Metlej v AAI Limited t/as AAMI

[2022] NSWPICMP 479

DETERMINATION OF REVIEW PANEL

CITATION:

Metlej v AAI Limited t/as AAMI [2022] NSWPICMP 479

CLAIMANT:

Toni Metlej

INSURER:

AAI Limited t/as AAMI

REVIEW Panel

MEMBER:

Terence O’Riain

MEDICAL ASSESSOR:

Drew Dixon

MEDICAL ASSESSOR:

Shane Moloney

DATE OF DECISION:

24 November 2022

CATCHWORDS:

MOTOR ACCIDENTS –  This was a dispute about whether the claimant suffered a minor injury in the motor accident; the claimant complained of right shoulder and right arm pain following the motor accident and submitted he sustained non-minor injuries a rotator cuff tear injury in the right shoulder and right arm nerve tear; subsequent scan evidence showed complete transverse tear in right shoulder; right arm injury soft tissue; lack of early complaints; Bugat v Fox considered; original Medical Assessor opined on accident mechanism; Makita (Australia) Pty Ltd v Sprowles considered; Held – the Panel satisfied the claimant suffered a right shoulder tear in the motor accident as scans showed changes; Panel not satisfied the claimant had right arm nerve injury following the motor accident; the accident caused the right shoulder tear; non-minor injury under section 1.6 of the Motor Accident Injuries Act 2017.

DETERMINATIONS MADE:  

Review Panel Assessment of Minor Injury
Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the MAI Act)

The Review Panel revokes Medical Assessor Wallace’s certificate dated 2 November 2021  and issues a new certificate determining that:
The motor accident caused the following injuries:

·         right shoulder injury, and

·         right arm (nerve) injury.

The right shoulder injury is not a MINOR INJURY for the purposes of the MAI Act

The right arm (nerve) injury is a MINOR INJURY for the purposes of the MAI Act.

REASONS

Background

1. Mr Metlej (the claimant) was seated in in the driver's position in his stationary motor-vehicle on 24 December 2019, when another motor vehicle struck his car in the rear. He claims the collision injured his right upper extremity being the right shoulder and the ulnar nerve and neck.

2. The insurer insured the owner and/or driver of the motor vehicle at fault for liability to pay to the claimant any damages/statutory compensation under the Motor Accident Injuries Act 2017 (the MAI Act).

3. On 1 July 2020 the insurer made an internal dispute review decision that the injuries Mr Metlej suffered in the accident were minor, for the purpose of s 1.6 of the MAI Act. The insurer took into account its findings in the notes and reports that the claimant's general practitioner, physiotherapist and neurologist, which included MRI scans and a bone scan.

4. The claimant lodged a medical dispute with the Dispute Resolution Service (DRS), which preceded the Personal Injury Commission (Commission). The DRS referred the dispute to MAS Assessor Dr Ray Wallace.

5. Medical Assessor Wallace provided a certificate dated 2 November 2021 deciding that the motor accident did not cause an injury to the right upper extremity (nerve).

6. Mr Metlej applied to have Medical Assessor Wallace's certificate referred to a review panel within 28 days of receiving the original Medical Assessment Certificate.[1]

   [1] Section 7.26(10) of the MAI Act.

7. On 18 March 2021 the President's delegate referred the medical assessment to a Review Panel as she was satisfied, based on the particulars set out in the application, that the medical assessment was incorrect in a material respect.[2]

Legislative framework

[2] Section 7.26(5) of the MAI Act.

Statutory provisions

1. The President of the Personal Injury Commission (the Commission) constituted this Review Panel (the Panel) to review Medical Assessor Dr Wallace’s assessment dated 2 November 2021 (the Review) regarding whether Mr Borg suffered a non-minor injury in the accident as defined under section 1.6 of the MAI Act.

2. Part 5 of the Personal Injury Commission Act, 2020 (the 2020 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 merit reviewer or a medical assessor.[3]

   [3] Section 41(2) of the PIC Act.

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the 2020 Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]

   [4] Rule 128 of the PIC Rules

4. Pursuant to clause 128(1) of the Personal Injury Commission Rules, 2021 (the PIC Rules) the Panel ‘is to conduct and determine the proceedings in accordance with procedures determined by the panel’. The panel’s decision will decide the dispute and issue a replacement certificate.

5. s 1.6 of the MAI Act defines a minor injury to include a “soft tissue injury” or 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.”

6. Section 1.6 provides 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, clause 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.

7. 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 the motor accident caused a minor injury for the purposes of the MAI 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 MAI Act should be based on the evidence available and include all relevant findings derived from:

   a comprehensive accurate history, including pre-accident history and pre-existing conditions

   a review of all relevant records available at the assessment

   a comprehensive description of the injured person’s current symptoms

   a careful and thorough physical and/or psychological examination

   diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

8. Clause 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.

9. 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. “

10. Radiculopathy is defined in clause 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.”

11. Neurological symptoms that do not meet the assessment criteria for radiculopathy means the injury will be assessed as a minor injury.

12. Part 5 of the Personal Injury Commission Act, 2020 (the 2020 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 merit reviewer or a medical assessor.[5]

    [5] Section 41(2) of the PIC Act.

13. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the 2020 Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]

    [6] Rule 128 of the PIC Rules

Review conduct

1. The members confirm they have had no previous involvement with this matter or Mr Metlej.

Matters considered and decided by the Review Panel

1. The panel held a teleconference on 11 May 2022 and referred among other things to Assessor Wallace’s certificate.

2. It appears the body part referred to Medical Assessor Wallace for assessment was the right upper extremity (nerve), while the report also contains references to a frank injury to the right shoulder, which in its preliminary view would not be classified as minor and is not a nerve injury.

3. However, we note that the insurer’s submissions dated 23 July 2020 refer to the right shoulder injury as being a minor injury.

4. Further, the claimant's submissions only referred to the deficiencies in respect of the injury to the right upper extremity (nerve).

5. Noting that the panel is required to perform a new assessment it required further submissions, directing the panel to the body parts to be assessed and to clarify the matters disputed.

6. We also noted Dr Raoul Pope’s report dated 24 November 2021 and required submissions on whether it could be included in the panel’s consideration.

7. The panel issued the following directions:

   (a)    to lodge a joint signed statement setting out —

   (b)    the facts and issues on which the parties agree, and

   (c)    the facts and issues that continue to be in dispute.

   (d)    Body parts that the panel is to assess regarding whether the claimant has suffered a minor injury.

   (e)    Any additional submissions.

8. The parties could refer to their earlier submissions, but those submissions needed to be directed to the panel conducting a fresh assessment of all the issues and reflect that the application for review does not frame the issues of the review.[7]

   [7] Jarvis v Allianz Australia Insurance Limited [2022] NSWSC 161 (McCallum JA).

9. The panel held a second teleconference on 3 August 2022 and referred among other things to the joint statement of agreed facts and issues in Commission proceedings[8] and the claimant’s further submissions[9].

   [8] AD 7.

   [9] AD 6.

10. The Panel considered the Court of Appeal’s reasons in Sydney Trains v Batshon[10]:

    “[41] Under the motor accidents legislation, the default position where there is review of a medical assessment is that the review “should generally include a re-examination of the claimant”, especially where a party objects to the review being conducted on the papers, unless there is no dispute, ambiguity or uncertainty as to the relevant clinical findings: see cl 4(a)(i) and (ii) of the “Review Panel Practice Note 3/2005”, reproduced in Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127 at [36]. Importantly, the review “is not limited to a review only of that aspect of the assessment that is alleged to be incorrect”, but rather “is to be by way of a new assessment of all the matters with which the medical assessment is concerned”: Motor Accidents Compensation Act 1999 (NSW), s 63(3A); Motor Accident Injuries Act 2017 (NSW), s 7.26(6).”

    [10] [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).

11. Batshon’s case concerned a workers compensation medical assessment matter dealing with WPI. Paragraph 41 is an observation of what happens in motor accidents matters where a practice note from 2005 is referenced. The case does not mandate a re-examination in every motor accident case but talks of the ‘default position’ which ‘generally’ applies and would apply if a party objected to an assessment on the papers. The judge’s observations also suggests the option of no re-examination where there is no dispute, ambiguity or uncertainty about findings.

12. The panel decided it would not re-examine the claimant because the material before it is enough to provide a decision on the papers, and re-examination would not add anything to the Panel’s deliberations.

13. Further having regard to Procedural Directions PIC2 and the documents that were before the panel, and the parties’ submissions, the panel is satisfied that it has sufficient information to proceed "on the papers" without holding any conference or formal hearing.

Assessment under review

1. Medical Assessor Wallace examined Mr Metlej on 26 October 2021 with the assistance of an Arabic interpreter, who attended via telephone and helped the assessor obtain the history. The history is not contended.

2. Mr Metlej told Medical Assessor Wallace that he was 44 years of age and employed as a house painter with MWP based at Chatswood from 2016. In 2019, he was employed on a full-time basis.

3. On 24 December 2019 Mr Metlej was a driver and wearing a seatbelt in a Toyota Camry sedan travelling on Williams Street, Earlwood. He had stopped behind another vehicle that was turning into a driveway when a car collided with the rear of his vehicle. There was no secondary collision. Police and ambulance did not attend the scene. Mr Metlej states that he was dizzy for a few seconds after the accident and then got out and exchanged details with the other driver before driving home.

4. After the accident, Mr Metlej’s relative drove him to Canterbury Hospital for review. Mr Metlej was complaining of neck pain.

5. He underwent a chest X-ray and was diagnosed with a whiplash injury to his cervical spine before being discharged home that evening.

6. His Local Medical Officer, Dr Yuan at Earlwood examined Mr Metlej and referred him for an MRI investigation of the cervical spine. Mr Metlej started physiotherapy which continued for six months.

7. In regard to his right shoulder condition, his doctor referred Mr Metlej to a specialist review with Dr Dao, orthopaedic surgeon at Bankstown. Dr Dao  initially assessed him on 30 July 2020. Dr Dao recommended a subacromial bursal injection at the right shoulder. Dr Dao later recommended operative intervention.

8. Mr Metlej was admitted to Strathfield Private Hospital on 14 December 2020 to undergo arthroscopic debridement at the right shoulder with decompression of a paralabral cyst and labral repair.

9. In the post-operative period, Mr Metlej was treated with sling immobilisation then physiotherapy which continued until July 2021. He noted no improvement in his right shoulder symptoms post-operation.

10. Mr Metlej currently uses Panadol analgesic medication.

11. Mr Metlej noted ulnar nerve symptoms at his right forearm and hand one month after the accident. He was referred for physiotherapy. Dr Dao reviewed Mr Metlej and recommended operative intervention.

12. He was admitted to Strathfield Private Hospital on 19 October 2020 to undergo right ulnar nerve decompression and right thumb trigger release. His symptoms did not improve after this procedure.

Details of any relevant injuries or conditions sustained since the motor accident

1. Mr Metlej was involved in a second motor vehicle accident on 18 March 2020 as a front seat passenger with his brother in law driving. He was a front seat passenger wearing a seatbelt in a Toyota RAV4 in Punchbowl. A car collided with the rear of their stationary vehicle. Mr Metlej was wearing a neck collar at the time of this accident. Mr Leach says this incident did not aggravate his existing cervical spine problems

2. There was no previous history of right upper limb injury .

3. He has had few medical problems, apart from a right inguinal hernia repair and a need for cholesterol lowering medication. He has no known allergies.

4. He was born in Lebanon and came to Australia in 2016. He is married with children.

5. Mr Metlej presented with the following symptoms:

   (a)    At the right shoulder, he complained of a constant aching pain at the C6/7 spinous process radiating to the superior border of the right trapezius muscle, the lateral aspect of the right shoulder and the lateral aspect of the right upper arm.

   (b)    The pain was worse with driving long distances, early in the morning, on lying on his right side and is relieved by supporting his right arm with his left hand.

   (c)    He notes intermittent paraesthesia and numbness at the volar aspect of the right forearm radiating to the ulnar two fingers of his right hand.

   (d)    He complains of weakness at his right arm.

   (e)    He is right-hand dominant.

   (f)    He notes stiffness at his right shoulder, particularly with reduced range in abduction.

   (g)    At the right thumb, he notes intermittent triggering.

6. Medical Assessor Wallace made the following findings:

   (a)    He found Mr Metlej suffered an injury at his cervical spine as a result of the motor vehicle accident on 24 December 2019.

   (b)    There was no objective medical evidence that he suffered any injury at his right upper limb as a result of his motor vehicle accident.

   (c)    The mechanism of injury Mr Metlej described of a rear end collision is not consistent with being the cause of any significant right upper limb pathology because his right upper limb would be supported by his seatbelt and the driver’s seat of the motor vehicle accident from any trauma sustained as a result of a rear impact.

   (d)    His current right upper limb symptoms are due to pathology unrelated to the index motor vehicle accident of 24 December 2019.

7. In particular, Medical Assessor Wallace noted that Mr Metlej did not complain of any right upper limb symptoms at the time of initial medical review after the motor vehicle accident either at Canterbury Hospital or with his Local Medical Officer over the following three weeks.

Disputes and issues identified by the parties

The facts and issues that the parties agree:

1. The parties agree the right ulnar nerve damage and right shoulder injury (rotator cuff tear) is in dispute.

The facts and issues that continue to be in dispute

1. Whether the right ulnar nerve damage and right shoulder injury (rotator cuff tear) are causally related to the subject motor vehicle accident or not.

2. The insurer contends that the right ulnar nerve damage and right shoulder injury (rotator cuff tear) are not causally related to the subject motor vehicle accident and therefore does not require a minor injury assessment.

3. The claimant contends that the right ulnar nerve damage and right shoulder injury (rotator cuff tear) are causally related to the subject motor vehicle accident, and both constitute non-minor injuries.

4. In the event the panel determines the right ulnar nerve damage and right shoulder injury (rotator cuff tear) are found to be causally related to the subject motor vehicle accident then the insurer contends that a determination is required as to whether these injuries fall within the definition of either a minor injury or non-minor injury.

Documentation

1. The Review Panel considered the following documentation:

   ·      Medical Assessor Wallace’s certificate dated 2 November 2021.

   ·      The claimant’s bundled documents marked AD 2, which included submissions and documents previously served, relied upon in the review and the original assessment.

   ·      The insurer’s bundled documents marked AD 3, which included the original minor injury decision, the internal dispute review outcome, the claimant’s clinical notes and correspondence from treating practitioners and submissions.

   ·      The Proper Officer’s reasons issued on 18 March 2021 referring this matter to a Review Panel.

Additional evidence not before the Medical Assessor

1. Dr Pope’s report dated 24 November 2021

Submissions

Claimant’s submissions

Causation

1. Medical Assessor Wallace did not have to find that the motor vehicle accident was the sole cause of the injury, it is sufficient that the motor vehicle accident is a contributing cause of the right upper extremity injury.

2. At page 6 paragraph 21 of his certificate, Medical Assessor Wallace noted as follows:

   “The mechanism of injury he describes of a rear end collision is not consistent with being the (Claimant’s emphasis) cause of any significant right upper limb pathology in view of the fact that his right upper limb would be supported by his seatbelt and the driver’s seat of the motor vehicle accident (sic) from any trauma sustained as a result of a rear impact.

   His current right upper limb symptoms are due to pathology unrelated to the index motor vehicle accident of 24 December 2019.

   In particular, I note that Mr Metlej did not complain of any right upper limb symptoms at the time of initial medical review after the index motor vehicle accident either at Canterbury Hospital or with his Local Medical Officer over the following 3 weeks”.

3. Medical Assessor Wallace was not qualified to give his opinion in relation to the support offered by the seatbelt and the driver’s seat of the motor vehicle accident [sic] as Medical Assessor Wallace is a medically qualified doctor and not a biomechanical engineer.

4. Relying on the Court of Appeal decision of Makita[11], Heydon JA warned against experts giving opinions on matters outside of their expertise. In this case, Medical Assessor Wallace was not qualified to make findings based on his opinions about the protection that a seatbelt and car seat could provide.

   [11] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 revised - 17/09/2001.

5. Further, Medical Assessor Wallace failed to provide a path of reasoning in coming to that decision

6. In relation to Mr Metlej not having complained of any right upper limb symptoms in the three weeks following the accident, he submits that Assessor Wallace failed to take into consideration relevant medical entries in clinical records by the treating general practitioner – Dr Yuan and failed to take into consideration the clinical records of the treating physiotherapist which were provided to Medical Assessor Wallace.

7. Although Medical Assessor Wallace had Dr Yuan’s clinical notes he referred to the complaints about cervical spinal symptoms but ignored the complaints about the right upper limb injuries.

8. Medical Assessor Wallace also did not refer to the treating physiotherapist’s records, which noted symptoms projecting into Mr Metlej’s fingers, as early as 24 January 2020.

9. Medical Assessor Wallace’s adverse findings on causation came about because he failed to properly analyse and consider contemporaneous clinical records.

10. Medical Assessor Wallace put too much emphasis on the lack of immediate complaints about the right upper limb to support his finding on causation. Mr Metlej refers to the Supreme Court decision of Bugat v Fox [2014] NSWSC 888 per Justice Hume, which warns against only relying on the presence or absence of contemporaneous evidence to determine causation where other evidence is available.

Right arm (nerve) injury

1. If Medical Assessor Wallace had noticed the almost contemporaneous complaints to Dr Yuan he could have found Mr Metlej suffered an ulnar nerve injury in the subject accident.

Right shoulder

1. Mr Metlej has complained of neck, right arm and shoulder symptomology — see Dr Yuan's clinical note dated 24 January 2020 at page 74 of his evidence bundle.

2. Dr Yuan's report dated 24 June 2020 notes ongoing right shoulder pain attributed to the accident — page 86 insurer's bundle.

3. The right shoulder ultrasound conducted on 26 June 2020 showed rotator cuff tendons tendinosis and moderate subacromial/subdeltoid bursitis — page 67 claimant's bundle.

4. The insurer's internal review decision dated 1 July 2020 does not take issue with right shoulder injury causation. This is confirmed in the insurer's submissions dated 23 June July 2020. There was no medical dispute in respect of the right shoulder treatment either.

5. Dr Yuan referred Mr Metlej to Dr Alan Dao, orthopaedic surgeon on 15 July 2020 to examine his right shoulder pain, among other things.

6. Dr Dao found Mr Metlej had right shoulder impingement symptoms and bicep pathology. Dr Dao ordered two MRI. The second MRI on 5 August 2020 found a transverse tear across the base of the glenoid labrum — page 18 Dr Dao's clinical notes.

7. Dr Dao referred Mr Metlej for guided cortisone injections in the right shoulder, which did not relieve his symptoms.

8. Dr Dao performed an arthroscopic decompression and rotator cuff repair on for 14 December 2020 — Dr Dao's notes page 57.

9. Medical Assessor Wallace examined Mr Metlej on 23 February 2021. Medical Assessor Wallace's certificate dated 9 March 2021 stated that he could not examine the right shoulder because of the recent surgery – that certificate was not provided to the panel.

10. When Medical Assessor Wallace re-examined Mr Metlej for the purpose of his final assessment he noted that the scan 5 August 2020 showed a transverse tear across the base of the glenoid labrum from 3 o'clock to 8 o'clock.

11. Medical Assessor Wallace rejected the nexus between the accident and Mr Metlej's right upper limb injuries because the Medical Assessor opined that the car seatbelt and the driver's seat (would protect him) from any trauma sustained as a result of a rear impact.

12. Mr Metlej relies on his submissions above, in respect of causation for the right arm (nerve) injury and the shoulder injury.

13. If the insurer now disputes causation for the right shoulder then Mr Metlej refers to his complaint to his general practitioner within a month of the accident, and Dr Dao treating Mr Metlej in the context of the accident.

14. There were no pre-existing right upper limb injuries or symptoms.

15. As a right shoulder tear was identified with the MRI on 5 August 2020 Mr Metlej submits that his right shoulder injury is non-minor.

REVIEW PANEL FINDINGS

Causation

1. The Guidelines confirm 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.

2. 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.

3. In Peet v NRMA Insurance Ltd[12] the Court reviewed a number of Supreme Court decisions including Justice Campbell’s observations in Owen v Motor Accidents Authority of NSW[13] who stated that it was “well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.

   [12] [2015] NSWSC 558

   [13] [2012] NSWSC 560

4. In the recent case of Hunter v Insurance Australia Ltd[14] the Court observed (at paragraph 16) that a Review Panel was obliged to apply the Guidelines which incorporated “common law principles of causation” - .

Right ulnar nerve damage

[14] [2021] NSWSC 623

1. The parties agree that the right ulnar nerve damage and the right shoulder injury are in dispute. The problem is the narrow referral to Medical Assessor Wallace.

2. The assessment referral only sought to resolve whether the right upper extremity (nerve) was minor or non- minor.

3. The panel confirms that although it appears the only body part referred to Medical Assessor Wallace for assessment was the right upper extremity (nerve), the references to a frank injury to the right shoulder were also related to the accident.

4. The panel agrees with Medical Assessor Wallace’s certificate on the right ulnar nerve damage, because taking into consideration the right ulnar nerve may have been mildly depressed due to swelling of the arm and the nerve conduction study suggested minor ulna neuropathy at the right elbow—the subsequent ultrasound of the elbow did not show any swelling or anterior subluxation of the ulna nerve at the elbow, and no evidence of laceration, tear or avulsion. Accordingly the ulnar nerve remains a non-minor injury.

5. Overshadowing the ulnar nerve though is neurosurgeon Dr Pope’s view that there was foraminal stenosis in the cervical spine and the MRI taken initially on 2 January 2020 showed moderate left sided foraminal stenosis with potential irritation of the left C7 nerve root.

6. The subsequent MRI of the cervical spine on 4 February 2020 did not find any evidence which would support paraesthesia in a right C7/8 distribution which is similar to that distally with respect to an ulnar neuropathy of the nerve.

7. The right ulnar nerve damage appears to be one of soft tissue injury with swelling of the arm which led to mild ulnar neuropathy and there has been no improvement since the ulnar nerve decompression.

Right shoulder injury

1. Regarding the right shoulder, there is MRI evidence dated 5 August 2020 of a transverse tear across the base of the glenoid labrum and this constitutes a non-minor injury.

2. It is probable that on impact when the claimant's vehicle was rear ended that he sustained a seat belt injury and as such a labral tear is not inconsistent with the pain in the right shoulder which the claimant reported to his general practitioner earlier. 

Conclusion

1. In summary there is objective medical evidence that the claimant suffered a non-minor injury to his right shoulder with labral tear and there is objective medical evidence that the mini ulnar neuropathy was of a minor nature as there was no direct laceration, tear or avulsion of the nerve at the right elbow, although there had been symptoms of mild ulnar neuritis with paraesthesia to the little and ring fingers and nerve conduction studies showing mild ulnar neuropathy at the right elbow.

2. The panel agrees the right shoulder injury with labral tear is causally related to the seatbelt injury sustained in the subject motor vehicle accident when his vehicle was rear ended, the injury occurring on impact and that the ulnar nerve damage was secondary to generalised swelling of the arm which created a mild ulnar neuritis which led to a neurolysis of the ulnar nerve at the elbow.

Panel decision

1. The Review Panel found that the motor accident caused the following injuries:

   ·        right ulnar nerve damage, and

   ·        right shoulder injury.

2. The Review Panel found that the motor accident did not cause the following injuries:

   ·        not applicable.

Minor injury

1. The Review Panel’s findings in relation to the minor injury are different to the findings as stated in Medical Assessor Wallace’s certificate. Medical Assessor Wallace’s certificate omitted the right shoulder injury and only assessed the right ulnar nerve damage.

2. The panel agrees that the right ulnar nerve damage was a result of a temporary compression of the right ulnar nerve, but it was not torn.

3. The panel has assessed the right shoulder injury and confirmed with objective evidence contained in an MRI of that body part dated 5 August 2020 demonstrating a transverse tear across the base of the glenoid labrum and this constitutes a non-minor injury.

4. Accordingly, the Review Panel has determined that Medical Assessor Wallace’s certificate dated 2 November 2020 one is to be revoked and will issue a new minor injury certificate.