Wells v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Wells v QBE Insurance (Australia) Limited [2024] NSWPICMP 349
CLAIMANT:	Tammy Louise Wells
INSURER:	QBE Insurance (Australia) Ltd
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	30 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury in a motor vehicle accident on 25 July 2021; a medical dispute arose as to whether or not the injuries which the claimant sustained were all threshold injures; the Medical Review Panel considered the claimant’s medical history, the clinical notes of treating medical practitioners, the radiological imaging, the history of the motor accident and the parties’ submissions; the shoulder injury was accepted as causally related to the subject motor vehicle accident, to the extent that it caused a soft tissue injury; Medical Assessor Herald’s determination of threshold injuries was affirmed; Held – the Review Panel certifies that the injuries referred for assessment and caused by the accident were threshold injuries.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel affirms the certificate of Medical Assessor Herald, dated 8 August 2023.

STATEMENT OF REASONS

INTRODUCTION

Tammy Louise Wells (the claimant) was injured in a motor vehicle accident on 25 July 2021. Ms Wells was the driver of a vehicle travelling along Hawkesbury Valley Way, when the insured driver failed to stop at a ‘give way’ sign when attempting to perform a left turn from Macquarie Street into Hawkesbury Valley Way. The insured’s vehicle collided with the left-hand side of the claimant’s vehicle.
It was considered a mild collision and did not require police or ambulance attendance, nor a hospital admission.
A complete description of the accident is provided below.
QBE Insurance (Australia) Ltd ABN 78 003 191 035 (QBE) is the relevant insurer with liability to pay any damages to Ms Wells under the Motor Accident Injuries Act 2017 (MAI Act).
Under the provision of the MAI Act in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.
Ms Wells submitted an Application for Personal Injury Benefits dated 10 August 2020.

Threshold injury dispute

On 6 November 2020, QBE Insurance (the insurer) issued a liability notice post-26 weeks determining that the claimant sustained minor (now ‘threshold’) injuries for the purposes of the MAI Act. The claimant, then unrepresented, sought an internal review of this decision.
On 27 April 2021, the insurer issued a certificate of determination directly to the claimant affirming their original decision.
Ms Wells subsequently filed an application in the Personal Injury Commission (Commission) in respect of the dispute.
On 25 May 2023, the claimant’s injuries were referred to the Commission for assessment as to whether or not her injuries are threshold injuries under the MAI Act. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
On 11 October 2023, the claimant’s physical injuries were assessed by Medical Assessor Jonathan Herald whose certificate was issued on 9 November 2023. He found that the claimant’s injuries were threshold injuries, despite finding that the claimant suffers a left partial thickness supraspinatus (rotator cuff) tear and that she exhibits features of radiculopathy in the cervicothoracic spine and lumbosacral spine.
The claimant submits that there is reasonable cause to suspect that Medical Assessor Herald’s assessment is incorrect in a material respect and she accordingly seeks a review pursuant to s 7.26 of the MAI Act.

THRESHOLD INJURY- STATUTORY PROVISIONS

Assent was given to the Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) 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 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”. 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 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 9.2 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 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 Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, his Honour Justice Wright stated at [35]:
“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
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.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘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:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
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.’”

ASSESSMENT UNDER REVIEW

The injuries referred for assessment to Medical Assessor Jonathan Herald (the Medical Assessor) in respect of the dispute as to threshold injury were:
(a)   cervical spine – C5-6 desiccation of intervertebral disc and a broad-based disc/osteophyte indenting ventral aspect of the thecal sac, radiculopathy, orthopaedic injury, aggravation, and acceleration of degenerative changes;
(b)   shoulder left shoulder – orthopaedic injury, aggravation, and acceleration of degenerative changes, pain, and restricted movement derived from cervical spine injury;
(c)   shoulder right shoulder – orthopaedic injury, aggravation, and acceleration of degenerative changes, pain, and restricted movement derived from cervical spine injury;
(d)   arm left forearm – numbness and pain down the left forearm, orthopaedic injury, and aggravation and acceleration of degenerative changes;
(e)   lumbar spine – L4-5 and L5-S1 disc desiccation, radiculopathy, orthopaedic injury, aggravation, and acceleration of degenerative changes;
(f)    thoracic spine – orthopaedic injury, aggravation, and acceleration of degenerative changes, and
(g)    leg left leg – pain down left leg to heel, numbness down the left leg, orthopaedic injury, aggravation, and acceleration of degenerative changes.
At [3]-[4] in his reasons, Medical Assessor Herald noted the submissions made by Ms Wells and the insurer.
The Medical Assessor took a pre-accident medical history at [9].
Medical Assessor Herald took note of the lower back injury she experienced in 1996, whilst working at Woolworths.
The Medical Assessor took a history of the motor accident at [10] and a history of the symptoms and treatment following the accident at [11]:
“On 26 July 2020, she was driving a car turning right at a set of traffic lights. She had a friend who was in the front passenger seat. As she was turning right at the traffic lights into the cross street, a car coming in the opposite direction did not stop at the give-way sign and collided with the front passenger side of her vehicle pushing it onto the median strip. She later found out that the woman was intoxicated. Police did not attend the scene. Her car was drivable. She continued to drive as she had to drop her friend off and after dropping him off she went to Campbelltown Hospital. There was an eight-hour wait there so she decided not to wait and instead went and saw her GP. She was concerned that by the time the eight hours were up, it would be midnight, and she could not leave her children alone at home. After seeing her GP, she was referred for some investigations and scans which revealed features of impingement syndrome. She had a series of treatments including cortisone injections, physiotherapy, hydrotherapy, and massage. She also saw her psychologist. She was subsequently referred to see a pain specialist, Dr David Manohar, and he noted that she was on medications such as anti-inflammatory tablets like meloxicam, Somac for her stomach, and Lyrica. He suggested medial branch blocks at the C5/6 level and L5/S1 facet joint injections, but this was not approved. As such, an application for successful rehab services or SRS was recommended. Currently, she has been doing pool exercises at the local pool and had cortisone injections under Medicare. She has been seeing a chiropractor for about three visits under Medicare as well. She has also had massage therapy. She is on Lyrica, Panadol, and meloxicam as well as pantoprazole in the morning to stop reflux.”
The Medical Assessor listed the current symptoms at [12].
She continued to have pain in both shoulders. She had neck pain and back pain; the neck pain radiated down the left upper limb and the back pain radiated down to both left lower limbs.
The Medical Assessor set out the clinical examination at [14] – [18]:
“14. General presentation
She is a well-woman, 154 cm in height and 110 kg in weight. She did not appear to be in significant distress during the interview.
15. Cervical spine (cervicothoracic)
On examination of the cervical spine, she has stiffness of the cervical spine with some paravertebral muscle tenderness and some bony tenderness. She has a restricted range of motion, forward flexion of 50% of range and lateral flexion of 50% of range, and extension to 25% of range. She has a positive Spurling’s test with radiculopathic symptoms to the left upper limb with a normal neurologic examination to tone, power, and reflexes.
16. Thoracic spine (thoracolumbar)
Thoracic spine examination revealed a normal thoracic spine. There was no bony tenderness, restriction of range of motion or paravertebral muscle spasms, or radiculopathic symptoms.
17. Lumbar spine (lumbosacral)
Lumbar examination reveals stiffness of the lumbar spine. Forward flexion to about 50% of range in her knees and lateral flexion to knees. Extension is limited to 25% of range. There is a positive straight leg raise on the left side at about 50° and a normal neurologic examination to tone, power, and reflexes. There was a negative Trendelenburg sign and a negative Trendelenburg gait.
18. Upper extremity
On examination of both shoulders, she has tenderness over the greater tuberosity and positive impingement signs with grade 4 power of the supraspinatus muscle and grade 5 power of the rotator cuff muscles. Her shoulders are otherwise stable and active is not equal to passive range of motion indicating no evidence of adhesive capsulitis, but she does have weakness in testing the supraspinatus.” The Medical Assessor recorded the shoulder movements in a table.”
The Medical Assessor commented that Ms Wells condition was consistent with radiculopathic symptoms but not radiculopathy. She had features of impingement syndrome of both shoulders and possible rotator cuff tears.
Medical Assessor Herald determined that her condition was consistent with impingement syndrome of both shoulders and soft tissue injuries to her cervical and lumbar spine aggravating underlying spondylosis. There were associated radiculopathic symptoms to the left upper limb and left lower limb.
The Medical Assessor confirmed that the soft tissue injuries were caused by the motor vehicle accident.
Medical Assessor Herald certified that the following injuries were threshold injuries:
(a)   soft tissue injury to the cervical spine, thoracic spine, and lumbar spine;
(b)   radiculopathic symptoms referred to the left forearm and left leg, and
(c)   bilateral shoulder impingement syndrome.

REVIEW PROCEDURE

Ms Wells lodged an application for review of the assessment of the Medical Assessor.
On 14 February 2024, 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).
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.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.

SUBMISSIONS

Claimant’s submissions, dated 4 December 2023
Failure to sufficiently consider causation

Medical Assessor Herald reached the conclusion that the claimant suffered from impingement syndrome and accordingly sustained a threshold injury as defined by the MAI Act. The claimant submitted that he has not, however, sufficiently considered causation.
The claimant submitted that causation being “difficult to assess” does not relieve a Medical Assessor from their duty to consider the issue of causation.
In the absence of Medical Assessor Herald identifying some other incident which caused the left partial rotator cuff tear, being presented with clinical records evidencing such a tear, with the findings of his own assessment identifying the presence of possible rotator cuff tears and concluding that the claimant’s condition has remained “roughly unchanged” since the motor vehicle accident occurred, there must be discussion warranted as to whether or not the motor vehicle accident caused the tear.
The claimant noted no discussion of the left partial thickness rotator cuff tear.
In failing to sufficiently consider the issue of causation, the Medical Assessor had concluded that the claimant suffered from bilateral shoulder impingement syndrome. Should causation have been sufficiently considered, the conclusion reached would have been one that found the left partial rotator cuff tear as causally related to the accident, thus determining the claimant to have suffered non-threshold injuries under the MAI Act.

Failure to conduct assessment in accordance with the provisions of the Guidelines

The claimant submitted that she had exhibited at least two of the clinical signs listed in cl 5.8 of the Guidelines in that the Medical Assessor had found a positive Spurling’s test, dysmetria, and muscle weakness.
The Medical Assessor has identified radiculopathic symptoms yet has failed to conduct the required tests to assess radiculopathy as required by the Guidelines.
It is submitted that the Medical Assessor has found that the claimant suffers from radiculopathy and has failed to conduct his assessment in accordance with the Guidelines to conclude that the injury is a threshold injury.

Failure to give adequate reasons

The Medical Assessor should have given reasons as to why, despite the clinical records showing constant complaints from the claimant regarding the pain in her left shoulder, this is not indicative of the rotator cuff tear revealed by the ultrasound scan dated

6 September 2022 but of impingement syndrome (which is a degenerative condition).
Instead, the Medical Assessor diagnosed the claimant with impingement syndrome in both shoulders when the imaging only ever revealed this condition in the right shoulder, and a rotator cuff tear was revealed in the left. As regards the cervical and lumbar spine, it was unclear how the Medical Assessor concluded that there was no radiculopathy when, had he adhered to the provisions of the Guidelines, radiculopathy would have been found.

Insurer’s submissions in reply, dated 22 December 2023

The insurer noted the history of the subject accident and submitted that the minor nature of the accident was not capable of giving rise to non-threshold injuries of the nature alleged by the claimant.
As detailed in the Late Injury Police Report dated 14 August 2020, the insured’s vehicle collided with the left-hand side of the claimant’s vehicle when the insured failed to stop at a “give way” sign along Hawkesbury Valley Way, Sydney NSW.
The insurer submitted that it was a mild collision that did not require police or ambulance attendance, nor a hospital admission. The available evidence indicated that the claimant did not seek medical treatment until two days after the subject accident, and that all treatment since this time has remained conservative in nature. Notably, the claimant was also certified fit to work albeit on reduced hours.
Noting the relatively mild nature of the subject accident, the insurer submitted that Medical Assessor Herald’s findings were consistent with the totality of evidence which suggested the injuries sustained in this accident were minor, degenerative and soft tissue in nature.

Failure to consider causation

The insurer acknowledged the claimant’s submission that Medical Assessor Herald failed to sufficiently consider causation with respect to the rotator cuff tear in the left shoulder however submits there was no basis for such a submission in consideration of the relevant medical evidence and noting the well-established authorities on the issue.
The insurer did not dispute that the ultrasound of the left shoulder performed on

6 September 2022 reports a supraspinatus partial thickness tear, specifically, a ‘partial thickness tear involving the bursal aspect of the anterior to mid fibres measuring 22 x 22 mm’. It was also not disputed that, if found to be sustained in the subject accident, a rotator cuff tear fell within the definition of a non-threshold injury for the purposes of the MAI Act.
Noting the contemporaneous imaging which revealed the rotator cuff tendons to be intact following the subject accident, the insurer submitted that there is no evidence to support the claimant’s assertion that the pathology revealed in the ultrasound dated 6 September 2022 is causally related to the accident.
The insurer submitted that Medical Assessor Herald adequately considered this causation issue in his assessment. The insurer referred in particular to paragraph 24, pages 7-8 of the Certificate, wherein the Medical Assessor provided a comparison of the imaging dated

28 July 2020 (which is misdated as 20 July 2020) and 6 September 2022 (which is misdated as 6 July 2022) and considers the respective reliability of the ultrasound and MRI scan in the circumstances.
Whilst the claimant critiqued Medical Assessor Herald’s causation findings on the basis that he did not identify ‘some other incident which caused the left partial rotator cuff tear’, the insurer submits that there is no error in this respect and, rather, the Medical Assessor’s findings are consistent with the well-established authorities which have consistently refuted causation of shoulder tears in motor accidents unless there was specific evidence that the mechanism of the accident was anatomically capable of causing a tear.
Noting the rotator cuff tear in the left shoulder was first identified over two years after the subject accident, the insurer submitted that the claimant’s causation argument lacked both chronological and mechanical justification.
The insurer accordingly submitted that, based on the relatively minor nature of the subject accident and the contemporaneous imaging which identified intact rotator cuffs following the accident, Medical Assessor Herald has not made a material error with respect to his determination that, on balance, the rotator cuff tear was not causally related to the subject accident.

Failure to conduct assessment in accordance with the Guidelines

The insurer submitted that the claimant’s submission was grounded on misinterpretation of the Certificate and resulting misapplication of the Guidelines, but for which there was no basis for a finding of radiculopathy.
Rather, the insurer submitted that Medical Assessor Herald’s examination of the claimant and subsequent diagnosis of radiculopathic symptoms not amounting to radiculopathy was consistent with the available treating evidence which did not reveal any objective signs of clinical radiculopathy following the subject accident. As such, the insurer submitted that there had been no error in application of the Guidelines.
Whilst the insurer noted that Medical Assessor Herald found weakness in testing the supraspinatus (paragraph 18, page 5 of the Certificate), it is submitted that this is attributable to impingement syndrome in the bilateral shoulders and the possible rotator cuff tear in the left shoulder and is not radiculopathic in nature.
The insurer further noted that there was otherwise no indication of dysmetria in thoracic spine which was observed on examination to be a ‘normal thoracic spine’ with no ‘restriction of range of motion or paravertebral muscle spasms, or radiculopathy symptoms’.
The insurer submitted that the claimant does not exhibit at least two of the clinical signs of radiculopathy per cl 5.8 of the Guidelines and that there has been no failure on the part of Medical Assessor Herald to conduct the assessment in accordance with the relevant provisions of the Guidelines. The insurer further submitted that the Medical Assessor undertook a thorough physical examination after taking the history of the claimant and reviewing all relevant medical evidence which is consistent with his ultimate finding that the claimant’s post-accident presentation is absent of radiculopathy.
The insurer submitted that Medical Assessor Herald complied with the duty to form his own opinion after conducting the assessment in accordance with cl 5.6 of the Guidelines. That is, the assessment was ‘based on the evidence available and include all relevant findings’ from the history taken, all relevant records, symptoms, the examination, and diagnostic tests available at the assessment.

Failure to provide adequate reasons

The insurer submitted that the claimant made submissions which inferentially burden the Medical Assessor to provide reasons substantially more comprehensive than what was the Court’s standard of adequacy in the common law authority of Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 upon which the claimant relies.
The insurer submitted that Medical Assessor Herald had provided adequate reasons for the conclusions reached in his Certificate.

The first Medical Review Panel meeting

The Review Panel had its first meeting on 11 April 2024.
The Panel had a comprehensive discussion of the issues and arrived at a number of very tentative conclusions.
Before determining the matter, the Review Panel invited further submissions from the parties by 5pm Monday 22 April 2024.

Medical Review Panel report of 11 April 2024

The consideration of the Review Panel could properly be done on the papers;
(a)   given that the claimant had an ultrasound shortly after the motor vehicle accident, on 28 July 2020 (not an MRI as suggested by Sparke Helmore on behalf of the Insurer), which showed there was subacromial bursitis without bursal impingement and intact rotator cuff tendons, that is to say, there is no appearance of a rotator cuff tear;
(b)   given that a much later ultrasound of the left shoulder on 7 September 2022 showed subacromial bursitis of the left shoulder with a partial thickness tear, and
(c)   given that this ultrasound of 7 September 2022 was two years after the subject motor vehicle accident.
The Panel was tentatively of the opinion that the subacromial bursitis of the left shoulder with a partial thickness tear, was not causally related to the subject accident, due to the passage of time i.e. there was a temporal gap before the rotator cuff tear was identified and on the balance of probabilities, it was likely to be a degenerative tear and non-causal;
(a) further, the Panel considered tentatively that it has sufficient documentation to make an assessment on the papers, and
(b) tentatively, the Review Panel was of the view that the injury to the left shoulder was a threshold injury for the purposes of the MAI Act.

Claimant’s further submissions, dated 18 April 2024

The claimant consented to the assessment proceeding on the papers as proposed.
The claimant submitted that the Review Panel should consider the following:
(a)   the claimant’s primary complaint following the subject accident was her left shoulder. Refer to records of All Pain Care which contain records of immediate onset of pain in the left shoulder;
(b)   there was no record of a pre-existing left shoulder injury;
(c)   the claimant’s complaints of left shoulder pain have been contemporaneous and consistent since the date of accident;
(d)   there was no record of any intervening event which could have caused the partial thickness tear in the left supraspinatus;
(e)   the test for causation is whether or not the motor accident caused or contributed to the injury: see cl 6.6 of the Motor Accident Guidelines, and
(f)
the Review Panel should refer to the imaging itself and form an opinion as to whether or not there is evidence of a tear in the first ultrasound dated

28 July 2020.
There was no evidence of an intervening event which could have caused the claimant’s tear in the left shoulder. Her complaints of left shoulder pain have been contemporaneous and consistent since the date of accident.
The claimant submitted that the Review Panel must accordingly find that, on the balance of probabilities, the claimant sustained the left shoulder tear in the subject accident which was undiagnosed until a second scan occurred on 6 September 2022.
The insurer did not provide any submissions in reply.

SUMMARY OF MEDICAL EVIDENCE
Application for Personal Injury Benefits, dated 10 August 2020

In a personal injury claim form dated 10 August 2020, Ms Wells noted injuries a result of the accident:
“sore neck, upper back & unable to lift left arm up, aggravated lower back problem”.
Ms Wells noted she was suffering from an injury at the time of the accident:
“Whiplash injury caused by accident at 11pm 25/07/2020
Unable to move left arm
Pain through upper back, neck and both arms
affected by injury”

Dr Katheryn Ryan

Dr Ryan, general practitioner, provided a report on 26 August 2020:
“Tammy was unfortunately involved in a not at fault motor vehicle accident last month and sustained a whiplash injury as a result.
Tammy bas significant strain in her trapezius, left worse than right
Tammy has pain all the time, paraesthesia mainly in her left arm intermittently, as well as tenderness bilaterally and reduced range of movement,
There is no midline tenderness, and the MRI C-spine shows no acute issues.”
Dr Ryan examined Ms Wells on 3 September 2020, she reported:
“SYMPTOMS
Ms Wells describes pain in her neck and global subjective heaviness on the left side of her body. She cannot look over the right shoulder due to tightness and pain on the left side of her neck. She also has significant associated symptoms including trouble concentrating and headaches.
…
EXAMINATION
Ms Wells presented with--significant stiffness and restriction in the range of motion of her neck and shoulders.
With regard to the examination of her cervical spine, I found that she had significantly limited extension to 5°.
She could manage forward flexion to 30°. Rotation of the neck was 30° to the left and only 5° to the right.
With regards to lateral flexion, she managed 10° to the left and 5° to the right.
On examination of her shoulders, I found that she had similarly restricted ranges and abduction in flexion with apprehension and pain. On the right side, she was able to flex to 90° and abduct to 100°. On the more affected left side, she only managed to flex to 80° and abduct to 90°.
Comprehensive neurological examination of the upper limbs revealed no evidence of focal neurological injury.
…
DIAGNOSIS
Date of injury 25 July 2020 – Motor vehicle accident
· Whiplash associated disorder Grade 1”
Dr Ryan further reported on 28 October 2020:
“Tammy was unfortunately involved in a not at fault motor vehicle accident in July and sustained a whiplash injury as a result. Tammy has significant strain in her trapezius, left worse than right
Tammy has pain all the time, paraesthesia mainly in her left arm intermittently, as well as tenderness bilaterally and reduced range of movement There is no midline tenderness and the MRI C-spine shows no acute issues.
Tammy has been doing hydrotherapy and physiotherapy which has helped with ROM but pain is persisting, Tammy takes regular anti-inflammatory medications, regular paracetamol occasional Panadeine.”

Dr Tony Antoun and Dr S Perla – Medical Assist Network

The Doctor Support Program Report provided:
“Patient History:
Ms Wells is 45 year old, involved in an MVA on the 25th July 2020. Sustained soft tissue injuries involving her neck, upper back and to a lesser extent her shoulders. I understand MRI scan of the neck showed ‘degenerative changes only’. No fractures identified. Currently attending physiotherapy and hydrotherapy.
…
Diagnosis:
Soft tissue injury to neck, upper back, shoulders confirmed.
Discussion with Treating Doctor:
Dr Ryan was contacted on the 20th October 2020 and kindly discussed the case. Dr Ryan stated she is improving slowly, with conservative treatment but this appears to be different the noted improvement in the AHRR.
Dr Ryan stated that Ms Wells still had some ongoing pain involving her neck but no describe radicular signs.
Dr Ryan stated she was comfortable for Ms Wells to be certified fit for suitable duties, commencing with perhaps 2 hours a day, 3 days a week with limited lifting and then hopefully to increase to 3 to 4 hours a day, 3 days a week at the next consultation.
Opinion on Current Capacity:
I would have thought by now, at 2 months post-MVA, and confirmed diagnosis of soft tissue injury that Ms Wells be able to undertake restricted duties, on a full time basis.”

Report of Dr Manohar

Dr David Manohar, consultant physician, examined Ms Wells on 7 December 2020. He reported:
“She has neck pain and mid-dorsal pain extending down the left arm to the fingers of the left hand There is a mixture of paraesthesia and numbness. She also has low back pain extending down the left leg to the left heel. She has bilateral shoulder pain, headaches and a sensat10n of numbness and aching m the left arm and left leg. She tells me that all activities aggravate the pain including walking, bending, lifting, reaching, stress and going to work. The pains are eased by hot water showers and heat packs.
She was involved in a motor-vehicle accident on 25 July 2020 She was going around the comer in Windsor when she was hit on the left front side of her car. Her car was drivable and she made a police report the following day.”
Dr Manohar reported again on 25 January 2021:
“She was involved in a motor-vehicle accident on 25 July 2020. She tells me she was
driving her car when the driver of the other vehicle failed to give way, lost control
and pushed Tammy's car into the median strip and up onto the concrete. She was
able to drive her car home slowly at 60km/hr, but her car kept pulling to the left.
She developed pain on the left side of her neck extending down her left arm with pain
also extending into the interscapular region. She also had pain on the right side to a
lesser degree.
Since the accident, she has developed pain in the lumbar region, lumbosacral spine
and down the left leg to the left calf. There is tightness in the left calf. The lumbar
spine is hypomobile.
The MRI scan shows changes at the C5/C6 level. There is desiccation of the
intervertebral disc and a broad-based disc osteophyte complex. She is very tender
over the C5/C6 facet.
She most probably has facetal pain at the C5/C6 level.
With reference to the lumbar spine, she has low back pain extending down the legs.
At the L5/S I level, there is a broad-based disc bulge and facetal changes.”

28 July 2020 ultrasound of the left shoulder

Conclusion: the supraspinatus, subscapularis, infraspinatus and teres minor tendons are all intact without evidence of tendinosis or tear.

31 July 2020 MRI scan of the cervical spine

Conclusion: C5/6 degenerative disease with desiccation of the intervertebral disc and broad-based disc osteophyte impinging of the thecal sac. No neural impingement or evidence of acute injury.

18 August 2020 ultrasound-guided injection to the left shoulder

Ms Wells received a subacromial injection of cortisone and anaesthetic.

18 December 2020 MRI scan lumbar spine

Conclusion: L4/5 and L5/S1 disc desiccation with mild to-moderate bilateral facet joint arthritis.

17 September 2021 ultrasound of the neck

Result: Prominence of mandibular lymph nodes.

24 September 2021 left shoulder steroid injection

Result: Left shoulder subacromial injection with cortisone and anaesthetic.

8 November 2021 X-ray of the right knee, right foot and right ankle

Result: Mild tricompartmental osteoarthritic degenerative changes within the right knee. Right ankle no significant abnormality apart from mild degenerative spur in the lateral malleolus. Right foot, no abnormality detected.

25 December 2021 MRI scan of the cervical spine

Result: Cervical spondylosis with moderate C6/7 disc prolapse and potential irritation of left C7 nerve root.

6 September 2022 ultrasound of the left shoulder

The ultrasound report provided:
“Clinical notes: Increasing shoulder pain, painful arc ? bursitis.
Findings: A dynamic examination was performed.
The long head of the biceps tendon is intact and lies within the bicipital groove. Subscapularis: Intact
Supraspinatus: Partial thickness tear involving the bursal aspect of the anterior to mid fibres measuring 22 x 22 mm.
Infraspinatus: Intact.
There is thickening of the subacromial subdeltoid bursa in keeping with bursitis.
Bursal bunching upon abduction is in keeping with impingement.
No glenohumeral joint effusion.
Acromioclavicular joint: Normal
No bony spurring or calcification noted.
COMMENT: Subacromial subdeltoid bursitis. Supraspinatus partial thickness tear.”

6 September 2022 X-ray of the right knee

Result: moderate degenerative changes within the right knee.

19 September 2022 ultrasound of the right shoulder

Result: impingement syndrome of bursitis right shoulder

20 September 2022 ultrasound-guided injection, left shoulder

Ms Wells received a left shoulder injection of cortisone and anaesthetic.

Addressing the parties’ submissions

Ms Wells submitted there was no evidence of another or intervening event which could have caused the claimant’s tear in the left shoulder. Her complaints of left shoulder pain had been contemporaneous and consistent since the date of accident.
She further submitted that in the absence of Medical Assessor Herald identifying some other incident which caused the left partial rotator cuff tear, there must be discussion warranted as to whether or not the motor vehicle accident caused the tear.
The Panel reviewed the submissions regarding her left shoulder injury. The shoulder injury was accepted as causally related to the subject motor vehicle accident, to the extent that it caused a soft tissue injury, but not more serious injury. Ms Wells had an ultrasound shortly after the motor vehicle accident on 28 July 2020 which showed there was subacromial bursitis without bursal impingement and intact rotator cuff tendons, that is to say, there was no appearance of a rotator cuff tear.
She submitted that the Medical Assessor had found that the claimant suffered from radiculopathy and had failed to conduct his assessment in accordance with the Guidelines to conclude that the injury was a threshold injury. The Panel notes that on page 5 of his Certificate, Medical Assessor Herald stated: “Her condition is consistent with radiculopathic symptoms but not radiculopathy”. His examination report describes a normal neurological examination of both upper limbs. The Review Panel thus concludes that there were non-verifiable neurological complaints, but no objective signs of radiculopathy.

The Panel considered it significant that a much later ultrasound of the left shoulder on

7 September 2022 showed subacromial bursitis of the left shoulder with a partial thickness tear. This was two years after the subject motor vehicle accident and the Panel was of the opinion that this was not causally related to the subject accident given the passage of time, that is, there was a temporal gap before the rotator cuff tear was identified and on the balance of probabilities it was probably a degenerative tear and non-causal.
The Panel therefore did not consider it necessary to identify whether there was a separate intervening event, as it had come to the conclusion that the left partial rotator cuff tear was not caused by the subject accident.
The Panel further noted the claimant’s submission, that although Ms Wells complained of left shoulder pain which was noted in the records of All Pain Care, this was not associated with a rotator cuff tear on ultrasound on 28 July 2020.
The Panel was satisfied it had sufficient documentation to make such an assessment on the papers and agrees with the Medical Assessor’s certificate dated 8 November 2023 that the left shoulder was a threshold injury for the purposes of the MAI Act.
The Panel concurs with the Medical Assessor that there were soft tissue injuries to the cervical, thoracic and lumbar spine with radicular complaint in the left forearm and left leg which were non-threshold and that the right shoulder ultrasound on 19 September 2022 showed impingement syndrome with bursitis of the right shoulder, but no rotator cuff tear, and this shoulder was also a threshold injury.
In summary, the ultrasound of the left shoulder on 7 September 2022 showed subacromial bursitis with bursal bunching on abduction, in keeping with impingement, and showed a partial thickness tear involving the bursal aspect of the anterior to mid fibres of the supraspinatus. This was considered to be not causally related to the subject motor vehicle accident in that the original ultrasound, just after the subject motor vehicle accident, did not show any rotator cuff tear.

Determination

The Review Panel affirms the certificate of Medical Assessor Herald, dated 8 August 2023.

[2024] NSWPICMP 349

30 May 2024