’s bundle.
The Panel notes the imaging films were provided after the original application was lodged and they have been included in the documents before the Panel.
Other material
Both the insurer and the claimant have provided copies of various certificates of capacity and allied health requests (physiotherapy and psychology).
There are no medico-legal reports in relation to the current accident. Both parties have provided medico-legal reports from Ms Singh’s claim arising out of the 2016 accident.
Dr Panjratan provided a report to the claimant’s solicitors dated 24 October 2016 documenting left sided neck pain and pain that went to the shoulder and down the arm on moving her neck. The claimant denied previous similar complaints but did tell
Dr Panjratan about previous episodes of back pain which was aggravated by the accident but had now settled. Dr Panjratan diagnosed cervical spine dysfunction with left arm pain. He assessed a 5% upper extremity permanent impairment of shoulder function as a result of the injuries sustained in the 2016 accident.
On 15 November 2016, Ms Wendy Bevan undertook an assessment of the claimant’s domestic care and assistance needs. Her report dated 22 December 2016 refers to “debilitating symptoms from injury to her neck with radiating pain down her left arm and accompanying headache migraine and pain in the mid-back region”. Ms Bevan expressed the opinion that the claimant needed six hours of domestic assistance per week up until the time of the assessment and 11 hours per week thereafter due to her injuries and impairments.
Dr Stephen orthopaedic surgeon provided a report to the insurer dated
20 December 2016. He records current complaints of left-sided neck pain extending to the left shoulder and left outer arm. It is worse with activity and wakes Ms Singh up at night. He has a record that the claimant has not returned to playing badminton. The Panel notes this does not accord with the GP’s notes which suggest in
September 2016 the claimant had returned to badminton.
On examination by Dr Stephen the claimant had some limitation of cervical spine motion but a full range of shoulder motion and thoracolumbar flexion and extension.
Dr Stephen reviewed the radiology and noted the ultrasound suggested features of subacromial impingement but on examination there was no impingement.
His prognosis was for ongoing cervical spine symptoms into the indefinite future.
Medical Assessor Fukui determined on 3 October 2022 (following an examination on 20 July 2022) that the claimant did not have a post-traumatic stress disorder but did have an acute stress disorder which had resolved and was a minor injury.
Medical Assessor Fukui has a history of the 2016 accident and a neck injury which had recovered. There is a history of the 2018 incident, the use of antidepressants from 2000 until 2019 and other family issues.
The claimant reported that at the time of the assessment she had no psychological symptoms and that her anxiety had resolved, and her mood was stable.
FINDINGS
Should the Panel re-examine the claimant?
The claimant has accepted the examination findings of Medical Assessor Wijetunga and does not call for a re-examination. The insurer indicated that if the claimant’s accepted the examination findings that it agreed no re-examination was required.
The Panel has determined that no medical re-examination is necessary. The Medical Assessors on the Panel note that Medical Assessor Wijetunga documented her examination findings in detail, up to date medical records have been provided and the issues in dispute have been narrowed. The Panel is satisfied it can undertake an assessment that is fair to both parties on the basis of the information before it.
What is the test of causation of an injury?
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[11] Justice Walton set aside the decision of a Medical Review Panel and dealt with the definition of “minor injury” and a question of causation in respect of an amputated toe. It was found that the Review Panel had denied the claimant procedural fairness relying on articles not provided to the parties to enable them to make submissions in relation to those articles. At [40], his Honour said:
“The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
[11] [2021] NSWSC 804, Kinchela.
In Briggs v IAG t/as NRMA Insurance[12] Wright J framed the questions for a Panel to address as follows:
(a) “whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty” [73]. That is a medical decision that the accident could have caused Mr Briggs’ annular tear, and
(b) “whether the motor accident did cause or contribute to Mr Brigg’s condition” [75] that is a non-medical informed judgment.
[12] [2022] NSWSC 372.
Did the claimant sustain the tears evident on MRI images in the accident?
In her further submissions Ms Singh denies any other car accidents other than one in 2016 and the current accident. The GP records indicate there was an earlier accident in 2010, but the notes do not suggest this caused anything other than short-term neck and left shoulder complaints.
Ms Singh accepts she had some symptoms in her left shoulder but that these had resolved by the end of 2016. The medical members of the Panel are satisfied that the claimant sustained a soft tissue injury to the left shoulder in the April 2016 accident and this finding is based on an ultrasound which excluded a rotator cuff or labral tear.
The GP notes indicate there were three attendances recording complaints of left shoulder symptoms in July 2017, April 2018 and April 2019. This is not in the clinical judgment of the medical members of the Panel suggestive of a significant ongoing symptomatic injury such as a rotator cuff or labral tear either related to the April 2016 accident or some other incident.
The Panel notes that the claimant returned to relatively heavy work in the disability support sector after the April 2016 accident and that there is no evidence to suggest she was having any difficulty lifting or caring for patients before the current accident.
Ms Singh complained of left shoulder pain on the day of the motor accident when she attended her GP. This temporal connection suggests a high probability of a causal relationship between the onset of pain in the left shoulder and Ms Singh’s car accident. The Panel is therefore satisfied that the motor accident caused the onset of pain in
Ms Singh’s left shoulder.
Dr Chen saw the claimant three months after the accident and Medical Assessor Wijetunga examined the claimant 12 months after the accident and symptoms at that time appear to suggest a diagnosis of interscapular discomfort secondary to scapula winging causing shoulder pain and discomfort secondary to scapulothoracic dysfunction.
The issue before the Panel is not a matter of diagnosis or symptomatology but whether the motor accident caused the tear or aggravated a pre-existing tear by causing a further tear.
In the current car accident of 2021, there was an immediate complaint of pain around the left shoulder, with restricted range of motion and pain on the shoulder blade, directly over and related to the shoulder. Dr Shelly of PMC, did not refer the claimant for imaging at that time, however as symptoms continued, physiotherapy was recommended. Upon changing GPs and in light of continued symptoms a request was made for radiology two months after the date of the accident. The medical members of the Panel consider this a reasonable course of action to take.
The MRI images taken two months after the accident confirmed the presence of a labral and rotator cuff tear, not previously evident.
The Panel has considered the claimant’s report of the mechanics of the accident, arms outstretched, gripping the steering wheel and an impact from the rear while the right shoulder was secured by the seat belt. The medical members of the Panel are of the view that, on the balance of probabilities, this mechanism of accident could have caused either of the tears evident in the 2021 radiology.
While the claimant experienced an incident in April 2018 resulting in left shoulder symptoms and attended her GP on two other occasions (in 2017 and 2019) with left shoulder symptoms, she continued to work in the disability support sector between her two car accidents. The Panel considers it significant that there were no regular and ongoing attendances for treatment and no evidence of time off work in the intervening period. The Panel is therefore satisfied that the motor accident of 17 March 2021 did, on the balance of probabilities, cause or materially contribute to the tears now evident on MRI imaging.
CONCLUSION
The claimant is currently 57 years of age, and it is likely she had degenerative changes in her shoulder joints at the time of the accident. However, the medical members of the Panel are, in their clinical judgment of the view that the accident in March 2021 was either sufficient to have caused or materially contributed to the labral and rotator cuff tear in the left shoulder or caused or materially contributed to an extension or aggravation of a pre-existing tear.
Either way, noting the insurer’s concession the Panel finds that Ms Singh has sustained a non-minor injury.
As the Panel’s conclusion is different to that of Medical Assessor Wijetunga, it follows that her certificate must be revoked.
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