Younes v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 487
•29 November 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Younes v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 487 |
| CLAIMANT: | Marie Younes |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | David Gorman |
| DATE OF DECISION: | 29 November 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury on 31 August 2021 in a head on collision with the insured vehicle resulting in air-bag deployment; this was a medical dispute about whether the motor accident caused a non-minor injury within the meaning of the Motor Accident Injuries Act2017; claimant bore the onus of proof in establishing that the injuries were not a minor injury; Briggs v IAG Ltd (No 2) referred to; the Panel concluded that the claimant suffered a non-minor injury to the right shoulder by reason of absence of prior complaints, contemporality of right shoulder symptoms, consistency of symptoms, severity of motor accident, scan evidence including the specific location of the tear and findings on examination; claimant suffered injuries to the cervical and lumbar spine which were minor injuries; the pathology in the cervical spine showed longstanding degenerative changes; it was unlikely that the motor accident caused injury to the nerves or partial tearing of the tendons, ligaments, menisci or cartilage; there was no radiculopathy in either the upper or lower limbs as defined by the Motor Accident Guidelines; the clinical notes refer to symptoms of radicular pain including numbness in the right hand; these are not signs of radiculopathy as defined because they are not described as relating to a specific dermatome; Held – original assessment revoked; findings made that claimant sustained a non-minor injury to the right shoulder. |
| DETERMINATIONS MADE: | Medical Assessment – Minor injury Review Panel Assessment of Minor Injury The Review Panel revokes the certificate dated 9 June 2022 and certifies that the right shoulder injury caused by the motor accident is a not a MINOR INJURY for the purposes of the Motor Accident Injuries Act 2017. |
REASONS
BACKGROUND
Ms Marie Younes (the claimant) suffered injury in a motor accident on 26 March 2021 in an end-to-end collision[1] with the deployment of airbags (the motor accident).
[1] Insurer’s bundle, p 26.
The insurer liable to pay to Ms Younes any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether Ms Younes’ injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Truskett who issued a Medical Assessment Certificate dated 9 June 2022. Medical Assessor Truskett concluded that Ms Younes sustained soft tissue injuries to the cervical and lumbar spines and both shoulders which are a minor injury for the purposes of the MAI Act.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[3]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[4]
[3] Sections 3.11 and 3.28 of the MAI Act.
[4] Section 4.4 of the MAI Act.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by Ms Younes within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after
1 March 2021, the new review provisions apply.The review provisions provide[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
The parties filed respective bundles of documents for the Panel’s consideration. The claimant then filed a report of an ultrasound scan dated 26 October 2022.
On 14 November 2022 the Panel wrote to the parties as follows:
"The Panel has been advised that a legal officer has admitted the ultrasound report dated 26 October 2022. We understand that there was no response by the insurer to the late admission of the report. The insurer is to advise the Panel by 12 noon 15 November 2022, if it wishes to file any evidence or submission in response. Given the lateness of the claimant's document, the Panel will accommodate any reasonable request by the insurer."
The insurer’s response was:
“The Insurer only wishes to submit that an ultrasound scan ~19 months after the accident should not affect the causation issues highlighted by Assessor Truskett and our previous submissions.”
STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[10]
[10] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act[11].
[11] See s 3B(2) of the Civil Liability Act 2002.
ASSESSMENT UNDER REVIEW
The Medical Assessor concluded that Ms Younes suffered soft tissue injuries to the cervical and lumbar spines and both shoulders which were minor injuries within the meaning of the MAI Act.
SUBMISSIONS
Claimant’s submissions undated[12]
[12] Claimant’s bundle, p 8.
The claimant submitted that the physical injuries to the cervical spine, bilateral shoulders, right hand and lumbar spine fell outside the definition of minor injury.
The claimant referred to the scan evidence and the opinions of Mr Cook and Dr Maniam and submitted:
“[T]he MRI/X-ray results & physiotherapist diagnosis of a ‘Lumbar spine pain (Acute), right shoulder acute pain (Rotator cuff pathology) and Whiplash Associated Disorder (WAD)’ and the highlighting consistent and persistent complaints of pain and discomfort from the Claimant, is indicative of non-minor injuries. Constant and persistent sharp pain may be suggestive of radiculopathy and cannot be precluded as such without further investigation.”
It was noted that of Dr Salama, Dr Maniam and Mr Cook have treated the claimant on a number of occasions and their opinions “must carry weight”.
The claimant referred to the right shoulder ultrasound which showed a full thickness tear supported by the opinions of Mr Cook and Dr Maniam. The existence of a traumatic tear is consistent with the nature of the motor accident and ongoing complaints since that time.
In respect of the spine, the claimant referred to ongoing complaints and the pathology showed by the scans. It was submitted that “it would be premature to conclude” that the claimant has sustained a minor injury and further treatment/services has been recommended.
Claimant’s submissions dated 23 June 2022[13]
[13] Claimant’s bundle, p 1.
These submissions were filed seeking leave to review the certificate.
The claimant submitted that the finding that the shoulder tear was not acute was inconsistent with the mechanism of the impact, the diagnostic findings and the injuries sustained.
The claimant submitted that the neural compression at C6 and injuries to the nerves at L4/5 and L5/S1 qualify as a non-minor injury.
The claimant emphasised the opinion of Dr Maniam and his clinical notes, history and complaints to the treating doctor, the diagnostic treatment and reports and mechanism of injury. It was noted that there was a failure to enquire and comment about an absence of shoulder pain prior to the motor accident and consistent complaints since the motor accident.
Insurer’s submissions dated 23 December 2021[14]
[14] Insurer’s bundle, p 15.
The insurer described in detail the medical evidence. It submitted:
- The claimant sustained soft tissue injuries which fell within the meaning of a minor injury.
- There was no evidence of a fracture or complete or partial rupture of tendons, ligaments, menisci or cartilage.
- The right shoulder pathology reveals tendinosis/degenerative changes and “there is no evidence of traumatic changes that would be associated with an acute tear”. The X-rays indicate osteoarthritis which is clearly degenerative.
- The left shoulder scan reveals a background of tenositis which indicates a degenerative condition.
- The clinical examinations undertaken by Mr Cook and Dr Maniam do not satisfy any criterion of radiculopathy as defined in cl 5.8 of the Guidelines.
Insurer’s submissions undated[15]
[15] Insurer’s bundle, p 4.
The insurer provided detailed submissions why the original medical assessment should not be reviewed, submitted that the Medical Assessor disclosed his reasoning process and provided detailed reasons why the pathology was entirely degenerative.
It submitted that the Medical Assessor considered all relevant medical records and provided adequate reasons why the injuries were minor.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
The pre-accident clinical notes do not refer to any relevant health issues with the claimed body parts.[16]
[16] Claimant’s bundle, pp 91-96.
Medical evidence
The claimant attended her local medical centre on the day of the accident and was referred for x-rays.[17]
[17] Claimant’s bundle, p 160, p 208.
On 20 April 2021 Dr Salama, general practitioner, noted neck pain, back pain and right shoulder/arm pain following the motor accident.[18] A certificate of capacity noted injuries to the neck, right shoulder, right arm and back. [19]
[18] Claimant’s bundle, p 97.
[19] Claimant’s bundle, p 213.
On 28 April 2021 Dr Salama recorded radiculopathy with tingling sensation in right hand and right arm pain with very restricted upward arm movement.
Dr Salama referred Ms Younes to Mr Cook, physiotherapist on 6 May 2021 for management of the neck, back, right shoulder and right arm.[20]
[20] Claimant’s bundle, p 147.
Dr Salama referred Ms Younes to Dr Maniam by letter dated 6 May 2021 noting neck and low back pain and pain all over right arm and numbness in the right hand.[21]
[21] Claimant’s bundle, p 181.
The claim form dated 18 May 2021 refers to injuries to the neck, back, both shoulders, right hand and referred pain.[22]
[22] Claimant’s bundle, p 32.
Mr Cook, physiotherapist provided a report dated 12 May 2021 noting treatment to the entire spine and right shoulder.[23] Left shoulder movement was then normal.
[23] Claimant’s bundle, p 148.
The referral by the general practitioner to the pain specialist on 24 May 2021 was for “severe pain neck, back and RT arm”.[24]
[24] Insurer’s bundle, p 32.
Allied health recovery request dated 3 June 2021 referred to acute lumbar spine pain, right shoulder acute pain (rotator cuff pathology) and whiplash associated disorder.[25]
[25] Claimant’s bundle, p 184.
Dr Yi-Ching Lee, pain specialist, provided a report dated 23 June 2021. The main issues were described as psychological distress and pain in the neck and back.[26] Pain was also recorded in the right arm and numbness over the 2nd-5th digits.
[26] Claimant’s bundle, p 160.
Dr Vijay Maniam, surgeon, provided an initial report dated 17 June 2021 noting injuries to the cervical and lumbar spines.[27] Neurological examination in the upper and lower limbs were normal.
[27] Insurer’s bundle, p 25.
The right shoulder examination showed:[28]
“The right shoulder contour was normal but there was tenderness anteriorly over the subacromial subdeltoid bursa. Movements were marginally restricted in abduction, flexion and adduction. The impingement sign was positive but there was no evidence of any instability.”
[28] Insurer’s bundle, p 26.
Dr Maniam, surgeon, provided a further report dated 26 November 2021[29] diagnosing injuries to the cervical spine, lumbar spine and right shoulder sustained in the motor accident. The doctor noted in his initial consultation the following complaints:
- cervical spine pain without radiation, and
- lumbar spine pain without radiation.
[29] Claimant’s bundle, p 38.
Neurological examination of the cervical spine and upper limbs and lumbar spine and lower limbs was normal. Examination of the supraspinatus and subacromial bursa were tender with a positive impingement sign.
Dr Maniam diagnosed the following injuries aggravated by the motor accident:
- C5/6 left paracentral disc bulge compressing the left C6 nerve root;
- L4/5 dis bulge with minimal impression of the left exiting nerve root;
- L5/S1 mild disc bulge with minimal impression upon both S1 nerve roots;
- impingement and bursitis of the left shoulder, and
- full thickness tear of the right shoulder with bursitis and impingement.
Radiology
The X-ray of the cervical and lumbar spine dated 1 April 2021 showed spondylotic changes of the cervical spine with narrowing of the C4/5 and C5/6 spaces and spondylotic changes predominantly in the lower thoracic spine with narrowing of the L5/S1 disc space.[30]
[30] Claimant’s bundle, p 60.
The MRI scan of the cervical spine dated 16 April 2021 noted a clinical history of bilateral radiculopathy. The radiologist opined that there was a central and left paracentral disc bulge at C5//6 causing left sided neural foraminal narrowing and compression upon the left exiting C6 nerve root.[31]
[31] Claimant’s bundle, p 62.
The MRI scan of the lumbar spine dated 17 May 2021 showed broad based and left sided disc bulge at L4/5 with minimal impression on the left L4 nerve root and disc bulge at L5/S1 with minimal impression on both S1 nerve roots.[32]
[32] Claimant’s bundle, p 79.
Ultrasound and X-ray of the right shoulder dated 31 August 2021 showed a full thickness tear of the supraspinatus tendon extending into the biceps tendon on top of changes of tendinosis.[33] The X-ray showed mild osteoarthritis of the right acromioclavicular joint.
[33] Claimant’s bundle, p 56.
Ultrasound of the left shoulder dated 2 November 2021 showed a small partial articular surface tear through the supraspinatus tendon.[34]
[34] Claimant’s bundle, p 58.
A further ultrasound dated 26 October 2022 showed supraspinatus tendinosis with overlying subacromial bursitis and bursal impingement on abduction with a full thickness incomplete tear of the anterior and mid supraspinatus tendon. Degenerative changes were again noted within the acromioclavicular joint.
Other records
Photographs of the motor accident show the deployment of airbags and extensive damage to the front of the claimant’s vehicle.[35]
[35] Claimant’s bundle, pp 216-218.
RE-EXAMINATION
The Panel determined that Ms Younes be re-examined by Medical Assessor Gorman on 16 November 2022.
The re-examination report is as follows:
“Ms Younes was seen on 16 November 2022 in the PIC Rooms by Assessor David Gorman.
The Arabic interpreter engaged by the PIC, Souzanne Demayne attended for the duration of the assessment.
Pre accident medical history and relevant personal details
Miss Younes is a 53-year-old woman.
She married in 1967. She immigrated to Australia with her husband in 1987 from Lebanon. She has always been a housewife.
Her husband was formally a storeman but became her full time carer for the last ten years because of her depression. He receives a carer's pension.
They have four children aged 32, 33, 29 and 25. Only one lives away from home.
She's had no previous surgery.
She suffered for the from depression for 10 years and has had hypertension for 20 years.
She has not had any previous motor vehicle accidents nor pain related to her back, neck or shoulders.
History of the motor accident
Miss Younes was involved in a motor accident on the 26th of March 2021 at 5:00 PM.
She gave a history of her being a front seat passenger in a vehicle driven by her husband.
She was wearing a seat belt and the car was fitted with headrest.
The accident occurred when a vehicle in the right-side lane, travelling in the same direction, changed lanes and hit the front side of the vehicle in which she was travelling.
The airbags were deployed, and a large amount of smoke ended up in the car. She recalls being thrown around.
She felt dizzy but was not knocked out. She was able to get out of the car and sat on the road.
Police arrived. They did not call the ambulance but she was picked up by their nephew and driven home.
The car was not drivable and towed away.
History of symptoms and treatment following the accident
She had widespread pain when she was at home. The next day she attended Bankstown Medical Centre and was given medications or the pain.
The pain in the right shoulder particularly worsened around one week after the accident.
She was referred to Vijay Maniam (Orthopedic Surgeon). He referred her for imaging and for further physiotherapy.
She also was referred to a psychologist, Ms Morobe in Bankstown.
Details of relevant injuries or conditions sustained since the accident
There have been no relevant injuries or conditions sustained since the motor accident
Current symptoms
She reported that her main symptoms were in her neck, her right arm and shoulder and her low back. The pain radiates down the spine from her neck to the low back.
She feels her right arm and right shoulder pain is ‘separate’ from the spinal pain.
She feels that her right arm mainly limits activities. She has trouble doing the cooking and shopping. Her husband carries the shopping, and they only cook around once per week. She has home delivery much of the time. Her husband does much of the mopping, washing and putting the washing on the line. The children also help.
Current and proposed treatment
She continues on meloxicam 2 per day, one to two days per week.
She takes Panadeine Forte one to two times per week. She has Panadol two per day, one to two times per week and she is also on an antidepressant.
She has also been started on Seroquel last week.
She is to have injections for the shoulder and neck pain - she has not had any as yet as Dr Maniam is waiting for approval.
Clinical examination
Her height was 155 centimetres and her weight 88.6 kg. She moved easily around the examination area.
She had a normal affect.
She was able to remove outer coat easily and get on and off the examination couch without problems.
Cervical spine
There was limitation in survival spinal movement to two thirds normal in all planes.
There was no muscle spasm or guarding.
There was a subjective feeling of numbness and tingling in the right hand intermittently in a non-dermatomal distribution.
However, power, reflexes and objective sensation (pin prick and light touch) in the upper limbs were normal and equal.
There was no wasting of the muscles in the upper limbs
Right shoulder
The range of movement was restricted in the right shoulder as outlined in the table below. All measurements were made with a goniometer and were reproducible.
Impingement sign signs were positive on the right side.
She indicated pain over the right shoulder
There was tenderness over the right shoulder.
There was no wasting of the shoulder musculature.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 140° 180° Extension 40° 50° Adduction 40° 50° Abduction 120° 180° Internal Rotation 70° 90° External Rotation 80° 90° Lumbar spine
There was reduced lumbar spinal movement to two thirds normal in all planes.
There was no muscle spasm or guarding, however.
She could stand easily on the heels and toes and could squat.
Power, sensation and reflexes in the lower limbs were normal and there was no muscle wasting.
Comments on consistency
She was consistent throughout the presentation. There was no evidence of exaggeration or diminishing of symptoms or signs.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[36] and Insurance Australia Ltd v Marsh.[37]
[36] [2021] NSWCA 287 at [40], [41] and [45].
[37] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[38] that radiculopathy can be present at any time to establish that the injury is not minor for the purposes of the MAI Act.
[38] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[39] that the claimant bears the onus of proof in establishing that any injury is not a minor injury for the purposes of the MAI Act.
[39] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessor Gorman and adds the following reasons.
Low back injury
We accept that the low back was injured in the motor accident.
There is no evidence of traumatic injury involving an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
There is no evidence of radiculopathy in the clinical notes or on the examination recorded by Medical Assessor Gorman.
Cervical spine injury
We accept there was a soft tissue injury to the cervical spine probably involving an aggravation of degenerative changes in keeping with the scans which show severe degenerative changes. We do not accept that there was traumatic injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
There are no recorded observations of two signs of radiculopathy as defined in cl 5.8 of the Guidelines. The clinical notes refer to symptoms of radicular pain including numbness in the right hand. These are not signs of radiculopathy as defined because they are not described as relating to a specific dermatome.
Based on the examination findings of Medical Assessor Gorman, Ms Younes did not have radiculopathy at the recent examination.
For these reasons we conclude that Mr Younes has not satisfied, at any time, two clinical signs of radiculopathy pursuant to the Guidelines.
Right shoulder
The scan dated 31 August 2021 of the right shoulder shows a full thickness tear of the supraspinatus tendon extending into the biceps tendon on top of changes of tendinosis. The changes are consistent with recent trauma. The recent scan adds nothing to what is shown by the original scan other than to confirm the findings.
Ms Younes made a contemporaneous complaint of right shoulder pain consulting her general practitioner on the day of the motor accident and did not have a history of pain in that body part. The initial treatment by the physiotherapist including treatment of the right shoulder injury rather than referred pain from the neck. Again, this is consistent with recent traumatic injury to the right shoulder.
The motor accident was significant involving a head on collision involving airbag deployment. It is medically consistent with a significant front on collision that there could be trauma to the right shoulder.
The scan evidence shows a full thickness tear of the supraspinatus tendon. Again, it is medically plausible that the supraspinatus tendon could be torn by the nature of this motor accident.
The examination conducted by Medical Assessor Gorman is consistent with the observations recorded by Dr Maniam, that is, a positive impingement sign in the right shoulder. The impingement sign of the right shoulder is consistent with the scan evidence of a complete tear of the supraspinatus tendon.
We accept that the motor accident caused a tear of the supraspinatus tendon. This is not a minor injury as defined by the MAI Act.
Left shoulder
There was a delayed onset of symptoms in the left shoulder following the motor accident. There was a normal examination of the left shoulder reported by the physiotherapist in May 2021. Full movement of the left shoulder was recorded on initial examination by Dr Maniam.
We do not accept that the motor accident caused or aggravated the partial tear in the left shoulder. Indeed, we do not accept that the left shoulder was injured in the motor accident.
CONCLUSION
For these reasons the Panel concludes that the certificate issued by Medical Assessor Truskett is revoked. The new certificate is attached at the commencement of these Reasons.
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