Vella v AAI Limited t/as GIO
[2022] NSWPICMP 378
•28 September 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Vella v AAI Limited t/as GIO [2022] NSWPICMP 378 |
| CLAIMANT: | Daniel Vella |
INSURER: | AAI Limited t/as GIO |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Dr Neil Berry |
| MEDICAL ASSESSOR: | Dr Ian Cameron |
| DATE OF DECISION: | 28 September 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 6 January 2020 when another vehicle turned in front causing a T-boned impact at speed; this was a medical dispute about whether the claimant suffered a non-minor injury within the meaning of the Motor Accident Injuries Act 2017 (2017 Act); the Panel concluded that the claimant did not suffer a non-minor injury; the claimant confirmed on examination that the symptoms developed over a ten-day period following the motor accident; the delay in onset of symptoms, absence of direct trauma and the nature of the initial complaints is inconsistent with traumatic injury to the right shoulder; the shoulder tear can be present in the absence of symptoms and is otherwise consistent with the claimant’s age; Panel accept that claimant injured his cervical spine causing radicular type symptoms into the right shoulder; however there were no recorded sign, and none shown on examination of radiculopathy as defined in clause 5.8 of the Motor Accidents Guidelines Version 8.2 (Effective from 8 April 2022) (Guidelines); radicular pain is not an objective sign of radiculopathy as defined in the Guidelines; Held – original assessment confirmed; findings made that claimant sustained a minor injury to the cervical spine. |
| DETERMINATIONS MADE: | The Review Panel confirms the certificate dated 25 April 2022. |
REASONS
BACKGROUND
Mr Daniel Vella (the claimant) suffered injury in a motor accident on 6 January 2020 when another vehicle turned in front of his vehicle causing a T-boned impact at speed.[1]
[1] Claimant’s bundle, page 52.
The insurer insured the owner and driver of the other motor vehicle for liability to pay to Mr Vella any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue presently in dispute is whether Mr Vella’s injury is classified as a “minor injury” within the meaning of the MAI Act. 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 minor 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[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Woo who issued a Medical Assessment Certificate dated 25 April 2022.[3] Medical Assessor Woo concluded that Mr Vella sustained injuries to the right shoulder, lumbar and cervical spine which are a minor injury for the purposes of the MAI Act.
[3] Insurer’s bundle, page 39.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[4]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[5]
[4] Sections 3.11 and 3.28 of the MAI Act.
[5] Section 4.4 of the MAI Act.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by Mr Vella 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 having regard to the particulars set out in the application.[6]
[6] Section 7.26(5) of the MAI Act.
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 review provisions provide[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[7] 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.[8]
[8] 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.[9]
[9] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[10]
[10] Section 7.26(6) of the MAI Act.
The Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered.
STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or a “minor psychological or psychiatric 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 minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor 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 Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor 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 minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor 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 minor 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.”
Clause 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 minor injury. An injury resulting in radiculopathy will not be classified as a minor 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 minor injury.[11]
[11] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the Act[12].
[12] See s 3B(2) of the Civil Liability Act 2002.
ASSESSMENT UNDER REVIEW
The Medical Assessor concluded that there was no fracture in the cervical spine, lumbar spine and right shoulder and no clinical signs to satisfy the diagnosis of radiculopathy in the upper and lower limbs. The Medical Assessor otherwise concluded that the tendon tears in the right shoulder were most likely related to pre-injury degenerative changes and not acute injury.
SUBMISSIONS
Claimant’s submissions dated 23 May 2022[13]
[13] Claimant’s bundle, page 55.
The claimant submitted that he denied prior symptoms in the cervical spine and right shoulder. This history was recorded by a number of doctors including Dr Soo.
The Medical Assessor concluded that the tears were most likely pre-existing and referred to an unidentified study that was not provided to the parties. In these circumstances he had been denied procedural fairness: Briggs v IAG Ltd.[14]
[14] [2020] NSWSC 1318.
The claimant referred to the opinion of Dr Soo. It was noted that there was no competing evidence and Dr Soo had the benefit of treating the claimant in 2018.
Insurer’s submissions dated 3 December 2020[15]
[15] Insurer’s bundle, page 1.
The insurer submitted that the claimant sustained a whiplash injury of the cervical spine. It also submitted that the CT scan showed no lesion that was post-traumatic in nature and no neural compromise has been identified. No symptoms of radiculopathy had been identified.
Insurer’s internal review dated 22 June 2020[16]
[16] Insurer’s bundle, page 3.
The insurer’s internal review referred to both pre and post-accident clinical entries. The insurer concluded:
“Therefore, taking into account the clinical findings by your GP, Physiotherapist as well as radiological findings, the writer concludes the following: the evidence discussed above demonstrates you do not meet the definition of a non-minor injury for the Cervical Spine. You were diagnosed with a Whiplash injury by your GP and Whiplash Grade I by your Physiotherapist, with no verifiable radiculopathy signs arising from injury to or impingement of specific Cervical Spinal nerves being assessed or noted. There is no evidence of a fracture and no evidence of a complete or partial rupture of tendons, ligaments or cartilage in the Cervical Spine. As such, your Neck injury therefore falls under the definition of ‘minor’ per the Act, the Guidelines, and the Regulations.”
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents in accordance with the initial direction. A further bundle was provided by the insurer in response to a further direction that some documents were not accessible in the portal.
Pre-accident medical records
The clinical notes of the general practitioner show that that there was no pre-accident treatment for neck and right shoulder pain.[17]
[17] The clinical notes are contained in the further bundle filed by the insurer.
The Panel does not agree with the insurer’s description that the pre-accident clinical notes are “noteworthy”[18]. The notes support the claimant’s assertion that there were no prior neck or right shoulder complaints.
[18] Claimant’s bundle, page 17.
In July 2018 Mr Vella consulted Dr Gavin Soo, orthopaedic surgeon, for anterior left knee pain. At that time the doctor diagnosed chronically inflamed prepatellar bursa.
Motor accident
Mr Vella completed a claim form dated 7 February 2020.[19] In the claim form Mr Vella stated that neck and right shoulder pain commenced ten days after the motor accident.
[19] Claimant’s bundle, page 24.
Medical evidence
The clinical note of the general practitioner dated 20 January 2020 noted the motor accident with pain and stiffness in the neck.
The physiotherapist provided a report dated 19 February 2020 noting first attendance on 28 January 2020 with three further treatments. Mr Hua noted complaints of neck and right arm pain which appeared to be whiplash grade 1.
A certificate dated 28 February 2020 referred to a diagnosis of whiplash injury to the neck and persisting neck pain after the motor accident.[20]
[20] Insurer’s bundle, page 18.
Dr Peter Lim provided a short report dated 9 March 2020 responding to questions from the insurer. The doctor diagnosed whiplash injury to the neck caused by the motor accident.[21]
[21] Insurer’s bundle, page 27.
Allied Health Recovery request dated 27 February 2020 referred to a diagnosis of whiplash grade 1.[22] The request refers to neck pain worse on the right side. A further Allied Health request dated 21 May 2020 noted that Mr Vella had been rendering his house before the motor accident and was unable to finish it.[23]
[22] Insurer’s bundle, page 14.
[23] Claimant’s bundle, page 38.
The exercise physiologist noted in an email dated 21 May 2020 that Mr Vella had right shoulder pain radiating up into the neck.[24]
[24] Claimant’s bundle, page 44.
Dr Soo provided a report dated 23 January 2021 which responded to a series of questions.[25] The questions were not included in the material before the Panel.
[25] Claimant’s bundle, page 52.
Dr Soo referred to dates on 2 and 16 September 2020 and 19 November 2020 which were presumably dates of relevant consultations. The doctor noted onset of neck and right shoulder pain two weeks after the motor accident which had gradually worsened. There was no history of prior neck and right shoulder pain.
Dr Soo reported that the right shoulder ultrasound dated 30th July 2020 showed a rupture of long head of biceps and a large full thickness tear of subscapularis and supraspinatus tendons with subacromial bursitis. The MRI scan of the right shoulder dated 28 October 2020 confirmed a complete tear supraspinatus with retraction of tendon and long head of biceps tear.
The MRI scan of the cervical spine dated 28 October 2020 was reported as showing substantial bone and disc degenerative change throughout cervical spine, multilevel canal stenosis from C4/5 to C6/7 producing moderate cord flattening and multilevel foraminal narrowing.
Dr Soo diagnosed an exacerbation of underlying degenerative cervical spine and a tear of his right shoulder rotator cuff caused by the motor accident. The doctor noted that Mr Vella continues to experience debilitating pain in the neck and right shoulder one year after the motor accident.
Dr Soo noted that Mr Vella had been referred to a neurosurgeon for the cervical pain who agreed with the diagnosis of exacerbation of his underlying degenerative cervical spine.
Radiology
A CT cervical spine 3 June 2020[26] showed discogenic disease at multiple levels, multilevel foraminal stenosis most marked on the left at C5/6 and C6/7. No recent bony abnormality or fracture was identified.
[26] Insurer’s bundle, page 37.
A CT lumbo-sacral spine dated 3 June 2020 showed a disc bulge at L4/5 with degenerative changes at the tow low levels. [27]
RE-EXAMINATION
[27] Claimant’s bundle, page 46.
The Panel determined that Mr Vella be re-examined by Medical Assessor Berry on 9 September 2022.
The re-examination report is as follows:
“Mr Vella attended unaccompanied today, 20 September 2022. He gave a history that he is 72 years of age and dominantly right-handed. He was born in Malta and worked as a bus conductor for his father before coming to Australia in 1971. For 10 years he worked as a sprinkler fitter, fitting sprinklers in roofs and after that he moved to driving trucks and he retired from truck driving in 2010.
He is a divorced man with three adult children and four grandchildren. Currently, he lives in a house with his younger son.
PAST HISTORY
Mr Vella had a heart attack in 1989 and underwent a double bypass. He had a second heart attack in 2019 and had the insertion of two stents. He suffers from diabetes, renal calculi and an essential tremor and has had bilateral inguinal hernias repaired.
BACKGROUND
Mr Vella was involved in a motor vehicle accident on 6 January 2020. He stated that he was on his way to visit a friend at the Oaks, having driven from Oakdale. Mr Vella was the driver of a Ford Falcon wearing a seatbelt and the sole occupant. A vehicle travelling the other way turned in front of him causing a T-boned impact. He was assisted out of his vehicle and was aware of jarring to his back. Mr Vella told me that he was not taken to hospital, and he recalls that over a few days he did some gardening and he developed stiffness in his back and over about 10 days he also developed stiffness in his neck and right shoulder. Due to persistent discomfort in these areas, he attended his general practitioner, Dr Lim, and was treated conservatively.
HISTORY OF SYMPTOMS AND TREATMENT
Mr Vella told me that over a few weeks his neck pain and right shoulder pain eased, however his back pain persisted and then about three months after the accident he developed pain and restriction of movement in the left shoulder which has become progressively worse.
As far as he can recall, there have been no further accidents or injuries. Mr Vella told me that at the time of the accident he had rendered about half of his house and after the onset of the left shoulder pain he was not able to complete the other half and at this stage it has not been done. He could not remember which doctors he saw and he declined to have cortisone injections and he has not had any other treatment.
DETAILS OF ANY RELEVANT INJURIES OR CONDITIONS SUSTAINED SINCE THE MOTOR ACCIDENT
Today, Mr Vella complains mainly of left shoulder pain. As far as I could determine, the left shoulder was not injured in the motor vehicle accident and the symptoms and restriction of movement came on three months after his accident.
CURRENT SYMPTOMS
Mr Vella told me that his neck is intermittently stiff and sore and also his back continues to be painful, but there are no symptoms in the arms or legs. His main complaint was of pain and stiff in the left shoulder.
CURRENT TREATMENT
Mr Vella gave me a list of medications which included:· Coversyl
· Furosemide
· Lipitor
· Eliquis
· Somac
· Inderal and
· Ferro.
CLINICAL EXAMINATION
Mr Vella moved with normal posture and gait. He was 163 cm in height and 70 kgs in weight. He was able to sit comfortably.
Cervical Spine
Mr Vella was diffuse tender to palpation. He demonstrated three quarters of the normal range of movement in all directions. There was no muscle guarding and no muscle spasm and no alteration of spinal contour.
Upper Extremities
All active movements were measured using a goniometer
Mr Vella was tender across both upper extremities. Please see the attached worksheet and you will note that there is a markedly restricted range of movement in the left shoulder and a near normal range of movement in the right shoulder.
The elbows, wrists and hands were normal.
Reflexes were intact and sensation was normal in both upper extremities. There was no nerve root tension sign.
The upper arms measured 36 cm and 35 cm, 10 cm above the elbow and there was no evidence of any wasting.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 160° 30° Extension 40° 20° Adduction 40° 40° Abduction 160° 40° Internal Rotation 90° 80° External Rotation 90° 80° Lumbar Spine
Mr Vella was tender in the midline. He demonstrated approximately half the normal range of flexion, extension and rotation. There was no flattening of the lumbar lordosis and no paraspinal muscle spasm and no alteration of spinal contour.
Lower Extremities
All active movements were measured using a goniometer.
Mr Vella demonstrated 70 degrees of straight leg raising on both sides. Reflexes were intact.
The thighs were 44cm and 43 cm, 10 cms above the upper pole of the patella and 36cm and 35 cm, 10 cm below the lower pole of the patella.
There was no restriction of movement at the knees and ankles and feet. There was no nerve root tension sign.CONSISTENCY OF PRESENTATION
Mr Vella was entirely co-operative and there was no evidence of any exaggeration.
IMAGING
Mr Vella had no additional imaging for the neck, right shoulder and back.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor 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[28] and Insurance Australia Ltd v Marsh.[29]
[28] [2021] NSWCA 287 at [40], [41] and [45].
[29] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[30] that radiculopathy can be present at any time to establish that the injury is not minor for the purposes of the MAI Act.
[30] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[31] that the claimant bears the onus of proof in establishing that any injury is not a minor injury for the purposes of the MAI Act.
[31] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessor Berry and adds the further reasons.
Lumbar spine
There is no reference to low back injury in the contemporaneous material and it is not referred by Mr Vella as an injury to in the claim form. An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox[32]. Similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue.
[32] [2014] NSWSC 888 at [31]-[32].
It is unclear from the contemporaneous material when Mr Vella first complained of low back pain. There was no recorded treatment for the low back in the various contemporaneous notes.
The history recorded by Medical Assessor Berry is that the back pain came on whilst gardening sometime after the motor accident. The absence of reasonable contemporaneous symptoms is another factor suggesting an absence of injury.
For these reasons we are not satisfied that Mr Vella injured his lumbar spine in the motor accident.
We otherwise observe that there are no recorded signs of radiculopathy within the material as defined by the Guidelines. There were no signs of radiculopathy observed by Medical Assessor Berry. Accordingly, Mr Vella has not established that he suffered from radiculopathy at any time since the motor accident.
Right shoulder
Mr Vella reported in the claim form that pain commenced ten days after the motor accident. This history was confirmed by Mr Vella when he was recently examined by Medical Assessor Berry.
This delayed onset of pain is inconsistent with the motor accident causing or extending the tear in the right shoulder. A shoulder tear from a discrete event would normally result in immediate onset of pain.
There was no history of direct trauma to the right shoulder during the motor accident. The absence of direct impact to the shoulder is inconsistent with the motor accident causing or extending the tear in the shoulder.
The first medical consultation after the motor accident was with the general practitioner on 20 January 2020 which is consistent with the delay in the onset of symptoms as reported in the claim form and to the history recorded by Medical Assessor Berry.
We accept that there were no prior shoulder problems. However, it is incorrect to say that claimant was inactive at the time of the motor accident as he was reported as rendering bricks around the home.
The claimant was otherwise likely to have degenerative shoulder tears prior to the motor accident given his age. These can be present in the absence of shoulder symptoms and are more likely given Mr Vella’s age.
The initial right shoulder symptoms recorded by the health practitioners are more consistent with radicular type symptoms emanating from the cervical spine. Reference is made to the diagnosis of whiplash injury to the neck and the Allied Health Recovery request that refers to neck pain worse on the right side.
The claimant relied upon the opinion of Dr Soo who supported the causative link between the right shoulder tear and the motor accident. Dr Soo has not addressed the matters discussed herein, particular the delay in onset of symptoms, the absence of mechanism of injury and the nature of the initial complaints to treating health professionals. We are not obliged to accept his opinion and have explained why we have reached a different opinion.
We are not satisfied that the right shoulder tear was caused or aggravated by the motor accident.
Cervical spine injury
We accept that there was probably soft tissue injury to the cervical spine noting the delay in onset of symptoms. The scans only show degenerative changes and do not show traumatic changes or traumatic pathology.
There are no recorded observations of two signs of radiculopathy as defined in cl 5.8 of the Guidelines.
We accept that Mr Vella suffered from radicular pain from the neck to the shoulders. Various clinical notes refer to symptoms of cervical radicular pain. However, radicular pain is not an objective sign of radiculopathy as are precisely defined in cl 5.8 of the Guidelines.
Based on the examination findings of Medical Assessor Berry, Mr Vella did not have radiculopathy at the recent examination.
For these reasons we conclude that Mr Vella has not satisfied, at any time, two clinical signs of radiculopathy pursuant to the definition in the Guidelines.
Left shoulder
We observe that Mr Vella presented with left shoulder symptoms to the Medical Assessor. It was not asserted that Mr Vella injured his left shoulder in the motor accident, and it was not alleged as n injury in the claim form.
For completeness we note that the delayed onset of left shoulder symptoms, absence of contemporaneous treatment and the mechanism of injury are inconsistent with injury to the left shoulder.
CONCLUSION
For these reasons the Panel concludes that the injuries sustained by Mr Vella in the motor accident were minor injuries as defined by the MAI Act and the Guidelines. The certificate issued by Medical Assessor Woo is confirmed.
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