Allianz Australia Insurance Limited v Le
[2025] NSWPICMP 298
•30 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Le [2025] NSWPICMP 298 |
CLAIMANT: | Truc Phong Le |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Tai Tak Wan |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 30 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of degree of permanent impairment; prior skull fracture; pre-accident osteoarthritis; laceration to webbing between thumb and index finger; rib fracture; differing examination findings; no significant differences pre-and post-accident radiological investigations; surgery to right hand; no signs of radiculopathy; sensory loss both thumb and index finger; Held – 6% whole person impairment (WPI); MAC revoked and new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.23(1) of the Motor Accident injuries Act 2017 The Review Panel revokes the certificate of Medical Assessor James Bodel dated 1. The following injuries caused by the motor accident give rise to a permanent impairment of 6% and IS NOT GREATER THAN 10%: · cervical spine - soft tissue injury – 0%; · lumbar spine – soft tissue injury – 0%; · right lower limb knee injury – 0%; · right shoulder – 0%, and · right hand – 6%. |
STATEMENT OF REASONS
INTRODUCTION
Truc Phong Le (the claimant) is a 52-year-old man who was injured in a motor vehicle accident which occurred on 26 July 2021. Following the accident the parties determined that the claimant had sustained a non-threshold injury. The claimant sought a concession from the insurer that his injuries exceed 10% whole person impairment (WPI). The insurer, after a review, declined to make this concession and consequently the claimant lodged an Application for an Assessment of Whole Person Impairment.
The claimant was assessed by Medical Assessor Gill who had determined that the claimant had sustained psychiatric injury giving rise to a WPI of 5%. That assessment of Medical Assessor Gill was an examination on 21 June 2024 and in a certificate dated 14 August 2024 Medical Assessor Gill determined the claimant sustained an injury of 5% WPI.
The claimant was examined by Medical Assessor Bodel on 23 August 2024. In a certificate dated 28 October 2024 he determined that the claimant had sustained a WPI of 12%. The insurer sought a review of this determination and, in a decision of the President’s delegate, Tajan Baba, dated 29 November 2024 determined that there was a reasonable likelihood the decision was incorrect in a material respect. Thereafter the matter was referred to this Medical Panel.
The Panel convened on 19 March 2024 and noted that all material which the parties had been directed to be uploaded is now before the Panel. It was determined it was appropriate to re-examine the claimant.
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 the 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 provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the Motor Accidents Compensation Act 1999 (MAC Act) together with cls 1.5-1.7 of the Guidelines set out the procedures for referral to one or more Medical Assessors and the principles to be applied at such assessments.
The claimant was examined by Medical Assessor Margaret Gibson on 15 April 2025. He was unaccompanied.
PAST MEDICAL HISTORY
In 2008, the claimant was assaulted and sustained a fractur to his skull. He said he had been walking the dog near to home when he was hit from behind by an assailant. He said that he had suffered ongoing memory loss since this incident.
In 2012, he had developed some low back pain. He said he had been working on a building project at home and had been doing some heavy lifting. He had visited his general practitioner and was referred for imaging which had demonstrated degenerative changes.
He said his right knee was irritable between 2015 and 2019. He attributed this to heavy work at home. He agreed that he had visited his general practitioner regarding his right knee. There was an entry in the clinical notes of Dr Dang-Vu Tran on 6 August 2015, noting,
“Diagnosis: Osteoarthritis of right knee….Osteoarthritis of right knee…Presented with chronic right knee pain for the last 3 years which got worse after a prolonged sitting/ getting up, walking up/ downstairs and occasionally woke him up at night with pain. Generalised tenderness. No swelling or effusion. Non tender. Movement of right knee all ROMs (flexion/ extension/ lateral flexion/ rotation). Neurovascular/ sensation intact.” The doctor comments on 2 December 2019 noting “Plain X-ray - Right Knee - mild degenerative, osteoarthritis changes bilaterally + small effusion. Osteoarthritis of right knee, mild occasional soreness both knees after a prolonged walking.”
There was no other history of any medical problems, prior motor vehicle accidents or work injuries.
RELEVANT PERSONAL DATA
The claimant had migrated from Vietnam over 30 years ago, and for the last 25 years he has managed his own optometry business. He said he isn’t a qualified optometrist, so he is mainly involved in retail activities and customer support such as adjusting glasses.
He said that since the subject accident, he has struggled with work activities requiring good hand dexterity because of the altered sensation over his thumb and index finger. In addition he struggles with prolonged standing because of the low back pain.
HISTORY OF THE SUBJECT ACCIDENT
The claimant had been driving a late model (approximately four years old) Lexus 450 SUV. He had his seatbelt fastened. It was late afternoon and he was in Fairfield. Another vehicle had failed to give way and had made a right hand turn across his path. This resulted in front end impact to his car with all airbags deploying and damage to the passenger side of the other vehicle.
He said that he had his hands on the steering wheel and there was a sudden jolt with the impact causing injury to his right thumb where he sustained a laceration. He said that there was also direct impact to the front of his right knee where he later noted bruising and an injury to his right shoulder from the seatbelt.
Following the accident, police, ambulance and fire brigade attended.
The ambulance report noted,
“pt states he had a head on collision with another vehicle estimated 50 km/h. Pt states he thinks he hit his head on the airbag, nil LOC, immediately felt nauseous and dizzy. Nil c-spine tenderness, dizziness and nausea gone on assessment. Pt has 3 cm laceration to the webbing between his thumb and index finger, pain is 5/10, pt refused pain relief from paramedics, said he would wait until hospital. Pt has graze to stomach under belly button, nil chest pain, nil pain anywhere else.”
HISTORY OF SYMPTOMS AND TREATMENT
Mr Le was conveyed to Fairfield Hospital. He was admitted under the care of hand surgeon, Dr David Bradshaw.
The hospital record had noted “Patient is unsure if head hit the steering wheel. Has bruises on the umbilical region ?seat belt injury. No LOC, no ENT bleed. Also sustained Right hand laceration wound. ?cut from shredded glass of the vehicle. Feeling numb over right hand.” And “Right hand laceration wound 3x3cm, deep wound. Location above thenar region. Unable to do adduct, abduct, opponent of thumb. CRT < 2 sec over thumb and all other fingers. Sensations intact. Radial pulse present. No tenderness elsewhere. ROM of all other joints within normal.”
CT brain and cervical spine was reported as showing,
“No acute intracranial haemorrhage. No acute displaced skull fracture. Possible sutures within the skull vault in the region of the vertex. Clinical correlation is suggested. 2. No acute displaced cervical spine fracture. Degenerative spondylosis in the cervical spine as described.”
CT abdomen and pelvis showed possible rib fracture.
X-ray right wrist and hand showed no fracture or dislocation.
He was discharged from the hospital and then readmitted several days later for a surgical procedure to the right thumb which involved open repair of the volar plate of the metacarpophalangeal joint. Intraoperatively, it was noted there was damage to the ulnar digital nerve to the thumb. He wore a splint postoperatively.
He said it was when he got home after the initial admission to the hospital that he noticed pain in his right shoulder, his neck, and his low back.
He was referred to a physiotherapist in Lansvale and attended there between 2021 and 2022 receiving treatment for his right hand and right knee.
He had taken paracetamol for pain.
CURRENT COMPLAINTS
Mr Le said his neck always feels stiff, but there was no pain as such. When asked he denied having any pain or other symptoms spreading from neck into the upper limbs.
There is occasional discomfort over the front of the right shoulder but this is fine as long as he is cautious with his activities.
There is pain over the front of the right knee which is present most of the time, but worse in winter. He finds the pain increases if he does a lot of walking or standing, especially if he is carrying any weight.
He said there is numbness over the right thumb. He indicated the entire right thumb together with the right index finger.
There is constant low back pain felt across the low back but no referral into the lower limbs.
When asked about the report of Dr Jonathan Herald, dated 7 December 2022, in which there was no mention of low back pain, he insisted that the low back pain had always been present since the accident, but if he had not been asked specifically about the discomfort, he may not have mentioned it. He added that if he was doing any heavy lifting activities, the pain would become more prominent, for instance lifting a heavy pot in the garden, but at other times the pain was less evident.
CURRENT TREATMENT
Mr Le takes paracetamol as required for pain. He had last taken the medication about a week ago.
IMAGING
Mr Le brought no imaging studies to the assessment.
X-ray of the right knee (31 July 2021) showed normal alignment. No evidence of recent fracture or dislocation. No evidence of a knee joint effusion. There are degenerative changes, particularly in the medial compartment and patella femoral compartment.
DOCUMENTATION
The report of Dr Herald dated 7 December 2022 identified a right knee aggravation of underlying arthritis and a meniscus tear with subsequent restriction of knee movement. The examination and assessment of impairment of the right knee, consequent on the motor vehicle accident, by Dr Herald differs from the examination findings of the Panel.
The Panel notes that the ultrasound of the right knee dated 5 December 2022, which identifies a small knee joint effusion, but is otherwise an unremarkable ultrasound. The Panel noted that the ultrasound reported that the medial and lateral ligaments to be intact. The Panel did not identify any significant differences between the claimant's pre-accident and post-accident radiological investigations of his right knee.
PHYSICAL EXAMINATION
Mr Le was 164cm tall, weighed 63kg. He is right-handed. He had a right-sided limp when walking, due to knee pain. He was able to stand on heels and toes.
On examination of the neck, there was tenderness over the mid cervical spine in the midline and laterally. There was three quarters normal in all planes. There was no asymmetry, muscle spasm or guarding.
On examination of the upper limbs, circumferential measurements were 27cm at the arms, measured 10cm above the olecranon process, right forearm 25cm (measured 10cm below the olecranon process) and on the left 24.5cm.
Upper limb power, sensation, and reflexes were normal, apart from reduced sensation over the right thumb and index finger.
On examination of both shoulders, there was no deformity, swelling or scarring. Active shoulder movements were as follows:
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 180 ° | 180 ° |
| Extension | 50 ° | 50 ° |
| Internal Rotation | 80 ° | 80 ° |
| External Rotation | 80 ° | 80 ° |
| Abduction | 180 ° | 180 ° |
| Adduction | 50 ° | 50 ° |
On examination of the hands. Active movements were to normal range, apart from right thumb, measured as follows:
IP flexion 80°, IP extension 0°, MP flexion 40°, MP extension 0°, Abduction 50°, Adduction 2 cm, Opposition 7 cm.
There was sensory loss over the ulnar side of the thumb and radial side of the index finger. There was 10mm two point discrimination. Thus partial sensory loss for both thumb and index finger.
On examination of the thoracic spine, there was no local tenderness. There was normal and symmetrical rotation. There was no asymmetry, muscle spasm or guarding.
On examination of the lower back, he was tender across the lower back. He had normal range good range of flexion and extension. Lateral flexion and rotation were normal range bilaterally. There was no asymmetry, muscle spasm or guarding. Straight leg raise was 80° on the right, 100° on the left. Sciatic stretch was negative bilaterally.
On examination of the lower limbs, circumferential measurements of the thighs were equal at 39cm (10cm above the upper pole of the patella). Right calf measured 34cm and left calf 35cm at maximal girth. There was normal and symmetrical power, sensation and reflexes in both lower limbs.
On examination of both knees, there was no crepitus and no instability demonstrated. Active movements were as follows:
| Knee movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 115 ° | 140 ° |
| Extension | 0 ° | 0 ° |
Whilst I note Medical Assessor Bodel's recording of minus 5 degrees of extension on the right, this was not evident at assessment today.
SUMMARY AND OPINION
Mr Le is a 52-year-old man who was involved in the subject accident on 26 July 2021. He had sustained soft tissue injuries to his neck, low back and right shoulder. He had also suffered an injury to his right hand requiring surgery and he is left with some sensory impairment and reduced range of motion of the affected right hand.
IMPAIRMENT
Cervical [Cervicothoracic] spine
There were complaints of pain or symptoms, but there were no clinical findings as detailed in Table 6.8, SIRA Motor Accident Guidelines. There was no radiculopathy or vertebral body compression or vertebral fracture. Therefore the cervical spine injury would be assessed at DRE Impairment Category I, thus 0% WPI.
Lumbar [Lumbosacral] spine
There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were no clinical findings as detailed in Table 6.8, SIRA Motor Accident Guidelines. Therefore the lumbar spine injury would be assessed at DRE Impairment Category I, thus 0% WPI.
Right shoulder
Movements were measured. Total upper extremity impairment (0%) was calculated with reference to Chapter 3, Fig 38, 41, 44, AMA 4 and then converted to 0% WPI using Table 3, p 20, AMA 4.
Right hand,
· IP flexion 80° 0%
· IP extension 0° 1%
· MP flexion 40° 2%
· MP extension 0° 0%
· Abduction 50° 0%
· Adduction 2 cm 1%
· Opposition 7 cm 1%
Based on Fig 10, 13, tables 5-7 - 5% thumb impairment due to range of motion.
Provocation testing for carpal tunnel syndrome was negative bilaterally. There was sensory loss over the ulnar side of the thumb and radial side of the index finger. There was 10mm two point discrimination. Thus partial sensory loss for both thumb and index finger.
Using Table 8, p 31 partial sensory loss ulnar digital nerve gives 15% thumb impairment.
Adding 5% and 15% gives 20% thumb impairment, so referring to Table 1, p 18, this gives 8% hand impairment.
Using Table 9, p 31 partial sensory loss radial digital nerve gives 15% index finger impairment. Referring to Table 1, p 18, this gives 3% hand impairment.
Adding 8% and 3% this gives 11% hand impairment.
Referring to Table 2, p 19, this gives 10% upper extremity impairment.
Referring to Table 3, p 20, this gives 6% WPI.
CONCLUSION
The Panel concluded that the claimant had suffered a 6% WPI consequent on the injuries sustained to his right hand and fingers in the subject motor vehicle accident.
0
0
0