Allianz Australia Insurance Limited v Chen
[2023] NSWPICMP 392
•15 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Chen [2023] NSWPICMP 392 |
| CLAIMANT: | Biyun Chen |
INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Mohammed Assem |
MEDICAL ASSESSOR: | Tania Rogers |
| DATE OF DECISION: | 15 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - The claimant suffered injury in a motor vehicle accident on 3 December 2020; assessment of threshold injury; Medical Assessor (MA) McGrath certified the lumbar spine (back) radiculopathy was a non-threshold injury; pre-accident history of back pain; Held – claimant had pre-accident back pain but no evidence of radicular pain; at time of examination Panel found no evidence of radiculopathy; as per David v Allianz Australia Ltd the definition of threshold injury can be satisfied at any point following the accident; Panel satisfied MA had objective clinical evidence of L5/S1 radiculopathy at the time of his assessment; certificate of MA confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel affirms the certificate of Medical Assessor David McGrath dated 22 October 2022. |
STATEMENT OF REASONS
INTRODUCTION
On 3 December 2020 Ms Biyun Chen (the claimant) was driving her vehicle to work. She was stopped at a red light when her vehicle was forcefully hit by a truck pushing her vehicle into the intersection (the accident).
Ms Chen’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). The MAI Act provides for a scheme of statutory benefits and compensation by way of lump sum common law damages for persons injured in motor vehicle accidents in New South Wales. Under the MAI Act as it pertains to Ms Chen’s claim statutory benefits cease 26 weeks after the accident and there is no entitlement to common law damages if the only injuries sustained by the injured person in the accident are “threshold” injuries.
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Chen under the MAI Act.
Medical Assessor McGrath assessed the claimant on 12 October 2022 and issued a certificate dated 22 October 2022 in which he certified the lumbar spine (back) radiculopathy was a non-minor (non-threshold) injury for the purposes of the MAI Act.
As a result, Ms Chen has an ongoing entitlement to ongoing statutory payments under the MAI Act.
The insurer has sought a review of the certificate of Medical Assessor McGrath.
BACKGROUND
Ms Chen is 52 years of age.
On 28 January 2021 Ms Chen lodged an Application for personal injury benefits.
On 18 May 2021 the insurer determined that Ms Chen had sustained a minor (threshold) injury and denied liability for statutory benefits beyond 26 weeks after the accident.
On 29 June 2021 Ms Chen sought an internal review of the minor (threshold) injury decision and on 27 July 2021 the insurer affirmed the determination that the claimant’s injuries met the definition of a minor (threshold) injury.
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 threshold injury for the purposes of the Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
THRESHOLD INJURY- STATUTORY PROVISIONS
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”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 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.”
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
(b) positive sciatic nerve root tension signs
(c) muscle atrophy and/or decreased limb circumference
(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.”
In Briggs v IAG Limited trading as NRMA Insurance[2] his Honour Justice Wright stated at [35]:
[2] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“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
6.5An 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.
6.6Causation 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.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
ASSESSMENT UNDER REVIEW
The minor injury dispute was referred to Medical Assessor David McGrath. The following injury was referred for assessment:
· lumbar spine (back) radiculopathy.
Medical Assessor McGrath assessed the claimant on 12 October 2022 and issued a certificate dated 22 October 2022 in which he certified the lumbar spine (back) radiculopathy was a non-minor injury for the purposes of the MAI Act.[3]
[3] AD2 p90.
Medical Assessor McGrath reported in 2018 Ms Chen developed some low grade back pain and underwent an X-ray and some irregular massage. The back pain did not prevent her from continuing to work as a food packer. It was reported at the time of the accident she experienced chest and lumbar spinal pains and neck pain. About three weeks later she noticed leg and foot numbness. She struggled on at work.
It was also reported that on 25 January 2022 at work a long board fell on top of Ms Chen’s head from the ceiling, causing headache, dizziness and left eye blurriness (the work accident). The minor pre-existing neck pain worsened. Ms Chen submitted a workers compensation claim and had not returned to work.
Medical Assessor McGrath reported Ms Chen outlined her pain on a body diagram distinguishing the accident caused injury from the work place injury. She reported as a result of the accident she had pains at the base of the neck, mid thoracic region and lower lumbar spine, and pain and numbness over the lateral aspect and sole of the left foot.
On examination Medical Assessor McGrath found Ms Chen satisfied the criteria for radiculopathy into the left leg. He noted a mildly restricted range of motion of the lumbar spine in lateral flexion and flexion/extension. He reported:
“She has reduced straight leg raising on the left to around 60° with the onset of pain and discomfort into the left foot. Straight leg raising on the right was normal. The dural tension test was confirmed with a slump test in the seated position. She had the same sensory disturbance into the left foot.
Mrs Chen has reduced tendon reflexes at the Achilles and the plantar reflex. This was tested on several occasions and could not be elicited. At the very least, they were highly impaired and diminished compared to the right. She has loss of sensation over the S1 distribution of the foot. The loss appeared to be slightly patchy in parts but without contribution from L5. Mrs Chen has mild muscle wasting on the left. Calf circumference was measured at 35cm, 36cm for the left and right calves respectively.”He noted Dr Wu found a normal neurological examination and diagnosed soft tissue injuries to the spine on 21 January 2021.
Medical Assessor McGrath reported his examination confirmed an S1 radiculopathy in the left leg consistent with CT findings of a disc osteophyte complex at the L5/S1 level.
REVIEW PROCEDURE
The insurer lodged an application for review of the assessment of Medical Assessor McGrath on 9 November 2022 within 28 days of the date on which the certificate of Medical Assessor McGrath was made available to the parties.
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).[4]
[4] AD2 p 9.
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 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). [5] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[5] 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.[6]
[6] 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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
EVIDENCE BEFORE THE REVIEW PANEL
The insurer uploaded to the portal an indexed bundle of documents marked AD2 paginated from pages 1 to 101.
The claimant uploaded to the portal an indexed bundle of documents marked AD3 paginated from pages 1 to 153.
On 23 March 2023 the Panel directed the claimant by close of business 28 April 2023 to upload to the portal the following:
· any available photographs of the damaged vehicles involved in the accident including the photographs referred to by Medical Assessor McGrath in his certificate, and
· the clinical records of all treating general practitioners consulted by the claimant for the period two years pre-accident to date. In the event the only general practice consulted by the claimant is the Rowe St Medical Centre, the claimant is directed to provide a copy of the clinical notes from 1 January 2021 to date.
The claimant uploaded an Application to Admit Late Documents (AALD) dated 6 July 2023 with the following attached documents:
· photographs of the vehicle involved in the accident;
· clinical notes from Auburn Healthcare Centre;
· clinical notes from Rowe Street Medical Centre;
· clinical notes of Dr Alexander Woo;
· clinical notes from Lidcombe Medical Centre;
· clinical notes from Medicentral
· section 78 Notice from Icare dated 17 October 2022;
· report of Dr Dias dated 23 May 2023, and
· whole person impairment report of Dr Dias dated 23 May 2023.
The Panel does not propose to consider the reports of Dr Dias dated 23 May 2023 where they have been furnished late and where the insurer has not had an opportunity to address the content of those reports.
The claimant is now 52 years of age and was 49 years of age at the time of the accident on
3 December 2020.
Police report
The police report refers to the accident as a minor traffic crash but also notes it was “tow away only”.[8] Ms Chen was driving a Toyota Camry sedan and the other vehicle was a Hino truck.
[8] AD2 p 14.
Photographs
Photographs of the claimant’s Toyota Camry show significant damage to the rear of the vehicle including the destruction of the rear window.
Application for personal injury benefits
Ms Chen completed an application dated 28 January 2021 in which she reported the following injuries:
·“back pain – spine
·Pain and numbness on the left leg and left foot (heel & toes)
·Chest pain”.[9]
Treating medical evidence
[9] AD3 p 144.
Clinical records of Auburn Healthcare Centre
The first relevant entry appears on 9 February 2014 when Dr Xue Song Han recorded:
“back pain for a while, nil obvious injury
Reason for visit:
Back pain lumbosacral
O/e:
tender at L5/S1 level,
nil neurological deficit.
SLR: neg.”[10]
[10] AALD p 18.
On 13 February 2014 Dr Jay Lin recorded:
“lower back pain
responded to TENS last week
some stiffness
able to flex back with minimal discomfort
no lower limb sx
did not taken any meds.”[11]
[11] AALD p 19.
Ms Chen continued to attend for treatment at this medical centre for unrelated complaints until 9 May 2021.
Clinical records of Rowe St Medical Centre[12]
[12] AD3 p 14.
The first consultation was on 11 September 2014, but the first relevant entry occurs on
29 May 2018 when Ms Chen consulted Dr Lee who reported:“Apparently was in the sun in 2015 and sustained sunburn to lower legs and since then apparently been c/o pain in distal leg towards ankle region bilat on shins when palpated. Able to walk. Seen pain/neurology spec In China and no diagnosis found so far. XR showed OA changes in spine and scoliosis in lower back.”
Ms Chen was referred to Dr Mark Thieben.[13] The referral dated 29 May 2018 states:
“Apparently was in the sun in 2015 and sustained sunburn to lower legs and since then apparently been c/o pain in distal leg towards ankle region bilat and on shins when palpated. Able to walk.
Exam skin normal DP pulses normal. Skin warm.
Tender to palpation along both shins.”
[13] AD 3 p 45.
The next relevant entry is on 7 January 2021 when Dr Vivian Wu reported:
“Surgery consultation
Back pain and nausea
MVA 3/12/2020”
Dr Wu referred Ms Chen for an X-ray of the thoracic and lumbar spine and prescribed Voltaren Rapid Tablet.
On 12 January 2021 Dr Tang reported:
“still c/o LBP
CT spine = mild kyphosis only
Some improvement with NSAIDs”.
On 21 January 2021 Dr Wu reported Ms Chen was still not well and referred her to see
Dr Alexander Woo.Dr Vivian Wu issued a Certificate of capacity/certificate of fitness dated 28 January 2021 with a diagnosis of “chest and back soft tissue injury”.[14] Subsequent certificates diagnose “chest wall, back and leg soft tissue injury”.
[14] AD 3 p 23.
On 25 February 2021 Dr Wu recorded “left foot and leg and back pain cont”, on
8 March 2021 Dr Wu reported “back pain cont, dizziness and chest pain …” and on 29 March 2021 Dr Wu recorded “bcak [sic] and foot pain cont …”.On 25 January 2021 Dr Wu reported left foot and leg and back pain continued.[15] Further complaints of back pain were reported on 8 March 2021, 18 March 2021, 29 March 2021,
3 May 2021, 24 May 2021, 4 June 2021, and 12 July 2021.[15] AALD p 104.
On 30 June 2022 Dr Wu reported back and foot pain still on and off.[16]
[16] AALD p 202.
Ms Chen saw physiotherapist Joey Wing Yee Kwan on 4 August 2022 with complaints of neck and shoulder pain and headache, back pain, left leg numbness and foot, reportedly worse recently.[17]
[17] AALD p 201.
Clinical records of Lidcombe Medical & Health Centre
The records commence on 7 February 2019. On 17 November 2020 Dr Tran reported:
“C/o LBP 10/7 ago, ?injury.
Pain inc w body movts.
Had acupRx at a herbalist w some relief.
No radiation to legs.
…
Examination
Gait; normal
T/L spine; slightly reduced forward flexion, otherwise full ROM.
No sig tenderness elicited.”[18]
[18] AALD p 319.
The next consultations on 29 December 2020 and on 31 December 2020 were in relation to a facial rash.[19]
[19] AALD p 319.
Clinical records of Medicentral 501 George Street
The first consultation occurred on 7 March 2022 when Dr Li reported the claimant had sustained a head injury on 25 January 2022 when a plastic plant hit her left head whilst reaching.[20] She reported she had suffered left sided headache, left side vision problem, short term memory loss, dizziness and vomiting since.
[20] AALD p 364.
Ms Chen attended regular consultation with Dr Li in relation to the workplace injury including neck pain, headache, dizziness, tinnitus and eye discomfort until 25 October 2022.
On 31 October 2022 Dr Li agreed to take on the claimant’s treatment arising out of the accident.
Nathan Tong, Betta Physiotherapy
In an Allied health recovery request (AHRR) dated 4 March 2021 it was reported Ms Chen complained of constant pan over her lumbar spine with pain and tingling sensation radiating down into her left lower limb.[21] He diagnosed lumbar spine radiculopathy at L5/S1 and reported:
“Observation: increased lumbar lordosis and thoracic kyphosis.
Palpation: tenderness over T11/T12 and L5/S1 spinous processes and left sacroiliac joint. Tightness in her left back extensors, hamstrings, ITB and calves.
Active range of motion: 2/3 of full range limited by pain and tightness.
Slump test (left): pain and tightness in lumbar spine and posterior left lower limb.”
[21] AD2 p 18.
In an AHRR dated 1 May 2021 Mr Tong reported complaints of ongoing pain over the left lumbar spine and pain and swelling in her left calf and heel pain which wakes her up at night.[22] He reported symptoms in these regions were aggravated by prolonged sitting and with lifting. He reported:
“Observation: increased lumbar lordosis and thoracic kyphosis
Palpation: tenderness over bilateral erector spinae and quadratus lumborum, left worse than right.
Active range of motion: 3/4 of full range limited by pam and tightness at end of range
Slump test (left) pain in lower back and lateral aspect of left shin.”
[22] AD2 p 32.
Dr Alexander Woo, orthopaedic surgeon
Dr Woo saw Ms Chen on 27 January 2021.[23] He reported Ms Chen experienced chest and back pain initially after the accident and developed left leg pain and numbness three weeks later. He reported:
“On examination, there was tenderness in the thoracic and lumbar spine. Back movement was restricted to ¾ normal. SLR was 90º on both sides. There was no sensory or motor loss in both lower limbs. Tendon reflexes were normal in both lower limbs.”
[23] AD2 p 26.
Dr Woo reported the CT scan of the lumbar spine did not show any fractures or neural compromise. He diagnosed soft tissue injury to the lumbar spine.
Imaging
X-ray of the thoracic and lumbar spine, 1 May 2018 reported:
“Gentle curvature of the thoracolumbar junction to the left. Low-grade degenerative spondylosis within the thoracic and lumbar spine”.[24]
[24] AD3 p 27.
CT scan of the thoracolumbar spine, dated 7 January 2021 reported:
“Normal alignment of lumbar lordosis. No vertebral compression or pars defect. There is no spondylolisthesis.
Mild facet hypertrophy at L3/4 and L4/5. There is mild-to-moderate facet osteoarthritis at L5/S1. No significant foraminal stenosis. Prominent left extraforaminal disc/osteophyte complex at L5/S1 abuts the exiting left L5 nerve root without significant mass effect.”[25]
SUBMISSIONS
[25] AD3 p 20.
Insurer’s submissions
The insurer provided submissions 9 November 2022 addressing the assessment of Medical Assessor McGrath.[26] The insurer submitted Medical Assessor McGrath failed to engage with the consultation note in the Rowe Street Medical Records of 29 May 2018 or otherwise refer to the clinical records provided by the parties. The insurer submits the lower limb symptoms were not related to the accident.
[26] AD2 p 83.
The insurer also questions the self-report of the claimant that her lower limb symptoms emerged three weeks post-accident noting the Rowe Street Medical Centre records show when the claimant first attended on her GP on 7 January 2021 (five weeks post-accident) she reported “back pain and nausea” but made no mention of lower limb symptoms.
The insurer also notes Medical Assessor McGrath’s findings on examination were markedly different from the findings reported by Dr Woo on 27 January 2021 (seven weeks post-accident).
The insurer noted Medical Assessor McGrath reported “loss of sensation over the S1 distribution of the foot. The loss appeared to be slightly patchy in parts but without contribution from L5”. The insurer submits that patchy (i.e. inconsistently distributed) sensory loss did not satisfy the criteria for “strict anatomic distribution” required by table 6.8 of the Guidelines.
The insurer provided further submissions dated 4 August 2023. The insurer notes the claimant has conceded in her further submissions that prior to the accident she was “working on average five days a week as a fruit packer on modified duties avoiding packing and lifting”.
Accordingly, the insurer submits that the claimant’s assertion that she had not experienced any symptoms of lower back pain in the approximate two year period preceding the accident is incorrect.
The insurer notes the claimant sought medical attention for a lumbar spine injury on
17 November 2020 at Lidcombe Medical & Health Care Centre. The insurer submits it is unclear why the claimant refuted any lower back symptomology since approximately mid 2018 when it seems she sustained an injury in the week leading up to the accident.Accordingly, the insurer submits the assumption that the claimant’s lower back pain had been asymptomatic prior to the accident was not correct and the conclusions drawn by Medical Assessor McGrath are made in reliance on an incorrect assumption.
The insurer submits the available medical records highlight that:
· in the weeks prior to the motor vehicle accident the claimant experienced a lower back injury for which she sought medical treatment;
· the claimant had long-standing historical complaints of back injury including pre-existing osteoarthritic degeneration and scoliosis;
· the claimant had symptoms of radiating pain to her lower limbs as early as 2015 for which she sought treatment from a pain/neurology specialist in China as well as GP consultation in Australia in 2018;
· the claimant’s self-reporting that her lower limb symptoms emerged three weeks post-accident is inconsistent with the available clinical records. Notably, records from Rowe Street Medical Centre confirm that the claimant first attended upon her GP on 7 January2021 (5 weeks post-accident), at which time she reported ‘back pain and nausea’. There was no mention of lower limb symptoms at this consultation, and
· the claimant’s submissions with respect to her history of back pain are inconsistent with the available medical evidence.
The insurer notes the claimant’s self-reporting of her pre, and post-accident medical history has proved incongruous with the available medical records, making the claimant an unreliable witness to her own medical history. The insurer submits the Panel should rely on the objective medical records in making a determination.
Having regard to the conclusion reached by the Panel and the basis of that conclusion the Panel does not consider it would be assisted by further records and does not propose to accede to the insurer’s request for a direction to be issued by the Commission for the following:
· letter of instruction(s) to Dr Uthum Dias;
· reports of Dr Grant Walker dated 30 June 2022 and 14 September 2022;
· records of Lidcombe Medical & Health Centre, and
· records of Rapid Access Neurology Clinic, St Leonards, including Dr Mark Thieven.
Claimant’s submissions
The claimant provided submissions dated 28 November 2022.[27]
[27] AD3 p2.
The claimant refers to the clinical entry of Dr Wu of 29 May 2018 where he refers to pain in the lower limbs “when palpated”. The claimant submits that the reference to pain on palpation does not equate to pain radiating to the lower limbs.
The claimant also notes there are no other entries pre-dating the accident which refer to back pain, radiating pain symptoms or radiating complaints.
The claimant submits the entries of the Rowe Street Medical Centre on 7 January 2021,
12 January 2021 and 21 January 2021 do not identify when the claimant first experienced radicular symptoms post-accident and therefore, there is no basis for the insurer to submit that the claimant’s self-reporting that her lower limb symptoms emerged three weeks post-accident is inconsistent with the available clinical records. It is submitted that Medical Assessor McGrath correctly considered the history that the claimant experienced the onset of radicular symptoms “within a few weeks of the accident”.The claimant submits the minor injury decision must be based on a clinical examination and Medical Assessor McGrath identified his examination findings including:
· reduced straight leg raising on the left to around 60 with the onset of pain and discomfort into the left foot;
· dural tension test was confirmed with a slump test;
· reduced tendon reflexes at the Achilles and the plantar reflex, and
· mild muscle wasting on the left.
The Medical Assessor commented at page 4 of the Certificate:
“She has loss of sensation over the S1 distribution of the foot. The loss appeared to be slightly patchy in parts but without contribution from L5.”
The claimant submits the insurer seeks to make something of the Medical Assessor’s choice of the word “patchy”. The definition of weakness and loss of sensation indicates sensory loss must “be in a strict anatomic distribution, ie follow dermatomal patterns”. The insurer submits that “patchy” equates to “inconsistently distributed”. This is disputed by the claimant. The insurer is “reading” its own definitions into the Certificate. The claimant submits that the Medical Assessor found “loss of sensation over the S1 distribution of the foot” and this is sufficient to meet one of the clinical signs of radiculopathy.
The claimant submits to accede to the submissions by the insurer it would be necessary to ignore the balance of the clinical signs found by the Medical Assessor.
The claimant provided further submissions at the direction of the Panel.[28] The claimant submits whilst she had pre-accident back pain symptoms, she had never experienced radicular symptoms prior to the accident.
[28] AALD 1.
The claimant notes on 9 February 2014 Dr Han specifically recorded “nil neurological deficit” and on 13 February 2014 Dr Jay recorded “no lower limb sx”. The claimant notes the X-ray of 1 May 2018 merely showed a gentle curvature of the thoracolumbar junction to the left and low grade degenerative spondylosis of the thoracic and lumbar spine. The claimant notes when the claimant attended Dr Tran on 17 November 2020 it was reported there was no radiation to the legs, and on examination there was a “normal T/L spine” and “no signal tenderness was elicited”.
It is submitted the claimant denies seeing any pain or neurology specialists in China and suggests the record was created due to a misunderstanding.
The claimant concedes at the time of the accident on 3 December 2020 she was working on average five days a week as a fruit packer on modified duties avoiding packing and lifting.
The claimant also refers to the photos of her Toyota Camry sedan depicting the damage to the rear of the vehicle including the complete shattering of the rear windshield. The claimant asserts her vehicle was written off.
THE MEDICAL EXAMINATION
Clinical examination
Ms Chen attended as arranged for examination on 30 May 2023. She was examined by Medical Assessor Rogers and Medical Assessor Assem. Ms Mu-Si Chen, official Mandarin speaking interpreter CPN3UY49F was present throughout the assessment.
Pre-accident medical history and relevant personal details
Ms Chen is 52-years old and the mother of two adult children. Her spouse is a professional chef by trade. She is originally from the southern part of China, where she worked in the cosmetics industry, and later in a shoe manufacturing company progressing to a supervisory role. She immigrated to Australia in 2003 and worked in a food packing company at Orchard Hills for approximately 20 years.
In 2015, Ms Chen was sunbaking in Bondi Beach causing a minor burn to her legs. She travelled to China to look after her father but did not receive any treatment for her leg pain. In May 2019, she had an operation for varicose veins involving both legs.
The Panel brought to her attention that on 29 May 2018, Dr Weng Lee documented,
“apparently was in the sun in 2015 and sustained sunburn to lower legs and since then apparently been c/o pain in distal leg towards ankle region bilat on shins when palpated. Able to walk. Seen pain/neurology spec In China and no diagnosis found so far. XR showed OA changes in spine and scoliosis in lower back.”
She has no recollection of a consultation with Dr Weng Lee. She did recall having lower back discomfort due to her work activities and undergoing radiological imaging of her lumbar spine that was treated with remedial massage. She took time off work intermittently after that injury before returning to work on suitable duties at reduced hours. She was unable to resume her pre-injury duties after that time. She disclosed that she had a workers compensation claim with Allianz Insurance for her back injury at the time of the motor vehicle accident. She stated her symptoms after the accident were different as pre accident there was no numbness involving her left foot.
On 25 January 2022 whilst at work a long board from the ceiling inadvertently fell onto her head, causing an immediate onset of headache and dizziness. In addition to these symptoms, she also developed blurriness in her left eye. The accident exacerbated her pre-existing neck pain that was previously minor in severity. She submitted a workers' compensation claim and has remained off work until the present time.
History of the accident
On the morning of December 13, 2020, while on her way to work at around 6.15am,
Ms Chen was involved in the accident. Her car was rear-ended by a truck at a red light, pushing her car into the intersection due to the force of the impact. The damage to her vehicle was severe, rendering it undriveable, and the truck driver fled the scene without providing any details. Although a police car attended the accident site, no ambulance was present. Her vehicle was towed away and later written off for insurance purposes. She states that her chest collided into the steering wheel. She also reported a soft tissue injury to her neck and lower back.Ms Chen returned to work the following day, motivated by the fear of job loss. When questioned about the delay in seeking medical attention, she stated “I thought I was fine”. She stated that the driver of the offending vehicle refused to exchange details.
The numbness in her left leg did not manifest until roughly three weeks post-accident prompting her to seek medical attention. She received physiotherapy treatment and consulted Dr Woo, orthopaedic surgeon. A CT scan of the thoracolumbar spine on 7 January 2021 revealed a prominent left extraforaminal disc/osteophyte complex at L5/S1 abutting the exiting left L5 nerve root without significant mass effect.
Current symptoms
Ms Chen complains of constant lower back discomfort radiating down her left leg. In 2021, her left leg was weak requiring her to use her hand to lift it up into the vehicle.
Her symptoms are worse when bending or squatting. There is constant numbness involving the plantar surface of her left foot and all her toes.
Present treatment
Ms Chen currently takes Mobic, Endep and Lyrica.
Examination
Ms Chen appeared well and in no apparent distress. She was cooperative during the examination. She was informed at the time of the examination, not to engage in any manoeuvre beyond what she could tolerate, or which may cause harm or injury. Her height was 164 cm and she weighed approximately
60 kg. She sat comfortably throughout the interview but ambulated with a slight limp.
Lumbar spine (lumbosacral)
There was generalised tenderness on palpation but no muscle guarding or spasms. Forward flexion was 40 degrees. She declined to attempt extension due to pain. Lateral flexion and rotation were symmetrically reduced. Trendelenburg sign was negative.
| REFLEX | LEFT | RIGHT |
| KNEE JERK | Reduced | Reduced |
| ANKLE JERK | Reduced | Reduced |
Sensation was reduced over the dorsum of her left foot, all of the toes and variable sensory loss at the plantar surface of her left foot. Sensation was also globally reduced over her left leg in a global distribution. Strength was globally reduced.
MUSCLE ATROPHY:
| THIGH | LEFT = RIGHT |
| CALF | LEFT = RIGHT |
No unilateral muscle atrophy was present. Straight leg raising (SLR) was inconsistent. She reported a positive response, meaning she felt a reproduction of her sensory symptoms (likely numbness, tingling, or pain) in her left heel during the test. This would typically indicate nerve root irritation.
However, her symptoms worsened with knee flexion, which is not the expected response in a typical positive SLR test. Normally, bending the knee during a SLR test (which effectively slackens the sciatic nerve) would reduce or alleviate the pain if it were due to nerve root irritation. The fact that her symptoms worsened with knee flexion suggests that her current lower limb symptoms might not be due to classic nerve root compression.
Comments on consistency
The neurological findings in her lower extremities were inconsistent. There was no objective evidence of radiculopathy corresponding to a specific nerve root distribution.
DIAGNOSIS AND REASONS
Ms Biyun Chen, who was involved in a motor accident on 3 December 2020, has lodged a claim for injuries under the MAI Act. The primary issue for consideration is the causal relationship of her lower back pain and left leg numbness to the accident, and the classification of these injuries as either threshold or non-threshold under the MAI Act.
Ms Chen was on suitable duties for a work-related injury to her back at the time of the accident but denied any radiation to her lower extremities.
Records from Auburn Healthcare Centre reveal Ms Chen sought treatment for lumbosacral back pain on 9 February 2014 and again on 13 February 2014. On both occasions there were no complaints of pain radiating to either lower limb. Ms Chen continued to attend Auburn Healthcare Centre until 9 May 2021 with no further complaints relating to back pain.
Records of Rowe St Medical Centre disclose Ms Chen experienced a minor burn on her legs from sunbathing at Bondi Beach and later sought treatment for leg pain. However, she disputes she received any further treatment for this leg pain while in China as suggested by Dr Weng Lee on 29 May 2018.
During that consultation Dr Lee revealed pain in the distal leg towards the ankle region bilaterally on palpation, ostensibly since she sustained sunburn to her lower legs in 2015. Although it remains unclear whether this pain was radiating from her back noting she had undergone an X-ray of the thoracic and lumbar spine on 1 May 2018. The X-ray demonstrated a gentle curvature of the thoracolumbar junction to the left, accompanied by low-grade degenerative spondylosis within the thoracic and lumbar spine.
Records of Lidcombe Medical & Health Centre show Ms Chen consulted Dr Tran on
17 November 2020, shortly before the accident complaining of lower back pain. It was specifically reported there was “no radiation to legs” and Ms Chen had gained some relief from acupuncture treatment.Ms Chen reported discomfort in her lower back due to her work activities, necessitating some modification of these activities prior to the accident.
She was able to return to work the day after the accident. Ms Chen presented photographs showing significant damage to the rear of her vehicle. Medical records from Rowe St Medical Centre, dated 7 January 2021 (five weeks post-accident), reported back pain and nausea, but made no mention of lower limb symptoms. This contrasts with Ms Chen's claim that her leg symptoms commenced three weeks after the accident.
Ms Chen saw Dr Woo on 27 January 221 when he reported she developed left leg pain and numbness three weeks following the accident on 3 December 2020. Thereafter, there have been consistent complaints of constant lower back pain radiating into the left lower limb.
Dr Woo found no neurological abnormalities and diagnosed a soft tissue injury.A CT scan of the thoracolumbar spine, performed on 7 January 2021 (one month post-accident), identified a prominent left extraforaminal disc/osteophyte complex at L5/S1, abutting the exiting left L5 nerve root, without significant mass effect.
Upon examination, Medical Assessor Rogers reported a global reduction in strength and sensation but found no objective evidence of radiculopathy corresponding to a specific nerve root distribution. Although she does have a disc osteophyte complex potentially irritating the left L5 nerve root, there were no objective findings of radiculopathy.
This could suggest a resolution of radiculopathy since the earlier examination by Medical Assessor McGrath.
It's important to note that the symptoms of radiculopathy can evolve over time. They may intensify, spread to other areas, or lessen as the body initiates healing of the affected nerve. Conservative treatments, including physical therapy, pain and inflammation medications, and lifestyle modifications, can often help mitigate symptoms and may lead to resolution of the condition.
Whilst the Panel found some inconsistency in the claimant’s presentation during the examination and some variation in the histories provided as to her pre-accident symptoms and when she first reported lower limb symptoms following the accident, the Panel also notes Ms Chen volunteered the history of her modified work duties at the time of that examination.
The Panel find the claimant’s assertion that her symptoms after the accident were different as pre accident there was no numbness involving her left foot to be consistent with the available medical records. The Panel finds the lower back was not asymptomatic at the time of the accident but finds there were no symptoms of pain radiating to the lower limbs until after the accident. The Panel is satisfied there were no signs of radiculopathy prior to the accident and the accident aggravated the claimant’s pre-accident lower back condition.
The Panel is satisfied having regard to the more than minor circumstances of the accident and the claimant’s consistency of complaint thereafter that the accident was a contributing cause which was more than negligible to the injury sustained by the claimant to her lower back.
In line with the reasoning in David v Allianz Australia Ltd, the Panel acknowledges that the definition of a threshold injury can be satisfied at any point following the accident.[29]
[29] David v Allianz Australia Ltd [2021] NSWPICMP 227 at [84]-[104].
Based on this, the Panel is satisfied that Medical Assessor McGrath had objective clinical evidence of left L5/S1 radiculopathy at the time of his assessment.
CONCLUSION
Consequently, the Panel concludes that the claimant has sustained a non-threshold injury and affirms the certificate issued by Medical Assessor McGrath.
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