Stephenson v QBE Insurance (Australia) Limited
[2023] NSWPICMP 116
•28 March 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Stephenson v QBE Insurance (Australia) Limited [2023] NSWPICMP 116 |
| CLAIMANT: | Daniel Stephenson |
| INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 28 March 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act2017; the claimant suffered injury following a rear end collision; the dispute related to whether the injury was a minor injury; claimant re-examined; shoulder pathology likely pre-existing due to overhead shoulder use such as lifting and gym work; rear-end collision unlikely to have caused or aggravated an internal shoulder tear; other injuries found to be minor injuries; Held – claimant suffered minor injuries; original assessment confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Minor injury Review Panel Assessment of Minor Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 |
REASONS
BACKGROUND
Mr Daniel Stephenson (the claimant) suffered injury in a motor accident on
30 August 2018 whilst in a stationary vehicle that was rear ended by the insured vehicle[1] (the motor accident).[1] Claimant’s bundle, p 195.
The insurer is liable to pay to Mr Stephenson any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether Mr Stephenson is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Cameron who issued a medical assessment certificate dated 26 June 2022 (the medical assessment). Medical Assessor Cameron concluded that Mr Stephenson sustained soft tissue injuries to the cervical, thoracic and lumbar spines, both shoulders and a possible head injury which are minor injuries for the purposes of the MAI Act.
A separate certificate issued by Medical Assessor Steiner concluded that the motor accident caused some eye discomfort which had resolved and constituted a minor injury.[3] No review was sought from that decision.
[3] Claimant’s bundle, p 357.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”.[4] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[5]
[4] Sections 3.11 and 3.28 of the MAI Act.
[5] Section 4.4 of the MAI Act.
THE REVIEW
The application for review of the medical assessment to a review panel was made by Mr Stephenson within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[6]
[6] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after
1 March 2021, the new review provisions apply.The review provisions provide[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[7] 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.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[9]
[9] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[10]
[10] Section 7.26(6) of the MAI Act.
STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the Act. Version 9 of the Guidelines commenced on 15 January 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 minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[11]
[11] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the Act.[12]
SUBMISSIONS
Claimant’s submissions dated 16 September 2021[13]
[12] See s 3B(2) of the Civil Liability Act 2002.
[13] Claimant’s bundle, p 12.
The claimant submitted that he sustained the following injuries caused by the motor accident:
(a) head (trauma, headaches, memory loss);
(b) eyes (pressure and discomfort, now resolved);
(c) cervical spine (musculoligamentous strain, soft tissue injury, restricted range of movement, radiculopathy);
(d) right shoulder / arm (musculoligamentous strain, soft tissue injury, restricted range of movement, radiculopathy);
(e) left shoulder / arm (musculoligamentous strain, soft tissue injury, restricted range of movement, radiculopathy);
(f) thoracic spine (musculoligamentous strain, soft tissue injury, restricted range of movement);
(g) lumbar spine (musculoligamentous strain, radiculopathy, impingement, restricted range of movement), and
(h) psychological injury.
The claimant relied “upon the medical evidence obtained to date which clearly demonstrates the injuries and diagnosis of same”.[14] The claimant did not articulate which medical evidence established that the injury was not a minor injury within the meaning of the MAI Act.
Claimant’s submissions dated 18 May 2022[15]
[14] Claimant’s bundle, p 13.
[15] Claimant’s bundle, p 171.
These submissions addressed the ultrasound for the shoulders which showed fraying of the bursal fibres of the supraspinatus tendon and evidence of an intrasubstance tear.
The claimant referred to the Goulburn Base Hospital notes dated 30 August 2018 which reported pain on the lateral side of the neck and shoulder. On 7 September 2018 the general practitioner recorded symptoms which included neck pain and right paraesthesia.
In February 2019 there were reports of interscapular pain. On 15 February 2019 the claimant reported in the claim form injury to the right shoulder.
On 12 October 2020 the general practitioner recorded symptoms of right shoulder pain. On 27 March 2021 the hospital noted “deep aching shoulders” in the context of the motor accident.
It was submitted there was no pre-accident history of shoulder pain.
The claimant submitted that the radiological investigations show clear evidence of a non-minor injury.
Claimant’s submissions dated 18 July 2022[16]
[16] Claimant’s bundle, p 359.
These submissions were filed seeking leave to review the certificate.
The claimant referred to the bilateral shoulder ultrasound dated 11 April 2022 which showed an intrasubstance tear involving the insertion of the infraspinatus tendon mid fibres and fraying of the bursal fibres of the supraspinatus tendon. It was submitted that the Medical Assessor failed to consider the ultrasound report.
Insurer’s submissions dated 6 October 2021[17]
[17] Claimant’s bundle, p 185.
The insurer submitted that the motor accident was not “a major event” because police or an ambulance did not attend.
The insurer noted there was a complaint of headache at Goulburn Hospital, the MRI scan of the brain was reported as normal, and Dr Wijayath reported on radicular symptoms associated with the spine. It submitted that there was no head trauma or injury that could be classified as a non-minor injury.
The insurer referred to the scan evidence of the cervical spine which could not account for the radicular symptoms. The physiotherapist in February 2019 diagnosed WAD grade II.
Subsequent complaint in October 2020 was of a two-week history of right sided neck pain. In March 2021 the claimant reported neck pain radiating to the shoulders present for one week.
The insurer submitted that the claimant had an underlying degenerative condition explaining the symptoms, suffered only a soft tissue injury and did not suffer from radiculopathy.
The insurer submitted that the claimant suffered a possible soft tissue injury to the right shoulder and no injury to the left shoulder. A right shoulder injury is mentioned in the claim form. The statement, written three years after the accident, asserts bilateral shoulder injury. This contrasts with the contemporaneous notes where the initial certificiate of capacity does not refer to shoulder injury and there were no relevant radiological investigations requested.
The insurer submitted that the claimant may have suffered soft tissue injuries to the thoracic and lumbar spines. Examination on 7 September 2018 recorded nil neurological deficits although straight leg raising was positive. The MRI scan of the lumbar spine showed degenerative changes and did not account for any radicular symptoms.
The claimant was reviewed on 23 October 2018 and advised that he had ongoing upper and lower back pain aggravated by lifting at work. Subsequent diagnosis by the physiotherapist in February 2019 was “muscular overload” as part of the recovery.
The insurer submitted that there has been no diagnosis of radiculopathy by any treating doctors.
Insurer’s submissions dated 3 May 2022[18]
[18] Claimant’s bundle, p 169.
The insurer submitted that the shoulder pathology shown in the ultrasound report dated 8 April 2022 was unrelated to the motor accident. It noted a paucity of reference to right shoulder symptoms after the motor accident and a reference in physiotherapy notes dated 5 February 2019 to shoulder pain after sport. It also noted that the claimant was engaged in heavy lifting at work.
The insurer submitted that the pathology in the bilateral shoulder scan was more likely degenerative and related to heavy lifting at work rather than a motor accident four years previously when radiological investigations of the shoulder were not requested.
Insurer’s submissions 12 August 2022[19]
[19] Claimant’s bundle, p 377.
These submissions were filed opposing the application to review. The insurer submits on a fair reading the Medical Assessor addressed the issue when concluding that the claimant suffered from arthritic/degenerative changes in the shoulders and otherwise observed full range of movement.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
The pre-accident clinical notes do not refer to any health issues with respect to the claimed body parts[20] save that in October 2015 there is reference to left shoulder impingement and muscle pain with the comment that the claimant “overworked at the gym” recently.[21]
[20] Claimant’s bundle, pp 33-41.
[21] Claimant’s bundle, p 167.
Medical evidence
The claimant attended Goulburn Base Hospital following the motor accident. Initial triage noted head pain, blurred vision and vertigo with no neck stiffness.[22]
[22] Claimant’s bundle, p 165.
The discharge summary relevantly provided:[23]
“Patient reports he was involved in a car accident at ~3pm today.
Reportedly was driving and approaching a roundabout, was slowing down at ~30km/hr when he was hit in the back of the car by the vehicle that was travelling behind him.
Reports he was wearing a seatbelt, the airbags were not deployed and he felt a sudden jolt to his head, neck and thoracic spine region.
Denies any loss of consciousness and no significant pain at the time, mobilised out of the car to exchange details with the other driver. Minor damage to his vehicle but reports the other car was written off.
Reports he felt a minor headache and pain in the lateral side of the right neck and shoulder after the injury as well as pain in the mid thoracic spine. Denies any chest pain, dyspnoea, neurological symptoms, paraesthesia/ weakness/ sensory symptoms.
Reports some droopiness in the right eyelid.”
[23] Claimant’s bundle, p 163.
Examination at hospital recorded upper and lower limb neurology intact with power 5/5 bilaterally. Tenderness was located to T3/4 level and nil midline cervical and lumbosacral tenderness.[24]
[24] Claimant’s bundle, p 164.
The claimant attended Dr Chandramohan on 7 September 2018 who recorded the following:[25]
“Presented with sx:
Sustained MVA – 1 week ago – since then severe headache 10/10 – ongoing for 1 week a/e Rt hand parathesia intermittently and LBP radiating to left buttock and thigh
He was a driver and hit by a car behind when he was stand still no head on collision
Pains worsening day to day
Rested for 1 week no improvement
He works as assistance in sport place – needs lots of lifting – no light duties available as per Pt.”
[25] Claimant’s bundle, p 42 (some corrections made to typographical errors in clinical notes).
Nil neurological deficit was recorded although SLR (straight leg raising) was positive on the left side. Mr Stephenson was referred for an MRI scan of the brain, cervical and lumbar spine. The scans were described as showing “no abnormality … to account for the radicular symptoms”.[26]
[26] Claimant’s bundle, p 114.
The certificate of capacity dated 7 September 2018 diagnosed muscular sprain of the thoracic and lumbar spine.[27]
[27] Claimant’s bundle, p 217.
On 17 September 2018 Dr Mohammed noted ongoing headaches and lower back pain.[28]
[28] Insurer’s bundle, p 167.
On 25 September 2018 the doctor described the pain as “much better”.[29]
[29] Claimant’s bundle, p 44.
On 2 October 2018 Dr Mohammed noted that headaches and lower back pain had resolved although the claimant had some stiffness in the lower back and tenderness in the mid thoracic region.[30]
[30] Insurer’s bundle, p 167.
On 23 October 2018 the claimant attended his general practitioner for “ongoing intermittent upper and lower back pain” which “usually aggravates after work”. The work was described as “physical work … lifting and moving work”.[31] A referral to the physiotherapist on that day noted ongoing upper and lower back pain aggravated by work.[32]
[31] Claimant’s bundle, p 45.
[32] Claimant’s bundle, p 111.
On 30 October 2018 the claimant was tender at T2-T3 with good range of movement in the shoulders and lumbar spine.[33]
[33] Claimant’s bundle, p 47.
On 15 February 2019 the general practitioner noted interscapular and lumbar pain of six-month duration.[34] CT scans of the thoracic and lumbar spine were organised. A certificate of capacity dated 15 February 2019 referred to muscular sprain of the thoracic and lumbar spine injuries caused by the motor accident.[35]
[34] Claimant’s bundle, p 48.
[35] Claimant’s bundle, p 17.
The physiotherapy notes documented lumbar and interscapular pain since the motor accident and included a past history of “shoulder pain after a lot of sport”.[36]
[36] Claimant’s bundle, p 343.
On 15 February 2019, Mr Austen, physiotherapist, reported findings consistent with WAD grade II and opined that Mr Stephenson had “muscular overload as part of his recovery post injury”.[37]
[37] Claimant’s bundle, p 98.
Triage notes at Goulburn Base Hospital on 27 March 2021 recorded stiffness in shoulders, lower neck, pain right side of thoracic back.[38]
[38] Claimant’s bundle, p 156.
Radiology
The MRI scan of the brain dated 14 September 2018 was reported as normal.[39] The MRI scan of the cervical spine was normal with a shallow disc protrusion without canal narrowing at C6/7.[40] The lumbar spine MRI scan was also essentially normal.
[39] Insurer’s bundle, p 211.
[40] Insurer’s bundle, p 212.
Dr Jiang opined that there was no abnormality on the scans which would account for the radicular symptoms.[41]
[41] Insurer’s bundle, p 212.
A CT scan of the cervical spine dated 23 January 2019 noted neck pain radiating to the left arm and showed multilevel degeneration with moderate to severe neuroforaminal stenosis in the lower cervical and upper thoracic spine.[42]
[42] Claimant’s bundle, p 97.
Bilateral shoulder ultrasound dated 11 April 2022[43] showed fraying of the bursal fibres of the supraspinatus tendon and intrasubstance tear involving the insertion of the infraspinatus tendon mid fibres in the right shoulder. Arthritic changes were seen in the AC joint. The left shoulder showed generalised arthritic changes in the AC joint.
[43] Claimant’s bundle, p 173.
Other records
The claim form dated 19 February 2019 referred to injuries to the “right eye, neck, right arm, right shoulder, chest, back, right leg, left leg, nervous shock”.[44]
[44] Claimant’s bundle, p 195.
RE-EXAMINATION
The Panel determined that Mr Stephenson be re-examined by Medical Assessor Moloney on 15 March 2023.
The re-examination report is as follows:
“Mr Stephenson attended the medical suites at PIC on 15 March 2023 and was unaccompanied.
Pre accident history
Mr Stephenson stated that he was in good health prior to the accident. He was living with his partner, and they had a baby in February 2019. At the time of the accident, he was working full-time as a venue operator at the Institute of sport in Canberra. This had been a long-term occupation. Prior to the accident he regularly attended the gym and socially played sport with his nephews. When he was a junior, he was a keen cricketer who bowled and battered and stopped the sport when he was 25. He also played soccer socially.
There was a past history of an injury to his right wrist at work and left shoulder which he injured in the gym in 2015.
History of motor accident
Mr Stephenson was a driver of his car and was stationary when hit from the rear. He was wearing a seatbelt at the time, but airbags were not deployed. After exchanging details with the other driver, he drove to Goulburn Hospital. At that stage he had neck pain, right shoulder pain and low back pain with sore ribs. He also states that he felt his eyes were bulging particularly the left eye.
History of symptoms and treatment following the motor accident.
Mr Stephenson consulted his GP a week after the accident who told him to rest, and he took one week off work. He consulted a few other GPs without much satisfaction and about 6 months after the accident settled on another GP who organised scans and MRI. Physiotherapy was also undertaken, and he states that during this time he felt withdrawn and was doing light duties. He continues to do most of his previous work on a full-time basis and gets assistance with any heavy lifting. Recurrent headaches after the accident were investigated with an MRI and he was also assessed by an ophthalmologist without any long-term sequela.
Current symptoms
At present, there is a pain at the base of the neck which radiates into the trapezius muscles and increases with driving. After sitting for about 20 minutes, he feels tightness in the neck and lower back. His arms are asymptomatic, but any overhead work causes an ache in the right shoulder and he feels that with any twisting or lifting. Pain from the neck radiates into the right shoulder region. He also gets a jarring pain in the midthoracic region on the right side which is exacerbated by lifting up his daughter or lifting anything heavy at work.
There is a central low back pain which radiates into both hamstring muscles which increases with work. He gets tightness in the calf muscles on rising in the morning or at work if he has to walk upstairs or ramps. He states that he is a restless sleeper and wakes with pain all over his back and right shoulder region. He can walk without discomfort and drives from Goulburn, where he lives, to Canberra on the days that he works. This drive is approximately one hour each way.
His job involves putting out mats and chairs for training or events such as judo competitions. He works full-time hours. However, since the accident,
Mr Stephenson states that he gets the help of one of the other workers to place and pick up the heavy mats.
Present treatment
Mr Stephenson is taking no analgesics at present and has had no recent physiotherapy or other manual treatment. He does home stretching program using a Theraband and no longer attends the gym and rarely visits his GP.
He has had no further injuries or conditions sustained since the motor accident.
Clinical examination
Mr Stephenson walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is right-handed. His height was measured at 178 cm (barefooted) and weight 105 kg.
Cervical spine
On inspection there was a normal contour of the cervical spine and on testing range of movement, flexion/extension side bending and rotation were all 80% of expected range with no asymmetry. On palpation there was tenderness over both trapezius muscles, but no guarding or spasm was noted in the cervical musculature.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the upper arms 32.5 cm on the right and 32 cm on the left (10 cm above the olecranon process) and at the maximum circumference of the forearm 30 cm bilaterally. He occasionally gets numbness in the fingertips bilaterally on waking in the morning which is not present at the time of my examination. Tinel’s and Phalen’s test were negative for testing for a carpal tunnel syndrome.
Shoulders
On inspection of the shoulders, no muscle wasting was apparent and on testing range of movement there was a full range bilaterally in all directions. However, at end range flexion and abduction, there was a slight ache in the trapezius muscles more so on the right. On passive movement no crepitus was detected and impingement tests were negative. Active movements were measured using a goniometer and repeated.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion 180° 180° Extension 50° 50° Adduction 50° 50° Abduction 180° 170° Internal Rotation 80° 80° External Rotation 90° 90°
Thoracic spine
On inspection of the thoracic spine, there was a normal contour and on testing range of movement, flexion/extension, side bending rotation were all 80% of expected range with no asymmetry. There were no signs of radiculopathy or non-verifiable radicular complaints in the thoracic spine region.
Lumbar spine
Mr Stephenson walked with a normal gait and was able to walk on his heels and toes and squat normally. On testing range of movement, there was a full range of flexion/extension, side bending and rotation. On palpation there was no signs of guarding or spasm in the lumbar musculature. Straight leg raise when lying was 80° bilaterally with negative sciatic nerve root tension signs.
On neurological examination of the lower limbs reflexes were equal bilaterally with no sensory changes and normal power. No muscle wasting was apparent with the circumference of the lower thighs 47 cm bilaterally (10 cm above the superior patella pole and at the maximum circumference of the calves 43 cm bilaterally.
Knees
On testing range of movement, both knees could be flexed 130° with 0° extension and on passive movement no crepitus was palpable. On palpation there was no tenderness of the knee joint and no ligament laxity noted.
No radiological studies were available for inspection.
No inconsistency was noted during my examination and interview.
Comments
Mr Stephenson does not recall any specific injury prior to his GP organising bilateral shoulder ultrasound in April 2022. There was no evidence of any injury to the left shoulder sustained in the subject accident and initially he did have right shoulder pain and he describes an ache in the trapezius muscle with referral of pain from the cervical spine with any sustained overhead work. The arthritic changes noted would be related to his previous sporting activity, attending the gym and physical lifting at work. The intrasubstance tear involving the insertion infraspinatus tendon of the right shoulder is unlikely to be related to the subject accident.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[45] and Insurance Australia Ltd v Marsh.[46]
[45] [2021] NSWCA 287 at [40], [41] and [45].
[46] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[47] that radiculopathy can be present at any time to establish that the injury is not minor for the purposes of the MAI Act.
[47] [2021] NSWPICMP 227 at [84] – [104].
We adopt the reasoning in Lynch v AAI Ltd[48] that the claimant bears the onus of proof in establishing that any injury is not a minor injury for the purposes of the MAI Act.
[48] [2022] NSWPICMP 6 at [44] – [62].
The Panel adopts the examination report of Medical Assessor Moloney and adds the following reasons.
Low back injury
We accept that the low back was injured in the motor accident.
There is no scan evidence of traumatic injury involving an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage as the lumbar spine MRI scan was essentially normal.
The claimant was noted to have a nerve root tension sign on the left side which may constitute one sign of radiculopathy within the meaning of cl 5.8. However, the dermatome is not established in the clinical note and the reported clinical sign is inconsistent with a normal MRI scan. There is no other evidence of radiculopathy as defined in the Guidelines sign in any of the clinical notes or in the Medical Assessments.
For these reasons the Panel is satisfied that the claimant suffered a soft-tissue low back injury as defined in the MAI Act which is a minor injury.
Cervical spine injury
We accept that the claimant suffered a soft tissue injury to the cervical spine by way of aggravation of degenerative changes. The scans show severe degenerative changes in the cervical spine but there is no evidence of any traumatic changes to the various discs.
We do not accept that there is any evidence of a traumatic injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage in the cervical spine.
There are no recorded observations of any signs of radiculopathy as defined in cl 5.8 of the Guidelines. The clinical notes refer to symptoms of radicular pain including numbness in the right hand. These are not signs of radiculopathy as defined because they are not described as relating to a specific dermatome. Further, reports of pain or numbness is not an objective sign as defined in cl 5.8 of the Guidelines.
Based on the examination findings of Medical Assessor Moloney, Mr Stephenson did not have radiculopathy from the cervical spine at the recent examination.
For these reasons we conclude that Mr Stephenson has not established two clinical signs of radiculopathy pursuant to the Guidelines.
Thoracic spine injury
There is contemporaneous record of tenderness in the thoracic spine following the motor accident. These complaints appeared to have resolved after a period of time. The short-term duration of thoracic spine symptoms is consistent with the claimant suffering a soft tissue injury to that region.
There is otherwise no evidence of any traumatic injury to the thoracic spine that supports any suggestion that the injury was not a minor injury within the meaning of the MAI Act.
There is otherwise no record of any radiculopathy from the thoracic spine nor any findings supporting such a diagnosis in the Medical Assessor’s examination.
Shoulders
The nature of a rear end collision is unlikely to cause a shoulder tear particularly as the position of the tear in the right shoulder is internal. Such a tear is extremely unlikely to have arisen from a mild rear end collision given the absence of direct force to the shoulder. We accept that there would have been some minor pressure imposed on the right shoulder through the position of the seatbelt.
The ultrasound scan shows arthritic changes in the AC joint consistent with overhead shoulder use such as gym work and lifting. The claimant’s history is replete with a prior history of gym work and lifting at work.
The bursal thinning of the shoulder joint is otherwise more consistent with degenerative changes.
There are early references in the clinical notes to right shoulder problems which is explicable by either the claimant suffering a soft tissue injury to the right shoulder or suffering radicular features from the cervical spine.
For these reasons the Panel is not satisfied that the changes in pathology shown in the right shoulder scan in April 2022 were caused or aggravated by the motor accident.
With respect to the left shoulder there is a delayed onset of complaint of symptoms which is relevant but not determinative of the question of causation: AAI Ltd v McGiffen.[49]
[49] [2016] NSWCA 229 at [64]-[66].
The left shoulder was not referenced in the claim form. An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[50] Similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue.
[50] [2014] NSWSC 888 at [31]-[32].
A rear end collision is unlikely to impose any force into the left shoulder as the claimant was the driver and that body part was unrestrained by the seatbelt.
Further, any left shoulder pathology is explicable by the gym work, overhead lifting at work and degenerative changes.
The Panel is not satisfied that the motor accident caused any injury to the left shoulder.
Head injury
The claimant immediately complained of headaches at hospital. This pain was probably due to the neck injury.
There is no history of head contact nor is one explicable from the nature of the rear end collision where the claimant is restrained by a seatbelt.
There is otherwise no evidence of any injury to the head which would take such an injury outside the meaning of a minor injury.
The Panel is not satisfied that the claimant sustained a head injury.
CONCLUSION
For these reasons the Panel concludes that the certificate issued by Medical Assessor Cameron is confirmed.
0
6
0