Toomey v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 209
•5 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Toomey v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 209 |
| CLAIMANT: | June Toomey |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Mohammed Assem |
| MEDICAL ASSESSOR: | David Gorman |
| DATE OF DECISION: | 5 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for review of Medical Assessor (MA) Kenna’s decision about a “threshold” injury sustained in November 2021 accident; parties agreed Panel need only consider left shoulder (SLAP tear first noted in August 2023) and right shoulder (further tear of an already torn supraspinatus) injuries; claimant’s GP wrote two reports saying claimant was well before the accident and had no complaints of shoulder pain before the accident; pre-accident GP records complaints in both left and right shoulder before the accident; claimant sustained injury in a fall nine months before the accident; attended GP eight days before the accident complaining of shoulder pain; had been prescribed Endone and Panadeine Forte and had scan of right shoulder before the accident which revealed a partially torn supraspinatus; claimant had five radiological studies after the accident with a variety of measurements of the size of the tear; most recent scan showed partial tear had progressed to full thickness tear; Held – claimant bears onus of proof to prove injury and that it is not a threshold injury; Lynch v AAI Limited and Briggs v IAG Limited followed; test of causation formulated in Guidelines applied and Briggs followed; Panel satisfied claimant could have injured her left shoulder and did sustain a soft tissue injury, but Panel not satisfied SLAP lesion identified two years after the accident was caused by the accident; Panel satisfied claimant could have injured right shoulder including further tearing the previously torn supraspinatus and that she did sustain a soft tissue injury of the right shoulder; the Panel was not satisfied that the claimant did further tear her supraspinatus in the accident; reliability of various imaging studies discussed; Certificate of MA Kenna confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Confirms the certificate issued by Medical Assessor Kenna of 28 March 2023 in respect of the injuries assessed. 2. Confirms that all of the claimant’s injuries (including a left shoulder injury) caused by the motor accident on 19 November 2021 are threshold injuries for the purposes of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
June Toomey was involved in a motor accident on 19 November 2021.
Ms Toomey says she injured her neck, lower back and shoulders in the accident. As a result, she lodged an application for personal injury statutory benefits with NRMA, the third-party insurer of the vehicle that ran into the back of her car.
A medical dispute about the nature of the claimant’s injuries has arisen in connection with that claim[1] and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
[1] The insurer denied liability to pay statutory benefits beyond the first 26 weeks after the accident on the basis the claimant’s only injuries were minor (now threshold injuries). The liability notice is dated 13 May 2022 and is found at page 33 of the claimant’s bundle.
On 28 August 2023, Medical Assessor Kenna determined that Ms Toomey injured her cervical spine, lumbar spine and right shoulder in the accident and that all injuries were threshold injuries.
The claimant has lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 19 October 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 20 October 2023 the President’s delegate convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Threshold injury
A threshold injury is defined in s 1.6(1) of the Motor Accident Injuries Act 2017 (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.”
In other words, a soft tissue injury is a threshold injury unless that soft tissue injury comes within the exclusion highlighted in italics above.
In Ms Toomey’s case it does not appear to be disputed that a tear (or further tear) to the right shoulder supraspinatus tendon, or elsewhere in either shoulder would be a partial rupture of soft tissue and therefore a non-threshold injury if that tear (or further tear) was found to exist and be caused by the accident.
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.[2]
[2] Schedule2, cl 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 Kenna’s, further medical assessments and the Review of medical assessments by this Panel[3].
[3] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Kenna examined the claimant on 10 August 2023 and issued his certificate on 28 August 2023. At [2] he noted the following injuries were referred to him for assessment:
(a) cervical spine – muscle wasting and restriction of movement;
(b) lumbar spine – L2/3 mild endplate degenerative changes;
(c) shoulder – tear of the anterior supraspinatus, and
(d) shoulder – thickening of the subacromial-subdeltoid bursa.
Medical Assessor Kenna says at [8] that the claimant denied any previous history of back or neck injuries and denied any problems in the right shoulder. He noted the Western Plains medical centre records that the claimant had an “extensive past history of chronic conditions” including osteoporosis, anxiety, rheumatoid arthritis, backache and lumbo-sacral degeneration. He also notes complaints of right shoulder pain in 2008, 2012 and 2013 and in February 2021 following a fall at a public pool. An ultrasound at that time showed a supraspinatus tear.
Medical Assessor Kenna records at [9] the mechanism of the accident. The claimant was driving her car through an intersection with a green light when her car was rear-ended by the vehicle behind. Police and ambulance attended but the claimant did not go to hospital. After seeing her general practitioner (GP) later in the day Ms Toomey attended hospital where
X-rays were taken.
The claimant’s history of symptoms reported at [10] is that of pain in both shoulders, particularly the right. The claimant was referred to the orthopaedic clinic at the local hospital in May 2022 with “severe right shoulder pain.” The claimant had a right subacromial injection which was said to have given the claimant three months of pain relief. The claimant was reported to have requested surgery to the right shoulder (arthroscopic rotator cuff repair) but the insurer has refused it.
The claimant is reported at [12] to have complained to the Medical Assessor of worsening right shoulder pain, a left shoulder ache, central lower back pain and right sided neck pain and that the pain is not referred into the lower or upper limbs.
Medical Assessor Kenna records at [15] no neurological deficits in the upper limbs and no evidence of radicular symptoms or signs of cervical radiculopathy. When the lumbar spine was examined, there were also no neurological deficits noted at [16] and no evidence of radicular symptoms or signs of lumbar radiculopathy.
Shoulder movements were significantly restricted in both the left and right sides and the Medical Assessor considered there was some inconsistency in the left in particular as the severity of the restricted motion did not correlate to the minimal pathology.
At [19] Medical Assessor Kenna considers the mechanism of the accident noting that it was a low-speed collision although he acknowledges the claimant presented to hospital on the day of the accident with right shoulder pain. However, he considered that the claimant had a past history of shoulder symptoms and in particular following a fall nine months before the accident and an attendance on her GP eight days before the accident with complaints of right shoulder pain.
After reviewing the radiology at [20], Medical Assessor Kenna found the claimant sustained a soft tissue injury to the cervical spine, lumbar spine and right shoulder. He was not satisfied there was any left shoulder injury. He found no evidence of radiculopathy in either the lower back or neck and considered the right shoulder injury to be a soft tissue injury on a background of pre-existing rotator cuff tear. As he found all injuries were soft tissue, he found none of the injuries were not threshold injuries.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant’s submissions at [3] appear to acknowledge the claimant’s previous shoulder complaint but say that the Medical Assessor did not engage with the argument about whether the right shoulder condition had been worsened by the accident.
The claimant refers at [9] to the 23 June 2021 ultrasound which reported a 6 x 4mm intra substance tear to the supraspinatus. The claimant then refers at [12] to a post-accident MRI showing a 6 x 5mm tear of the anterior supraspinatus tendon.
The claimant says at [14] that a further tear, and at [15] the extension of, a pre-existing tear if caused by the accident would be a non-threshold injury.
The claimant then refers at [16] to the ultrasound of 10 May 2023 which shows a full thickness tear of the supraspinatus measuring 9 x 8mm which has led to the surgery. The claimant says the need for the surgery has been caused by or contributed to by the injury sustained in the motor accident.
Insurer’s submissions
The insurer says the Medical Assessor did consider the progression of the claimant’s tear but said it was not caused by the accident.
The insurer attached at [12] photographs of the damage to the two cars suggesting the accident was a minor (not severe or significant) motor accident.
The insurer refers at [14] to various scans and measurements of the claimant’s tear of the supraspinatus:
(a) 23 June 2021 – 6 x 4mm;
(b) 25 January 2022 – 5 mm;
(c) 1 April 2022 – 3 x 3mm, and
(d) 8 November 2022 – 6 x 5mm.
The insurer says at [14] that the tear is “unchanged” and that variations are due to imaging variations and difference in radiological reporting.
The insurer says at [15] that the mechanism of the accident could not have caused the tears because the shoulder was secured by the seat belt, there were no significant forces applied, and the pathology is more consistent with the claimant’s fall. The insurer also says there has been no objective change in the claimant’s symptoms since before the accident.
Procedural matters
The Review Panel issued directions to the parties on 1 December 2023 seeking a bundle of documents from the claimant (and access to imaging studies) by 30 November 2023 and a bundle of documents from the insurer by 22 December 2023. The claimant’s bundle was received on 28 November 2023. No additional bundle was received from the insurer.
The Review Panel met on 18 January 2024 and reported to the parties the next day. The Panel noted:
(a) Medical Assessor Kenna had assessed four injuries (including a neck and lower back injury) and found all four were threshold injuries;
(b) submissions from the parties did not address the neck and lower back injury and the claimant was asked to confirm whether she maintained those injuries were non-threshold injuries;
(c) there did not appear to be a left shoulder injury determined by the Medical Assessor, and
(d) the real issue in dispute between the parties appeared to be whether the accident could have and did cause a further tear of the already torn supraspinatus in the right shoulder.
The Review Panel expressed the preliminary view that if the only issue was the causation of any further right shoulder tear, an in person medical examination was not necessary and an MS Teams audio-visual assessment could occur, and issues of history clarified.
The parties were directed to provide any final submissions by 2 February 2024 (claimant) and 14 February 2024 (insurer).
The claimant provided a response on 25 January 2024 confirming that the right shoulder injury was in issue as was a left shoulder injury being a posterosuperior labrum tear (SLAP lesion) tear first reported in the MRI of 7 August 2023.
The Panel relayed a message to the parties noting that the following matters did not appear to be disputed:
(a) the claimant had a partial tear of the supraspinatus tendon in her right shoulder before the accident;
(b) there have been five ultrasounds or MRI scans of the right shoulder after the accident with a variety of measurements;
(c) on 10 May 2023 the partial tear of the right supraspinatus had progressed to a complete or full thickness tear;
(d) the claimant has a left shoulder posterosuperior labrum tear (SLAP lesion) tear first reported in an MRI dated 7 August 2023;
(e) a further tear of the pre-existing partial tear (or the extension of the pre-existing partial tear) in the right shoulder, if caused by the accident, would be a non-threshold injury, and
(f) a SLAP lesion/tear of the labrum of the left shoulder, if caused by the accident, would be a non-threshold injury.
Having considered the responses from the claimant and the insurer, the Review Panel advised the parties that the Review Panel considered the real dispute between the parties was limited to causation that is:
(a) whether the accident could have and did cause a further tear of the already torn right supraspinatus, and
(b) whether the accident could have and did cause the SLAP tear in the left shoulder.
Neither party objected to the proposed audio-visual examination rather than a face-to-face examination and the re-examination date of 21 February 2024 was confirmed.
REVIEW OF THE EVIDENCE
General observations
The claimant provided a bundle of 866 pages (of which more than 700 pages are GP records). The insurer provided a bundle of documents comprising 294 pages.
Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[4] said:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation … Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical … the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[4] [2022] NSWSC 1079 said at [63].
The Review Panel does not intend to refer to every document in those bundles but only to the documents considered significant and relevant to the issues in dispute.
The Review Panel notes there are no medico-legal reports from either party and there have been no other assessments undertaken by the Commission.
Claim form and claim documents
The claim form submitted by the claimant[5] signed and dated 4 February 2022 alleges injuries to her neck, right shoulder (“torn ligament”) and left shoulder. The claimant accepted she had previous left and right shoulder complaints and attached clinical notes to her claim form[6].
[5] Page 34 of the insurer’s bundle.
[6] Whatever clinical notes were provided have not been identified for the Review Panel. We have only been provided with the claim form.
A certificate of fitness was completed by Dr Athambawa on 6 February 2022.[7] In answer to the question “diagnosis of work-related injury /disease or motor accident-related injury (ies)” the doctor has typed “neck injury whiplash post MVA”. His treatment plan included “analgesics and recommended physio.”
[7] Page 75 of the insurer’s bundle.
The claimant has provided a statement to the insurer’s investigator dated 30 May 2022.[8] She says:
[8] Page 48 of the claimant’s bundle.
(a) she was, at the time of the accident, 68 years of age;
(b) at the time of the accident, she was driving a friend’s car;
(c) the damage done in the accident was repaired at a cost of $8,000;
(d) she approached the traffic lights at Darling Street in Dubbo but slowed down because the car in front had slowed down because of traffic;
(e) the car behind did not slow down and there was a loud bang, and she was jolted forward and “the seat belt saved me”;
(f) she stopped straight away and got out of the car. She described the hit as “hard”;
(g) the car that hit her was a white Hilux with a bulbar on the front;
(h) police and ambulance attended because she said her shoulder (singular not plural) was sore;
(i) ambulance officers said that her blood pressure was up. Ms Toomey denied ever having blood pressure problems and said she was not taking medication for high blood pressure;
(j) she was driven home and took Panadol because of her sore shoulder (singular not plural), then was taken to a doctor (not her usual doctor) and she went to hospital for an X-ray of her right shoulder. She returned to her usual doctor and had an ultrasound and was told she had a partial tear in her shoulder;
(k) she cannot do much with it, she is right-handed, her shoulder is still sore, and she cannot lie in bed;
(l) she had a cortisone injection two weeks ago which “has not done much,” and
(m) she was waiting for a date for an appointment with a surgeon at Dubbo Hospital.
The Review Panel notes there is no specific mention of the left shoulder in this statement and all references to the shoulder are in the singular and not plural.
Both the claimant and the insurer have provided photographs of the rear end of the claimant’s vehicle.[9] Appellate courts in cases such as Blacktown City Council v Hocking[10] have issued warnings to first instance decision makers as to how photographs are to be used in the absence of expert evidence. There is no expert bio-mechanical evidence in this case. While the Review Panel has considered the photographs do not show significant damage, they do show some damage to the back of the claimant’s vehicle consistent with an impact from the rear.
[9] Paragraph 6 of the insurer’s submissions and pages 290-294 of the claimant’s bundle.
[10] [2008] NSWCA 144.
Early documents
The ambulance incident report[11] has a history of the accident occurring at 5 km per hour and that the claimant was “shaken up”.
[11] Page 62 of the insurer’s bundle.
Dr Athembawa wrote a referral to the hospital on 19 November 2021[12] noting the claimant had an motor vehicle accident earlier in the day and she was complaining of pain in her lower back and right shoulder. On examination she was said to have tenderness in the lower back and restricted movement in the right shoulder.
[12] Page 144 of the insurer’s bundle.
This referral notes the claimant’s scripts listed in this referral which included an 11 November 2021 script of Panadeine Forte.
The discharge summary from the hospital[13] notes pain in the claimant’s right shoulder and denies a head strike. The claimant was given Panadeine Forte and discharged home the same day. The cervical spine was examined but there was said to be no tenderness and a full range of motion to the neck recorded. An X-ray of the right shoulder was done but no fracture was seen, and the impression was “soft tissue injury to the right shoulder”. Elsewhere the notes state no neck pain and “not in severe pain”.
[13] Page 66 of the insurer’s bundle.
The X-ray from the hospital reports “glenohumeral joint is normal in alignment. Mild AC joint arthrosis. No evidence of a fracture. No dislocation seen.”
The claimant’s blood pressure was noted at 104 over 63.
The overall impression documented by the hospital was of a “soft tissue injury to right shoulder.”
Treating medical records and reports
The claimant’s GP Dr Athambawa provided a medical certificate dated 12 June 2022[14] which says:
“This is to certify that [the claimant] is suffering worsening right shoulder pain that interferes his [sic] activities of daily living since the motor vehicle accident in November 2021.”
[14] Page 48 of the claimant’s bundle.
Dr Athambawa provided a further medical certificate dated 8 February 2023 which says:
“[The claimant] has been suffering from worsening neck / both shoulder and lower backache since the accident on the 19/11/2021. She was well and free of pain prior to the accident as per my medical notes. Herewith I have attached her recent imaging reports for your kind review.”
Dr Athambawa provided another medical certificate dated 3 October 2023 in which he said:
“this is to certify that [the claimant] has been suffering from right shoulder pain after the accident on the 19/11/2021. She never complained of shoulder pain prior to the accident. She underwent orthopaedic review at Dubbo Base Hospital and received three ultrasound-guided steroid injections for her right shoulder pain, with minimal success in alleviating her pain.”
GP clinical notes
Before the accident
The clinical notes of the Western Plains Medical Centre (Dr Athambawa and others) have been provided. They commence in July 2002[15] with an entry providing a history of hypothyroidism, Sjogren’s syndrome,[16] anxiety and insomnia.
[15] The notes commence on page 100 of the claimant’s bundle however they are in descending date order. The first in time entry of 10 July 2002 on page 259. The same bundle of documents is contained in the insurer’s bundle.
[16] Dry eyes and dry mouth – an immune system disorder.
On 19 August 2002 the claimant attended on Dr Siow for varicose vein and calf issues and the claimant gave this history, “lower back pain claimed … long [history of] this” and radiculopathy was considered, and an X-ray ordered. The X-ray was done and showed degenerative changes and Panadeine Forte was prescribed.
The claimant attended on 6 March 2003 with a sore neck said to be a “recurring problem.” In April 2003, due to insomnia the claimant was prescribed Stilnox.
On 5 January 2004 the claimant saw Dr David Gibson with, “low back pain for week, slipped at Hungry Jacks and grabbed railing, worse on bending and lifting, no radiation down legs.” On 8 January the claimant attended again with lower back pain radiating into the groin which was not improving. Radiology was ordered. On 4 February 2004 she attended on Dr Dawoud with acute lower back pain as a result of a fall. Panadeine Forte was prescribed, and radiology was ordered. Three days later Dr Dawoud refers to sciatica confirmed by the CT scan and prescribed Mobic and Tramal. This episode of lower back pain continued on 24 February 2004 with sciatic pain reported on and off. Physio was prescribed as was more Tramal.
Ms Toomey’s lower back and sciatic pain was reported again on 25 April 2004 and the claimant was reported to be seeing Dr Johnson. Panadeine Forte made her sick and Endone was prescribed. On 29 April 2004 the claimant requested a sedative and Stilnox was prescribed. On 19 May 2004 the claimant complained about lower back and left hip pain and Vioxx and Panadol was prescribed and an X-ray ordered.
On 1 August 2004 the claimant attended on Dr Gibson complaining of shooting pain down her legs, behind the knees and mainly left sided but there was no back pain. Panadeine Forte however was prescribed on the basis of irritation of the exiting left nerve root. There were additional attendances in October and November with scripts and physiotherapy provided for lower back pain. A Centrelink certificate for sciatica was completed on 12 December 2004.
The claimant attended on 13 March 2005 referring to a two-year history of left sided sciatica, she had refused an epidural and was provided with scrips for Voltaren, Panadeine Forte and Stilnox. Endone was prescribed two weeks later for cheek and jaw pain.
Dr Siow saw the claimant on 3 June 2005 with exacerbation of pain associated with the lumbar spine injury and radiculopathy with radiation of pain down the legs (plural). Tramal, Panadol and Mobic were prescribed. There were similar attendances on 20 and 30 June 2005 with an exacerbation of lower back pain mentioned. The claimant was prescribed Stilnox and Panadeine Forte. These two medications were prescribed again on 30 August 2005 for radiating lower back pain and again on 3 November 2005 for backache.
On 7 April 2006 the claimant attended complaining of right sided sciatica and was prescribed Tramal and Panadeine Forte. There were also complaints of acute arthritis in January and July 2006 in both hands the right more than the left. The claimant was requesting Panadeine Forte and Stilnox. On 11 September she was prescribed Panadeine Forte and complained of polyarthritis.
In March 2007 the claimant attended complaining of pain in both ankles and in June 2007 she reported “a few aches and pain although nothing too bad.” But on 9 August 2007 her hands, knees, legs and ankles were sore, her joints were swollen and Panadeine Forte was prescribed. A repeat script was given on 16 August 2007 for “joint pain, history of arthritis.”
The claimant attended with autoimmune joint pain on 17 January 2008 and was given a script for 240 Panadeine Forte tablets. On 27 January 2008 the claimant was complaining of headaches, stress and aches and pains from the joints. A further script for 240 Panadeine Forte tables was prescribed on 18 May 2008 due to her knees, shoulders and hips hurting.
On 11 September 2008 the claimant needed Panadeine Forte due to a painful right shoulder after helping her daughter move home and two weeks of intensive physical activity. The claimant was given a script for Panadeine Forte and the notes record all right shoulder movements were restricted due to pain and there was tenderness of the AC joint and rotator cuff. Panadeine Forte was requested on 30 November 2008 and given by Dr Nelson-Marshall, but no clinical findings are reported or clinical reasons given for this script.
On 22 April 2009 a history was given of the claimant falling on her right shoulder three days earlier with a possible dislocation or fracture and while all movements were present there was restriction in all directions. Radiology was ordered and Mobic prescribed. On 26 May 2009 her arthritic pain was said to be “terrible”.
On 15 November 2009 the claimant had neck pain associated with some kyphosis of the upper thoracic and lower cervical spines and was given 240 Panadeine Forte tables. On 5 July 2010 the claimant had pain in the right scapula area and was prescribed Mobic. On 31 July 2010 her arthritis was worse, and she was prescribed Celebrex and Endone. Endone was prescribed on a further two occasions in October 2010 for possible shingles (zoster) in the right shoulder. On 18 November 2010 the claimant said the Endone did not work and that Panadeine Forte gave her nausea. Oxycontin tables were provided. Further scripts for Oxycontin were prescribed in February 2011.
Pain in the hands, knees, feet and back with swollen joints was the subject of at attendance in April 2011 and Oxycontin was again prescribed. After a CT scan showed a bulging disc, a diagnosis of rheumatoid arthritis and osteoarthritis was made and more Oxycontin was prescribed on 20 May 2011.
The claimant continued to attend the practice receiving scripts for Stilnox and Oxycontin for joint pain (6 May 2012) and worsening arthritis (27 May 2012). On 24 June 2012 the claimant attended for “right shoulder pain after holding her grandson” and she was tender over the joint line. Oxycontin was prescribed. On 26 August 2012 the claimant was complaining about arthritis pain and was prescribed Oxycontin. Shoulder pain was the subject of an attendance on 18 October 2012 and an ultrasound and x-ray was requested. The claimant was seen with the ultrasound results on 24 November 2012 with bursitis diagnosed and further Oxycontin tablets were prescribed.
On 17 June 2013 the claimant saw Dr Gudipalli, with “arthritis in the shoulders and multiple joints” and she was prescribed Oxycontin. On 23 August 2013 she attended Dr Paing “shoulder pain chronic [rheumatoid arthritis] worse with cold weather. Left shoulder worse than right.” Oxycontin was prescribed.
Ms Toomey attended on 9 May 2014 and it is recorded she had joint pain in her hands and feet and back pain. Panadeine Forte was prescribed. On 14 June 2014 she requested Oxycontin and Panadeine Forte for arthritis. The claimant sought a disability parking permit on 3 November 2014 for “back pain and arthritis.” On 29 December 2014 the claimant attended Dr Paing wanting Panadeine Forte for lower back pain on the basis that Panadol Osteo did not help. Dr Paing reports the claimant would get a month’s supply from her “usual GP” and Dr Pain only prescribed 20 tablets.
On 6 and 23 January 2015 the claimant attended for right elbow pain, osteoarthritis in the big toe and knees, severe pain in the ankles and elbow and Endone, Panadeine Forte and Valium were prescribed.
On 4 April 2015 chronic back pain was the subject of an attendance and Panadeine Forte was prescribed. On 19 April, pains in the left elbow and shoulder were reported.
On 27 June 2015 the claimant attended Dr Rahman for “regular pain script” complaining of chronic back pain and shoulder pain. She had used 720 tablets in three months and the note says “?script from different centre dispensed.” He prescribed 120 Panadeine Forte tablets.
Valium was prescribed on 20 July 2015 due to anxiety and severe insomnia and chronic back ache was referred. Further repeats of Valium were given at later consultations.
On 28 December 2015 Dr Athambawa noted there was a flare up of shoulder pain with the left shoulder worse and limited range of motion. He prescribed Valium, Endone and Panadol Osteo. Further scripts were prescribed for a flare up of joint pain in March 2016.
On 15 November 2017 the claimant saw Dr Athambawa with worsening lower back ache more on the right side radiating to both hips and legs. Radiology was ordered and Brufen prescribed. Dr Athambawa saw Ms Toomey again on 17 June 2018 with complaints of finger aches and pain, insomnia and Mersyndol Forte was prescribed.
Dr Paing saw the claimant on Sunday 1 July 2018 concerned about the claimants’ chronic insomnia and “benzo” use and possible addiction.
The claimant was prescribed further Mersyndol Forte, Naprosyn and Stilnox on 22 July 2018 with a history of bilateral hand pain and stiffness. On 21 August and 9 September 2018, Dr Athambawa prescribed Panadeine Forte but it is not clear for what reason. There is reference to chronic pain on 2 February 2019.
The claimant was given scripts for Voltaren and Mersyndol in June 2019 by Dr Athambawa with complaints of chronic pain, and foot pain in particular.
On 19 January 2019 the claimant saw Dr Fernando with jaw pain and was prescribed Panadeine Forte.
The claimant saw Dr Athambawa on 17 June 2020 requiring a disabled parking form completed which was filled in and scanned.
On 24 February 2021, Dr Athambawa notes the claimant had a fall after falling on the side of a pool. Panadeine and Valium were prescribed, and the claimant denied falling on to her shoulder but complained of left shoulder pain. Radiology of the pelvis and hips. The claimant complained of pain, denied trauma and said, “this has been there over years.”
On Sunday 7 March 2021 the claimant attended with worsening left knee pain after falling over at a pool and a right shoulder ultrasound was ordered due to “worsening pain right shoulder after a fall in a gutter at the public pool”. The claimant was said to be tender over the acromioclavicular joint and unable to raise her shoulder. Mobic was prescribed. On 14 March 2021 Dr Athambawa prescribed Panadeine Forte and uploaded the X-ray and ultrasound reports which showed impingement, bursitis and a reference to Dr Curtin was provided. On 22 March 2021 a further script for Panadeine Forte was provided.
Ms Toomey attended upon Dr Athambawa on 8 April 2021 complaining of pain and muscular stiffness in the back without trauma. She was unable to sleep, and pain was radiating to her left leg. Norgesic was prescribed.
The claimant attended again on 15 April 2021 and saw Dr Athambawa for back ache and severe pain and tenderness over the sacroiliac joints after the pool fall. Endone and Mobic were prescribed. Ms Toomey attended another GP the next day seeking scripts for Valium which were given.
The claimant saw Dr Athambawa on 25 April 2021 for lumbar spine review and Valium was prescribed and on 9 May 2021 Dr Athembawa prescribed Panadeine Forte for a flare up of lower backache which was said to be interfering with her activities of daily living. Further scripts were given on 16 May 2021.
On 26 May 2021 the claimant saw Dr Athambawa and an ultrasound of the right shoulder and hip and gluteal region were ordered due to worsening pain in the right shoulder:
“pain all night and day – limited movements of the right shoulder due to pain – pain right hip and gluteal region – post fall pain – on walking and sitting.”
On 7 June and again on 17 June 2021 Dr Athambawa prescribed Panadeine Forte. The claimant attended on 1 July 2021 for review with the ultrasound of her right shoulder and Dr Athambawa prescribed Mobic and Valium. On 18 July 2021 the claimant attended for a flare up of her lower back ache said to be interfering with her activities of daily living and Panadeine Forte was prescribed.
More Panadeine Forte was prescribed with complaints of right hip pain on 5 August 2021. On 8 August 2021 the claimant attended for right gluteal pain and was prescribed Mobic. On 12 August 2021 Dr Athambawa prescribed Valium to the claimant as she was on edge and worried about her blood pressure which was recorded at 158/80.
On 30 August 2021 Dr Athambawa prescribed Panadeine Forte and Brufen for a flare up of the claimant’s lower backup with pain noted as interfering with her activities of daily living.
On 6 September 2021 Dr Athambawa saw the claimant who was complaining of worsening lower backache, being unable to lie on the bed in “severe pain”, not able to sleep and she said this was pain since the fall. He advised a steroid injection and physiotherapy. On 15 September 2021 he prescribed Panadeine Forte. On 7 October 2021 he prescribed Panadeine Forte and Valium although no clinical findings or reasons were given.
On 20 October 2021 the claimant’s blood pressure was 130 over 80. She was complaining of hip pain (worsening) and Panadeine Forte and Mobic was prescribed.
On 11 November 2021 Dr Athambawa prescribed Panadeine Forte with Brufen after the claimant attended with right shoulder pain and backache. On 15 November the claimant attended requesting a letter for exemption from jury duty complaining of pins and needles in both hips.
After the accident
There is a note from Dr Volceva on the day of the accident at about 4.30pm with the claimant complaining of an injury to her lower back pain and right shoulder. The claimant was referred for an ultrasound and sent to the hospital. The same doctor saw the claimant two days later recording pain in the lower back and right shoulder pain more than the left shoulder. On 23 November 2021 the claimant was seen by Dr Volceva complaining of pain in the foot and imaging was requested.
On 24 November 2021 the claimant attended upon Dr Athambawa by telephone and was prescribed Panadeine Forte because of “post MVA in pain”. The claimant next attended for accident-related issues on 12 December 2021 with the scan results and no additional medication was prescribed. On 26 December 2021 there was ongoing pain reported in the left shoulder “for few months since have a MVA recently getting worse, having difficulty mobilizing of left arm”. Blood pressure was 134/76 and Panadol Osteo was prescribed.
On 1 January 2022, the claimant was complaining of right shoulder pain over the last few months since a car accident and Panadeine Forte was prescribed.
There are no further entries.
A referral was written to the Orthopaedic Clinic at Dubbo Hospital by Dr Athambawa on 18 May 2022.[17] The referral references only “severe right shoulder pain” after the car accident and that an injection had not helped.
[17] Page 288 of the insurer’s bundle.
The claimant’s blood pressure has, in the past been elevated for example at 136 /85 on 30 November 2014, 130 over 80 on 23 May 2016, 129 over 84 on 21 August 2018. On 6 January 2019, Ms Toomey’s blood pressure was 140/80, 130/80 on 21 February and 14 April 2019, 150/80 on 18 August 2019, 154/84 on 21 August 2019,145/80 on 27 August 2019. On 2 September 2019 it had returned to 120/80. On 12 August 2021 it was measured at 158/80 and on 20 October and 15 November 2021, 130/80. Blood pressure was 134/76 on 26 December 2021 and 135/85 on 1 January 2022.
The Review Panel notes there is no record of the claimant being prescribed any blood pressure medication.
Treating specialists
Before the accident
In 2004 the claimant saw Dr Johnson, rheumatologist who diagnosed her with Sjogren’s syndrome.[18] In July 2004 the claimant reported lower back pain radiating into the left leg which was at times quite disabling. Later in the year she reported left elbow pain.
[18] See page 156 and following of the insurer’s bundle.
On 25 August 2011 Dr Johnson wrote to Dr Caterson noting no major issues but that:
“…her back pain and recent shoulder pain are bothering her. Her shoulder has a painful arc and despite the relatively normal ultrasound I suspect she’s probably got some tendonitis. I offered to inject the joint for her, but she has almost a pathological fear of needles and so did not take me up on that.”
On 31 May 2012 Dr Johnson wrote to Dr Caterson again noting the claimant had settled on a dose of Prednisone for her vascular rash. The claimant had a “recurrence of her lower back problems.”
After the accident
On 13 May 2021 Dr Johnson wrote to Dr Athambawa noting the fall at the local pool. He said, “it has taken her a while to recover” and noted there was still effusion in the injured right knee with a good range of movement, but the claimant was reported as being “quite distressed.”
Dr Johnson on 9 December 2021 reported to Dr Athambawa that the claimant was well with low inflammatory markers. The claimant had ongoing pain in the right hip which the claimant said was due to the fall she had at the pool. Dr Johnson reports “increased pain in the right shoulder” noting previous issues in the shoulder. The Review Panel notes there is no mention of the car accident in Dr Johnson’s report.
Radiology
Before the accident
A CT scan on 18 May 2011 due to low back pain showed a slight central disc bulge at L5/S1.
An X-ray of the right shoulder on 20 July 2012[19] was reported to be normal. An ultrasound of both shoulders was performed on 15 November 2012 due to pain in the shoulders.[20] On the right there were degenerative changes including insertional changes in the subscapularis but no definite tear. Similar findings were made of the left shoulder.
[19] Page 313 of the claimant’s bundle.
[20] Page 324 of the claimant’s bundle.
On 9 March 2021 the claimant had an ultrasound and X-ray of her right shoulder[21] with a history of “pain after a fall.” There was no evidence of fracture or dislocation but some minimal osteoarthritis at the acromioclavicular joint. The ultrasound noted evidence of subacromial bursitis, a small effusion at the AC joint but no significant ultrasound abnormality in the tendons.
[21] Page 402 of the claimant’s bundle.
On 20 April 2021, the claimant had a CT of her lumbar spine and pelvis due to severe pain over the sacroiliac joints and radiating pain in the left leg and knee. There was flattening of the disc at L3/4 and rounding of the disc at L5/S1 and mild degenerative changes in the sacroiliac joints but no canal or foraminal stenosis or narrowing.
On 23 June 2021 the claimant had an ultrasound of her right shoulder[22] due to “worsening pain with limited movement”. There was no definite tear of the biceps tendon, what was described as a “tiny intrasubstance” 6 x 4mm tear of the supraspinatus “superimposed on tendon thickening consistent with underlying tendinopathy” and an intact infraspinatus. There was joint osteoarthritis seen in the AC joint with a large effusion “bulging the capsule and bony irregularity.”
[22] Page 369 of the claimant’s bundle.
After the accident
An X-ray of both the claimant’s shoulders was performed on 29 November 2021. The report[23] says there was no fracture or dislocation although mild degenerative changes in both acromioclavicular joints. The glenohumeral joints appeared normal.
[23] Page 60 of the claimant’s bundle.
A CT scan of the lower back on the same day showed no fracture or dislocation but mild degenerative disease in particular at the L2/3 level.
An ultrasound on 25 January 2022[24] at PRP Dubbo showed “no full thickness rotator cuff tear” but a partial tear of the supraspinatus measuring 5mm.
[24] Page 281 of the insurer’s bundle.
On 4 February 2022 a CT scan of the cervical spine was done due to “worsening neck pain radiating to both shoulders”. The report[25] was of mild spondylitic changes, mild foraminal stenosis and no definite evidence of neural compromise.
[25] Page 65 of the claimant’s bundle.
The claimant had an ultrasound of both shoulders on 1 April 2022 due to “worsening left shoulder pain and right biceps pain” and a comparison was done with the 25 January 2022 ultrasound[26]. The presence of a small tear of the supraspinatus insertion was seen and measured 3 x 3mm. There was no tear on the left side reported.
[26] Page 69 of the claimant’s bundle and page 282 of the insurer’s bundle.
On 10 May 2022 the claimant had an ultrasound guided injection of anaesthetic into her right shoulder due to “bursitis”.
On 27 June 2022[27] the claimant had an X-ray of her right elbow because of “chronic elbow pain.” The report[28] says the elbow was normal.
[27] Page 286 of the insurer’s bundle.
[28] Page 72 of the claimant’s bundle.
On 8 November 2022, the claimant had an MRI of her right shoulder[29] and it is noted that “fast scans were performed due to claustrophobia.” The report indicates there was a small tear of the anterior supraspinatus measuring 6 x 5mm, mild tendinopathy, mild subacromial-subdeltoid bursitis, slight medical subluxation of the long head of biceps tendon and a type II SLAP tear.
[29] Page 75 of the claimant’s bundle.
On 16 December 2022 the claimant had a further MRI of the lumbar spine due to “low back pain”. The report[30] found “no definite cause for symptoms” but found minimal endplate degenerative change at L2/3 with no neural compression.
[30] Page 77 of the claimant’s bundle.
A CT scan of the pelvis and both hips was done on 17 January 2023 because of worsening lower back and left hip pain. The report[31] notes “no evidence of hip arthropathy” although there was mild degenerative change in the sacroiliac joints and evidence of diverticular disease in the colon.
[31] Page 79 of the claimant’s bundle.
A whole body scan was done on 30 January 2023 due to severe lower backache with the claimant reported as being unable to stand, sit or walk.[32] A comparison was made to a scan of 8 June 2016. They were said to be similar. There was mild right L5/S1 uptake and some low grade trochanteric bursitis.
[32] Page 80 of the claimant’s bundle.
On 10 May 2023 the claimant had a further ultrasound[33] due to worsening right shoulder pain and a comparison was made with the 8 November 2022 ultrasound. There was now a full thickness tear of the supraspinatus measuring 9mm x 8 mm, moderate bursitis with impingement and medically subluxed long head of biceps tendon.
[33] Page 89 of the claimant’s bundle.
On 6 July 2023 the claimant had an MRI of the right shoulder.[34] The finding was reported of a small full thickness non-retracted delaminating tear at the anterior supraspinatus footprint on a background of mild to moderate tendinopathy. There was AC joint arthrosis and mild bursitis. The tear was measured at 6-7mm anteroposterior and 2mm long. The SLAP lesion was noted.
[34] Page 96 of the claimant’s bundle.
The left shoulder was the subject of an MRI on 7 August 2023.[35] Th results were no definite rotator cuff tear but a tear of the posterosuperior labrum. On the same day and MRI was performed of the lumbar spine due to “lower limb radiculopathy with back pain.” there was no cause found for the radiculopathy as there was no canal or significant foraminal stenosis and no impingement of the nerve roots. There was also a SLAP lesion detected.
[35] Page 97 of the claimant’s bundle.
A bone scan was undertaken on 24 January 2024 due to “low back pain”[36] It revealed “no significantly active lumbosacral facet joint arthritis. Mild degenerative changes in both [sacroiliac] joints and both hips. Bursitis / enthesopathy involving the right greater trochanter.”
[36] Uploaded to the portal separately by the claimant on 24 January 2024.
RE-EXAMINATION FINDINGS
The medical assessment was scheduled at 12.30pm on 21 February 2024 via Telehealth using MS Teams technology. The claimant attended, accompanied by her grandson.
The claimant was co-operative but the interview was difficult. She gave very short responses to most of the questions asked of her, It was hard to obtain much detail about her pre- and post-accident history as she appeared unclear about dates and the treatment she had received before the accident. She was however adamant that while she had pain before the accident, it was worse after the accident.
Pre-accident medical history and relevant personal details
June Toomey is 70 years of age, a single pensioner, now living at Dubbo with her two grandsons. She is a non-smoker and does not drink alcohol.
Ms Toomey denied being involved in any motor vehicle accident before the one on 19 November 2021, nor has she been involved in any motor vehicle accidents since.
The past history of chronic conditions contained in her GP notes was read to her and she confirmed that before the accident she had been diagnosed with the following:
(a) osteoporosis;
(b) anxiety;
(c) rheumatoid arthritis;
(d) Sjorgen’s syndrome;
(e) hypothyroidism;
(f) varicose veins, and,
(g) backache and lumbosacral disc degeneration.
Ms Toomey confirmed complaints of shoulder pain were reported to her GP before the accident which had been investigated and treated with pain killers.
Ms Toomey was specifically asked about a fall on 23 February 2021 at a pool, some nine months before the motor vehicle accident. Ms Toomey reported that the fall was not significant. She said she scratched her legs and only her hands hit the water.
History of the motor accident
Ms Toomey gave a history of being the driver of a car on 19 November 2021 being the driver of a car with a friend in the front seat. They were both wearing seatbelts. They were going through a green light and had slowed down and nearly stopped before there was a rear-end collision by another car. Ms Toomey had no warning of the accident and did not say she had seen the vehicle approaching. She was holding on to the steering wheel navigating an intersection.
Ms Toomey reported that the noise was so loud that she thought that the car had “blown up”. She recalls her right shoulder was “jerked”. Ms Toomey said it cost $9,000 to repair the boot of her car.
Both police and ambulance attended but she did not go to Dubbo Base Hospital initially but saw her general practitioner the same day, at his suggestion she then went to Dubbo Hospital where X-rays were taken in casualty.
History of symptoms and treatment following the motor accident
Ms Toomey thought she had pain in both shoulders, immediately after the accident but more particularly in the right.
Ms Toomey said she was seen at Dubbo Base Hospital. The impression from the hospital was of a soft tissue injury to the right shoulder. No mention was made in the casualty notes of any complaints in the left shoulder. Ms Toomey did not remember and could not explain what she said to the hospital staff. A plain film of the right shoulder indicated no fractures and there was no imaging done of the left shoulder.
Ms Toomey was discharged from hospital into the care of her general practitioner, Dr Athambawa, of the Dubbo Clinic. She saw him several times after the accident.
On 18 May 2022 Ms Toomey said her treating GP referred her to the orthopaedic clinic at Dubbo Base Hospital, noting she was suffering from severe right shoulder pain and her right shoulder pain was interfering with activities of daily living.
Ms Toomey said she had a right subacromial injection and has responded well, which gave her three months relief.
Ms Toomey says she is now on the waiting list for an operation on the right shoulder. The Review Panel notes this surgery is right shoulder arthroscopic biceps tenotomy, tenodesis, plus or minus cuff repair and subacromial decompression – the request was dated 29 June 2023. She was told that she needed this to reduce the chance of her needing a “full shoulder reconstruction” in the long term.
When asked Ms Toomey did not give any history of any specific left shoulder treatment since the accident.
Current symptoms
Over the two years since the accident, Ms Toomey reported she has progressively got worse shoulder pain, with the right shoulder more severe than the left. Both arms feel “weak” with the right being worse than the left.
The lower back pain “is now worse than the shoulder” she reported. The pain is in the back and down the side of the right leg. Her legs feel weak.
Her neck pain “is still there” she reports, and she has trouble rotating to the right.
She says she cannot lie on her right shoulder at night.
She reports increased abdominal pain since the accident. She gets constipated and has had episodes of faecal incontinence. While she does not believe that the change is related to medication.
Her grandson helps her out with regards to shopping, carrying all her shopping.
Current and proposed treatment
Ms Toomey says she is currently prescribed:
(a) Panadeine Forte which she takes two to three times per day;
(b) Endone which she takes once a day and which she says only started after the accident;
(c) Thyroxine, and
(d) naturopathic medications.
Ms Toomey says she is still having physiotherapy.
There is a proposed surgery request on 29 June 2023 for right shoulder arthroscopic biceps tendinopathy and tenodesis plus or minus a rotator cuff repair with subacromial decompression. She is on the waiting list for this she reports.
Ms Toomey also said she is to have cortisone injections in the hip and cervical spine – these she reported were arranged by a specialist at the hospital.
CONSIDERATION OF THE ISSUES
Reliability of the evidence
Dr Athambawa’s reports
Ms Toomey relies on two reports or certifications from Dr Athambawa as follows:
(a) 8 February 2023 – in this document the doctor says that the claimant “has been suffering from worsening neck / both shoulder and lower backache” since the accident and that “she was well and free of pain prior to the accident”, and
(b) 3 October 2023 – in this document, he says the claimant “has been suffering from right shoulder pain since the accident” and that she “never complained of shoulder pain prior to the accident.”
Having reviewed the notes of Dr Athambawa’s practice, the Review Panel is of the view that these two documents are clearly inaccurate and that the evidence of Dr Athambawa contained within those documents should not be accepted. His records indicated right shoulder complaints were made by the claimant as early as 2008 and they have been a consistent feature of the records since then. The Review Panel also notes that eight days before the accident the claimant attended Dr Athambawa for right shoulder and back pain and was prescribed Panadeine Forte.
The claimant’s evidence
The Review Panel notes the claimant denied to Medical Assessor Kenna having any previous injuries to her back or neck and that she had no previous problems in her right shoulder. In the light of Dr Athambawa’s records, this history does not appear to be correct.
The Review Panel has other concerns about the reliability of Ms Toomey’s evidence:
(a) Ms Toomey said in her statement she had never had blood pressure problems, was not taking medication for high blood pressure and her blood pressure was reported by ambulance personnel to be elevated after the accident. The Review Panel notes that at hospital the claimant’s blood pressure was recorded as 104 over 63 which is not a high reading and that while she was not on medication for high blood pressure there have been high readings recorded in the notes;
(b) the claimant told Medical Assessor Gorman that the fall at the pool in February 2021 was not significant and she only scratched her legs and only her hands hit the pool. The Review Panel notes the records of Dr Athambawa indicate that Panadeine Forte and Valium were prescribed after that fall and that she had left shoulder pain which was interfering with her activities of daily living. On 7 March 2021 the claimant attended with worsening left knee pain and right shoulder pain and was unable to raise her shoulder. Mobic was added and radiology was requested. The pool fall was the reason for back and pelvic CT scans on 15 April 2021, a script for Endone on the same date, palpitations on 25 April 2021, worsening pain on 26 May 2021 and back complaints on 6 September 2021. It is clear to the Review Panel that the fall at the pool was not insignificant, and
(c) the claimant told Dr Gorman that she was still taking one table of Endone per day and this only started after the accident. The Review Panel has reviewed the available records from Dr Athambawa and there is no prescription for Endone recorded after the accident only Panadeine Forte. However, the Review Panel also notes that on 11 November 2021, eight days before the accident the claimant was prescribed Panadeine Forte for right shoulder and back pain. The records also reveal prescriptions for Oxycontin and Endone (opioid pain relief) about 18 times between June 2010 and July 2018 when Ms Toomey’s GP became concerned about the claimant’s “benzo” use and possible addiction. The pain complained of, and for which the scripts were given, includes left and right shoulder pain. The Review Panel also notes the claimant appears to have been prescribed Endone on 15 April 2021 due to backache and hip pain following the fall at the pool.
The Review Panel is not suggesting the claimant is deliberately misleading the Review Panel. It is two years since the accident and the claimant has a complex medical history and has several significant pre-existing problems and the complication of the fall nine-months before the accident. The Review Panel is of the view that Ms Toomey is mistaken as to some of the aspects of her history and prefers to rely on the documentary evidence, in particular the GP’s records (and not his reports) in support of our findings.
What is the onus of proof in respect of threshold injury and who bears it?
Under the common law, in a claim for damages, the onus has always been on the claimant to prove the injury or loss in respect of which damages are sought.[37]
[37] See for example Todorovic v Waller (1981) 150 CLR 402 at 412.
The Review Panel in Lynch v AAI Ltd[38] determined in January 2022 that the claimant bears the onus of proof in establishing that any injury is not a minor (now threshold) injury for the purposes of the MAI Act.
[38] [2022] NSWPICMP 6 at [44]-[62].
The Review Panel notes the case of Briggs v IAG Limited t/a NRMA Insurance[39] (Briggs) where his Honour Justice Wright said at [73].
“The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty.”
[39] [2022] NSWSC 372.
The Review Panel is therefore of the view that in Ms Toomey’s case she must satisfy the Review Panel on the balance of probabilities that the nature of her right or left shoulder injury is not a threshold injury.
What is the test of causation of injury?
Threshold (and previously minor) injury provisions are contained in Chapter 5 of the Motor Accident Guidelines.
Justice Wright in Briggs said that:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
Clause 6.6 of the Guidelines provides as follows:[40]
“Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
[40] The current version being version 9.2.
What is in dispute in Ms Toomey’s claim?
The Review Panel advised the parties that upon considering the submissions it was not disputed that, in respect of the right shoulder:
(a) the claimant had a partial tear of the supraspinatus tendon before the accident;
(b) there have been five imaging studies of the right shoulder after the accident with a variety of measurements, and
(c) by 10 May 2023 the partial tear of the right supraspinatus had progressed to a complete or full thickness tear.
The real issue in respect of the right shoulder is whether the accident could have and did cause or materially contribute to a further tear of the already torn right supraspinatus.
The Review Panel also advised the parties that in respect of the left shoulder it was not disputed that claimant has a SLAP lesion tear first reported in an MRI dated 7 August 2023.
The real issue in dispute concerning the left shoulder is whether the accident could have and did cause or materially contribute to the SLAP tear in the left shoulder.
The Review Panel notes that a review of the radiology found within the documents identified that the claimant also has a SLAP lesion in the right shoulder identified on 8 November 2022 and confirmed on 6 July 2023 however the claimant has not alleged these were caused by the accident and the insurer has not been given the opportunity to consider them.
Could the claimant have injured her right and left shoulders in the accident?
The Review Panel notes that the mechanism of accident is that of a rear-end collision. There is no evidence of the offending vehicle travelling at speed, and the Review Panel notes the ambulance report has a history of the accident occurring at a very low speed (5kmph). The claimant was the driver of the car, and the seat belt was placed over her right shoulder. It is the clinical experience of the medical members of the Review Panel that an injury to either shoulder is unlikely in those circumstances but not impossible.
The medical members of the Review Panel note that it is possible that someone such as Ms Toomey with a lengthy history of pre-existing problems and an already vulnerable right shoulder could have sustained a soft tissue injury to her shoulders and a further tear of an already torn supraspinatus tendon.
The Review Panel notes that the claimant did not see the approaching vehicle or otherwise prepare herself for impact. She was holding on to the steering wheel but was not bracing her arms on the steering wheel.
It is the clinical judgment of the medical members of the Review Panel that the mechanism of this accident (slow speed, seat belted driver, no bracing of her arms) could not have caused the SLAP lesions in either of the claimant’s shoulders. SLAP lesions are, in the clinical judgment of the medical members of the Review Panel more likely to occur from a fall and involve more significant forces than those involved in this accident.
Did the claimant injure her left shoulder in the accident, and what was the injury?
The claimant complained to Medical Assessor Gorman of immediate pain in her left shoulder after the accident but the Review Panel notes that there is no mention of the left shoulder in the hospital records. The claimant did complain of left shoulder pain on 21 November 2021 and again on 26 December 2021 but not between those dates or in any medical record after 26 December 2021, in particular the 1 January 2022 attendance when she is reported to have complained of right shoulder pain only. A referral to the Orthopaedic Clinic at Dubbo Hospital on 18 May 2022 refers only to right shoulder pain.
The claimant did not specifically mention her left shoulder in her statement of 30 May 2022.
The Review Panel has no medical records since early 2022 and notes that left shoulder radiology was not requested until August 2023.
While the claimant accepted, she had right shoulder symptoms before the accident, she did not disclose any left shoulder problems to Medical Assessor Gorman before the accident. The Review Panel notes in December 2015 the claimant complained of left shoulder pain with a limited range of motion. On 24 February 2021 after the fall at the pool the claimant first complained of left shoulder pain although she denied falling on her left shoulder. The Review Panel notes the claimant was prescribed Valium and Endone in December 2015 and Valium and Panadeine Forte in February 2021. There is no suggestion of medication prescribed for a left shoulder problem after the car accident. This suggests to the Review Panel a more significant left shoulder problem at those times before the accident than after the accident.
The Review Panel is satisfied on the balance of probabilities that the claimant also injured her left shoulder in the accident. This is based on the claimant’s complaint to Dr Volceva within two days of the accident of left shoulder pain. On 26 December 2021 the claimant reported to Dr Athambawa left shoulder pain since the accident getting worse and that she had difficulty mobilising it.
The medical members of the Review Panel are of the view that the nature of any injury to the claimant’s left shoulder caused by the accident was a soft tissue injury which resolved by the end of 2021 or early 2022.
The Review Panel has previously expressed the view that the SLAP lesion in the claimant’s left shoulder first documented in the MRI of 7 August 2023 could not have been caused by the forced involved in the motor accident. Any current left shoulder symptoms, are, in the view of the Review Panel related to pre-existing degenerative changes and a pre-existing condition.
Did the claimant injure her right shoulder in the accident and what was the injury?
The claimant says that the accident caused a further tear of her already torn supraspinatus.
Before the accident, the claimant first complained of right shoulder pain on 11 September 2008 and Panadeine Forte was prescribed indicating to the medical members of the Review Panel this was a significantly painful condition. On 22 April 2009 the claimant gave a history of falling on her right shoulder. The claimant was diagnosed with rheumatoid arthritis and osteoarthritis in 2011 and there are regular complaints of joint pains thereafter. She was in the care of a specialist, Dr Johnson for that condition and was prescribed medication for it. There are complaints of specific right shoulder pains in 2012, 2013, 2015 with additional prescriptions for strong pain killing and opioid medication.
The Review Panel considers the fall at the pool to be significant. The claimant attended her GP over a dozen times with complaints of pain including in the right shoulder and she was given Panadeine Forte and Endone due to the severity of her various pains. She mentioned that fall (and not the car accident) to Dr Johnson. The entry on 26 May 2021 is particularly important, “pain all night and day – limited movements of the right shoulder due to pain.” Eight days before the accident the claimant attended Dr Athambawa complaining of right shoulder and backache and she was prescribed Panadeine Forte as a result.
The claimant complained to Dr Volceva on the day of, and two days after the car accident of right shoulder pain. Panadeine Forte was prescribed on 24 November 2021. On 9 December 2021 Dr Johnson, the claimant’s long-term rheumatologist has a history of increasing pain in the right shoulder and noted previous right shoulder problems. While he appears to have been made aware of the fall at the pool, he does not have a history of the car accident. On 26 December 2021 the claimant complained of left shoulder pain and on 9 January 2022 of right shoulder pain and Panadeine Forte was prescribed. On 1 April 2022 Ms Toomey had an ultrasound due to worsening left and right shoulder pain. On 18 May 2022 the claimant complained of severe right shoulder pain.
It is the medical members of the Review Panel’s view that the claimant had well established shoulder pathology producing pain and restricted motion before the accident. There is no evidence of any fracture or dislocation of any of the bones in the claimant’s shoulder joint. The Review Panel is therefore satisfied that the nature of the claimant’s accident-related right shoulder injury was an injury to the soft tissues of the claimant’s right shoulder including her muscles.
Did the claimant further tear her supraspinatus in the accident?
Radiology of the right shoulder has been provided and is summarised as follows:
Date Type of radiology Findings 9 March 2021 ultrasound and X-ray due to pain after fall · minimal osteoarthritis in the AC joint;
· subacromial bursitis, and
· no significant abnormality in the tendons
23 June 2021 ultrasound due to worsening pain with limited movement · “tiny” 6 x 4mm tear of the supraspinatus, and
· Osteoarthritis in the AC joint with a large effusion.
29 November 2021 X-ray at hospital · no fracture or dislocation;
· mild degenerative changes in the AC joint, and
· normal glenohumeral joint.
25 January 2022 ultrasound · no full thickness rotator cuff tear, and
· partial tear of the supraspinatus measuring 5mm.
1 April 2022 ultrasound due to worsening left shoulder and right biceps pain · small tear of the supraspinatus on the right measuring 3 x 3mm, and
· no tear on the left.
8 November 2022 MRI of the right shoulder “fast scans … due to claustrophobia” · small tear of the supraspinatus measuring 6 x 5mm;
· mild tendinopathy and subacromial bursitis;
· slight medical subluxation of the long head of biceps tendon, and
· Type II SLAP tear.
10 May 2023 ultrasound due to worsening right shoulder pain · full thickness tear of the supraspinatus measuring 9 x 8mm;
· moderate bursitis with impingement, and
· subluxation long head of biceps tendon.
6 July 2023 MRI of the right shoulder · small full thickness non-retracted delaminating tear measured at 6-7mm anteroposterior and 2mm long;
· AC joint arthrosis, and
· mild bursitis.
As a preliminary observation, it is the clinical experience of the medical members of the Review Panel that an ultrasound is highly operator-dependent (particularly with regard to measurements) and is not as sensitive as an MRI. The 8 November 2022 MRI was stated to be a “fast” scan and the Review Panel does not know whether this may have affected the quality of the images obtained.
The Review Panel also observes that Ms Toomey has had two right shoulder imaging studies in the year of, and before the car accident and six in the two years after the accident. There is no expert radiological evidence from either party reviewing and comparing any or all of the radiology.
The Review Panel is satisfied, on the totality of the radiological evidence, that before the car accident on 19 November 2021, the claimant had a partial tear of her right supraspinatus (identified in the ultrasound in June 2021) and that by 10 May 2023 that tear had progressed to a full thickness tear. The question is whether that progression was caused by the accident or not and if so at which stage or when did it progress to a full thickness tear.
Without imaging immediately before and after the accident it is difficult to determine with scientific certainty whether the motor accident caused any change in the underlying pathology and a further tear of the already torn supraspinatus. Scientific certainty is however not the test.
The Review Panel is not satisfied on the balance of probabilities that the ultrasound scans of 25 January and 1 April 2022 demonstrate an increase in the size of the tear after the scan on 23 June 2021. While the measurements obtained in those scans are reported to be smaller in size, it is recognised that, although rare and more likely in younger individuals, small supraspinatus tears can sometimes heal or decrease in size. However, in older patients such as Ms Toomey, they typically progress over time and get larger. This casts doubt in the minds of the members of the Review Panel as to the reported size of the tear in the June 2021 scan.
The first scan after the accident that might possibly indicate a larger tear was taken in November 2022 almost a year after the accident. That scan suggests there has been a 1mm fluctuation in the reported size of the supraspinatus tear (assuming that the June 2021 ultrasound was an accurate baseline measure). It is the clinical judgment of the Medical Assessors that a 1mm change in measurement is within the margin of error when comparing two different imaging studies.
The medical members of the Review Panel observe that small tears often progress to larger, full-thickness tears over time, either through additional traumatic events or simply with continued use of the upper limbs. This likelihood increases with advanced age and in individuals with pre-existing conditions that exacerbate tendon vulnerability, such as Ms Toomey who was diagnosed with rheumatoid arthritis many years before the accident.
When the Review Panel considers the pre-accident complaints of shoulder pain between the June 2021 ultrasound and the date of the accident and in particular the attendance on her doctor eight days before the accident with shoulder pain, the scans undertaken after the accident and before November 2022, the Review Panel is not satisfied on the balance of probabilities that the motor accident on 19 November 2021 caused a further tear of Ms Toomey’s already torn right supraspinatus.
CONCLUSION
From the above findings, the Review Panel has determined that the claimant does not have a further “partial rupture of tendons, ligaments, menisci or cartilage” and that the claimant’s right shoulder injury is a soft tissue injury and therefore a threshold injury for the purposes of the MAI Act.
The Review Panel is also satisfied that the claimant’s left shoulder injury is a threshold injury for the purposes of the MAI Act.
As the Review Panel has come to the same conclusion as Medical Assessor Kenna, it follows therefore that his certificate should be confirmed.
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