Insurance Australia Limited t/as NRMA Insurance v Cha

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Cha [2024] NSWPICMP 783
CLAIMANT:	Woongnam Cha
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Mohammed Assem
MEDICAL ASSESSOR:	Les Barnsley
DATE OF DECISION:	21 November 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claims for statutory benefits and damages; disputes about threshold injury and whole person impairment (WPI); Medical Assessor Woo determined claimant’s lumbar spine injury (annular tear and disc protrusion at L4/5) was a non-threshold injury and that the degree of the claimant’s WPI was 16%; insurer’s application for review; in addition to lumbar spine injury, claimant alleged injuries to his neck and shoulders; matter complicated by a work accident one year earlier in which the claimant fractured his leg; claimant did not see a GP for either his work accident or motor accident until after the motor accident; insurer relied on biomechanical evidence about forces involved in the motor accident; claimant attended re-examination and demonstrated inconsistencies; GP’s notes record back complaints due to both accidents and inconsistencies regarding status of leg symptoms; Panel satisfied claimant sustained a neck injury which was a soft tissue threshold injury; Panel satisfied the claimant sustained a right shoulder injury which was a threshold injury; Panel not satisfied the claimant injured his left shoulder; Panel satisfied claimant had a lower back injury which was a soft tissue injury and that the L5/S1 disc injury and possible radiculopathy was not caused by the motor accident; Held – claimant’s injuries were threshold injuries (David v Allianz and Allianz v Susak applied) and his WPI was 0%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Woo dated 24 May 2024. 2. Certifies that: (a) the injuries caused by the motor accident on 24 March 2022 are threshold injuries for the purposes of the Act, and (b) the degree of Mr Cha’s permanent impairment resulting from the injuries caused by the motor accident is 0% and therefore not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Woongnam Cha was involved in a motor accident on 24 March 2022. Mr Cha says he was driving in Mount Vernon, in Sydney. As he stopped at a roundabout waiting for traffic to clear he was run into from behind.
Mr Cha says he injured his neck, lower back and both shoulders in the accident and developed a psychological injury. He made a claim for statutory benefits and then damages against NRMA, the third-party insurer of the vehicle that Mr Cha says caused his accident.
Two medical disputes have arisen in connection with Mr Cha’s claims and the claimant referred these disputes to the Personal Injury Commission (the Commission) for assessment in a single set of proceedings (M20172/24) as follows:
(a) whether Mr Cha’s injuries were or were not, threshold injuries, and
(b) the degree of whole person impairment (WPI) resulting from the injuries caused by the accident.
On 24 May 2024, Medical Assessor Woo determined in a single document that:
(a) the claimant’s cervical spine and shoulder injuries were threshold injuries, but the lumbar spine injury was not, and
(b) the degree of the claimant’s WPI was 16%.
The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s decisions.
On 12 August 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on

14 August 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review.
The Panel has been advised that Medical Assessor Canaris undertook an assessment of the claimant’s psychological injuries and found on 2 July 2024 that the claimant had an alcohol use disorder which was not caused by the accident and therefore found he did not have to assess either threshold injury or WPI.
The Panel understands that Medical Assessor Canaris’s decisions are the subject of a review application which has been allowed but a Panel has not yet been convened in relation to that matter.

LEGISLATIVE FRAMEWORK

General

Mr Cha’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.

Statutory benefits and threshold injury

While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 52 weeks after the accident.
A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[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.”
If a person injured in a car accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2) (highlighted in italics in paragraph 12 above), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.
Clause 5.8 of the Motor Accident Guidelines defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“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 summary, if the person injured in the car accident sustains a spinal nerve injury this is a threshold injury unless the particular nerve injury manifests in two of the five signs of radiculopathy.

Entitlement to damages including damages for non-economic loss

In a claim for lump sum compensation, damages are assessed in accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2024 is $654,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[3] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[3] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.

Dispute resolution

Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Dixon’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges for the application to be referred to a review panel consisting of a member of the Commission and two Medical Assessors (sub-ss (2) and (2B)).
The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

ASSESSMENT UNDER REVIEW

Medical Assessor Woo examined the claimant on 16 May 2024 and issued his certificate on 24 May 2024. He confirms at [2] that he was asked to assess a cervical spine whiplash injury including right arm radiculopathy, bilateral shoulder injuries and a lumbar spine L5/S1 disc extrusion.
Medical Assessor Woo has a history of the claimant’s work-related injury and said, “he also had some back and neck pain, but he states that the pain was not serious.”
Medical Assessor Woo has a history of the accident, attendance on the general practitioner (GP) within five days and complaints of neck pain with radiation, right shoulder pain and low back pain. The claimant’s current complaints were of lower back pain radiating to the knees, neck pain and stiffness radiating to both arms, bilateral shoulder pain worse on the left and extending to the left wrist.
Medical Assessor Woo examined the cervical spine and found asymmetric loss of motion but no guarding. Neurological examination of both upper limbs showed normal reflexes, no weakness and no atrophy. There was abnormal sensation in a global fashion.
There were no neurological signs in the lower limbs, no dysmetria in the back, negative nerve root lesion signs and no muscle guarding.
Shoulder range of motion was restricted on both sides with the right more so than the left.
He found:
(a)    no fracture or complete or partial rupture of tissue in the cervical spine and no radiculopathy;
(b)    no fracture in the lumbar spine but an MRI finding of extruded disc material which was due to the partial rupture of cartilage but no sign of lumbar radiculopathy, and
(c)    no fracture or complete or partial rupture of tissue in the shoulders.
He assessed the following impairments:
(a)    WPI of 5% in the cervical spine due to asymmetric movement and non-verifiable radicular complaints;
(b)    WPI of 5% in the lumbar spine due to asymmetric movement and non-verifiable radicular complaints, and
(c)    4% right shoulder impairment and 2% left shoulder impairment due to restricted range of motion.

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer says that the Medical Assessor has failed to consider critical and important evidence, failed to respond to the insurer’s argument on causation and failed to explain his reasons for the assessments of WPI and threshold injury.
The insurer identifies evidence from before the accident following the work injury that the insurer says supports a finding of a pre-existing condition which has continued, and that the Medical Assessor has not explained how the claimant’s current low back symptoms related to the motor accident (and not the work accident).
The insurer also argues that the Medical Assessor has failed to consider a deduction for pre-existing WPI.

Claimant’s submissions

The claimant says the Medical Assessor was aware of the claimant’s work injury in

March 2021 and has a record of some back and neck pain which was not serious. The claimant says the insurer can only rely on medical evidence about the 2021 work injury from before the date of the car accident 24 March 2022. The Medical Assessor referred to records from Dr Suzuki from May 2023 which is after the car accident.
The claimant relies on a number of other mentions in the Medical Assessor’s decision of the work accident and the symptoms relating to it.
The claimant says Medical Assessor Woo has explained his reasoning about the low back pain having accepted that the pre-accident complaints were not serious.
The claimant cites further post motor accident evidence about the work-related accident and says this is not pre-accident medical evidence.

Procedural matters

On 16 August 2024, the Panel issued directions to the parties for bundles of documents. The Panel noted that it already had a bundle of 750 pages from the insurer, but the Panel did not have a copy of the claimant’s reply or any documents from the claimant. The claimant’s bundle of 512 pages was relayed to the Panel on 1 October 2024.
The Panel met on 24 October 2024 and reported to the parties on 25 October 2024.
The Panel asked the insurer whether it conceded the claimant sustained some form of neck injury and shoulder injuries (or symptoms) in the accident. The insurer was also asked to confirm whether it agreed that if causation was established that the extrusion of disc material at L5/S1 would be a non-threshold injury. The insurer was asked to enquire about whether the workers compensation insurer had arranged an independent medical examination of the claimant.
The Panel asked the claimant for a single bundle of Dr Lam’s clinical notes.
The parties were asked to agree that the lumbar spine radiology referred to in Dr Mitchell’s report (for NRMA) was a reference to the 28 September 2022 MRI and that there was no other (earlier) radiology.

Parties’ responses

The insurer advised the Panel on 15 November 2024 that it disputed any injury to the neck or shoulders in the accident but did agree that if causation was established, the L5/S1 extrusion of disc material is a non-threshold injury. The insurer also advised the workers compensation insurer did not arrange their own medico-legal examination. The insurer did not dispute that Dr Mitchell’s reference to lumbar spine radiology was a reference to the 28 September 2022 radiology.
The claimant provided the records from Dr Lam but in respect of the radiology referred to by Dr Mitchell was unaware of what documents he had and so could not comment. The Panel notes that the claimant has not put any other lumbar spine radiology before the Panel.

REVIEW OF THE EVIDENCE

There are over 1,200 pages of documents from the parties. Both parties have relied on and included in their bundles hundreds of pages in clinical notes including notes and documents regarding a psychological injury not strictly relevant to the current dispute about physical injury.
The Panel has reviewed all the documents but has included in this summary only the evidence the Panel considers relevant to the assessment of the matters in dispute between the parties.

Claim form and claim documents

Workers compensation claim

While Mr Cha’s work accident was the first accident and injury, he did not make a workers compensation claim until after the motor accident and after the motor accident claim was made.
The workers compensation claim form is dated 26 April 2022. The claimant described his tasks and how the accident happened as follows:
“On 4 March 2021 at around 8am I was working at … Mona Vale … I was working as a tiler and carrying a toolbox on m knee level. There was a slippery slope and I fell when I stepped onto the slope. I injured my right leg, right knee and right ankle. I reported the incident to the site manager immeidately.”
Mr Cha identifies his employer as Metricon and says he started work on 3 March 2021. He said he was working 60 hours a week earning $40 per hour and $2,400 per week before tax. He identifies his GP as Dr Lam.
Dr Lam’s first certificate of fitness in support of the workers compensation claim was dated 14 April 2022 and records a right lower leg fracture only. Her third certificate of capacity and fitness dated 9 June 2022 in respect of the workers compensation claim notes right lower leg fracture, right knee pain, right ankle pain and low back pain.

Motor accident claim

The claimant’s application for statutory benefits was signed as true and correct and dated

4 April 2022.[5] The claimant denied any previous CTP claims and says he was not “suffering an illness or injury affecting the same of similar parts of [his] body at the time of the accident.”
[5] Page 5 of the claimant’s bundle.
The claimant described his injuries as follows:
(a)    injury to the neck – neck pain with radiation down right arm – radiculopathy;
(b)    injury to both shoulders;
(c)    injury to the back, and
(d)    psychological injury.
Mr Cha does not provide a police event number, says he was not taken to hospital and provides no details of his employment or earnings.
Dr Lam provided a certificate of fitness and capacity dated 29 March 2022. She diagnosed neck pain with radiation and possible radiculopathy, right shoulder pain (the Panel notes the left shoulder was not mentioned), low back pain and psychological trauma. She noted the claimant had fractured his right leg before the accident but says this was not relevant to his claim. She recommended physiotherapy, psychotherapy, imaging and pharmacotherapy.
The claimant made a common law claim on 14 February 2023[6] but the form does not include any further information of relevance to the two medical disputes before the Panel.
[6] Page 20 of the claimant’s bundle.

Factual material

The claimant provided four photographs of the vehicles involved in the accident.[7] The insured vehicle had a bull bar at the front, and it is difficult to see any damage to it. The claimant’s vehicle had a tow bar, but some damage is seen to the right rear of the back door of his van. The van is not new.
[7] Page 15 of the claimant’s bundle.
The insurer provided a copy of its investigator’s report and a statement from the driver who confirmed the circumstances of the accident and that both vehicles were damaged in the collision. The owner of the insured vehicle provided a statement noting it cost $13,200 to repair the vehicle.
Dr McIntosh provided a report to the insurer dated 31 May 2023[8] in relation to the mechanism of the accident. He estimates the speed of the insured vehicle at 15kmph. He is of the view the “biomechanical forces acting on the claimant would not have been strong enough to cause continuing injury”. He did however consider a cervical spine whiplash disorder would have been plausible but not the other injuries noting that the other vehicle’s airbags did not deploy which indicates the speed at impact was not greater than 30km.

Treating medical records and reports

[8] Page 623 of the insurer’s bundle.

Northern Beaches hospital

Notes have been provided from Northern Beaches Hospital (NBH). The claimant presented on 4 March 2021[9] following a fall at work. He had fractured his leg, was seen by an orthopaedic surgeon and placed in a Plaster of Paris (POP) cast “for strict elevation at home” and he was to return to the fracture clinic.
[9] Page 33 of the insurer’s bundle.

The claimant was subsequently admitted on 22 March 2021 and discharged the next day. He reported pain from the knee to the ankle of the right lower leg. Surgery was performed on

22 March 2021 due to the non-union of the fractures. It appears the claimant was treated in the orthopaedic or fracture clinic thereafter for his follow ups including on 9 April 2021.[10]
[10] Page 51 of the insurer’s bundle.
Radiology was performed at NBH on 4 March 2021. The X-ray of the lower leg showed mildly angulated and impacted fractures. A CT scan of the lower leg on 22 March 2021 showed a mildly displaced oblique fracture of the tibial shaft; a non-displaced malleolus fracture and a mildly comminuted, displaced fracture of the proximal fibula.
There are other radiological studies of the right leg and ankle said to have been requested by Dr Paterson and Dr Yu (both of whom are orthopaedic surgeons at NBH) and collected on

15 March 2021, 17 March 2021, 4 May 2021, 15 June 2021 and 14 September 2021 but which are said to have been reported on 28 July 2022 (for the first three) and 8 August 2022 (for the last two). It appears that the reports were made for or sent to Dr Lam when she assumed the care of Mr Cha.

Dr Lam’s records

The insurer provided copies of Dr Lam’s records which commence with an entry on

29 March 2022.[11] After noting the consultation was a “CTP consult” she says:
(a)    works in construction, had right tibial fracture after a fall about a year ago – fixed by surgery and “now completely resolved”;
(b)    the claimant was driving his own car and had stopped at a round about when he was rear ended by another vehicle and afterwards had neck pain, right shoulder pain and low back pain with right arm paraesthesia and shock;
(c)    there had been some improvement in the right arm paraesthesia since the accident, but his pain had continued. His lower back pain was limited, his sleep was disturbed and his mood was noted;
(d)    on examination there was reduced motion and tenderness through the cervical spine. There was bilateral spasm in the paracervical muscles right more than left. There was weakness in the right shoulder (4 out of 5), reflexes were preserved and there was altered sensation over both hands;
(e)    there was impingement of the right upper limb and pain with certain movements, and
(f)    the lumbar spine was tender with spasms and reduced straight leg raise on the right more so that the left. There was no weakness and no altered reflexes.
[11] Page 70 of the insurer’s bundle.
She recommended physiotherapy after a claim was made and imaging, if he did not improve. She issued a certificate of fitness in support of the motor accident claim.
On 13 April 2022, Dr Lam saw the claimant again and repeats much of the same history from the first entry now providing the date for the car accident. She records he had deteriorated with increasing knee pain exacerbated with standing, walking and stairs. She referred the claimant for radiology of his shoulder, cervical spine, lumbar spine and right knee. Dr Lam also referred the claimant to Ms Truong of Health Minds Psychology for psychotherapy. She refers to the motor accident and the development of anxiety, sleep disturbance, irritability and low moods ever since.
Dr Lam saw the claimant on 14 April 2022 noting this was a “Workcover consult”. She takes a history of the claimant’s workplace accident on 4 March 2021 as follows:
“Was working on a job site, carrying a tool box in hand, hanging down from hand to around knee height. Job site was a residental property which had a slope from the road down towards the house. Early in morning so quite slippery from overnight moisture. Slipped fell down slope. Toolbox collided with right lower leg fractured.”
She notes the claimant went to Mona Vale Hospital, was then transferred to Northern Beaches Hospital and had surgery. She records “ongoing pain.”
She then notes that a year later the claimant had a car accident, and says:
“… but at the time of MVA was still walking with antalgic gait. Patient did disclose that he had an accident (a fall) but didn’t go into details that it was a workplace accident.”
She noted painful restricted range of motion and advised the claimant to seek legal advice about his work place accident as it occurred a year ago and the claimant will need an orthopaedic review.
On 13 April 2022 Ms Wang, physiotherapist records that the claimant’s shoulder motion was measured as:
(a) 140 degrees of flexion on the left, and
(b) 135 degrees on the right.
There is a report to Dr Lam dated 20 April 2022 from Ms Wang[12] who diagnosed a cervical spine whiplash with right upper arm radiculopathy, bilateral shoulder glenohumeral joint stiffness with rotator cuff tenderness and lumbar spine facet joint dysfunction at L2- 5.
[12] Page 43 of the insurer’s bundle. There is also a report from another physiotherapist for another completely different claimant at page 41 which the Panel has not considered.
She has a history from the claimant of pain in the right side of his neck, right shoulder and right lower back which was affecting his sleep and ability to work. She also has a report of right ankle pain and his right knee giving way since the car accident and he wore a knee brace.
On 28 April 2022, Dr Lam saw the claimant again for a “Workcover consult”. She has an additional history that the claimant was off work for a year and was struggling financially. He:
“signed on for new job and worked for 2 days but was unable to cope. Mobility still impaired, balance poor, kept tripping over foot.”
On 28 April 2022 the claimant also saw Dr Lam for his motor accident. Mr Cha had not had the MRI but was attending physiotherapy and had been given a knee brace and back brace.
On 3 May 2022, Ms Wang reported[13] to Dr Lam diagnosing the whiplash (neck) injury, bilateral shoulder stiffness and tenderness, lumbar spine dysfunction and “right ankle impingement”. She says that the claimant was improving but he had increasing right leg and ankle pain and was unable to fully weight bear on his right leg.[14] Ms Wang records the claimant reported less pain and better sleep.
[13] Page 49 of the insurer’s bundle.
[14] On 16 May 2022 measurements were recorded at Flexion left 140 degrees and 140 degrees in the right. At the last attendance on 19 April 2023, flexion was recorded as 160 degrees on the left and 150 degrees on the right; abduction on the left was 150 degrees and 140 on the right. External rotation was 55 degrees on the left and 60 degrees on the right.
The claimant returned on 7 May 2022 to Dr Lam for his Workcover claim. The workers compensation insurer had paused payments because of a lack of clarity over the claimant’s employment and the claimant reported being bullied and was distressed. There was another attendance on 12 May 2022 for this claim for the purposes of a certificate of capacity.
The claimant also saw Dr Lam on 12 May 2022 for his motor accident claim. There was no approval for the MRI, the claimant was attending physiotherapy and had his first psychological session.
On 26 May 2022 the claimant saw Dr Lam who records two consultations. In respect of the workers compensation claim she noted that liability had been completely declined. She also noted that NRMA has queried whether “RX” (which the Panel understands is short for radiology) should be under the workers compensation claim. Dr Lam notes “Patient only had a right lower leg injury from his workplace injury.” In respect of the motor accident claim, the claimant felt there had been some improvement.
On 9 and 23 June 2022 the claimant had two motor accident consultations. In the first there was continued communication recorded with NRMA and confusion over the MRI (NRMA had apparently confused an MRI for a different claimant with this claimant). At the later consultation the claimant had a “severe exacerbation of back pain” when he was putting on shoes while standing and had severe back spasms and “almost no range of movement of lumbar spine”. On 30 June 2022 the claimant attended with ongoing severe low back pain. He had been doing physiotherapy and was able to move more. Diazepam had no effect.

Dr Lam requested MRIs of the cervical and lumbar spine and Celebrex was prescribed.
A case conference occurred on 14 July 2022. While the history Dr Lam documents appears to relate to the claimant’s wife, the “restrained front seat passenger of car driven by husband Woongnam Cha”, there is detail in this record that refers to Mr Cha’s workers compensation claim having been accepted and other details which relate to Mr Cha and his two injuries.

Dr Lam records this:
“As leg healed also noted low back and upper limb pain. Patient recalled that he threw out arms to brake [sic] his fall.”
Dr Lam was chasing up the records and wrote to Mona Vale Hospital, Dr Yu and NBH.
On 28 July 2022 during a “Workcover consultation” Dr Lam had reviewed the old records and noted the claimant did not have a GP at the time of his March 2021 accident. The claimant is reported to have said:
“… the main complaint currently is persistent right ankle pain near the lateral malleolus, paraesthesia near the medial malleolus and low back pain. Also has an odd lump near tibia tuberosity. Low back pain also worsening.”
On examination the right calf circumference was 30cm compared to the left at 31 cm. There were spasms, tenderness and alternated sensation, and she was to arrange an MRI and orthopaedic review.
In the separate motor accident consultation, the claimant reported he had been doing regular psychotherapy, but it was not helpful and he wanted to do face to face rather than telehealth.
On 8 August 2022 Dr Lam records ongoing back pain in both the Workcover and motor accident consultations with paraesthesia reported in the legs. MRI requests were also referred to in both claims.
On 25 August 2022 Dr Lam records under the Workcover consultation – “Complex situation!” The workers compensation insurer had accepted liability for the lower limb injuries but declined the low back injury because of the car accident. Dr Lam said she has therefore conducted a review of the history with the claimant and records (with emphasis from her):
“Patient fell whilst holding a heavy item and landed on buttocks and slid all the way down slope, while toolbox crushed Right lower leg. So has had low back pain since last year. States that at the time time, his focus was on the broken Right leg and wouldn’t have noticed low back pain! Low back pain did worsen after MVA but is adamant that low back pain began after work accident, and only exacerbated after MVA.”
On that same day under the motor accident claim consultation Dr Lam records “Low back pain escalating … although low back pain onset after work injury had been greatly exacerbated by MVA.”
On 8 September 2022 in both the motor accident claim and the workers compensation claim there is a reference to alcohol use noting that the claimant required alcohol to sleep and help with his pain from both accidents.
Dr Suzuki, orthopaedic surgeon saw the claimant on 15 September 2022 and reported to Dr Lam. The claimant had attended with an interpreter. He reported ongoing pain in the right leg and “some lumbar pain” which radiated to his hips. He denied shooting pain. The claimant had a full range of motion in the feet, knees and hips but in light of the pain he recommended removing the right leg surgical hardware. He also requested imaging for the lumbar spine.
On 22 September 2022, Dr Lam’s clinical notes in both of the claimant’s consultations record the main issue being the claimant’s mental health and his alcohol abuse. Dr Lam referred the claimant to Dr Verma[15] for treatment of the claimant’s “severe depression in the context of PTSD”. She refers to the car accident and a low back injury “which she said had progressed to chronic pain”. There is no mention of the neck or shoulders. She records the claimant psychological symptoms and says the claimant is suicidal and is drinking heavily.
[15] Page 63 of the insurer’s bundle.
Radiology undertaken on 28 September 2022[16] was an X-ray of the right leg and MRI of the lumbar spine with the clinical history stated as “investigation of lumbar spine pain since injury left side greater than right side radiating to buttocks”.
[16] Page 225 of the insurer’s bundle.
The X-ray of the right leg noted the hardware in situ with no features of failure. The MRI of the lumbar spine noted:
(a)    small right disc protrusion at L1/2 resulting in some central canal narrowing;
(b)    facet joint arthropathy on both sides at L3/4 with no effect on the canal or foramina;
(c)    L4/5 a small disc bulge with mild to moderate canal narrowing and some narrowing with impingement of the L5 nerve roots on both sides due to ‘multifactorial changes’, and
(d)    a small disc bulge at L5/S1 with mild central canal narrowing and an “annular fissure in the right lateral recess and extruded disc material impingement on the descending right S2 nerve root”.
Dr Lam’s two clinical notes on 20 October 2022 both contain the following under the heading “currently” as follows (with Dr Lam’s emphasis):
“Reviewed symptoms again prior to discussing MRI with Pt. Pt states that he has:
1. axial back pain
2. electric shock type pain in the right lower leg (more shin than calf) -> L5
3. paresthesia in the R ankle ("feels like deep inside) -> L5, S1
4. electric shock type pain also in the right heel (sole) -> S1
5. electric shock type pain of medial dorsal right foot -> L5
6. radiating electric type pain down the back, into the left thigh, left calf, L ankle -> left S1”
The two records then depart with the motor accident consultation recording:
“- Both legs have a severe throbbing pain
- Has stopped duloxetine because of viral illness
- concerned may clash with cold and flu preparations and traditional Korean medicines – Coughing causes severe jabs of pain!”
The workers compensation note however has the following:
“- Both legs have a severe throbbing pain
- Can't walk more than 10 minutes
- Has stopped duloxetine because of viral illness -> concerned may clash with cold and flu preparations and traditional Korean medicines
- Coughing causes severe jabs of pain!
- Also has quite severe neck pain”
On 20 October 2022 Dr Lam referred the claimant to Professor Papantoniou to assist with the claimant’s “?L5/S1 radiculopathy”. This referral is noted in the workers compensation claim consultation. The terms of the referral are:
“He had a work accident in March 2021 – fell down a steep slope, landing sufficiently hard to sustained a tibial fracture. He’s also had low back pain since, with electric shock type pain radiating down to the right shin, into the right ankle and right heel as well as the right medical right foot dorsum, plus a line of pain radiating down the left thigh, calf and left ankle. MRI showed bilateal L5 Nerve root imingement and right S1 impingement.”
Dr Suzuki saw the claimant on 24 November 2022, again with an interpreter and reported to Dr Lam. The claimant’s lumbar pain was radiating down the left leg, and Dr Suzuki had seen the MRI. He recorded pain in the right leg and recommended the surgery proceed to remove the hardware and that the claimant see a spinal surgeon regarding the lower back.
There are several attendances on Dr Lam in November and December 2022 (for both claims) where the claimant has aired his frustrations with both Workcover and NRMA over the delay in approving the referral to Professor Papantoniou, the surgery to remove the hardware and the referral to Dr Verma. The claimant’s psychological counselling had stopped, and he had ceased going to physiotherapy. The claimant was binge drinking.
On 12 January 2023, Dr Lam noted under the motor accident claim that Mr Cha needed psychiatric intervention as soon as possible. She advised inpatient treatment to assist.
Dr Lam’s records from the claimant’s bundle[17] commence with an attendance on

23 February 2023 marked as a “CTP consult”. She appears to have copied the history found in all her previous entries of a completely resolved right tibial fracture and the car accident with neck pain, right shoulder pain and low back pain. The claimant was shocked and had not driven since.
[17] The bundle in the claimant’s documents.
Dr Lam’s notes also records a “Workcover consultation” on the same day and again repeats what has been included in all her other similar consultations. She noted Mr Cha slipped and fell down a slope, had a fracture, but has ongoing pain. She also notes he has struggled with heavier work. The Panel notes that she records the MRI lower back results in the workers compensation consultation and not the motor accident consultation.
On 9 March 2023 there were also two quite separate consultations one for the work-related claim (leg and back) and one for the motor accident claim (neck, right shoulder and lower back). Dr Lam repeats the history for both consultations with minor modifications under the headings of “Currently” and “Plan”.
On 16 March 2023 the claimant was seen by Dr Suzuki again with the Korean interpreter. The claimant was keen to have the hardware in his right leg removed. He was said to be “going through some stresses in his life and he recently drove his vehicle into his apartments air conditioning unit for which he is now financially liable”. The claimant was drinking, and he was advised to cut down his alcohol intake.
On 27 April 2023 the claimant had reduced his alcohol intake and was keen for the surgery to proceed. On 18 May 2023, after the surgery, Dr Suzuki reported to Dr Lam that the nail was difficult to remove and the claimant was to remain on crutches for four weeks. Mr Cha was seen again on 15 June and 3 August 2023 and was to be reviewed in six months time and then hopefully would be discharged. There are no further reports.
Notes have also been provided by Better Life physiotherapy, Dr Verma and Healthy Minds, psychology. The Panel notes that the claimant attends the physiotherapist Ms Wang on many occasions (but not all) using crutches (6, 9 and 12 May, 29 July 2022, 3 and 12 and

25 August 2022), a single crutch (16 and 30 May, 3 June 2022) or a walking stick

(20 May 2022).
Dr Lam has provided certificates of fitness and capacity for the work injury dated

10 August 2023 and 7 September 2023 noting “Right lower leg fracture, right knee pain, right ankle pain and lower back pain.”

Medico-legal reports

Dr Mitchell provided a report for the insurer dated 15 June 2023. He had a history of the accident with no emergency services attending and the development of pain in the neck, both shoulders and lower back.
Dr Mitchell had a history of the claimant’s workplace accident, and that the claimant had not yet returned to work.
The claimant complained of lower neck pain radiating into the shoulders, low back pain radiating into the left upper leg. The claimant also had right knee and lower leg pain related to his work accident.
On examination there was a normal range of cervical and thoracic spine movements and symmetrical reduction of lateral flexion. There was also a full range of shoulder motion.
Dr Mitchell found:
“There was no objective clinical or radiological evidence of underlying injury in the neck or lower back. He continues to be troubled by an earlier, unrelated, workplace right lower leg fracture due to recent removal of the metal fixators on 5 May 2023.”
He found no impairment.
Dr Herald provided a report to the claimant’s solicitor dated 3 October 2023.
He has a history of immediate neck pain with radiation to both shoulders and both upper limbs as well as back pain with numbness and tingling radiating to the right lower limb. He noted an L5/S1 disc protrusion impinging the nerve root and an L4/5 disc prolapse (although he had not seen the results). Dr Herald has a history of the March 2021 work accident resulting in the leg fracture but says the claimant had no neck pain, back pain or shoulder symptoms.
Dr Herald examined the cervical spine finding restricted range of motion (but 50% in all directions therefore hard to so why dysmetria) and muscle spasm. His shoulders were examined and there was pain radiating from the neck, positive impingement signs and restricted movement (see attachment). There was limited mobility (but again it is not clear whether there was dysmetria), tenderness and spasm.

Dr Herald diagnosed soft tissue cervical spine injury with referred pain to the shoulders as well as bilateral shoulder impingement. A soft tissue injury to the lumbar spine with non-verifiable radicular pains, chronic pain and aggravation of post-traumatic stress disorder.
He assessed 19% WPI as follows:
(a)    cervical spine – DRE II – 5%;
(b)    lumbar spine – DRE II 5%, and
(c)    both shoulders (10% upper extremity impairment each being 19% which equates to 11% WPI for both).[18]
[18] The Panel notes this is not correct. The WPI for each shoulder is assessed as a UEI and converted to WPI.
Dr Bisht examined the claimant for the insurer in respect of the claimant’s psychological injuries and provided a report dated 27 July 2023. Dr Bisht diagnosed a major depressive disorder and specific phobia but not a post-traumatic stress disorder. He declined to assess WPI on the basis that the claimant had not had appropriate treatment.
Dr Bisht submitted a second report dated 8 August 2023 after receiving the report from

Dr McIntosh and changed his view and considered the claimant had a minor injury (threshold injury) that is an adjustment disorder.

Other assessments

Medical Assessor Canaris determined on 14 July 2024 that the claimant’s alcohol use disorder was not related to the accident. He has a history of the claimant’s workplace accident in 2021 which resulted in a broken leg, surgery, two days in hospital and internal fixation. The claimant said he started drinking after that accident.
He also considered the claimant had chronic pain suggestive of a somatic symptom disorder but found it difficult to determine this due to a paucity of information.
As a result, he did not determine threshold injury or WPI.

RE-EXAMINATION FINDINGS

Mr Cha attended the Commission’s rooms on 29 October 2024 for a re-examination with Medical Assessors Barnsley and Assem. A Korean interpreter assisted throughout and was relied on heavily. Mr Cha speaks limited English.

History provided by the claimant

History of work and motor vehicle accidents

Mr Cha is 37 years of age and right-handed. He completed high school in Korea and undertook a brief language course in Australia after arriving on a student visa in 2010. He has primarily worked as a tiler since 2018 in Australia, employed by Sol Tiling at the time of the motor accident on 24 March 2022.
On 4 March 2021, Mr Cha sustained a right distal tibial fracture after a slip-and-fall incident at work. He underwent open reduction and internal fixation surgery performed by Dr Yu, with

Dr Suzuki involved in his follow-up care. Mr Cha stated he did not have any notable lower back injury or imaging of his back at that time.
Upon further questioning, he recalled mild back symptoms before the car accident, although he emphasised these were minimal and did not interfere with his daily activities or work. He said again that his back symptoms were not severe prior to the car accident and did not extend into his legs. Mr Cha was asked and confirmed that he was off work and his daily activities were severely restricted by his work-related right leg injury. He said through the interpreter that his lawyer referred him to Dr Lam to assist with the workers compensation claims process, along with the motor accident claim.
The Medical Assessors clarified the back pain history with Mr Cha on several occasions. He initially stated that he did not have any back pain after the workers compensation accident. It was put to him that there was record in his doctor’s notes that he had complained of back pain in relation to his workers compensation claim and she had recorded a back injury as a result of his workplace accident. He then agreed that he had had some back pain, but he felt it got much worse after the car accident. The history in his GP’s notes was clarified by direct closed ended questioning through the interpreter and also by paraphrasing and reflecting back his story through the interpreter. He agreed with our paraphrasing.
In May 2023, due to persistent pain and restriction of movement in his right leg, his orthopaedic surgeon performed surgery and removed the hardware in the right tibia. Further surgery is planned for dysaesthesia in an area around the right medial malleolus.
On 24 March 2022, at approximately 8.30 am, Mr Cha was driving his white 2009 Holden Colorado utility vehicle westbound, approaching a roundabout on Mamre in Mount Vernon, NSW. He was transporting his wife to her workplace. After stopping at the roundabout to allow traffic to clear, Mr Cha’s vehicle was struck from behind by a 2013 Ford Ranger utility vehicle.
The incident occurred during heavy rain. Mr Cha was wearing his seatbelt, with his right foot on the brake pedal at the time of impact. He described a significant impact from the collision, noting considerable front-end damage to the offending vehicle. His vehicle’s tow bar was destroyed. The Panel notes that the photographs do not show the tow bar destroyed although one photo suggests a bent part of the chassis to which the tow bar is fitted. No airbags were deployed. Mr Cha did not recall any immediate pain but experienced shock. He said he was unable to clearly remember if there was a direct impact to any part of his body within the cabin. His wife, seated in the front passenger seat, sustained injuries to her knees, wrists, and lower back due to the collision.
Mr Cha reported that no ambulance or police attended the scene, and he was able to drive the vehicle home. The following day, he noticed pain and stiffness in his neck, along with discomfort in his whole body, specifically in his neck, arms (left more than right), lower back, and in the right leg from his previous fracture. He subsequently sought legal assistance for these injuries and said his lawyer referred him to Dr Lam for assistance with the process.

History of symptoms and treatment following the motor accident

On 29 March 2022, Mr Cha consulted Dr Lam for the first time, and she referred him for physiotherapy treatment consisting of soft tissue mobilisation, joint manipulation, and exercises to alleviate pain in his neck, lower back, and legs.
Mr Cha said that Dr Lam also referred him to Dr Verma, a psychiatrist, who prescribed Duloxetine to address depressive symptoms and quetiapine for sleep difficulties. Despite the medication, Mr Cha said he continued to experience low mood and social isolation.
Mr Cha said he has had 48 sessions of physiotherapy for his neck, back, shoulders and right leg injuries.

Current symptoms

Mr Cha describes persistent neck pain radiating down the left arm, involving the entire arm down to the wrist, with associated tingling sensations (but not into the hand or fingers). He reports no improvement in his neck or arm symptoms since the accident, pointing specifically to the left side of his neck as the source of this discomfort.
Mr Cha also continues to experience persistent lower back pain. There are unusual sensations around the right lateral malleolus, though he denies any paraesthesia or "pins and needles" in the lower extremity corresponding to a specific dermatomal pattern. He attributes his right lower limb symptoms to his previous workplace injury.
He lives in an apartment in Silverwater with his wife and is no longer able to perform household tasks. He is not working.

Current and proposed treatment

He takes non-steroidal anti-inflammatory medication that he was unable to name and the antidepressant Duloxetine which he was able to name.

Examination

Mr Cha was cooperative during the examination and sat normally during the history-taking conversing freely without difficulty to the Medical Assessors and the interpreter.
Occasionally, during the formal part of the physical examination Mr Cha displayed abnormal behaviours consistent with someone in severe pain, including facial grimacing and vocal expressions.
He demonstrated a give-way response during strength testing in the lower limbs. This sudden giving way after initial normal testing does not indicate muscle weakness in the experience of the Medical Assessors. His gait appeared normal, and he moved freely around the examination room. Although his spontaneous movements were normal, his condition appeared to dramatically deteriorate on formal testing and during the physical examination.

Cervical spine

Upon examination, Mr Cha displayed no tenderness, guarding, or spasms in the cervical spine region. Cervical spine movements were as follows:
(a)    cervical rotation was symmetrically reduced to approximately one quarter of the normal range bilaterally;
(b)    flexion and extension were each reduced to half of the normal range, and
(c)    lateral flexion was symmetrically decreased to approximately half the normal range.
There was therefore, no asymmetry of movement or spinal dysmetria.
During spontaneous movements, when not being formally examined, Mr Cha demonstrated a greater range of pain-free cervical rotation, particularly when engaging with the interpreter (moving his head to the side to talk to her). This observation was brought to his attention, to which he explained that spontaneous movements were often accompanied by pain, despite the observed discrepancy.
Neurological examination of his upper extremities was performed, and the results of the tests were as follows:
(a)    power and tone – normal;
(b)    reflexes - present and equal;
(c)    sensation – there was no abnormality in any part of the arm, hands or fingers with pin prick and light touch testing;
(d)    the circumference of the right forearm was 1 cm greater than the left which is within normal limits for a right-hand dominant person. There was no difference in the circumference of his upper arms, and
(e)    neural tension signs were negative.

Lumbar spine

Examination of the lumbar spine revealed mild tenderness over the paravertebral muscles at the L1/L2 level, with no guarding noted.
Measurement of thoracic and lumbar spine movement was:
(a)    forward flexion was limited to half of the normal range, while extension was restricted to one quarter of the normal range and accompanied by spasm;
(b)    lateral flexion was reduced to one quarter of normal on both sides, and
(c)    rotation was reduced to one quarter of normal bilaterally.
Mr Cha reported back pain upon gentle axial compression and simulated rotation even though there was no actual spinal movement at the time which indicates to the Medical Assessors that the limitations observed may not have been reliable measurements.
Straight leg raising (SLR) was limited on both sides due to hamstring tightness rather than radicular symptoms. Abnormal pain behaviours, including much grimacing and vocal expressions, was noted during the SLR test whilst lying supine. In a seated position however, straight leg raising was 90 degrees without any grimacing, vocal expression or more importantly generating any radicular symptoms. When questioned, he did not offer an explanation for the discrepancies observed in his SLR responses.
Dysaesthesia was noted around his right ankle, which Mr Cha associated with his previous tibial surgery. This dysaesthesia impacted his ability to perform consistent strength testing on knee flexion and extension. Ankle flexion and extension demonstrated a give-way response, though he then displayed normal strength when asked to repeat the movements after pointing out the inconsistency. Additionally, his thigh circumferences were symmetric, while his right calf measured 1 cm smaller than the left, in the Medical Assessor’s clinical judgment due to previous tibial injury and surgery.

Upper extremities

There was no evidence of muscle wasting or atrophy in the muscles of the shoulders on both sides.
Mr Cha demonstrated inconsistent range of motion in the shoulders within the examination. When bilateral shoulder abduction was formally tested, he achieved 180 degrees on both sides however when the individual shoulders were tested, shoulder abduction varied. When asked about this inconsistency, Mr Cha attributed it to pain and mentioned that abduction was easier with both arms lifted together. This is not, in the Medical Assessors’ clinical judgment a plausible response.
Mr Cha demonstrated adduction of 50 degrees and extension of 50 degrees bilaterally, which is within the normal range. Shoulder movements, particularly in internal and external rotation, were restricted with complaints of neck pain affecting elbow flexion and extension which is not medically plausible in the clinical experience of the medical examiners.

Shoulder Movement

Right

Left

Normal

Flexion

150, 140, 90

140, 120, 110

180

Extension

50

50

50

Abduction

180, 140, 90

180, 140, 90

180

Adduction

50

50

50

Internal rotation

30

40

80

External rotation

0, 30

40, 60

60

CONSIDERATION OF THE ISSUES

What evidence is reliable?

Is the claimant’s evidence reliable?

Mr Cha’s examination displayed a number of inconsistencies documented above:
(a)    in the neck, between formal testing in the examination part and spontaneous movements during history taking;
(b)    in the shoulder there was inconsistency of movements between formal testing and informal observation, inconsistency of the results achieved in the same movement and variation from other examiners. For example, Dr Mitchell recorded a full range of normal shoulder motion (see attachment A to these reasons), and
(c)    in the lower back the SLR response was medically inexplicable, and the simulated rotation exercise suggests the lower back movement measurements were not reliable.
The Panel also notes when first asked, the claimant denied any lower back problems at all after the work accident but then when taken to the records acknowledged he did have lower back complaints after his workplace accident.
The Panel has concerns about adopting the claimant’s evidence without corroboration in the written records.

Dr Lam’s evidence

The claimant sustained a right distal tibial fracture in a workplace accident on 4 March 2021, managed surgically with open reduction and internal fixation. On 24 March 2022, Mr Cha was involved in a rear-end collision while driving.
The claimant first saw Dr Lam on 29 March 2022 over a year after his work accident and five days after his motor accident. Apart from hospital records and follow up attendances at a fracture clinic, there are no pre-motor accident GP or treatment records.
Dr Lam maintains electronic typed records and has taken time to separate within them, the claimant’s workers compensation consultations from the motor accident consultations.
The Panel has some concerns about Dr Lam’s records. For example, on 23 February 2023 in the workers compensation claim consultation she records ongoing pain in the injured right leg but in the motor accident claim says that the leg injury has resolved without issue. As a result of this, the Panel has considered her records in detail and will accept the facts and histories she has recorded but will not give great weight to the opinions contained within her notes.

Did Mr Cha sustain an injury to his neck in the accident and is it a threshold injury?

Mr Cha had no previous GP and did not seek medication attention until he saw Dr Lam at the request of his solicitors on 29 March 2024, five days after the car accident. She took a history of an injury to the neck, right shoulder and lower back. Mr Cha’s claim form completed two weeks after the accident includes a neck injury with radiation into the right arm, a right shoulder injury and a lower back injury.
On the basis of this evidence, and the history given by Mr Cha at the re-examination, the Panel accepts that Mr Cha sustained some form of injury to his neck in the car accident. The Panel notes the evidence of Dr McIntosh who expressed the view a serious whiplash injury was unlikely but he did not say such an injury was impossible.

Did he sustain a complete or partial rupture of any soft tissue?

While Dr Lam requested radiology of the claimant’s cervical spine (MRI), the Panel has not been taken to any report to suggest that this radiology was performed. Both Dr Herald and

Dr Mitchell do not refer to any radiology.
The Panel therefore does not have any evidence which would support a finding of any bony injury or the complete or partial rupture of tendons, ligaments, menisci or cartilage in the cervical spine.

Does the claimant have radiculopathy now?

The medical re-examination undertaken by Medical Assessors Barnsley and Assem did not reveal the presence of two or more of the five signs of radiculopathy as required by cl 5.8 of the Guidelines.
There was no atrophy, no loss of reflexes, no sensory disturbance, no cervical nerve root tension signs and no loss of power in the upper limbs.

Radiculopathy in the past

In David v Allianz Australia Insurance Ltd,[19] at [84 – 105] the Panel considered the issue of “whether an injury is not a minor injury if radiculopathy is present at any time following injury.” The Panel found at [104] that if it is established (by way of an assessment that complies with cl 5.5 of the Guidelines) that there are at least two clinical signs of radiculopathy (as set out in cl 5.6) present at any time after the accident, the injured person falls outside the definition of ‘minor (now threshold) injury’. David was cited in the recent judicial review proceedings of Allianz Australia Insurance Limited v Susak.[20] While there appears to have been no argument in Susak about the correctness or otherwise of David, the premise that radiculopathy at one time satisfies a finding of non-threshold injury formed the basis of Acting Justice Griffiths’ decision. The Panel agrees with and approves the reasoning of the Panel in in David.
[19] [2021] NSWPICMP 227.
[20] [2024] NSWSC 1359 (Susak)
At the first consultation with Dr Lam on 29 March 2024, she records:
(a)    some right arm paraesthesia which had improved since the accident and altered sensation over both hands;
(b)    weakness in the right shoulder (4 out of 5),
(c)    reflexes were preserved, and
(d)    impingement of the right upper limb and pain with certain movements.
Dr Lam did not perform any nerve root tension testing, but her findings indicate there could be two signs of radiculopathy (altered sensation in the right limb and weakness in the right shoulder). While Dr Lam may have suspected radiculopathy, the Panel does not accept her findings confirm radiculopathy was present for the following reasons:
(a)    the claimant complained of a right shoulder injury in his sworn claim form. Dr Lam records a right shoulder injury and says there was impingement of the right upper limb. The Medical Assessors are of the view that the weakness in the right shoulder could have been caused by the right shoulder injury as opposed to a cervical spine nerve root injury. Without knowing what tests she administered the Panel cannot make a finding that the reported weakness was cervical spine related;
(b)    it is not clear whether the note of altered sensation was based on a reported history only or whether it was after formal light touch and pin prick testing, and
(c)    the notes that altered sensation in the right upper limb had improved and that the altered sensation was in the hands and not the arm cannot be correlated by the Medical Assessors to a “loss of sensation anatomically localised to an appropriate spinal nerve root distribution”.
A careful examination of Dr Lam’s records suggest neck pain has continued to be an intermittent problem but has been overshadowed by the claimant’s lower back and right leg issues. There is no further evidence to suggest that Dr Lam has found any of the claimant’s cervical spine nerve or nerve roots were sufficiently injured to manifest in two or more of the five signs of radiculopathy.

Did the claimant injure his shoulders?

On the basis of the evidence set out in paragraph 165 above, the Panel is satisfied that the claimant sustained a right shoulder injury in the accident. The seat belt was passing over his right shoulder and it is plausible that an injury could occur to the soft tissues of that shoulder.

There is no evidence in the more contemporaneous records of any injury to the left shoulder and the Panel is not satisfied that the claimant sustained such an injury.
Ms Wang documents on 20 April 2022 issues and restrictions with both shoulder joints but took a history from the claimant of a right shoulder injury only. Dr Lam took a history on

14 July 2022 of the claimant throwing out his hands when he fell and broke his leg which raises the possibility of shoulder injuries occurring at that time and therefore an issue of causation in respect of the shoulder injuries.
While Dr Lam referred the claimant for shoulder radiology on 13 April 2022, the Panel has not been taken to any report to suggest that radiology has been done.
Assuming there was a right shoulder injury caused by the accident, the Panel is of the view that the injury to the right shoulder is a soft tissue and threshold injury because:
(a) there is no evidence of a fracture or any other bony injury, and
(b) there is no radiological evidence of the complete or partial rupture of tendons, menisci, ligaments or cartilage.

Did the claimant injure his lumbar spine?

Although Mr Cha reported he felt no pain immediately after the accident, on the following day he said he developed symptoms including in the neck, right shoulder and lower back pain. He did not seek medical attention at first but sought legal advice and was then referred to

Dr Lam who he saw on 29 March 2022. For the reasons given in paragraph 166 above, the Panel accepts that Mr Cha did sustain some form of an injury to his lower back.
An MRI in September 2022 revealed an L5/S1 disc extrusion impinging on the right S1 nerve root. This injury, if caused by the accident would be a non-threshold injury as the extrusion of disc material from the nucleus pulposus through the ligamentous ring of the annulus fibrosis would be “the partial rupture of tendons, ligaments, menisci or cartilage”.
However, causation of the claimant’s lower back disc extrusion is problematic due to the claimant’s March 2021 workplace accident and his ongoing right lower limb symptoms.
Determining the issue of causation has been complicated by the fact that, between the date of his work accident and his car accident, the claimant does not appear to have had a regular GP. The Panel has limited information in the hospital notes concerning the claimant’s progress after his initial attendance on the day of his work accident, the subsequent attendance three weeks later and the follow up attendances after surgery and discharge.
Also, a complicating factor, is that the claimant did not make a timely workers compensation claim and in fact made his motor accident claim before his workers compensation claim.
Dr Lam records separate consultations often on the same day with one relating to the motor accident and the other to the workplace injury. She has a history on 29 March 2022 that the claimant had fully recovered from his lower limb injuries yet a few weeks later the claimant reported to Dr Lam ongoing symptoms of pain in his right leg. Ms Wang’s records do not suggest that the claimant separated his injuries as he reported injuries to his neck, shoulder, lower back as well as complaining of pain in his right leg.
Dr Lam has noted the complexity of the situation but has taken steps along the way to clarify with the claimant the history about his back injury:[21]
(a)    14 April 2022 [WC]: “Was working on a job site, carrying a toolbox in hand, hanging down from hand to around knee height. Job site was a residential property which had a slope from the road down towards the house. Early in morning quite slippery from overnight moisture. Slipped fell down slope. Toolbox collided with right lower leg fractured.”
(b)    28 April 2022 [WC]: “Signed on for new job and worked for 2 days but was unable to cope. Mobility still impaired, balance poor kept tripping over foot.”
(c)    14 July 2022 [WC]: “As leg healed also noted low back and upper limb pain. Patient recalled that he threw out arms to brake [sic] his fall.”
(d)    28 July 2022 [WC]: “… the main complaint currently is persistent right ankle pain near the lateral malleolus, paraesthesia near the medial malleolus and low back pain. Also has an odd lump near tibia tuberosity. Low back pain also worsening.”
(e)    25 August 2022 [WC]: “Patient fell whilst holding a heavy item and landed on buttocks and slid all the way down slope, while toolbox crushed Right lower leg. So has had low back pain since last year. States that at the time time, his focus was on the broken Right leg and wouldn’t have noticed low back pain! Low back pain did worsen after MVA but is adamant that low back pain began after work accident, and only exacerbated after MVA.”
(f)    25 August 2022 [MA] “Low back pain escalating … although low back pain onset after work injury had been greatly exacerbated by MVA.”
[21] The reference in square brackets to WC or MA is a reference to what Dr Lam has recorded as a workers compensation or motor accident consultation in her records.
Dr Lam records complaints of back pain in both claims on most occasions. For a period of time after the 2021 accident, the claimant was using crutches or a walking stick. He had balance issues and was walking with an abnormal gait at the time of the claimant’s first attendance on Dr Lam. After March 2022 as recorded in the GP notes and the notes of

Ms Wang the claimant was also using crutches. The Medical Assessors note that altered gait, due to a fracture, and the continued use of mobility aids can cause muscular back pain.
The Panel is not satisfied that the claimant’s disc rupture and extrusion is related to the motor accident because:
(a)    the Panel notes no airbags deployed and while there appears to be damage to the vehicle there is no substantial significant deformation or any sideways impact. The report of Dr McIntosh provides an expert bio-mechanical opinion that significant injury is unlikely from the forces involved in the accident;
(b)    the claimant drove home and emergency services did not attend. He gave a history at the re-examination that he did not experience immediate symptoms, and in fact did not experience symptoms until the next day. Noting the severity of the lower back injury (disc rupture and extrusion), the medical members of the Panel would expect the immediate onset of severe pain had that damage occurred in the accident;
(c)    the claimant did not seek medical treatment for five days after the accident. Again, noting the severity of the injury to the lumbar spine, the Panel would have expected the claimant to present to hospital or a medical practitioner sooner than he did if that injury occurred in the motor accident;
(d)    the bulk of Dr Lam’s records document the lumbar spine as related to the work accident. For example, the referral to Professor Papantoniou to advise about the L5/S1 radiculopathy is noted in the workers compensation claim consultation and the contents of the referral only mention the work accident and not the car accident, and
(e)    Dr Lam’s certificates of fitness for the work-related injury all mention lower back pain.
It is also relevant to the Panel that the claimant has been a tiler for at least eight years and, this is, in the Panel’s experience a job that can require a lot of bending, carrying heavy boxes of tiles and working in awkward spaces. The Panel also notes the forces involved in the fall at work appear to be significant. The claimant was carrying his tools and fell down a steep driveway with sufficient force to badly fracture his right leg. In saying this, the Panel is not making any finding that the nature and conditions of the claimant’s work caused or contributed to the disc protrusion or that the accident of March 2021 caused that injury. The Panel is only required to consider whether the L5/S1 disc injury was caused by the motor accident or not.
The Panel is satisfied that the claimant’s injury sustained in the motor accident was a soft tissue injury to the muscles and ligaments of the claimant’s lower back but that the motor accident did not cause a tear or a further tear of the annulus fibrosis at L4/5 or elsewhere in the lumbar spine.
The claimant’s lumbar injury is therefore a soft tissue, non-threshold injury.

IMPAIRMENT ASSESSMENT

General provisions and prefatory remarks

A claimant cannot recover any damages at all if their only injuries are threshold injuries[22] within the meaning of s 1.6. If one injury is found to be a non-threshold injury, then the claimant is entitled to recover damages (including non-economic loss damages) in relation to all of his injuries, not just the non-threshold injuries.
[22] Section 4.4 of the MAI Act
The claimant currently does not have an entitlement to recover damages based on the Panel’s decision about his physical injuries and Medical Assessor Canaris’ decision about his psychiatric injuries.
However, Medical Assessor Canaris’ decision is under review and if that Review Panel finds the claimant has a non-threshold injury then:
(a) the claimant will be entitled to seek damages for both his physical and psychiatric injuries, and
(b) he will be entitled to non-economic loss damages if either his physical or psychiatric injuries attract a WPI that is greater than 10%.
For that reason, despite the Panel’s decision that all the claimant’s physical injuries are threshold injuries, the Panel must assess WPI for those physical injuries because the claimant’s psychiatric injuries may be assessed as non-threshold.
Impairment is assessed when it has been present for a period of time and is static or well stabilised and unlikely to remit or change by more than 3% (cl 6.19) this is generally when the injuries have stabilised (cl 6.20).
The Panel is satisfied that the injuries to the claimant’s neck, back and shoulder are well stabilised and it is appropriate to assess impairment resulting from the injuries.
While the assessment of whether an injury is threshold or not requires the Panel to “look back”, the Guidelines provide that an evaluation of impairment must be considered “at the time of the assessment” (cl 6.21) and future deterioration for example cannot be considered (cl 6.22).
The Guidelines provide for pre-existing impairments (cls 6.31-6.33) and subsequent injuries (cls 6.34).
Clause 6.40 of the Guidelines requires an assessor to consider whether “measurements and tests are plausible and related to the impairment” and at cl 6.41:
“Where there are inconsistencies … the inconsistencies must be brought to the injured persons’s attention. The injured person must have an opportunity to confirm the history and / or respond to the inconsistency observations to ensure accuracy and procedural fairness.”

How is impairment to the spine assessed?

Assessment of the spine requires consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 6.111).
The spine is divided (cl 6.131) into three regions: cervical; thoracic, and lumbar. If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).
There are five diagnostic related categories, and a number of indicia provided (see Table 7). The first is DRE category I which is selected if there are symptoms which may include pain. In the circumstances of this claim DRE categories II and III are relevant.
The usual DRE category II requires there to be:
(a)    pain with guarding or
(b)    non-uniform range of motion – dysmetria or
(c)    non-verifiable radicular complaints defined in table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling)
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes
The most common DRE category III requires radiculopathy which is defined in cl 6.138 as the impairment caused by dysfunction of a spinal nerve root or nerve roots and requires two or more of the following clinical signs to be found on examination:
(a)     loss or asymmetry of reflexes;
(b)     positive sciatic nerve root tension signs;
(c)    muscle atrophy and/or decreased limb circumference;
(d)     muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
If any impairment to the claimant’s shoulders results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor,[23] that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.[24]
[23] [2011] NSWSC 351.
[24] This is referred to as the “Nguyen Principle”.

What is the impairment to the claimant’s cervical spine?

At the time of the re-examination by the Panel, more than two years after the accident,

Mr Cha reported some pain in his neck. He therefore attracts at least a DRE category I impairment of 0%.
There was no guarding on examination and while there was some restriction of neck movement, there was no dysmetria.
The claimant reported neck pain radiating down the whole of the left arm down to the wrist with tingling in parts of the left arm but no symptoms in the hand or fingers.
At the re-examination there were not two or more of the five signs of radiculopathy. The claimant does not have a DRE category III impairment.

What is the impairment to the claimant’s lumbar spine

While the Panel has found that the claimant sustained a soft tissue injury on a background of pre-existing changes in the lumbar spine, the Panel is not satisfied that the pathology found on the MRI was caused in this accident.
The Panel notes that on 23 June 2024 the claimant reported to Dr Lam a “severe exacerbation of back pain” while putting on shoes and had severe back spasms and almost no range of motion. A consultation a week later reported a continuation of that severe pain although with more movement. This incident involving the relatively innocent activity of bending over to put on footwear had caused a further exacerbation of the underlying condition. The Medical Assessors note that this pattern of flare up and recovery is to be expected from congenital or degenerative spinal conditions.
The Panel is of the view that the motor accident was a similar example of such a flare up and recovery from a degenerative condition first rendered symptomatic in the workplace accident.
The claimant reports back pain and while there was no guarding at the re-examination there was dysmetria (although the Panel has expressed its doubts as to the reliability of the range of motion measurements). The claimant did not report symptoms that could be considered non-verifiable radicular symptoms, and the claimant did not demonstrate at the re-examination any of the five signs of radiculopathy.
The claimant has a potential impairment of 5% being a DRE category II on the basis of the finding of dysmetria. However, the Panel is of the view that the claimant’s current impairment does not result from any accident-related injury but is related to the claimant’s underlying condition which was exacerbated in the motor accident but that the exacerbation has ceased.

Left and right shoulders

Method of assessment of shoulder injuries

The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments and adding others. Regional impairments in the limb are combined to obtain a total UEI for that limb which is then converted to a WPI using Table 3 on page 20 of AMA 4.
There are several methods of assessment:
(a)    amputation (part 3.1b);
(b)    sensory loss of the digits (part 3.1c);
(c)    abnormal range of motion (part 3.1d);
(d)    peripheral nerve disorders (part 3.1k);
(e)    vascular disorders (part 3.1l), and
(f)    other disorders (part 3.1m).
In Mr Cha’s case, the Panel’s view is that the most appropriate method of assessing shoulder impairment is in accordance with part 3.1d. The abnormal range of motion requires the measurement of six functional units of motion in three planes as follows:
(a)    flexion and extension;
(b)    abduction and adduction, and
(c)    internal and external rotation
Measurement of motion is done using a goniometer and only active (not passive) motion is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with table 3 on page 20 of AMA4.

What is the claimant’s shoulder impairment?

While the Panel accepted the claimant sustained a soft tissue frank injury to the right shoulder, the Panel was not satisfied the claimant sustained a frank injury to the left. If

Mr Cha’s neck injury could be limiting his shoulder movement, then any impairment in both shoulders should be included in accordance with the Nguyen principle.
Mr Cha made complaints of cervical discomfort during shoulder motion testing which suggests there could be a limitation of shoulder motion secondary to a neck injury. Mr Cha however also reported neck pain during elbow flexion a response that is anatomically implausible for a cervical spine injury and suggests Mr Cha’s shoulder limitations may not be genuine and therefore may not be secondary to the cervical spine injury.
The claimant’s re-examination suggested a significant restriction of motion in both right and left shoulders. There is no shoulder or cervical spine radiology before the Panel that would explain this restriction.
Apart from the general clause concerning consistency in cl 6.41 of the Guidelines, cl 6.50 is a specific clause about the approach to inconsistency in shoulder impairment as follows:
“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:
(a)     a goniometer should be used where clinically indicated
(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
(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
(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)
(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.
The Panel notes that Mr Cha’s shoulder motion was inconsistent as follows:
(a)    on flexion there was a 60 degree variation between the best range of motion and the worst in the right and 30 in the left. In abduction, there was a 90 degree variation between the best and the worst range of motion – such variation cannot be explained by pain in the clinical judgment of the Medical Assessors and is inconsistency;
(b)    the claimant’s extension and adduction range of motion was normal which would not be expected with such gross restriction of flexion and abduction, and
(c)    the claimant’s bilateral shoulder abduction when tested together was normal but not when tested separately. This is medically an implausible result.
The Panel is of the view that the claimant’s range of shoulder motion is not a valid measure of impairment as per cl 6.50(d). The question remains whether, in the clinical judgment of the Medical Assessors the claimant has an impairment to his right shoulder resulting from any injury to that shoulder or any impairment to both shoulders resulting from his neck injury.

The Panel has carefully considered the records of Ms Wang who has provided physiotherapy treatment to the claimant at more than 40 consultations from 12 April 2022 to 19 April 2023. Ms Wang has included in most of these consultations the claimant’s range of left and right shoulder flexion, abduction and external rotation as follows:
(a)    the claimant’s range of left flexion improved from 140 degrees to 160 degrees;
(b)    right flexion improved from 135 degrees to 150 degrees;
(c)    abduction on the left improved from 140 degrees to 150 degrees;
(d)    right sided abduction improved from 135 degrees to 140 degrees;
(e)    left sided external rotation improved from 50 degrees to 55 degrees, and
(f)    right sided external rotation improved from 45 degrees to 60 degrees.
All of the three motions measured improved over time, but the claimant’s recorded range of motion was remarkably consistent showing slow but steady gradual improvement. On

8 June 2023 when examined by Dr Mitchell for the insurer, the claimant’s clinical examination revealed a full and complete normal range of shoulder motion which suggests further improvement.
The claimant’s range of motion when examined by Dr Herald was significantly worse than others and when examined by Medical Assessor Woo the claimant had a better range of motion than when examined by Dr Herald and better when compared to the Panel’s re-examination. The Panel does not accept that this extraordinary variation in measurements after June 2023 can be explained by variable pain.
There was inconsistency between formal examination and informal observation in the neck as has been documented elsewhere in these reasons.
In accordance with cl 6.50(e), the Panel does not accept that the claimant has any impairment present as a result of any injury to the claimant’s right shoulder or any impairment to either shoulder as a result of the claimant’s neck injury.

CONCLUSION

The Panel has found that the claimant did injure his neck, right shoulder and lower back in the accident. The Panel is satisfied that the claimant’s injuries are all threshold injuries within the meaning of s 1.6 of the MAI Act.
The Panel has assessed the claimant’s WPI as follows:
(a)    cervical spine, DRE category I – 0%;
(b)    lumbar spine, soft tissue aggravation injury no impairment;
(c)    right shoulder, no impairment resulting from the injuries, and
(d)    left shoulder, no impairment resulting from the injuries.
As the Panel has come to a different conclusion to Medical Assessor Woo on both medical assessment matters, it follows that both of Medical Assessor Woo’s certifications must be revoked.

ATTACHMENT A – SHOULDER COMPARISON

Left Shoulder	Normal	Dr Mitchell Jun 23	Dr Herald Oct 23	MA Woo May 24	Review Panel 29 Oct 24
Flexion	180	full	90	160	140, 120, 110
Extension	50	full	50	50	50
Abduction	180	full	90	150	180, 140, 90
Adduction	50	full	40	40	50
Internal rotation	90	full	80	50	80
External rotation	90	full	80	80	60

Right Shoulder	Normal	Dr Mitchell Jun 23	Dr Herald Oct 23	MA Woo May 24	Review Panel 29 Oct 24
Flexion	180	full	90	150	150, 140, 90
Extension	50	full	50	40	50
Abduction	180	full	90	130	180, 140, 90
Adduction	50	full	40	40	50
Internal rotation	90	full	80	50	30
External rotation	90	full	80	60	0, 30

Shoulder Movement	Right	Left	Normal
Flexion	150, 140, 90	140, 120, 110	180
Extension	50	50	50
Abduction	180, 140, 90	180, 140, 90	180
Adduction	50	50	50
Internal rotation	30	40	80
External rotation	0, 30	40, 60	60

[2024] NSWPICMP 783

21 November 2024