Younes v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Younes v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 644
CLAIMANT:	Massoud Younes
INSURER:	Insurance Australia Limited t/as NRMA
REVIEW PANEL
MEMBER:	Stephen Boyd-Boland
MEDICAL ASSESSOR:	Christopher Oates
MEDICAL ASSESSOR:	Les Barnsley
DATE OF DECISION:	12 September 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about threshold injury; physical  injury; Medical Assessor (MA) Woo considered the injuries to cervical spine, left elbow, right elbow, left hand wrist, left shoulder, and right shoulder; MA Woo found that the injuries to cervical spine and left hand wrist were caused by the motor accident; MA Woo found that the injuries to left elbow, right elbow, left shoulder, and right shoulder were not caused by the motor accident; MA Woo found the injuries to cervical spine and left hand wrist were a minor or threshold injury; re-examination by Medical Review Panel (Panel); Panel found that the injuries to cervical spine, left elbow, right elbow tear in the extensor tendon, left hand wrist were caused by the motor accident; Panel found that the injuries to right elbow tear in the biceps tendon, left shoulder, and right shoulder were not caused by the motor accident; Panel found the right elbow tear in the extensor tendon was not a minor or threshold injury; Panel found the injuries to left shoulder and right shoulder were a minor or threshold injury; Held – Panel found the right elbow tear in the extensor tendon was not a minor or threshold injury; Panel revoked the earlier certificate and issued a new certificate.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate dated 23 July 2023 and certifies that the right elbow injury, being a tear in the extensor tendon caused by the motor accident is not a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

BACKGROUND

On 26 March 2021, Massoud Younes (the claimant) sustained injury in a motor vehicle accident (the accident).
Insurance Australia Ltd t/as NRMA Insurance (the insurer) is the relevant insurer.
In this context claims and entitlements to benefits and compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Claims are initiated by lodgement of an Application for Personal Injury Benefits and also an application for Damages under Common Law arising out of the motor accident against the insurer. The legislation provides a scheme of statutory benefits (under part 3) and lump sum damages (under part 4).
Statutory benefits include weekly benefits for lost earnings and treatment and care needs for accident-related injuries.
Claims for damages include damages for economic losses and possibly non-economic loss resulting from accident-related injuries.
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. Some statutory benefits are limited if the only injuries sustained by the injured person are “minor” injuries.
In a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
The Motor Accident Injuries Amendment Act 2022 (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“threshold injuries” 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 “threshold injuries”.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for “threshold injuries” have increased.
Accordingly, an injury which does not fall within the definition of “threshold injuries” (non-threshold injuries) means that a claimant has an entitlement to claim damages and, subject to other exclusions, a greater entitlement to statutory entitlements.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
Chapter 7, division 7.5 of the MAI Act provides for medical assessments by the Personal Injury Commission (Commission) including provisions relevant to an original medical assessment, further medical assessments and the Review of medical assessments by this Panel.
Issues in relation to the regulation of medical assessment were regulated pursuant to the Medical Assessment Guidelines up to 1 March 2021. From 1 March 2021 these are now regulated by the Personal Injury Commission Rules.
This dispute is in relation to whether the injury caused by the motor accident is a threshold injury.
This constitutes a medical dispute within the meaning of the MAI Act.
A medical assessment was conducted by Medical Assessor Alexander Woo who subsequently provided a certificate dated 23 July 2023 (the Initial Assessment).

The Medical Assessor’s Certificate

The following injuries were referred by the Commission to Medical Assessor Alexander Woo for assessment:
(a)    cervical spine;
(b)    left elbow;
(c)    right elbow;
(d)    left hand wrist;
(e)    left shoulder, and
(f)    right shoulder.
The Medical Assessor found that the following injuries were caused by the motor accident:
(a) cervical spine being soft tissue injury, and
(b) left hand wrist being soft tissue injury.
The Medical Assessor found that the following injuries were not caused by the accident:
(a)    left elbow;
(b)    right elbow;
(c)    left shoulder, and
(d)    right shoulder.
The Medical Assessor determined the following injuries were threshold injuries:
(a) cervical spine being soft tissue injury, and
(b) left hand wrist being soft tissue injury.

The Review

The claimant lodged an application for review of the assessment of Medical Assessor Alexander Woo.
On 3 October 2023 the delegate of the President determined there was reasonable cause to suspect a material error in that assessment.
The President of the Commission then convened a panel to conduct the review.
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 decision maker. A ‘new decisionmaker’ 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 provisions apply.
The new review provisions provide at s 7.26(5) of the MAI Act that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a Medical Assessor – see s 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 the proceedings and may determine the proceeding solely based on the written application.
The Review Panel was comprised of two specialist medical practitioners and a legal member. The Panel met on a number of occasions and provided Directions to the parties.
The Review is not a stand alone hearing but a process involving the Panel seeking evidence, including additional material provided by the parties and further submissions, and potentially further medical examination, then meeting on a number of occasions to discuss the evidence before the Panel and to reach a view on the relevant issues and reduce that to written reasons.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022]NSWCA 31 at [11], [21] and [64].
Both the claimant and the insurer are legally represented and have the opportunity to provide submissions and to identify and narrow the issues in dispute so as to meet the objectives of the MAI Act.
Whilst the review is by way of a new assessment of all matters with which the medical assessment is concerned this occurs in the context of the initial assessment and certificate, the application for review of the assessment and the determination to conduct a review.
The following injuries were referred by the Commission for assessment:
(a)    cervical spine;
(b)    left elbow;
(c)    right elbow;
(d)    left hand wrist;
(e)    left shoulder, and
(f)    right shoulder.

Material before the Review Panel

Directions were issued by the Review Panel.
The parties were asked to provide submissions for the purpose of the Review addressing various specific issues.
The parties provided documentation to the Review Panel.
The insurer provided a bundle of documents “Review Panel Bundle” of documents being 141 pages.
The claimant provided:
(a)    a bundle of documents “Paginated index for review” being 86 pages;
(b)    a bundle of documents “Application to Admit Late Documents- Dr Conrad Report” being 11 pages;
(c)    a bundle of documents “Application to admit late documents - moubarak clinical notes” being 10 pages, and
(d)    a bundle of documents “ATALD- Statement dated 20.03.2024” being 8 pages.
The insurer relied upon submissions dated 24 August 2023 and 23 February 2022.
The claimant relied upon submissions dated 3 October 2023 and “Submissions made to the Assessor”.
Following the provision of these documents we asked the parties if they wanted to provide any material in response.
The Insurer provided brief submissions via the Portal on or about 21 August 2024.
Pursuant to s 7.26(6A) the panel agreed that Medical Assessor Barnsley and Medical Assessor Oates would conduct the medical re-examination of the claimant for the purposes of the review.
Re-examination of Massoud Younes by Medical Assessor Barnsley and Medical Assessor Oates was arranged.
In Rahman v Insurance Australia Ltd t/as NRMA Insurance Justice Basten referred to Court of Appeal comments on the volume of material which is routinely provided to Medical Assessors. Justice Basten confirmed that in reasons accompanying a certificate there was not a need to refer to all the documentation to which he or she has had access, but rather to be discriminating as to that material.
The Panel does not intend to refer to each and every document in the substantial volume of material before it, but only those documents considered significant to the issues in dispute.

The claimant’s submissions

The claimant lodged an application for review of the assessment of Medical Assessor Alexander Woo.
The claimant took issue with the conclusion of Medical Assessor Alexander Woo that the right elbow injury was not caused by the motor accident.
The claimant took issue with the conclusions of Medical Assessor Alexander Woo that the following injuries were threshold injuries:
(a) cervical spine, and
(b) right elbow.
The claimant did not take any issues with the conclusions of Medical Assessor Alexander Woo in relation to causation of the following injuries:
(a)    cervical spine;
(b)    left elbow;
(c)    left hand wrist;
(d)    left shoulder, and
(e)    right shoulder.
The claimant did not take any issues with the conclusions of Medical Assessor Alexander Woo that the following injuries were threshold injuries:
(a) left hand and wrist.

The insurer’s submissions

The insurer maintained that the right elbow injury was not caused by the motor accident.
The insurer maintained that following injuries were threshold injuries:
(a) cervical spine, and
(b) right elbow.
Otherwise, the insurer accepted the conclusions of Medical Assessor Alexander Woo.

Re-examination of the claimant

Pursuant to s 7.26(6A) the panel agreed that Medical Assessor Barnsley and Medical Assessor Oates would conduct the medical re-examination of the claimant for the purposes of the review.
Massoud Younes attended the medical suite at the Commission’s rooms on
1 February 2024 was examined by Medical Assessor Barnsley and Medical Assessor Oates.

EXAMINATION

General presentation

He is right-handed.
He was of average build. He could stand erect and walked without a limp.
He was fully cooperative with the examination with no suggestion of conscious guarding of movements, pain behaviours or inconsistency.

Cervical spine (cervicothoracic)

There was no guarding or muscle spasm. There was tenderness centrally at C7 level. There were no non-verifiable radicular complaints.
Flexion and extension were full range. Rotation to the right and left was two-thirds of normal range. Lateral flexion was full range bilaterally. Power, reflexes and sensation in the upper limbs were normal.
Upper arm girth at 10cm above the lateral epicondyle: right 30cm, left 33cm owing to loss of biceps, which had retracted from the attachment at the anterior shoulder. Forearm girth at 10cm below the lateral epicondyle: right 31cm, left 30cm.

Lumbar spine (lumbosacral)

He could stand on heels and toes. There was no guarding or muscle spasm. There was tenderness over the L5 spinous process. There were non-verifiable radicular complaints affecting the right lower extremity in an L5/S1 distribution.
Flexion was full range with complaint of tight calves at the end of range. Extension and lateral flexion were full range. Thoracic rotation was also full range bilaterally.
Straight leg raising on the right was negative at 70° and on the left negative at 70°. Power, sensation and reflexes in the lower limbs were normal.
Thigh girth at 10cm above the superior patellar pole: right equals left equals 47cm. Leg girth at maximum circumference at 10cm below the inferior patellar pole: right 40cm, left 39cm.

Upper extremities

There was shoulder tenderness. Active range of movement was measured with a goniometer. The examiners considered that he made a genuine effort in demonstrating active range of movement. The Panel examiners did not consider three measurements of each plane of motion was required in these circumstances, where the claimant demonstrated a genuine effort.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	140°, 140°	140° 130° limited by shoudler pain
Extension	50°	50°
Adduction	40°	40°
Abduction	130°, 140° with complaint of arm pain	130°, 140° with complaint of shoulder pain
Internal Rotation	70°, 70° with positive impingement	90°, 80°
External Rotation	70°, 80°	80°, 90°

Right and left elbows

There was a defect in the distal biceps but no right-sided bicipital tenderness. There was no elbow effusion or crepitus bilaterally. There was mild tenderness in the right medial elbow and also over the right common extensor origin, the latter was worse than that on the medial side.
Provocative tests for epicondylitis were negative for medial and lateral right elbow. There were negative provocative tests for the left elbow with mild left elbow lateral tenderness.

Elbow Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	140°	140°
Extension	0°	0°
Pronation	80°	80°
Supination	80°	80°

Right and left wrists

No tenderness or deformity. No swelling. Active range of movement measured with a goniometer as for the shoulders and elbows.

Wrist Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	70°	70°
Extension	70°	70°
Ulnar deviation	40°	40°
Radial deviation	25°	30°

DETERMINATIONS

Diagnosis, causation and reasons

The diagnoses are as follows

Lumbar spine - soft tissue injury

The accident was a cause of this injury, as it was mentioned on the Claim Form, which was signed 18 May 2021, the general practitioner (GP) referral letter to Dr Maniam dated 6 May 2021, the physiotherapy report dated 12 May 2021 and Dr Maniam’s report dated 16 June 2021.

Cervical spine - soft tissue injury

The accident was a cause of this injury, as it is mentioned on the Claim form and in the early GP record and physiotherapy notes, and in a referral to Dr Maniam dated
6 May 2021, as was lower back pain. It is also mentioned by Dr Maniam in his report of 16 June 2021. It is also referred to in the Allied Health referral of 3 June 2021.

Left elbow - soft tissue injury

The accident was a cause of this injury, as it is mentioned on the Claim Form, in the early GP record, in the physiotherapy record, in the AHRR dated 3 June 2021, in the referral to Dr Maniam dated 6 May 2021, and in Dr Maniam’s report of 16 June 2021.

Right elbow - soft tissue injury

The accident was a cause of this injury, as it is mentioned in the Claim Form, the GP and physiotherapy records, the referral to Dr Maniam and in Dr Maniam’s report.

Left hand/wrist

The accident was a cause of soft tissue injury, as it is mentioned in the Claim Form, GP record, referral to Maniam, physiotherapy record, AHRR dated 3 June 2023, and Dr Maniam’s notes.

Left shoulder – soft tissue injury

The accident was not a cause of this injury, as although it is referred to in the Claim Form dated 18 May 2021, it is not mentioned following this.

Right shoulder - soft tissue injury

The accident was not a cause of this injury, as although soft tissue injury to the right shoulder is mentioned in the Claim Form, there is no reference to this injury thereafter.
The Panel notes there was referral for X-ray right forearm and elbow in August 2022, after gradual development of right inner forearm swelling and tenderness, and ultrasound of right elbow and forearm showing a full-thickness tear of biceps tendon at the insertion at the elbow with tendon retraction and calcific tendinosis of common flexor tendon.
Because of the long time lag of approximately 18 months between the onset of this condition and the accident, the Panel finds that the accident was not a cause of rupture of biceps tendon at the right elbow.
The ultrasound scan also showed partial tear of common extensor tendon on a background of diffuse tendinosis. There was additionally calcific tendinosis of common flexor tendon.
The Panel, after considering the evidence, decided that the accident was a cause, of partial tear of common extensor tendon, after noting the mechanism of the accident involving the explosion of an airbag and likely sudden compressive force to the forearms.
There was referral for an ultrasound of right shoulder in October 2022 showing impingement and full-thickness incomplete tear of anterior and mid supraspinatus tendon.
The Panel notes that there was no reference to shoulders, apart from on the Claim Form, in the early GP records, the GP referral to Dr Maniam on 6 May 2021, the AHRR’s for physiotherapy dated 3 June 2021 and 23 August 2021, physiotherapy report dated 12 May 2021 or in the reports from Dr Maniam. The quite recent IME report of Dr Conrad, obtained on behalf of the claimant and dated 24 October 2023, made no reference to injury to either shoulder and furthermore reported full active ROM in both shoulders. The GP records at A5 insurer’s bundle have dates of visits recorded up to and including 22 December 2020, but all visits following the motor vehicle accident are undated. The claimant was asked about this lack of reference to the shoulders and he was not able to explain it.
After consideration of all the evidence, the Panel considered that the shoulder injuries were not related to the motor accident because of the lack of reference to these injuries in the contemporaneous medical records, despite numerous GP and physiotherapy consultations.

THRESHOLD INJURY

Lumbar spine - soft tissue injury

There was no evidence of radiculopathy on clinical examination and there was no investigation of lumbar spine which showed a partial or complete rupture of cartilage; hence this is a threshold injury by definition.

Cervical spine – soft tissue injury

There was no evidence of radiculopathy on clinical examination. There was no evidence on MRI scan of partial or complete rupture of cartilage, hence this is a threshold injury.

Left elbow - soft tissue injury

The Panel considered this was a threshold injury, as there is no evidence on imaging of partial or complete rupture of cartilage, tendon or ligament.

Right elbow - soft tissue injury

The Panel considered this was a non-threshold injury, as there is ultrasound scan evidence of tear of the common extensor tendon and this injury was referred to in the contemporaneous medical evidence.

Left hand/wrist

There was evidence of soft tissue injury to the area with an airbag burn to the left thumb. This has healed and is a threshold injury.

Left shoulder - soft tissue injury

The Panel did not find the accident was a cause of this injury.

Right shoulder

The Panel did not find that the accident was a cause of this injury.
Therefore, a determination of left shoulder and right shoulder status as threshold or non-threshold injuries is not required.
The Panel accepted the examination report from Medical Assessor Barnsley and Medical Assessor Oates, set out above.
The Panel accepted and adopted the findings and clinical opinions of Medical Assessor Barnsley and Medical Assessor Oates, set out above.

Issues for the Review

Schedule 2, cl 2(e) of the MAI Act, involves a determination of two issues:
(a) whether the injury (was) caused by the motor accident, and
(b) whether the injury (caused by the motor accident) is a threshold injury.
It was still necessary for the Panel to determine;
(a) Causation - whether the following injuries were caused by the motor accident:
(i)cervical spine;
(ii)left elbow;
(iii)right elbow;
(iv)left hand wrist;
(v)left shoulder, and
(vi)right shoulder.
(b) Threshold injury - whether the following injuries were threshold injuries;
(i)cervical spine;
(ii)left elbow;
(iii)right elbow;
(iv)left hand wrist;
(v)left shoulder, and
(vi)right shoulder.

Review of the evidence

History, including pre-accident history and pre-existing conditions

Medical Assessor Woo recorded a pre-accident history as follows:
“Mr Younes was born in Lebanon and came to Australia in 1977/1978 to re-unite with his parents who came to Australia 5 years earlier. He attended Belmore Boys High School for a few months and then enrolled in a 5-year college course in mechanical engineering. He dropped out of the course after 4 years and got married when he was 35 years old. He worked with O’Brien Windscreen as a storeman for 25 years. He stopped work after injury to his lumbar spine in 20091.
He then became a full-time carer of his wife and receives a paid government allowance since 2002. His wife suffers depression and anxiety. He has 4 children aged from 28 to 37 years.”
Medical Assessor Woo noted that Dr Vijay Maniam's report to C & M Lawyers dated
8 December 2021 noted two prior injuries:
(a) on 1 January 2001, he suffered injury to the lumbar spine where the diagnostic studies revealed an intervertebral disc lesion at L4/5 without any neurological impingement, and
(b) on 27 July 2001, he fractured his left ankle, an oblique fracture of the lateral malleolus where he underwent open reduction and internal fixation. The implants were removed one year later.
Neither the claimant nor the insurer challenged this pre-accident history as the factual position.
Medical Assessor Woo recorded a history of the accident that on 26 March 2021,
Mr Younes was the driver of a Mazda3, taking his wife to an appointment with her psychiatrist in Hurstville. He was wearing a seat belt. A car on his right side collided into the right front corner of his car. The air bags in were deployed and impacted him on his chest, left side of his body and the left thumb.
He did not lose consciousness but was "dreaming". He stayed in his car for about one minute and self-extricated. Police, ambulance and fire brigade arrived at the scene and enquired if he wanted an ambulance and he declined because he "felt normal" at the time. His wife's cousin came to the scene and took them home.
Neither the claimant nor the insurer challenged this pre-accident history as the factual position.
The insurer did take some issue with the account of symptoms post-accident.

Relevant records

Medical Assessor Woo then set out a summary of the post-accident treatment that he considered particularly relevant:
“On arriving home, he felt ‘whole body pain’. He noticed bruising to his left thumb.
He attended a medical centre for check-up the same afternoon. He had x-ray of the left hand on the same day which did not show any fracture.
He attended his usual GP Dr Berlanty Salama who referred him for physiotherapy and exercise physiology.
He had MRI scans of the cervical and lumbar spine.
Dr Berlanty Salama referred him to Dr Vijay Maniam who treated his lumbar spine and ankle injuries in 2001. The referral dated 06/05/2021 noted neck pain, lower back pain and the main complaint was bilateral elbow pain, bilateral hand numbness.
Dr Maniam reviewed him regularly, about every 3 months.
I saw on 13/10/2022 and issued a certificate dated 38/10/2022 and certified his lumbar spine injury as a minor injury.
He told me that since I saw him in October 2022, Dr Maniam recommended surgery to his lumbar spine but he does not know the nature of surgery.”
Medical Assessor Woo considered the report from Dr Maniam dated
8 December 2021. Dr Maniam reported musculoligamentous strain of the cervical spine with aggravation of pre-existing degenerative disease with no neural compressive effect. Severe spinal canal stenosis at the L4/5 level with crowding of the nerve roots and positive neural tension signs, indicating significant pressure at the cauda equinus.
Medical Assessor Woo noted Dr Maniam did not report two or more of the five signs for the diagnosis of radiculopathy in the upper and lower limbs. There are no specialist reports about the treatment of his alleged shoulder, elbow and hand/wrist injuries.
In a report dated 24 October 2023 Dr Conrad described a history of the accident reporting that the claimant “sustained an injury to his chest”. The claimant reported that subsequently he went home and had a lot of pain throughout his body as well as the left thumb.
Dr Conrad recorded history of treatment at Bankstown Medical Centre, GP Dr Salama, an MRI of the cervical and lumbar spine and then referral to Dr Maniam. Dr Conrad noted that Dr Maniam described the claimant having sustained injuries to his neck, back, both elbows and some numbness in both hands.
Dr Conrad recorded the claimant's symptoms as ongoing pain in the neck radiating to the left shoulder and down the left arm. He reported some stiffness in the left shoulder with a full range of movements in both shoulders. There was numbness and weakness in both arms and some weakness of grip at the hands. Dr Conrad described the claimant's principal problem as severe pain in his back radiating to his right leg worse when standing, sitting, bending and lifting.
Dr Conrad reported the results of physical examination in relation to both elbows, both wrists and both hands noting “full movements”.
Dr Conrad concluded that as result of the motor accident the claimant had sustained whiplash injury to the neck and a very significant aggravation of pre-existing back injury.
Dr Maniam in his report dated 8 December 2021 noted that the initial injury was pain in the left thumb, subsequently noticed pain in the left elbow and gradually developed neck pains and much later lumbar spine pain.
In terms of the symptoms Dr Maniam noted occurring pain in the cervical spine, numbness in both hands, especially during the night which was preexisting but aggravated in the motor vehicle accident, lumber spine pain fluctuating in intensity which finally stabilised. Dr Maniam noted that the pains in the elbow were mild and gradually improved and he has minimum symptoms at this stage and the elbow movements have returned to normal.
Dr Maniam concluded that as result of the motor vehicle accident the claimant had sustained injuries to the cervical spine, lumbar spine, elbows and left wrist.
The claimant maintains that the Medical Assessor failed to consider all of the relevant records.

Current symptoms

Medical Assessor Woo reported symptoms as follows:
(c)    lumbar spine - lower back pain which is mild in the morning and gets worse with activities such as walking. his back pain has improved since i saw him in october 2022;
(d)    both legs - on and off shooting pain to both legs more prominent in the right leg;
(e)    cervical spine - some pain in his neck. he has numbness in both hands but no actual pain;
(f)    right elbow - pain which has improved;
(g)    left elbow - he has no specific complaint;
(h)    shoulders - no specific complaint of his shoulders;
(i)    left thumb - pain had largely subsided;
(j)    right leg - some pain on driving, and
(k)    generally - he needs to sit down in the kitchen when he was cooking.
The examination report from Medical Assessor Barnsley and Medical Assessor Oates set out above includes the symptoms at examination.

Physical examination

Medical Assessor Woo in his certificate dated 23 July 2023 reported the findings on examination.
The examination report from Medical Assessor Barnsley and Medical Assessor Oates set out above includes the the findings on examination.

Diagnostic tests and/or imaging findings

X-ray of the left hand on 27 March 2021.
There is no fracture or dislocation.
X-ray of the cervical spine on 1 April 2021.
There is no evidence of vertebral fractures.
MRI of the cervical spine on 19 April 2021.
There are mild degenerative changes with mild disc bulges at C4/5 and C5/6 levels, no significant neural tissue compression. Central and mild left paracentral disc bulge at C6/7 level causing left neural foraminal narrowing and minimal impression upon left exiting C7 nerve root.
X-ray of the right elbow and forearm on 30 August 2022.
There is no fracture.
Ultrasound right elbow and forearm on 30 August 2022.
(a)    partial tear of the common extensor tendon at the background of diffuse tendinosis;
(b)    calcific tendinosis of common flexor tendon, and
(c)    full thickness tear of biceps tendon at its insertion site with the tendon retraction. The tear measures 5.9 x 1.7 x 1.4cm.
The claimant took issue with aspects of the documentation and history.
The claimant made reference to the following:
(a)    motor vehicle accident on 26 March 2021;
(b)    Application for Personal Injury Benefits was signed on 18 May 2021 that stated injury to the low back, both elbow and shoulder, left wrist/hand, neck and anxiety. Pre-existing injuries are lower back pain and left leg broken;
(c)    various Certificate of Capacity indicate that as a result of the motor vehicle accident, the claimant has injured bilateral elbows;
(d)    the Allied Health Recovery Request (AHRR) number 1 from Mitchel Cook includes a diagnosis of elbow pain;
(e)    Dr Berlanty Salam referred the claimant to Dr Vijay Maniam dated
6 May 2021 to treat his neck, lower back, and the main complaint was bilateral elbow, bilateral hand numbness. This was acknowledged in on paragraph 10 of the Certificate;
(f)    the report of Dr Maniam dated 16 June 2021 states that the claimant complains of neck pain, lower back pain, bilateral elbow pain and bilateral hand numbness. Dr Maniam states that as a result of the subject accident, the claimant had aggravation of bilateral carpal tunnel syndrome.
Dr Maniam indicated that this diagnosis is provisional only and an electro diagnosis study is required to further assist the doctor in a diagnosis;
(g)    the Clinical notes of Advanced Health Medical Centre date back to
15 January 2020. The previous notes make no complaint to the elbow prior to the accident. The first clinical notes make note of an injury to the elbow thereafter the subject accident and states ‘left elbow, left hand pain because of burning from fumes’. The following entry, albeit undated, makes reference to ‘left elbow pain with limitation of movement RT elbow pain too numbness of both hands’;
(h)    similar complaints are contemporaneously recorded throughout the clinical notes;
(i)    the claimant had ongoing pain in the elbow and undertook an X-ray and ultrasound on 30 August 2022, and
(j)    the claimant made complaints to the Medical Assessor about his symptoms of the right elbow and this was recorded on page 4 of the Certificate.
The statement from the claimant includes at paragraph 15 “The air bags in the car deployed which hit my chest, arm and left thumb. I felt immediate pain in my right arm, shoulders, neck and lower back”.
At paragraph 20 “I rested at home and noticed ongoing pain in my chest, arms and back. I had numbness in both my hands and bruising and a lump on my thumb”.
The statement from the claimant then makes reference to:
(a)    treatment at Bankstown Medical Centre and an X-ray of the left hand, paragraph 21;
(b)    consultation with his GP, Dr Salama and MRI scan of the cervical spine and lumbar spine, paragraph 22, and
(c)    being referred to orthopaedic surgeon, Dr Vijay Maniam for treatment and management and an ultrasound of the right elbow dated 31 August 2022 with partial tear in the right elbow, paragraph 23.

Comment on the evidence

What is clear is that there are differing accounts of the pain reported by the claimant at the time of the accident and in the immediate aftermath.
On 6 May 2021 Dr Salama reported the claimant complaining of neck pain lower back pain and the main complaint was bilateral elbow pain and bilateral hand numbness.
The Allied Health Recovery Request dated 3 June 2021 includes a reference to elbow pain both left and right. The reference is to a “diagnosis” of P1 left elbow acute pain and P3 right elbow acute pain. Under the heading of “Current signs and symptoms” for P1 is “Full ROM, Strength, IT locking, Pain w sleep” and for P3 “Full range of movement and strength”.

Causation

The Motor Accident Guidelines set out the relevant considerations in relation to causation in Part 6 specifically cls 6.5, 6.6 and 6.7.
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372 (Briggs) 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…”
In Briggs Wright J confirmed that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70] – [72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
Briggs confirms that the determination of causation does not require “scientific certainty” but rather it is to be decided on the balance of probabilities.
In Briggs Wright J confirmed that the relevant legal test in relation to causation does not require scientific certainty. It is not to be determined on the basis of scientific certainty, but on the balance of probabilities. A finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible.
The question to be considered is whether the injury was caused or materially contributed to by the accident. It is also noted the accident does not have to be the sole cause as long as it is a contributing cause which is more than negligible.

Whether the cervical spine injury (was) caused by the motor accident?

In the certificate dated 23 July 2023 Medical Assessor Alexander Woo concluded that the cervical spine injury was caused by the motor accident.
Medical Assessor Alexander Woo diagnosed the injury as soft tissue injury
The insurer did not dispute the conclusion that the claimant sustained an injury to the cervical spine, specifically soft tissue injury, as a result of the motor accident.
The claimant did not dispute the conclusion that the claimant sustained an injury to the cervical spine, specifically soft tissue injury, as a result of the motor accident.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.
We reviewed history, including pre-accident history and pre-existing conditions, all relevant records available, the claimant’s current symptoms, the results of the various physical examinations and all of the diagnostic tests available.
We reviewed the various medical opinions provided.
The Panel accepts the evidence was to the effect that:
(a)    the claimant had no significant cervical spine symptoms prior to the accident;
(b)    the circumstances of the accident as described did not suggest any direct trauma to the cervical spine (although this was possible);
(c)    at the time of the accident the claimant did not assert that there was any direct impact to the cervical spine (although this was possible);
(d)    at the time of the accident the claimant did assert that he felt immediate pain in the cervical spine;
(e)    shortly after the accident the claimant sought medical treatment in relation to the cervical spine, and
(f)    there is medical opinion to the effect that the cervical spine injury was caused by the motor accident.

The evidence available is entirely consistent with the claimant suffering an injury to the cervical spine in the motor accident and that initial injury resulted in an altered gait resulting in injury to the lumbar spine.
In our view this was consistent with the reasoning of Medical Assessor Alexander Woo in the certificate dated 24 June 2023.
Both of the Medical Assessors made a medical determination that the alleged factor, the motor accident, could have caused or contributed to the cervical spine injury.
We accepted the medical determination of the Medical Assessors that the alleged factor could have caused or contributed to the cervical spine injury.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, could have caused or contributed to the cervical spine injury.
Having considered the dynamics of the accident, the reported symptoms of cervical spine pain contemporaneously with the accident, the ongoing complaints in relation to the cervical spine and the consideration of these issues by the other medical professional we accepted that the cervical spine injury was caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did cause the cervical spine injury, being a soft tissue injury.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the cervical spine injury was satisfied.

Whether the left elbow (was) caused by the motor accident?

In the certificate dated 23 July 2023 Medical Assessor Alexander Woo concluded that the left elbow injury was NOT caused by the motor accident.
The insurer did not dispute the conclusion of Medical Assessor Alexander Woo that the left elbow injury was NOT caused by the motor accident.
The claimant did not dispute the conclusion of Medical Assessor Alexander Woo that the left elbow injury was NOT caused by the motor accident.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and it’s immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.
We reviewed the various medical opinions provided.
Both of the Medical Assessors made a medical determination that the alleged factor, the motor accident, could have caused or contributed to the left elbow injury.
We accepted the medical determination of the Medical Assessors that the alleged factor could have caused or contributed to the left elbow injury.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, could have caused or contributed to the left elbow injury.
Having considered the dynamics of the accident, the reported symptoms of left elbow pain contemporaneously with the accident, the ongoing complaints in relation to the left elbow and the consideration of these issues by the other medical professional we accepted that the left elbow injury was caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the left elbow injury was satisfied.
We accepted, on the balance of probabilities, that the motor accident did cause the left elbow injury.

Whether the right elbow (was) caused by the motor accident?

In the certificate dated 23 July 2023 Medical Assessor Alexander Woo concluded that the right elbow injury was NOT caused by the motor accident.
The insurer maintained that the right elbow injury was NOT caused by the motor accident.
The claimant disputed the conclusion that the right elbow injury was NOT caused by the motor accident.
The Panel considered the medical evidence included evidence of a tear in the extensor tendon and a tear in the biceps tendon.
Both of the Medical Assessors made a medical determination that the motor accident, could have caused or contributed to the right elbow injury being a tear in the extensor tendon.
The explosive expansion of the airbag against the forearm and hand could cause a tear in the extensor tendon. It is likely the arm would have been flexed at the elbow whilst gripping the steering wheel, potentially producing a hyperflexion force to the elbow stressing the extensor tendon origin at the lateral elbow as the explosion occurred in the air bag.
Both of the Medical Assessors made a medical determination that the motor accident, could not have caused or contributed to the right elbow injury being a tear in the biceps tendon.
The explosive expansion of the airbag against the forearm and hand could not cause a tear in the biceps tendon.
Having considered the dynamics of the accident, the reported symptoms of right elbow pain contemporaneously with the accident, the ongoing complaints in relation to the right elbow and the consideration of these issues by the other medical professional we accepted that the right elbow injury being a tear in the extensor tendon was caused or materially contributed to by the accident.
Neither of the parties referred to any record of significant elbow pain before the accident.
The Medical Assessors considered that a tear of the common extensor tendon does not necessarily affect elbow range of motion or strength around the elbow. Despite its location at the elbow the common extensor mechanism does not actually act on that joint. It is the point of origin for the muscles that act on the back of the hand and wrist. There can still be a normal range of movement at the elbow and at the wrist but wrist and hand extension are weaker.
The Medical Assessors considered that because this immediate post-motor vehicle accident right elbow condition settled relatively quickly, no imaging was required to be done or was done. Treating doctors would have ordered imaging had symptoms persisted.
The ultrasound of the elbow was performed to assess the new symptom with an incidental finding of a common extensor tendon tear. This is a discrete and separate injury to the biceps tendon tear, differing in location, symptoms (lateral elbow pain and tenderness, rather than anterior pain and swelling) and the biomechanics of injury. The extensor tendon finding reported is of indeterminate age, but the absence of soft tissue swelling would make it non-acute, noting the scan post-dated the motor vehicle accident by 17 months.
The Medical Assessors considered that the fact that the elbow injury settled does not exclude the possibility that the right elbow injury being a tear in the extensor tendon occurred as a result of the motor vehicle accident.
The Medical Assessors considered that the mechanism of injury, the nature of the injury and the contemporaneous account of an injury were all consistent with the right elbow injury being a tear in the extensor tendon occurring as a result of the motor vehicle accident.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the right elbow injury being a tear in the extensor tendon was satisfied.
We accepted, on the balance of probabilities, that the motor accident did cause the right elbow injury being a tear in the extensor tendon.
An ultrasound of the elbow was performed to assess this new symptom. The clinical history on the ultrasound scan request of 29 August 2022 stated 'gradually developed right inner forearm swelling and tenderness'. There was no history of acute trauma, making the biceps tendon tear at its insertion point on the front of the elbow most likely degenerative. A biceps tear can occur with an elbow hyperextension or unexpected heavy lifting, or as in this case, gradual attrition of the tendon. It is the practice of some radiology practices to follow a protocol where all of the elbow joint, including the various tendons, is routinely completed irrespective of the anatomical site of the patient's symptoms.
Even if we accepted that the right elbow injury, being a tear in the biceps tendon, could have been caused or materially contributed to by the accident, the claimant first presented with gradual onset of pain in the front of the forearm (crook of the elbow) in mid-2022, more than fifteen months after the motor accident. This was not consistent with the injury being caused by the accident.

Whether the left hand wrist (was) caused by the motor accident?

In the certificate dated 23 July 2023 Medical Assessor Alexander Woo concluded that the left hand wrist injury was NOT caused by the motor accident.
The insurer did not dispute the conclusion that the left hand wrist injury was NOT caused by the motor accident.
The claimant did not dispute the conclusion that the left hand wrist injury was NOT caused by the motor accident.
Both of the Medical Assessors made a medical determination that the motor accident, could have caused or contributed to the left hand wrist injury.
The left hand wrist injury is mentioned in the Claim Form, GP record, referral to
Dr Maniam, physiotherapy record, AHRR dated 3 June 2023, and Dr Maniam’s notes.
Having considered the dynamics of the accident, the reported symptoms of the left hand wrist injury pain contemporaneously with the accident, the ongoing complaints in relation to the left hand wrist injury and the consideration of these issues by the other medical professional we accepted that the left hand wrist injury was caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the left hand wrist injury was satisfied.
We accepted, on the balance of probabilities, that the motor accident did cause the left hand wrist injury.

Whether the left shoulder (was) caused by the motor accident?

In the certificate dated 23 July 2023 Medical Assessor Alexander Woo concluded that the left shoulder injury was NOT caused by the motor accident.
The insurer did not dispute the conclusion that the left shoulder injury was NOT caused by the motor accident.
The claimant did not dispute the conclusion that the left shoulder injury was NOT caused by the motor accident.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.
We reviewed history, including pre-accident history and pre-existing conditions, all relevant records available, the claimant’s current symptoms, the results of the various physical examinations and all of the diagnostic tests available.
We reviewed the various medical opinions provided.
The Panel accepts the evidence was to the effect that:
(a)    the claimant had no significant left shoulder symptoms prior to the accident;
(b)    the circumstances of the accident as described did not suggest any direct trauma to the left shoulder (although this was possible);
(c)    at the time of the accident the claimant did not assert that there was any direct impact to the left shoulder (although this was possible);
(d)    at the time of the accident the claimant did assert that he felt immediate pain in the left shoulder;
(e)    in the immediate aftermath of the accident the claimant did not report pain in in the left shoulder;
(f)    in the immediate aftermath of the accident the claimant did not seek medical treatment in relation to the left shoulder, and
(g)    neither Dr Maniam nor Dr Conrad considered that the left shoulder injury was caused by the motor accident.
In our view this was consistent with the reasoning of Medical Assessor Alexander Woo in the certificate dated 24 June 2023.
Both of the Medical Assessors made a medical determination that the alleged factor, the motor accident, could have caused or contributed to the left shoulder injury (in different circumstances).
Having considered the dynamics of the accident, the reported symptoms of cervical spine pain contemporaneously with the accident, the ongoing complaints in relation to the left shoulder and the consideration of these issues by the other medical professional the Panel was not satisfied that the left shoulder injury was caused or materially contributed to by the accident.
Both of the Medical Assessors made a medical determination that the motor accident did not cause or contribute to the left shoulder injury.
We were not satisfied, on the balance of probabilities, that the motor accident did cause the left shoulder injury.
We concluded, on the balance of probabilities, that the test for legal causation, in relation to the left shoulder injury was not satisfied.

Whether the right shoulder (was) caused by the motor accident?

In the certificate dated 23 July 2023 Medical Assessor Alexander Woo concluded that the right shoulder injury was NOT caused by the motor accident.
The insurer did not dispute the conclusion that the right shoulder injury was NOT caused by the motor accident.
The claimant did not dispute the conclusion that the right shoulder injury was NOT caused by the motor accident.
We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.
We reviewed history, including pre-accident history and pre-existing conditions, all relevant records available, the claimant’s current symptoms, the results of the various physical examinations and all of the diagnostic tests available.
We reviewed the various medical opinions provided.
The Panel accepts the evidence was to the effect that:
(a)    the claimant had no significant right shoulder symptoms prior to the accident;
(b)    the circumstances of the accident as described did not suggest any direct trauma to the right shoulder (although this was possible);
(c)    at the time of the accident the claimant did not assert that there was any direct impact to the right shoulder (although this was possible);
(d)    at the time of the accident the claimant did assert that he felt immediate pain in the right shoulder;
(e)    in the immediate aftermath of the accident the claimant did not report pain in in the right shoulder;
(f)    in the immediate aftermath of the accident the claimant did not seek medical treatment in relation to the right shoulder, and
(g)    neither Dr Maniam nor Dr Conrad considered that the right shoulder injury was caused by the motor accident.
In our view this was consistent with the reasoning of Medical Assessor Alexander Woo in the certificate dated 24 June 2023.
Both of the Medical Assessors made a medical determination that the alleged factor, the motor accident, could have caused or contributed to the right shoulder injury (in different circumstances).
Having considered the dynamics of the accident, the reported symptoms of cervical spine pain contemporaneously with the accident, the ongoing complaints in relation to the right shoulder and the consideration of these issues by the other medical professional the Panel was not satisfied that the right shoulder injury was caused or materially contributed to by the accident.
Both of the Medical Assessors made a medical determination that the motor accident did not cause or contribute to the right shoulder injury.
We were not satisfied, on the balance of probabilities, that the motor accident did cause the right shoulder injury.
We concluded, on the balance of probabilities, that the test for legal causation, in relation to the right shoulder injury was not satisfied.

Causation conclusions

The Review Panel found that the following injuries were caused by the motor accident:
(a)    cervical spine;
(b)    left elbow;
(c)    right elbow tear in the extensor tendon , and
(d)    left hand wrist.
The Review Panel found that the following injuries were NOT caused by the motor accident:
(a)    left shoulder, and
(b)    right elbow tear in the biceps tendon
(c)    right shoulder.

Threshold injury

A “threshold injury” is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will not be a non-threshold injury.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines “threshold injury” to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether an injury is a threshold injury. Relevantly to the matters in issue in the claimant’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.”
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. 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 minor injury.”
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the Act. In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.5 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

Does the claimant have cervical and/or lumbar radiculopathy?

Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in threshold injury assessments.

In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in cl 5.6 as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ...
(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.”
For the claimant’s injuries to fall outside the definition of threshold injury in s 1.6, he would need to have two of the above signs. Pain is not one of the five signs of radiculopathy which might indicate an injury to a spinal nerve root.
In the David v Allianz decision, the Review Panel considered the assessment of a minor injury, and whether the observation of radiculopathy was established at any time, or, at the time of the examination by a Medical Assessor.

Whether the cervical spine injury was a threshold injury?

In the certificate dated 23 July 2023 Medical Assessor Alexander Woo diagnosed the injury as soft tissue injury.
Medical Assessor Alexander Woo concluded that the cervical spine injury was a threshold injury.
The insurer did not dispute the conclusion that the cervical spine injury was a threshold injury.
The claimant disputed the conclusion that the cervical spine injury was a threshold injury.
The claimant submitted in relation to both arms that the constant and persistent sharp pain may be suggestive of radiculopathy and cannot be precluded as such without further investigation.
Medical Assessor Alexander Woo concluded there is no fracture. There is no complete or partial rupture of tendons ligaments, menisci or cartilage in the cervical spine. There are no two or more of the five signs required for the diagnosis of radiculopathy of the upper limbs.
The Panel found that there was no evidence of radiculopathy on clinical examination. There was no evidence on MRI scan of partial or complete rupture of cartilage, hence this is a threshold injury.

Whether the left elbow injury was a threshold injury?

In the certificate dated 23 July 2023 Medical Assessor Alexander Woo concluded that the left elbow injury was not caused by the motor accident and as a result did not make an assessment of whether the left elbow injury was a threshold injury.
The insurer maintained that the left elbow injury was a threshold injury.
The claimant did not dispute the conclusion that the left elbow injury was a threshold injury.
The Panel considered this was a threshold injury, as there is no evidence on imaging of partial or complete rupture of cartilage, tendon or ligament.

Whether the right elbow injury was a threshold injury?

In the certificate dated 23 July 2023 Medical Assessor Alexander Woo concluded that the right elbow injury was not caused by the motor accident and as a result did not make an assessment of whether the right elbow injury was a threshold injury.
The insurer maintained that the right elbow injury was a threshold injury.
The claimant disputed the conclusion that the right elbow injury was a threshold injury.
The claimant noted that an ultrasound of the right elbow and forearm on
30 August 2022 shows the following:
(a)    partial tear of the common extensor tendon at the background of diffuse tendinosis;
(b)    calcific tendinosis of common flexor tendon, and
(c)    full thickness tear of biceps tendon at its insertion site with the tendon retraction. The tear measures 5.9 x 1.7 x 1.4cm.
Having found that the right elbow injury, being a tear in the biceps tendon, was not caused by the motor accident there was no requirement to make an assessment of whether the right elbow injury, being a tear in the biceps tendon, was a threshold injury.
We did have to consider whether the right elbow injury, being a tear in the extensor tendon, was a threshold injury.
The Panel concluded that the right elbow injury, being a tear in the extensor tendon, was a non-threshold injury within s 1.6 of the MAI Act, as there is ultrasound scan evidence of tear of the common extensor tendon.

Whether the left hand wrist injury was a threshold injury?

In the certificate dated 23 July 2023 Medical Assessor Alexander Woo concluded that the left hand/wrist injury was not caused by the motor accident and as a result did not make an assessment of whether the left hand/wrist injury was a threshold injury.
The insurer did not dispute the conclusion that that the left hand/wrist injury was not caused by the motor accident and that there was no requirement to make an assessment of whether the left hand/wrist injury was a threshold injury.
The claimant did not dispute the conclusion that that the left hand/wrist injury was not caused by the motor accident and that there was no requirement to make an assessment of whether the left hand/wrist injury was a threshold injury.
There was evidence of soft tissue injury to the area with an airbag burn to the left thumb. This has healed and is a threshold injury.

Whether the left shoulder injury was a threshold injury?

In the certificate dated 23 July 2023 Medical Assessor Alexander Woo concluded that the left shoulder injury was not caused by the motor accident and as a result did not make an assessment of whether the left shoulder injury was a threshold injury.
The insurer did not dispute the conclusion that that the left shoulder injury was not caused by the motor accident and that there was no requirement to make an assessment of whether the left shoulder injury was a threshold injury.
The claimant did not dispute the conclusion that that the left shoulder injury was not caused by the motor accident and that there was no requirement to make an assessment of whether the left shoulder injury was a threshold injury.
Having found that the left shoulder injury was not caused by the motor accident and that there was no requirement to make an assessment of whether the left shoulder injury was a threshold injury.

Whether the right shoulder injury was a threshold injury?

In the certificate dated 23 July 2023 Medical Assessor Alexander Woo concluded that the right shoulder injury was not caused by the motor accident and as a result did not make an assessment of whether the right shoulder injury was a threshold injury.
The insurer did not dispute the conclusion that that the right shoulder injury was not caused by the motor accident and that there was no requirement to make an assessment of whether the right shoulder injury was a threshold injury.
The claimant did not dispute the conclusion that that the right shoulder injury was not caused by the motor accident and that there was no requirement to make an assessment of whether the right shoulder injury was a threshold injury.
Having found that the right shoulder injury was not caused by the motor accident and that there was no requirement to make an assessment of whether the right shoulder injury was a threshold injury.

Threshold injury conclusions

The Review Panel found that the following injuries were threshold injuries:
(a)    cervical spine;
(b)    left elbow, and
(c)    left hand wrist.
The Review Panel found that the following injury was NOT a threshold injury:
(a) right elbow.

Conclusions

The Panel finds that the right elbow injury, is NOT a threshold injury for the purposes of the MAI Act: s 1.6 MAI Act.
Given the Panel’s findings, the certificate of Medical Assessor Alexander Woo dated 23 July 2023 is revoked.

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Citations

Younes v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 644

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

0

Insurance Australia Group Ltd v Keen [2021] NSWCA 287

Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372

Metro North Hospital and Health Service v Pierce [2018] NSWCA 11

[2024] NSWPICMP 644

12 September 2024