Tomic v AAI Limited t/as GIO
[2023] NSWPICMP 258
•8 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Tomic v AAI Limited t/as GIO [2023] NSWPICMP 258 |
| CLAIMANT: | Ivan Tomic |
INSURER: | AAI Limited t/as GIO |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 8 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of threshold injury and insurer’s review under section 7.26; claimant involved in a rear-end collision alleging injuries to cervical and thoracic spine, left and right shoulder; Medical Assessor (MA) Gorman assessed all injuries as “minor” (now threshold) injuries; issue in cervical spine, presence of radiculopathy at any time since the accident; issue with shoulders, whether labral tear caused by the accident; Held – Panel not satisfied claimant had or has had cervical radiculopathy at any time since the accident; cervical injury a threshold injury; Panel satisfied tear to posterosuperior labrum could be caused by the accident and was caused in the accident; shoulder injury not a threshold injury; MA’s Medical Assessment Certificate revoked; no issue of principle |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Part 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Gorman dated 10 December 2022. 2. Certifies that the claimant’s right shoulder injury is not a threshold injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Ivan Tomic was involved in a rear-end collision on 18 March 2020.
Mr Tomic says he injured his cervical spine, thoracic spine, left shoulder and right shoulder in the accident. He made a claim for statutory benefits with GIO, the third-party insurer of the vehicle that he says caused the accident and his injuries. GIO has accepted it is the relevant insurer and has paid Mr Tomic his statutory benefits.
A medical dispute arose in connection with that claim about whether any of the claimant’s injuries were not minor (now threshold)[1] injuries. The claimant referred that dispute to the Personal Injury Commission (Commission) for assessment.
[1] The statutory benefits scheme was amended in 2022. The term “threshold” injury was introduced into the MAI Act to replace the previous term “minor” injury and this amendment applies to all claims regardless of the date of the accident or the date of the claim. While the medical assessment and submissions in respect of the dispute have referred to “minor” injuries, the decision made by this Panel will reflect the current terminology of “threshold” injuries.
On 10 December 2022, Medical Assessor Gorman determined that all of the claimant’s accident-related injuries were minor injuries. The claimant was disappointed with that decision and lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 8 February 2023, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment by Medical Assessor Gorman and has allowed the Review.
On 13 February 2023, the President convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Jurisdiction
Mr Tomic’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
The statutory benefits that are available under the MAI Act are limited. One of these limitations is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.[2]
[2] The availability of statutory benefits was amended to allow benefits for 52 weeks (previously 26 weeks) but this amendment only applies to accidents occurring on or after 1 April 2023.
In a common law damages claim, no damages are recoverable if the claimant’s only injuries are “threshold” injuries.
Threshold injury
A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
If a person injured in a car accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) for example says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury”. Clause 5.6 of the Motor Accident Guidelines (the Guidelines) identifies five objective signs of radiculopathy and requires two of them to be present for a finding of radiculopathy to be made.
By operation of s 1.6(2) of the MAI Act and cl 4 of the MAI Regulation an injury to a nerve is generally not a threshold injury, however in the case of spinal nerves, an injury to a nerve root in any part of the spine is a soft tissue (threshold) injury unless the injury has caused neurological signs that meet the criteria or definition in the Guidelines.
Dispute resolution
If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[3]
[3] Schedule2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Woo’s, further medical assessment and the Review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Gorman examined the claimant on 5 October 2022 and issued his certificate on 10 December 2022. He lists the following as the injuries he was asked to assess:[5]
(a) left shoulder injury – impingement;
(b) right shoulder injury - labral tear, and
(c) cervical spine - C5/6 foraminal impingement and stenosis, disc herniation on the left associated with foraminal encroachment and compression of the left C7 root, annular tear C5/6.
[5] The claimant’s submissions dated 20 December 2022 confirm that the thoracic spine injury was not referred for assessment.
Medical Assessor Gorman has a report of the accident, and that the claimant’s car was damaged but driveable. He has the following history from the claimant:
(a) Mr Tomic experienced immediate pain in his neck and right shoulder;
(b) he attended his general practitioner (GP) the next day and had an X-ray and ultrasound;
(c) he developed pain in the left shoulder;
(d) he had physiotherapy, steroid injections in the neck and right shoulder “without significant benefit”;
(e) he saw Dr Smithers (orthopaedic surgeon) and Dr Ghahreman (neurosurgeon);
(f) he had a subacromial steroid injection and Dr Smithers reported “profound improvement” in his pain, and
(g) the claimant has continued right shoulder and right side of the neck pain but minimal left shoulder pain.
On examination:
(a) neck – there was dysmetria but no guarding or spasm. He reported pain over the left trapezius but said it could be on the left and sometimes on the right. Neurologically the upper limbs were normal, and
(b) shoulders – the left shoulder had normal range of motion but there were minor deficits of five of the six movements in the right.
He reviewed the following imaging studies:[6]
(a) MRI arthrogram right shoulder – no true superior labral tear from anterior to posterior (SLAP) but a region of cartilage loss of 6 mm. The labrum was intact and there was mild supraspinatus tendinosis, and
(b) MRI cervical spine – C5/6 foraminal impingement and stenosis, disc herniation on the left associated with foraminal encroachment and compression of the left C7 root and an annular tear at C5/6.
[6] Neither of these imaging studies were identified by the practitioner that reported the results of the study or the date – as there has only been one arthrogram undertaken, this must be a reference to the arthrogram undertaken by Dr Schatz and dated 26 November 2020 found at page 23 of the claimant’s bundle. It is unclear what cervical spine MRI the Medical Assessor was referring to.
Medical Assessor Gorman diagnosed:
(a) a soft tissue injury to the left shoulder or overuse injury due to the right shoulder injury but which appears to have resolved with no impingement;
(b) a significant soft tissue injury to the right shoulder causing tendinosis. While there were some changes in the cartilage there was no true labral tear, and
(c) cervical spine soft tissue injury, as pain was reported immediately after the accident. The changes apparent on MRI are “likely mild degenerative changes” and were not caused by the accident.
In terms of the issue about minor injury, Medical Assessor Gorman determined:
(a) the left shoulder – there was no evidence of any cartilaginous or tendon injuries and is therefore a minor injury;
(b) the right shoulder injury – this involves tendinosis not cartilage or labral injury and is a minor injury, and
(c) there was no evidence of radiculopathy and changes are degenerative and therefore any aggravation of that is minor.
ISSUES FOR DETERMINATION
Claimant’s submissions[7]
[7] The claimant’s submissions are found at page 2 of the claimant’s bundle of documents.
The claimant submits that the Medical Assessor did not address the “small localised non-displaced tear of the free edge of the posterior superior labrum” in his decision.
The claimant points to all of Dr Smithers’ reports and suggests that the complete evidence suggests the claimant is still in pain, and that the diagnosis of tendinosis was not the final diagnosis of Dr Smithers.
The claimant says at [7.2.7]:
“ … the damage to the carilage of the right shoulder with the additional tear of the posteriorsuperior labrum is not a minor injury for the purposes of the Act.”
The claimant argues that he was not symptomatic in the cervical spine before the accident. While the claimant acknowledges there may be degenerative changes at C6/7, the compression of the C7 nerve root and the annular tear at C5/6 were caused by the accident and are not minor injuries.
The claimant says a face-to-face re-examination is necessary.
Insurer’s submissions[8]
[8] The submissions are dated 23 January 2023 and are found at page 3 of the insurer’s bundle.
The insurer submits at [3.3] that the “tear” identified on the MRI of the right shoulder is an incidental finding not caused by the accident and relies on the opinion of Drs Keller and Barrett. The insurer also says at [3.5] that the loss of cartilage is highly suggestive of degeneration and not the result of a “minor” impact motor accident.
The insurer points at [3.6] to the definition of radiculopathy in the Guidelines and identifies the five signs of radiculopathy. The insurer submits that Medical Assessor Gorman found no evidence of radiculopathy. The insurer also says at [3.8] that the radiological findings are of “mild degenerative changes” which were not caused by the accident.
Procedural matters
The Panel met on 20 April 2023 and reported to the parties on 27 April 2023.
The Panel noted that the submissions from the claimant were limited to Medical Assessor Gorman’s assessment of right shoulder and cervical spine injuries. The Panel advised that, subject to submissions it would not consider the left shoulder injury as this injury did not appear to be in dispute.
The Panel requested the claimant identify which of the five signs of radiculopathy (as per cl 5.6 of the Guidelines) were present and when. The Panel then asked the insurer to concede (subject to any issue of causation):
(a) that a tear of the labrum in the shoulder would be a non-minor (non-threshold injury);
(b) that a tear of the annulus of a disc in the spine is a non-minor (non-threshold) injury, and
(c) that if the claimant had two of the five signs of radiculopathy at any time since the accident, that would be a non-minor (non-threshold injury).
The Panel called for additional documentation and information including:
(a) the name of the doctor the claimant saw in 2019 in respect of a neck complaint (as reported by Dr Keller);
(b) MRI imaging, and
(c) photographs of the vehicles involved in the accident.
The panel sought a response and any final submissions from the claimant by
12 May and the insurer by 19 May 2023.
The claimant provided submissions addressing the issue of radiculopathy[9] but did not address at all the issue of the left shoulder injury. The claimant also responded[10] advising:
(a) the claimant did not see a doctor for neck pain in 2019, and
(b) the claimant would bring imaging to the appointment.
[9] Document AD 5 in the Commission’s file dated 11 May 2023.
[10] Document AD 6 in the Commission’s file dated 12 May 2023.
The insurer provided property damage records and responded:
(a) conceding a tear of the labrum would be a non-threshold injury;
(b) conceding a tear of the annulus of a disc can be a non-threshold injury;
(c) if there are two genuine signs of radiculopathy at an examination then the claimant has a non-threshold injury, and
(d) the claimant has failed to demonstrate that the claimant has at any time satisfied that he has two genuine signs of radiculopathy.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claimant’s claim form was signed and dated 18 April 2020. He says the traffic was very heavy and he was hit from the rear. He says he has pain in his neck and shoulders. He described his occupation as “tradie” and that he cannot work.
Dr Oreb signed the first certificate of fitness dated 23 April 2020. He diagnosed a neck injury with bilateral shoulder injuries. There are several further certificates of fitness and two requests for physiotherapy treatment.
The insurer has provided documentation from AAMI concerning the damage to the two vehicles.[11] The damage to the vehicle that hit Mr Tomic’s (a Mazda sedan) was assessed as nearly $12,500 in parts (including the driver’s and passenger’s airbag) and $1,400 in labour.
[11] Document AD10 in the Commission’s file.
The claimant’s vehicle (a Mazda utility type vehicle) was written off on the basis its value was only $3,863.
The photographs show significant deformation damage to the front of the at fault driver’s vehicle and it is very difficult for the Panel to ascertain whether there was any damage to the tray or any other part of the claimant’s vehicle. The Panel notes there is a tow bar protruding from the underside of the tray which may have protected the claimant’s vehicle from significant damage.
Treating medical records and reports
Cervical spine radiology
Within both the claimant’s bundle and the insurer’s bundle were a number of reports of relevant radiology.
X-rays of the cervical spine on 20 March 2020[12] showed straightening of the cervical lordosis but no bony injuries.
[12] The report by Dr Sesel is found at page 107 of the insurer’s bundle.
An MRI of the cervical spine on 16 July 2020[13] showed:
(a) degenerative (non-accident related) changes in the C5/6 and C6/7 discs;
(b) at C5/6 there is a disc bulge which is mild and broad and there is no focal protrusion of that disc, stenosis or cord compression and the intervertebral foramina are normal, and
(c) at C6/7 there is a loss of disc height and the disc shows some broad based bulging and there is a small focal posterolateral disc protrusion to the right with narrowing of intervertebral foramina.
[13] The report by Dr Raleigh is at page 48 of the insurer’s bundle.
There is an MRI of the thoracic and cervical spine[14] taken on 10 February 2021 and reported on 13 February 2021 which concludes “there is mild spondylitic change and no evidence of a disc protrusion or neural compression”. All intervertebral foramina were reported as “preserved”.
[14] The report by Dr Kuan is at page 150 of the insurer’s bundle.
Right shoulder radiology
An ultrasound was taken of the claimant’s shoulders on 20 March 2020[15] this showed impingement in both shoulders with bursal thickening and effusions and restricted abduction on the right side. All tendons and ligaments were reported as intact.
[15] The report by Dr Sesel is found at page 38 of the
The MR arthrogram of the right shoulder dated 28 May 2020[16] showed:
(a) “a non-displaced superior labral tear from anterior to posterior. It involved the inferior labral surface, it is unclear whether it passes through the full thickness of the labrum”;
(b) localised cartilage loss and “mild subchondral bony irregularity and sclerosis suggesting past osteochondral injury”, and
(c) a small joint effusion and moderate subacromial bursal effusion.
[16] The report by Dr Schatz is dated 9 June 2020 and is found at page 40 of the insurer’s bundle.
All other tendons and ligaments appear normal with no tears, but indication of degeneration.
The MR arthrogram dated 26 November 2020[17] found that:
(a) “what was previously called a non-displaced SLAP tear is in fact considered on this study to be a sub-labral foramen, although there is a small localised non-displaced tear of the free edge of the posterosuperior labrum”;
(b) there was localised cartilage loss undermining the inner edge of the labrum but the cartilage over the rest of the glenoid was intact and with no progression since the previous study, and
(c) mild subacromial bursitis.
[17] The report by Dr Schatz is at page 23 of the claimant’s bundle.
Dr Oreb - GP
The insurer has provided a bundle of the claimant’s GP records.[18] These are handwritten and at times difficult to read but include the following information:
(a) on 8 August 2017 there is a note that 16 years ago the claimant had a right shoulder injury, 6 – 7 years ago he experienced renal calculi and that he sustained a disc lesion L5/S1. The claimant appears to have attended for “severe lower back pain” after falling a week ago;
(b) on 29 August 2017, the claimant was referred to Dr David Saravanja (spinal surgeon) and provided with a certificate stating he was unfit for travel and he was prescribed Targin;
(c) the claimant returned on 28 September 2017, having seen the spinal surgeon. He had some physiotherapy and was referred for an MRI. A further certificate and further Targin was prescribed, and
(d) the report from Dr Saravanja to Dr Oreb dated 14 September 2017[19] notes that the claimant was working as a choreographer for the Serbian community dance troupe and that he injured himself in the lower back with a proximal sciatica to the calf on both sides. He had a previous injury which had recovered. Dr Saravanja noted normal range of motion in the cervical spine and thoracolumbar spine (other than in flexion). He was of the view the claimant had a lumbar disc herniation and recommended physiotherapy.
[18] Page 34 of the insurer’s bundle – the King Street Medical Centre.
[19] Page 37 of the insurer’s bundle.
There is then a break in the records and the next attendance was on 19 March 2020 (the day after the accident) when the claimant attended complaining of a painful neck and shoulder pain in both with the right more than the left. The claimant was tender from what appears to be C1 – C5 with reduced range of motion and had reduced motion in the right and left acromioclavicular joint. The claimant was referred for an X-ray of his cervical spine and ultrasound of his shoulders and given a referral for physiotherapy and Panadeine Forte was prescribed.
On 23 April 2020 the claimant’s neck pain and bilateral shoulder pain was ongoing (right more than left) and an MRI scan was requested. The claimant was said to be not working. A prescription for Mobic was added.
Dr Oreb filled in a questionnaire from the insurer which is signed and dated
10 May 2020.[20] He confirms the claimant’s injuries were limited to the neck and shoulders and said he prescribed Mobic and Panadeine Forte. He confirmed he had seen the claimant only twice and the claimant had been referred for MRI scans.
[20] Page 41 of the insurer’s bundle.
Dr Oreb filled in another questionnaire on 1 August 2020[21] for Benchmark Rehabilitation who had been engaged by the insurer to advise about the claimant’s treatment. Dr Oreb referred to a right shoulder dislocation 20 years previously and noted the claimant had been referred to Dr Smithers for the shoulder pain (right worse than left). Dr Oreb advised the claimant was totally unfit for work and referred to the MRI of the right shoulder (non-displaced superior labral tear) and cervical spine (C6/7 posterolateral disc protrusion).
[21] Page 122 of the insurer’s bundle.
Dr Smithers
Dr Smithers (shoulder, elbow, hand and wrist surgeon) wrote to Dr Oreb on
24 August 2020.[22] He noted the speed of the accident as 20 – 30 kmph and that the claimant had not returned to work. There was pain night and day. There was a “radicular component” to the claimant’s pain radiating down to the hand with little and ring finger numbness. Mr Tomic was having physiotherapy and massage.
[22] Page 75 of the insurer’s bundle.
Dr Smithers considered the MRIs and said, “this has demonstrated a subtle undisplaced superior labral tear and supraspinatus and infraspinatus tendinosis”. He said cervical spine imaging has demonstrated C6/7 foraminal stenosis. He said:
“Ivan's right shoulder pain is likely related to the cuff tendinosis and persistent periscapular muscular spasm, with a possible contributing factor from the labral tear. Nonetheless nonoperative management is certainly appropriate. I have recommended a subacromial cortisone injection to address the tendinosis, with the understanding that this will not completely resolve his pain and a comprehensive physiotherapy program which will continue for at least a further three months. This should focus on rotator cuff strengthening but also periscapular musculature control.”
Dr Smithers wrote to Dr Oreb again on 29 October 2020[23] noting a good result from the cortisone injection and a full month of essentially complete resolution of symptoms. This had worn off and his pain had returned. He expressed the view that because the injection had worked so well, tendinosis was the predominant source of pain rather than the labral tear and that surgical management was not necessary. He recommended three months of physiotherapy and a repeat cortisone injection.
[23] Page 138 in the insurer’s bundle.
A further letter was written on 21 January 2021[24] with the MR arthrogram which “demonstrated no true SLAP tear” but there was cartilage loss and an intact labrum. The claimant had been “working hard” at his physio but had not returned to work.
Dr Smithers advised Mr Tomic to have a glenohumeral intra articular cortisone injection and to continue with physiotherapy. He wanted to see the claimant again in three months.
[24] Page 149 of the insurer’s bundle.
The final letter dated 19 April 2021 records that range of motion was not restricted but there was pain and tenderness. He said:
“I explained to Ivan that his MRI with contrast did show a cartilage lesion and some irregularity in the posterosuperior labrum. This certainly may be contributing to his pain though I cannot be certain that this is his primary pathology.”
He has raised the prospect of an arthroscope with “microfracture”.
There is nothing further from Dr Smithers and the claimant has not had the arthroscope.
Dr Ghahreman
Dr Ghahreman wrote to Dr Oreb on 10 August 2020[25] concerning the claimant’s ongoing neck pain noting “he has already tried some injections involving the C5/6 and C6/7 with no significant benefits”. The MRI was repeated which Dr Ghahreman says shows:
“1. Discovertebral changes at C6/7 with mild bilateral foraminal stenosis … and
2. Annular tear and disc desiccation at C5/6.”
[25] Page 26 of the claimant’s bundle.
The claimant was not keen on surgery and consideration was to be given for further facet injections. The Panel notes that Dr Ghahreman does not identify the date or service provider in respect of that repeated MRI. The records before the Panel show that as at the date of this report, there was only one cervical spine MRI dated
16 July 2020. The Panel also notes there is no evidence in the bundles placed before the Panel of any cervical injections provided to the claimant at all although the claimant did tell Medical Assessor Dixon he had cervical facet joint injections in March and
May 2021.
The insurer has also obtained a letter from Dr Ghahreman to Dr Oreb on
14 October 2020.[26] He was asked to review the claimant for neck and right shoulder pain.
[26] Page 136 in the insurer’s bundle and page 27 of the claimant’s bundle.
Dr Ghahreman has a consistent history of the accident, and that the claimant had an injection in his right shoulder which gave one month of relief. The claimant reported continued shoulder pain radiating to the trapezius with some pain in the left shoulder “there are no radicular features” of the claimant’s neck pain.
The claimant was not working and was taking paracetamol, Panadeine Forte and Mobic.
There was some restriction of cervical rotation and extension and diminution in the upper limb reflexes but no signs of cervical myelopathy. He reviewed the radiology but again the Panel notes he does not identify it by date or service provider.
He notes the “absence of myelopathy and radiculopathy” and recommended ongoing physiotherapy for three months and repeat MRIs and a SPECT scan if there was no improvement. He diagnosed the cervical disc injury and “an imbalance in the cervical musculature and a lack of harmony in the function of the superficial and deep, and anterior and posterior muscular support”.
On 10 May 2021[27], Dr Ghahreman noted the C5/6 facet joint injection had not helped at all, but a C6/7 injection helped for a couple of days. He refers to an MRI (which the Panel notes appears to be the March 2021 MRI) saying it shows:
(a) some discovertebral bar (osteophyte complex) at C6/7 with foraminal stenosis on both sides, and
(b) some “discovertebral changes” at C5/6 with no neural compression.
[27] Page 29 of the claimant’s bundle.
He advised further physiotherapy and exercise physiology and fresh MRIs in three months’ time if symptoms persisted.
Other documents
In the first allied health recovery request form dated 24 March 2020 relating to physiotherapy, there is a reference to an injury to the neck and both shoulders. There is also a reference to pre-existing factors “Neck discomfort / pain at night a year ago. Advised by local GP to buy a memory foam pillow. States that he had no symptoms since, until MVA on 18/3/20”.[28]
[28] Page 110 of the insurer’s bundle.
The second request for physiotherapy (dated 14 May 2020) has similar details and report 50% improvement in neck pain and function, constant variable pain in the right shoulder and 50% improvement in the left shoulder pain and function.[29]
Medico-legal reports
[29] Page 116 of the insurer’s bundle.
Dr Keller - insurer
Dr Keller provided a report to the insurer dated 22 July 2020.[30] Dr Keller’s report pre-dates the second arthrogram and deals primarily with the claimant’s shoulder and records:
(a) the claimant is self employed as a builder, painter and maintenance person working 8 – 10 hours a day, five to six days a week involving constant standing with lifting up to 30 kg and driving as much as three hours a day;
(b) the claimant was in a 40 kmph zone when he was hit from behind. He says his car was written off;
(c) he reported right shoulder pain with no other injuries immediately after the accident and he drove his car home;
(d) he developed secondary neck pain, had imaging done and then had four weeks of physiotherapy;
(e) the claimant had the MRI of the right shoulder but had not yet seen a specialist;
(f) he was managing on Panadol;
(g) the claimant had not returned to paid employment, and
(h) Mr Tomic denied previous shoulder complaints but said he did see a doctor for neck pain in 2019 but had no investigations, no treatment and no time off work.
[30] Page 50 of the insurer’s bundle.
The claimant complained of constant right shoulder pain and “reported no other symptoms”.
On examination there was a full and symmetrical range of motion in the cervical spine with no spasm. The claimant did report pins and needles on the right middle, ring and little fingers radiating up the ulnar side of the forearm, but sensation was otherwise normal.
There was a full and symmetrical range of motion in both shoulders although on the right there was pain with full flexion and abduction.
His lumbar spine and lower limbs were normal.
Dr Keller says that labral tears “are not uncommon findings in someone of his age and occupation”. He deferred to an orthopaedic surgeon for an opinion as to whether the tear was caused by the accident and for that surgeon to review the MRI. He did support continued restrictions at work and that the claimant avoid working over chest height.
Dr Barrett - insurer
Dr Barrett provided a report dated 17 September 2020 to the insurer.[31] This report also pre-dates the claimant’s second arthrogram. Dr Barrett also has a history of the claimant working full time as a self-employed builder, painter and maintenance person at the time of the accident.
[31] Page 63 of the insurer’s bundle.
In terms of the mechanism of the accident, the claimant estimated the vehicle that hit him was travelling at 20 – 30 kmph. Dr Barrett records “he had no pain at the time” and that after exchanging details he drove home. While the vehicle was written off, he is still driving it.
Neck and right shoulder pain came on two hours after the accident and the next day he saw his GP in Newtown and then had physiotherapy in Kogarah.
Dr Barratt has a history of the referral to Dr Smithers and the ultrasound guided injection of hydrocortisone which was “very beneficial”. The claimant had not worked since the accident.
The claimant mentioned a right shoulder injury while dancing in Yugoslavia at the age of 15. He said he had pain but recovered fully within a matter of days.
The claimant complained of right shoulder pain and referred pain into the right arm and that it “crunches”. He has difficulty sleeping and lifting.
The claimant also complained of right sided neck pain with intermittent pins and needles and numbness.
On examination of the neck there was dysmetria (lateral rotation to the right). The left shoulder had a full range of motion, the right shoulder was mildly impaired on adduction, internal and external rotation. There was no wasting and no neurological signs.
Dr Barrett was of the view the claimant’s labral tear may have been pre-existing but has been aggravated by the car accident (on the basis the claimant was asymptomatic). The claimant was also said to have sustained a soft tissue injury aggravating the degenerative changes in the spine. He thought continued conservative treatment but raised the possibility of arthroscopic repair to address the labral tear.
Dr Machart - claimant
Dr Machart provided a report to the claimant’s solicitor dated 5 July 2021. The date of this report is, of course, after the claimant’s second MR arthrogram. The doctor has a consistent history of the accident and the claimant’s treatment and noted that the claimant had not worked since the accident.
The claimant was reported as not being a permanent resident in Australia which the Panel notes may mean the claimant may have no access to Medicare benefits.
The claimant complained of intermittent shoulder and neck pain the right worse than the left.
On examination of the neck there was no spasm but there was tenderness and muscle guarding with diminished movement, reduced sensation in the right little and ring fingers, weakness of the elbow right flexion and wasting of the right biceps.
The left shoulder was full other than for internal rotation and the right shoulder was mildly restricted in almost all movements.
Dr Machart considered Mr Tomic’s cervical spine was injured on a background of age-related degenerative spondylosis and the left shoulder displayed signs of impingement and that a right shoulder labral tear was caused by the accident.
Dr Machart was of the view the claimant’s injury was non-minor due to structural damage to right shoulder. He thought the arthroscopic surgery was reasonable and necessary.
RE-EXAMINATION FINDINGS
The claimant attended the re-examination on 24 May 2023 with a Serbian Interpreter.
Background
The claimant said he was a professional dancer and that before his motor vehicle accident he was with a dance group called Collegium from 2008 to 2020 where he was a choreographer. He has not been able to return to dancing since the subject motor vehicle accident.
Mr Tomic said he had emigrated from Serbia originally to teach dancing in 2018. He said he had a previous right shoulder injury in about 2010 or 2011 in Serbia before he came to Australia but he was not clear on the date. He had treatment for it, and it had resolved long before the accident.
The claimant said he was driving his car when it was rear ended. He said that he had immediate pain in his neck and right shoulder. The next day, he went to the doctor and X-rays and ultrasounds were arranged. He said he then developed pain in his left shoulder.
Mr Vekic said he then had physiotherapy treatment and he was reviewed by an orthopaedic surgeon, Dr Smithers, and a neurosurgeon, Dr Ghareman, at St George Private Hospital. Dr Smithers arranged for subacromial steroid and cortisone injections to the right shoulder which gave some improvement. Mr Tomic also had injections into his neck with the C5/6 facet joints injected on 16 March 2021 and C6/7 facet joints treated on 6 May 2021 without sustained benefit.
The claimant was taken to the history from Dr Keller of him seeing a doctor for neck complaints in 2019. The claimant reports that he did not see a doctor in 2018 or 2019 for any neck complaint but that he did have some neck discomfort and pain which resolved when he bought a new pillow. The Panel notes this history is consistent with the history recorded in the allied health recovery request form.
Mr Tomic said he had done some handyman work from 2018 to 2020 which he has not been able to return to at this stage and he still requires Panadeine Forte for pain relief and Mobic as an anti-inflammatory.
Clinical examination
General
The claimant was measured at 180cm tall and weighed 88kg.
Cervical spine
There was stiffness of his cervical spine with flexion decreased by one quarter but extension was decreased by one half. Rotation to the right was decreased by one quarter but that to the left was decreased by one half. There was therefore dysmetria on these two planes of motion. There was no guarding or muscle spasm.
There was no neurological deficit in his upper extremities with power in both arms at grade 5 out of 5 and no objective sensory changes on testing and all upper limb reflexes were symmetrical. The claimant’s forearm and upper arm circumference was the same on both sides.
Mr Tomic had sensory changes in his right upper extremity initially that went down the side of his forearm into the little and ring fingers but he said there was no weakness on sustained grip but he favoured the upper extremity due to his right shoulder pain.
There was no neurological deficit in his upper limbs although he did report intermittent paraesthesia in the little and ring fingers, particularly at night. There was no objective sensory loss in the arms and intrinsic power in the arms was grade 5 out of 5.
Left shoulder
Mr Tomic was tender over the left trapezius muscle and the posterolateral deltoid and there was mild tenderness at the biceps groove.
There was a full range of motion of the claimant’s left shoulder. Should girdle power on the left was grade 4 plus out of 5.
Right shoulder
There was mild restriction of right shoulder elevation with forward flexion 130 degrees, extension 40 degrees, adduction 40 degrees, active abduction 110 degrees with internal rotation 50 degrees and external rotation 80 degrees. Shoulder girdle power on the right was grade 4 plus out of 5. There was no winging of the scapulae on resisted protraction.
CONSIDERATION OF THE ISSUES
Does the claimant have radiculopathy?
Clause 5.8 of the Guidelines provides that radiculopathy is found if there is dysfunction of a spinal nerve root which results in two of the following five signs found on examination:
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 of the Guidelines);
(b) positive sciatic nerve root tension signs (see Table 6.8);
(c) muscle atrophy and/or decreased limb circumference (see Table 6.8 in these Guidelines);
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
On examination by Medical Assessor Dixon on 24 May 2023:
(a) there was no loss of reflexes;
(b) no positive brachial plexus (nerve root) signs;
(c) no muscle atrophy or decreased limb circumference;
(d) no muscle weakness on testing, and
(e) no reproducible sensory loss on testing.
Mr Tomic’s cervical spine examination did not reveal any of the five signs of radiculopathy and (for the purposes of any impairment assessment) showed no radicular complaints or symptoms.[32]
[32] Radicular complaints or symptoms such as shooting pain, burning sensation or tinging which follows a specific nerve root is one of the criteria for a Diagnostic Related Estimate (DRE) Category II in the impairment assessment Chapter 6 of the Guidelines.
On clinical examination, the claimant has a soft tissue threshold injury to his cervical spine and the Panel is not satisfied there was, at the time of the examination any radiculopathy within the meaning of cl 5.6 of the Guidelines.
Has the claimant ever had radiculopathy?
In David v Allianz Australia Insurance Ltd,[33] at [84 – 105] the Panel there considered the issue of “whether an injury is not a minor injury if radiculopathy is present at any time following injury.” At [98] the Panel observed:
“Radiculopathy is 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 returns because the injured disc is exacerbated by innocuous activities.”
[33] 2021 NSWPICMP 227.
The Panel in David found at [104] that if it is established (by way of an assessment that complies with cl 5.5 of the Guidelines) that there are at least two clinical signs of radiculopathy (as set out in cl 5.6) present at any time, the injured person falls outside the definition of ‘minor injury’.
The Panel notes there has been no judicial review of that decision and agrees with the approach of the panel in that matter.
The claimant says that Dr Ghahreman records:
(a) radiating pain from the neck to the trapezius, and
(b) pain in the left shoulder radiating to the thoracic region.
The Panel notes that radiating pain may be a radicular complaint or symptom, but it is not one of the five signs of radiculopathy within the meaning of cl 5.6.
On 13 October 2020 when examined by Dr Ghahreman, there was no radicular features, no sensory or motor deficits recorded five months after the accident.
The claimant submits that Dr Smithers found on 24 August 2020 “a radicular component to the pain from the neck down to the hand, with intermittent little and ring finger numbness.” As explained above, radiating pain is not a sign of radiculopathy and numbness in the little and ring finger may be one of the signs, Dr Smithers has not found two of the five signs required to satisfy the definition in cl 5.6.
The claimant submits that Dr Barrett on 17 September 2020 records that the claimant experiences right-sided cervical pain with intermittent pins and needles and numbness affecting the claimant’s little and ring finger of his right hand. Again, pain in the neck is not a sign of radiculopathy and pins and needles and numbness may be a sign of “reduced sensory loss” but is only one of the signs and two are required to satisfy the statutory definition.
The claimant says that Dr Machart examined him and found:
(a) muscle guarding;
(b) tenderness at C6;
(c) reduced sensation in the right little and ring fingers;
(d) weakness in right elbow flexion, and
(e) wasting of the right biceps.
The Panel notes that muscle guarding is a radicular complaint (see foot note 20) but not a sign of radiculopathy within the meaning of cl 5.6. Tenderness is also not a sign of radiculopathy.
The Panel notes that reduced sensation in the right little and ring fingers could be caused by carpal tunnel problems or could suggest a C7/8 dermatomal pattern of symptoms. The weakness in right elbow flexion could be due to a radial nerve injury or a C6/7 dermatomal pattern. The wasting of the right biceps indicates either a shoulder problem or C5/6 dermatomal pattern.
A nerve root injury is a non-threshold injury if the injury to a particular nerve root manifests in radiculopathy related to that nerve root. That means there must be two signs of radiculopathy referrable to a particular nerve root to establish a non-threshold injury to that nerve root. While Dr Machart has found three possible signs of radiculopathy they do not correspond to the same nerve root but to different nerve roots.
The Panel is not therefore satisfied that, at the time he was examined by Dr Machart, Mr Tomic had radiculopathy within the meaning of cl 5.6.
The Panel is not satisfied on the basis of the whole of the evidence that Mr Tomic, has had, at any time since the accident, two of the five signs of radiculopathy in an examination that complies with the requirements of cl 5.8 of the Guidelines.
Is there a “complete or partial rupture of [cervical] tendons, ligaments, menisci or cartilage”?
The insurer has conceded (in its further submissions) that a tear of the annulus of a disc in the spine can be a non-threshold injury (if caused by the accident). The insurer in its original submissions said the radiology of the claimant’s spine is degenerative and unrelated to the accident.
The Panel notes that Medical Assessor Gorman reported viewing at the assessment an MRI of the cervical spine which revealed:
“C5/6 foraminal impingement and stenosis, disc herniation on the left associated with foraminal encroachment and compression of the left C7 root, annular tear at C5/6.”
The Panel also notes that Dr Ghahreman refers to seeing an MRI and X-ray of the cervical spine which shows:
“… uncovertebral hypertrophy at C5/6 with bilateral formainal stenosis worse on the left side associated with foraminal stenosis and to a lesser extent right sided stenosis … there is a degree of uncovertebral spondylosis at C6/7 and a focal disc herniation on the left associated with foraminal encroachment and compression of the left C7 root. There is bulging of the C6/7 disc and annular tear at C5/6.”
Neither Medical Assessor Gorman or Dr Ghahreman identify this radiology by the name of the person that performed the imaging or the date of it. The Panel notes that none of the radiological reports before it as set out in paragraphs 41 – 44 above report, a disc herniation with compression of the left C7 nerve root.
The MRI scan of 16 July 2020 identifies a small focal disc protrusion to the right at C6/7 but does not refer to an annular tear at C5/6 or disc herniation at C6/7 or any nerve root compression. The MRI scan of 10 February 2021 shows no disc protrusions or neural compression at any level.
While the Panel accepts the claimant has had no pre-accident neck symptoms of any great significance and that he has complained of neck pain after the accident, pain alone is not an indicator of a non-threshold injury.
The Panel also accepts that the radiology that has been placed before the Panel identifies some disc bulging at C5/6 and a small protrusion at C6/7. A disc bulge is not a non-threshold injury as it is not a complete or partial rupture of the ligamentous fibrous ring (annulus fibrosis) of the disc.
A traumatic tear of the annulus fibrosis would be a non-threshold injury, if caused by an accident. There has been no radiological evidence placed before the Panel that evidences a tear of the annulus fibrosis of any disc in the claimant’s cervical spine.
The Panel notes it has no treating material after mid-2021 despite having called for it after the first preliminary conference. If there is another MRI scan after 10 February 2021 that is reported to show an annular tear at C5/6 or a C6/7 disc herniation and compression of the left C7 nerve root, that would alter our decision subject of course to being satisfied that any progression of the changes from earlier MRI are related to the injury caused by the accident.
Is the claimant’s cervical spine injury a non-threshold injury?
The Panel is not satisfied the claimant has or has had at any time since the accident, two of the five signs of radiculopathy indicating a specific nerve root injury. The Panel is also not satisfied that the claimant has had a “complete or partial rupture of tendons ligaments, menisci or cartilage” in his neck.
The claimant therefore has sustained only threshold injuries to his cervical spine.
Was the left shoulder injured in the accident?
The Panel accepts the claimant injured his left shoulder in the accident. He complained soon after the accident of left shoulder pain and symptoms. The left shoulder injury has however resolved. The claimant reported no ongoing left shoulder problems when examined by Medical Assessor Dixon and demonstrated a full range of left shoulder motion.
There is no radiology to suggest a “complete or partial rupture of tendons, ligaments, menisci or cartilage” in Mr Tomic’s left shoulder or any other evidence to suggest a more major injury.
The claimant’s left shoulder injury therefore is a non-threshold injury.
The right shoulder injury
Did the claimant injure his right shoulder in the accident?
The claimant has been forthcoming in disclosing a previous right shoulder dislocation type injury before he migrated to Australia however, he says he had no right shoulder symptoms or problems at the time of the accident. The insurer has not provided any evidence to suggest there were previous problems in the right shoulder.
Dr Oreb’s records reveal contemporaneous complaints of pain in both shoulders with the right being more symptomatic than the left. The claimant has had physiotherapy and specialist treatment of his right shoulder.
The Panel therefore accepts that the claimant did injure his right shoulder in the accident.
Did the claimant sustain a soft tissue injury to his shoulder?
The nature of the claimant’s right shoulder injury is that of a soft tissue injury. There is no evidence of a fracture to any of the bones in or near the shoulder.
Has the claimant sustained a complete or partial rupture of tendons, ligaments, menisci or cartilage?
The MR arthrogram of Mr Tomic’s right shoulder dated 28 May 2020 showed “a non-displaced superior labral tear [SLAP tear] from anterior to posterior” and localised cartilage loss.
The MR arthrogram report of 26 November 2020 says that “what was previously called a non-displaced SLAP tear is in fact considered on this study to be a sub-labral foramen”. The Panel notes that a sub-labral foramen is a constitutional or congenital formation and not an indication of trauma. The 26 November 2020 arthrogram also indicated there was a “small localised non-displaced tear of the free edge of the posterosuperior labrum”.
The Panel notes that unlike the first MRI scan, the 26 November 2020 arthrogram was done using gadolinium contrast dye. The medical members of the Panel note that the use of a contrast dye such as gadolinium enhances the quality of the MRI images which explained the variation of opinions of the radiologist who undertook both scans.
The insurer in its further submissions concedes that a tear of the right shoulder labrum would be a non-threshold injury. The insurer however suggests that MR arthrogram reported on 26 November 2020 shows a tear which is an incidental finding not caused by the accident, and that the loss of cartilage is “highly suggestive of a degenerative condition”.
The insurer relies on reports of Drs Keller and Barratt whose reports pre-date the relevant arthrogram. As Dr Keller and Dr Barratt do not have the relevant MR arthrogram or the subsequent reports of Dr Smithers, the Panel gives their opinions little weight.
On 29 October 2020 Dr Smithers noted the claimant had a good result from ultrasound cortisone injection to the shoulder. In a letter of 21 January 2021 Dr Smithers had noted there was cartilage loss of 6mm with mild supraspinatus tendinosis and that further subacromial injection of cortisone had given moderate relief.
Dr Smithers thought the cartilage lesion and labrum irregularity “may be contributing to his pain” and suggested a diagnostic arthroscopy with possible microfracture but the claimant has not proceeded with this. The Panel notes that Dr Machart felt that arthroscopic surgery was reasonable and necessary when he saw the claimant and in his report of 5 July 2021, he expressed the view that there was impingement and a labral tear that may need repair.
The Panel accepts that the cartilage loss reported in both arthrograms is a tear of the chondral cartilage lining his shoulder and therefore is a complete or partial rupture of cartilage however it is the clinical judgment of the Medical Assessors on the Panel that cartilage loss is degenerative and in a rear end collision unlikely to be caused by the accident. The Panel is not satisfied this is a threshold injury caused by the accident.
The medical members of the Panel are satisfied that, as a seat-belted driver holding onto the steering wheel and involved in a rear end collision, the claimant could have sustained a tear of the ligaments and tendons in the accident.
The medical members of the Panel accept that the 26 November 2020 MR arthrogram showed a tear of the posterosuperior labrum. Noting the absence of pre-accident symptoms and the immediate onset of right shoulder symptoms in the claimant’s history and recorded in the GP notes the medical members of the Panel are satisfied that the claimant did sustain a tear of his right shoulder labrum in this accident.
The Panel is therefore satisfied that the claimant sustained an injury to his right shoulder that is not a threshold injury.
CONCLUSION
In summary, the right shoulder injury is not a threshold injury, the cervical spine injury is a threshold injury (based on the evidence before the Panel) and the left shoulder injury has resolved.
As the Panel has come to a different conclusion to Medical Assessor Gorman, it follows that his certificate must be revoked.
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