Su v Allianz Insurance Australia Limited
[2022] NSWPICMP 267
•29 June 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Su v Allianz Insurance Australia Limited [2022] NSWPICMP 267 |
| CLAIMANT: | Zhen Zhu Su |
INSURER: | Allianz Insurance Australia Limited |
| REVIEW PANEL: | |
| MEMBER | Alexander Bolton |
| MEDICAL ASSESSOR | Margaret Gibson |
MEDICAL ASSESSOR | Clive Kenna |
| DATE OF DECISION: | 29 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Assessment of minor and non-minor injuries; car versus pushbike accident on the footpath; claimants injuries include right shoulder rotator cuff tear, lumbar spine soft tissue injury, left knee soft tissue injury; radiological evidence of left knee inconclusive about any tear of a tendon, ligament or cartilage; Held – original assessment that shoulder injury was minor revoked and new decision that the claimant suffered a non-minor injury to her right shoulder following a rotator cuff tear causally related to the accident. |
| DETERMINATIONS MADE: | Review Panel Assessment of Minor Injury Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 9 June 2021 and issues a new certificate determining that: The following injuries were caused by the motor accident, diagnoses were changed to more accurately reflect the nature of injuries incurred: · right shoulder - rotator cuff tear; · lumbar spine – soft tissue injury, and · left knee - soft tissue injury. The following injuries are minor injuries: · lumbar spine – soft tissue injury, and · left knee - soft tissue injury. The following injury is a non-minor injury for the purposes of the Act: · right shoulder - rotator cuff tear. |
REASONS
BACKGROUND
The claimant was injured in an accident on 1 June 2020. She was riding a bicycle on the footpath when a car reversing from a driveway collided with her. The impact to the bike was on her right hand side forcing her onto her left side.
As a result of the collision the claimant suffered the following injuries:
(a) injuries to the left knee;
(b) injury to the left leg;
(c) injury to the right shoulder, arm and elbow;
(d) injury to the lower back, and
(e) psychological injury.
The claimant said that the car hit her bike in the middle of the frame and to the front of the bike. The car did not actually connect with the claimant’s body. She said that she fell to the ground and landed on her right side, using her left hand to block her fall.
The ambulance notes say that the claimant came off her bike, landing on her right and left legs, sustaining an abrasion under the left patella with associated bruising and that she was complaining of pain to her right arm.
The dispute is under schedule 2(2)(e) of the Motor Accident Injuries Act 2017 (the MAI Act) and goes to whether the injuries caused by the accident are minor injuries for the purposes of the MAI Act.
The following injuries were referred to Medical Assessor Assem for determination;
(a) right shoulder – rotator cuff strain with associated impingement;
(b) lumbar spine musculoligamentous strain with associated neurological signs, and
(c) left knee soft tissue swelling with possible trauma to the infrapatellar tendon at the insertion, possible infrapatellar tendinosis versus partial tear, tendinitis at the insertion of the left in front patella ligament, post traumatic tendinitis.
The claimant submitted in her application that she had suffered non-minor injuries.
The insurer submitted that there was no evidence that the claimant sustained a complete or partial rupture of tendons, ligaments, menisci or cartilage in the left knee and that this only constituted a minor injury for the purposes of the motor accident injuries Act.
Assessor Assem found the injuries referred to him for assessment, the following injuries were caused by the accident:
(a) right shoulder injury – soft tissue;
(b) left knee injury – soft tissue, and
(c) lumbar spine – soft tissue.
On this assessment, Assessor Assem found that the injuries were minor injuries for the purposes of the MAI Act.
The claimant applied for a review of the decision of the assessor and the matter is now before the Panel for its determination.
Application for Review
The application for referral of the medical assessment of Medical Assessor Assem to a Review Panel (the Panel) was made on 15 July 2021 by the claimant, within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[1]
[1] Section 7.26(10) of the Act.
On 31 August 2021, the delegate of the President referred the medical assessment to the Panel as she was 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.
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[2] that a Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[2] Section 7.26(5A) of the 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.[3]
[3] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
All Panel members have had no previous involvement with the claimant or with this matter.
Statutory provisions
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 and, pursuant to s 7.26 of the MAI Act, on review by a Review Panel.
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 vehicle accident were minor injuries” -section 4.1 the MAI Act.
Rules 127 to 130 of the PIC Rules are made pursuant to Part 5 of the MAI Act. A Review Panel determines how it conducts and determines the proceedings and they determine the proceeding solely based on the written application – see Rule 128 of the PIC Rules.
For consideration by the Panel is whether injuries suffered by the claimant to her right shoulder, lumbar spine and left knee are minor injuries.
A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury 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) is made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the MAI Act. Version 8.1 of the Guidelines commenced on 1 December 2021 and applies to motor accidents occurring on or after 1 December 2017.
With the medical assessment of whether an injury is a minor injury, the Guidelines 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”. However, you do not need to look at a soft tissue injury and radiculopathy if the injury already falls into a non-minor classification.
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 the Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in the Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in the 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.”
In Ali v AAI Ltd [2016] NSWCA 110 Leeming JA doubted that the Guidelines issued under
s 65 of the Motor Accidents Compensation Act 1999 had the force of delegated legislation. His Honour’s reasons included the terms of the legislation which provided the basis upon which the Guidelines were issued. His Honour said;“As presently advised, I incline to the view that s 65(1) lacks the force attributed to it in the insurer’s submissions. Far from a medical guideline having the force of delegated legislation, s 65(1) provides that medical assessments are “subject to” “relevant provisions of” the Guidelines. The relevant provisions are those “relating to” certain procedures: “the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment”. That picks up, almost precisely, the language of s 44(1)(d), which is also directed to procedures.”
Chapter 5 of the Guidelines further defines minor injury are issued pursuant to s 1.6(5) of the MAI Act which provides that they “may make provision” with respect to the assessment of whether an injury is a minor injury. That section is lacking in “having the force” of delegated legislation.
The Panel notes that we are assessing whether an injury is a minor injury and not assessing permanent impairment. The extent of the permanent impairment is determined as at the date of assessment. There is no provision that the extent and the effects of an injury are not so limited although the meaning of “radiculopathy” in Chapter 5 of the Guidelines for example refers to portions of Chapter 6, which relates to the assessment of permanent impairment.
The Guidelines make provision for the assessment for soft tissue and minor psychological or psychiatric injuries and refer to both an examination, diagnosis, and the assessment process. Clause 5.5 of the Guidelines state that the diagnosis “must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the Insurer”.
There is no requirement in cl 5.5 that the assessment be undertaken by the Medical Assessor at first instance or, on review, by the Panel. The reference to “other suitably qualified person independent from the Insurer” suggests that the assessment can be undertaken by a treating doctor.
Clause 5.6 requires that the “the assessment of whether an injury caused by the accident is a minor injury” is based on many factors including prior records and assessments by treating doctors. There is no reason why the reference in clause 5.6(d) to a “through physical … examination” must be undertaken by a Medical Assessor.
Submissions and medical evidence
The claimant submits that with the right shoulder injury, the assessor fell into error in determining that the injury was more likely to be pre-existing and not related to the accident.
The claimant submits that the injury to the right shoulder was acute and that there is no medical evidence that the claimant had suffered a prior right shoulder injury.
With the left knee injury, the claimant submits that the assessor made a material error in his determination. The claimant refers to a bone scan dated 15 July 2020 which the claimant says demonstrated that the claimant suffered from infrapatellar tendinosis or had a partial tear which is a non-minor injury.
With the lumbar spine injury, the claimant makes no submissions. Assessor Assem found this to be a soft tissue injury and non-minor.
An X-ray of the left knee of 5 June 2020 reported a “small loose body in the anterior joint”.
A whole body bone/SPECT and CT scan of 15 July 2020 demonstrated “moderate increase in osteoblastic reaction localised of left anterior tibial tuberosity, consistent with bone contusion/trauma induced tendinitis at insertion site of left infrapatellar ligament”. There was no reference to a loose body.
A whole body bone scan of 27 January 2021 also did not reveal a loose body. Rather, the bone scan was said to demonstrate ongoing post traumatic tendonitis at the insertion site of the left infrapatellar ligament into the left anterior tibial tuberosity.
The claimant submits that the Assessor made a material error the bone scan of 15 July 2020 demonstrated that the claimant suffered from infrapatellar tendinosis or a partial tear which it is submitted is a non-minor injury.
An MRI of the right shoulder dated 1 December 2020 reported a “supraspinatus tear at the insertion on a background of supraspinatus tendinosis. Subscapularis tendinosis. AC joint arthropathy. Subacromial – subdeltoid bursitis”.
The insurer submitted that there was no evidence that the claimant sustained a complete or partial rupture of tendons, ligaments, menisci or cartilage in the left knee and therefore, any injury to the left knee sustained in the subject accident constituted a minor injury for the purposes of the MAI Act according to the insurer.
Assessor Assem Certificate and Reasons 9 June 2021
Assessor Assem noted the submission of the insurer that her treating general practitioner has consistently diagnosed a soft tissue injury to her right shoulder.
Assessor Assem said that according to the contemporaneous medical evidence, there was a soft tissue injury to her right shoulder and left knee. The claimant later reported pain involving her back and right hip. With regards to her right shoulder, she was reported as having radiological evidence of a partial tear to the supraspinatus. Assessor Assem said that had there been an acute supraspinatus tear, there would have been surrounding oedema on radiological imaging and the bone scan would show significant trauma to the supraspinatus tendon or surrounding structures. He said that he therefore reached the conclusion that the pathology identified on radiological imaging was more likely to be pre-existing and not related to the subject motor vehicle accident.
With regard to the left knee, the assessor said that a bone scan suggested infrapatellar tendinosis or a partial tear but a subsequent MRI scan did not identify any tendon tears. The injury to her left knee was therefore a minor injury.
The claimant did not report any back pain at the time of his assessment. Dr Assem said that the claimant therefore did not satisfy the criteria for lower lumbar radiculopathies set out in paragraph 5.9, p86-87 of the Motor Accident Guidelines January 2019.
Assessor Assem concluded that the following injuries were caused by the accident;
(a)right shoulder – soft tissue injury;
(b)left knee – soft tissue injury, and
(c)lumbar spine – soft tissue injury.
However, he concluded that all of the injuries were minor injuries within s 1.6(2) of the MAI Act. The claimant challenges that finding and says that the injuries were non-minor.
The assessor took a history that the claimant fell off her bike landing onto her right side and reporting an injury to her right shoulder and a direct injury to her left knee with a small abrasion over the tibial tuberosity. The following day she attended Liverpool Hospital where she underwent a CT scan of her left knee. This showed sizeable pretibial soft tissue swelling and possible trauma to the infrapatellar tendon at the insertion site.
A certificate of capacity of Dr Samaraskera of 26 June 2020 refers to a diagnosis of “soft tissue injury-right shoulder and left knee due to MVA”. The Liverpool Hospital discharge notes record that on impact, the claimant fell off her bicycle and landed on her right shoulder and then her left knee.
The claimant suffered a minor abrasion to her left knee the Liverpool Hospital discharge referral notes that the claimant attended with a left knee laceration post-accident. With regard to the left knee, it is described as a minor external injury.
Dr Samarasekera, the claimant’s general practitioner (GP), referred to a diagnosis of “soft tissue injury-right shoulder and left knee due to MVA”. The GP clinical notes record the accident on 1 June 2020 and first consultation was 5 June 2020. It was recorded that the claimant landed on her shoulder (which one was not said) and left knee.
Clinical notes of 5 June 2020 remark that the claimant was riding her bicycle on 1 June 2020 when she was hit by a car. It was recorded that;
“Car hit bike handle, fell off, landed on right shoulder then left knee. Knee was swollen immediately and unable to walk. Below left knee, bruised skin laterally-4x5cm and tender. 1cm irregular edge of deep wound- not infected. Right shoulder and the back or right shoulder tender. ROM R shoulder is painful and limited.”
The Ambulance report referred to abrasion “right under the L patella and associated bruising….some bruising noted/abrasion under L patella”. The report also noted the accident, caused the claimant to “come off her bike landing on her R and L leg”. The report goes on to say that the claimant had pain in her right arm.
Fairfield Hospital discharge note referred to “minor external injury to her L/Knee joint”. These also refer to a haematoma on the claimants left knee joint. The discharge notes record that the claimant landed on her right shoulder and then her left knee. An X-ray of the right little finger and left knee were performed. There was no shoulder investigation.
Dr Sun in his report of 6 November 2021 reported that on examination, the claimant had a firm mass in the infrapatellar region, point tenderness. She described sensory change around the common peroneal nerve and infrapatellar region and pins and needles in her second and third digits of her right hand. Pain was not precipitated with pronation or supination of the elbow and she was able to abduct and internally rotate her right shoulder. He said that he had the impression of an ongoing left knee injury, probably an infrapatellar tendon tear and/or other ligaments, right rotator cuff tears, less likely to have had a cervical nerve root injury but that ongoing paraesthesia in the index finger warranted an MRI of the cervical spine.
Dr Bazina in her report of 25 January 2021, referred to persistent changes in her knees, shoulders and “other joints”. There was reference to a left knee effusion, and that her foot/ankle MRI probably showed an ATFL tear and intermetatarsal bursitis, tenosynovitis of the flexor digitorum longus tendon, fluid in the infrapatellar bursa and deep infrapatellar bursa. She was said to have persistent ligamental changes which were bone scan positive after her injuries.
Medical re-examination
The claimant was examined on behalf of the panel by Medical Assessor Kenna on 9 February 2020. The Panel adopts the observations and findings of Medical Assessor Kenna. His report follows;
“There was a Mandarin interpreter present via telephone (NAATI No. CPN90Y25J).
Pre-accident medical history and relevant personal details
Ms Zhen Zhu Su is a 52-year-old female who was seen on Wednesday 9 February 2020 in relation to potential injuries incurred in a cycling accident on 1 June 2020.
By way of background, she is now 52 and has lived in Australia since 1996. An interpreter was online and Mandarin was spoken, although her English appeared proficient.
She noted that currently she is not working and has not worked since the cycling accident over the last 20 months.
She denies any past history of injuries to the right shoulder, back or left knee and notes that since the cycling accident, she has had no injections, operations or surgery.
Treatment wise however, she has had six months of physio and acknowledges that the right shoulder has responded to such treatment over a period of time.
History of the Motor Accident
In the Application for Personal Injury Benefits, the date of the accident is listed as 1 June 2020 when she states in her handwriting, “I was riding my bicycle to go to work on my usual route. A car reversed and hit me, causing me to fall, subsequently experiencing neck, right shoulder pain, back and psychological injuries, as well as to the left leg.” At the time, her usual occupation was that of a machine operator working for PPC Moulding Services.
History of symptoms and treatment following the motor vehicle accident
Ambulance attended and she was transported to Fairfield Hospital (ambulance notes). It was described in the ambulance notes as a low-speed vehicle versus bike motor vehicle accident. That she was found seated on the footpath alert and responsive. That she sustained abrasions to the left knee and also was complaining of right arm pain.
In Casualty, the main complaint was right upper arm pain and after a period of observation, she was discharged into the care of her general practitioner at Villawood Medical Centre, noting at the time the main findings in Liverpool Emergency Department (ED) was left knee laceration post motor vehicle accident requiring dressing to the left knee. She was discharged with crutches. Areas of complaint at the time in ED consisted of right shoulder and left knee. She denied any head, neck or chest injury.
It was subsequent to that she saw her general practitioner shortly thereafter, in which there was a complaint that the right shoulder was painful and limited. That there was bruising to the lateral aspect of the left knee.
Her GP who essentially managed her injuries was Dr Samarasekera who reviewed her over a number of consultations, noting in mid-June 2020, two weeks post-accident, that the right shoulder symptoms had improved, although there was still residual tenderness over the knees. Main issues of concern were right shoulder and left knee haematoma over the left tibial tuberosity.
She underwent a series of x-rays over the following six weeks post-accident, with the bone scan and CT of 15 July 2020 showing a degree of bone contusion and post-traumatic tendonitis at the insertion of the left infrapatellar ligament and the left anterior tibial tuberosity. There was also a suggestion of enthesopathy at the insertion of the right rotator cuff tendon and into the right greater humeral tuberosity.
MRI scan was performed some six months later, which showed a supraspinatus tear at the insertion on a background of supraspinatus tendinosis, subscapularis tendinosis and AC joint arthropathy. There was also subacromial/subdeltoid bursitis.
MRI scan of the cervical spine was essentially unremarkable
MRI of the left knee showed a small joint effusion with ACL sprain but no bony bruising or no meniscal tears identified. The patellofemoral cartilage was intact and the patellar retinaculum defined normally.
Details of any relevant injuries or conditions sustained since the motor accident
Nil.
Current Symptoms
The current symptoms consist of localised pain pertaining to the outer aspect of the right shoulder, pain on the inferior aspect of the left patella (left knee) and some right-sided lower back discomfort. There was also some left knee discomfort involving the anterior shin into the left foot and heel.
In that respect, she acknowledges she was previously very active and also used to do bushwalking besides riding a bike to work. She currently lives in Fairfield East with her husband and two of her three children.
Current and proposed treatment
Continues to take Endep and Lyrica and uses Voltaren Emulgel as required topically.
EXAMINATION
Upper extremities
Shoulder posture was good and well defined. The shoulders were level. She was right-handed but no muscle wasting involving either upper extremity. Note 24cm both upper arms; 22cm both forearms. In comparative views, the left shoulder defined as a full range of movement.
In comparison to the left, the right was reduced but only very mildly indicating substantial improvement post accident.
There was no muscle wasting over the right shoulder in comparison to the left, although there was some slightly reduced movement of the right in comparison to the left. It was only very minor but provocative tests were negative for both joints. There was no neurological deficit involving either upper extremity. The shoulder was not particularly reactive to palpation and as noted, rotator cuff tests were negative.
Right Shoulder : Range of motion was examined 3 x and was consistent throughout, indicating only some end –range restriction.
Measurement
Reference
(4th ed.)
Normal
Flexion
160°
Figure 38 (43)
180°
Extension
40°
Figure 38 (43)
50°
Adduction
50°
Figure 41 (44)
50°
Abduction
170°
Figure 41 (44)
180°
Internal Rotation
80°
Figure 44 (45)
90°
External Rotation
70°
Figure 44 (45)
90°
Total
Goniometer measured
Left Shoulder
Measurement
Reference
(4th ed.)
Normal
Flexion
180°
Figure 38 (43)
180°
Extension
50°
Figure 38 (43)
50°
Adduction
50°
Figure 41 (44)
50°
Abduction
180°
Figure 41 (44)
180°
Internal Rotation
80°
Figure 44 (45)
90°
External Rotation
80°
Figure 44 (45)
90°
Total
Goniometer measured
Lumbar spine
Some localised discomfort but full functional range of movement.
On examination of the lumbosacral spine:
No muscle guarding or spasm present, full range of motion and no asymmetry present.
No neurological deficit evident in either lower limb.
Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.
On formal examination of range of movement there was full range of movement as follows:
MOVEMENTS
RANGE EXHIBITED
Flexion
100% full
Extension
100% full
Rotation to the right
100% full
Rotation to the left
100% full
Lateral bending to the right
100% full
Lateral bending to the left
100% full
NEUROLOGICAL TESTS
REFLEXES
REFLEX
LEFT
RIGHT
KNEE JERK
Normal
Normal
ANKLE JERK
Normal
Normal
SENSATION: No alteration of sensation.
MUSCLE POWER
LEVEL
MOTOR POWER
LEFT
RIGHT
L3
5/5
NORMAL
NORMAL
L4
5/5
NORMAL
NORMAL
L5
5/5
NORMAL
NORMAL
S1
5/5
NORMAL
NORMAL
5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance
MUSCLE ATROPHY:
THIGH
LEFT = RIGHT
CALF
LEFT = RIGHT
No unilateral muscle atrophy present.
DURAL TENSION TESTS
TEST
RIGHT
LEFT
PRONE KNEE BEND
Normal
Normal
STRAIGHT LEG RAISE
Normal
Normal
SLUMP
Normal
Normal
Lower extremities COMPARISON OF LEFT WITH RIGHT (uninjured)
There is no muscle wasting.
There is symmetry between right and left legs above and below the knee.
A normal gait was observed.
There is no use of a cane or brace and no redness, warmth, swelling, effusion or deformity.
Measurement of the involved calf and thigh are symmetrical with the contralateral side.
LEFT KNEE
Ligamentous and meniscal stress tests are normal and painless.
The knee range is from 0 to 125°.
Manual muscle testing shows normal strength in the extremity.
Note that the knees have normal alignment.
No crepitus.
No instability and no tenderness involving the patellar retinaculum.
Left/Right Knee
Extension 0°
¯
Flexion 125°
0
¯
125°
Normal motion
Scars Nil
Quadriceps Wasting Nil
Swelling Nil
Collateral Ligaments Intact
Cruciate Ligaments Intact
McMurray’s Test Normal
Patello-femoral joint Normal
Lateral patellar tilt Nil
Lateral drift (with quadriceps contraction) Nil
Gait Normal
Short leg Nil
Atrophy Negative
Weakness Negative
Range of movement Normal
Osteoarthritis Nil
Amputation Nil
Neurological deficit Nil
Reflex sympathetic dystrophy Nil
Vascular Normal
Left foot
Normal examination”
CONCLUSION
Soft tissue and Minor Injury
Are the injuries to the claimant’s right shoulder, left knee and lumbar spine, minor injuries?
The Panel must ask the question whether there is 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 tissue, fat, blood vessels and synovial membranes)”. If the Panel is satisfied that the answer to that question is yes, then this injury is a soft tissue only and a minor injury by the definition in section 1.6 of the MAI Act.
Assessor Assem considered and noted the MRI of the right shoulder was six months post-incident. He considered the pathological findings present and confirmed by radiological examination which pre-dated the motor vehicle accident, noting a dichotomy of contradiction between the appearance of the claimant, very fit, and the shoulder presentation which is inconsistent.
Similar in findings in relation to the left knee, Assessor Assem stated the claimant suffered from an infrapatellar tendinosis or partial tear and was of the view that the pathology was more likely to be pre-existent and not related to the subject motor vehicle accident, with no dispute from the mechanism of the fall when she fell onto her right side, potentially therefore causing a right shoulder injury.
However, Assessor Assem considered the radiological evidence of a partial tear of the supraspinatus was not acute and was not caused by that subject accident.
He reached the conclusion that the pathology identified in the radiological imaging was more likely to be pre-existing and as noted not related to the subject accident. That was on the basis that if it was acute, there would have been surrounding oedema on the radiological imaging which doesn’t appear to be the case.
Some of the statutory and other provisions suggest a conclusion that the injury is determined over an indefinite period at or following the motor vehicle accident.
“Injury” is defined in s 1.4 of the MAI Act and means personal or bodily injury and is defined to extend to other meanings not here relevant.
“Motor accident” is also defined in s 1.4 and means “an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused” during certain circumstances.
The requirement that the death or injury “is as a result of and is caused” by circumstances such as the driving of a vehicle directs attention to the motor accident rather than to the time of assessment.
Radiculopathy, while not being assessed here, is by way of an example where the symptoms fluctuate over time because the extent of the compression of the spinal nerve root may vary due to inflammation on the nerve root. Symptoms may subside if the inflammation reduces and return because the injured disc is exacerbated by innocuous activities.
Clause 4 of the Regulations broadens the definition of “minor injury” to include an injury to a spinal nerve root that “manifests in neurological signs (other than radiculopathy)”. There is no requirement in cl 4 that the radiculopathy be present at the time of the assessment by a Medical Assessor. The reference to “manifests in neurological signs (other than radiculopathy)” suggests that the radiculopathy occurred at some point but not necessarily at the time of the examination by the Medical Assessor or the Panel. That interpretation is consistent with radiculopathy being a fluctuating condition.
With any one of the three injuries to the shoulder, back and knee, the question must be asked whether there was any evidence of tearing.
As noted, section 1.2 and Part 1, cl 4 of the Regulations provides the definition of a minor injury. The heading preceding clause 5.3 of the guidelines is “General provisions for assessment” of minor injuries. These clauses do not provide a separate basis for defining soft tissue injury.
To determine if a minor injury has occurred, it is clear that reliance can be placed on section 1 .6 of the MAI Act.
Clause 5.6 of the Guidelines applies the appropriate principles in determining whether there is a minor or non-minor injury. Clause 5.6 of the Guidelines contains the procedure for assessing whether an injury is assessed as a minor or non-minor injury. It is not an independent basis for determining whether the injury is non-minor.
Lumbar Spine
On examination, the claimant’s lumbar spine demonstrated normal movement in range of motion. The panel was not satisfied that anything other than a minor injury was suffered by the claimant. Nothing was demonstrated on examination to indicate that there was an injury to tissue that connects, supports or surrounds other structures or organs of the body.
The panel considers that the injury to the claimant’s lumbar spine is a minor injury.
Left Knee
Concerning the claimant’s left knee injury, it is not clear that the claimant has suffered a partial tear. A bone scan suggested infrapatellar tendinosis OR a partial tear (our emphasis) and so was inconclusive. An MRI scan subsequently did not identify any tendon tears. Whilst a partial tear would come in within the definition of a non-minor injury as it is a tear of the cartilage in the knee, the panel is not satisfied that the radiological evidence conclusively establishes that a tear has occurred. At best, the bone scan was suggestive only of a possibility rather than a conclusive conclusion of a partial tear. The panel considers the injury to the claimant’s left knee to be a minor injury.
Right Shoulder
Going to the claimant’s right shoulder, regarding the MRI scan which was performed six months post-accident, and which the insurer funded, this showed a supraspinatus tear at the insertion on a background of supraspinatus tendinosis, subscapularis tendinosis and AC joint arthropathy. That tear in the opinion of the panel is indicative of and evidence of a non-minor injury. That there was no oedema at the time of this MRI scan is not in the opinion of the panel evidence that significant trauma did not occur at the time of the accident.
The Panel does not accept the conclusion of Assessor Assem that had there been an acute supraspinatus tear there would have been surrounding oedema on radiological imaging. The Panel is of the view that such oedema would have passed at the time of the further scan and therefore is not indicative of a tear not having occurred. The panel accepts the conclusion in the MRI scan of the right shoulder of one December 2020 which noted a supraspinatus tear at the insertion on a background of supraspinatus tendinosis.
There is no evidence which has been drawn to the attention of the Panel that the claimant suffered any pre-existing condition or complaint in the area of her knee, lumbar spine or right shoulder.
The panel considers that the injury to the claimant’s right shoulder is a non-minor injury.
The determination is as follows;
The following injuries were caused by the motor accident, diagnoses were changed to more accurately reflect the nature of injuries incurred:
· right shoulder - rotator cuff tear;
· lumbar spine – soft tissue injury, and
· left knee - soft tissue injury.
The following injuries are minor injuries:
· lumbar spine – soft tissue injury, and
· left knee - soft tissue injury.
The following injury is a non-minor injury for the purposes of the Act:
· right shoulder - rotator cuff tear.
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