Touma v AAI Limited t/as AAMI
[2024] NSWPICMP 451
•9 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Touma v AAI Limited t/as AAMI [2024] NSWPICMP 451 |
| CLAIMANT: | Jason Touma |
| INSURER: | AAI Limited t/as AAMI |
| REVIEW PANEL | |
| MEMBER: | Anthony Scarcella |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 9 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; threshold injury under section 1.6; injuries to the cervical and lumbar spines, bilateral shoulders and chest wall; Medical Assessment Certificate (MAC) determined that the claimant only sustained a soft tissue injury to the cervical spine and that it was a threshold injury; review sought by the insurer under section 7.26 of the Act; clauses 5.7, 5.8 and 5.9 of the Motor Accident Guidelines considered and applied; Held – the right shoulder injury was not caused by the motor accident; the claimant suffered a threshold injury to the chest wall and lumbar spine being soft tissue injuries; the claimant suffered non-threshold injuries to the left shoulder and cervical spine; MAC is revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Ray Wallace dated 4 August 2023. 2. Certifies that the following injuries caused by the motor accident on 10 December 2020 are non-threshold injuries for the purposes of the Motor Accident Injuries Act 2017: (a) a traumatic cervical spine annulus fissure or tear at C3/4, and (b) a traumatic tear of the left supraspinatus tendon. A statement setting out the Review Panel’s reasons for the assessment is attached to this certificate. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Mr Jason Touma, is a 30-year-old man who was involved in a motor accident on 10 December 2020 whilst a front seat passenger in a vehicle that came to a stop at traffic lights and was rear-ended by another vehicle (the motor accident).
On 10 October 2022, Mr Touma made a claim for personal injury benefits. The relevant compulsory third party insurer was AAI Limited t/as AAMI (the insurer).
Mr Touma claims that he suffered injuries to his cervical spine, left shoulder, right shoulder, chest wall, lumbar spine and a psychiatric disorder as a result of the motor accident.
Mr Touma’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (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.
A dispute has arisen between Mr Touma and the insurer as to whether, for the purposes of the MAI Act, the injuries caused by the motor accident were threshold injuries.
The dispute about whether the motor accident caused the claimed injuries are threshold injuries is a medical dispute, as defined by s 7.17 of the MAI Act and is a medical assessment matter: Schedule 2, cl 2(e) of the MAI Act.
The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Ray Wallace for assessment.
The medical dispute was assessed by Medical Assessor Wallace, who issued a certificate dated 4 August 2023 wherein he determined that the injury to the cervical spine was caused by the motor accident and certified that it was a threshold injury for the purposes of the MAI Act. Further, he determined that the injuries to the left shoulder, right shoulder, chest and lumbar spine were not caused by the motor accident (the Medical Assessment).
REVIEW PROCEDURE
Mr Touma sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (the Review).
On 18 October 2023, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
On 2 November 2023, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle of documents on which they relied in the Review.
On 29 January 2024, the Panel informed the parties that it considered a re-examination of Mr Touma was required. Arrangements were made for Mr Touma to be re-examined by Medical Assessor Alan Home in Sydney on 27 February 2024.
On 4 April 2024, the insurer lodged an application to admit late documents and its attached documents. There was no objection made by the claimant.
STATUTORY PROVISIONS
Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Whilst almost all injured persons are entitled to statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the MAI Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are ‘threshold’ injuries.
The Motor Accidents Injuries Amendment Act 2022 provided for a number of amendments to the scheme of statutory benefits including the payment of statutory benefits on a not at fault or no-fault basis being extended from 26 weeks to 52 weeks and the repeal of s 3.28(3) of the MAI Act, resulting in no statutory benefits being payable after 52 weeks if the injuries are threshold injuries or if the claimant is wholly or mostly at fault. These amendments only apply to a motor accident that occurred after 1 April 2023: Schedule 4, Part 7 of the MAI Act.
Further, s 4.4 of the MAI Act provides that no damages may be awarded to an injured person if the person’s only injuries resulting from the motor accident were threshold injuries.
A threshold injury is defined in s 1.6 of the MAI Act and includes a ‘soft tissue injury’.
Section 1.6(2) of the MAI Act defines a soft tissue injury to mean an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Section 1.6 of the MAI Act provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 10 November 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of the assessment of threshold injury to the neck or spine, cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“Soft tissue assessment - injury to a spinal nerve root
5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8 Radiculopathy means the impairment caused by dysfunction of the spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent Impairment’:
(a)loss of symmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In respect of causation of injuries, Wright J in Briggs v IAG Limited trading as NRMA Insurance[1] stated:
“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.”
[1] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 at [35].
Clause 6.6 of the Guidelines notes:
“6.6 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.”
Clause 6.7 of the Guidelines states:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
EVIDENCE BEFORE THE PANEL
The evidence before the Panel consisted of the following:
(a) Mr Touma’s indexed and paginated bundle of documents lodged on the Commission’s portal on 22 December 2023 (claimant’s documents);
(b) the insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 13 December 2023 (insurer’s documents), and
(c) the insurer’s application to admit late documents dated 4 April 2024 and the attached certificate of Medical Assessor Surabhi Verma dated 1 January 2024 (AALD: Medical Assessor Verma) and the Riverwood Plaza Medical Centre clinical records (AALD: Riverwood Plaza Medical Centre).
ASSESSMENT UNDER REVIEW
Medical Assessor Wallace examined Mr Touma on 25 July 2023 and issued a certificate under s 7.23(1) of the MAI Act dated 4 August 2023.
Medical Assessor Wallace was asked to assess the threshold injury dispute in respect of the following injuries:
(a) cervical spine;
(b) left shoulder;
(c) right shoulder;
(d) chest, and
(e) lumbar spine.
Medical Assessor Wallace took Mr Touma’s pre-accident medical history and relevant personal details. He noted that Mr Touma had been employed as a police officer by the NSW Police Force since 2015. In 2020, he was employed on a full-time basis in project development performing office duties as well as supervising hotel quarantining during the COVID-19 pandemic. There was no previous history of injury or episodes of pain in Mr Touma’s spine, chest wall or bilateral shoulders.
Medical Assessor Wallace took the following history of the motor accident:
“Mr Touma was involved in a motor vehicle accident on 10 December 2020. At that time, he was a front seat passenger and wearing a seatbelt in a Holden Calais travelling along Olympic Drive, Lidcombe. Whilst his vehicle was stationary at a traffic light intersection at a red light, a car collided with the rear of his vehicle. There was no secondary collision. Police and ambulance did not attend the scene and he exchanged details with the other driver before driving on.”[2]
[2] Claimant's documents at page 41 at [8].
Medical Assessor Wallace took a history of symptoms and treatment following the motor accident. Mr Touma reported that he noted the onset of neck pain radiating into his left shoulder following the motor accident. He was reviewed by his general practitioner and referred for treatment including physiotherapy, hydrotherapy and exercise physiology. He also underwent two injections at his left shoulder. Exercise physiology ceased in early 2022 and he then commenced a home exercise program using a Theraband (a resistance band).
In respect of current symptoms, Mr Touma noted no current pain in his neck. In the left shoulder, he noted a constant aching pain with an intermittent stabbing pain at the anterior aspect of the joint. The pain radiated globally about the left shoulder into the left upper arm. The pain was worse with reaching overhead or in cold weather and was relieved by rest or analgesic medication. There was no paraesthesia or numbness in his left arm but he complained of weakness. He complained of stiffness in his left shoulder. He is right hand dominant. There were no current symptoms in his right shoulder, chest wall or lumbar spine.
In respect of current treatment, Medical Assessor Wallace reported that Mr Touma was not undergoing any active treatment apart from the use of Panadol analgesic medication.
On clinical examination, Medical Assessor Wallace observed that Mr Touma was 174cm in height and weighed 80kg. Examination of the cervical spine demonstrated no swelling or deformity. There was a range of motion of flexion 70°, extension 50°, left rotation 90°, right rotation 90°, left lateral tilt 40° and right lateral tilt 40°. There were no areas of tenderness.
Neurological examination of the upper limbs demonstrated equal and symmetrical reflex. Power and light touch sensation were intact. Arm circumference measured 31cm on the right compared to 28cm on the left.
Examination of the left shoulder demonstrated no swelling or deformity. There was an active range of movement of flexion 140°, extension 30°, abduction 100°, adduction 40°, external rotation 40° and internal rotation 80°. There were no areas of tenderness. Biceps tendons were intact. There was normal strength in abduction and external rotation.
Examination of the right shoulder demonstrated no swelling or deformity. There was a range of movement of flexion 170°, extension 40°, abduction 160°, adduction 40°, external rotation 60° and internal rotation 80°. There were no areas of tenderness. Biceps tendons were intact. There was normal strength in abduction and external rotation.
Examination of the chest wall demonstrated no swelling or deformity. There was no pain on compression of the chest wall.
Examination of the lumbar spine demonstrated no swelling or deformity. There was a range of movement of forward flexion to the mid tibia, extension 30°, left lateral tilt 40°, right lateral tilt 40°, left rotation 80° and right rotation 80°. There were no areas of tenderness. Gait was normal. Straight leg raising was to 50° bilaterally, which was restricted by tight hamstrings.
Neurological examination of the lower limbs demonstrated equal and symmetrical knee jerks. Ankle jerks were unable to be elicited. Power and light touch sensation were intact. Calf circumference measured 36cm on the right compared to 35cm on the left.
In respect of consistency on presentation, Medical Assessor Wallace opined that Mr Touma exhibited no pain behaviour at the time of his review.
Medical Assessor Wallace noted and referred to the documents with which he had been provided. He referred to the left shoulder MRI investigations dated 27 January 2021, 15 March 2021, 13 October 2021 and 27 May 2022 and stated that those investigations demonstrated mild supraspinatus tendinosis with either no evidence of rotator cuff tear or with a possible low-grade partial tear. He also referred to the cervical spine MRI investigation dated 15 April 2021 and stated that it demonstrated a tiny annular tear at C3/4 with a disc bulge without impingement.
Medical Assessor Wallace opined that Mr Touma suffered a musculo-ligamentous strain to his cervical spine caused by the motor accident. He opined that, in view of the mechanism of the motor accident, that is, a rear end collision whilst he was restrained in the driver’s seat (Mr Touma was, in fact, in the front passenger seat), there was no objective medical evidence that he suffered any injury to his bilateral shoulders, chest wall or lumbar spine. Mr Touma’s current left shoulder symptoms were due to referred pain from the injury to his cervical spine.
In respect of the injury to Mr Touma’s cervical spine, Medical Assessor Wallace opined that it was a threshold injury. In respect of the cervical spine MRI investigation dated 15 April 2021 that demonstrated evidence of a tiny annulus tear and disc bulge at C3/4 without impingement, Medical Assessor Wallace opined that such pathology was due to degenerative changes at the C3/4 disc space rather than to acute trauma. He further opined that the mechanism of the motor accident was not consistent with being the cause of any structural pathology at Mr Touma’s cervical spine. That is, the tiny annular tear seen at C3/4 was not caused by the motor accident. Further, at the time of the assessment, Mr Touma did not have any evidence of cervical radiculopathy. Neurological examination of the upper limbs were normal. Therefore, Mr Touma suffered a soft tissue injury to his cervical spine within the meaning of s 1.6(2) of the MAI Act.
Medical Assessor Wallace opined that Mr Touma did not suffer injuries to his bilateral shoulders, chest wall or lumbar spine caused by the motor accident.
REVIEW OF THE EVIDENCE
NSW Police Force incident reporting form
In evidence, there was a NSW Police Force incident reporting form dated 10 December 2020 completed by Mr Touma’s team leader, Mr Anthony Page.[3]
[3] Insurer's documents at pages 10-11.
The incident reporting form set out the basic particulars of the motor accident and recorded Mr Touma’s injuries as bruising and swelling to the neck. Towards the end of the document, there was also a reference to Mr Touma having sustained a whiplash injury to his neck.
There was no reference to injuries to the left shoulder, right shoulder, chest wall or lumbar spine in the incident reporting form.
Workers compensation journey claim form
In evidence, there was a workers compensation journey claim form dated 10 May 2022 signed by Mr Touma.[4]
[4] Insurer's documents at pages 12-14.
The workers compensation journey claim form set out the basic particulars of the motor accident and Mr Touma described the motor accident as follows:
“I was travelling Northbound in Lane 1 of 3 when the traffic lights went red, we were the first vehicle to stop at the traffic lights, whilist [sic] stopped a vehicle continued to drive and hit the rear of my fathers [sic] vehicle causing my neck and shoulders to whip back. We continued down the road to bridge street where details were exchanged with the other driver.”[5]
[5] Insurer's documents at page 13.
There was no reference to injuries to the chest wall or lumbar spine in the workers compensation journey claim form.
Application for personal injury benefits
In evidence, there was an application for personal injury benefits completed by Mr Touma on 10 October 2022.[6]
[6] Claimant's documents at pages 52-56.
The application form set out the basic particulars of the motor accident. The description of the motor accident provided by Mr Touma was consistent with the evidence.
In the application form, Mr Touma described the injuries caused by the motor accident as a tear and other injuries in the left shoulder, ongoing pain in the left shoulder and anxiety when driving near the location of the accident.
Mr Touma denied suffering an illness or injury to the same or similar body parts at the time of the motor accident.
There was no reference to injuries to the neck, right shoulder, chest wall or lumbar spine in the application form.
Treating medical records and reports
In evidence, are Mr Touma’s Riverwood Plaza Medical Centre clinical records.[7] It appeared from those medical records that Mr Touma mainly consulted Dr Kamlesh Kumar, general practitioner, at the Riverwood Plaza Medical Centre. A chronological entry of attendances by Mr Touma on the medical practice was not included in the clinical records.
[7] AALD: Riverwood Plaza Medical Centre at pages 1-436.
On 18 December 2020, Mr Hamza Hamwi, physiotherapist, of Firstline Physiotherapy reported to Dr Kumar that Mr Touma’s initial physiotherapy consultation took place on 17 December 2020. Mr Hamwi reported that Mr Touma presented with bilateral neck pain, upper trapezius pain and mid to lower back pain following a recent motor accident. He diagnosed a grade 1 whiplash associated disorder and lumbar spasm secondary to a motor vehicle accident impaction. Mr Hamwi opined that Mr Touma had responded well to therapy with a good reduction in pain levels and that he would benefit from weekly consultations initially, reducing to fortnightly consultations and then possible early discharge. He also opined that Mr Touma was fit to return to full duties at work. However, symptoms had to be monitored over the course of a few weeks to ensure no aggravation.[8]
[8] AALD: Riverwood Plaza Medical Centre at pages 282-284.
On 23 December 2020, Mr Touma underwent an ultrasound on his left shoulder by Dr Peter Hunter, radiologist, on the referral of Dr Kumar. Dr Hunter noted a clinical history of left shoulder pain. Dr Hunter reported that the major components of the left rotator cuff were normal in thickness and echotexture and that there were no tears or tendinosis; there was a physiological trace of fluid in the long head biceps tendon; there was moderate subdeltoid bursa bursitis with thickening to 2.5mm; and there was abduction to 90° with bunching, impingement and pain. Dr Hunter concluded that Mr Touma had moderate subdeltoid bursa bursitis.[9]
[9] Claimant's documents at page 157.
On 18 January 2021, Dr Kumar referred Mr Touma to Dr Vijay Maniam for opinion and management.[10]
[10] AALD: Riverwood Plaza Medical Centre at page 297.
On 25 January 2021, Mr Touma consulted Dr Maniam, orthopaedic surgeon, on the referral of Dr Kumar. On 27 January 2021, Dr Maniam reported to the workers compensation insurer of Mr Touma’s employer, Employers Mutual Limited (EML icare).[11] Dr Maniam reported that Mr Touma consulted him for injuries he sustained in the motor accident. At his first consultation, Mr Touma complained of left shoulder pain situated antero superiorly, left interscapular pain and minimal cervical spine symptoms. Dr Maniam noted that cervical spine movements were restricted. Impingement manoeuvre was positive but apprehension was negative. Upper limb neurological tests drew negative results. Mr Touma had undergone physiotherapy and had been prescribed medication to which there had been some response in respect of the cervical spine. The left shoulder pain had not improved despite the administration of an ultrasound guided subacromial bursa injection. Dr Maniam diagnosed a musculo-ligamentous strain of the cervical spine due to a whiplash injury, which had responded to conservative treatment and traumatic bursitis and impingement in the left shoulder, which had not responded to a subacromial bursal injection. Dr Maniam recommended a repeat cortisone injection into the left subacromial space and thereafter, if symptoms persisted, then a trial with platelet-rich plasma (PRP) injections should be considered. He also recommended an MRI scan of the left shoulder.
[11] AALD: Riverwood Plaza Medical Centre at pages 20-22.
On 27 January 2021, Mr Touma underwent an MRI scan of his left shoulder by Dr Minh Truong, radiologist, on the referral of Dr Maniam. Dr Truong noted a clinical history of left shoulder trauma and reported that there was a small bursal surface partial tear of the posterior supraspinatus tendon insertion and mild subacromial deltoid bursitis. No labral tear was seen.[12]
[12] Claimant's documents at page 83.
On 4 February 2021, Dr Maniam reported to EML icare on the outcome of Mr Touma’s recent left shoulder MRI scan.[13] Dr Maniam reported that, on 3 February 2021, Mr Touma underwent a second round of ultrasound guided injections into the subacromial bursa in his rooms. He noted that Mr Touma had become increasingly stressed and recommended consultation with a psychologist.
[13] AALD: Riverwood Plaza Medical Centre at pages 26-27.
On 2 March 2021, Mr Touma underwent an ultrasound of his right shoulder by Dr Michael Liu, radiologist, on the referral of Dr Lev Havryliv. Dr Havryliv reported that there was no discrete tear of the rotator cuff tendons; the long head of the biceps tendon was intact and enlocated within the bicipital groove; there was mild thickening of the right subacromial bursa; and that on dynamic assessment, there was no significant restrictions to abduction.[14]
[14] Claimant's documents at page 126.
On 15 March 2021, Mr Touma underwent an MRI scan of his left shoulder by Dr Truong on the referral of Dr Maniam. Dr Truong noted a clinical history of recurring left shoulder pain. Dr Truong reported a mild supraspinatus tendinosis, mild subdeltoid bursitis and mild biceps tenosynovitis.[15]
[15] Claimant's documents at page 122.
On 30 March 2021, Dr Maniam reported to EML icare that Mr Touma had consulted him on 3 February 2021, 15 February 2021 and 1 March 2021.[16] Dr Maniam reported that Mr Touma’s left shoulder pain had not subsided and that he had continued to experience cramps, jab-like pains, difficulties with abduction and adduction, difficulty sleeping and difficulty with activities of daily living. The intensity of pain was described as 6/10 on the visual analogue scale. On examination of the left shoulder, Dr Maniam observed that rotation movements were near full range and that impingement sign was positive. He recommended that Mr Touma undergo three fortnightly PRP injections.
[16] AALD: Riverwood Plaza Medical Centre at pages 33-34.
On 15 April 2021, Mr Touma underwent an MRI scan of his cervical spine by Dr Niranjan Ganeshan, radiologist, on the referral of Dr Maniam. Dr Ganeshan noted a clinical history of pain in the neck and scapula. Dr Ganeshan reported a tiny annulus tear and disc bulge without neural impingement at C3/4 and concluded that there were very minimal disc bulges with no impingement.[17]
[17] Claimant's documents at page 85.
On 11 May 2021, Dr Maniam reported to EML icare on the outcome of Mr Touma’s recent left shoulder MRI scan.[18] Dr Maniam reported that based on the most recent MRI scan of the left shoulder, the tear that had been previously seen had healed. Mr Touma had made significant strides following the PRP injections. Dr Maniam reported that he had now completed his treatment of Mr Touma and that there were no other issues that needed to be addressed in respect of treatment. He opined that Mr Touma was not a candidate for surgical intervention.
[18] AALD: Riverwood Plaza Medical Centre at pages 35-36.
There was another report by Dr Maniam to EML icare also dated 11 May 2021.[19] The report may have been incorrectly dated as a signature and a hand written date of 21 June 2021 appeared towards the top of the first page. Dr Maniam referred to the left shoulder MRI scan reports dated 27 January 2021 and 16 March 2021. He also referred to the cervical spine MRI scan report dated 16 April 2021. In respect of prognosis, Dr Maniam opined that Mr Touma’s improvement had been somewhat disappointing. The intensity of pain was moderately severe and despite a satisfactory range of movements, he complained about loss of power. Neurological conditions had been excluded and all his problems were solely the result of the left shoulder. Dr Maniam suspected a pain syndrome and recommended an assessment by a psychiatrist and if pain persisted, referral to a pain management clinic. Once Mr Touma had completed his third round of PRP injections, he would not require any further consultations with Dr Maniam.
[19] AALD: Riverwood Plaza Medical Centre at pages 37-39.
On 30 May 2021, Mr Mohammad Sarakbi, clinical exercise physiologist, of Impact Exercise Physiology reported to EML icare.[20] Mr Sarakbi reported that Mr Touma presented with ongoing shoulder, neck and trapezius pain. He noted that Mr Touma worked as a police officer where his specific role was in digital technology. He was injured in the motor accident and initially, reported whiplash with ongoing pain in his neck but shortly afterwards, he began to feel pain in both shoulders, the left more than the right. The shoulder pain was often globalised and transmitted to his chest muscles making it difficult to breathe at times. He returned to work a few times following the motor accident but was unable to keep up with work demands and often felt pain whilst typing on the computer. Mr Sarakbi examined Mr Touma and conducted certain tests and opined that Mr Touma had suffered a whiplash injury with bilateral shoulder pain. There was no reference to symptoms in the lumbar spine.
[20] Claimant's documents at pages 86-88.
In evidence, are Mr Touma’s A Fisio Pty Limited clinical records commencing with a consultation entry on 8 June 2021 and ending with a consultation entry on 26 March 2022.[21] In all, there were 32 consultations with physiotherapists in the practice during that period. Treatment was predominantly to the left shoulder and on a few occasions, traction to the right shoulder.
[21] Claimant's documents at pages 179-214.
On 20 September 2021, Dr Kumar referred Mr Touma to Dr James Yu for opinion and pain management.[22]
[22] Claimant's documents at pages 154-155.
On 5 October 2021, Dr James Yu, consulting anaesthetist and interventional pain specialist, reported to Dr Kumar.[23] Dr Yu noted Mr Touma’s presenting complaints as left shoulder pain and left-sided chest wall pain. He noted that Mr Touma sustained a whiplash injury in the motor accident which progressed to left shoulder pain. Dr Yu opined that Mr Touma had left shoulder pain most probably due to supraspinatus tendinosis, subdeltoid/subacromial bursitis and biceps tenosynovitis. He also opined that the left chest wall pain was most probably due to mixed neuropathic and musculo-ligamentous issues. Dr Yu recommended that Mr Touma undergo a further MRI scan of his left shoulder and encouraged him to continue consulting his exercise physiologist and to continue with his home-based exercise regime to strengthen his muscles and improve his physical function. Dr Yu also recommended hydrotherapy.
[23] Claimant's documents at pages 89-90.
On 13 October 2021, Mr Touma underwent an MRI scan of his left shoulder by Dr Truong on the referral of Dr Kumar. Dr Truong noted the clinical history as being a follow-up on left shoulder pain, bursitis, tendinitis and a supraspinatus tendon tear. Dr Truong reported a mild supraspinatus tendinosis and mild bursal surface tendon volume loss, reflecting a chronic low-grade partial tear. A mild subdeltoid bursitis was also noted. Dr Truong opined that there had been no significant interval change since the previous study.[24]
[24] Claimant's documents at page 84.
On 25 May 2022, Dr Kumar addressed a report to Unified Healthcare Group Pty Limited (UHG).[25] Dr Kumar reported Mr Touma’s current symptoms as left shoulder pain, particularly with use and lifting the arm above shoulder level. The current treatment consisted of physiotherapy, analgesics and anti-inflammatory medication (Mobic 15mg daily). Such treatment had assisted in reducing pain and improved function in the left shoulder joint. Progress had been made previously in respect of pain and function but it was lost after Mr Touma contracted the COVID-19 infection, in that, he was locked down for three weeks and not receiving any physiotherapy. Progress for recovery was looking very good. Mr Touma had not yet reached maximum medical improvement. He was back at work on modified duties.
[25] AALD: Riverwood Plaza Medical Centre at page 151.
On 27 May 2022, Mr Touma underwent an MRI scan of his left shoulder by Dr Kuriakose, radiologist, on the referral of Dr Kumar. Dr Kuriakose noted the clinical history as being ongoing pain in the left shoulder. Dr Kuriakose concluded that there was no evidence of significant internal derangement in the left shoulder.[26]
[26] Claimant's documents at page 110.
On 2 June 2022, Dr Kumar referred Mr Touma back to Dr Maniam for opinion and management in respect of left shoulder pain that had flared-up after lifting packets of police uniforms at work. Dr Kumar noted Mr Touma’s current medication as Mobic tablets for subacromial bursitis.[27]
[27] Claimant's documents at page 116.
On 15 June 2022, Dr Maniam reported to EML icare.[28] Dr Maniam referred to the three left shoulder MRI scans and the cervical spine MRI scan undergone by Mr Touma. Dr Maniam noted that, on 3 February 2021, Mr Touma underwent cortisone and local anaesthetic injections into his left shoulder. He also noted that Mr Touma had undergone left shoulder PRP injections between 21 April 2021 and 24 May 2021. He had attended hydrotherapy for rehabilitation. Mr Touma’s left shoulder had significantly improved and he returned to work. In late May 2021, Mr Touma contracted COVID-19. After having contracted COVID-19, there was a gradual deterioration in Mr Touma’s condition and he was put back on selected duties. Mr Touma returned to consult him on 10 June 2022 complaining of a recurrence of left shoulder pain after one of his managers got him involved in work that required repetitive movements, lifting and pushing whilst packing police uniforms. Following this incident, Dr Kumar referred Mr Touma for a further left shoulder MRI scan. On examination of Mr Touma’s left shoulder, Dr Maniam observed a downward depression in posture; alignment of bony prominences; no atrophic changes; tenderness in the glenohumeral joint line and in the subacromial/subdeltoid bursa. Movements in all ranges were restricted. Clinical impression was that Mr Touma was developing an episode of capsulitis. If symptoms did not improve, Dr Maniam recommended a bone scan SPECT-CT to rule out the onset of capsulitis. In the meantime, he advised Mr Touma to rest and trial new anti-inflammatory medication and physiotherapy.
[28] AALD: Riverwood Plaza Medical Centre at pages 192-194.
On 27 June 2022, Dr Maniam reported to EML icare.[29] Dr Maniam reported that Mr Touma had returned to consult him on 10 June 2022 stating that he had reinjured his left shoulder in the workplace. Pain in the left shoulder had increased in intensity and was presently unstable. Dr Maniam recommended rest for a period of four weeks and then, if symptoms regressed, to return to his selected duties. He advised that he had referred Mr Touma for a bone scan SPECT-CT to exclude the presence of capsulitis and early degenerative changes within the glenohumeral joint stemming from disuse. If the bone scan is positive, Mr Touma would need to undergo a further course of three PRP injections on a fortnightly basis.
[29] AALD: Riverwood Plaza Medical Centre at pages 201-202.
In an unaddressed report dated 6 July 2022, Dr Kumar provided a diagnosis of left shoulder tendinitis to rotator cuff muscles. Dr Kumar reported Mr Touma’s current symptoms as pain in the left shoulder joint when using the left arm, mostly on abduction and elevation movements but there was also pain on rotational movements and adduction. The treatment plan was for physiotherapy twice per week, Mobic tablets 15mg daily, rest, home-based physiotherapy exercises and gymnasium exercises. Dr Kumar opined that Mr Touma’s limiting factors and barriers were a workplace environment that was not permitting him to adhere to his restrictions as certified. Dr Kumar noted that Mr Touma’s work capacity had been downgraded. However, he opined that Mr Touma would get back to pre-injury duties if treatment was adhered to. He recommended that Mr Touma seek specialist treatment.[30]
Medico-legal reports
[30] AALD: Riverwood Plaza Medical Centre at page 188.
Dr Anthony Smith: 18 August 2022
On 11 August 2022, Mr Touma consulted Dr Anthony Smith, orthopaedic surgeon, at the request of EML icare. Dr Smith prepared a report dated 18 August 2022.[31]
[31] AALD: Riverwood Plaza Medical Centre at pages 195-200.
Dr Smith took a history of the motor accident and Mr Touma’s treatment thereafter that was consistent with the evidence.
On examination of Mr Touma, Dr Smith observed:
“He is 174cm tall and weighs 83kgs. The right forearm is half an inch greater in circumference than the left forearm, consistent with him being right-handed. There is no sensory abnormality in either upper limb. He has a normal cervical lordosis. Neck movements are unremarkable. There is a global power loss in all movements of the left upper limb, which extends from the small muscles of the hand through to and including shoulder elevation on the left and neck rotation to the left.”[32]
[32] AALD: Riverwood Plaza Medical Centre at pages 197-198.
Dr Smith provided the following opinion:
“This man gives a history that would suggest that in the motor vehicle accident of 10 December 2020, he developed neck pain, then bilateral shoulder pain, mostly left shoulder pain, with some symptoms running down to the elbow. He describes not being a great deal better and continuing to be off work.
His investigations demonstrate some bursitis and minor degenerative changes in the rotator cuff. Those changes are within the limits. I refer you to a quote from the paper of Girish et al at the end of this report.
There is nothing objectively wrong with him on today’s clinical examination. The weakness he exhibits is unphysiological and manufactured. There is weakness of shoulder elevation on the left and neck rotation to the left. Those movements are performed by the trapezius muscles and the sternomastoid muscles respectively. Those muscles are supplied by the 11th cranial nerve. That nerve leaves the skull via its own foramen, located just behind the ear on each side. It then penetrates and supplies the overlying sternomastoid muscle and crosses the anterior neck to penetrate and supply the trapezius on the same side. Those nerves and those muscles could not have been involved in any way in the motor vehicle accident 10 December 2020. Neck rotation to the left, which is weak, is a function of the right sternomastoid muscle.”
Based on Mr Touma’s history, Dr Smith opined that it was conceivable that he sustained some form of aggravation to his minor cervical degenerative disease, which had long since resolved and left no disability. There was an absence of any objective abnormality and any post-traumatic lesion in the MRI scan of Mr Touma’s cervical spine. There was an absence of any significant abnormality in the left shoulder. Mr Touma’s continuing symptoms were manufactured and so were his physical signs.
Dr Smith noted that Mr Touma had a non-manual job and opined that there was no reason for him not to be able to engage in an occupation on a full-time basis. That is, he should be able to do his usual job with the same employer.
Dr Jonathan Herald: 17 October 2023
On 17 October 2023, Mr Touma consulted Dr Jonathan Herald, orthopaedic surgeon, at the request of his lawyers. Dr Herald prepared a report dated 17 October 2023.[33]
[33] Claimant's documents at pages 91-95.
Dr Herald took a history of the motor accident and Mr Touma’s treatment thereafter that was consistent with the evidence.
Dr Herald noted that Mr Touma continued to have left shoulder pain and restricted movement as well as some neck pain.
On examination, Dr Herald observed that Mr Touma was a well man, 174cm in height and 80kg in weight. There was tenderness over the cervical spine and paravertebral muscles. Mr Touma had a positive Spurling’s test to the left upper limb with radiculopathic symptoms. There was stiffness of his cervical spine with forward flexion to 50% of range, lateral flexion and rotation to 75% on the right and 50% on the left and extension limited to 50% of range. There was a normal neurological examination of his upper limbs which were intact to tone, power and reflexes.
On examination of Mr Touma’s left shoulder, Dr Herald observed tenderness over the biceps region; a positive O’Brien’s test; positive impingement signs; and a positive anterior lateral shear test. Range of motion on forward elevation was 140°; on extension 50°; on abduction 120°; on adduction 40°; on external rotation 60°; and on internal rotation 60°. There was grade 5 power of the rotator cuff muscles.
Dr Herald did not refer to any examination of Mr Touma’s chest, right shoulder or lumbar spine.
Dr Herald opined that, as a result of the motor accident, Mr Touma suffered a
partial-thickness supraspinatus rotator cuff tear with subsequent healing; a left shoulder superior labrum anterior and posterior (SLAP) lesion; a soft tissue injury to the cervical spine with radiculopathic symptoms to the left upper limb; and an aggravation of post-traumatic stress disorder/depression.
In respect of Mr Touma’s cervical spine, Dr Herald opined that, based on the information available to him, the tiny annular tear at the C3/4 level, though not requiring any specific treatment, was most likely caused by the motor accident. There was no other history of injury.
In respect of Mr Touma’s left shoulder, Dr Herald opined that, based on his clinical examination, there were, at least, features of a SLAP tear and anterior and labral tear. He suggested that a magnetic resonance arthrogram would be the appropriate test to confirm his opinion as it was difficult to know if that tear was present. However, Mr Touma did have a rotator cuff tear in the supraspinatus tendon which had been clinically diagnosed and had taken a period of time to heal.
In response to a request to comment on Dr Smith’s report, Dr Herald stated:
“Dr Smith believed there was nothing objectively wrong based on his assessment and suggested that his injuries had resolved and left him with no disability.
He also felt that the MRI scan showed no significant abnormality and was consistent with findings within his current age group.
I would suggest that an MR arthrogram would be a more appropriate assessment of his left shoulder and would identify if there are any labral tears or residual rotator cuff tears present. Although he has returned back to his pre-injury occupation as suggested by Dr Smith, that does not mean he is necessarily doing it pain-free.”[34]
Medical assessment certificates
[34] Claimant's documents at page 95 at [12].
Medical Assessor Surabhi Verma: 1 January 2024
On 1 December 2023, Mr Touma was assessed by Medical Assessor Surabhi Verma in respect of the alleged psychological injuries he sustained in the motor accident.
Medical Assessor Verma issued a certificate dated 1 January 2024.[35]
[35] AALD: Medical Assessor Verma at pages 1-8.
Medical Assessor Verma certified that Mr Touma had suffered an adjustment disorder with anxious mood caused by the motor accident and that such condition was a threshold injury for the purposes of the MAI Act.
SUBMISSIONS
Mr Jason Touma’s submissions
Mr Touma’s lawyers provided written submissions in respect of the Medical Assessment dated 28 March 2023.[36] They also provided written submissions in respect of the Review dated 7 September 2023. A brief outline of the submissions is provided below.
[36] Claimant's documents at pages 47-51.
In respect of Mr Touma’s lumbar spine, the motor accident caused a soft tissue/discal injury with radiculopathy/referred pain into the lower limbs.
In respect of Mr Touma’s chest, the motor accident caused a soft tissue injury to the chest wall.
In respect of Mr Touma’s right shoulder, the motor accident caused a soft tissue injury/referred pain from the cervical spine.
In respect of Mr Touma’s cervical spine, radiculopathy was present and confirmed by Medical Assessor Wallace. In this regard, there was muscle atrophy and/or decreased limb circumference present; a loss of asymmetry of reflexes; and muscle weakness. Mr Touma relied on the decision in David v Allianz Australia Insurance Ltd,[37] (David). In David it was stated by the Medical Review Panel that cl 5.6 and surrounding clauses of the Guidelines do not require that the assessment of radiculopathy be made by a Medical Assessor and that it is sufficient that it be based on a clinical assessment of a medical practitioner independent from the insurer at any time following the motor accident.
[37] David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227.
In accordance with the principles enunciated in David, there must be a finding of
non-threshold injury as Mr Touma’s treating evidence demonstrated the existence of
post-accident radiculopathy.
Further, Mr Touma sustained an annular tear at C3/4, confirmed in the MRI scan performed on 15 April 2021, which for the purposes of the MAI Act, is a non-threshold injury. In this regard, Mr Touma relied on Dordevic v AAI Limited t/as GIO,[38] (Dordevic) where the Medical Review Panel in that case stated as follows:
“An annular fissure is the same as an annular tear and radiological evidence establishes causation. The annular fibrosis is the ligament that contains the nucleus pulposis which in this claimant’s case has ruptured and torn through the annulus.”[39]
[38] Dordevic v AAI Limited t/as GIO [2022] NSWPICMP 279.
[39] Dordevic v AAI Limited t/as GIO [2022] NSWPICMP 279 at [78].
Given that Mr Touma is relatively young, was involved in a significant collision and he did not have any neck complaints in the past, the annular tear, in these circumstances, was more likely than not, caused by the motor accident rather than pre-existing degenerative changes as opined by Medical Assessor Wallace.
In respect of Mr Touma’s left shoulder, there was objective evidence in the MRI scans of his left shoulder on 27 January 2021 and 13 October 2021 that identified a tear of the supraspinatus tendon, which for the purposes of the MAI Act, is a non-threshold injury.
Accordingly, the injuries to Mr Touma’s cervical spine and left shoulder are non-threshold injuries.
Insurer’s submissions
The insurer provided written submissions in respect of the Medical Assessment dated 17 April 2023.[40] It also provided written submissions in respect of the Review dated 26 September 2023.[41] A brief outline of the written submissions is provided below.
[40] Insurer's documents at pages 6-9.
[41] Insurer's documents at pages 1-5.
In respect of Mr Touma’s lumbar spine, the available medical evidence did not contain any complaints and diagnosis relating to the lumbar spine. Any injury to the lumbar spine was not causally related to the motor accident.
In respect of Mr Touma’s chest, Dr Yu obtained a history that Mr Touma had left chest wall pain when he first examined him on 5 October 2021. Dr Yu commented that the left chest wall pain was most probably due to missed neuropathic and musculoligamentous issues. Any injury to the chest causally related to the motor accident was likely to be of a soft tissue nature and thus a threshold injury for the purposes of the MAI Act.
In respect of Mr Touma’s right shoulder, other than some references of reported pain in the right shoulder, there was no evidence of any direct injury to the right shoulder causally related to the motor accident. Any injury to the right shoulder causally related to the motor accident was likely to be of a soft tissue nature and thus a threshold injury for the purposes of the MAI Act.
In respect of Mr Touma’s cervical spine, he had failed to demonstrate that the criteria for radiculopathy as set out in cl 5.8 to 5.10 of the Guidelines was satisfied and confirmed by Medical Assessor Wallace. In fact, Medical Assessor Wallace stated that Mr Touma did not have any evidence of cervical radiculopathy at the time of his assessment.
Further, Medical Assessor Wallace provided detailed reasons in support of his finding that Mr Touma’s cervical spine injury was a threshold injury under the MAI Act. He specifically commented on the radiology findings of the tiny annulus tear and disc bulge at C3/4 but concluded, based on his medical expertise, that the pathology was not due to acute trauma but due to degenerative changes at the C3/4 disc space.
In respect of Mr Touma’s left shoulder, Medical Assessor Wallace, having considered the radiology reports, provided reasons in support of his finding that Mr Touma did not suffer any direct injury to his bilateral shoulders as a result of the motor accident.
Medical Assessor Wallace’s certificate should be confirmed.
THE RE-EXAMINATION
Preamble
The Panel re-examination and assessment of Mr Touma was undertaken by Medical Assessor Home on behalf of the Panel in his Pitt Street, Sydney rooms on 18 April 2024.
History of the motor accident
Mr Touma states that he sustained injuries in a motor accident on the way to his work as a police officer on 10 February 2020. He was the seat-belted front-seat passenger in a Holden Commodore Sedan driven by his father, that was stationary at traffic lights at the intersection of Olympic Drive and Vaughan Street in Lidcombe. His vehicle was struck from behind by a utility vehicle and pushed forward approximately 5m. There was no secondary forward collision as there were no vehicles in front. His vehicle sustained rear-end damage. He was able to alight from the vehicle to exchange details with the other driver.
Mr Touma returned to the vehicle and recalls the immediate onset of neck pain. He recalls that at the time of the impact, he was leaning forward to adjust his shoe and immediately after the impact, he recalls being thrown back violently into the seat of his car before rebounding forward.
Symptoms and treatment following the motor accident
Mr Touma recalled that following the motor accident, he alighted from the vehicle to exchange details with the other driver. He recalled the immediate onset of neck pain that day. He said that the pain intensified 30 minutes after the motor accident. He was driven home by his father.
Mr Touma recalled that he attended his general practitioner, Dr Kumar, within several days of the motor accident. He was subsequently referred for ultrasound examination of the left shoulder, performed on 23 December 2020. The ultrasound examination demonstrated evidence of bursitis. A tear of the rotator cuff could not be seen. Subsequently, Mr Touma underwent a corticosteroid injection which was of mild benefit.
Mr Touma recalled that, whilst neck pain was more severe on the day of the motor accident, his left shoulder pain increased in severity over the next week.
Mr Touma attended Dr Maniam, orthopaedic surgeon, in January 2021. MRI scans of the left shoulder performed on 27 January 2021 did demonstrate a small partial thickness tear in the posterior insertional fibres of the supraspinatus tendon.
Medical Assessor Home directly reviewed the left shoulder MRI scans and has confirmed that there is a small tear on the posterior fibres of the supraspinatus tendon, as reported. This is seen in the image below:
[IMAGE UNABLE TO RENDER]
Following review by Dr Maniam, Mr Touma underwent a second corticosteroid injection. He did not recall any anaesthetic or durable benefit from the second procedure. He later underwent PRP injections into the left shoulder.
During that period of treatment, symptoms improved marginally.
Mr Touma underwent repeat MRI scans of the left shoulder on 16 March 2021 and 14 October 2021. These both demonstrated tendinosis with the appearance of a residual small posterior partial thickness supraspinatus tear.
Mr Touma recalled a period of hydrotherapy and supervised gymnasium-based exercise under the direction of an exercise physiologist. Again, he recalled mild benefit from the period of treatment.
On 15 April 2021, Mr Touma underwent an MRI scan of his cervical spine.
Medical Assessor Home directly reviewed the cervical spine MRI scans and has confirmed that there is an annulus tear.
The annulus fissure (tear) is seen in the photograph below:
[IMAGE UNABLE TO RENDER]
Mr Touma stated that neck pain had substantively resolved since the motor accident.
However, Mr Touma stated that he continued to experience activity-related pain at his left shoulder. He underwent a fourth MRI scan of the left shoulder on 27 May 2022. On this occasion, the supraspinatus tendon tear was less evident. There remained mild tendinosis in the supraspinatus tendon.
Mr Touma reported current use of Paracetamol and/or Ibuprofen. He reported the use of Paracetamol, two tablets most days and ibuprofen approximately twice monthly. He explained that he experiences gastrointestinal side effects from the latter.
Current symptoms
Mr Touma reported symptoms of very little neck pain. He described occasional sensations of left sided neck stiffness.
At the left shoulder, Mr Touma reported almost constant ache, average intensity of 4 to 5/10, felt both anteriorly and laterally at the shoulder. The pain is exacerbated by sleeping over his left side, such that he tends to try to sleep on his right. If he wakes over his left side, his shoulder pain is worse in the morning. There is also post activity ache.
Mr Touma described difficulty with overhead reaching, particularly in abduction. The shoulder catches in extreme external rotation.
Mr Touma is right hand dominant.
Mr Touma described a normal tolerance for sitting, standing, walking, forward bending at the waist, crouching, kneeling and stair climbing. He tries to keep objects close to his side when lifting. He avoids lifting away from his body.
Mr Touma primarily steers his motor vehicle with his right hand and with his left hand held close to the base of the wheel.
There are no symptoms of right shoulder, chest wall or low back pain.
Social history
Mr Touma has a de facto relationship but also lives with his parents. He and his girlfriend are planning to move out together presently.
At his home, Mr Touma helps out with bench height tasks. He avoids any overhead lifting. Lawnmowing is undertaken by an external provider.
Mr Touma has not resumed previous active hobbies of playing football and rock climbing.
Past medical history
There is no prior history of neck or shoulder complaints. There is no other relevant family history.
Vocational history
Mr Touma completed year 12 schooling. He then worked at the Canterbury Leagues Club as a bar attendant for three years whilst awaiting entry into the NSW Police Force. He then completed his police training. He now works as a police officer in the digital forensic field.
Physical examination
Mr Touma is a 30-year-old male standing 174cm and weighing 81kg.
Cervical spine
Examination of the cervical spine revealed normal spinal curvature. There was no muscle spasm. There was a full range of active cervical spine motion in all planes. There was normal upper limb power in all myotomes. There was normal sensibility throughout. The deep tendon reflexes were symmetrically preserved.
Left shoulder
At the left shoulder, there was tenderness elicited to palpation at the lateral margin of the acromion.
Active motion was measured by goniometer methods as follows:
Shoulder movement
Active range of movement - left
Flexion
170°
Extension
50°
Adduction
40°
Abduction
100°
Internal rotation
40°
External rotation
90°
Passive abduction was possible to 140°.
Pain was declared during abduction between 90° and 110°. There was an evident painful catch when lowering his arm from 140°. Impingement signs were strongly positive. There was pain declared with resisted abduction and external rotation of the shoulder. There were no clinical signs of capsulitis. There was no evidence of shoulder instability in an abduction and external rotation (ABER) position. Spurling’s test was negative.
Right shoulder
Examination of the right shoulder was normal. There were no complaints of pain in the right shoulder.
Chest
Examination of the chest was normal. There were no complaints of pain in the chest wall.
Lumbar spine
Examination of the lumbar spine was normal. There were no complaints of pain in the lumbar spine.
DIAGNOSIS, CAUSATION AND REASONS
Mr Touma was involved in a motor accident in which he suffered injuries.
There was early documentation of neck and left shoulder pain. Both complaints were recorded in the reports of Dr Maniam in January 2021. By that stage, neck pain had improved but left shoulder pain and impingement was continuing.
Whilst the initial ultrasound examination of the left shoulder performed on 23 December 2020 demonstrated bursitis with impingement, the subsequent MRI scan performed on 27 January 2021 demonstrated a small partial thickness tear in the posterior fibres of the supraspinatus tendon.
It is understood that ultrasound examinations are less sensitive in detecting a small cuff tear. Whilst the tear was not seen on the initial ultrasound, the Panel is aware that ultrasound examinations are less sensitive in determining the presence of a small tear and that ultrasound examinations are operator dependent. By contrast, the sensitivity of MRI scans to detect a tear in a supraspinatus tendon is in excess of 95%.
Therefore, the Panel finds that there is evidence that the tear seen on MRI scan imaging performed on 27 January 2021 represents a traumatic tear of the supraspinatus tendon.
The Panel finds that there was a small tear in the posterior fibres of the supraspinatus tendon as demonstrated in the MRI scans in the photograph at [130] above. The Panel finds that such injury could have been caused by the motor accident and that on the balance of probabilities, was trauma caused by the motor accident for the following reasons:
(a) Mr Touma was a passenger wearing a seatbelt over his left side;
(b) Mr Touma recalled being thrown back violently in his seat at the time of the impact with the onset of left shoulder pain within a week of the motor accident;
(c) there was no evidence of other degenerative changes in the left shoulder to suggest that the small tear was a degenerative process, and
(d) Mr Touma presented with clinical features consistent with an ongoing symptomatic rotator cuff tear at the left shoulder at the assessment.
Therefore, the Panel finds that Mr Touma suffered a non-threshold injury to the left shoulder, being a traumatic tear in the supraspinatus tendon.
The Panel is satisfied that Mr Touma suffered an injury to his cervical spine. The injury is consistent with a C3/4 annulus disc tear. The annulus fissure (tear) is seen in the photograph at [137] above.
The cervical spine annulus fissure or tear at C3/4 may be traumatic or degenerative in aetiology.
An annulus fissure represents a tear in an intervertebral disc cartilage and in the current case, the Panel considers that the motor accident could have caused and did cause, on the balance of probabilities, a traumatic tear in the annulus fibres of the intervertebral disc, rather than a degenerative process for the following reasons:
(a) there was immediate onset of neck pain, which persisted for several months;
(b) the mechanism of the motor accident was of a sufficient force to cause an annulus fissure in the cervical spine;
(c) Mr Touma is relatively young, being aged 27 years at the time of the MRI scan imaging of the cervical spine and at that age, underlying degenerative change is not anticipated, and
(d) intervertebral degeneration in the cervical spine usually commences at the C5/6 and C6/7 segments, which, in Mr Touma’s case, were normal in appearance.
Therefore, the Panel finds that Mr Touma suffered a non-threshold injury to the cervical spine, being a traumatic cervical spine annulus fissure or tear at C3/4.
In respect of the claimed injuries to the right shoulder, chest wall and lumbar spine, Mr Touma did not report any complaints of pain in those parts of his body at the time of the Panel assessment. There were no abnormalities at examination.
Considering the mechanism of the motor accident referred to at [124] and [125] above, the Panel is satisfied that the motor accident could have caused and did cause Mr Touma to suffer a soft tissue injury to his chest wall which has now resolved. Early documentation referred to chest wall symptoms. The absence of symptoms prior to the motor accident and the development of and their persistence for a period of time thereafter indicates, on the balance of probabilities, that the motor accident did cause a soft tissue injury to the chest wall which has now resolved.
Considering the mechanism of the motor accident referred to at [124] and [125] above, the Panel is satisfied that the motor accident could have caused and did cause Mr Touma to suffer a soft tissue injury to his lumbar spine which has now resolved. The absence of symptoms prior to the motor accident and the development of and their persistence for a period of time thereafter indicates, on the balance of probabilities, that the motor accident did cause a soft tissue injury to the lumbar spine which has now resolved.
Whilst the Panel considered that the motor accident could have caused an injury to Mr Touma’s right shoulder, it is not satisfied that the motor accident did cause or contribute to symptoms to an extent that is more than negligible. There is no convincing evidence of injury to the right shoulder in the motor accident. Whatever the cause of his right shoulder symptoms, they have now resolved. Mr Touma did not report any complaints of pain in the right shoulder at the time of the Panel assessment and there were no abnormalities at examination.
FINDINGS
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[42] and Insurance Australia Ltd v Marsh.[43]
[42] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[43] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the re-examination findings and conclusions of Medical Assessor Home based on his examination and specific findings pertaining to diagnosis, causation and assessment as to whether the injuries were threshold injuries.
The Panel determines that Mr Touma’s right shoulder condition was not caused by the motor accident.
The Panel determines that Mr Touma suffered a threshold injury to the chest wall, being a soft tissue injury caused by the motor accident.
The Panel determines that Mr Touma suffered a threshold injury to the lumbar spine, being a soft tissue injury caused by the motor accident.
The Panel determines that Mr Touma suffered a non-threshold injury to the left shoulder, being a traumatic tear in the supraspinatus tendon caused by the motor accident.
The Panel determines that Mr Touma suffered a non-threshold injury to the cervical spine, being a traumatic cervical spine annulus fissure or tear at C3/4 caused by the motor accident.
Accordingly, the certificate of Medical Assessor Wallace dated 4 August 2023 is revoked.
CONCLUSION
The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.
0
5
0