Allianz Australia Insurance Limited v Truong
[2025] NSWPICMP 246
•8 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Truong [2025] NSWPICMP 246 |
CLAIMANT: | Van Binh Truong |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Les Barnsley |
MEDICAL ASSESSOR: | Clive Kenna |
DATE OF DECISION: | 8 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); section 7.23(1); radiculopathy; pain left arm; cervical spine; strong pain to cervical spine region; non-threshold injury consequent on spinal injury; criteria for radiculopathy; claimant experienced left-sided neck pain; symptoms involving numbness to fingers of the left hand; examination by treating neurosurgeon identified signs of radiculopathy; pathology partly resolved and symptoms substantially dissipated; radiculopathy present following the accident but now criteria for radiculopathy is not present; Held –non-threshold injury confirmed; MAC revoked; new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment – Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate of Medical Assessor McGrath dated 5 August 2024 that the claimant has sustained non-threshold injuries. |
STATEMENT OF REASONS
INTRODUCTION
Van Binh Truong (the claimant) is a 54-year-old man who was injured in a motor vehicle accident on 26 May 2023. Following the motor vehicle accident, he lodged an application for personal injury benefits and, shortly thereafter, sought a concession from Allianz Australia Insurance Limited (the insurer) that his injuries ought to be considered non-threshold injuries. Following a review the insurer declined to make this concession and the claimant lodged an application for an assessment of threshold injury.
The claimant sought an assessment of injuries being:
· arm - radicular pain in left arm, and
· cervical spine – strong pain to cervical spine region.
The applicant was assessed by Medical Assessor David McGrath on 22 July 2024 who, in a certificate dated 5 August 2024, determined that the injury was not a threshold injury for the purposes of the Motor Accident Injuries Act 2017(MAI Act).
The insurer sought a review of this certificate and in a determination dated 5 August 2024 President’s Delegate Melinda Drew, determined that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The matter was then referred to this Review Panel.
On 17 October 2024 the Panel made directions for the provision of the material which was before Medical Assessor McGrath and this direction has now been complied with. The Panel is satisfied that all relevant material is before the Panel for their deliberation.
The Panel met on 20 January 2024 and noted that the certificate of Medical Assessor McGrath determined that the claimant had suffered a non-threshold injury consequent on his cervical spinal injury as the claimant had satisfied the criteria for radiculopathy from the neck consequent on the motor vehicle accident notwithstanding that, at the time of the assessment with Medical Assessor McGrath, the claimant did not satisfy the criteria for radiculopathy for the neck.
The new review provision provides 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 MAI 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 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.
Mr Truong was seen by Medical Assessor Clive Kenna on 6 March 2025. He was accompanied by a Vietnamese interpreter (NAATI No. CPN7BI45C).
HISTORY
Pre-accident medical history and relevant personal details
He was involved in a motor vehicle accident on 26 May 2023, a period now of some 18 months ago.
Mr Truong is 55 years of age. His wife does not work and they reside in Liverpool. He continues to work as a TV technician repairing faulty TVs for LG.
He had not been involved in motor vehicle accidents previously or indeed since.
He notes that whilst he has had no surgery or operations, he has undergone a number of injections pertaining to the cervical spine (four to five all up in his estimate) which help for about four to five months but less effectively on repetition, the last one giving good relief only for about two months. These injections were done under imaging.
The insurance company has stopped funding all treatment and acknowledges that he had physiotherapy for over 12 months.
Past history of neck symptoms – nil.
Past history of left arm symptoms – nil.
History of the motor accident : 26/05/2023
In the accident report form he states, “We were stationary at traffic lights near the A28. A car was speeding and didn’t stop and hit us from behind.” He was the driver of the car. His wife was a front seat passenger. The children were in the back seat. Airbags were not activated.
Neither police nor ambulance attended. He noted at the time that his hands were on the steering wheel and his head was turned left, as he was talking to his wife at the time. That is when the accident occurred and subsequently as a result of that, his neck was jolted.
The accident occurred on a Friday and subsequently Mr Truong returned to work on the Monday. Hence, he acknowledges he kept working but only on a part-time basis, two days per week, which has been effectively ongoing.
History of symptoms and treatment following the motor accident
As a result, he started to experience neck pain left-sided, with then subsequent symptoms involving numbness involving the 1st, 2nd and 3rd fingers of the left hand. On reflection the claimant states the onset was about a week later.
He saw his general practitioner (GP), Dr Tom Ling of Liverpool, who ordered MRI scans of the left shoulder and neck, and as a result was referred through to Dr Lee, a neurosurgeon.
Subsequent to that, he had a number of procedures under imaging. He has had about five or six all up. The first two gave him a good period of relief and although he has had five or six all up in total, the last few have given relief only for about two months.
In the background to this, he also had physiotherapy and acknowledges that his neck and left arm symptoms have improved over time, although there is still some persistence of symptoms, particularly involving the 3rd and 4th fingers.
In that respect, he sees his GP on a monthly basis for certificates.
Current symptoms
He notes that with regards to his neck, it is now more aggravated by rotating to the left. That the worse symptoms involve 3rd, 4th and even 5th fingers on occasion, noting that he is left-handed. Occasionally, his left hand feels weak and numb, although acknowledges the pins and needles fluctuate.
He has no substantive arm pain. Hence, there is fluctuation of symptoms which were intermittent and also the localised neck pain fluctuates. He notes his left thumb has never been involved and at the time of my assessment, he was still working two days per week.
Current and proposed treatment
He continues to take Nexium and Lyrica.
CLINICAL EXAMINATION
General presentation
Findings on clinical examination including specific measurements of ROM (where applicable) of each of the injuries assessed.
He is left hand dominant.
He has just returned after three weeks in Vietnam.
Cervical spine
Muscle guarding and spasm present and non-uniform range of movement.
No neurological deficit in either upper limb.
There was sensory change involving C7 distribution, particularly involving the 3rd finger, but power is intact for C6 and C7 nerve roots. Noting the brachial plexus test was negative for both C6 and C7.
| MOVEMENTS | RANGE EXHIBITED |
| Flexion | 100% full |
| Extension | 100% full |
| Rotation to the right | 100% full |
| Rotation to the left | 20% restriction |
| Lateral bending to the right | 10% restriction |
| Lateral bending to the left | 100% full |
NEUROLOGICAL TESTS:
REFLEXES:
| REFLEX | LEFT | RIGHT |
| TRICEPS JERK | Normal | Normal |
| BICEPS JERK | Normal | Normal |
| BRACHIORADIALIS | Normal | Normal |
SENSATION: Normal.
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
MUSCLE WASTING
I note that he was wearing heat patches on his left upper arm and elbow (he states these give him relief).
He is left hand dominant
| LEFT (cm) | RIGHT (cm) | |
| UPPER ARM | 28 | 27 |
| FOREARM | 24 | 24 |
MUSCLE POWER
| LEVEL | MOTOR POWER | LEFT | RIGHT |
| C4 | 5/5 | NORMAL | NORMAL |
| C5 | 5/5 | NORMAL | NORMAL |
| C6 | 5/5 | NORMAL | NORMAL |
| C7 | 5/5 | NORMAL | NORMAL |
| C8 | 5/5 | NORMAL | NORMAL |
| T1 | 5/5 | NORMAL | NORMAL |
Five is active movement against gravity with full resistance.
Four is active movement against gravity with some resistance.
Three is active movement against gravity only, without resistance.
DURAL TENSION TESTS:
| TEST | RIGHT | LEFT |
| PASSIVE NECK FLEXION | Normal | Normal |
| BRACHIAL PLEXUS STRETCH | Normal | Normal |
RADIOLOGY
13/8/2023 - MRI cervical spine – At C5/6 there is a left paraforaminal disc protrusion, left-sided facet joint arthropathy, foraminal stenosis on the left and left C6 nerve root impingement. There is a background of a left paracentral disc bulge with mild flattening at the left hemicord. At C6/7 low-grade left paraforaminal disc bulge with some foraminal narrowing with questionable C7 nerve root impingement.
DOCUMENTATION
It was noted in reports by treating neurosurgeon, Dr Joanna Lee, that on examination of the upper limb dated 18 September 2023, that the neurological examination revealed normal tone but weakness of the left elbow extension at 4/5 and wrist extension 4/5. His reflexes were reduced on the left biceps and triceps but otherwise they were intact and were able to be elicited in the remainder of the upper limbs. Dr Lee elicited a history consistent with radiculopathy, confirmed by the physical findings on neurological examination: weakness of both wrist and elbow extension, and reduced biceps and triceps reflexes. The panel weighted these clinical findings as they were assessed by Dr Lee, a treating neurosurgeon. The panel noted that the claimant acknowledged that the history and initial stated symptoms were consistent with radiculopathy and that there had been some resolution of symptoms over time, as the disc pathology partially resolved/resorbed,that his symptoms substantially dissipated distally and became more central. The assessment of the Panel confirmed the earlier findings of Medical Assessor McGrath,that any initial radiculopathy had resolved by the time of these examinations but nevertheless there was compelling evidence that post motor vehicle accident, that there was a clear presence of radiculopathy secondary to discogenic pathology confirmed radiologically.
In that respect, Dr David Lieu, orthopaedic surgeon, noted the claimant reported that he developed pain in his left shoulder approximately two months after the accident, noting the MRI scan revealed stenosis at the C7/T1 level where there was a posterior annulus tear and
low-grade disc bulge. There was a right paraforaminal component to the disc. There was foraminal narrowing on the right and there may be right C8 nerve root compression. Noting that she listed a history of radiculopathy and this was supported by clinical and radiological findings.
CONCLUSION
Clearly some degree of resolution of symptoms has occurred and reflexes and power were intact on examination now. There was a nerve root pattern following C7 nerve root distribution but no muscle atrophy and brachial plexus test negative. Actually, it has a somewhat mixed C6/C7 picture-as radiologically C6 appears more impacted.
The claimant now presents more as an intermittent cervical nerve root irritation that has settled in part over time-with most symptoms now, centrally, ie: neck and side of neck-rather than distal.
When seen by Medical Assessor David McGrath, he confirmed that neurological findings were normal, but ascribed on basis of earlier findings that there had been radiculopathy and therefore was a non-threshold injury.
Examination was quite straightforward as he was a matter of fact about presentation.
The Panel was satisfied that the reported examination of Dr J Lee, as outlined in her short report of 18 September 2023 is sufficient to support a finding that radiculopathy was present following the accident but now the criteria for radiculopathy is not yet present.
In particular he states he has had difficulty holding onto his phone, he is a welder and at times, would drop welding equipment without notice due to pain." It is sufficient to make a finding of weakness consequent on the motor vehicle accident nor as is her observation “that the claimant had difficulty holding chopsticks at times".
The Panel had conducted its own complete neurological examination including elbow extension and wrist extension and stands by its findings and notes that there are not presently signs of radiculopathy.
The Panel notes there is sufficient material to support a finding of radiculopathy consequent on an injury to the claimant’s lumbar spine. Consequently, the Panel agrees with the finding of Medical Assessor McGrath that the cervical spinal injury is a non-threshold injury for the purposes of the Act.
The following injury is a non-threshold injury:
· Cervical spine – soft tissue injury with C6/C7 joint symptoms and signs.
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