DETERMINATION OF REVIEW PANEL	
	
CITATION:	Sills v QBE Insurance (Australia) Limited [2023] NSWPICMP 452	
		
CLAIMANT:	Michele Sills	

INSURER:	
QBE Insurance (Australia) Limited	
		
REVIEW Panel	 	
		
MEMBER:	Susan McTegg	
		
MEDICAL ASSESSOR:	Shane Moloney	
		
MEDICAL ASSESSOR:	Thomas Rosenthal	
		
DATE OF DECISION:	13 September 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS –  Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 5 March 2020; Medical Assessor (MA) Gothelf found the following injuries were threshold injuries; injury to the cervical spine was a threshold injury because he was unable to find two or more signs of radiculopathy; Held – on examination claimant not able to establish two or more signs of radiculopathy; claimant asked to provide imaging for review; imaging demonstrated disc protrusion which appeared to be acute consistent with symptoms of left arm radicular pain reported by claimant; non-threshold injury; certificate of MA Gothelf revoked.
	
DETERMINATIONS MADE:  	CERTIFICATE OF DETERMINATION
Assessment of Minor Injury
Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel revokes the certificate of Medical Assessor Todd Gothelf dated                           5 August 2022 and determines that the following injury caused by the motor accident is a non-threshold injury: 
•	injury to the cervical spine.

	
STATEMENT OF REASONS
introduction
1.	Ms Michele Sills (the claimant) was a seat belted driver on 5 March 2020 travelling at 30-40kmph when two pedestrians walked onto the road from the left carrying umbrellas.  Ms Sills applied the brakes to avoid the pedestrians when the vehicle behind collided with the rear of her vehicle (the accident). 
2.	QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Sills under the Motor Accident Injuries Act 2017 (MAI Act).
3.	Under the MAI Act statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”. 
4.	In the Application for personal injury benefits dated 10 March 2020 Ms Sills outlined the following injuries: 
•	neck, and 
•	back injury.
5.	On 19 June 2020 the insurer determined that Ms Sills had sustained a minor injury and denied liability for statutory benefits beyond 26 weeks after the accident.  
6.	On 13 August 2020 Ms Sills sought an internal review of the minor injury decision and on 2 September 2020 the insurer affirmed the determination that the claimant’s injuries met the definition of a minor injury.  
7.	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.
8.	A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
THRESHOLD INJURY- STATUTORY PROVISIONS
9.	The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 
1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”. 
10.	The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
11.	Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”. 
12.	A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
13.	Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
14.	Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3	The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident. 
5.4	Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5	A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6	The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
	(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
	(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
15.	In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7	In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8	Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) 	loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) 	positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) 	muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) 	muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) 	reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9	 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
16.	In Briggs v IAG Limited trading as NRMA Insurance his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5	An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6	Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 
1.	The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 
2.	The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement. 
6.7	There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
ASSESSMENT UNDER REVIEW
17.	The minor injury dispute was referred to Medical Assessor Alexander Gothelf. The following injury was referred for assessment: 
•	whether the injury to the cervical spine- musculoskeletal injury, musculo-ligamentous injury, radiculopathy caused by the motor accident is a minor injury for the purposes of the Act.
18.	In a Certificate dated 5 August 2022 Medical Assessor Gothelf found the following injury was caused by the accident:
•	cervical neck strain.
19.	Medical Assessor Gothelf found the cervical neck strain was a soft tissue injury for the purpose of the MAI Act. His reasons for that conclusion were as follows:
(a)	the CT scan of 7 March 2020 indicated there was no acute cervical spine injury demonstrated. The MRI scan of 26 March 2020 indicated multilevel degenerative changes of the cervical spine with multilevel foraminal stenosis and high grade impingement, and further cord impingement at C6 without myelopathy. These findings were pre-existing and not caused by the accident, and
(b)	the physical findings did not satisfy the criteria for radiculopathy. Specifically, two or more of the following signs were not present: 
•	loss or asymmetry of reflexes;
•	positive nerve root tension signs; 
•	muscle atrophy and/or decreased limb circumference; 
•	muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
•	reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.  
20.	Medical Assessor Gothelf noted that an injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the MAI Act.  
21.	Accordingly, Medical Assessor Gothelf certified the cervical neck strain was a minor injury. 
REVIEW PROCEDURE
22.	The claimant lodged an application for review of the assessment of Medical Assessor Gothelf on 10 October 2022 within 28 days of the date on which the certificate of Medical Assessor Gothelf was made available to the parties.
23.	On 13 December 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
24.	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. 
25.	The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).  Accordingly, the President’s delegate referred the matter to this Panel to assess. 
26.	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.
27.	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.
28.	The review is by way of a new assessment of all matters with which the medical assessment is concerned. 
EVIDENCE BEFORE THE REVIEW PANEL
29.	The claimant uploaded to the portal an indexed bundle of documents marked AD1 paginated from pages 1 to 103. 
30.	The insurer uploaded to the portal an indexed bundle of documents marked AD2 paginated from pages 1 to 88. 
31.	The claimant is now 60 years of age and was 57 years of age at the time of the accident on 5 March 2020.    
32.	Following a Panel preliminary conference on 22 May 2023 the Panel caused the following message to be uploaded to the portal: 
“The claimant was assessed by Medical Assessor Moloney on 12 April 2023. She did not bring with her the original imaging or any scans at all. Before finalising the report the Panel would like an opportunity to review the original films of the following imaging: 
CT scan of the cervical spine of 7 March 2020 
MRI scan of the spine of 26 March 2020 
MRI scan of the spine of 20 August 2020 
MRI scan of the spine of 20 June 2022. 
The claimant is asked to arrange for the original films to be delivered to the Medical Suite, Personal Injury Commission, Level 8, 1 Oxford Street Darlinghurst on or before 31 May 2023 when a member of the Panel will be available to view the images.” 
33.	The images were delivered to the Medical Suites in the form of two USB’s on 
12 July 2023.  Unfortunately, thereafter there was some delay caused by difficulty in reading the scans in the format provided and by the need for one of the Medical Assessors to attend the Medical Suites to view the scans.  Medical Assessor Rosenthal viewed the scans on 12 September 2023. 
Application for personal injury benefits 
34.	Ms Sills completed an application dated 10 March 2020. She described the accident as follows:
“I was driving North on Balgowlah Road when two pedestrians stepped onto the left side of the road in front of my car. I applied brakes and then was rear ended by another vehicle. The conditions at the time were wet and it was raining.” 
35.	Ms Sills described the injury sustained as follows:
“I was flung forward in the car and sustained whiplash. I was wearing my seat belt at the time.”
Treating medical evidence 
Northern Beaches Hospital 
36.	Following the accident on 5 March 2020 Ms Sills drove herself to Northern Beaches Hospital. The medical assessment reports inter alia: 
“Was able to mobilise out of car independently 
Reported some mild pain in shoulders and right side of neck after injury.
Pain has gradually worsened over the last 2 hours.
Neck now feels very stiff.
Denies any paraesthesia/limb weakness/blurred vision/nausea or vomiting.
No headache reported.
Has been feeling shaky and ‘fuzzy’ headed since incident.” 
37.	On examination it was noted:
“Full range of motion in the cervical spine, some pain reported on lateral flexion to the left. 
No central c-spine tenderness. 
Some very mild tenderness lateral border of left trapezius.
…
Upper limb neurology- no focal neurology noted. Tone, power, sensation and reflexes all normal.
Impression: 
Whiplash injury. 
According to Canadian C-spine rules, - age 65, no extreme paraesthesia, not dangerous mechanism.  Low risk factors present (sitting in ED, pain delayed, no midline tenderness, simple rear end motor vehicle and able to actively rotate neck 45 degrees. LOW RISK – no imaging required.” 
38.	On 7 March 2020 Ms Sills represented to Northern Beaches Hospital. The discharge summary reads:
“… who represented to ED with new onset intermittent pins and needles in left arm (C7?)
Neurological assessment was normal. Power was slightly reduced in the shoulder but this was likely secondary to pain.
CT neck was normal.
She was taken out of her collar and advised to continue with regular analgesia, regular physio + book in for an OP MRI to further describe her soft tissue injury.”
39.	The Senior Resident Medical Officer reported the pain was greater on the left than the right, intermittent pins and needles which moves down the left arm into the index and middle finger. There was no numbness and no symptoms on the right side, but the claimant felt slightly weaker on the left side.  
40.	On examination the following was recorded: 
“ ● …
•	Some tenderness reported paraspinally on the left
•	Full ROM in c spine
•	…Upper limb – tone normal, power 4/5 on right (shoulder) – reduced secondary to pain, sensation normal throughout R + L, reflexes normal R + L
•	Lower limb – no focal neurology
•	No paraesthesia at time of review – patience describes pins and needs in C7 distribution.”
41.	The impression was of:
“1.	cervical radiculopathy C7, 
2.	Whiplash.” 
42.	On 3 September 2021 Ms Sills was referred to Dr Little for a follow up noting physio and injections had not helped much with her left-hand sided neck pain radiating to the left shoulder with intermittent paraesthesia in the left-hand fingers. 
Dr Nicholas Little, neurosurgeon
43.	Ms Sills saw Dr Little on 20 April 2020. He reported since the accident she had experienced increasing numbness, showers of paraesthesia down the arm, into the lateral three fingers. She felt her arm was weak. She also complained of left sided headache. On examination he reported:
“On examination spurlings test was positive. She had a full range of movement of her left shoulder with minor pain. Her strength in the left arm was difficult to determine because of some painful give way, but it was not obviously normal. She had intact symmetrical reflexes in the upper limbs without Hoffman’s reflexes. She was bilaterally brisk and her lower limbs had crossed adductor reflexes, non-sustained clonus in both legs and equivocal plantar responses. Pinprick sensory testing was normal in her arms and legs. Temperature appreciate was normal in her legs.”
44.	He reviewed the scans. His impression was Ms Sills had brachialgia, more likely C6 than C7 based on more severe stenosis at C5/6 than at C6/7. 
45.	He also diagnosed severe central cervical stenosis with a minimum diameter at C5/6 of 5mm with possible signal change. Dr Little recommended foraminal injections but concluded Ms Sills needed to consider surgery, namely an anterior discectomy at C5/6 and C6/7. 
46.	On 23 September 2020 Dr Ambreen, general practitioner (GP) referred Ms Sills to the Sports Physio Clinic for physiotherapy treatment.
Imaging
CT Cervical spine on 7 March 2020 
47.	The report reads:
“Findings
The vertebral bodies and disc heights are preserved. No fracture of dislocation.
The craniocervical articulation is intact. Moderate bilateral facet arthropathy at multiple levels. 
No pre or paravertebral soft tissue abnormality is demonstrated.
Conclusion 
No acute cervical spine injury is demonstrated.”
MRI spine on 26 March 2020
48.	The report states:
“Findings:
There are 7 cervical type vertebral bodies seen. Minimal straightening is present which might be degenerative. 
There are no marrow lesions seen and there is no marrow oedema.
No abnormality in the posterior fossa.
The cord signal and volume is normal throughout with no intradural lesion.
There is no evidence of interspinous or interlaminar bleeding or oedema.
No evidence of longitudinal ligament injury.
No epidural nor prevertebral haematoma is seen.
Degenerative changes are seen throughout the individual levels as follows:
C1-2
Bilateral lateral atlantoaxial degeneration. No impingement.
C2-3
Uncovertebral discophytic ridging and facet hypertrophy is seen with foraminal narrowing on the right, mildly impinging the right C3 nerve root.
C3-4
Uncovertebral discophyte deforms the cord. In conjunction with facet hypertrophy, there is bilateral foraminal narrowing with impingement on both exiting C4 nerve roots.
C4-5
Uncovertebral discophyte contacts the cord. In conjunction with facet hypertrophy, there is bilateral foraminal narrowing with impingement of both C5 nerve roots.
C5-6
Uncovertebral discophytic ridging impinges the cord without definite myelopathy. In conjunction with facet hypertrophy, there is bilateral foraminal narrowing with high-grade impingement of both C8 nerve roots.
C6-7
Uncovertebral discophytic ridging is seen with a focal left paracentral disc protrusion/extrusion measuring up to 5mm AP. This deforms and minimally impinges the anterolateral left surface of the cord. In conjunction with facet hypertrophy, there is bilateral narrowing with impingement of the left C7 nerve with deformation on the right. 
C7-T1
Annular bulging and endplate osteophyte formation with facet hypertrophy. This results in bilateral foraminal narrowing impinging the left C8 nerve root. 
Conclusion 
‘Multilevel severe degenerative changes seen with multilevel foraminal stenosis and high grade impingement. There is further cord impingement at C6 without myelopathy.
Referral for neurosurgical opinion is suggested. No acute ligament or bony injury identified.
No haematoma’.”
MRI spine on 20 August 2020
49.	The report states:
“Findings:
There are 7 cervical type vertebral bodies seen. Mild straightening as well as a minimal scoliosis. No marrow lesion, no marrow oedema. 
No abnormality seen in the posterior fossa.
No intradural lesion.
Degenerative changes are present and the individual levels are as follows:
C1-2 lateral antlanto-axial degeneration. No impingement.
C2-3 mild uncovertebral ridging. Moderate facet hypertrophy on the right. Right foraminal narrowing deforming the right C3 nerve root.,
C3-4 uncovertebral discophyte deforms the cord. In conjunction with facet hypertrophy there is bilateral foraminal narrowing worse on the right impinging the left C4 nerve root. Further contact on the right. 
C4-5 uncovertebral ridging and facet hypertrophy is seen. Facet degeneration is particular severe on the left hand side with high-grade impingement of the existing left C5 nerve root. Mild impingement on the right. 
C5-6 uncovertebral discophyte mildly impinges the cord. There is no convincing evidence of myelopathy here.  In conjunction with facet hypertrophy there is bilateral foraminal narrowing impinging both C6 nerve roots.
C6-7 left paracentral uncovertebral discophyte and disc extrusion is seen measuring up to 5mm AP and 10mm craniocaudal. This deforms and minimally impinges the anterolateral left surface of the cord. In conjunction with facet hypertrophy there is impingement of the exiting left C7 nerve root. Further minimal deformation on the right. 
C7-T1 annular bulging and facet hypertrophy is seen.  There is foraminal narrowing on the left with definite impingement of the exiting left C8 nerve roots. 
T2-3 foraminal narrowing is seen on the right impinging the exiting right T2 nerve root due to facet hypertrophy. 
Conclusion: 
‘Multilevel degenerative changes are seen with multilevel high-grade foraminal stenosis. There is also cord impingement at C5/6 and to a lesser extent C6/7. 
The degree of impingement is roughly stable. There is no convincing evidence of myelopathy’.”
Limited bone scan on 20 June 2022
50.	The report addressed to Dr Little comments:
“1.	The scan demonstrates mildly to moderately increased osteoblastic activity accompanying intervertebral degenerative changes at the C5/6 level. 
2.	There is markedly increased osteoblastic activity accompanying arthritis of the left C3/4 and C4/5 facet joints. 
3.	There is mildly increased osteoblastic activity accompanying low-grade arthritis of the right C2/3 facet joint. 
4.	There is mild arthritis of the left acromioclavicular joint and the right sternoclavicular joint.”
MRI cervical spine – on 20 June 2022
51.	The report states:
“Findings: There is straightening of the normal cervical lordosis. Otherwise, overall cervical spine alignment is maintained. There is no abnormal marrow signal, marrow infiltration or destructive bony process. There is no pre/paravertebral soft tissue abnormality. No epidural mass or haematoma is identified. The craniocervical junction outlines normally. No abnormal cord signal throughout the visualised cervical and upper thoracic cord. 
Multilevel degenerative changes are seen throughout the cervical spine. 
C2/3: Tiny central broad-based posterior disc bulge. Moderate right and mild left facet joint hypertrophy. No significant canal or foraminal narrowing. 
C3/4: There is a small central broad-based posterior disc bulge. Moderate right and severe left facet joint hypertrophy is noted. Small uncovertebral osteophytes are also present. Mild to moderate right and moderate to severe left foraminal narrowing, with likely irritation of the exiting left C4 nerve root. No significant canal stenosis. 
C4/5: There is a small broad-based posterior disc bulge. Moderate to severe bilateral facet joint hypertrophy is noted, worse on the left. Bilateral uncovertebral osteophytes are also present. There is moderate right and severe left foraminal narrowing, with compression of the exiting left C5 nerve root. No significant canal stenosis. 
C5/6: There is a broad-based posterior disc bulge, with dominant left paracentral component, measuring up to 3 mm in maximum AP diameter. This is causing moderate to severe canal stenosis with effacement of the CSF and deformity of the underlying cervical cord. No convincing abnormal cord signal change is identified. In addition, there is severe bilateral facet joint hypertrophy and uncovertebral osteophytes, causing severe bilateral foraminal narrowing. There appears to be compression of the exiting C6 nerve roots. 
C6/7: There is a superiorly positioned left paracentral disc herniation, measuring up to 3 mm in maximum AP diameter. This is causing focal indentation on the anterior thecal sac on the left, with mild deformity of the underlying left hemicord. Mild to moderate canal stenosis at this level. No abnormal cord signal. Moderate bilateral facet joint hypertrophy and small uncovertebral osteophytes are present. Mild right and moderate left foraminal narrowing. Potential irritation of the exiting left C7 nerve root. 
C7/T1: No significant canal or foraminal narrowing. 
IMPRESSION: 
Multilevel degenerative changes are noted, most significant finding seen at C5/6 and C6/7, as detailed above. No convincing abnormal cord signal change.”
Medico-legal reports
Dr James Bodel, 11 February 2022
52.	Dr Bodel assessed Ms Sills on 11 February 2022 by telehealth. He reported the current complaints were as follows:
•	headache and neck pain and pain over the top of the left shoulder;
•	head down posture or use of the left arm overhead can aggravate the pain;
•	Ms Sills will wake from sleep if she rolls on the left shoulder at night;
•	Ms Sills cannot push, pull or lift or use the left arm overhead, and
•	Ms Sills has numbness and tingling radiating down the left arm fairly constantly but in varying intensity involving the thumb, index and middle finger of the left hand.
53.	Dr Bodel reported Ms Sills complained of tenderness over the top of the left shoulder in the trapezius muscles and at the base of the neck. He noted guarding and a reduced range of neck flexion, extension, and rotation, more on the left than the right. 
54.	Dr Bodel recorded Ms Sills had restricted range of shoulder movement as shown in the following table:
Shoulder Movements	Active ROM Measured
RIGHT	Active ROM Measured
LEFT	
Flexion 	180º	140º	
Extension	50º	40º	
Adduction	50º	20º	
Abduction	180º	120º	
Internal Rotation 	90º	60º	
External Rotation 	90º	60º	
55.	Dr Bodel noted impingement in the left shoulder but no instability. He recorded mild generalised wasting in the left shoulder girdle, particularly in the supraspinatus tendon posteriorly and tenderness over the rotator cuff.
56.	Dr Bodel found no restriction of elbow, wrist or hand movement. He found the biceps reflex was diminished on the left-hand side compared to the right and there was sensory loss in a C6 dermatomal distribution. 
57.	Dr Bodel concluded Ms Sills had a whiplash associated disorder with clinical signs of radiculopathy involving the C6 nerve root on the left-hand side. He found she had sustained material aggravation of the underlying degenerative change.  He also concluded Ms Sills had suffered a rotator cuff injury to the left shoulder. 
58.	Dr Bodel found the claimant had sustained a non-minor injury because she had clinical signs of radiculopathy. 
SUBMISSIONS
Claimant’s submissions
59.	The claimant provided submissions dated 10 October 2022. The submissions were filed in support of the application for review and submits that Medical Assessor Gothelf did not consider the report of Dr Bodel when determining his dispute. 
Insurer’s submissions
60.	The insurer provided submissions dated 31 January 2022. The insurer acknowledges that the claimant has reported symptoms of pins and needles in her arm and fingers, however, submits there are no objective signs of radiculopathy, and the claimant has not demonstrated she has two or more of the clinical signs of radiculopathy required by cl 5.9 of the Guidelines.  
61.	The insurer notes as per the regulation, a spinal nerve root injury that results in neurological symptoms but not radiculopathy is considered a minor injury under the MAI Act. 
THE MEDICAL EXAMINATION
Clinical examination
62.	Ms Sills attended the medical suites at the Commission on 12 April 2023. She was unaccompanied.
Pre-accident history
63.	Ms Sills is a single mother with two adult children. She stated she had sustained no previous injuries other than those the subject of this claim.  Prior to the accident 
Ms Sills was very active in sporting activity such as mountain bike riding, diving, tennis, squash and she was a regular gym attender. In 2019 Ms Sills had been a resort manager in Queensland but at the time of the accident was between jobs.
History of the accident
64.	Ms Sills was driving her car when two pedestrians walked onto the road causing her to suddenly stop which resulted in the car behind colliding with her. She states she was wearing a seatbelt at the time, but airbags were not deployed. She exchanged details with the other driver and then drove herself to the Northern Beaches Hospital. Due to neck pain and numbness in the arm, an X-ray and CT scan was performed, and her daughter collected her and took her home.
History of symptoms and treatment following the accident
65.	Ms Sills consulted her GP who organised physiotherapy and due to persistent tingling in the left arm referred her to a neurosurgeon, Dr Little at Royal North Shore Hospital. He recommended physiotherapy and massage initially and then organised a cervical spine injection which gave relief for two days before there was a recurrence of the pain. The insurance company ceased payment of any further injections.
66.	 There have been no accidents or injuries sustained since this accident.
Current symptoms
67.	There is persistent pain in the left side of her neck which feels like a stabbing sensation especially if she looks to the left. This pain frequently wakes her at night. The pain and tingling in the left arm has decreased in the past couple of years but every few days she will get a shooting pain which lasts less than a minute down the left arm. Previously this shooting pain would occur many times per day. She was able to walk without discomfort but does feel apprehensive when driving. Sitting at a computer increases the headaches which start in the left occipital region then radiate to the front. Due to this she needs frequent standing away from the desk. She also stated she is unable to wear a backpack and is unable to lift her grandchildren as this increases her neck pain.
68.	One month after the accident, Ms Sills secured a job as a practice manager for a surgeon which lasted for one year before ceasing due to COVID-19 restrictions. She then obtained a job as an analyst for the Bank of New York working from home.  This job was terminated when they wanted her to start attending their office. There has been no work since December 2022.
69.	Ms Sills lives alone at present but gets help from her daughter in any heavy household duties. Since the accident she has undertaken no sporting activities.
Present medication
70.	Present medication is Mobic 15 mg one-a-day, Nurofen or Maxgesic occasionally. She is not currently undertaking any manual therapy but consults her GP when necessary.
71.	No radiological studies were available for inspection.

Clinical examination
72.	Ms Sills walked into the rooms with a normal gait and sat comfortably during the interview. She stated she was right-handed. Her height was measured at 153 cm and her weight at 57 kg.
Cervical spine
73.	On inspection of the cervical spine there was a normal contour and on testing range of movement flexion/extension was 80% of the expected range. Lateral rotation and side bending was 75% of the expected range to the right and 50% of the expected range to the left. Thus, there was asymmetry on testing range of movement. On palpation there was tenderness over the left trapezius muscle and, in particular, the left scalene muscles.
74.	On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no muscle wasting was apparent. The circumference of the upper arms were 25cm on the right and 24.5cm on the left (10 cm above the olecranon process) and at the maximum circumference of the upper forearms 22cm bilaterally. 
75.	There was a slight global decrease in sensation to light touch over the left upper arm and forearm with normal sensation in both hands.
Shoulders
76.	On inspection of the shoulders, no muscle wasting was apparent and on passive movement no crepitus was detected. Active movements were measured using a goniometer and repeated three times. Ms Sills states that the restriction in range of flexion and abduction of the left shoulder was due to pain in the left trapezius muscle and left side of her neck. There was no specific tenderness over the glenohumeral joint.
Shoulder Movements	Active ROM Measured
RIGHT	Active ROM Measured
LEFT	
Flexion	180°	140°	
Extension	50°	50°	
Adduction	60°	50°	
Abduction 	180°	140°	
Internal Rotation	80°	80°	
External Rotation	90°	90°	

 CONCLUSION 
77.	On examination of the cervical spine, there was dysmetria but no signs of radiculopathy in the upper limbs. There was a slight reduction in range of movement of the left shoulder.
78.	In his medicolegal report Dr Bodel indicated an absence of the left biceps reflex and sensory loss of the C6 dermatome. Those signs were not present at the time of the examination of Medical Assessor Moloney. However, Dr Bodel undertook his assessment by telehealth and notwithstanding the decision in David v Allianz Australia Ltd  the Panel is not prepared to rely on his findings alone in the absence of an in-person examination. 
79.	Furthermore, the report from Dr Little, the treating neurosurgeon noted normal intact symmetrical reflexes in the upper limbs with normal pin prick sensory testing and a full range of movement of the left shoulder.
80.	At the time of his examination Medical Assessor Moloney was not able to establish the presence of two or more of the following signs: 
•	loss or asymmetry of reflexes;
•	positive nerve root tension signs;
•	muscle atrophy and/or decreased limb circumference; 
•	muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
•	reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. 
REVIEW OF THE IMAGING  
81.	On 12 September 2023 Medical Assessor Rosenthal viewed the imaging furnished by the claimant as requested, namely the CT scan of the cervical spine of 7 March 2020, the MRI scan of 26 March 2020, the MRI scan of 20 August 2020 and the MRI scan of 20 June 2022.  
82.	Medical Assessor Rosenthal concluded the radiology, in particular, the MRI scan of 
26 March 2020 demonstrated a C6-7 disc protrusion/extrusion which appears to be acute. 
83.	The Panel notes Medical Assessor Gothelf did not review the imaging at the time of his assessment. 
PANEL FINDINGS
84.	The Panel notes there is no history of a pre-existing cervical spine condition, and the claimant has consistently complained of neck pain, paraesthesia and numbness down her left arm since the accident. 
85.	Notwithstanding the lack of radiculopathy established by Medical Assessor Moloney at the time of his examination the Panel is satisfied the finding of an acute C6-7 disc protrusion as demonstrated on the MRI imaging would fit with the symptoms of left arm radicular pain reported by Ms Sills following the accident and with the findings of Dr Bodel.  
86.	A disc is comprised of cartilaginous tissue and the partial or complete rupture of the disc is a rupture of the cartilaginous tissue which by definition pursuant to s 1.6 of the MAI Act is a non-threshold injury. 
87.	The Panel revokes the certificate of Medical Assessor Todd Gothelf dated 
5 August 2022 and determines that the following injury caused by the motor accident is a non-threshold injury: 
•	injury to the cervical spine.