Tufuga v Allianz Australia Insurance Limited
[2023] NSWPICMP 363
•28 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Tufuga v Allianz Australia Insurance Limited [2023] NSWPICMP 363 |
| CLAIMANT: | Mareta Tufuga |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| DATE OF DECISION: | 28 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of decision of Medical Assessor as to whether an injury is a threshold injury as defined for the purposes of the Act; claimant injured in a motor accident on 26 June 2021 when the vehicle she was travelling in as a passenger was “T-boned” at an intersection; injuries to the cervical and lumbar spine; no clinical signs of radiculopathy were found in either the cervical, thoracic or lumbar spines; injuries therefore threshold injuries; Held – original certificate affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel confirms the certificate of Medical Assessor Wijetunga dated 10 August 2022. |
STATEMENT OF REASONS
INTRODUCTION
Ms Mareta Tufuga (the claimant) alleges injury caused by a motor vehicle accident which occurred on 26 June 2021.
The claimant subsequently lodged an application for personal injury benefits with the insurer of the vehicle, Allianz Australia Insurance Limited (Allianz), on or about 24 September 2021.
The issue in dispute between the parties is whether any injury caused by the accident is a “threshold injury” within the meaning of the Motor Accident Injuries Act 2017 (MAI Act).
A threshold injury determination is an important one in terms of an injured person’s entitlements under the MAI Act. If a determination finds that the motor accident has caused injury that is not a threshold injury then the gateway to ongoing statutory benefits and an entitlement to claim common law damages is opened.
Liability for statutory benefits was initially accepted by the insurer. However, by way of notice dated 8 December 2021, the insurer denied liability for ongoing statutory benefits after
26 weeks on the basis that the claimant’s injury was a minor injury (now known as a “threshold injury”) for the purposes of s 3.28 of the MAI Act.
An internal review decision of 3 February 2022 affirmed the original decision.
Subsequently an application was lodged with the Personal Injury Commission (Commission) to determine the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a Review Panel.
[1] Section 7.20 of the MAI Act.
The dispute about whether the claimant’s accident caused injury is a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The medical dispute was assessed by Medical Assessor Wijetunga. She issued a certificate dated 22 August 2022 wherein she certified that the claimant suffered minor injuries (now known as threshold injuries) for the purposes of the MAI Act.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.[2]
[2] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act2020 (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 cl14A(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 review provisions provide[3] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
[3] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
The Panel held a teleconference on 2 May 2023 and it was determined that a re-examination of Ms Tufuga was required. Medical Assessor Gibson examined Ms Tufuga in her rooms in St Leonards on 9 June 2023.
STATUTORY PROVISIONS
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 Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a 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)” and an acute stress disorder and an adjustment disorder.
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 the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 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:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a psychological or psychiatric injury caused by the motor accident.
5.4 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.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in 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.”Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[7]
MEDICAL ASSESSMENT UNDER REVIEW
[7] Clause 5.9 of the Guidelines.
This review is from the assessment of Medical Assessor Wijetunga dated 10 August 2022.
The Medical Assessor diagnosed the claimant as suffering an injury to her cervical spine by way of whiplash associated disorder, and an injury to the lumbar spine by way of non verifiable radiculopathy as being caused by the accident. Such injuries were certified as being minor injuries (now threshold injuries) for the purposes of the MAI Act.
On examination, the Medical Assessor found no muscle spasm or guarding in the cervical spine. Tenderness was noted along the paraspinal muscles and into the trapezii. Normal symmetrical range of movements was noted in the cervical spine.
Neurological examination of the upper extremities revealed normal tone and muscle strength. Brisk bilateral symmetrical reflexes were described. Hyperaesthesia over the left lateral aspect of the upper arm was reported, in the C5 dermatomal range.
In respect of the lumbar spine, neurological examination found no muscle spasm or guarding. There was tenderness to palpation across the mid lumbar and associated paraspinal muscles. A normal range of symmetrical movements of the lumbosacral spine were noted. Straight leg raise to 80 degrees was reported and sciatic stretch was negative.
Neurological examination of the lower extremities showed normal tone and muscle strength. There was a reduced right knee reflex and all other reflexes were symmetrical. The claimant described reduced sensibility over the lateral aspect of the right thigh and right lower limb and the medial aspect of the foot, in keeping with L4/5 dermatomes.
In her diagnosis and reasons, the Medical Assessor found that the claimant did not present with radiculopathy and there was no imaging to suggest there was an injury to the tendons, muscles or nerves.
In relation to the lumbar spine, the Medical Assessor confirmed that examination suggested some radicular signs “which would meet the criteria of radiculopathy as per MAA Guidelines”, however, there was no confirmation of injury to nerves in imaging. The Medical Assessor therefore concluded the injury to be a soft tissue injury and therefore a minor (threshold) injury.
SUBMISSIONS
Claimant’s submissions dated 9 September 2022
These submissions were lodged seeking leave to review the certificate. The claimant submits that the Medical Assessor was in error because she decided that the absence of imaging with respect to the lumbar spine is determinative of the question of threshold injury.
The submissions note that the Medical Assessor accepted clinical signs of radiculopathy in the lumbar spine, however, stated there was no confirmation of injury to the nerves in imagine presented.
The claimant refers to clause 5.4 of the Guidelines wherein it is stated that diagnostic imaging is not considered necessary to assess threshold injury.
Insurer’s submissions dated 4 October 2022
The insurer rejects the suggestion that the medical certificate contains a material error. However, the insurer accepts that clause 5.4 of the Guidelines provides that diagnostic imaging is not necessary to assess threshold injury. However, the insurer notes that cl 5.6 provides that diagnostic tests are of benefit in verifying symptoms complained of and reported on examination.
The submissions note that the claimant had failed to provide such evidence in the preliminary application, and it is submitted that such failure contradict obligations under the Procedural Direction PIC6 – Medical Assessments at cl15. Such clause essentially provides that the applicant must produce evidence that demonstrates the injury as asserted by them.
The insurer also refers to the Medical Assessor’s diagnosis of “non-verifiable radiculopathy”. As such, cl 6.140 of the Guidelines provides that non-verifiable radiculopathy does not itself constitute radiculopathy.
MATERIAL BEFORE THE REVIEW PANEL
The claimant attended Campbelltown Hospital following the accident.
An admission summary from the hospital describes the claimant’s injuries as minor, however, she reported pain on left shoulder and lower chest, which was said to be probably the area under the seat belt. Some neck and back pain was also recorded. Neurological examination showed power, tone and reflexes as normal in the upper extremities. No sensory impairment noted. Left shoulder examination demonstrated no tenderness on palpitation, mild restricted movement on external rotation, with range of motion good in other joints.
Lower extremities examination showed normal tone, power and coordination, however, it was difficult to elicit reflexes. No sensory impairment present.
An X-ray of the chest was reported as normal. An X-ray of the left shoulder noted the glenohumeral joint as enlocated. No acute fractures were seen and the AC joint appeared within normal limits.
X-rays were recommended with general practitioner in three days time. The claimant was advised to return to the emergency department in the event of worsening symptoms.
The claim form included a report of chest pains and back pain.
A certificate of capacity/fitness of Dr Patu dated 24 September 2021 diagnosed a soft tissue injury to the sternal wall, neck and lower back.
A certificate dated 20 December 2021 listed diagnoses of back pain, chest wall pain, osteoarthritis degenerative joint disease along with psychological issues.
An allied health recovery request dated 17 January 2022 physiotherapist, Beshara Moubayed, included a diagnosis of mechanical thoracic and cervical pain.
The clinical file of Blacktown Doctors & Medical Centre (Dr Patu) notes a past history of psychological symptoms.
The claimant presented to Dr Patu on 28 June 2021 (two days after the motor accident). Pain in the chest wall, sternal pain, neck pain and thoracic spine pain was recorded.
Via telehealth on 5 July 2021 the claimant reported to Dr Patu that she had intermittent pain in the chest wall, back and shoulders, especially at night. Again, on 13 July 2021 similar complaints were made including thoracic spine pain.
The claimant continued to attend upon Dr Patu on a reasonably regular basis with ongoing complaints to the chest wall, and upper back. On 8 November 2021, the claimant was complaining of lower back pain as well as upper back. A referral to Campbelltown Physiotherapy was provided on this date, with ongoing lower and upper back pain noted.
A further physiotherapy referral was provided addressed to Physio Interactive on 17 January 2022 which notes ongoing lower and upper back pain, along with chest wall pain.
The complaints of upper and lower back pain continued, with the last visit noted in the file as 31 January 2022.
RE-EXAMINATION
Ms Tufuga attended the assessment as arranged. Medical Assessor Margaret Gibson conducted the examination on 9 June 2023. A Samoan interpreter, Sapena Asiata
(35855) was available over the phone.
Personal history
Ms Tufuga was born in Samoa. She completed year 5 at school. She had then been caring for her parents. She arrived in Australia in 1998. She had then been at home caring for her eight children.
She lives in a rented home with her husband, her daughter and son and their children. There are four adults and four children in the house. Her daughter does the cooking and cleaning, the latter with help from her kids. Ms Tufuga helps out with the laundry.
Past medical history
There was no history of any motor accidents or other injuries. There were no relevant medical or surgical issues.
History of the subject accident
Ms Tufuga was a front seat passenger in a Landcruiser being driven by her husband which was hit on the left side by another vehicle. She recalled the other car then spun around and hit them a second time. She was unable to get out of the car via her door and had to climb over the back to get out via a rear door. Their car was towed and later written off.
She said she struck her head on the side window and she blacked out. There was immediate central chest and mid back pain (she indicated the mid thoracic spine in the midline). She was having difficulties moving her left arm as her body had been pushed against the door. She had later developed some bruising of her chest wall.
Her daughter arrived and she had conveyed her to Campbelltown Hospital.
Ms Tufuga presented to the general practitioner a few days later and was referred to physiotherapy treatment of her back.
Current treatment
Ms Tufuga said she takes prescription medication for pain, three times daily. She could not recall the name of the medication.
Current symptoms
Ms Tufuga said the neck pain comes and goes, and was not present today. The last time she remembered having the neck pain was earlier this week. When she has the pain it is felt over the back of her neck. It tends to radiate up into her head, precipitating headaches, but does not spread elsewhere.
In relation to the back pain, she described mid thoracic back pain especially when lifting or when driving over bumpy roads. The thoracic back pain was present today and did not extend beyond the thoracic spine.
There is sometimes some low back pain and sometimes this spreads to the back or her thighs. She notices this if she is doing domestic chores such as sweeping or activities requiring a lot of bending of her back. When asked about the onset of the low back pain, she said this had come on about two weeks after the accident. She had noticed it when she was bending over lifting a basket of laundry at home. She had asked her general practitioner,
Dr Patu, about this at the time and he had advised she be more careful with lifting.
She said there is left shoulder pain with any lifting activities. She indicated the underside of the left upper arm.
Physical examination
Ms Tufuga had a normal gait. She could walk on heels and toes. She weighed 71kg. She brought no imaging with her to the assessment.
On examination of the cervical spine, there was full normal range of movement. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance. There was normal power, sensation and reflexes bilaterally. There was globally reduced sensation in the left upper limb.
On examination of both shoulders there was no deformity, swelling or scarring. Active shoulder movements were as follows:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion
180 °
180 °
Extension 50 ° 50 ° Internal Rotation 80 ° 80 ° External Rotation 80 ° 80 ° Abduction 180 ° 180 ° Adduction 50 ° 50 °
On examination of the lower back, there was full normal range of movement. There was no asymmetry, muscle spasm or guarding.
She was tender over the mid thoracic spine in the midline. Rotation was normal range and symmetrical bilaterally but with some complaints of left ventral arm pain.
On examination of the lower limbs, circumferential measurements were equal, therefore there was no muscle wasting. There was normal power, sensation and reflexes bilaterally.
By way of comment, in contrast to the clinical findings of the original assessor, there were no objective sensory finding in the lower limbs and no radicular distribution to the upper limb sensory symptoms. Reflexes were present and equal in the lower extremities.
Diagnoses and reasons
Ms Tufuga is a 57-year-old woman who was involved in the subject accident on
26 June 2021. She had been a seat-belted front seat passenger in a 4 WD being driven by her husband. The impact had been to the passenger side of their car when it was T-boned at an intersection.
Ms Tufuga was a pleasant and straightforward historian. She provided good effort during the course of the examination.
Ms Tufuga had sustained soft tissue injury to her cervical spine and thoracic spine. The first recorded complaint of lower back pain in the material, is dated 8 November 2021. When asked about the low back symptoms, she dates these to two weeks after the subject accident.
Section 1.6(2) of the Act states:
“A soft tissue injury is (subject to this section) 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.”
Schedule 1 [2] clause 4 of the Motor Accident Injuries Regulation 2017 states:
“1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.”
The cervical spine injury satisfies the criteria of threshold injury. This is because there were no clinical or radiological findings to support the injury being non-threshold.
The thoracic spine injury satisfies the criteria of threshold injury. This is because there were no clinical or radiological findings to support the injury being non-threshold.
The lumbar spine satisfies the criteria of threshold injury. This is because there were no clinical or radiological findings to support the injury being non-threshold.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment determined whether injuries caused by the accident were threshold or non-threshold as defined under the MAI Act.
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[8] and Insurance Australia Ltd v Marsh[9].
[8] [2021] NSWCA 287 at [40], [41] and [45].
[9] [2022] NSWCA 31 at [11], [21] and [64].
The Panel reviewed the Certificate of Medical Assessor Wijetunga. It was noted she found reduced right knee reflex which corresponds to L3/4 spinal nerve root. She also found reduced sensory loss which corresponded to L4/5 dermatomes. It was the Panel’s view that these findings were not consistent with a lumbar radiculopathy as defined by paragraph 6.138 of the Guidelines. The findings are not consistent with an L3, L4 or L5 radiculopathy. The re-examination did not confirm these clinical findings.
The Medical Assessors in the review did not find evidence of radiculopathy of the lumbar spine.
We are not satisfied that there is evidence of radiculopathy as defined in cl 5.8 in either the clinical notes or on the examination findings of Medical Assessor Wijetunga. Radiculopathy was not found on re-examination.
CONCLUSION
For these reasons the Panel confirms the certificate of Medical Assessor Wijetunga.
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