Dang v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Dang v Allianz Australia Insurance Limited [2023] NSWPICMP 549
CLAIMANT:	Hoang Dung Dang
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Mohammed Assem
MEDICAL ASSESSOR:	Shane Maloney
DATE OF DECISION:	1 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was a driver of a car hit on its right side at an intersection; injuries reported to left shoulder, right knee, right shoulder and cervical spine were caused by the accident; original assessment found the cervical spine at 5% whole person impairment (WPI), the right and left shoulders both at 2% WPI and the right knee at 0% WPI; Held – original medical certificate revoked; on review the Panel assessed the claimant’s total WPI as 6% for both shoulders and 0% for all the other injuries; total WPI of 6%; claimant’s had a prior history of injuries to his lumbar spine, left leg and left knee and also more recently to his right ankle; soft tissue injury to cervical spine but has no radiculopathy.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel revokes the certificates of Medical Assessor Alan Home dated 7 April 2022 and certifies as follows: 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, underlying C6/7 discopathy; · lumbar spine: soft tissue injury; · left shoulder: soft tissue injury; · right shoulder: supraspinatus tear requiring surgical repair – residual right shoulder, and · stiffness. 2. The following injuries were not caused by the motor accident: · right knee - no injury, and · right ankle - no injury.

STATEMENT OF REASONS

INTRODUCTION

On 17 September 2018 Mr Hoang Dung Dang (the claimant) was driving his car turning right from Campbell Street onto the Hume Highway at Liverpool. He was driving through a green light when another car failed to give way colliding with his car on the right side and causing his car to collide another car on its passenger side.
In the Application for Personal Injury Benefits dated 27 September 2018 Mr Dang stated he received injuries to his neck, left and right shoulders, lower back, left leg, right ankle, chest, head and psychological injury.[1]
[1] Claimant’s bundle AD 1 p 39.
NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to
Mr Dang under the Motor Accident Injuries Act 2017 (MAI Act).
Medical Assessor Home issued a certificate dated 7 April 2022. In that certificate he certified that the injuries sustained by the claimant to the left shoulder, right knee, right shoulder and cervical spine were caused by the accident and gave rise to 9% whole person impairment (WPI). He assessed the cervical spine at 5% WPI, the right and left shoulders both at 2% WPI and the right knee at 0% WPI.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (a) “the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage)”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
[2] Section 7.20 MAI Act.
On 3 June 2022 the claimant filed an application with the Personal Injury Commission (Commission) seeking a Panel review of a single medical assessment of the certificate of Medical Assessor Home.
ASSESSMENT UNDER REVIEW
The dispute was referred to Medical Assessor Home who assessed Mr Dang and issued a certificate dated 7 April 2022.[3]
[3] Claimant’s bundle AD 1 pp 17 - 33.
The injuries referred for assessment included: chest, lumbar spine, cervical spine, left leg, right ankle, right knee, right shoulder and left shoulder.
Medical Assessor Home noted that Mr Dang was in receipt of the Disability Pension at the time of the accident due to a pre-existing back complaint dating from about 2005 or 2006.
Mr Dang has received the Disability Pension from 2013.
Medical Assessor Home medically examined the claimant on 4 April 2022. He referred to the history of the motor accident, the history of symptoms and treatment following the motor accident, detailed the current symptoms and set out the current and proposed treatment.
On examination Medical Assessor Home found inconsistencies in Mr Dang’s presentation with range of active shoulder motion. Comparing his range of motion during the re-examination with repeated testing within the assessment was grossly inconsistent.
Medical Assessor Home’s conclusion about diagnosis and causation was that the claimant has a past history of back pain as documented in the medical file from the VOS Medical Practice. There are numerous presentations with both back and left leg sciatic pain requiring treatment on weekly and/or monthly basis between 2017 and the date of accident. He was satisfied the claimant may have experienced symptom exacerbation related to his pre-existing condition, although there were no new symptoms arising from the subject accident. The claimant’s left sciatic complaints were pre-existent, as confirmed by the claimant to direct enquiry at his assessment.
Medical Assessor Home noted that both Dr Bentivoglio and Dr Gothelf considered that the motor accident did not cause any durable aggravation of the lumbar spine condition. The injury caused by the accident had ceased such that the ongoing symptoms resulted from the previous condition.Medical Assessor Home agreed with that assessment based upon the clinical history provided by the claimant at the re-examination and his review of the medical file. Therefore, his diagnosis in relation to the back and left leg symptoms, is that there was an exacerbation of symptoms of short duration, which had resolved by the time of the re-examination.
Medical Assessor Home concluded that he was satisfied the claimant sustained the following injuries:
•       cervical spine injury – aggravating underlying degenerative changes at C6/7. There are no verifiable or non-verifiable radicular complaints in the left or right upper extremity;
•       right shoulder – there was a rotator cuff tear necessitating rotator cuff repair surgery;
•       left shoulder – there is referred pain from the neck. There is a subsequent diagnosis of subacromial bursitis found on imaging. The subacromial bursitis was not caused by the accident and there is no medical mechanism whereby the accident would cause that pathology;
•       right ankle – There was a pre-existing soft tissue injury caused by a sprain two weeks prior to the subject accident and documented by his general practitioner (GP), Dr Vu, and
•       right knee – soft tissue injury. The claimant sustained a local contusion to the right knee and reports ongoing pain and symptoms. There was no objective abnormality on examination of the right knee at the assessment. Based upon the objective clinical findings at the assessment, there is no impairment of the right knee.
Medical Assessor Home certified that the injuries sustained by the claimant to his left shoulder, right knee, right shoulder and cervical spine were caused by the accident and gave rise to 9% WPI. He assessed the cervical spine at 5% WPI, the right and left shoulders both at 2% WPI and the right knee at 0% WPI. He concluded that in Mr Dang’s case the combined WPI rating is 9% (Combined Values Chart AMA4, Page 322).

REVIEW PROCEDURE

Under sub-section 7.26 (10) of the MAI Act an application for review must be made within 28 days or as provided by the Commission rules.
An application for review of the medical assessment of Medical Assessor Home was lodged on 3 June 2022 which was within 28 days of the date on which the combined certificate was made available to the parties on 19 May 2022.
On 15 July 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). The delegate’s reasons were that the Guidelines which were in force at the time of the assessment were version 8.1 of the Motor Accident Guidelines. These were effective from 17 December 2021 – 8 April 2022. The delegate said it was evident from the Certificate that these are not the Guidelines that the Medical Assessor referred to and applied. [4]
[4] Claimant’s bundle AD 1 p 15.
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 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. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued Directions to the parties dated 19 July and 2 September 2022 requiring each party to file an indexed, paginated bundle of documents and advising the parties that the Panel had decided to re-examine the claimant. In response to this Direction the solicitor for the insurer and claimant both filed a bundle of documents and the claimant attended his re-examination on 26 October 2022. [8] The Panel notes that both bundles of documents from the claimant and the insurer contain multiple copies of the same medical reports. The Panel also notes that the claimant’s bundle of documents contained medical records and reports from other people not related to the claimant in this case.[9]
[8] Claimant’s bundle AD 4 and Insurers bundle AD 5.
[9] See for example Claimant’s bundle AD 1 at pp 226-228
The claimant and insurer have filed with the Commission over 2,000 pages of documents and material. The Panel notes that these materials include extensive and voluminous medical records, hospital notes, clinical doctors notes, rehabilitation notes and medicolegal reports. The Panel has read, discussed and carefully considered all of these medical records, reports and notes before it. The Panel has not referenced or summarised the records relating to the claimant’s physical injuries or symptoms unless they are relevant or have some bearing on the consideration of the injuries which are the subject matter of the Panel’s reassessment process.
The Panel has not referenced or summarised all of the records relating to Mr Dang’s symptoms or injuries. If some of those medical records and reports are not referred to in the Panel’s review, it should not be assumed that the Panel was unaware of that medical material or that the Panel failed to take the material into account. In its review the Panel is endeavouring to carry out its statutory function and promote the objects of the legislation it operates under including the legislator’s guiding principle that proceedings in the Commission be just, quick and cost-effective resolution of the real issues in the proceedings.[10] Consistent with this guiding principle, the Panel has not referred to every item of medical evidence but has done its best to refer to them sufficiently but briefly.
[10] Sections 3 and 42 Personal Injury Commission Act 2020.

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.
Sub-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.”

GUIDELINES

In this matter the claimant submits that Medical Assessor Home relied upon an outdated version of the Medical Assessment Guidelines when conducting his assessment. The Guidelines which were in force at the time of Medical Assessor Home’s assessment on
7 April 2022 were version 8.1. Instead the claimant says Medical Assessor Home mistakenly used version 5.1 of the Guidelines.
Clause 4.1 of the Guidelines provides that :
“4.1 This Part applies from the commencement of these Guidelines to all current and future claims made on insurers in respect of motor accidents that occur on or after 1 December 2017. They apply until they are amended, revoked or replaced.”
The recent history of the different versions of the Guidelines are summarised in the Guidelines as follows:

Version number	Effective date	Summary of changes
Version 9.1	1 April 2023 onwards	Updates to version 9.1
Version 9	15 January 2023 - 31 March 2023	Updates to version 9
Version 8.2	Clause 4.103 to 4.105 and Part 9 effective date 8 April 2022 to 24 November 2022 - from 25 November 2022 refer to Motor Accidents Guidelines: CTP Care. All other parts effective date 8 April 2022 to 14 January 2023	Updates to version 8.2
Version 8.1	17 December 2021 - 8 April 2022	Updates to version 8.1

In respect of an assessment of soft tissue injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7   In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8    Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)    loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)    positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)     muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9    Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
An assessment of the upper extremity involves a physical evaluation that can use a variety of methods.[11]
[11] Guidelines clause 6.48
Clause 6.50 provides as follows:
3.     “6.50 Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed. Range of motion is assessed as follows:
4.(a)      a goniometer should be used where clinically indicated
5.(b)      passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements
6.(c) if the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions
7.(d)      if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation (see clause 6.40 of these Guidelines)
8.(e)      if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”

CAUSATION

The issue of causation is dealt with in cls 6.5 to 6.7 of the Guidelines as follows:
9.“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
10.6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
11.'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:
12.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
13.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
14.This, therefore, involves a medical decision and a non-medical informed judgement.
15.6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In Briggs v IAG Limited trading as NRMA Insurance[12] his Honour Justice Wright stated at [35]:
[12] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
16.“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
17.6.5     An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
18.6.6     Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
19.‘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:
20.1.        The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
21.2.        The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
22.This, therefore, involves a medical decision and a non-medical informed judgement.
23.6.7     There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

EVIDENCE BEFORE THE REVIEW PANEL

Application for Personal Injury Benefits
In the Application for Personal Injury Benefits dated 27 September 2018 Mr Dang stated he received injuries to his: neck, left and right shoulders, lower back, left leg, right ankle, chest, head and psychological injury.[13]
Ambulance report
[13] Claimant’s bundle AD 1 p 39.
The ambulance report was made on 17 September 2018. [14] The ambulance records indicate that the claimant presented with pain in the chest, back and shoulders after a motor vehicle accident. The ambulance report noted nil bruising or seat belt marks, steady and even gait. Patient had full range of movement of all joints without pain or restriction. All observations were within normal parameters. Patient had generalised pain in chest and soreness across shoulders and back. Nil cervical spine tenderness with full range of movement of neck. Patient agreed that he did not require transport to the hospital and was dropped off at a nearby train station as his car was undrivable. Patient observed to leave the paramedics with even and steady gait.
Police report
[14] Claimant’s bundle AD 1 p 45
The claimant attended Liverpool police station on 20 September 2018 to report the accident.[15] The police report notes that police attended the scene of the accident and both vehicles involved in the accident required towing. Nil reports of injuries at the time of the incident. The claimant reported to police that he attended his GP on the afternoon after the accident on 18 September 2018 complaining of soreness to his body with whiplash, soft tissue injury, neck pain, back pain, left lower leg pain, right ankle pain, frontal chest pain, back pain and a headache.
[15] Insurer’s bundle AD 2 pp 117-123.
The police report notes that when making his report to the police the claimant provided a medical certificate and X-ray reports to the police at the time of making his report of the accident.

Treating medical evidence
Pre-accident treating records

There are extensive medical records available for the claimant’s medical history prior to September 2018. The available records are contained in the claimant’s and insurer’s bundle of documents. On 30 March 2004 Mr Dang reported to his treating GP Dr La pain and tenderness in the left knee.[16]
[16] Insurer’s bundle AD 2 pp 366.
On 14 October 2005 Mr Dang reported to his treating GP Dr La pain and tenderness in the left knee for three days.[17]
[17] Insurer’s bundle AD 2 pp 353-363.
On 12 May 2014 Mr Dang reported to his treating GP Dr La pain and tenderness in the left shoulder.[18]
[18] Insurer’s bundle AD 2 pp 363-364.
Mr Dang’s treating GP records show a history of chronic and continuing low back pain and knee pain from at least 2005 onwards. His records also show that he suffered a workplace injury to his lower back in 2005.[19]
[19] Insurer’s bundle AD 2 pp 345-378.
A treating GP, Dr Phan first noted that Mr Dang reported hurting his back at work on
[20] AD 3 p 4.
11 February 2005. [20] On 23 February 2005 the workers compensation insurer notified that it would accept liability for the workplace injury.
In 2011 Mr Dang stated to Dr Phan that he had injured his left knee as well as continuing to experience back pain.[21] On 16 March and 16 December 2011 Mr Dang continued to complain of his back and left knee injury and pain to Dr Phan.[22]
[21] AD 3 p 15.
[22] AD 3 pp 17-19.
On 16 December 2011, 10 April and 13 August 2012 Dr Phan certified Mr Dang as being fit for limited work due to his left knee and back injury.[23]
[23] AD 3 pp 19-32.
In a letter dated 19 February 2011 Mr Dang's treating GP Dr Phan wrote to Dr Lam reporting that Mr Dang has had a lower back injury since 2005. Dr Phan noted that in recent weeks
[24] AD 4 p 9.
Mr Dang’s lower back was aggravated and became stiffer and the pain continued to deteriorate and radiate down to his left leg. Mr Dang has been laid off work since November 2010 and would like to apply to continue his WorkCover payment.[24]
Mr Dang’s treating GP records also show he regularly complained of: back pain, left leg pain, left shoulder and left leg sciatica on numerous occasions from 14 February 2012 through to September 2018.[25] The GP records showed that Mr Dang’s treatment was acupuncture, exercise and painkilling prescription medication.
[25] AD pp17-32
On 8 February 2017 Mr Dang was assessed by Dr James Van Gelder, neurosurgeon .[26]
[26] Claimant’s bundle AD 1 p 305.
Dr Van Gelder reported that the claimant suffered from very severe sciatica since early December 2016. Dr Van Gelder diagnosed the claimant to have spinal canal stenosis, which could include sciatica. Dr Van Gelder reported that the claimant has a long history of back pain. He also reported that the claimant's symptoms have improved and does not now have pain or numbness in his leg. The claimant showed a normal range of motion in the low back and normal strength in the limbs.
On 4 September 2018 Mr Dang reported to his treating GP at VOS medical Centre that he had sprained and injured his right ankle.
Post-accident treating records
In a report dated 21 February 2019 from the neurosurgeon Dr Simon McKechnie notes that the claimant reported the motor vehicle accident with complaints of upper thoracic and neck pain radiating across the shoulders and occasional left arm and lower back pain. [27]An MRI scan of the right shoulder showed a rotator cuff tear with bursitis. Left shoulder showed bursitis. There were disc bulges at C3/4 and C6/7 and impingement of the left C7 root.
[27] Insurer’s bundle AD 2 pp 149 – 179.
[28] Insurer’s bundle AD 2 pp 149 – 179.
Dr McKenzie recommended possible CT guided Cortisone.[28]
In a report dated 26 February 2019 Dr Ray Chin, orthopaedic surgeon notes the claimant reported bilateral shoulder pain, right shoulder worse than left, particularly with overhead activity.[29] Mr Dang was on a Disability Pension for lower back pain unrelated to the current injury. Dr Chin found on examination of Mr Dang he had a painful arc of movement and tenderness at the insertion supraspinatus into the greater tuberosity. Obrien’s test negative. Hawkins test positive. Other provocative tests negative and supraspinatus power Grade 4.
[29] Claimant’s bundle AD 1 p 59.
An MRI scan showed a full thickness tear of the supraspinatus. Dr Chin suggested a surgical repair.
On 20 March 2019 a right shoulder arthroscopic rotator cuff repair and decompression was performed at Sydney South West Private Hospital.[30] Dr Chin reported good progress following surgery with good recovery.
[30] Claimant’s bundle AD 1 p 88.
On 29 April 2019 Dr Chin reviewed the claimant’s rotator cuff. He measured forward elevation of 140 degrees and external rotation of 30 degrees without pain. Dr Chin reported that the claimant is doing remarkably well with little discomfort. [31]
[31] Insurer’s bundle AD 2 p 142.
In a report dated 12 August 2019 Dr Simon McKechnie wrote that he had reviewed the claimant's MRI scans. He wrote that there is no significant thecal sac or nerve root impingement and that he explained to the claimant that surgery is not an option in his case.[32]
[32] Claimant’s bundle AD 1 p 116.
Regarding the right knee, there are numerous allied health requests and certificates of capacity or certificates of fitness dated 27 September 2018, 26 November 2019,
[33] AD 3 pp 19-32 and Insurer Bundle AD 2..
25 February 2019, 25 March 2019, 30 May 2019, and 25 November 2020. None of those reports refer to a right knee complaint or diagnosis.[33]
On 11 September 2019 Mr Dang was reviewed by Dr Simon McKechnie neurosurgeon.[34]
[34] Claimant’s bundle AD 1 p 62.
Dr McKechnie discussed treatment options for his lower back pain but he recommended nonoperative treatment referring him for physiotherapy and core strengthening exercises.
A report dated 14 December 2020 from the Cabramatta Family Medical Centre advised that the claimant had first reported bilateral knee pain on 13 October 2020. [35]
[35] Claimant’s bundle AD 1 p 73.
More detailed records from the claimant’s treating GPs were also supplied to Panel in an application to admit late documents from the claimant’s solicitor.[36] The application notes that the documents were lodged in accordance with the Panel’s earlier directions issued on
23 March 2023. These notes were reviewed by the Panel and gave the Panel a further detailed understanding of the claimant’s various medical and psychological complaints as recorded by his treating doctors.
Medico-legal reports and other reports
[36] Claimant’s application to admit late documents, pp 6 – 44.
Many of the radiology reports are summarised in the below section headed review of radiology.
There is a report from Dr John Bentivoglio, orthopaedic surgeon, who assessed the claimant on 14 July 2020. [37]
[37] Claimant’s bundle AD 1 pp 422- 431.
Dr Bentivoglio noted that the claimant is suffering from degenerative changes present at the C6/7 level of his cervical spine. He does have significant pre-existing abnormalities present in his back. There would have been temporary aggravation caused to his back complaint but at this late stage, he considered from his past history that his back symptoms were related to his previous injury from 2006.
Dr Bentivoglio also assessed the claimant’s WPI. Regarding the claimant’s back he wrote that he did not believe the injury in the motor vehicle accident has altered the claimant’s back disability. He assessed the claimant as having a 0% WPI for his back. He also assessed the claimant’s cervical spine as 5% WPI. Regarding the claimant’s left shoulder Dr Bentivoglio wrote that there was some restriction of movement but he was unable to assess the left shoulder. Regarding the right shoulder, Dr Bentivoglio assessed that at 5% WPI.
Dr Bentivoglio wrote that for the claimant's right foot and ankle he had an equal range of movement in both feet and normal alignment but there was no way of assessing an impairment rating for his right foot and ankle injury. Regarding his right knee, Dr Bentivoglio wrote that the claimant had normal alignment present in both these but there is no way of assessing an impairment rating for his right knee. Dr Bentivoglio then concluded his assessment by stating that the combined value of all the WPI was 10%.
There is another report from Dr Bentivoglio dated 23 November 2020.[38] In this report
[38] Claimant’s bundle AD 1 p 64.
Dr Bentivoglio reported on the results of MRI scans to both of the claimant’s knees in both of his shoulders. Regarding the shoulders Dr Bentivoglio noted the full thickness tear to the supraspinatus tendon in his right shoulder as a result of motor vehicle accident. The abnormalities present in his right knee are the same as seen in his left knee. This means that the motor vehicle accident caused his pre-existing abnormalities in his right knee to become symptomatic. He assessed him with 3% WPI for the right knee and 2% WPI for the left shoulder.
In another report dated 1 December 2020 Dr Bentivoglio writes that in his most recent supplementary report he gave an impairment rating only for the claimant’s right knee and left shoulder. He assessed him as having a 5% WPI for the injuries to these regions. He had previously assessed him as having a 5% WPI for his neck and a 5% impairment for his right shoulder. Combining all these impairment ratings Dr Bentivoglio writes that this would give a 15% WPI rating.
There is a report from Dr Todd Gothelf, orthopaedic surgeon dated 4 November 2020.[39]
[39] Insurer’s bundle AD 2 pp 17 to 28.
In the report by Dr Gothelf writes that the claimant’s cervical posture was normal. There was no muscle spasm or guarding. There was a full range of cervical extension, flexion, right rotation, left rotation, right lateral flexion and left lateral flexion. There was no cervical dysmetria.
Dr Gothelf found a full range of pain-free movement of the elbows wrists and hands of both upper limbs with no wasting or swelling of the upper limbs. With the two shoulders he found a restricted range of movement however noted this didn’t appear to be present when the claimant was dressing and undressing removing his jacket.
Regarding his lower limbs, the claimant's gait was normal with no difficulty with walking on toes or heels. Reflexes were normal. The claimant's range of motion was pain-free and normal in the hips, knees and ankles.
Dr Gothelf’s diagnosis and opinion is that Mr Dang has a right shoulder rotator cuff tear which was repaired but he has ongoing pain and restricted movement. With the lumbar spine this was a soft tissue injury with exacerbation of pre-existing lumbar spine condition Mr Dang has a history of lower back pain from 2006 and the injury caused by the accident on
17 September 2018 has ceased and any ongoing symptoms are as a result of his pre-existing condition. Mr Dang’s cervical spine soft tissue strain is an aggravation of a pre-existing degenerative cervical spine.
Dr Gothelf wrote that the following were not caused by the subject motor accident: chronic lower back pain and degenerative lumbar spine.
Dr Gothelf concluded that Mr Dang’s WPI is as follows. For the lumbar spine he found 0% WPI. For the cervical spine he found no objective findings no dysmetria and no guarding resulting in 0% WPI. The right shoulder impairment measured was 20% UEI and for the left shoulder impairment 13% UEI. This gives 20% -13% which is 7% UEI which converts to 4% WPI. Thus all impairments combined give a total of 4% WPI for the accident on
17 September 2018.
There are additional reports from Dr Todd Gothelf dated 17 December 2021 and
[40] Insurer’s bundle AD 2 pp 337 to 341.
20 January 2022. [40]
In a certificate dated 21 April 2022 Medical Assessor Michael Steiner found that left eye injuries to the claimant’s left medial bulbar conjunctival lesion that were caused by the motor accident had resolved and did not result in permanent impairment. [41] Medical Assessor Michael Steiner wrote that there is no evidence that the calcific lesion was caused by the motor vehicle accident. There is a report from Dr Clement nine months after the accident that the lesion was present but in any case the lesion has now been removed.
REVIEW OF THE RADIOLOGY
[41] Insurer’s bundle AD 2 pp 798-802.
On 11 March 2011 a CT scan of Mr Dang’s lumbar spine showed mild diffuse disc bulges at L4/L5 causing mild spinal canal stenosis and mild neural foraminal stenosis without definite compression of the exiting L4 nerve roots. There is also a minor disc protrusion at L5/S1.[42]
[42] AD 4 pp 4-5.
An MRI of Mr Dang’s spine was performed on 25 October 2011. This showed small disc bulges in the lower lumbar spine without neural impingement.[43]
[43] AD 3 pp 29- 30.
A report of an X-ray of the cervical spine was conducted on 18 September 2018.[44] This X-ray showed degenerative changes in the unco-vertebral joints in the lumbar spine. It also showed moderate to severe bony encroachment of the exit foramina at the sea 6/C7 level. There was also evidence of calcification of the soft tissues in the mid-level of the cervical spine. X-ray of both shoulders shows bony alignment is normal. There is no fracture or sign of recent bony injury.
[44] Claimant’s bundle AD 1 p 231.
On 19 September 2018 an X-ray of the lumbar spine and left knee was reported.[45] This X-ray of the lumbar spine showed mild tilting on the left of the spine. Bony alignment was otherwise normal. Disc spaces and endplates preserved. Osteophyte formation at multiple levels with early signs of degenerative disease. No fracture or sign of recent bony injury. The X-ray of the left femur and knee showed joint space is preserved. No abnormality of the patella. No abnormal calcification. No sign of recent bony injury.
[45] Claimant’s bundle AD 1 p 230.
On 18 November 2018 an MRI was conducted on both the claimant’s shoulders.[46] The MRI of the right shoulder showed a full thickness tear of the mid-supraspinatus and bursal inflammation. The MRI of the left shoulder showed a subacromial subdeltoid bursal inflammation with no cuff tear.
[46] Claimant’s bundle AD 1 p 55.
An MRI of the cervical and lumbar spine was performed on 19 November 2018.[47] This showed no evidence of traumatic injury in the cervical spine but with discovertebal changes at the C6/C7 level with a loss of disc height and broad-based disc bulge with potential C7 root compression. At the lumbar spine there were discovertebral changes throughout the lumbar spine with annulus tears and low-grade disc bulges but no cause for radiculopathy.
[47] Insurer’s bundle AD 2 pp 528-529.
A whole-body bone scan was performed on 14 June 2019. This showed mildly active right C4/C5 facets arthritis as well as mildly active degenerative changes in the cervical and thoracic spine.
SUBMISSIONS
Claimant’s submissions
The claimant’s solicitors provided two sets of written submissions dated 1 December 2020 and 3 June 2022. [48]
[48] Claimant’s bundle AD 1 pp 34– 35 and 7-13.
In the submissions dated 3 June 2022 the claimant’s solicitor submitted that Medical Assessor Home relied upon an outdated version of the Medical Assessment Guidelines when conducting the assessment and thus failed to comply with sub-section 7.21(1) of the Act. The Guidelines which were in force at the time of Medical Assessor Home’s assessment on 7 April 2022 were version 8.1 of the Motor Accident Guidelines (in force from
17 December 2021 to 8 April 2022). Instead the claimant submits that Medical Assessor Home relied upon version 5.1 of the Motor Accident Guidelines, which were in force until
[49] Claimant’s bundle AD 1 pp 34– 35 and 7-13.
17 December 2020.[49]
It also submitted that he mistakenly confused the reports of Dr Bentivoglio and Dr Gothelf.
The claimant’s solicitor also submitted that Medical Assessor Home expressed an opinion about the mechanism of the accident which he was not qualified to express. He also determined the whole person impairment of each shoulder “by analogy” and failed to consider or give weight to other available evidence of impairment.
The claimant further submitted that Medical Assessor Home failed to provide adequate reasons for departing from the shared opinion of both independent medical examiners that the impairment in the right shoulder was at least 4%.
Finally the submissions argued that Medical Assessor Home denied the claimant procedural fairness by departing from the common position of the parties that the impairment in the right shoulder was at least 4%. He also erred by adopting a method of determining permanent impairment “by analogy,” without giving the claimant an opportunity to be heard about either matter. The claimant’s submissions argue that the Guidelines permit a Medical Assessor to make an assessment by analogy where there is a condition that is not covered in those Guidelines or the AMA4 Guides (Motor Accident Guidelines, cl 6.24). The right shoulder condition was covered in the Guidelines so an assessment by analogy was not authorised by cl 6.24. Medical Assessor Home did not explain why he had decided to assess the shoulder WPI “by analogy” (page 16). Nor did he explain why he had departed from the views of the two experts that there was at least 4% WPI attributable to the right shoulder.
In the submissions dated 1 December 2020 the claimant’s solicitor submitted that the claimant has suffered significant injuries as a result of the subject accident that are likely to be assessed at a WPI of greater than 10%.
Insurer’s submissions
The insurer has provided three sets of written submissions dated 15 January 2021,
[50] Insurer’s bundle AD 2 pp 9 – 13 , 1- 8 and 325 - 334.
1 July 2022 and 7 February 2022 [50].
In the submissions dated 7 February 2022 the insurer notes that the records of VOS Medical Centre and Dr Vo show that the claimant reported a fall and a back injury on
14 February 2012.[51] These medical records also show that the claimant frequently complained of and receive treatment for persistent back pain from 2012 until 2018. The claimant was referred to Dr James van Gelder, neurosurgeon, who reported on
[51] Insurer’s bundle AD 2 p 326.
13 February 2017 that the claimant complained of severe and ongoing back pain.

The claimant attended for acupuncture on 85 occasions for his lumbar spine from
16 December 2016, and his last attendance on 10 October 2018.
The insurer notes that on 4 September 2018, the claimant attended VOS Medical Centre (R49) where he reported that he had sprained his ankle a few days prior. [52]The notes record that the claimant had a normal gait and full range of motion, however the lateral malleolus was mildly tender with mild swelling.
[52] Insurer’s bundle AD 2 p 328.
Regarding the left knee injury the insurer refers to the clinical notes of Dr Malcom La and VOS Medical Centre Which show that the claimant complained of left knee pain on
30 March 2004, 14 October 2005 and left leg and back pain with radiculopathy several times in 2016.
The insurer notes that the claimant’s last report of back pain to his GP was on
[53] Insurer’s bundle AD 2 p 330.
24 March 2021 (R48). However, it is noted that prior to this date the claimant attended his GP on 14 occasions between 13 October 2020 and 24 March 2021. [53]
The insurer submits that the claimant’s treating doctor, Dr Vu (R34), was asked to explain the relationship between the knee injuries and the subject accident. Dr Vu confirmed that there was no right knee complaint when the claimant presented on 18 September and
19 September 2018. On 13 October 2020, the claimant reported bilateral knee pain and requested an MRI. Dr Vu opined that the right knee pathology finding was not caused by the subject accident as the claimant had no right knee symptoms at that time, in reference to the MRI.
The insurer relies on the further supplementary report of Dr Gothelf (R41). Dr Gothelf wrote that all injuries sustained in the subject accident had now stabilised, with no further treatment being required.
In conclusion the insurer notes that the claimant has a rather significant pre-accident history with respect to his cervical and lumbar spine, and left eye. Further, the claimant has reported injuries to his right ankle, left leg and left shoulder in the pre-accident period. Following the accident, the claimant did not report his accident to his GP when attending the practice two days later. Instead, he sought treatment for an injury suffered two weeks prior to the subject accident. The insurer submits that any physical injuries sustained in the accident were soft tissue in nature, and have now resolved. This is evidenced through his irregular reports of symptoms to his GP.
The insurer also notes that the issue of causation in respect of the subject accident, and the claimant’s knee complaints reported two years post-accident. Both Dr Gothelf and the claimant’s treating doctor, Dr Vu, have opined that the subject accident was not the primary cause of any knee symptoms.
In the submissions dated 1 July 2022 the insurer argues that the claimant’s submissions do not identify errors. They are simply a manifestation of the claimant’s disagreement with the Medical Assessor’s clinical findings.
Regarding the submission that Medical Assessor Home used the wrong Guidelines the insurer confirms that there is no substantial difference in the content of these Guidelines, to the extent that they were applied by Medical Assessor Home. Instead, the only apparent difference is the way in which the Guidelines are numbered.
Regarding the right knee injury, the insurer submits that Medical Assessor Home has expressed a medical opinion, interpreting the scans, the clinical history, and the reported symptoms post-accident, to reach his conclusion about the right knee. That is, the claimant had extensive osteoarthritis in the knee before the accident, and that there is no evidence to suggest that this osteoarthrosis has in fact been exacerbated as a result of the accident, to the extent that an impairment finding could be made.
Regarding the assessment of both shoulders the insurer argues that Medical Assessor Home correctly used cl 6.50 of the Guidelines and the five step test for assessing range of motion. He assessed the claimant by analogy. Medical Assessor Home was well within his discretion to use this method, as he gave weight to “available evidence to determine if an impairment is present”. Accordingly, the insurer submits that Medical Assessor Home made no error, and instead used his discretion, as prescribed in the Guidelines, to make a determination.
Regarding the claimant’s submission that Medical Assessor Home denied the claimant procedural fairness, the insurer notes that the finding of 4% WPI of the right shoulder is not a “shared position”. Medical Assessor Home has no obligation to make a finding consistent with the medical evidence previously obtained. Instead, and in accordance with cl 6.21, the Medical Assessor is to assess the claimant as he is on that day of assessment. Medical Assessor Home put the inconsistencies to the claimant during the examination, and asked for his comment on the inconsistencies.
In submissions dated 1 December 2020 the insurer submits that the claimant’s injuries do not exceed the 10% permanent impairment threshold as a result of the motor accident. The insurer relies on the report of Dr Todd Gothelf which confirms that the claimant’s final WPI due to the accident on 17 September 2018 is 4%.

Medical examination on 26 October 2022

Mr Dang attended the medical suites at the Commission on 26 October 2022. He was unaccompanied. An interpreter Cong Mai (NAATI no. CPN 5AQ99L) was present for the entire interview and examination. The examination was conducted by Medical Assessor Shane Maloney.

Pre-accident details and personal history

Mr Dang stated that he was in good health prior to the accident and was divorced and lived alone. He had been on a disability pension due to a back injury since 2013. There was an injury to his back at work which was covered by WorkCover in 2006 and an injury to the left shoulder in 2014.
A neurosurgeon, Dr Gelder consulted Mr Dang in February 2017 due to low back pain and sciatica in the left leg. He diagnosed spinal canal stenosis at that time. However, Mr Dang stated he had no pain in the left leg at that time. The GP also noted the soft tissue injury to the right ankle two weeks before the accident.

Additional documents

On 16 February 2005, the claimant presented to Dr Sarfraz after sustaining an injury to his lower back at work. [54] A plain X-ray of the lumbar spine showed degenerative changes at the L3, 4 and 5 levels. In 2011, he complained of pain involving his back and left knee. He ceased working on 26 November 2010. Dr Sarfraz issued several WorkCover certificates for suitable duties from April 2012 until October 2012.
[54] AD 3.
On 23 February 2011, the claimant presented a long history of low back pain and neck pain.[55] He was prescribed Panadeine Forte. On 11 March 2011, he reported right thigh discomfort that was worse with squatting. He was diagnosed with a chronic pain syndrome. He continued to consult Dr Lam complaining of pain across his lower back. A CT scan of the lumbar spine on 11 March 2011 showed a mild diffuse disc bulge at the L4/5 level with mild neural foraminal stenosis. On 8 November 2011, he was considered totally incapacitated due to chronic sciatica and adjustment disorder with depression. An MRI scan of the lumbar spine on 25 October 2011 showed small disc bulges at the lower lumbar spine without neural impingement.
[55] AD 4.

History of motor accident and ongoing treatment

Mr Dang was driving his car on 17 September 2018 when another car failed to give way colliding with his car on the right side and causing his car to hit another car on the passenger side. He was wearing a seatbelt at the time and airbags were deployed. He thinks he had a brief loss of consciousness but was able to get out of the car which was later a write off. Police and ambulance attended the scene, and he stated the ambulance officer drove him to the local train station from where he went home. He consulted his GP, Dr Vu the next day. At that time, he had pain in both shoulders, headache and neck pain. He later developed an increase in the chronic low back pain. His GP referred him to Dr McKechnie, neurosurgeon who arranged for cortisone injections to the cervical spine and an epidural to the lumbar spine.
Mr Dang states that he had 86 physiotherapy treatment which were of some benefit. He was also referred to an orthopaedic surgeon, Dr Chin with persistent pain in the right shoulder. A right rotator cuff tear was diagnosed which was repaired surgically on 20 March 2019. He now states that the left shoulder became painful after this repair.
He reported no further accidents or injuries since this motor vehicle accident.

Current symptoms

At present, Mr Dang has pain in both shoulders which increases when lying in bed and states that he cannot sleep on either side. Neck pain persists and increases with rotation movements. He gets a radiation of pain down both arms to the level of the elbows. Below the elbows he is asymptomatic.
He gets pain in the left knee and right ankle when walking. Low back pain increases with bending and occasionally he gets a diffuse radiation of pain down the left leg to the foot with numbness in the left calf which is not present at this time. There is a medial pain in the right knee which started about two weeks after the accident and increases after walking more than five minutes. He was able to walk from the train station to the Commission’s rooms today.

Current treatment

Mr Dang takes a Mobic 15 mg one a day, Lyrica 75 mg twice a day and Panadol when needed. He continues to have physiotherapy every two weeks and acupuncture. He consults his GP when necessary. No specialists are being consulted at present.

Clinical examination

Mr Dang walked into the room with a normal gait and sat comfortably during the interview. He states that he is right-handed. He was measured at 165 cm high and
68 kg in weight.

Cervical spine

On testing range of movement, flexion/extension, side bending, and rotation were all 50% expected range with no asymmetries. On palpation there was tenderness over the cervical spine and both trapezius muscles, but no guarding or spasm was noted in the cervical musculature.
On neurological examination of the upper limbs, reflexes are equal bilaterally with normal power and there was a global decrease in sensation in the right arm. No muscle wasting was apparent with the circumference of the upper arms 27 cm bilaterally (10 cm above the olecranon process) and in the upper forearm 26 cm bilaterally (5 cm below the olecranon process).

Shoulders

On inspection of the shoulders, no muscle wasting was noted and on palpation, tenderness over both acromioclavicular joints. Active movement was measured using a goniometer and repeated three times. He states that movement was restricted due to pain over the shoulder joints with no radiation from the cervical spine.
On testing range of movement, flexion was 100° on the right and 100°/90° on the left. Extension was 30° on the left and 30° on the right. Abduction was 90°/100° on the right and hundred degrees/90° on the left. Adduction was 30° both sides. Internal rotation was 80° on the right and 70° on the left. External rotation was 80° on the right 70° on the left.
It was noted that after the surgery to the right shoulder, the treating surgeon recorded much better ranges of movement including flexion 140°. Mr Dang states that for eight months after the surgery, he had a good range of movement and then it deteriorated again.

Knees

On inspection, no effusions were noted with normal movement of the patellae. On palpation, there was tenderness over the medial and lateral side of both knees. On testing range of movement, flexion was 120° bilaterally with 0° extension. No ligament laxity was noted in either knee.

Ankles

On inspection of the ankles, no effusions were noted and there was tenderness over the anterolateral ligament of the right ankle. There was a full pain-free range of movement of both ankles with plantarflexion 50° bilaterally, dorsi flexion 20° bilaterally with inversion 30° bilaterally and eversion of 20° bilaterally.

Lumbar spine

Mr Dang walked with a normal gait but had difficulty walking on his heels and toes due to poor balance but was able to squat 50% of expected range. On testing range of movement, flexion/extension and side bending were 50% of expected range with no asymmetry.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and there was a global decrease in sensation to the right leg. No muscle wasting was apparent with the circumference of lower thighs 41 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 34 cm bilaterally.

Causation and Diagnosis
Cervical spine – soft tissue injury

The Panel has determined that there was a soft tissue injury to the cervical spine sustained in the accident. The treating GP recorded this the following day. At the time of the Panel’s examination, no dysmetria was present and a global decrease in sensation to light touch to the entire right arm does not constitute a non-verifiable radicular complaint. Therefore, the classification is DRE l which is 0 % WPI.

Lumbar spine -soft tissue injury

The Panel has also determined that Mr Dang had a soft tissue injury to his lumbar spine due to the accident. The treating GP noted lower back pain the day after the accident. However, there was a past history of persistent lumbar pain prior to the accident with Dr Gelder, a neurosurgeon diagnosing spinal canal stenosis a year previously with sciatic symptoms to his left leg.
At the time of the Panel’s examination, there was a global decrease in sensation to the right leg which was not dermatomal and a classification of DRE l giving 0 % WPI. There was no separate injury to either legs with pain referral from the lumbar spine associated with decreased sensation in a non-dermatomal distribution.

Right Knee/ankle – soft tissue injury

The Panel has determined that there has been no injury to the right knee or ankle sustained in the accident. There is no contemporaneous documentation of injuries to these 2 joints. A sprain of the right ankle was noted 2 weeks prior to the accident, At the time of our examination there was 0 % WPI for each of these joints.

Shoulders – soft tissue injury

The treating GP recorded bilateral shoulder pain the day after the accident. The Panel accepts that there may have been injuries to both shoulders. The right shoulder would have been injured due to the seat belt . The left should much less likely to be injured but Mr Dang had pain in this shoulder immediately after the accident and the Panel accepts a soft tissue injury was sustained. At the time of our examination, there was no referral of pain from the cervical spine to the shoulders.
Due to inconsistency in range of movement of both shoulders at the time of our examination and in comparison, to other examiners, Medical Assessor Maloney asked Mr Dang why there was variations. He stated that in fine weather he has a better range of movement (today was a warm sunny day) and he states that insurance doctors forced him to move to shoulders in a painful situation. He also states that the shoulder pains are deteriorating especially at night and wakes him up. Due to this inconsistency, Medical Assessor Maloney told Mr Dang that range of movement would not be able to use to assess impairment. By the interpreter he stated that he understood this. This in consideration of paragraph 6.41 of SIRA Guidelines.
When examining Mr Dang’s shoulders the Panel was mindful of the criticisms made by the claimant’s solicitors in their written submissions about the methodology used by Medical Assessor Home. The Panel also took into account the requirements of the Guidelines when examining and assessing Mr Dang’s shoulders.
Paragraph 6.50 states that due to inconsistency of range of motion, it is no longer a valid parameter of impairment and the Panel should use its discretion in considering and determining the WPI. The Panel is determining the WPI for the shoulders by analogy. Mr Dang has tenderness on palpation of both acromio-clavicular joints. Table 18 of AMA 4^th edition gives WPI of acromioclavicular joints as 15 %. Referring to table 19 , this could be assessed as moderate which is 20 % joint impairment. Therefore, 20 % of 15 % is 3 % WPI for each shoulder.
The Panel’s has assessed the claimant’s total WPI as 6 % for both of Mr Dang’s shoulders and 0 % for all the other injuries. This gives an overall total WPI of 6 %.

PANEL DELIBERATIONS

Causation and reasons

Mr Dang was involved in a motor vehicle accident on 17 September 2018.
Mr Dang reported that as a result of the accident he received injuries to the neck, left and right shoulders, lower back, left leg, right ankle, chest, head and psychological injury.[56]
[56] Claimant’s bundle AD 1 p 39.
As referred to earlier in these reasons, Mr Dang had a prior history of injuries to his lumbar spine, left leg and left knee and also more recently to his right ankle.
As a result of the motor accident he had a history of soft tissue injury to his cervical and lumbar spine but at the time of the Panel’s re-examination in October 2022 he did not report any radiculopathy.

Permanency of impairment
Statement about permanent impairment

Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4^th Edition) (AMA 4) (p.315) as follows:
36.“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
It is now five years since his motor vehicle accident on 17 September 2018.
His injuries are stable and a permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.

Determinations - permanent impairment

The determination as to permanent impairment is made in accordance with the AMA 4 and Part 6 of the Motor Accident Guidelines, Permanent Impairment Table;
·        Cervical spine- Strain/Whiplash and soft tissue injury. He has symptoms but no asymmetry of motion or radicular symptoms. His condition is consistent with a DRE Cervicothoracic Category I impairment giving him a 0% WPI based on Table 73 on page 110 of AMA 4;
·        Lumbar spine- Strain and soft tissue injury - He has symptoms but no asymmetry of motion or radicular symptoms. His condition is consistent with a DRE Lumbosacral Category I impairment giving him a 0% WPI based on Table 72 on page 110 of AMA 4;
·        Right shoulder- soft tissue injury and right rotator cuff tear – 3 % assessable impairment, and
·        Left shoulder- soft tissue injury– 3 % assessable impairment.
The following injuries were not caused by the motor accident:
· both knees – contusion. His knees are now normal on examination. There is no assessable impairment, and
· both ankles – contusion. His ankles are now normal on examination. There is no assessable impairment.
Regarding the impairment assessment of the claimant’s knees and ankles, the Panel found in its re-examination of the claimant no apparent injury, loss of rotation or impairment to either of the claimant’s knees or ankles and thus found no assessable impairment.

CONSISTENCY

The Panel found no inconsistencies in the claimant’s account about how the accident occurred and what injuries the claimant suffered. The Panel found some inconsistency in the presentation of his shoulder injuries but these were put to the claimant at the time of his re-examination and referred to earlier in these reasons.

CONCLUSION AND CERTIFICATION

For the above reasons, the Panel revokes the certificate issued by Medical Assessor Home.
The Review Panel’s certificate is attached at the commencement of these Reasons.

[2023] NSWPICMP 549

1 November 2023