Venter v AAI Limited t/as GIO
[2023] NSWPICMP 267
•15 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Venter v AAI Limited t/as GIO [2023] NSWPICMP 267 |
| CLAIMANT: | Karien Venter |
INSURER: | AAI Limited t/as GIO |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Paul Curtin |
| DATE OF DECISION: | 15 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of threshold (then minor) injury and insurer’s review of Medical Assessor (MA) Home’s decision under section 7.26; claimant knocked off her bicycle injuring her neck, back and both shoulders; MA assessed neck and the right hip but did not assess the right hip; issue in assessment of neck, presence of radiculopathy; issue in assessment of right hip, causation of tear of the labrum and gluteus minimus; no issue identified in submissions concerning the back; Held – back not considered; claimant has not had at any time since the accident two of the five signs of cervical radiculopathy; right hip labral tear and tear of gluteus minimus caused by accident; claimant had substantial unresolved bruise leaving a mass under the skin which is an indicator of significant force; fall onto right hip could have and did cause injury; tears not visible on ultrasound 8 months after the accident but visible on MRI 9 months after that; MA was of the view that MRI is more sensitive and on the basis of no pre or post-accident relevant history the tears were caused by the accident and are a non-threshold injury; Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Home dated 18 September 2022. 2. Certifies that Karien Venter has an injury that is not a threshold injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Karien Venter was involved in a motor accident on 8 May 2020. The claimant was riding her bicycle in Yarramundi in the lower Blue Mountains area when she says she was struck on the right-hand side by a car.
The claimant says she injured her neck, back and right hip in the accident. She made a claim for statutory benefits (treatment and lost earnings) against GIO, the third-party insurer of the vehicle that hit her.
A medical dispute has arisen in the claim about whether or not any of the claimant’s injuries sustained in the accident fall outside the statutory definition of “minor” (now threshold) injury. That dispute was referred to the Personal Injury Commission (Commission) and on 18 September 2022 Medical Assessor Home determined that all of the claimant’s injuries were minor injuries.
Ms Venter referred the assessment to the Commission seeking a review of Medical Assessor Home’s decision. On 15 November 2022, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in Assessor Home’s determination and allowed the review.
On 5 December 2022, the President convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Jurisdiction
Ms Venter’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.
While almost all injured persons are entitled to some 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 the limitations applicable to Ms Venter’s claim is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by Ms Venter are “threshold” injuries.[1]
[1] For persons injured in accidents after 1 April 2023, statutory benefits are available for 52 weeks.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “threshold injuries”.
The Motor Accidents Injuries Amendment Act 2022 provided for a number of adjustments to the scheme of statutory benefits including to s 1.6. The effect of the amendment is to change the terminology of “minor” injuries to “threshold” injuries and these changes apply to all accident regardless of when they occurred.
The parties referred a dispute about “minor” injuries and Medical Assessor Home determined a dispute about “minor” injuries however due to the change in terminology, the Panel will be issuing a decision that reflects the change in terminology and will be deciding whether Ms Venter has sustained only threshold injuries or whether she has sustained at least one non-threshold injury.
Threshold injury
A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury as:
“[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.”
If a person injured in a motor accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the exclusion highlighted in italics above, the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 and they cannot recover damages.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Section 1.6(5) says that the Motor Accident Guidelines[2] (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Relevantly to the matters in issue in Ms Venter’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 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.”
[2] The current version of the Guidelines is version 9.1.
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines[3]. Clause 5.9 then provides:
“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”.
[3] Chapter 6 of the Guidelines.
Dispute resolution
If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[4]
[4] Schedule2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Home’s, further medical assessments and the review of medical assessments by this Panel.[5]
[5] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Home undertook his assessment on 13 September 2022 and issued his certificate on 18 September 2022 with a statement of reasons. Section 2 of his reasons summarise the injuries that were referred to him for assessment:
(a) cervical spine;
(b) lumbosacral radiculopathy, canal narrowing with mild compression of the right S1 nerve in the lateral recess in the setting of moderate degenerative facet joint disease, hypertrophy and a posterior disc. Pain over left sacroiliac joint injury, and
(c) right hip:
(i)gluteus minimus tendinosis with partial tearing at the insertion;
(ii)mild trochanteric bursitis, and
(iii)ischiofemoral impingement injury.
The claimant gave Medical Assessor Home the following history:
(a) Ms Venter had no previous neck, back or hip complaints;
(b) she recalls sitting on the road after the accident with bruising and lacerations to the right side of her head, right elbow, chest and right thigh;
(c) her husband was riding behind her, and she was taken by car back home and from there to Nepean Hospital where she had CT scans of her head, neck and chest;
(d) over the next two months, she suffered post-traumatic positional vertigo which has resolved and early neck symptoms and pain over her right hip where there was a large bruise under the skin;
(e) her neck pain resolved but then she had an episode of severe neck pain with paraesthesia in the two fingers of her right hand commencing in September 2020, she saw a neurosurgeon and had physiotherapy and her symptoms settled within a few months;
(f) at about the same time she developed numbness in her right leg with intermittent pain shooting down her right leg associated with paraesthesia extending to the three toes of her right foot. She was referred to a neurosurgeon in September 2021;
(g) investigations revealed a disc protrusion at L5/S1, she had spinal injection followed by surgery – a right sided L5/S1 fasciotomy and S1 rhizolysis. This relieved the right leg symptoms, and
(h) she has continuing pain in the right hip which revealed a 6mm tear of the gluteus minimus which was investigated by both the neurosurgeon and an orthopaedic surgeon who noted a small labral tear with impingement. The symptoms were relieved by injection but are returning.
In terms of her current symptoms, at section 10 of his reasons, Medical Assessor Home records:
(a) no neck pain – occasional mild discomfort;
(b) the right sided S1 radicular sensory disturbance has resolved since her surgery in March 2022. She has never suffered significant pain in her back, and
(c) her main concern was right hip pain and a residual subcutaneous lump present since the accident.
On examination of her neck, there was no spasm, no dysmetria (full range of active motion in all planes) and no guarding. There was no tenderness and neurological examination was normal in the upper limbs.
In terms of the lower back, Medical Assessor Home found no spasm, no dysmetria (again a full range of active motion) and straight leg raising to 70 degrees on both sides. There were no neurological symptoms in the lower limb.
There was a 15cm by 7cm area of thickening and hardening of the skin consistent with a large unresolved haematoma. There was tenderness over the greater trochanter and mild tenderness in the right hip joint. Ms Venter had full range of active motion at the hip with pain at extremes of some motion.
Medical Assessor Home diagnosed a soft tissue injury to the neck with vertigo that resolved. He was of the view the further episode of acute neck pain and right arm radicular symptoms was not related to the accident in September 2020 because of the four-month gap between them and the date of the accident.
Medical Assessor Home was also of the view that the right leg radicular symptoms that arose and resulted in spinal surgery was also not causally related to the accident because there was no evidence, she sustained a material injury to the lumbar spine in the accident. The later onset of symptoms related to facet joint and ligamentum flavum hypertrophy were not related to the accident based on the available medical information and have resolved with surgery.
The Medical Assessor accepted the claimant sustained a soft tissue injury to the right hip and proximal thigh which has persisted.
Right hip pain has developed which appears to be ischiofemoral impingement (due to the corticosteroid injection) which improved the symptoms. Medical Assessor Home explains that this is a rare cause of hip pain defined by a narrowing of the space between the lateral aspect of the ischium bone of the pelvis and lesser trochanter of the femur. It can arise due to trauma but is a soft tissue injury as it does not involve an injury to nerves or the complete or partial rupture of tendons, ligaments, menisci or cartilage.
The cyst in the labrum is said to be chronic and related to degenerative change according to the MRI and is not related because of the absence of severe hip pain early on. For the same reasons the labral tear was said to be a “common degenerative finding” and note related.
The tear demonstrated on MRI of the gluteus minimus fibres did not appear on 4 January 2021 and “reflects the interval progression of degeneration within the tendon substance” and was therefore not caused.
Medical Assessor Home refers to the “criteria for causation in sections 6.6 and 6.7 of the Guidelines” as part of his reasoning process.
He found the claimant’s neck injury did not meet the definition of radiculopathy and the right hip injury was a minor injury.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant submits in her submissions at [3] that “there was clear evidence of cervical radiculopathy” in the records before the assessor. The claimant refers at [4] to the case of David v Allianz Australia Insurance Ltd[6] where it was found that radiculopathy at any time whether ongoing or not satisfied the definition.
[6] [2021] NSWPICMP 227.
The claimant says at [9] that the claimant’s neck injury was “of some substance, causing vestibular issues and dizziness” and at [10] that she developed more severe neck pain on 1 September 2020.
The claimant says the Medical Assessor failed to fully explain his decision that the more severe symptoms, less than four months after the accident were not caused by the accident.
The claimant submits at [15]-[21] that in respect of the hip injury, the Medical Assessor erred in finding the partial tear of the gluteus minimus was not caused by the accident. The claimant says he applied the wrong test namely the permanent impairment test of causation which is irrelevant to a minor injury dispute. The claimant says the Medical Assessor considered the accident was a cause of the tear on the basis he found the accident aggravated a pre-existing degenerative process. It was this error that the President’s delegate accepted as the basis for allowing the review.
The claimant’s submissions do not take issue with the claimant’s lumbar spine injury.
Insurer’s submissions
The insurer accepts the decision in the David matter but says that radiculopathy must be present within the definition of radiculopathy in cl 5.8 of the guidelines. The insurer says there is no evidence that the claimant has had at any time two of the five signs of radiculopathy.
The insurer refers to a 4 January 2021 ultrasound which did not show any tear or trochanteric bursitis whereas on 9 October 2021 an MRI revealed the partial tear. The insurer refers to Medical Assessor Home’s finding that this is the result of the progression of the claimant’s degenerative changes.
The insurer argues that cl 6.7 of the Guidelines refers to causation of injury generally and not solely permanent impairment and therefore it was not an irrelevant consideration to refer to them.
Procedural matters
The Panel first met on 7 February 2023 and reported to the parties on 15 February 2023 in relation to the injuries and issues in dispute as follows:
(a) in relation to the claimant’s neck injury – the Panel noted the distinction between “radicular signs” and radiculopathy, referred the parties to cl 5.8 in the Guidelines and asked the claimant provide a reference to the medical records or reports that confirms the presence of two of the five signs of radiculopathy at any time after the date of the accident;
(b) the claimant’s lumbar spine threshold injury assessment was noted not to be disputed by the claimant and the Panel advised that subject to submissions, it did not propose to consider the lumbar injury further, and
(c) in terms of the hip injury, the Panel noted there were no pre-accident hip injuries or conditions reported and that the claimant had a large unresolved haematoma which suggested a heavy blow to the hip. The Panel also offered the preliminary view that MRI scans are generally more accurate than ultrasounds.
The Panel directed the claimant to upload to the portal:
(a) photographs of her right thigh showing the location of the large lump;
(b) copies of records from her general practitioners (GP) (Dr Daya and Dr Robertson), her chiropractor and physiotherapist and Professor Owler’s records;
(c) final submissions in response of any matters raised the Panel, and
(d) hard copy or electronic copies of the ultrasound and MRI scans.
The insurer was directed to provide final submissions.
The Panel received the claimant’s bundle of documents and a request for additional time to provide submissions.
The Panel met for the second time on 12 April 2023 and reported to the parties:
(a) confirming receipt of the claimant’s bundle of documents (AD3) and directing the claimant to provide any final documents and submissions by 28 April 2023;
(b) the insurer was to provide any final documents and submissions by 12 May 2023, and
(c) a medical examination was set for 18 May 2023 and the claimant was to take to that examination the radiology relevant to her right hip injury.
No further documents or submissions were received from either party. The Commission followed this up with the parties by way of phone messages and a message in the portal on 16 May 2023. No response was received from either party.
The Panel resolved to proceed on the basis the Panel would only be considering the right hip and the neck injury.
The re-examination took place and the Panel met again to discuss the findings and finalise the assessment.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claimant’s application for personal injury benefits is dated 22 May 2020. Ms Venter says she was cycling on the left side of the road when a car struck her on the right side of her body.
The claimant says she sustained the following injuries:
(a) concussion;
(b) bruising lacerations on the right side of my head and ear;
(c) bruising and laceration on my right elbow;
(d) bruising on my right rear rib cage;
(e) bruising on my right thigh, upper leg and knee, and
(f) bruising on my inside left and right knee.
The claimant denied any previous injuries or conditions affecting those parts of her body she says were injured in the accident.
Treating medical records and reports
Dr Robertson and Dr Daya
Dr Robertson of the Hawksbury Family Medical Practice (HFP) signed the certificate of capacity dated 15 May 2020.[7] He diagnosed a soft tissue injury and vestibular dysfunction, and his treatment plan was for analgesia and rest.
[7] Page 74 of the claimant’s bundle.
The claimant has also attended Dr Daya at the Beecroft General Practice (BGP). He signed the next certificate of capacity dated 21 September 2020.[8] His diagnosis was of “cervical spine and neck injury with right C7/T1 radiculopathy, right thigh injury / haematoma, severe vertigo and whiplash”. His management plan was analgesia, chiropractic treatment and neurosurgical opinion.
[8] Page 82 of the claimant’s bundle.
The notes of both practices have been produced[9] which include the following relevant attendances:
[9] Page 178 of AD3.
(a) 14 May 2020 (HFP) – knocked off bike and unconscious – 24 hours of memory loss. Attended Nepean ED, admitted overnight but discharged against medical advice next day. Presenting for ongoing pain on right side of body as well as dizziness and nausea;
(b) 15 May 2020 (HFP) – completion of WorkCover paperwork (certificate of fitness for the motor accident claim);
(c) 18 May 2020 (HFP) – bumps and bruises to right side healing well, ongoing dizziness but improved. Transfer of records from BGP;
(d) 1 June 2020 (HFP) – “dizziness now entirely resolved, soft tissue injuries / bruising all resolved, no limitation on head movements will be trialling bicycle ride later this week”.
(e) 9 July 2020 (HFP) – weight loss, gastroesophageal reflux disorder (GORD), lower back and neck spasms “having for last week doesn’t go away no change in physical activity”, right elbow pain had abrasion to right elbow in bicycle accident. On examination no tenderness and full range of movement;
(f) 1 September 2020 (BGP) – knocked by car while riding bike three months ago – head injury right side, large haematoma to right thigh and bruises on leg. Was taken to Nepean Hospital – C6 disc prolapse. CT scan was requested and a referral letter to Dr Bhuta given;
(g) 3 September 2020 (BGP) – treatment with chiro yesterday and slept better but pain C4/5 persisted on the right side. An MRI was requested;
(h) 15 September 2020 (BGP) – referral to Professor Owler, neurosurgeon;
(i) 21 September 2020 – appointment with Professor Owler on 15 October, yesterday bent over electric sharp reaching forward, reaching back, neck pain and stiffness radiating pain to right constant pain. NSW certificate of fitness given;
(j) 23 September 2020 – frequent waking due to pain sleeps on back, right arm numbness especially 3, 4 and 5th finger which has resolved during the day. Pain with specific movement but unpredictable. Pain with flexion and extension of neck – neck pain with radiculopathy;
(k) 7 December 2020 – mobility in neck much better, Right hip pain could wake her up at night even during the day worsening. Ultrasound requested and letter to David Cook;
(l) 21 January 2021 – Mobic does not help, panadol and nurofen also does not help constant right hip pain;
(m) 9 February 2021 – using Panadeine Forte occasionally helps when she has physio as she has much pain;
(n) 2 March 2021 – right hip and thigh seeing her once a week bruising really bad;
(o) 25 March 2022 (HFP) – recent back surgery and left shoulder skin lesion;
(p) 12 July 2022 (HFP) – acute back pain triggered over the weekend after husband massaged her back. Struggling with pain. Unable to sit pain worsens with movement. Voltaren Rapid and Diazepam;
(q) 14 July 2022 (HFP) – back pain settled well, feels mild discomfort, and
(r) 31 October 2022 (HFP) – sick last week with coryzal symptoms, also has tight shoulders and upper back progressed up to neck. Typing a lot and on the phone a lot for work which can contribute but finds stress flare up tension in her upper back (referral given[10] for In2motion for upper back and neck tension contributed to by stress).
[10] Page 215 of AD3
On 1 September 2020 the claimant was referred for chiropractic treatment from Dr Bhuta. On 2 September, Dr Bhuta from Necksbacksports wrote to Dr Daya[11] who says in the first paragraph (the type face used was in bold):
“I am VERY CONCERNED about her case and would like to discuss this case with you at your earliest convenience.”
[11] Page 70 of AD3.
The claimant had neck stiffness and some pain accompanied by bilateral shoulder pain and right arm pain and tingling. He has a history that the claimant lost consciousness and has no memory of the accident.
Dr Bhuta then says, “She reports that last Friday evening was the onset of her neck pain”. She is reported as saying she heard a click and hoped her pain would go away but it is getting worse and worse. Her pain radiates down the right arm into the forearm and fifth digit. She was finding it difficult to sleep, do her housework and her pain is exacerbated and wakes her at night. Activity with the arm outstretched or head extended exacerbates her pain.
Range of motion in the neck was reduced by 30% in all directions. Upper limb tension test was positive bilaterally. Hyperaesthesia in a non-dermatomal distribution on the right arm. Motor cranial examination and nerve examination was unremarkable. Reflex and myotomal testing was also unremarkable.
He expressed the view there was a C6/7 cervical lesion on the right-hand side and was very concerned about the oedema shown on the MRI and the apparent instability at C5/6 and C6/7.
Dr Bhuta recommended a SPECT scan and the referral to Dr Owler.
There is an allied health recovery request dated 30 October 2020 from Dr Bhuta to the insurer seeking approval for chiropractic treatment. This referred to “chief complaints of headache, cervical spine pain, thoracic pain, right arm pain, some chest pain” and noted the “onset” of this was 28 August 2020.
The discharge summary from the Hawkesbury District Health Service[12] dated 21 September 2021 refers to chronic low back/sacral pain with no lower limb weakness, numbness or tingling and pain over the left sacroiliac joint. The hospital has a history of a ”MBA” which the Panel notes is usually a reference to a “motor bike accident” three years ago (the Panel notes that would be 2018) with cervical radiculopathy and mechanical low back pain.
[12] Page 102 of the claimant’s bundle.
Professor Owler and Dr Gursel
Dr Daya wrote a referral to Professor Brian Owler dated 15 September 2020[13] in which he noted “she presented on 1st September with acute neck pain and severe intermittent spasm with RT radiculopathy C7/T1 distribution, 3 months after being involved in a MVA as a cyclist with LOC and was taken to Nepean Hospital”. He then says, “There was no significant trigger for her neck pain this time”. There is a reference to symptoms continuing and chiropractic treatment by Dr Bhuta.
[13] Page 77 of the claimant’s bundle.
There is another letter from Professor Owler to Dr Daya dated 12 May 2022 the date of which appears to the Panel to be an error.[14]
[14] While dated 12 May 2022 he refers to the bicycle accident occurring about “three months ago” and that in early September, she developed significant neck pain and muscle spasm with no significant radicular pain. The Panel also notes that in a letter date 30 November 2021, Professor Owler refers to having seen the claimant about 12 months ago (that is in 2020) for her neck pain. It appears to the Panel that this 12 May 2022 letter refers to a September or October 2020 consultation and which was reprinted on 12 May 2022.
On examination she had good range of neck motion and power was good with no evidence of myelopathy or radiculopathy. He reviewed the MRI scan noting degenerative changes but no compression of the spinal cord or nerve roots. He diagnosed an exacerbation of degenerative changes that would be likely to recover over time.
On 30 November 2021 Professor Owler wrote to Dr Brunton regarding a “follow up appointment”. He had seen Ms Venter about a year ago in relation to her cervical spine. He refers to significant right sided symptoms in her lower limb, “typical of an S1 distribution”. He notes on examination that the claimant was able to heel raise and there was no significant weakness. The MRI showed impingement of the S1 nerve root which he considered was responsible for her symptoms. The claimant wanted conservative management and he suggested a cortisone injection to begin with, but he foreshadowed the L5-S1 medial facetectomy and rhizolysis.
On 21 March 2022 there is an operation report concerning “right S1 radiculopathy”. The medial facetectomy was performed and the ligamentum flavum removed. The S1 nerve root was decompressed with a note of “considerable adhesions surrounding the nerve root which were removed”.
Professor Owler wrote to Dr Gursel on 3 May 2022 and the GP noting right lower limb pain with some symptoms of bursitis but also “deep seated pain in the hip”. The result of the surgery was good, but he thinks there was still pathology in the hip including the bursa.
Dr Gursel, hip and knee surgeon provided his notes to the claimant’s solicitor.[15] He wrote a letter to Professor Owler on 30 May 2022. He refers to the successful spinal surgery and records that Ms Venter has pain in and around the posterior of her gluteal region and in the groin. He felt her main issue was the ischiofemoral impingement and suggested a guided injection, core strengthening and gluteal muscle exercises and suggested she sleep with a pillow underneath her knees. He wanted to review her in two to three months’ time. There are no further notes or records.
[15] Page 219 AD3.
Radiology[16]
[16] Page 224 of AD3.
The Nepean Hospital CT of the cervical spine records the posterior spondylolisthesis of C5 over C6 at 2mm and C6 over C7 at 1.6mm and mild disc osteophyte complexes present at C5/6 and C6/7 with some canal stenosis and foraminal narrowing. X-ray of chest normal and CT scan of head “no acute intracranial pathology”.
A CT of the claimant’s head and neck dated 16 May 2020 was reported as normal.
An X-ray of the claimant’s cervical spine was undertaken on 8 September 2020 at the request of Dr Bhuta (chiropractor) and concluded degenerative spondylosis and spondylolisthesis at C4/5 (1mm) and C5/6 (2mm) with narrowing of intervertebral disc heights, endplate sclerosis and osteophytic lipping.
An MRI was done at the request of Dr Daya on 8 September 2020, and it revealed “there is soft tissue oedema in the interspinous space at C7/T1 and T1/2 levels, likely due to sprain of the supraspinous and interspinous ligaments without tear”. There were degenerative changes at C5/6 and C6/7.
An ultrasound of the right hip and right thigh was done on 4 January 2021 at the request of Dr Daya[17]. The conclusion was:
(a) right hip (clinical history of right hip bursitis) – mild insertional tendinosis and enthesophathy (disorder in attachment) of the gluteal tendons. No associated tear or trochanteric bursitis. Mild tendinosis adductor origin without tear, and
(b) right thigh – (lump right thigh area of impact from car accident) – normal appearance of the soft tissues underlying the area of interest – no evidence of fat necrosis or haematoma formation is demonstrated.
[17] Page 225 of AD3.
An MRI of the claimant’s lumbar spine was undertaken on 9 October 2021[18] on the basis of “lumbosacral radiculopathy, right hip pain. Cycling accident, a year ago”. The report noted:
(a) disc desiccation throughout the lumbar spine;
(b) mild to moderate degenerative facet joint disease at L3/4, L4/5 and L5/S1;
(c) mild ligamentum flavum hypertrophy at the same levels;
(d) at L3/4 mild disc {bulge] with mild encroachment on the neural foramen;
(e) at L4/5 posterior disc [bulge] mildly encroaching the lateral recesses and the origins of the L5 nerves, and
(f) at L5/S1, posterior disc [bulge] with mild narrowing of the right lateral recesses and compressing the origin of the right S1 nerve.
[18] The report is dated 11 October 20121 and is found at page 100 of the claimant’s bundle.
The claimant had, at the same appointment, an MRI undertaken of her right hip – it is this radiology that identified the partial tearing at the intersection of the gluteus minimus, mild trochanteric bursal oedema and ischial femoral impingement.
On 24 May 2022 the claimant had a right greater trochanteric bursal injection[19] which she said reduced her pain from 4/10 to 0/10.
[19] Page 226 of AD3.
There are no medico-legal reports or other assessments before the Panel.
RE-EXAMINATION FINDINGS
The claimant attended a medical examination with Medical Assessor Dixon on 18 May 2023 in his Hornsby rooms. Medical Assessor Dixon reports the claimant was pleasant and co-operative and give her history in a straightforward manner without sign of embellishment.
History of the accident and treatment
Ms Venter, who is now aged 47, said she was riding her bicycle when she was stuck by a car on the right-hand side. She had a head injury with transient loss of consciousness but her husband, who was with her at the time, said that she hit the car before falling onto the road. She reported sustaining an injury to the right side of her head, right elbow, chest, right thigh and right knee. She was helped by her husband and a passer-by and was driven to Nepean Hospital where she had precautionary CT scan of her head and neck.
She developed post traumatic dizziness after the motor vehicle accident which was diagnosed as benign positional vertigo. She also said that in the two months after the accident she developed pain in her neck and pain and swelling at the lateral aspect of the right hip where there was a large subcutaneous haematoma. This was not drained.
Ms Venter reported that her dizziness and neck pain improved but she still had residual right sided neck pain with trapezial muscle pain and had difficulty turning to that side and she also had intermittent paraesthesia in the ulnar two digits of her right hand which occurred at night.
Ms Venter said she was assessed by Professor Owler, a neurosurgeon, who did not recommend operative intervention and she had physiotherapy for her neck and the paraesthesia in her right arm resolved.
Ms Venter also reported pain in the lower back with right sided sciatica (radiating pain) with paraesthesia extending to the lateral three toes of her right foot and she was referred to Professor Owler. Ms Venter said that he eventually performed a right sided L5/S1 medial fasciectomy and S1 rhizolysis which relieved her sciatica and symptoms of numbness.
Ms Venter says that the pain and swelling at her right lateral hip has persisted since the day of the accident and this was investigated by way of an ultrasound and then an MRI on 9 October 2021. She said that due to the persisting swelling, she was referred to Dr Gursal, orthopaedic surgeon, who the Panel notes diagnosed a small labral tear in the hip joint with some femoral acetabular impingement and some ischiofemoral impingement with inflammation at the adductor tendons with a partial tear of the gluteus minimus. Ms Venter reported she had an injection on 1 June 2022 to the ischiofemoral junction to address this impingement which slowly improved over the subsequent months.
Current symptoms
Ms Venter recalled she had a head injury with a loss of consciousness, and she felt that because of this head injury, she had a neck strain injury with residual right trapezial muscle pain and that she had contusion to her right hip and trauma to her lower back.
She has some amnesia for the accident details, but this was filled in for her by her husband who was there at the time of the accident. Her GP noted back on 1 June 2020 that her dizziness had resolved, and she has had soft tissue injuries with no limitation of head movements. Ms Venter said this is not quite correct as she still has restriction on lateral rotation to the left and right with trapezial pain and tenderness.
In terms of her neck, Ms Venter reports that the radicular complaint in her right upper extremity of paraesthesia in the little and ring fingers, has mostly resolved apart from some ongoing intermittent paraesthesia at night but she reports no weakness in the right upper extremity and no difficulty with sustained grasp or doing things with her right hand. She reports persisting right sided neck pain with trapezial muscle pain and stiffness on turning her head to the left.
Ms Venter is aware of the residual haematoma. It is still present as a large lump which she can feel in her right lateral hip and it bothers her. The claimant denied any pre-accident injuries to or conditions in her hip and said that after the accident she sustained no additional injuries to the region of her hip.
At present, the lumbar spine is not an issue for Ms Venter. The claimant said her lumbar symptoms have resolved following the surgery.
Examination
Neck/cervical spine
On examination the range of motion of the cervical spine was as follows:
(a) flexion and extension were decreased by one quarter;
(b) lateral rotation to the right was reduced by one quarter and to the left by one third, and
(c) lateral flexion was decreased by one third on both sides.
There was tenderness of the right trapezius muscle but no spasm. The right supraclavicular brachial plexus was non tender, and the cervical foraminal compression test was negative.
There was no neurological deficit of either upper extremity. Ms Venter’s reflexes were symmetrical and present and there was no neurovascular deficit in either hand. Her Tinel’s sign over the median and ulnar nerves was negative and her Phalen’s test was negative and there was no objective sensory loss in the digits of her right hand. Intrinsic power and thenar power and grip strength were grade 5 out of 5 bilaterally. There was no wasting or atrophy in the upper limbs or shoulder girdle.
In the cervical spine there was a birth mark in the left anterior region of her neck and there was an old scar at her right shoulder where she had melanoma resected in 2017. She had recently had benign lumps removed from her left breast.
Ms Venter had a full range of motion of her shoulders, elbows, wrist and hands.
Right hip and thigh
There was visible soft tissue swelling laterally at her right hip with residual tenderness in the region of the trochanteric bursa. This is consistent with Ms Venter’s ongoing complaints associated with the haematoma.
Ms Venter walked with a normal gait as was her toe walking however she had a slight limp on heel walking associated with right lateral hip pain. Trendelenberg sign was negative.
There was no neurological deficit of either lower limb with symmetrical reflexes and no sensory changes on testing. Ms Venter had a full range of motion of her hips, knees, ankles, feet and toes. Her sciatic nerve stretch test was negative and her straight leg raise was 70 degrees bilaterally and her Babinski signs were negative. There was no wasting of either lower extremity and she reported no sciatica today and that S1 radicular sensory changes in her right leg had settled since her surgery in March 2022.
Investigations
Neck/cervical
An MRI of the cervical spine dated 8 September 2020 some five months after the accident showed straightening of the cervical lordosis but no loss of disc height at C5/6 or C6/7. At C2/3, C3/4 and C4/5 levels there was no disc protrusion.
There was moderate to marked degenerative changes at C5/6 and C6/7 with degenerative disc disease (spondylosis) with high grade right C6/7 and left C5/6 foraminal stenosis with potential for but no actual impingement on the right C7 and left C6 nerve roots.
While there were small disc bulges at C5/6 and C6/7, there were no disc protrusions and no evidence of any complete or partial ligamentous tear at any level of the claimant’s cervical spine.
Right hip
Ms Venter has had investigations including an ultrasound of the right hip on 4 January 2021 showed insertional tendinosis and enthesopathy of the gluteus tendon with mild adductor origin tendinosis.
An MRI of the right hip on 9 October 2021 showed a 6mm partial tear of the insertion of the posterior fibres of the gluteus minimus tendon with a labral tear. There was narrowing between the ischium and lesser trochanter with mild compression and minimal oedema of the quadratus femoris muscle in keeping with ischiofemoral impingement.
CONSIDERATION OF THE ISSUES
What injuries is the Panel considering?
Although Ms Venter’s claim form disclosed no clear mention of neck or lower back pain, she informed Medical Assessor Dixon that she felt she had definitely injured her lower back and that she felt that her neck had been strained due to her head injury. She could not explain why those injuries were not listed in the claim form.
The claimant’s application for review did not take issue with Medical Assessor Home’s assessment of Ms Venter’s lumbar spine injury. In the Panel’s report of 15 February 2023, the Panel noted the lumbar spine assessment did not appear to be in issue and that subject to submissions, the Panel did not intend to consider the lumbar spine injury any further. No submissions were received from either party and therefore the Panel is not considering the lumbar spine injury.
The injuries and issues in dispute between the parties which the Panel is considering in this review are:
(a) does the claimant have or has she had a cervical radiculopathy, and
(b) was the claimant’s right hip labral tear caused by the accident?
Does the claimant have, or has she had cervical radiculopathy?
Injury to a nerve is not a soft tissue injury in accordance with s1.6(2) of the MAI Act. However, cl 4 of the Regulation provided that an injury to a spinal nerve root is a soft tissue unless the injury manifests in radiculopathy. In other words, if Ms Venter has cervical radiculopathy present, the injury to the spinal nerve root causing that radiculopathy will be a non-threshold injury.
Clause 5.8 of the Guidelines says that a finding of radiculopathy requires there to be two or more of the following clinical signs found on examination:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
When examined by Medical Assessor Dixon on 18 May 2023:
(a) there was no loss or asymmetry of reflexes. All reflexes were symmetrical and present;
(b) there were no nerve root tension signs and Tinel’s test and Phalen’s test were negative;
(c) there was no muscle atrophy or decreased limb circumference detected by Medical Assessor Dixon;
(d) there was no complaint by Ms Venter of muscle weakness and intrinsic and thenar power were 5 out of 5 on both sides, and
(e) there was no sensory loss reproducible on testing.
In other words, on examination by Medical Assessor Dixon there were no signs of radiculopathy and therefore as at 18 May 2023 the claimant’s cervical spine injury was a threshold injury.
In David, at [84]-[105] the review panel in that matter considered the issue of “whether an injury is not a minor injury if radiculopathy is present at any time following injury.” At [98] the panel observed:
“Radiculopathy is an example where the symptoms fluctuate over time because the extent of the compression of the spinal nerve root may vary due to inflammation on the nerve root. Symptoms may subside if the inflammation reduces and returns because the injured disc is exacerbated by innocuous activities.”
The Panel found at [104] that if it is established (by way of an assessment that complies with cl 5.5 of the Guidelines) that there are at least two clinical signs of radiculopathy (as set out in cl 5.6) present at any time, the injured person falls outside the definition of ‘minor injury’.
This then prompted the Panel to look carefully at the documentation that has been provided to see if any examiners have found two of the five signs of radiculopathy during their examination:
(a) the GP notes do not reveal any neurological symptoms in the upper limbs that could be interpreted as signs of radiculopathy in the first four months after the accident;
(b) neurological symptoms began on 23 September 2020 with pain and numbness in the arm and three fingers on the right-hand side. Radiating pain is not a sign of radiculopathy but there is sensory loss that is numbness;
(c) the claimant’s chiropractor in September 2020 reported both positive upper limb tension tests and sensory changes however the sensory changes were “in a non-dermatomal distribution” and therefore do not fulfil the requirements of cl 5.8(e);
(d) Professor Owler, when he first examined the claimant did not diagnose a cervical nerve root injury and while he recorded some numbness he “did not think it was primarily neurological” and on examination he found no evidence of myelopathy or radiculopathy, and
(e) Medical Assessor Home did not find any of the five signs of radiculopathy on his examination of the claimant on 13 September 2022.
The Panel is not therefore satisfied that at any time since the accident the claimant has had two of the five signs of radiculopathy. The Panel is satisfied that the claimant sustained a soft tissue injury to her cervical spine on a background of degenerative changes.
Is the claimant’s neck/cervical spine injury a threshold injury?
There is no radiology to suggest a complete or partial rupture of the ligaments or fibres in the discs of the claimant’s cervical spine.
Ms Venter has never had two of the five signs of radiculopathy. She has had radicular complaints of pain and sensory changes in her little and ring fingers which in the main have resolved apart from intermittent paraesthesia at night.
The Panel is satisfied that the claimant’s cervical spine injury is a soft tissue and therefore threshold injury.
Was the claimant’s right hip labral tear caused by the accident?
Medical Assessor Home accepted the claimant sustained an injury to the right hip and thigh which he found was a soft tissue injury. He found that the gluteus minimus tendinosis with partial tearing was a common degenerative finding, and the tear was not caused by the accident. Medical Assessor Home cited the test of causation found in the impairment chapter of the Guidelines.
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[20] Justice Walton set aside the decision of a Medical Review Panel and dealt with the definition of “minor injury” and a question of causation in respect of an amputated toe. At [40], his Honour said:
“The [Panel] failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
[20] [2021] NSWSC 804, Kinchela.
The Panel of the view therefore that the test to be applied and the question to be answered is whether Ms Venter’s labral tear was “caused by the accident” which should be approached by consideration of a medical decision and a non-medical informed judgment as follows:
(a) could the accident have caused the labral tear (medical determination), and
(b) did the accident in fact cause the labral tear (non-medical determination).
The GP notes confirm the presence of bruising which had resolved but left a large mass on the right thigh which appears to have been still visible on 1 September 2020, and which was still visible at the examination on 18 May 2023.
The GP notes record complaints of hip pain in December 2020 and in January and March 2021. The claimant had right hip imaging undertaken in January and October 2021. The claimant saw Dr Gursel in May 2022 complaining of pain in her gluteal region and in the groin.
The medical members of the Panel are of the view that in their experience, gluteus minimus and labral tears are not always degenerative and can be caused by trauma including motor accident trauma.
The Panel has considered the mechanism of the accident that is a fall from a moving bicycle that had been clipped by a moving car. The claimant reports falling onto the ground on her right side causing a large bruise and a significant residual deformity. This suggest to the Panel the claimant hit the ground with some considerable force and it is the medical members of the Panel’s clinical judgment that the claimant could have sustained damage to the underlying structures of her right hip in the accident including the labral tear visible on the MRI of 9 October 2021.
The insurer has argued that the labral tear was not visible in the 4 January 2021 ultrasound but was visible in the MRI nine months later and says this is evidence that the tear was not caused by the accident but is further progress of a degenerative condition.
The Panel notes that the insurer has adduced no evidence of pre-existing right hip or thigh conditions and that the claimant’s history given to Medical Assessor Dixon is that she has had no previous or subsequent accidents or injuries. The claimant has complained from the time of the accident of right hip pain and had visible signs of injury (bruising).
The medical members of the Panel note that ultrasound and MRI are two forms of imaging which have different strengths and weaknesses. While ultrasound is useful for assisting in the diagnosis of conditions affecting the organs, monitoring the build-up of fluid and visualising soft tissue defects and injuries, MRIs are significantly more detailed and give a much clearer picture of abnormal tissues particularly ligaments and tendons.
It is the clinical judgment of the medical members of the Panel that the labral tear clearly visible on the 9 October 2021 MRI may not have been visible in the ultrasound, not because the labrum was not torn at the time of the ultrasound but because of the limitations of that form of imaging.
In the light of the significant bruise and persisting lump in the right thigh area, consistent complaints of right hip and thigh pain since the accident and the absence of any pre or post-accident injuries, the Panel is satisfied that the accident did cause the claimant’s labral tear.
Is the claimant’s right hip injury a threshold injury?
The tear to the gluteus minimus and the labrum of her right hip while small is a partial rupture of tendons ligaments and cartilage which falls within the exclusion of s 1.6(2) of the MAI Act. The injury is therefore not a threshold injury.
CONCLUSION
The claimant’s cervical spine injury is a threshold injury however the claimant’s right hip injury is not a threshold injury.
As the claimant has come to a different conclusion to Medical Assessor Home, it follows that his certificate must be revoked and a fresh certificate issued.
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