Huo v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Huo v QBE Insurance (Australia) Limited [2023] NSWPICMP 314
CLAIMANT:	Aiyu Huo
INSURER:	QBE Insurance (Australia) Limited
REVIEW Panel
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Peter Yu
MEDICAL ASSESSOR:	Ian Cameron
DATE OF DECISION:	5 July 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury in a motor vehicle accident on 22 November 2021; assessment of threshold injury; dispute as to causation of compression fracture of lumbar spine; Medical Assessor Truskett found the L4 superior endplate compression fracture was pre-existing; certified all injuries as threshold injuries; Held – test as to causation as per Briggs v IAG Limited trading as NRMA Insurance; on balance of probabilities, Panel satisfied accident caused L4 superior endplate compression fracture; injury to cervical spine, right shoulder, right arm and hand, right leg, right hip, right knee and right foot all threshold injuries; L4 superior endplate compression fracture is a non-threshold injury.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Assessment of Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Panel revokes the certificate of Medical Assessor Truskett dated 28 October 2022 and determines that the following injuries caused by the motor accident are not threshold injuries: · lumbar spine – L4 superior endplate compression fracture. The Panel determines that the following injuries caused by the motor accident are threshold injuries: · cervical spine – soft tissue injury; · right shoulder – soft tissue injury; · right arm and hand – soft tissue injury; · right leg – soft tissue injury; · right hip – soft tissue injury; · right knee – soft tissue injury, and · right foot – soft tissue injury.

STATEMENT OF REASONS

INTRODUCTION

On 22 November 2021 Ms Aiyu Huo (the claimant) was a passenger in a car travelling through a green light when the insured vehicle failed to stop at a red light and hit the vehicle in which the claimant was a passenger from the right (the accident).
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Huo under the Motor Accident Injuries Act 2017 (MAI Act).
At the time of the accident statutory benefits for treatment and care under the MAI Act cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”.[1]
[1] Section 3.28 of the MAI Act.
In the Application for Personal Injury Benefits dated 30 November 2021 Ms Huo listed the following injuries received as a result of the accident: “right shoulder pain; neck numbness; right hand numbness; back; hip; right knee; right leg; chest; right foot”.[2]
[2] AD2 p 28.
On 10 March 2022 the insurer determined that Ms Huo had sustained a minor (threshold) injury and denied liability for statutory benefits beyond 26 weeks after the accident.
On 30 March 2022 Ms Huo sought an Internal Review of the minor (threshold) injury decision and on 20 April 2022 the insurer affirmed the determination that the claimant’s injuries met the definition of a minor (threshold) injury.
Ms Huo filed an application in the Personal Injury Commission (the Commission) in respect of the minor (threshold) injury dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including whether the injury caused by the motor accident is a threshold injury for the purposes of the Act.

A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]
[3] Section 7.20 of the MAI Act.

THRESHOLD INJURY- STATUTORY PROVISIONS

The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on
1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3   The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6     The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d)     a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7   In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8    Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (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.”
In Briggs v IAG Limited trading as NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

ASSESSMENT UNDER REVIEW

The threshold injury dispute was referred to Medical Assessor Philip Truskett. He issued a certificate dated 28 October 2022.[5]
[5] AD1 p 6.
The injuries referred for assessment were the following:
·        cervical spine – neck pain and numbness;
·        foot – right foot numbness;
·        leg – right leg numbness;
·        lumbar spine – lower back pain and numbness;
·        hip – right hip pain;
·        knee – right knee pain;
·        arm – right hand numbness, and
·        shoulder – right shoulder pain and numbness.
Medical Assessor Truskett reported pain at the back and right side of the neck. She also reported pain radiated from her right shoulder along the inner aspect of her right arm to include the elbow causing numbness at the back of her right middle, ring and middle little finger which Assessor Truskett did not consider strictly radicular. He reported the numbness was present all the time with associated pain.
He reported pain related to the right shoulder, right arm and hand related to the pain radiating from the neck.
In relation to the back Medical Assessor Truskett reported pain in the right lumbar region present all the time radiating down the back of the right buttock, hip and leg to the lateral toes. He reported the pain to the right knee, right foot, right hip and right leg relates to the pain radiating from the back.
Medical Assessor Truskett reported Ms Huo could run for short distances with pain, walk and sit for 20 minutes and stand for 30 minutes. She can shop, do housework, albeit slowly and cook if sitting. She can no longer engage in yoga.
On examination Medical Assessor Truskett found no muscle guarding, and a full range of neck movements with normal rhythm. He found very little sensory change below the elbow, biceps, triceps and supinator jerks were equal and there was no wasting of the muscles of the upper limbs. He found a full range of wrist, elbow, and shoulder movements.
In relation to the back Medical Assessor Truskett found no kyphosis or scoliosis and no loss of lumbar lordosis. There was no paravertebral muscle guarding. He reported power, tone and sensation in both lower limbs were variable on the right side with an inconsistent 6/10 but not of a dermal distribution. Sensation on the left was normal, knee jerk, medial hamstring jerk and ankle jerks were present and equal. He found no wasting of the muscles of the lower limbs. He found a full range of back movement, straight leg raising was possible to 90 degrees bilaterally, Ms Huo could walk on her toes and her heels and manage a full squat with support. He found no knee deformity.
Medical Assessor Truskett reviewed the imaging and described the L4 superior endplate compression fracture as pre-existing.
Medical Assessor Truskett found no evidence of radiculopathy of the right or left upper limb and no evidence of partial rupture of tendons, ligaments, menisci or cartilage. He concluded the following injuries were minor injuries:
·        cervical spine;
·        foot numbness;
·        left leg numbness;
·        lumbar spine;
·        lower leg numbness;
·        hip numbness;
·        right knee numbness;
·        right arm numbness, and
·        right shoulder soft tissue injury and numbness.

REVIEW PROCEDURE

The claimant lodged an application for review of the assessment of Medical Assessor Truskett on 19 December 2022 within 28 days after the day on which the certificate was made available to the claimant.
On 3 March 2023 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).[6]
[6] AD2 p 9.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission)^[7]. Accordingly, the President’s delegate referred the matter to this Panel to assess.
[7] 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.[8]
[8] 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.[9]
[9] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.

EVIDENCE BEFORE THE REVIEW PANEL

The claimant uploaded to the portal an indexed bundle of documents paginated from pages 1 to 203 and marked AD1.
The insurer uploaded to the portal an indexed bundle of documents paginated from pages 1 to 44 and marked AD2.
The claimant is now 49 years of age and was 47 years of age at the time of the accident on 22 November 2021.

Pre-accident medical records

Hurstville Medical practice[10]

[10] AD1 p 30.

The clinical notes of Hurstville Medical Practice document consultations from 24 October 2007 until 9 May 2022.
On 29 June 2009 Dr Zhu recorded “upper back pain going to front and left arm for 2 days, getting better, no injury”.
On 28 November 2011 it was reported the claimant had sustained a 5cm laceration to her right foot due to standing on rusted steel.
On 12 October 2015 Dr Li reported “Pt has lower back pain after twisting her lower back yesterday and acupuncture did not help and can no bending”. On examination he recorded “Right, back has mild tender”. On 14 October 2015 Dr Li reported Ms Huo had been having acupuncture for her back symptoms.
On 9 March 2016 Dr Li recorded inter alia “…upper back pain going to anterior chest wall on and off 3-4 months, chronic neck pain too. No other symptoms…”.
On 25 August 2016 Dr Wang reported Ms Huo was “currently pain free” and on 7 November 2016 he reported “Pt has headache and lower back pain from work”. He described the back as tender.

St George Hospital

Ms Huo attended St George Hospital on 28 June 2020.[11] The discharge summary records:
“Standing on a chair approx. 0.5m off floor when lost balance and fell backwards. Was clearing top kitchen cupboards. Fell hitting occiput on a bench and onto buttocks in a sitting position. Sustained occipital lac. No red flags for intracranial bleed. Mild lower back pain but still mobilising normally and drove to department. No lower limb numbness/weakness. No red flags for causa equina….”
[11] AD1 p 1000.
On examination there was no midline thoracic/lumbar/sacral tenderness, and mild tenderness of the left buttock, left paraspinal region. The hospital concluded:
“Muscular lower back/buttock pain. No midline spinal pain and fact pt independently mobilising and has FROM all joints lower limbs strongly goes against any acute fracture. …”

Post-accident medical records

Hurstville Medical practice

The records of Hurstville Medical Practice show do not record any attendances from 20 July 2019 until after the accident on 25 November 2021.
Ms Huo saw Dr Timothy Chin on 25 November 2021.[12] He recorded the claimant’s involvement in the accident and recorded the following examination details:
[12] AD1 p 35.
“On examination
Alert
Chest clear
Abdomen SNT
No long bone deformity
R shoulder
R AC joint tenderness
Painful arc syndrome
R knee exam limited by jeans
Normal ROM
Mild tenderness along joint line
Able to weight bear”
Ms Huo saw Dr Li on 27 November 2021. He recorded:
“Pt had MVA on 22/22/2021 when a car hit from R side and has R face and upper back and shoulder and lower back and knee injured and pain and has R fingers and toes numbness and has been to DEM and had Panadol and has no much help and had R shoulder X ray/USS and showed no significant [sic].”
In a Certificate of Capacity dated 27 November 2021 Dr Jiang Li provided a diagnosis of “R upper back/neck/shoulder/upper arm/wrist/lower back/hip/lower leg injury from MVA”.
Medical report completed by Dr Li dated 29 November 2021 indicates current symptoms as: “R upper back/neck/shoulder/upper arm/wrist/lower back/hip/lower leg injury from MVA” with a diagnosis of Grade II Whiplash Associated Disorder. He estimated with proper treatment and management the time for recovery will be three to six months.

On 18 December 2021 Dr Li reported the right upper back was tender.
In a report dated 29 January 2022 Dr Li started Ms Huo had right sided numbness and pain. He reported he had requested a T-spine MRI due to upper back pain. He suggested the injury should have a reasonable prognosis with recovery in three to six months with proper treatment and management.
On 12 February 2022 Dr Li reported the lower back was tender and recommended the claimant have a lumbar spine MRI.
On 12 March 2022 Dr Li reported hand numbness and lower back pain form the accident.
On 4 May 2022 Dr Li reported the lower back was tender. It was noted the back pain had returned after the claimant stopped taking Lyrica and it was agreed the claimant would continue physiotherapy. He referred Ms Huo to Dr Saeed Kohan, neurosurgeon.

Fort Healthcare physiotherapy

Allied Health Recovery Request 1 (AHRR) dated 26 March 2022 completed by Jiawen Tian, physiotherapist, records the diagnosis as:

“Neck pain/ Right arm pain/ Right arm numbness/ Lower back pain/ Right hip pain/ Right lower leg pain/ Right lower leg numbness injury from MVA”.[13]
[13] AD1 p 199.

The current signs and symptoms reported by the physiotherapist were as follows:
“-       R arm pain, numbness, R hip pain, Rvleg [sic] pain/numbness, neck pain and dizziness, Constant lower back pain 6-7/10
-      C2/3 center + bilateral Tsp, stiffness
-      L4/S1 disc bulging + L5/S1 disc bulging compressing L5 and potentially S1 nerve
-      L4 chronic superior endplate compression fracture
-      Reduced lower back side flexion; 25 degrees, restricted by R lower back pain
-      Reduced sitting/standing ability; 10 mins/reduced walking ability; 10 mins then pain increases
-      Neck muscles, lower back muscles, R arm, R glutes, R leg muscles tenderness.”

Imaging

X-ray right knee, chest and right shoulder, 25 November 2021[14] – the report concluded:
“Normal right knee x-ray.
Normal heart and lung X-ray.
A few mid thoracic vertebrae show 20 percent central wedging. A DEXA may be useful to check for any osteoporosis or osteopenia.’
[14] AD1 p 51.
The glenohumeral joint is normal. The AC joint is normal. The bone density and texture are normal. The soft tissue is normal.”
Ultrasound right shoulder, 25 November 2021[15] – the report concludes:
“Mild thickening of the subacromial/subdeltoid bursa with impingement at 120 degrees
[15] AD1 p 51.
abduction….”
MRI thoracic spine, 1 February 2022[16] – the report concludes:
“No significant osseous or ligamentous injury post-MVA. No other pathology is seen.”
[16] AD1 p 48.
MRI lumbar spine, 23 March 2022[17] – the report reads:
[17] AD1 p 45.
“Clinical History: Back pain and right leg numbness.
Technique: Sagittal T1, T2, STIR, axial T2
Findings: There is straightening of the lumbar lordosis. There is a superior endplate compression of L4 with up to 60% reduction in vertebral body height. This appears long-standing and is not associated with significant marrow oedema. The conus tapers at the level of T12/L1. Cauda equina nerve roots define normally.
At L1/2 and L2/3, no significant canal or foraminal stenosis.
At L3/4, disc dehydration and mild broad-based disc bulge without significant canal or foraminal stenosis.
At L4/5, disc dehydration and broad-based disc bulge with indentation of the thecal sac and mild canal stenosis. There is contact of both descending L5 nerve roots at the lateral recess without flattening. No significant foraminal stenosis.
At L5/S1, broad-based disc bulge with indentation of the thecal sac and mild canal stenosis. There is contact and flattening of both descending S1 nerve roots at the lateral recess. Mild right greater than left foraminal stenosis without overt exiting nerve root impingement. Mild bilateral facet joint hypertrophy.
CONCLUSION:
1.     L5/S1 broad-based disc bulge with potential impingement of both descending S1 nerve roots.
2.     L4/5 broad-based disc bulge with contact of both descending L5 nerve roots.
3.     No high-grade lumbar canal or foraminal stenosis.
4.     Chronic L4 superior endplate compression fracture.”
MRI cervical spine, 23 March 2022[18] – the report concludes:
“Mild to moderate right C5/6 foraminal stenosis.
No significant canal or left-sided foraminal stenosis.”

SUBMISSIONS

[18] AD1 p 47.

Claimant’s submissions

The claimant provided submissions dated 19 December 2022 in support of the review.[19]
[19] AD1 p 2.
The claimant submits on 27 November 2021 and on 18 December 2021 she complained about numbness to the toes as well as to the right side. On 12 February 2021 she reported right arm and leg numbness and was referred for an MRI scan of the lumbar spine.
The claimant notes the MRI scan of 23 March 2022 disclosed a “chronic L4 superior endplate compression fracture”.
The claimant concedes she suffered a lower back injury on 28 June 2022 but disputes she sustained a lower back fracture. The claimant relies upon the discharge summary of St George Hospital which states: “muscular lower back/buttock pain. N midline spinal pain and fact pt independently mobilising and has FROM all joints lower limbs strongly goes against any acute fracture…”.
The claimant submits it was more likely the fracture to the L4 was caused by the accident.
The claimant also submits Assessor Truskett erred when assessing radiculopathy. The claimant notes the MRI report of the lumbar spine shows a form of nerve root impact on L5 as well as S1. Further the claimant submits the Medical Assessor failed to consider the weakness of the lower limb present since the accident.

Insurer’s submissions

The insurer provided submissions dated 19 January 2023.[20]
[20] AD2 p 2
The insurer submits that by his deliberate insertion of the words “pre-existing” after “chronic L4 superior endplate compression fracture” Medical Assessor Truskett concluded that the L4 fracture was attributable to prior pathology.
The insurer also notes that the reference to “long standing” pertaining to that pathology implies the pathology had developed over the course of a significant period of time, likely many years.
The insurer also submits there is a possibility the claimant sustained the L4 fracture when she fell sustaining a low back injury as indicated in the discharge summary of St George Hospital of 28 June 2020.
The insurer disputes there was any failure by Medical Assessor Truskett to take into consideration the possible “nerve root impact” or the evidence within the Hurstville Medical Practice clinical records in concluding the injury sustained by the claimant was a threshold injury.
The insurer provided submissions dated 14 June 2022 in respect of the threshold injury dispute. The insurer notes there were no deformities or abnormalities identified in the MRI scan of the thoracic spine. Importantly, the MRI scan of the lumbar spine indicated that the bulging discs are touching as opposed to compressing the S1 and L5 nerve, suggesting a lack of injury to the nerves.
The insurer notes in the AHRR dated 26 March 2022 there are no examination findings which indicate the presence of clinical signs of radiculopathy.
The insurer also suggests there is an extensive history of prior back, neck and right foot pain making it difficult to establish a causal connection with the accident.

THE MEDICAL EXAMINATION

Mrs Huo was re-examined by Medical Assessor Cameron at Hornsby on 16 June 2023. She was accompanied by Ms Jun Yang, Mandarin interpreter, NAATI number CPN6XV93C. Mrs Huo had been driven to the appointment by her husband.

Background

Mrs Huo lives at Beverly Hills with her husband, children aged 13 and 10, and her sister.
At the time of the accident Mrs Huo had been working as a house cleaner for 10 to 15 hours per week. She had held that position for about three years.
Mrs Huo said that her past health had been good. She had occasional aches and pains but nothing serious. She specifically said there had been no earlier back injuries or back problems. She specifically denied falling from a chair and hitting her head in 2020.
Mrs Huo is a non-smoker.

History of Injury

On 22 November 2021 Ms Huo was the front seat passenger in a vehicle driven by her sister. She was wearing a seatbelt. Her vehicle was hit from the driver's side at the front. She said that the airbags did not deploy, and the car was written off.
Mrs Huo had blood on her face, and she was shocked. She was able to leave the vehicle.
An ambulance attended the scene, but she declined to go to hospital. Her husband attended and took her home. During that evening she had right arm and knee pain.
Mrs Huo then went to St George Hospital where there was a triage assessment. She said she waited three hours and then left without being seen by a medical practitioner.
On 25 November 2021 Mrs Huo said she saw her general practitioner, Dr Li. She recalls that there was continuing pain from the right knee and right shoulder, and imaging studies were arranged.
Mrs Huo said that she had ongoing right-sided pain mainly from the right upper arm and right lower leg. She said later numbness developed in these areas.
At some later time, she felt pain in the lower thoracic region. This was an intermittent pain and Mrs Huo felt that this area was out of place.
Mrs Huo returned to driving. From July 2022 she obtained work as a kitchen aide in a nursing home. She worked 6.5 hours per week over two days. She said that she was not able to work more than this.
Current symptoms are right upper arm and shoulder pain and right lower leg pain. There is numbness felt over the lateral aspect of the lower leg and dorsum of the foot. There is right upper arm pain particularly felt posteriorly.
Her current medication is Lyrica 75 mg at night. Dr Li continues to be the general practitioner.

Examination

Mrs Huo is right-handed, 160cm in height and weighs 74kg.
Mrs Huo was cooperative and provided a clear history. There was no psychological distress present.
At the cervical spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both shoulders. There was pain at extremes of movement at the right shoulder.
There was a full range of motion at other upper extremity joints.
There were no neurological abnormalities in the upper extremities.
Circumferences of the upper extremities below the elbow were right 23cm and left 23cm.
At the thoracic spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.

At the lumbar spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was some prominence of the L4 spinous process.
There was a full range of motion at both knees. There was no crepitus or instability.
There was a full range of motion at other lower extremity joints.
There were no neurological abnormalities in the lower extremities.
Circumferences of the lower extremities below the knee were right 34cm and left 34cm.

Mrs Huo walked with a normal gait.

Imaging Studies

Mrs Huo brought with her a report of the MRI of the lumbar spine on 23 March 2022, which reported a 60% reduction in height of L4.
She also brought a report of a DEXA bone mineral density scan from 31 May 2022. This showed a lumbar spine T-score of -1.0 and a femoral neck T-score of -0.2.

DIAGNOSIS AND CAUSATION

Lumbar spine

There is a dispute as to diagnosis and causation of the lumbar spine injury, in particular, whether the L4 superior endplate compression fracture was causally related to the accident.
Having regard to the comments of Wright J in Briggs the Panel considers it is appropriate to apply the test as to causation set out in Part 6 of the Guidelines.
In Briggs Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[21] His Honour stated at [70]-[72]:
[21] Briggs [2022] NSWSC 372.
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes[1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
Although the evidence including the clinical evidence to date does not demonstrate the attributability of the lumbar fracture with absolute certainty, having regard to the test of causation outlined in Briggs the Panel finds on the balance of probabilities that the accident did cause the L4 superior endplate compression fracture. The reasons for that conclusion are as follows:
·     there is no pre-accident record of a lumbar vertebral fracture;
·      records of the claimant's pre-accident presentation to St George Hospital on 28 June 2020 did not identify a lumbar fracture;
·     contemporaneous records of the general practitioner, Dr Li on 27 November 2021 and on 12 February 2022 document low back pain;
·     there have been consistent complaints of low back pain thereafter;
·     the findings of the post-accident medical imaging studies do not override her post-accident clinical progress;
·      although most lumbar fractures from physical trauma correlate with severe localised pain, this does not apply to all such fractures;
·     both at re-examination and from the contemporaneous post-accident clinical records, the claimant's post-accident low back pain appears less severe and less localised than that of most, but not all people, who have trauma-induced lumbar vertebral fractures;
·     information about what happens to most people (epidemiological information) does not invalidate or trivialise person-specific, circumstance-specific medical features (clinical information). Clinically, it is unreasonable to conflate epidemiological evidence with clinical evidence;
·        on re-examination Medical Assessor Cameron found the claimant’s presentation to be straightforward with no suggestion of embellishment or exaggeration with no reason to doubt the history she provided;
·     the panel's assessment following re-examination of the claimant found the claimant's clinical presentation to be both internally consistent and consistent with clinical records of symptoms;
·     on re-examination, the claimant advised she had not sustained direct physical trauma to her low back before the accident, and
·     there is evidence of a deterioration in the claimant’s post-accident participation in work, including absence from her pre-accident cleaning work.
The Panel finds the L4 superior endplate compression fracture is a non-threshold injury.

Cervical spine

Ms Huo demonstrated a reduced range of motion of the cervical spine. However, in the absence of two signs of radiculopathy the Panel finds the claimant sustained a soft tissue injury to the cervical spine caused by the accident which is a threshold injury.

Right shoulder, arm and hand

Ms Huo continues to complain of pain to the right shoulder and right upper arm. There was no specific complaint relating to the right hand. There was a full range of motion of the right shoulder with pain at extremes of movement.
The Panel finds Ms Huo sustained a soft tissue injury to the right shoulder, the right arm and hand caused by the accident. These are threshold injuries.

Right leg, right hip, right knee, right foot

Ms Huo continues to complain of right lower leg pain with numbness over the lateral aspect of the lower leg and dorsum of the foot. She complained of right sided pain following the accident including the hip.
One examination Medical Assessor Cameron found a full range of movement and no neurological abnormalities.
The Panel finds the claimant sustained soft tissue injury to the right leg, right hip, right knee and right foot. These are threshold injuries.

PANEL’S FINDINGS

The Panel revokes the certificate of Medical Assessor Truskett dated 28 October 2022 and determines that the following injuries caused by the motor accident are not threshold injuries:
· lumbar spine - L4 superior endplate compression fracture.
The Panel determines that the following injuries caused by the motor accident are threshold injuries:
·        cervical spine – soft tissue injury;
·        right shoulder – soft tissue injury;
·        right arm and hand – soft tissue injury;
·        right leg – soft tissue injury;
·        right hip – soft tissue injury;
·        right knee – soft tissue injury, and
·        right foot – soft tissue injury.

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Citations

Huo v QBE Insurance (Australia) Limited [2023] NSWPICMP 314

Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

0

Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372

Metro North Hospital and Health Service v Pierce [2018] NSWCA 11

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29

[2023] NSWPICMP 314

5 July 2023