Tsokas v AAI Limited t/as AAMI
[2023] NSWPICMP 624
•27 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Tsokas v AAI Limited t/as AAMI [2023] NSWPICMP 624 |
| CLAIMANT: | Angelique Tsokas |
| INSURER: | AAMI |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 27 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Review Panel assessment; threshold injury; replacement certificate issued under section 7.23(1); motor vehicle accident; internal review confirming definition of minor injury; claimant review not properly set out path of reasoning; medical assessment was incorrect in a material respect; MRI films reviewed; history of neck and back pain; loss of cervical lordosis with straightening; incidental findings of Tardov cyst at S3/4 level; localiser views showed presence of a marginal tilt in lower lumbar levels; mild adolescent roto scoliosis; high-intensity zone (HIZ) explained; radiological finding with no assumptions about causation/pathology; annular tear is a histopathological diagnosis; unreliable predictors of low back pain; transitory phenomenon of normal disc aging; Held – lumbar spine is a soft tissue injury and accordingly is a threshold injury; certificate confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel confirm the certificate of Assessor Cameron dated 14 April 2023. |
STATEMENT OF REASONS
INTRODUCTION
Angelique Tsokas (the claimant) was involved in a motor accident on 19 March 2022 which was caused by the claimant’s vehicle being rear ended by the insurer’s vehicle causing a secondary impact vehicle in front of the claimant. The claimant sought a concession from the insurer that the injury to her cervical spine and lumbar spine were not threshold injuries within the meaning of the MAI Act.
The insurer in a decision of 27 June 2022, and confirmed after an internal review on 15 August 2022, contended that the claimant’s injuries fall under the definition of minor injury (now threshold injury). The claimant made an application in respect to the determination of the threshold injury in respect to her injuries to her cervical and lumbar spine. This dispute was a subject of a certificate of Assessor Cameron 28 March 2023 which found that the claimant’s cervical spine – soft tissue injury and lumbar spine – soft tissue injury, are a threshold injury.
The claimant sought a review of this certificate primarily on the basis that the Medical Assessor had not exposed his reasoning process and has not properly set out the path of reasoning which led him to his conclusion.
The claimant’s application was reviewed by the President’s delegate, Tajan Baba, who in a decision dated 29 June 2023 determined that there was reasonable cause to suspect that the medical assessment was incorrect in the material respect. The matter was then referred to this Review Panel.
The Review Panel first considered the matter on 14 September 2023 at which time the Panel determined that there was not sufficient material to further consider the matter and that the Panel would need access to the actual MRI scans dated 10 May 2022 as well as all the documents included in the Reply and Application which were before Assessor Cameron. Concurrently, the parties were advised that the matter would be considered on the papers unless submissions were received as to why there ought to be a further examination of the claimant.
On 11 October the Panel again reconvened and identified deficiencies in the material available to the assessors which were required to allow the assessors to review the matter. Whilst there were 64 pages of the MRI scan uploaded the Panel had not been provided electronic access to the films nor a CD-ROM which contained the actual MRI scans.
Thereafter, the additional documents were provided which included the delivery of the CD containing the MRI scans to the Panel.
Thereafter, all the material, including the MRI scans, all medical material in the Application and Reply as well as all the submissions from both the claimant and the insurer were reviewed and considered by Medical Assessors Geoffrey Stubbs and Michael Couch.
The claimant was born on 27 January 1998 and is now 25 years of age. Following the motor vehicle accident she presented with a history of neck and back pain. The MRI scans were performed on 10 May 2022 to the claimant’s cervical and lumbar spine.
Cervical spine is reported as showing a loss of cervical lordosis with straightening, normal bony alignment multiple level disc desiccation and disc bulge but preservation of the intervertebral disc height no significant foraminal narrowing. Dr Wong did comment C6/7 mild disc bulge is seen with bilateral foraminal narrowing worse on the right than the left. Faint T2/STIR signal posteriorly suggests a small annular tear.
Lumbar spine – generally no protrusion no foraminal narrowing and no nerve root impingement. At L5 S1 there is a minor right lateral broad-based bulge no significant foraminal narrowing there may be minor right L5 nerve root contact distally. Incidental findings of a Tardov cyst at the S3/4 level.
She was seen by Dr Simon McKechnie neurosurgeon and referred for further physiotherapy strengthening exercises
The claimant’s submissions are that an annular tear form when the normal layer of a disc is ripped or torn as a result of stress. After an annular tear is formed, additional stress on the disc and cause soft tissue jelly… The annular tear to the cervical spine is not a threshold injury… SIRA case study number 48 issued by the review board confirms that an annular tear from an injury which consists of the disc lesion constituting of a partial rupture of the fibrocartilage is a non-minor injury. Dr Cameron did not consider that matter but did comment that the findings in the cervical spine were often seen in asymptomatic people.
Comments on the radiology viewed electronically
Localiser views were performed to determine the levels for the high-definition transverse and sagittal imaging is later performed. These views were performed from front to back at low definition to establish the levels. The localiser views show the presence of a marginal tilt in the lower lumbar levels concave to the left, the slight concavity at the thoraco- lumbar junction concave to the right and spinal curve convex to the right in the cervical spine. Thoracic spine is not included as a imaging studies only determined the levels for the subsequent high-definition scans. The transverse images in subsequent high-definition study the lumbar spine are consistent with mild rotation. Ms Tsokas may have a very mild adolescent roto scoliosis. Very mild scoliosis is often not detectable clinically, nor is it painful or anyway disabling. Slight scoliosis like this is an incidental finding.
The high-definition scans taken at 3 mm intervals of the cervical spine were reviewed. There is a single high intensity zone seen in one lateral image between the outer third of the annulus fibrosis where it attaches the upper border of C7 posteriorly in the T2-weighted imaging. The corresponding transverse images confirmed this follows the normal circumferential pattern of delamination in the outer laminar fibres. It is also seen in only one sequence. The transverse imaging Otherwise the cervical spine is normal for age.
The lumbar spine best shows the mild rotation in the lower lumbar vertebrae scoliosis and there is some bulging of the L5 S1 disc but height and hydration are normal.
The Panel agree with the assessment professor Ian Cameron that these findings are often seen in normal people.
The argument that this finding represents a disc rupture as per the Motor Accident Guide definition is often made as they are common and unfortunately referred to as an annular tear
HIZ Explained
The significance of annular tears in the relationship to low back pain, and in particular causation is complex needs to be explained in depth.
High-intensity zone (HIZ) is a bright signal on T2 weighted MRI images. These are sometimes called annular tears or annular fissures. The 3 terms are often used interchangeably, but HIZ refers only bright signal seen on the T2-weighted images, it is a radiological finding with no assumptions about causation/pathology whereas the term annular tear is a histopathological diagnosis made on microscopic examination of tissues recovered at operation or at autopsy. An annular fissure is a finding made only on provocative discography of the intervertebral disc when the injected contrast into the nucleus of the disc penetrates the annulus.
Since the features referred to annular tears on MRI only concern the radiological appearance, the Panel will continue to refer to these as HIZ. The distinction is important since the histopathological findings of operative or autopsy specimens are associated with intervertebral disc degeneration not trauma and the term annular tear is misleading.
The HIZ are produced by a high water content lesion in a normally dry tissue. Possible pathologies included reactive response to the injury, calcification, mucoid degeneration and delamination (amongst others) and the few histopathological studies available confirm that the HIZ represent a variety of processes.
HIZ were originally described in spinal surgery candidates in whom provocative discography was the proposed preoperative investigation. Provocative discography was known to give unreliable results in predicting the benefits (or absence of) with spinal surgery and had the possibility of accelerating degenerative changes in the discs tested. HIZ was proposed as a radiological sign that the intervertebral disc was the source of pathology producing low back pain and so discography would not be necessary. The reader should appreciate that though there was a correlation this did not mean there was necessarily causation as the initial reports were in highly selected groups with chronic low back pain.
With time HIZ were found in asymptomatic subjects either as part of a control group who did not have low back pain or as part of ongoing population studies of ageing changes in mostly asymptomatic subjects. HIZ were common and part of normal spinal aging and thus unreliable predictors of low back pain.
HIZ are common in asymptomatic spines, between 30 and 60% , the site depending mostly on the age of the subject. Unlike other MRI features of spinal ageing, they did not become cumulatively more common as the subject aged. Rather they appeared first in the more mechanically stressed lower levels cervical and lumbar spine (C5/6 C6/7, L4/5 and L5 S1) in younger subjects and later in the less stressed higher levels in older subjects. The frequency remaindered about one in five in asymptomatic subjects at all ages. This high intensity zone appear and then usually resolve only to reappear again at a higher level with age. Clinically they do not predict the presence or absence of low back pain or the response to treatment; nor do they seem to be more frequent and subjects presenting with acute back pain after mechanical injury that in the general population. They are best regarded as a transitory phenomenon of normal disc ageing.
Noting the review of the documentation and the findings in respect to the MRI scan the Panel concurs with the view of Assessor Cameron. That is, that the claimant sustained soft tissue injuries to her cervical spine and lumbar spine. There is no evidence that acute disc injuries were caused by the motor accident. It is the Panel’s view that the injury to her cervical spine is a soft tissue injury and accordingly a threshold injury.
It is the claimant’s view that the injury to the claimant’s lumbar spine is a soft tissue injury and accordingly is a threshold injury.
The following injuries are threshold injuries:
Cervical spine- soft tissue injury
Lumbar spine – soft tissue injury
0
0
0