Waqar v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 465
•21 September 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Waqar v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 465 |
| CLAIMANT: | Samra Waqar |
INSURER: | Insurance Australia Ltd t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Ray Plibersek |
| MEDICAL ASSESSOR: | Geoffrey (Paul) Curtin |
| MEDICAL ASSESSOR: | Tai-Tak Wan |
| DATE OF DECISION: | 21 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Claimant was a driver in a stationary car hit from behind by another car; injuries reported to neck, spine, both shoulders and brain - bubbly mucous secretions within the left sphenoid sinus; Held – original medical certificate affirmed; Review Panel found the cervical spine, thoracic spine and left and right shoulder injury were a soft tissue injury; all the injuries sustained by the claimant are threshold injuries; no evidence of any brain injury caused by the motor accident; the left-sided C5/C6 disc protrusion and left-sided C6 nerve root compression were not caused by the accident; claimant’s cervical spine symptoms and complaints were ongoing for some years before the motor accident; CT scan of the brain found no significant abnormality and no sequalae of traumatic brain injury. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel affirms the certificate of Medical Assessor Ian Cameron dated 1. The following injuries caused by the motor accident are threshold injuries (formerly minor injuries): • left and right shoulders– soft tissue injury; • cervical spine – soft tissue injury, and • thoracic spine – soft tissue injury. 2. The following injuries were not caused by the motor accident: • Brain - bubbly mucous secretions within the left sphenoid sinus with underlying mucosal thickening suggestive of acute on chronic sinusitis. |
STATEMENT OF REASONS
INTRODUCTION
On 19 May 2018, Ms Samra Waqar (the claimant) was the driver of a car stopped at the intersection of Francis Road and Sherbrooke Street, Rooty Hill, NSW. Ms Waqar reports that she was stopped in a merge lane when she was hit from behind by another car and her car was pushed 50 meters forward.
Immediately after the accident Ms Waqar called her daughter who took her home from the scene of the accident. Police and ambulance did not attend the accident scene. Ms Waqar reported that she then attended the local medical centre where she was provided with medications and sent for investigative scans.[1]
[1] Insurer’s bundle AD 4 p 483.
In the Application for Personal Injury Benefits dated 28 May 2018, Ms Waqar stated she sustained whiplash with neck and shoulder pain. She also stated that after the accident she experienced headaches, blurry eyesight, anxiety and post-traumatic stress disorder.[2]
[2] Insurer’s bundle AD 4 p 21.
Insurance Australia Ltd t/as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Ms Waqar under the Motor Accident Injuries Act 2017 (MAI Act).
By letter dated 25 June 2018, the insurer wrote to the claimant accepting liability for payment of statutory benefits for 26 weeks.[3] By letter dated 24 August 2018, the insurer wrote again to the claimant advising that that they had assessed her with having a minor injury and that statutory benefits would cease after 26 weeks.[4]
[3] Insurer’s bundle AD 4 p 25.
[4] Insurer’s bundle AD 4 p 27.
By letter dated 18 November 2020, the insurer wrote to the claimant and denied liability for the claim for common law damages on the grounds that the claimant only sustained minor injuries.[5]
[5] Claimant’s bundle AD 3 pages 23 – 24.
The insurer determined its internal review decision on 26 August 2020.[6] The outcome of the internal review was that the minor injury determination was confirmed.
[6] Insurer’s bundle AD 4 p 6.
The claimant sought a medical assessment of her shoulders, spine and brain injury.
Medical Assessor Ian Cameron issued a certificate dated 5 March 2022.[7] In that certificate he certified that the injuries sustained by Ms Waqar to her left and right shoulders, cervical and thoracic spine were a minor injury for the purposes of the MAI Act.
Medical Assessor Cameron also certified that the alleged brain injury with bubbly mucous secretions were not caused by the motor accident and a decision about whether or not this is a minor injury was not required for the purposes of the MAI Act. Under recent legislative amendments, a “minor injury” is now known as a “threshold injury” and “minor injuries” are now known as “threshold injuries”.[7] Claimant’s bundle AD 3 pp 12- 17.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “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 by a Medical Assessor.[8]
On 15 March 2022 the claimant filed an application with the Personal Injury Commission
(the Commission) seeking a Panel review of the certificate of Medical Assessor Cameron.ASSESSMENT UNDER REVIEW
[8] Section 7.20 MAI Act.
The dispute was initially referred to Medical Assessor Cameron who assessed Ms Waqar and issued a certificate dated 5 March 2022.[9]
[9] Claimant’s bundle AD 3 pp 12- 17.
The injuries referred for assessment included: cervical spine, thoracic spine, left and right shoulders and brain injury of bubbly mucous secretions.
Medical Assessor Cameron medically examined the claimant on 22 February 2022. He referred to the history of the motor accident, the history of symptoms and treatment following the motor accident, detailed the current symptoms and set out the current and proposed treatment.
Medical Assessor Cameron examined the claimant’s cervical spine, thoracic spine and arms, shoulders and legs. On examination he found that the claimant had a moderately reduced range of motion in her cervical and lumbar spine. In the claimant’s shoulders, arms, legs and knees he found a full range of motion and no neurological abnormalities. He also found no reflex abnormality nor wasting no weakness and no signs of radiculopathy in the upper and lower limbs.
Medical Assessor Cameron’s diagnosis was that Ms Waqar has suffered a soft tissue injury to her cervical spine and possibly to her shoulders which is a minor (threshold) soft tissue injury. He further found no evidence that the claimant sustained any injury to the thoracic spine or her brain. Medical Assessor Cameron found no radiculopathy present in his examination of the claimant nor did he find any evidence in subsequent documentation that radiculopathy was present at any time after the accident.
Medical Assessor Cameron found that the following injuries were minor injuries caused by the motor accident: left and right shoulders, cervical spine and thoracic spine. He also found that the alleged brain injury resulting in mucous secretions in the sinus was not caused by the subject motor accident.
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Cameron was lodged within 28 days of the date on which the certificate was made available to the parties.
On 18 May 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel). The delegate’s reasons were that the Medical Assessor had “failed to provide an adequate path of reasoning in respect to his finding relating to the pre-existing cervical spine injury.”[10]
[10] Insurer’s bundle AD 3 pp10 -11. Note the decision in AAI Limited v Fitzpatrick [2015] NSWSC 1108 where it was held [at 30] that: “The conclusions expressed in the certificate must then be explained by the assessor in the accompanying statement of reasons. While the reasons given need not be elaborate, they must disclose the actual path of reasoning by which the assessor arrived at the opinions formed on each of the issues which had to be resolved”.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[11] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[11] 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.[12]
[12] 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.[13]
[13] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued two Directions to the parties dated 6 June and 14 July 2022 requiring each party to file an indexed, paginated bundle of documents. The Direction dated 14 July 2022 advised the parties that the Panel had decided not to re-examine the claimant. In response to this Direction the solicitor for the insurer and claimant both filed a bundle of documents.[14]
[14] Insurers bundle AD 4 and claimant’s bundle AD 3.
On 17 August 2022 the Commission confirmed that no response about the direction for re-examination had been received from either party. On 29 November 2022 and Commission wrote to parties again seeking a response to the Panel's directions dated 14 July 2022. The insurer’s solicitor replied on 12 December 2022 indicating that it was the claimant's application but the insurer's view was that no re-examination of the claimant was necessary. On 3 March 2023 the claimant's solicitors wrote a message in a portal saying that the review was still in dispute and that there were three other disputes ongoing. On 13 July 2023 the Commission again wrote to the parties seeking a response to the Direction of 14 July 2022. Apart from the two responses received from the claimant’s and insurer’s solicitors, referred to above, the claimant solicitors did not respond nor provide any specific submissions arguing why the claimant should be medically re-examined.
THRESHOLD INJURY (formerly minor injury) – STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Sub-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.”
Section 1.6 of the MAI Act provides that Regulations may be made to exclude or include a specified injury from being a threshold 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)”.
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 MAI 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 threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8 Radiculopathy means the impairment caused by dysfunction of 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.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In Briggs v IAG Limited trading as NRMA Insurance[15] his Honour Justice Wright stated at [35]:
[15] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
2.“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
“Causation of injury
3.6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
4.6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
5.'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
6.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
7.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
8.This, therefore, involves a medical decision and a non-medical informed judgement.
9.6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
EVIDENCE BEFORE THE REVIEW PANEL
Application for Personal Injury Benefits
In the Application for Personal Injury Benefits dated 28 May 2018, Ms Waqar stated that she sustained whiplash with neck and shoulder pain. She also stated that she suffers from constant migraines with her head feeling heavy and dizzy. She says that she now suffers from anxiety and is unable to drive to work and is unable to sleep at night. After the accident she experienced headaches, blurry eyesight and post-traumatic stress disorder.[16]
Statement of the Claimant dated 12 May 2021
[16] Insurer’s bundle AD 4 p 21.
The claimant has provided a statement dated 12 May 2021.[17] This statement sets out in detail: how the accident occurred, what injury and medical symptoms and difficulties that she has experienced since the accident and also details her working history, social and family history and the effects the accident has had on all these aspects of her life.
[17] Claimant’s bundle AD3 pp 87- 92.
In the statement the claimant details difficulties in performing her past and current work, home duties such as cleaning and cooking and also her depressed mood and lost enjoyment from her previous social and family activities. She states that she experiences difficulty in driving, caring for herself and depression and loss of friendship relationships and becoming socially isolated and withdrawn.
Police and Ambulance reports
There was no police or ambulance reports.
Treating medical evidence
Pre-accident treating records
There were comprehensive medical records available for the claimant’s medical history prior to motor vehicle accident.
In its bundle of documents the insurer has reproduced over 500 pages of clinical and treating medical records for the claimant prior to the accident. The Panel has reviewed all the pre-accident treating medical records produced by both the claimant and the insurer.
A clinical record from Family Physio and Sports Injury Clinic dated 23 May 2014 records the claimant complaining of right and left neck and shoulder pain with onset two or three months ago. [18] The pain reportedly comes and goes.
[18] Claimant’s bundle AD3 p 159.
In a report addressed to Dr Mohammed Awais dated 27 May 2014, a
physiotherapist Gabriel Chang writes as follows[19]:13.“Thank you for referring Mrs Waqar to our clinic for her thoracic and cervical dysfunction and associated neck and shoulder pain. She first presented on 23 May 2014.
14.On initial assessment she presented with limited cervical and thoracic movement and pain that has been occurring over the last 2 – 3 months. She has ½ ROM for all directions of the C/Sp and T/Sp movement. Her shoulder ROM was NAD but she had overactivity in the upper trapezius.”
[19] Claimant’s bundle AD3 p 160.
The Panel notes in particular there was significant evidence of the claimant complaining of pain, disability and reduced range of motion in her cervical spine and shoulders. These complaints from the claimant are recorded as beginning in 2014.
The clinical records from Ifamily Medical Centre confirm that Ms Waqar has a significant pre-existing history of cervical spine and shoulder pain, headaches, and depression. During 2017 and early 2018 there are several reports or records from Ms Waqar complaining to her treating GP that she was suffering from headaches, neck and shoulder pain.[20] For example, on 4 May 2017, Dr Awais recorded that Ms Waqar presented with neck and shoulder pain, which was mostly in the right side. Dr Awais noted that at times Ms Waqar had radicular symptoms as well, but no weakness. On examination Dr Awais recorded that Ms Waqar had minimal midline neck discomfort and painful shoulder abduction.
[20] Insurer’s bundle AD 4 p 8.
The clinical records from Ifamily Medical Centre record Ms Waqar as being involved in a work-related incident on 6 April 2017.[21] On that day she reported that she lifted up the edge of a table and it fell on her head, hitting her on the forehead just above the orbit. The Initial Update Report dated 1 May 2017 by physiotherapist Ms George noted that Ms Waqar reported that shortly after the work-related incident started to experience left sided neck pain radiating into her shoulder and down the left arm and headaches. Ms Waqar reported that shortly after the incident she started to experience left sided neck pain from the base of the skull down into the upper traps region, which eventually started to radiate to the point of the shoulder and down the left arm to her wrist. Ms Waqar also reported headaches which occurred every day and slowly built in intensity, being worst in the evening after work and last through the night into the next morning. Ms George diagnosed Ms Waqar with “a whiplash associated disorder (Grade II) with the presence of cervicogenic headaches”.
[21] Insurer’s bundle AD 4 p 7.
A CT scan of the cervical spine was conducted on 9 May 2017 which was about one year prior to the subject motor accident.[22] This CT scan demonstrated degenerative disease in the cervical spine; mild diffuse posterior disc bulges a the C5/6 and C6/7 levels indenting the thecal sac without canal stenosis; moderate left C6 foraminal stenosis with mild bony encroachment on the C7 and C8 neural foramina bilaterally.
[22] Insurer’s bundle AD 4 p 248.
An ultrasound of the right shoulder dated 9 May 2017 demonstrated subacromial bursitis with bursal impingement on abduction and AC joint degenerative disease.
Post-accident treating records
There are numerous certificates of capacity available from Dr Syed Z Hussain who is the claimant’s treating general practitioner.[23] The available certificates of capacity from
Dr Hussain are dated between May and September 2018. These certificates all certify that the claimant has as no current capacity for any work. These certificates give an estimated time for her ability to return to employment as being “uncertain” or estimated to be from 3 to 6 months. The certificates described the claimant’s injuries as: whiplash injury, post-traumatic stress disorder and concussion. One certificate refers to a pre-existing condition of C6 cervical spine disc bulge with nerve damage.[24] A certificate dated 29 May 2018 refers to a pre-existing factor of cervical radiculopathy C6 forminal stenosis.[25] Most of the certificates refer to a pre-existing condition of “nil”.[26][23] Claimant’s bundle AD3 pp 93 to 111.
[24] Claimant’s bundle AD3 p 93.
[25] Claimant’s bundle AD3 p 109.
[26] Claimant’s bundle AD3 p 100.
In a medical certificate addressed to Centrelink dated 12 June 2018 Dr Hussain diagnosed the claimant’s medical condition as being cervical radiculopathy. [27] He wrote that the condition is most likely temporary but at the present moment he was uncertain as to when it will get better. Dr Hussian wrote that his prognosis was that the claimant was likely to show considerable improvement within two years. [28]
[27] Claimant’s bundle AD3 p 150.
[28] Claimant’s bundle AD3 p 556-581.
There are two written reports from Anne-Marie Chick who is one of the claimant’s treating physiotherapists at the Family Physio and Sports Injury Clinic. The reports are dated
4 June and 3 July 2018.[29] Both reports refer to the claimant being involved in a motor vehicle accident and being off work since that time. The claimant reported headaches dizziness with pain in the neck in both shoulders. On examination cervical flexion was limited to ½ normal ROM with complaint of pain. Extension was full and free of pain. Lateral flexion of the left was painful with ½ normal ROM on the right. There was no significant stiffness on mobilisation of the cervical facet joints.[29] Claimant’s bundle AD3 p 556-561.
On 13 November 2018 Dr Hussain prepared a medical certificate which certified that the claimant has continuing neck, back and shoulder pain.[30] Dr Hussain noted that the claimant cannot do her housework. Since the accident she has stopped working. Her MRI spine show some degenerative changes which could possibly be related to the accident that she had. She is having regular physiotherapy sessions, but these have not made a difference.
[30] Claimant’s bundle AD3 p 144.
The claimant’s treating neurosurgeon Dr Shanu Gambhir reviewed her on
17 December 2018 and 27 October 2020 to assess her left-sided neck pain and radiculopathy.In the 17 December 2018 report Dr Gambhir referred to an MRI scan of the claimant's cervical spine from November 2018 which showed multiple level disc prolapse with loss of cervical lordosis. Dr Gambhir wrote that he had asked her to continue physiotherapy and that he would most likely be able to manage her conservatively with only a very small chance of her needing surgery.[31]
[31] Claimant’s bundle AD3 p 28.
A report dated 30 November 2020 from Dr Shanu Gambhir who wrote that recent MRI shows left-sided C5/C6 disc protrusion as well as compression of the C6 nerves which is the main cause of her arm radiculopathy. Two years of conservative treatment has failed and he now recommends a fusion surgery.[32]
Medico-legal reports and other reports
[32] Claimant’s bundle AD3 p 25.
Many of the medico-legal and radiology reports are summarised in the below section headed review of radiology. Set out immediately below are a number of other relevant reports.
There were a number of Allied Health Recovery Request forms included in the insurer’s bundle. [33]These forms were also reviewed and considered by the Panel in its consideration of this review.
REVIEW OF THE RADIOLOGY
[33] Insurer’s bundle AD 4 p 558 - 565.
A report of a CT cervical spine scan performed by Dr David Chadban on 9 May 2017 found[34]:
[34] Insurer’s bundle AD 4 p 248.
“Moderately advanced degenerative disease involves the disc spaces and
uncovertebral joints at the (5/6 and 66/7 levels with milder degenerative
disease at the (4 / 5 and (7 / Tl levels. Mild facet joint degenerative disease
at the (4/5 and 95/6 levels. There are no cervical ribs.
Mild diffuse posterior disc bulges at the C5/6 and C6/7 levels indenting the
thecal sac without canal stenosis.
There is moderate bony stenosis of the left (6 neural foramen with mild bony
encroachment upon ·the C7 and C8 neural foramina bilaterally.
The imaged lung apices appear clear.
COMMENT: Degenerative disease within the cervical spine as describedwithout canal stenosis. Moderate left C6 foraminal stenosis”
In a report of a CT scan performed on 28 May 2018 for the brain showed no intracranial injury was identified.[35] The CT of the brain was suggestive of acute or chronic sinusitis involving left sphenoid sinus. Regarding the cervical spine the report concluded there was no acute fracture or dislocation demonstrated. There was multilevel mild posterior disc bulge osteophyte complexes but no canal stenosis. There was a mild narrowing of left neural exiting foramen at C5/C6 which may compromise the exiting C6 nerve root. No facet joint degenerative changes.
[35] Claimant’s bundle AD3 pp 29-30.
On 27 August 2018 an ultrasound was performed on the claimant’s left shoulder. The report found supraspinatus tendinosis but no tears were identified.[36] The infraspinatus subscapularis and biceps are normal in appearance. There is subacromial bursitis with pain and bunching. No capsulitis, glenohumeral effusion or AC joint space abnormality was seen.
[36] Claimant’s bundle AD3 pp 33-34.
Another CT scan of the brain and cervical spine performed on 5 November 2018 concluded that there was no significant abnormality seen including no sequale of traumatic brain injury. Regarding the CT scan of the cervical spine the conclusion of this report was that no cervical spine injury seen. The scan found small posterior disc osteophyte complexes at C4/C5, C5/C6 and C6/C7 not causing canal narrowing. There was a moderate left foraminal narrowing at C5/C6 secondary to an incontrovertible osteophyte. Normal cervical cord signal.
On 29 August 2020 an MRI was performed on the claimant’s cervical spine at Blacktown Hospital.[37] This demonstrated mild disc bulges from the C4/C5 to the C7/T1 levels which do not compress the spinal cord. The cord signal was found to be normal. There was minimal component at the left C5/C6 paracentral protrusion position which just contacted the spinal cord on the left. The conclusion of this report was that there was no high-grade canal stenosis and there was multilevel foraminal stenosis requiring correlation clinically and the most prominent on the left is at C5/C6 and C7/T1.
SUBMISSIONS
Claimant’s submissions
[37] Claimant’s bundle AD3 p 36.
The claimant’s solicitors provided two sets of written submissions dated 13 April 2022 and
15 March 2022.[38][38] Claimant’s bundle AD 1 and A 1.
In the submissions dated 13 April 2022 the claimant submits that Medical Assessor Cameron had before him evidence that the claimant had symptoms of radiculopathy which are referred to in the report of a specialist neurosurgeon Dr Gambhir dated 30 November 2020.
Dr Gambhir referred to an MRI scan that confirmed the presence of left-sided C5/C6 disc protrusion and compression of C6 nerves. Medical Assessor Cameron mistakenly concluded that there was no clear documentation before him that showed radiculopathy was not present at any time after the subject motor vehicle accident. Medical Assessor Cameron had not shown a clear path of reasoning why he found differently or disagreed with Dr Gambhir. Medical Assessor Cameron did not refer in his reasons to any evidence of a pre-accident examination or scan that established a pre-existing disc injury or nerve root compression or condition.The submissions dated 15 March 2022 contain a number of similar arguments made in the later submissions referred to above. The earlier submissions make the additional point that nowhere in Medical Assessor Cameron's reasons did he address whether the left-sided C5/C6 disc protrusion and left-sided C6 nerve root compression were caused by the accident. Nowhere does he provide any reasoning that addresses that disc protrusion and nerve compression.
The claimant solicitors also included in the bundle of documents and numerous submissions not directly related to the medical review before this Panel. The claimant’s solicitors submissions for the medical review of the assessment of Medical Assessor Fukui dated
9 June 2022, claims for damages dated 18 May 2021 and treatment dispute dated
30 October 2020 were also all reviewed and considered by the Panel.Insurer’s submissions
The insurer has provided written submissions dated 29 April 2022 and also dated
11 September 2020. [39][39] Insurer bundle AD 4 pp 3-4 and 5- 13.
In the submissions dated 29 April 2022 the insurer‘s solicitors submit that
Medical Assessor Cameron’s path of reasoning is clearly set out. It is clear from his reasons that Medical Assessor Cameron has considered all the documents and submissions provided by both parties. He is clearly considered the summary of the pre-accident medical records set out in the insurer’s submissions which refer in paragraph 38 to the claimant having a CT scan about one year before the accident which clearly demonstrated degenerative disease in the cervical spine and mild diffuse posterior disc bulges at C5/6 and C6/7 levels indenting the thecal sac without canal stenosis; moderate left C6 foraminal stenosis with mild bony encroachment on the C7 and C8 neural foramina bilaterally.The insurer submits Medical Assessor Cameron has clearly accepted the insurer’s submission that the claimant suffered from symptomatic cervical pathology prior to the accident and that any ongoing cervical radiculopathy was caused by this pre-existing condition.
In the submissions dated 11 September 2020, the insurer summarises the claimant’s medical history prior to the subject matter accident. This medical history shows that the claimant had for some years prior to the motor accident complained of head, neck, shoulder and spinal pain and symptoms. The claimant reported an incident at work where part of a table fell on her head on 6 April 2017. The submissions also refer to x-rays of her right shoulder and a CT scan of her cervical spine. The CT scan showed evidence of moderately advanced degenerative disease in her cervical spine.
The insurer’s submissions also summarised hundreds of pages of clinical records from
IFamily Medical Health Centre. These clinical records showed that for some years prior to the motor accident the claimant had been complaining of numerous symptoms including: tiredness, headaches, bilateral pain in her wrists and arms, neck pain, stiffness and pain in her shoulders and also depression. [40][40] Insurer bundle AD 4 pp 7- 13.
The insurer’s submissions note that on 28 May 2018 Ms Waqar underwent a CT scan of her brain and cervical spine. This CT scan did not show any brain or cranial abnormality. The CT scan of the cervical spine showed no acute fracture or dislocation; multilevel mild posterior disc bulge osteophyte complex but no canal stenosis; mild narrowing of the left neural exiting foramen at C5/6 which may compromise the left exiting C6 nerve root; no facet joint degenerative change.
In its summary of the medical evidence the insurer refers to Ms Waqar complaints of neck and shoulder pain.[41] The insurer submits that there is no report or evidence of a clinical assessment that satisfies the diagnosis of radiculopathy as defined within the Motor Accident Guidelines. There is no evidence of a fracture, injury to a nerve or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The clinical examinations did not demonstrate a dysfunction of spinal root nerve. The insurer notes that the CT scan and MRI scan of the cervical spine dated 28 May 2018 and 6 November 2018 respectively demonstrated no acute fracture or dislocation and no cervical spine injury.
[41] Insurer bundle AD 4 pp 11- 12.
MEDICAL EXAMINATION
The Panel met on 14 July 2022 and reviewed the material before it. At that time the Panel decided not to medically re-examine Ms Waqar. The Panel decided that it was able to form an opinion as to the threshold injuries to the cervical, thoracic and lumbar spine injuries and the alleged brain/sinus injury caused by the accident having regard to the available medical reports including reports of CT scans and imaging undergone by the claimant. The Panel noted the submissions from both parties which are referred to briefly above and in particular carefully reviewed the reports of all doctors, radiologists and evidence about CT scans and radiology available for the claimant’s condition before the subject motor accident.
As referred to above, the Panel requested the parties response to its preliminary indication not to medically re-examine the claimant and only the insurer’s solicitors specifically indicated their view that it was not necessary to medically re-examine the claimant.
CONSISTENCY
The Panel accepted the claimant’s account of how the motor vehicle accident occurred and how she received her reported injuries.
PANEL DELIBERATIONS
Diagnosis and causation
Cervical spine injury
The Panel notes that the pre-accident treating records show that there were moderately advanced degenerative changes in the cervical spine prior to the accident, and that this degeneration had not changed significantly as a result of the accident. The records show that the claimant had symptoms of neck pain prior to the accident, but these were only occasionally reported to her GP, and her neck pain was reported to be mainly located on the right side rather than the left. As a result of the accident the claimant developed significant symptoms of left-sided neck and arm pain, but the reports of the symptoms were insufficient to attract a diagnosis of radiculopathy.
There are some medical reports from the claimants treating GP’s and doctors that refer to the claimant reporting symptoms of radiculopathy. The claimant’s treating neurosurgeon
Dr Shanu Gambhir reviewed the claimant and noted her left-sided neck pain and radiculopathy.Other than the opinions of Dr Gambhir and treating GP opinion the majority of the medical evidence, radiological evidence and medical reports do not demonstrate evidence of radiculopathy in the claimant’s cervical spine. In the claimant’s case and relying on the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 9.1: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The Panel notes there was significant evidence of the claimant complaining of pain, disability and reduced range of motion in her cervical spine and shoulders from 2014 onwards.
In a report dated 27 May 2014 physiotherapist Gabriel Chang noted that Ms Waqar presented with complaints of thoracic and cervical dysfunction and associated neck and shoulder pain. She presented with limited cervical and thoracic movement and pain that has been occurring over the last 2 – 3 months. The claimant had 1/2 ROM for all directions of the thoracic and cervical movement.
The clinical records from IFamily Medical Centre confirm that Ms Waqar has a significant pre-existing history of cervical spine and shoulder pain, headaches, and depression. During 2017 and early 2018 there are several reports or records from Ms Waqar complaining to her treating GP that she was suffering from headaches, neck and shoulder pain.
There are numerous certificates of capacity available from Dr Syed Z Hussain who is the claimant’s treating general practitioner. At least two of these certificates refer to pre-existing C6 cervical spine disc bulge or symptoms. One certificate refers to a pre-existing condition of C6 cervical spine disc bulge with nerve damage. A certificate dated 29 May 2018 refers to a pre-existing factor of cervical radiculopathy C6 foraminal stenosis.
A CT scan of the cervical spine conducted about one year prior to the subject motor accident demonstrated degenerative disease in the cervical spine; mild diffuse posterior disc bulges a the C5/6 and C6/7 levels indenting the thecal sac without canal stenosis; moderate left C6 foraminal stenosis with mild bony encroachment on the C7 and C8 neural foramina bilaterally.
In his medical examination of the claimant on 22 February 2022 Medical Assessor Cameron found at the cervical spine there was moderately reduced range of motion (to 70% normal) generally with greater reduction in rotation to the left (to 50% normal), with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
After reviewing all of the evidence the Panels opinion is that the left-sided C5/C6 disc protrusion and left-sided C6 nerve root compression were not caused by the accident. The CT scan on the 28 May 2018 and the MRI on the 6 November 2018 show a mild posterior disc bulge at C5/C6 but no left-sided C6 nerve root compression.[42] In the Panel’s view, the findings in both these studies do not significantly differ from the report of the CT cervical spine carried out prior to the accident on the 9 May 2017.[43] As summarised above the claimant’s symptoms and complaints first stared in 2014 and were ongoing for some years before the motor accident.
[42] Claimant’s bundle AD3 pp 30-31
[43] Insurer’s bundle AD 4 p 248
Considering the claimant’s history and complaints, it is possible there was soft tissue injury to cervical spine. However based on the clinical and radiological records there is no evidence of nerve impingement, disc injuries or musculoskeletal injury.
Therefore, the Panel assessed the cervical spine injury as a soft tissue injury and thus a threshold injury.
Thoracic spine injury
By reference to the medical evidence, radiological evidence and medical reports summarised above, here is no evidence of radiculopathy in the claimant’s thoracic spine. Relying on the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 9.1: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
In a report dated 27 May 2014 physiotherapist Gabriel Chang noted that Ms Waqar presented with complaints of thoracic and cervical dysfunction and associated neck and shoulder pain. She presented with limited cervical and thoracic movement and pain that has been occurring over the last 2 – 3 months. The claimant had 1/2 ROM for all directions of the thoracic and cervical movement.
Considering the medical history and complaint, it is possible there was soft tissue injury to thoracic spine. However clinically there is no evidence of nerve impingement, disc injuries or musculoskeletal injury.
Therefore, the Panel assessed the thoracic spine injury as a soft tissue injury and thus a threshold injury.
Left and right shoulder injury
The Panel notes there was significant evidence of the claimant complaining of pain, disability and reduced range of motion in her cervical spine and shoulders from 2014 onwards.
There are numerous records of complaints of painful shoulders and reduced range of motion in the shoulders for some years before the subject motor accident. In a report dated
27 May 2014, physiotherapist Gabriel Chang noted that Ms Waqar presented with complaints of thoracic and cervical dysfunction and associated neck and shoulder pain. Her shoulder ROM was NAD (no abnormality detected) but she had overactivity in the upper trapezius.About one year before the subject accident on 4 May 2017 Dr Awais recorded that Ms Waqar presented with neck and shoulder pain, which was mostly in the right side. Dr Awais noted that at times Ms Waqar had radicular symptoms as well, but no weakness. On examination Dr Awais recorded that Ms Waqar had minimal midline neck discomfort and painful shoulder abduction.
An ultrasound of the right shoulder dated 9 May 2017 demonstrated subacromial bursitis with bursal impingement on abduction and AC joint degenerative disease.
Based upon the medical evidence, radiological evidence and medical reports prior to the motor accident there is some evidence of pain, bursitis and degenerative disease in the shoulder joints but normal range of movement.
After the motor accident an ultrasound performed on 27 August 2018 on the claimant’s left shoulder found supraspinatus tendinosis, but no tears were identified.[44] The infraspinatus subscapularis and biceps are normal in appearance. There is subacromial bursitis with pain and bunching. No capsulitis, glenohumeral effusion or AC joint space abnormality was seen.
[44] Claimant’s bundle AD3 pp 33-34.
In his medical examination of the claimant on 22 February 2022, Medical Assessor Cameron found a full range of motion at both shoulders. He also found a full range of motion at other upper extremity joints. Medical Assessor Cameron found no neurological abnormalities in the upper extremities. The circumference at both upper extremities were right 23 cm and left 23 cm.
Considering the medical history and the evidence from before and after the accident outlined above, it is possible there was soft tissue injury to shoulders at the time of the motor vehicle accident. However, no tears or significant abnormality was demonstrated. Medical Assessor Cameron found a full range of motion at both shoulders. Therefore, the Panel assessed the left and right shoulder injury as a soft tissue injury and thus a threshold injury.
Brain injury
Ms Waqar claimed that she sustained a brain injury as a result of her head hitting the steering wheel. Her claimed injury was bubbly mucous secretions within the left sphenoid sinus with underlying mucosal thickening suggestive of acute on chronic sinusitis.
A CT scan performed on 28 May 2018 for the brain showed no intracranial injury. The CT of the brain was suggestive of acute or chronic sinusitis involving left sphenoid sinus. Another CT scan of the brain and cervical spine performed on 5 November 2018 concluded that there was no significant abnormality seen including no sequalae of traumatic brain injury.
Therefore, the Panel assessed there was no injury to the claimants brain or sinus caused by or as resulting from the subject motor accident.
CONCLUSION AND CERTIFICATION
For the above reasons the Panel affirms the certificate issued by Medical Assessor Cameron that the injury to Ms Waqar’s cervical spine, thoracic spine and left and right shoulder injury are a soft tissue injury. In the Panel’s opinion, all the injuries sustained by Ms Waqar in the motor vehicle accident are threshold injuries. There is no evidence that Ms Waqar suffered any brain injury caused by the motor accident. The Panel has issued a new certificate because the injuries formerly known as minor injuries and now named threshold injuries.
The new certificate is attached at the commencement of these Reasons.
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