Singh v Allianz Australia Insurance Limited
[2024] NSWPICMP 852
•11 December 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Singh v Allianz Australia Insurance Limited [2024] NSWPICMP 852 |
| CLAIMANT: | Reecha Singh |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | David Gorman |
| DATE OF DECISION: | 11 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Medical Panel Review of threshold injury dispute; claimant a pedestrian when the insured vehicle struck her; Issue of whether a tear of the triangular fibrocartilage complex (TFCC); clinically diagnosed by treating specialist, however, no evidence on radiology; Held – on balance of probabilities, and on available evidence, no TFCC tear; sprain injury to right wrist and soft tissue injuries to the cervical and thoracic spine and chest/rib cage; lumbar spine injury not caused by the motor accident; original medical assessment confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the certificate of Medical Assessor Home dated |
STATEMENT OF REASONS
INTRODUCTION
Ms Reecha Singh (the claimant) alleges injury as a result of a motor vehicle accident which occurred on 28 December 2022. The claimant was a pedestrian traversing across a pedestrian crossing when a motor vehicle collided with her. The claimant is currently aged 23 years of age.
The subject issue in dispute between the parties is whether any physical injury suffered by the claimant as a result of the accident is a threshold injury (previously known as a minor injury – any reference to ‘minor injury’ in this determination is a reference to ‘threshold injury’).
A threshold injury determination is an important one in terms of an injured person’s entitlements under the Motor Accident Injuries Act2017 (MAI Act). If a determination finds that the motor accident has caused a non-threshold injury then the gateway to ongoing statutory benefits beyond 26/52 weeks and an entitlement to claim common law damages is opened.
The claimant lodged an Application for personal injury benefits (claim form) with the insurer of the vehicle, Allianz Australia Insurance Ltd (the insurer), on or about 5 January 2023.
It appears that liability for payments of statutory benefits was initially accepted by the insurer, however, subsequently denied due to a decision that the claimant’s injuries met the definition of threshold injuries for the purposes of the MAI Act.
An internal review decision of the insurer dated 3 May 2023 affirmed the original decision.
Subsequently an application was lodged with the Personal Injury Commission (Commission) to determine the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor.
The dispute about whether the claimant’s accident caused psychological injury is a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2, cl 2(e) of the MAI Act.
The medical dispute was assessed by Medical Assessor Alan Home. The Medical Assessor provided a certificate dated 10 November 2023, which was later amended and an amended certificate was issued dated 7 February 2024. The Medical Assessor certified that the claimant suffered a threshold injury to the cervical spine, thoracic spine, chest/rib cate and right wrist.
THE REVIEW
The claimant sought a review of the medical assessment in accordance with s 7.26 of the MAI Act (review). On 26 June 2024 the President’s delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a 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 cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[1] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
[1] Section 7.26(5A) of the MAI Act.
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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: Rule 128 of the Rules.
The Panel issued interim directions dated 1 July 2024 requesting paginated and indexed bundles of all documents relied upon by the parties. The claimant lodged a bundle on
1 August 2024. The insurer did not lodge a further bundle than that originally lodged on
11 March 2024.Following an initial preliminary conference, the Panel issued directions dated 30 August 2024 requiring the claimant to attend a re-examination. A re-examination was arranged to occur at the Commission’s medical suites with Medical Assessor Gorman on 25 September 2024. The re-examination was cancelled the day prior due to the claimant having moved interstate to Queensland. An additional medical examination was arranged to occur in the Tweed Heads rooms of Medical Assessor Gorman on 21 October 2024. That examination went ahead as scheduled.
The Panel reconvened for a further telephone conference on 22 October 2024.
LEGISLATIVE FRAMEWORK
The term ‘threshold injury’ is defined in s 1.6 of the MAI Act. It provides that a threshold injury is a soft tissue injury or a threshold psychological or psychiatric injury. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“…an 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 also provides that the regulations may exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold 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 threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.6 of the Guidelines provides: “in assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“…radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines Permanent Impairment’.
a)Loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
b)Positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
c)Muscle atrophy and/or decreased limb circumference (see 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.”
Clause 5.9 of the Guidelines provides that neurological symptoms of the neck or spine that do not meet the assessment criteria for radiculopathy, will be assessed as a threshold injury.
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[2]
[2] See s 3B(2) of the Civil Liability Act 2002.
In respect of the issue of causation, Part 6 of the Guidelines includes guidance. Whilst Part 6 deals with permanent impairment, it is still relevant to the issue of causation in respect of threshold injury disputes.[3]
[3] Briggs v IAG Ltd [2022] NSWSC 372.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MEDICAL ASSESSMENT UNDER REVIEW
Assessor Home issued in his certificate found that soft tissue injuries to the cervical spine, thoracic spine and chest/rib cage were caused by the accident and had resolved and are threshold injuries. A sprain/soft tissue injury to the right wrist caused by the accident was found to be a threshold injury.
The claimant gave a history that the early symptoms to her neck, upper back and right chest wall, which settled within a few weeks of the accident. Two months after the accident she developed right-sided lower back pain with intermittent radiation to the right leg. At the right wrist, she described intermittent pain at rest and increased pain with loading of the wrist. There is pain at the ulnar aspect of the joint in addition to occasional swelling.
Following examination and consideration of the material, the Medical Assessor concluded that the claimant suffered a sprain injury with imaging demonstrating no discrete traumatic abnormality. The Medical Assessor noted the clinical diagnosis of a likely triangular fibrocartilage complex (TFCC) tear made by the treating surgeon, however, “at this stage” based on objective clinical findings and imaging the Medical Assessor could not confirm that there is a material tear in the TFCC. It was noted that this did not exclude dynamic instability or a small tear in the TFCC that cannot be found on imaging. However, the Medical Assessor found that there was insufficient evidence to determine a non-threshold injury on that basis.
The Medical Assessor found there to be no causal connection between the lumbar spine injury and the motor accident.
Each injury diagnosed was determined to be a threshold injury for the purposes of the MAI Act.
DOCUMENTS
The Panel has considered all the material included in the bundles of documents lodged by the parties.[4]
RE-EXAMINATION
[4] Claimant’s bundle lodged on 1 August 2024. Insurer’s bundle lodged on 11 March 2024.
Ms Singh was seen by Assessor Gorman with her husband.
HISTORY
Pre-accident medical history and relevant personal details
Ms Singh is a 23-year-old married woman with no children who was born in Nepal and came to Australia in 2020 on a student visa. Prior to being involved in a pedestrian motor accident on 28 December 2022 she held two casual positions, firstly as a support worker for the aged sector and secondly as a cake decorator.
She has completed a Bachelor of Accounting in Australia and is currently studying for a Masters of Nursing.
She has previously had no serious illness, accidents or operations.
She is a non-smoker and does not drink alcohol.
History of the motor accident
On 28 December 2022 at approximately 8.15pm, in darkness but on a well-lit road, she was crossing the street on a zebra crossing near Merrylands train station and had almost reached the other end of the crossing when she was hit by a car coming from her left side which caused her to fall onto her right side and onto the roadway.
She momentarily lost consciousness and remembers lying on the roadway with the driver of the offending vehicle dragging her to the footpath where she sat propped up against a pole. She phoned her husband who was able to arrive at the scene of the accident 5-10 minutes later.
She was crying and experienced pain in the right arm and wrist. The ambulance arrived, placed her on a stretcher and she was conveyed to Westmead Hospital.
She underwent CT examination of the brain which was normal and X-rays of the right wrist which revealed a normal distal radius and ulna, with normal radio-scaphoid and radio-lunate joints and no evidence of a scaphoid fracture. There were skin abrasions and bleeding from the skin of the right arm and forearm that were cleansed, she was observed overnight and discharged home the following morning.
History of symptoms and treatment following the motor accident
The day following her discharge from the ED she consulted her general practitioner (GP)
Dr Bashir Raji, who ordered a CT scan of the cervical spine and chest which revealed a normal cervical spine and no sternal or rib fractures.She rested at home for several days and experienced right wrist pain which was aggravated when she returned to her job as a casual cake decorator at a cheesecake shop at Guilford. Because of the pain in the right wrist, she had to stop working as a cake decorator and has not returned to that work since that time.
A week or two later, she resumed working as a casual old age support worker and although being a physically demanding job she had considerable help from carers. They helped her with her work that she struggled to perform because of her painful right wrist. After several weeks, however, she had to stop work altogether for some six months. She was receiving workers compensation payments until July 2023 when she re-commenced work in the aged care industry.
Dr Rashi arranged for her to have physiotherapy for her wrist. She also underwent chiropractic treatment that was beneficial.
Approximately three months following the injury she was sent to the hand specialist Professor Nicholas Smith who arranged for her to have an MRI of the right wrist which was normal.
Ms Singh also undertook treatment with a hand therapist at Bella Vista Hospital recommended by Professor Smith and they oversaw muscle strengthening and hand massage treatment. She wore a supportive wrist appliance both at work and at home.
The pain in the right wrist has continued to be present. She had trouble returning to her cake decorating which required frequent twisting motion in the right wrist.
Professor Smith suspected a tear of the TFCC and has recommended arthroscopy of the right wrist with repair of the triangular fibrocartilaginous complex that he suspects has been torn.
After moving to Queensland she has recently seen a new Hand Surgeon, Dr David Graham. Ms Singh reported to Medical Assessor Gorman that the third MRI had also not shown any definite abnormality. Her pain had moved from laterally over the ulnar and radial sides to the dorsum in the midline. Dr Graham has ordered a cortisone injection in the dorsal radio-ulnar joint. This has not yet been performed.
Details of any relevant injuries or conditions sustained since the motor accident
There have been no other injuries or conditions sustained since the accident.
Current symptoms
Ms Singh experiences pain in the right wrist that radiates proximally into the forearm and right elbow when severe. The pain is aggravated by any physical use of her hand and alleviated somewhat when she wears a support wrist band.
She feels that she has weakness of her right hand grip. She cannot carry heavy items in the right hand.
Her husband sometimes needs to help her washing her hair.
Her neck and low back are not symptomatic now.
She has no thoracic spine or chest problems.
Current and proposed treatment
Professor Smith has suggested investigative arthroscopy and repair of the TFCC of the right wrist and this has been approved by a Commission’s Certificate from Medical Assessor Rapport. Her current Hand Specialist, Dr David Graham has seen her once and has suggested an initial steroid injection into the distal radioulnar joint.
Her only medication is iron supplements.
RE-EXAMINATION
General presentation
Ms Singh is a young well looking women who is right hand dominant.
She was wearing a right wrist Velcro support appliance
Her height was measured at 162cm and her weight was 60kg.
Cervical spine
The cervical spine range of motion was normal and symmetrical. There was no tenderness. There was no radiating arm pain.
Power, sensation and reflexes in the upper limbs was normal.
Chest and ribs
There was no tenderness over the thoracic spine or ribs.
There was a full range of thoracic spinal movement.
Air entry was normal with no added sounds on auscultation.
Lumbar spine
The lumbar spine range of motion was normal and symmetrical. There was no tenderness. There was no radiating leg pain.
Power, sensation and reflexes in the lower limbs was normal.
Upper extremities
Hand grip was equally firm bilaterally.
Right wrist flexion, extension, ulna and radial deviation were full in range on the right side and were entirely comparable in active range of motion with the contralateral left wrist.
Tenderness was present on firm palpation over the mid dorsum aspect of the wrist.
No “clunking” was evident on pronation and supination of the right wrist nor other wrist movements.
There was no laxity was present in the distal radio-ulnar joint comparing right and left sides. There was mild anteroposterior laxity over the ulnar side of the wrist but this was the same on right and left sides.
Shoulder and elbow movements were equal and full on right and left sides.
Comments on consistency
She was cooperative and consistent.
Summary of relevant radiological and medical imaging and other investigations:
(a) CT scan brain dated 29 December 2022: No intracranial haemorrhage detected. No fracture detected.
(b) X-ray chest dated 28 September 2022: No focal collapse or consolidation. No pleural effusion. No pneumothorax is visible. Cardiomedistinal silhouette appears within normal limits. No acute displaced rib fracture.
(c) CT cervical spine dated 3 January 2023: No traumatic injury or fracture.
(d) CT chest dated 3 January 2023: No traumatic injury.
(e) CT right wrist dated 5 January 2023: No abnormality demonstrated. No acute fracture.
(f) MRI right wrist dated 28 February 2023: No fracture or marrow contusions. Soft tissues demonstrate intact volar extrinsic intrinsic ligaments. A small ganglion is seen at the volar radial aspect of the wrist related to the ligaments, measured at 4 x 2mm. The TFCC shows no central perforation. Mild signal hyperintensity is seen at the foveal attachment from synovitis but no complete tear is seen. No osteochondral injury. The scapholunate ligament is intact.
(g) X-ray right wrist dated 29 March 2023: Distal radius and ulnar appear normal. The radio-scaphoid and radio-lunate joints appear normal. No widening of the scapholunate discs. The scaphoid appears normal. The STT articulation is normal.
(h) MRI right wrist dated 29 March 2023: No definite internal derangement. The dorsal intercarpal ligament and the dorsal radiocarpal ligament showed no evidence of strain or avulsion. The scapholunate ligament, lunotriquetral ligament, dorsal and volar intrinsic and extrinsic ligaments in the wrist are intact. There is a small ganglion seen at the volar radial aspect of the wrist. No distal radioulnar joint abnormality. There is no TFCC abnormality present.
DETERMINATIONS – THRESHOLD INJURY
Diagnosis, causation and reasons
Ms Singh suffered a fall after being struck as a pedestrian in which she sustained early complaints of neck and upper back pain due to soft tissue injuries which have resolved.
She suffered early pain in the right chest wall which has also resolved.
On the right wrist, she suffered a sprain injury, with subsequent imaging, including three MRI scans, demonstrating no discrete traumatic abnormality. The Panel notes a clinical diagnosis of a likely TFCC tear made by her treating surgeon for which diagnostic and therapeutic arthroscopy has been recommended. She has not gone on to have this although the Commission’s certificate from Medical Assessor Rapaport approved the procedure. Her current treating hand surgeon has not proceeded with arthroscopy and has instead arranged steroid injections to the dorsal radioulnar joint.
At this stage, based upon the objective clinical findings and the imaging findings, the Panel cannot confirm that there is a material tear in the TFCC. That is to say, based upon the clinical findings of Medical Assessor Gorman and the material and history provided, the Panel is not satisfied that on the balance of probabilities that the claimant has suffered a tear in the TFCC as a result of the motor accident.
While she still has symptoms in the right wrist, they have moved from than radial and ulnar sides of the wrist to the dorsum in the midline.
The Panel also notes that her subsequent Hand Surgeon in Queensland, Dr Graham, has ordered a guided steroid injection into the dorsal radio ulnar joint as this region of the wrist is mainly symptomatic. The Panel understands that the third MRI arranged by Dr Graham also did not show any ligamentous or cartilage tears.
Ms Singh reports that the lumbar spine pain commenced approximately two months post-accident. She attributes this to abnormal sleeping habit. She does not sleep over her right side. The Panel does not accept, on the balance of probabilities, that there is a causal relationship between the subject accident and the onset of low back pain more than two months post-accident.
Summary of injuries referred by the parties
The following injuries WERE caused by the motor accident:
• cervical spine: soft tissue injury – resolved;
• thoracic spine: soft tissue injury – resolved;
• chest/rib cage: soft tissue injury – resolved, and
• right wrist: sprain; soft tissue injury.
The following injury WAS NOT caused by the motor accident:
• lumbar spine.
THRESHOLD INJURY
The assessment of whether the injury is a ‘threshold injury’ is not a direct measure of symptoms or disability. A finding that the injury is a ‘threshold injury’ indicates that there was an injury caused by the motor accident and that there may be continuing symptoms - however the injury satisfies the definition of a threshold injury under the Act and the Regulation.
Cervical spine
The cervical spine injury is a threshold injury. The Panel is satisfied the injuries meet the definition of soft tissue injury. The clinical presentation does not indicate disc or ligament injury and there is no cervical radiculopathy.
Thoracic spine
The thoracic spine injury is a threshold injury. The Panel is satisfied the injury meets the definition of soft tissue injury. There is no evidence of injury to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage. There is no thoracic radiculopathy.
Chest/ribs
The injury listed is a threshold injury. The Panel is satisfied the injuries meet the definition of soft tissue injuries. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
Right wrist
The injury is a threshold injury. As discussed above, there is insufficient evidence of any injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
The Panel notes that not all examiners have found consistent features of instability. Her symptoms have varied. Three MRI scans have not revealed any tears of ligaments or cartilage.
While she has not had a “diagnostic” arthroscopy, the Panel believes that, on balance, there is no tear in ligaments or cartilage in the wrist. The injury is a “sprain” injury. The Panel is therefore satisfied the injury meets the definition of soft tissue injury.
CONCLUSION – THRESHOLD INJURY
The following injury is a threshold injury:
• cervical spine: soft tissue injury – resolved;
• thoracic spine: soft tissue injury – resolved;
• chest/rib cage: soft tissue injury – resolved, and
• right wrist: sprain; soft tissue injury.
CONCLUSION
The Review Panel confirms the certificate of Medical Assessor Home dated
7 February 2024.
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