Insurance Australia Limited t/as NRMA Insurance v Kang

[2024] NSWPICMP 113

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v Kang [2024] NSWPICMP 113

CLAIMANT:

Hyo Gi Kang

INSURER:

Insurance Australia Limited trading as NRMA Insurance

REVIEW PANEL

MEMBER:

Susan McTegg

MEDICAL ASSESSOR:

Neil Berry

MEDICAL ASSESSOR:

Margaret Gibson

DATE OF DECISION:

27 February 2024

CATCHWORDS:

MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident on 1 June 2022; Medical Assessor (MA) Wijetunga certified injuries to cervical spine, left leg, left hip, right hip, right shoulder and chest were threshold injuries; injury to lumbar spine central annular tear was not a threshold injury; right or left knee and pelvis injury not caused by accident; review of decision of MA Wijetunga; parties agreed to limit review to lumbar spine and right shoulder; Held – imaging showed annular tear and changes were pre-existing and not caused by accident; claimant suffered soft tissue injury to lumbar spine; injury to lumbar spine is a threshold injury; no history prior injury to right shoulder; MA Wijetunga unaware of presence of MRI of right shoulder showing a SLAP tear; SLAP tear constitutes a rupture of a tendon and is not a threshold injury; certificate of MA Wijetunga revoked.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION
ASSESSMENT OF THRESHOLD INJURY
Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

1.     The Panel revokes the certificate of Medical Assessor Wijetunga dated 24 August 2023.

2.     The Panel certifies the following injuries caused by the accident were threshold injuries:

·        injury left leg, left hip, right hip – musculoligamentous injury of the lumbar spine;

·        cervical spine – whiplash associated disorder;

·        chest – soft tissue injury (now resolved), and

·        lumbar spine – soft tissue injury.

3.     The Panel certifies the following injuries were not caused by the accident:

·        right or left knee, and

·        pelvis injury.

4.     The Panel certified the following injury caused by the accident is not a threshold injury:

·        injury to the right shoulder.

STATEMENT OF REASONS

INTRODUCTION

1. On 1 June 2022 Mr Hyo Gi Kang (the claimant) was driving his car when it was rear ended by the insured vehicle (the accident). Mr Kang alleges he sustained the following injuries:

   ·        injury to the right shoulder;

   ·        injury to the cervical spine;

   ·        injury to the bilateral knees;

   ·        injury to the bilateral hips;

   ·        injury to the pelvis;

   ·        injury to the chest;

   ·        injury to the left foot;

   ·        injury to the left leg, and

   ·        injury to the lumbar spine.

2. Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Kang under the Motor Accident Injuries Act 2017 (MAI Act).

3. Under the provision of the MAI Act in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.[1]

   [1] Section 3.28 of the MAI Act.

4. Mr Kang submitted an Application for personal injury benefits dated 3 June 2022.

5. On 6 September 2022 the insurer determined that Mr Kang had sustained a minor (threshold) injury and denied liability for statutory benefits beyond 26 weeks after the accident.

6. Mr Kang sought an Internal Review of the minor (threshold) injury decision and on 4 April 2023 the insurer affirmed the determination that the claimant’s injuries met the definition of a minor (threshold) injury.[2]

   [2] Claimant’s bundle p 29.

7. Mr Kang filed an application in the Personal Injury Commission (Commission) in respect of the minor (threshold) injury dispute.

8. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the motor accident is a threshold injury for the purposes of the Act.

1. 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.

DOCUMENTS CONSIDERED BY THE REVIEW PANEL

1. The Review Panel issued a Direction to the parties on 20 November 2023 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction on 28 November 2023 the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 103 (insurer’s bundle).

2. On 8 January 2024 the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 84 (claimant’s bundle).

3. On 24 January 2024 the Review Panel directed the claimant to upload to the portal the clinical records of any general practitioner consulted by the claimant, including the records of Dr Hajeong Lee, and the reports of all radiological imaging of the lumbar spine or the right shoulder, undergone by the claimant in the period five years before the accident to date.

4. In response to that direction the claimant provided additional records in an indexed bundle paginated from pages 1 to 72 (claimant’s additional documents).

5. On 15 February 2024 the claimant uploaded to the portal the clinical notes of Concord Family Doctors (Concord Family Doctors).

THRESHOLD INJURY – STATUTORY PROVISIONS

1. 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”.

2. The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.

3. 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”.

4. 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.”

5. 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)”.

6. 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 9.2 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.”

7. 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.”

8. 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 AMA4 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

1. The injuries referred for assessment to Medical Assessor Wijetunga in respect of the dispute as to threshold injury were the following:[5]

   [5] Insurer’s bundle p 7.

   ·        lumbar spine injury;

   ·        cervical spine injury;

   ·        bilateral hips injury;

   ·        bilateral knees injury;

   ·        left leg injury;

   ·        pelvis injury;

   ·        left foot injury;

   ·        right shoulder injury, and

   ·        chest injury.

2. In his certificate dated 24 August 2023 Medical Assessor Wijetunga certified the following injuries caused by the accident were threshold injuries:

   ·        left leg, left hip, right hip – musculoligamentous injury of the lumbar spine;

   ·        cervical spine – whiplash associated disorder;

   ·        right shoulder – aggravation of underlying degenerative changes, and

   ·        chest – soft tissue injury (now resolved).

3. He certified the following injury caused by the accident was not a threshold injury for the purposes of the MAI Act:

   ·lumbar spine – central annular tear.

1. He concluded the following injuries were not caused by the accident:

   ·        right or left knee, and

   ·        pelvis injury.

2. Medical Assessor Wijetunga reported Mr Kang migrated to Australia in 2018. He worked as a disability support worker supporting high dependent persons and in a community centre. Following his return to work after the accident he commenced full time office duties.

3. He reported lower back pain following injury as a pedestrian in 2019. Mr Kang was off work for about one week, he attended physiotherapy and returned to his normal duties. His symptoms resolved over about six months.

4. Medical Assessor Wijetunga reported the main area of pain in the week after the accident was in the lower back, right shoulder, neck and right knee. One to two weeks later he experienced pain from his lower back into the left hip, leg and left foot.

5. He reported lumbar spine pain extending down the left hip, down the back of the thigh and to the toes. He described the symptoms as constant. He also described a stabbing pain in the first toe and a burning sensation in the sole of the foot. He also described intermittent right sided symptoms. Mr Kang reported left sided neck pain associated with headaches and upper back pain. He reported mainly right knee pain with onset after prolonged standing, sitting or walking. He also reported left sided groin pain worse with abducting the leg. Mr Kang reported constant pain on the anterolateral aspect of the right shoulder and intermittent anterior chest pain, associated with the right shoulder pain.

6. Mr Kang was attending physiotherapy twice a week and taking medication.

7. On examination of the lumbar spine, left leg and left foot Medical Assessor Wijetunga reported mild pain on palpation of the lumbosacral muscles and full symmetrical range of movement of the lumbar spine. He reported a normal neurological examination of the lower limbs in terms of tone, muscle power, bilateral symmetrical reflexes. He reported reduced sensation over the lateral aspect of the left foot. Medical Assessor Wijetunga found there were no discrete injuries of the left leg or foot.

8. Medical Assessor Wijetunga reported mild tenderness at the insertion of the right sternocleidomastoid muscle on the clavicle and the occipital line. He reported a full symmetrical range of movement of the cervical spine with some pain on flexion and rotation to the left. He reported tone was normal, with bilateral symmetrical reflexes and reduced sensibility over the left upper arm. Shoulder pain caused difficulty in testing muscle strength on right flexion and extension.

9. Medical Assessor Wijetunga observed a normal gait and found no obvious abnormalities of the hips. Mr Kang reported groin pain but was able to demonstrate a full symmetrical range of hip movements. Trendelenberg test was negative.

10. There was no swelling or deformity of the knees. Medical Assessor Wijetunga reported no discrete injury of the right knee. He was able to flex his left knee to 140º and his right knee to 150º. Other than mild tenderness on palpation over the anterolateral aspect of the knee no other abnormality was observed.

11. On examination of the chest Medical Assessor Wijetunga found no obvious abnormality discolouration or swelling on examination of the chest. He found no tenderness on palpation of the sternum or sternoclavicular joint.

12. Medical Assessor Wijetunga reported tenderness to palpation over the anterior aspect of the greater tuberosity. Impingement testing was positive.

13. Medical Assessor Wijetunga reported Mr Kang demonstrated the following range of shoulder movements:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	130°	180°
Extension	40°	50°
Adduction	40°	50°
Abduction	130°	180°
Internal Rotation	80°	80°
External Rotation	80°	80°

1. Medical Assessor Wijetunga concluded although there were degenerative changes present the extent of the forced forward flexion could have caused or worsened the posterior central annular tear reported on the MRI scan. Noting the tear of the annulus is a tear of fibrocartilage Medical Assessor Wijetunga concluded the injury to the lumbar spine was a non-threshold injury. He also concluded there was no discrete injury to the left hip, left leg or left foot and the symptoms were related to the lumbar spinal injury.

2. Medical Assessor Wijetunga concluded Mr Kang had sustained a soft tissue injury to the cervical spine. He concluded the knee symptoms were probably constitutional and not related to the accident. He found the pelvis injury was not caused by the accident.

3. He also concluded the accident exacerbated the underlying degenerative changes in the right shoulder but noting there was no imaging indicative of specific tears of tendons or ligaments of the shoulder found it was a soft tissue injury.

REVIEW PROCEDURE

1. The insurer lodged an application for review of the assessment of Medical Assessor Wijetunga on 18 October 2023 within 28 days of the date on which the certificate of Medical Assessor Wijetunga was made available to the parties.

2. On 16 November 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.

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]

   [7] Rule 128 of the PIC Rules.

4. The review is by way of a new assessment of all matters with which the medical assessment is concerned.

5. On 24 January 2024 the Panel issued a Report and Directions directing the claimant to upload to the portal the clinical records of any general practitioner consulted by the claimant in the period five years before the accident to date and the reports of any radiological imaging of the lumbar spine or the right shoulder in the same period.

6. The Panel also stated:

   “The Panel notes the basis of the application for review was the question of causation of the annular tear of the lumbar spine. The Panel also notes the claimant seeks a review of the findings relating to the right shoulder. Having regard to the provisions of s 7.25 of the Motor Accident Injuries Act, 2017 both parties are to advise by close of business 14 February 2024 if there is any objection to the Panel proceeding to limit the review of the certificate of Medical Assessor Wijetunga to the lumbar spine and the right shoulder.”

1. On 24 January 2024 the insurer stated it had no issue with limiting the Panel review to the right shoulder and lumbar spine.

2. In submissions dated 13 February 2024 the claimant confirmed he had no objection to the Panel limiting the review of the certificate of Medical Assessor Wijetunga to the lumbar spine and right shoulder.

3. Accordingly, the Panel proposes to limit the review to the lumbar spine and the right shoulder and to otherwise confirm the certificate of Medical Assessor Wijetunga.

4. On 19 February 2024 the Panel issued a Report and Directions stating:

   “The Panel considers a re-examination of the claimant is not required because the Panel can determine the question of threshold injury as it pertains to the lumbar spine and the right shoulder by reference to the available medical records including the following:

   ·the imaging reports both pre and post-accident of the lumbar spine;

   ·the imaging reports post-accident of the right shoulder;

   ·the clinical notes of Dr Kwak and Dr Lee;

   ·the reports of Dr Bak, rheumatologist;

   ·the reports of Dr Chien; orthopaedic surgeon;

   ·the records of Kevin Oh of Rapid Therapy;

   ·the report of Dr Mitchell dated 9 January 2023; and

   ·the submissions furnished by the parties.”

5. The parties were directed to advise by close of business 27 February 2024 if there was any objection to the Panel determining the dispute on the papers.

6. On or about 21 February 2024 both parties advised there was no objection to the dispute being determined on the papers.

7. Accordingly, the Panel proposes to determine the dispute on the papers without re-examination.

EVIDENCE BEFORE THE PANEL

1. Mr Kang was 51 years of age at the date of accident and is now 55 years of age. At the time of the accident, he worked as a Disability Support Worker with the Ella Centre.

Application for personal injury benefits[8]

[8] Insurer’s bundle p 23.

1. In the Application for personal injury benefits dated 3 June 2022 Mr Kang described the accident as follows:

   “On the red light, [1], [2], [3] cars were stopped. Mine was [2] and there was [1] in front of mine, [3] was behind of mine. All the sudden, I felt my back part of car was hit and felt pain on my neck and back. Someone was knocking my door glass and that was driver of [4]. [4] didn’t stop the car on red light, so [4] hit [3], then [3] hit mine and I hit [1]. The driver of [1] just left as he thought his car looked okay. I exchanged detail with [3] & [4]. Next day I felt worse on my neck and back. I contacted to my insurer to fix my car and met my GP.”

2. Mr Kang described the following injury:

   “I feel hard to move my neck. I feel pain on my back. I feel numbness in my hand.”

Treating medical records

Concord Family Doctors

1. The claimant consulted Dr Janet Kyung-Hee Kwak on 6 December 2019. She reported as follows:

   “history of back pain on and off

   10/7 back pain

   whilst driving – had tingling L sciatic distribution

   whilst mowing had back spasm

   went to chiro

   had strong massage

   sudden lower back pain – L sciatic distribution

   unable to move

   had NSAID last night”

2. On examination Dr Kwak did not detect any abnormalities on straight leg raising, she found normal sensation and concluded it was likely muscle spasm with underlying sciatica.[9]

   [9] Concord Family Doctors p 4.

3. On 27 March 2020 Dr Kwak reported the claimant was a driver involved in a motor vehicle accident one week earlier when he was hit from behind. He reported he twigged his back at the time.[10]

   [10] Concord Family Doctors p 5.

4. On 3 April 2020 Dr Kwak reported Mr Kang wanted an accident notification form. He had ongoing lower back pain and spasm radiating to the buttocks and to the hamstrings, worse on the left. Dr Kwak reported range of movement was limited by pain.

5. On 12 June 2020 Dr Kwak reported Mr Kang had been undergoing physiotherapy twice a week for four weeks and had sciatica with bending, driving, sitting and persistent pain.

6. Dr Kwak recording the following findings on examination on 12 June 2020 and on 24 July 2020:

   “Flexion 45

   Extn 20

   Lateral flexion R20, L30

   Rotation 30

   All limited by pain

   SLR R 70 deg – tight mm

   L70 deg paraesthesia

   Reflexes reduced bilat

   Sensation reduced L4/5.”[11]

   [11] Concord Family Doctors p 6.

7. The claimant had a CT Guided left L5 perineural steroid injection on 21 August 2020.[12]

   [12] Concord Family Doctors p 19.

8. On 9 October 2020 Dr Kwak reported Mr Kang had ongoing paraesthesia from the left buttock to the toe and a reduced left ankle reflex. She referred Mr Kang to the Royal Prince Alfred Hospital neurosurgery clinic.[13]

   [13] Concord Family Doctors p 8.

9. Entries on 25 November 2020 and 11 December 2020 were for unrelated complaints.

Dr Ke-Hwan Kim, general practitioner (GP)

1. The clinical records commence on 21 February 2019 and conclude on 24 February 2022. There are no entries relevant to the lumbar spine or right shoulder.[14]

Dr Hajeong Lee, GP

[14] Claimant’s additional documents p 28.

1. In a Certificate of capacity/certificate of fitness dated 2 June 2022 Dr Hajeong Lee, GP diagnosed the following injuries:

   “Neck/trapezius/Whole Back/R+L hip/pelvis/ anterior neck and upper chest/. Injuries to be further reviewed.

   1.     severe neck pain with left side SPURLING test positive, and decreased sensation on medial R forarm [sic].

   2.     back pain decreased sensation on left medial foot/leg and medial left lower leg, righ [sic] sole, weakness on left knee. SLUMP tst [sic] positive on left side.” [15]

   [15] Claimant’s bundle p 44

2. Dr Lee identified previous lumbar disc pathology with history but noted the accident caused new and extended symptoms. He recommended physiotherapy and medication. Mr Kang was certified unfit for work until 9 June 2022.

3. On a diagram dated 3 June 2022 Dr Lee shaded each shoulder and reported “ROM with pain”.[16]

   [16] Claimant’s bundle p 56

4. In a Certificate of capacity/certificate of fitness dated 11 March 2023 Dr Lee provided the following medical certification:

   “-      Injuries: Neck/Trapezius/Whole Back/ R + L hip/pelvis/anterior neck and upper chest/.

   -      Injuries to be further reviewed:

   1.severe neck pain with left side SPURLING test positive, and decreased sensation on medial R forarm [sic].

   2.back pain decreased sensation on left medial foot/leg and medial left lower leg, righ [sic] sole, weakness on left knee. SLUMP tst [sic] positive on left side

   CONCLUSION: MRI of the right shoulder does demonstrate signal hyperintensity of the labrum anterosuperiorly across the bicipital anchor in keeping with a SLAP tear without destabilisation of the bicipital anchor.

   reported on 9/12/2022

   -       bilateral finger pains and elbow pains

   -       has been had R knee pain and some degree of instability since the accident.

   CONCLUSION: Focus of marrow contusion seen in lateral tibial plateau posteriorly”.[17]

   [17] Claimant’s bundle p 77

5. Dr Lee certified the claimant fit for pre-injury work hours but on restricted duties.

6. Dr Lee provided a report dated 6 May 2023.[18] In relation to the cause of injury to the right shoulder he stated:

   “-      During the collision his right shoulder muscles must be suddenly and forcefully contracted against sudden relative movements between his body and the vehicle.

   -       This can torn labrum by pulled labrum (SLAP tear) forcefully [sic]

   -       He did not had any shoulder injuries prior to the accident

   -       His right shoulder injury was a direct cause of the motor vehicle accident

   -       On initial presentation on 2/6/22 he reported ‘shoulder pains on a diagram provided and physical examination performed on the same day reported shoulder pains’( …).

   -       In initial certificate these seems to be interpreted as trapezius pain and cervical radicular pathologies. Shoulder pains, trapezius pains and cervical radicular pains are often mimics each other.”

   [18] Claimant’s bundle p 79

7. Dr Lee also stated the superior/anterior labral tear (SLAP) was a non-minor (threshold) injury where labrum are connecting and supporting structures of the shoulder and a partial tear of that structure, by definition, would be a non-minor (threshold) injury.

Dr Haesung Bak, physician and rheumatologist

1. Mr Kang saw Dr Bak on 22 October 2022 on referral from Dr Lee. He reported:

   “He was hit from behind whilst standing at a traffic light. He developed pain symptoms in his neck, shoulder girdle and back. He has been experiencing left forearm paraesthesia and some vague radicular symptoms in his left lower limb. He has ongoing left side lower back pain, neck pain and shoulder girdle pain symptoms.”[19]

   [19] Claimant’s bundle p 58.

2. On examination Dr Bak reported the claimant’s neck movements were normal but his spinal movements were limited due to pain. He reported there was no radicular feature present. He also reported shoulder movements were slightly limited due to pain symptoms. Dr Bak reported the MRI scan of the lumbosacral spine hadn’t changed much since 2020 with disc changes at the levels of L4/5 and L5/S1.

3. On 10 November 2022 Mr Kang underwent a CT-guided cervical left C5/6 perineural injection.[20]

   [20] Claimant’s bundle p 60.

4. Dr Bak reviewed the claimant on 25 February 2023.[21] He reported a minimal response to the cervical spinal injection. He noted Mr Kang was having physiotherapy. He suggested because of the chronic nature of the pain problem Mr Kang should be reviewed by a specialist pain clinic.

   [21] Insurer’s bundle p 88.

Kevin Oh, physiotherapist

1. Mr Kang commenced physiotherapy with Kevin Oh of Rapid Therapy on 3 June 2022. In an Allied health recovery request (AHRR) No 2 dated 8 July 2022 Mr Oh reported the following current signs and symptoms:

   “Limited c/sp function with cervicogenic headache L > R at the time of assessment but varies L to R

   Flexion – 3/5 range with tightness and sharp pain presenting centre of the neck, more presenting R side of neck 8/10 with pain down R side upper trapezius/upper back,

   Extension – 2/5 range with sharp pain presenting both side, R > L pain 7/10

   Rot – L; 2/5 R; 2/5

   Limited t/sp function

   Rot – L; 3/5, R; 3/5

   Limited l/sp function

   Flexion – 2/5 range with overall ache whole lower back with sharp pain presenting – L5/S1 region, R > L. pain 8/10. Pain +++ with L radicular pain and lack of sensation on L calf

   Extension – 3/5 range with same pain area. Pain report 7/10

   Rot – L; 2/5 R; 2/5

   Squatting capacity

   2/5 range mainly due to lower back and pelvic issue.”[22]

   [22] Claimant’s bundle p 47.

2. Mr Oh reported Mr Kang had undergone 49 sessions to date and reported the goals were to improve range of motion of the neck, upper and lower back, and right shoulder, to improve strength and stability of the cervical, upper and lower back and to improve sitting, walking and standing tolerance.

Romana Ali, rehabilitation consultant of ReCare Services

1. On 18 October 2022 Ms Ali confirmed the claimant had returned to work with the Ella Centre on suitable duties within a lifting capacity of 3kg. Mr Kang was not required to undertake patient manual handling or driving and was only handling one patient at a time, limited to patients who require less intensive care or physical support.

Dr Calvin Chien, orthopaedic surgeon

1. Mr Kang saw Dr Chien on 14 December 2022 in respect of his right shoulder.[23] He reported when the car was rear ended by another vehicle Mr Kang “had his hands on the steering wheel and braced himself with his arms. On impact he had immediate right shoulder and neck pain”.

   [23] Insurer’s bundle p 69.

2. Dr Chien reported the MRI demonstrated a right supraspinatus tendinopathy and SLAP tear and right lateral epicondylitis. He felt the main symptoms were from the cuff tendinosis and less so the labral tear. He arranged a subacromial corticosteroid injection.

3. In relation to causation Dr Chien stated:

   “… the sudden acceleration and deceleration of the vehicle and the forceful contraction of his shoulder muscles would have caused injury. The supraspinatus contraction causing tendinitis while forceful biceps contraction would have pulled the labrum causing the tear.”

4. On 19 January 2023 the claimant underwent an ultrasound right shoulder injection.[24]

   [24] Claimant’s bundle p 69.

5. Dr Chien reported to Littles Lawyers on 22 February 2023.[25] He confirmed his earlier opinion that the mechanism of injury was consistent with the diagnosis, and he noted that prior to the accident Mr Kang did not have any symptoms in his shoulder and was fully functional. He further stated:

   “Mr Kang has torn his right shoulder labrum. This is a specialized cartilage histologically similar to a meniscus. There are both made up for fibrocartilage. As per the definition of a ‘minor injury’, a torn meniscus or labrum does not fit in with a ‘minor injury’.

   Furthermore, Mr Kang also has rotator cuff tendinosis. Tendinosis. Tendinosis is basically small multiple tears of a tendon that cannot be clearly visualized as opposed to a full thickness tear. It is usually the precursor to a visible tear if it does not heal. Again, tendon tears do not count as ‘minor injuries’”.

   [25] Insurer’s bundle p 87 and claimant’s bundle p 6.

6. Dr Chien reviewed Mr Kang on 17 May 2023. He considered the labral tear and biceps tendinosis had worsened and become more symptomatic.[26] He noted alternative modes of treatment and failed and recommended surgery.

   [26] Insurer’s bundle p 95.

Imaging/investigations

CT lumbosacral spine, 6 December 2019  

1. The report concludes:

   “At L4/5. A diffuse disc bulge combined with mild facet arthrosis leads to mild central canal narrowing and potential irritation of the descending L5 nerve roots. No further central canal narrowing is evidence and there is no definite evidence of neural impingement.”[27]

MRI lumbar spine, 10 July 2020

[27] Concord Family Doctors p 17.

1. The report reads:

   “Clinical history: left sciatica.

   Findings: Lumbar spine normal in alignment. No fracture or bony lesion is demonstrated. Conus terminates at L1. Conus and cauda equina are normal in appearance.

   L1/2:Unremarkable.

   L2/3:Disc signal and height is maintained. There is subtle anterior annular fissuring with mild bone stress response. No posterior disc pathology or mechanical neural impingement.

   L3/4:Disc signal and height is maintained. There is anterior annular fissuring with mild bone stress response. No posterior disc pathology is demonstrated. No foraminal or canal stenosis.

   L4/5:Disc dehydration and mild concentric disc bulging. No focal disc protrusion is demonstrated. Mild anterior annular fissuring with mild bony stress response. Annular fissuring at L4/5 with disc bulge contacts the left L5 nerve root in the lateral recess. Mild bilateral foraminal stenosis and mild canal stenosis. Early right facet joint arthritis without bone stress or synovitis.

   L5/S1:Mild loss of disc height. Mild posterior disc bulging. Central posterior annular tear without focal disc protrusion. No mechanical neural impingement is demonstrated. Early bilateral facet joint arthritis without synovitis or bone stress.

   Paravertebral soft tissues are unremarkable.

   Conclusion: Mild annular fissuring demonstrated at the lower four lumbar levels. No focal disc protrusion. Early disc degeneration L4/5 and L5/S1.

   Annular fissuring at L4/5 with disc bulge contracts the left L5 nerve root and would be a potential site of irritation as a cause for left sciatica….”[28]

MRI lumbar spine, 10 August 2022 incorrectly dated as 1 June 2022

[28] Claimant’s additional documents p 72.

1. The report states:

   “Technique: MRI assessment has been performed utilising sagittal T1, T2 STIR sagittal T2, T2 FS sequences on the 1.5 Tesla Siemens MRI unit.

   Findings: Lumbar spine alignment shows mild reduced lordosis. Lower thoracic cord, conus medullaris and cauda equina nerve roots are normally distributed. No fracture or marrow contusion is seen.

   Assessment of the individual disc levels shows at L1/2, L2/3 and L3/4 no disc protrusion or neural compression.

   L4/5 shows disc dehydration. A small disc bulge is noted without neurocentral compression. There is mild foraminal stenosis. Left-sided extraforaminal annular tear is evident. Facet joints do show mild facet joint effusions.

   L5/S1 shows disc desiccation and a small subligamentous disc bulge with posterocentral annular tear. No central canal compromise is seen. Exiting nerves pass freely. Facet joints are mildly arthritic.

   No pars defects are seen and paraspinal soft tissues are normal.

   Conclusion: MRI of the lumbar spine does demonstrate at L4/5, a broad-based disc bulge with a left extraforaminal annular tear. Mild foraminal stenosis is seen abutting but not deviating the existing L4 nerve roots. L5/S1 is desiccated with a posterocentral annual tear. Mild facet joint arthropathy is seen.”

MRI right shoulder, 8 November 2022

1. The findings were reported as follows:

   “Findings: Subacromial/subdeltoid bursa shows a small volume of fluid. Assessment of the rotator cuff shows and intact teres minor tendon. Infraspinatus shows mild articular fraying and low-grade enthesopathic cyst at the attachment. Supraspinatus is intact. No cuff tear is seen. There is no denervation or atrophy.

   There is no deltoid dehiscence. Coracoacromial ligament is intact. AC joint is intact.

   Long head of biceps is normally located with intact bicipital anchor. Subscapularis is normal.

   Assessment of the labrum and capsule demonstrates signal hyperintensity of the anterosuperior labrum and the labrum superiorly across the 12-o’clock position extending to the posterior labrum suspicious for a SLAP tear. Articular surfaces are maintained. Capsule is intact. No fracture is noted. Axillary contents are normal.

   Conclusion: MRI of the right shoulder does demonstrate signal hyperintensity of the labrum anterosuperiorly across the bicipital anchor in keeping with a SLAP tear without destabilisation of the bicipital anchor. No cuff tear is noted.”

MRI left hip, 30 May 2023

1. The report concluded:

   “No bony injury or bone stress of the left hemipelvis or left hip.

   No convincing labral tear.

   Minimal spurring along the lateral margins of the acetabular roof from 12 to 10 o’clock. No degenerative change of the left hip, otherwise preserved cartilage throughout.

   Mild iliopsoas bursitis.

   Subtle oedema of the trochanteric bursal space, borderline for trochanteric bursitis.”[29]

Medico-legal reports

[29] Insurer’s bundle p 97.

Dr Robin Mitchell, occupational physician

1. Dr Mitchell prepared a Peer conferencing report dated 9 January 2023 at the request of the insurer.[30] He conferred with Dr Lee on 24 December 2022. He reported Dr Lee stated Mr Kang was progressing reasonably well but was not ready to return to full pre-injury duties, noting he continued to have pain symptoms in the neck and lower back together with significant degenerative changes identified radiologically.

   [30] Insurer’s bundle p 72.

2. Dr Mitchell concluded the current treatment was appropriate for the cervical and lumbar spine and reasonably good progress had been made.

SUBMISSIONS

Insurer’s submissions

1. The insurer provided submissions dated 18 October 2023 in support of the application for review.[31] The insurer submitted Medical Assessor Wijetunga failed to provide sufficient reasons for the finding of the annular tear being related to the accident. The insurer submits based on the report of Dr Bak dated 22 October 2022 the MRI of the lumbar spine was essentially the same as it was prior to the accident and therefore, the annular tear is not causally related to the accident.

[31] Insurer’s bundle p 2.

Claimant’s submissions

1. The claimant provided submissions dated 3 November 2023.[32] The claimant disputes the insurer’s assertion that Medical Assessor Wijetunga failed to provide sufficient reasons to establish that the annular tear is causally related to the accident submitting he engaged with the contents of Dr Bak’s report.

   [32] Claimant’s bundle p 1.

2. In the event the application for review is accepted, as is the case, the claimant also submits the assessors’ findings regarding the right shoulder should also be reviewed by the Panel.

3. The claimant submitted the report of Dr Chien clearly provided a diagnosis of a superior anterior labral tear and the MRI scan of the claimant’s right shoulder dated 8 November 2022 was also furnished by the claimant although not referenced by Medical Assessor Wijetunga.

1. The claimant notes the MRI report demonstrated a SLAP tear and rotator cuff tendinosis in the right shoulder, which as Dr Chien stated would constitute a non-threshold injury.

2. The claimant also provided submissions dated 2 June 2023 in support of the threshold injury dispute.[33]

   [33] Claimant’s bundle p 9.

3. The claimant disputes the assertion in the insurer’s internal review decision dated 4 April 2023 that there was no report of right shoulder issues until October 2022. The claimant notes the accident occurred on 1 June 2022 and on 2 June 2022 Dr Lee GP noted injuries to the neck, trapezius, whole back, bilateral hip, pelvis, upper chest, left foot, leg, medial left lower leg, right sole and the left knee. Further, in his report dated 6 May 2023 Dr Lee stated:

   “On initial presentation on 2/6/22 he reported shoulder pains on a diagram provided and physical examination performed on the same day reported shoulder pains”.

4. On 22 August 2022 Dr Park, rheumatologist reported the claimant had left side lower back pain, neck pain and shoulder girdle pain. The claimant also notes Dr Lee reported he did not have any pre-existing injuries to the right shoulder prior to the accident.

5. The claimant relies upon the evidence of both Dr Lee and Dr Chien to establish the claimant sustained a non-threshold injury to the right shoulder in the accident.

PANEL FINDINGS

Diagnosis and causation

1. The parties agreed to limit the review of the certificate of Medical Assessor Wijetunga to the lumbar spine and the right shoulder.

2. In accordance with the certificate of Medical Assessor Wijetunga the Panel confirms the following injuries caused by the accident were threshold injuries:

   ·        left leg, left hip, right hip – musculoligamentous injury of the lumbar spine;

   ·        cervical spine – whiplash associated disorder, and

   ·        chest – soft tissue injury (now resolved).

3. Further, in accordance with the certificate of Medical Assessor Wijetunga the Panel confirms the following injuries were not caused by the accident:

   ·        right or left knee, and

   ·        pelvis injury.

Lumbar spine

1. Mr Kang had a significant history of pre-accident back pain. On 6 December 2019 Dr Kwak reported a history of back pain on and off, and on examination concluded Mr Kang had muscle spasm with underlying sciatica. A CT scan of the lumbosacral spine the same day reported a diffuse disc bulge at L4/5 combined with mild facet arthrosis leading to mild central canal narrowing and potential irritation of the descending L5 nerve roots.

2. Following a motor vehicle accident in March 2020 Mr Kang reported he twigged his back and on 3 April 2020 Dr Kwak recorded ongoing lower back pain and spasm radiating to the buttocks and hamstrings.

3. On 12 June 2020 and 24 July 2020 Dr Kwak noted restriction of movement, paraesthesia, reduced reflexes and reduced sensation at the L4/5 level. Mr Kang had a left L5 perineural steroid injection on 21 August 2020. On 9 October 2020 Dr Kwak reported paraesthesia from the left buttock to the toe and a reduced left ankle reflex.

4. The accident occurred on 1 June 2022 and on 2 June 2022 Dr Lee noted injury to the whole back. In his certificate of capacity/certificate of fitness dated 2 June 2022 Dr Lee identified the claimant’s history of previous lumbar disc pathology but noted the accident caused new and extended symptoms.

5. In the Application for personal injury benefits dated 3 June 2022 the claimant described pain in his neck and back.

6. On 10 July 2020 the claimant underwent an MRI of the lumbar spine which reported disc dehydration and mild concentric disc bulging, but no focal disc protrusion. However, annular fissuring at L4/5 with the disc bulge was said to contact the left L5 nerve root. Similar findings were made in an MRI of the lumbar spine of 10 August 2022 which demonstrated a broad based disc bulge at L4/5 with a left extraforaminal annular tear.

7. The claimant was reviewed by Dr Bak, rheumatologist on 22 October 2022. He reported there were no radicular features present and noted the MRI of the lumbosacral spine hadn’t changed much since 2020.

8. The Panel notes the history of prior injury associated with clinical findings of back pain and left sided sciatica. Given the MRI scan of 10 July 2020 prior to the accident showed damage at the L4/5 level which was unchanged at the time of the post-accident MRI scan of 10 August 2022 the Panel is of the opinion, the annular tear and the changes shown on the MRI scan were pre-existing and not caused by the accident.

9. The opinion of the Panel differs from the opinion of Medical Assessor Wijetunga in that the Panel is of the view signs of radiculopathy were present pre-accident and are not causally related to injury sustained in the accident.

10. Having regard to the consistent history of complaint post-accident and the opinion of Dr Lee that the accident caused new and extended symptoms the Panel finds the claimant suffered a soft tissue injury to the lumbar spine.

11. A soft tissue injury is defined as a threshold injury in accordance with s 1.6 of the MAI Act.

Right shoulder

1. The Panel notes there is no history of prior injury.

2. Whilst Dr Lee did not refer to the right shoulder in his Certificate of capacity/certificate of fitness dated 2 June 2022 on a diagram dated 3 June 2022 Dr Lee shaded each shoulder and reported “ROM (range of movement) with pain”.

3. Mr Kang underwent an MRI of the right shoulder on 8 November 2022 which demonstrated a SLAP tear. He was referred to Dr Chien on 14 December 2022 in respect of his right shoulder. He reported Mr Kang had torn his right shoulder labrum which he considered was caused by the sudden acceleration and deceleration of the vehicle and the forceful contraction of the shoulder muscles. He was satisfied the mechanism of injury was consistent with the diagnosis noting that prior to the accident Mr Kang had no symptoms in his shoulder which was fully functional.

4. The Panel notes at the time of his assessment Medical Assessor Wijetunga was apparently unaware of the presence of the MRI scan of the right shoulder.

5. The Panel notes there has been a consistent history of pain and restriction of movement following the accident and the MRI scan shows a SLAP lesion which is a superior labral tear. Whilst the MRI scan shows that the rotator cuff mechanism is intact the Panel finds the SLAP tear is in keeping with the claimant’s symptoms and restriction of movement.

6. The Panel agrees with the opinion of Dr Chien. The Panel finds the claimant has sustained a SLAP tear of the right shoulder caused by the accident. In accordance with the definition of threshold injury in s 1.6(2) the Panel finds the SLAP tear constitutes a rupture of a tendon and is therefore, not a threshold injury.

CONCLUSION

1. The Panel revokes the certificate of Medical Assessor Wijetunga dated 24 August 2023.

2. The Panel certifies the following injuries caused by the accident were threshold injuries:

   ·        injury left leg, left hip, right hip – musculoligamentous injury of the lumbar spine;

   ·        cervical spine – whiplash associated disorder;

   ·        chest – soft tissue injury (now resolved), and

   ·        lumbar spine – soft tissue injury.

3. The Panel certifies the following injuries were not caused by the accident:

   ·        right or left knee, and

   ·        pelvis injury.

4. The Panel certified the following injury caused by the accident is not a threshold injury:

   ·        injury to the right shoulder.