Insurance Australia Limited t/as NRMA Insurance v Le

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Le [2023] NSWPICMP 410
CLAIMANT:	Duc Thuong Le
INSURER:	Insurance Australia Limited t/as NRMA
REVIEW PANEL
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Tai-Tak Wan
DATE OF DECISION:	24 August 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); on 7 October 2018 the claimant suffered injury in a high speed motor vehicle accident where car collided with a tree; the claimant was under the influence of drugs at the time of the accident; following the accident the claimant struck his head repeatedly on the ground; dispute as to causation of head injury; Medical Assessor (MA) Cameron found the following injuries were threshold injuries; lumbar spine; soft tissue injury; cervical spine; soft tissue injury; right shoulder; soft tissue injury, abdomen; soft tissue injury; head; mild traumatic brain injury was a non-threshold injury; Held – applying test of causation as per Briggs v IAG Limited T/as NRMA Insurance; Panel considered the accident was a more than negligible cause of the head injury, although not the sole cause; a traumatic brain injury even if it is mild affects the brain and is not a threshold injury; injuries to lumbar spine, cervical spine, right shoulder and abdomen soft tissue injures and therefore threshold injuries; Panel affirms certificate of MA.
DETERMINATIONS MADE:	Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel affirms the certificate of Medical Assessor Cameron dated 28 August 2022.

REASONS
BACKGROUND

On 7 October 2018 Mr Duc Thuong Le (the claimant) was a rear driver side passenger in a vehicle which rear-ended and side-swiped another vehicle, hit a curb and then hit a tree causing extensive damage to the vehicle.
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to make statutory payments to, for, or on behalf of Mr Le under the Motor Accident Injuries Act 2017 (the MAI Act).
On 24 October 2018 Mr Le lodged an Application for Personal Injury Benefits.[1] In the Application Mr Le asserted he sustained the following injuries in the accident:
[1] AD2 p 20.
(a)    injury to head;
(b)    injury to the face;
(c)    injury to the neck;
(d)    injury to the back;
(e)    injury to both arms;
(f)    injury to both hands;
(g)    injury to both legs;
(h)    injury to both ankles, and
(i)    psychological sequelae.
On 2 April 2019 the insurer issued a “Liability Notice- benefits after 26 weeks” in which the insurer determined the injury sustained by Mr Le was minor and that his entitlement to medical and care related expenses would cease after 5 April 2019.
On 25 April 2019 Mr Le sought an Internal Review of that decision and on 9 July 2019
[2] AD2 p 60.
the insurer affirmed the earlier decision that all the injuries suffered by Mr Le in the accident fell within the definition of minor injury.[2]
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the threshold injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with division 7.5 of the MAI Act by a Medical Assessor.[3]
[3] Section 7.20 of the MAI Act.
The threshold injury dispute was referred to Medical Assessor Cameron.

MINOR INJURY- STATUTORY PROVISIONS
Threshold injury

The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on
1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3   The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    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.”
Clause 5.7 of the Guidelines states that 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. Clauses 5.8 and 5.9 are in the following terms:
“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
(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
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9    Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In Briggs v IAG Limited trading as NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provide:
‘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.”

CERTIFICATE OF MEDICAL ASSESSOR IAN CAMERON

The following injuries were referred to Medical Assessor Cameron for assessment:
·        head - closed head injury with post-traumatic amnesia (PTA);
·        cervical spine - cervical disc protrusion with mechanical and radicular symptom;
·        right shoulder - impingement (radiating to arms and wrist – tingling and numbness including right radial nerve distribution);
·        abdomen - region of geographic low hypoattenuation, and
·        lumbar spine - mechanical lower back pain radiating to lower limbs (bilateral anterior thigh pain and bilateral ankle pain).
Medical Assessor Cameron assessed the claimant on 16 August 2022 and issued a certificate dated 28 August 2022.
Mr Le had completed a Bachelor of Science in IT in 2011 but at the time of the accident he was working as a picker and packer.
Mr Le reported he was stabbed in 2015 and sustained injuries to his right forearm, head and scalp in 2015. He thought the stabbing was associated with a period of unconsciousness.
Medical Assessor Cameron reported following the accident on 7 October 2018 Mr Le was noted to be agitated and he had a seizure at the scene of the accident. His level of consciousness was initially abnormal, and he was sedated and intubated. He was treated at St Vincent’s Hospital and discharged on 12 October 2018.
Following the accident, Mr Le was uncertain about events for a long period and could not pin down when he became more active. He was not permitted to drive for six months. He obtained work as an IT network specialist in 2021 and now works full time.
Medical Assessor Cameron reported Mr Le had difficulty with memory, with body movements and was quite stiff. He also reported anxiety and difficulty sleeping.
On examination he reported a healed laceration on the ulnar side of the right wrist and stiffness at the right wrist. He also reported a small facial scar and a scalp scar consistent with the 2015 assault.
In a certificate dated 28 August 2022 Medical Assessor Cameron concluded the injuries to the cervical spine, the right shoulder, the abdomen and the lumbar spine were soft tissue injuries and by definition they were all threshold injuries.
In relation to the closed head injury Medical Assessor Cameron stated:
“There is clear documentation from the ambulance form and from the treating clinicians at St Vincent’s Hospital that there was a brain injury and seizures occurred. There was a significant disturbance in level of conscious and post traumatic amnesia occurred. That is not a minor injury.”
Medical Assessor Cameron certified the following was not a threshold injury:
· head – mild traumatic brain injury.

REVIEW PROCEDURE

An application for review of the medical assessment of Medical Assessor Cameron was lodged by the insurer on 16 September 2022 within 28 days of the date on which the certificate of Medical Assessor Cameron was made available to the parties.[5]
[5] Section 7.26(10) of the MAI Act.
On 3 November 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after
1 March 2021, the new review provisions apply.
The new review provisions provide that a Review Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[6] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[6] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.

EVIDENCE BEFORE THE REVIEW PANEL

In response to a Direction dated 28 November 2022 the insurer confirmed the documents sought to be relied upon were the documents included in the indexed bundle of documents marked A1 and paginated from pages 1 to 283.
The claimant uploaded to the portal an indexed bundle of documents marked AD2 and paginated from pages 1 to 165 and a bundle of documents marked AD3 paginated from pages 1 to 129.
The Panel issued a Direction dated 5 April 2023 directing the claimant to upload to the portal by close of business 26 April 2023 the clinical records of Dr Chris Browne, rehabilitation physician, St Vincent’s Hospital in the event the claimant had sought treatment from Dr Browne. In response to the Direction the claimant uploaded to the portal records of St Vincent’s Hospital. Those records relate to the claimant’s admissions following the accident and do not include any records showing treatment provided by Dr Browne.

Police records

The police report Event Ref NO E69832865 provides the following crush summary details:
“About 3.20am on Sunday, 7 October 2018 VEH 2 was travelling southbound in lane 4 of 5 on York St, Sydney.
When VEH 2 was passing the intersection of York St and Jamison St, VEH 1 which was also travelling southbound on York St, behind VEH 2, collided with the rear of VEH 2 and then mounted the western sidewalk of York St and collided with a tree approximately 10 metres south of Jamison St. As a result of the collision, the vehicle received the above listed damage. It is currently unclear how the front of VEH 2 was damaged.
DRIVER 1 and another passenger fled from the scene, running westbound in Jamison St. One passenger remained in the vehicle.
The collision was witnessed by WIT 1 and WIT 2. WIT 1, who was concerned for the welfare of the passenger, broke the front passenger side window of VEH 1, which the passenger climbed out of. Both vehicles were then towed from the scene.”[9]
[9] A1 p 254.
An investigator retained by the insurer Penelope Berman engaged in a record of interview with Constable Thomas Giblin on 29 November 2018 in relation to the accident. Constable Giblin attended the scene of the accident. He reported the claimant was noncompliant and aggressive and was restrained by police. Constable Giblin stated Mr Le “actually beat his own head on the ground repeatedly despite police attempts to stop him”.
Constable Giblin read a statement he had obtained from a witness at the scene. The witness stated inter alia:
“I ran to the scene and went up to the grey car. I heard a person banging on the window who appeared to be trying to get out of the vehicle. I tried yanking open the door but it would not open. I heard a hissing sound coming from the bonnet area of the vehicle and thought the car might explode or catch on fire so I smashed the passenger side front window. An Asian male wearing a grey hoodie and red shoes crawled out through the smashed window. The male was holding his shoulder in pain. He was saying. “I love my girlfriend so much” and appeared to have erratic behaviour and was mumbling other random sentences. I believe this male may have been intoxicated. …I turned around and could see that the male from the grey car was inside the driver’s seat of the white car and possibly trying to drive away. The door was open and I could see him playing around with the gear stick. The male got out and ran to the middle road and was walking in circles and became aggressive, yelling.” [10]
[10] A1 p 263.
Constable Giblin was asked about the claimant beating his own head against the ground and stated as follows:
“…So, he was standing in the middle of the road and witnesses identified
him. We were also told that people were brawling which wasn’t in fact the case
but it was quite a chaotic scene at the time. We asked him to get off – to – we
– we said, “Come onto the footpath.” He was behaving erratically. Said, “No”
while cars would be driving quite close to him. So, I led him by his left side to try and get him onto the road and he shrugged me off. So, I pulled him onto the
road. He said, “Is that all you’ve got?” And, started kicking and thrashing and
trying to push away. So, we restrained him on the ground at which point he started beating his head onto the ground saying, “Let me help you. Let me help
you.” Quite forcefully and repeatedly. A bystander then held his head to the
ground, however he – to prevent him from beating his head on the ground.
However, he continued to do so. Yeah.”[11]
[11] A1 p 264.

When asked what injuries the claimant sustained as a result of the accident versus what he did to himself Constable Giblin stated:
“It’s hard to say. He – we noticed he had a seatbelt cut – sorry, a seatbelt bruise
once the ambos cut his shirt off. He had a bruise indicating that it was a drivers
– a driver’s side seatbelt or what we believed the result of a seatbelt injury.
After that it’s – it’s hard to say. His visible – and like, he didn’t have – I think it’s
– it all happened so quickly when we arrived but I don’t believe he had any
head injuries that I could see prior to him beating his head on the ground. He
had to be heavily sedated by paramedics, so I believed that he was drug
affected at the time as well. His eyes were rolling into the back of his head. He
was frothing at the mouth. I was very worried for him, so were the ambos.”[12]
[12] A1 p 265.
When asked whether the claimant had a head injury from banging his own head Constable Giblin stated:
“I believe so. I don’t recall seeing a head injury when I first spoke with him,
but it was a – it all happened quite quickly. But, given the force that he
was hitting his head on the ground I would say that the injury that I saw
was sustained during that because he – it was done repeatedly at least a
dozen times.”[13]
[13] A1 p 271.
Constable Giblin also stated:
“I believe – I believe that he appeared drug and alcohol affected. As to
whether or not he was actually drug and alcohol affected I can’t answer.
But, from my experience of dealing with people who are drug and alcohol
affected he showed signs of, yeah, erratic behaviour, aggression,
physically his eyes rolling back into his head, his frothing at the mouth,
showed signs of a possible overdose. Yeah. So, I believe that he was
intoxicated at the time.”[14]

Treating medical records
Ambulance records
[14] A1 p 271.

The Ambulance report states:[15]
“C/T 29 YOM high speed MVA Police state based on damage possibly travelling 100+ km/hr. O/A 3X police officers holding Pt prone to ground. Pt highly agitated, uncooperative, foaming at the mouth ? drug effected, ? ETOH Pt. Either driver or back seat passenger of vehicle airbags deployed and significant damage to vehicle. Difficulty with initial assessment due to Pt positioning and agitation. Pt given 10mg Droperidol with good effect. Initial OBS - GCS 12 E (eyes) 4,V (verbal))3, M (motor) 5,tachycardic, tachypnoeic, hypotensive, febrile. Post Droperidol Pt GCS 3. H2t – Haematoma and bleeding to R forehead, seatbelt trauma/bruising, battle signs present, epistaxis, Pearl 3mm, chest sounds clear L = R, abdomen soft non-tender, pelvis intact, long bones intact. En route to SVH Pt proceeded to have seizure like activity. Rx IVC, pelvic splinting, 10 mg Droperidol, 1mg Midazolam, 500ml Hartmann’s. Tx to SVH for further management.”
[15] A1 p 114.
Droperidol is a butyrophenone used in acute care settings for a variety of purposes, including the rapid sedation of patients with agitation, aggression, or who are exhibiting violent behaviour. It has many side effects, including confusion, dizziness, drowsiness, trouble staying awake, dystonia (uncontrolled and repetitive body movements, muscle stiffness or spasms, tremors or shaking), loss of balance or coordination, restlessness, and shuffling walk, which may be signs of extrapyramidal symptoms (EPS) and seizures.
The Glasgow Coma Scores (GCS) were 12, 3, 3 in three observations.

Records of St Vincent’s Hospital

On arrival at the Emergency Department (ED), the following clinical entry was made:
“29 ↑ trauma call.
BAT call, major trauma. Passenger in MVA, car vs tree at 100 km/h.
Fluctuant level of consciousness at scene → conversant → agitated, 10 mg imi droperidol given → obtunded.
? Seizure.
On arrival to ED
→ R eye deviated.
GCS 3.
HR 130 (sinus) BP
Intubated for airway protection & to facilitate scan.
Airway – Dr Shioam (ED reg)
CMAC
Drugs – Ketamine
Rocuronium.
Tachycardic to 160 → responded to fluids & fentanyl & propofol.
CXR → ETT in situ.
Nil pneumothorax.
Pelvis – nil #
? CAM femoracetabular impingement.”
On admission to ICU on 7 October 2018 the following primary survey was recorded:[16]
[16] A1 p 152.
“Airway – for intubation.
Trachea midline
Breathing – AE R side
(However, CXR showed nil pneumothorax)
Circulation
Unsupported   Dilates but not
Tachycardic  distended neck veins-
Disability  Prominent veins lateral
GCS 3.     Nil clonus  Chest wall/shoulders
Pupils 3mm b/1.  Nil petechiae
Exposure
Afebrile
Minor cuts – nil over joint
Feeds/fluids/fasting – nil unknown.
Abdo soft.”
On admission to ICU Mr Le was given Ketamine and Rocuronium. He was intubated and sedated. The urine test was positive for cocaine and amphetamine. Mr Le was started on regular Keppra for seizure activity, although there was no recurrent seizure or history of previous seizure activity.[17]
[17] A1 p 205.
Records of St Vincent’s Hospital indicate injuries to the anterior and superior aspect of the forehead/head and right cheek as well as seat-belt injury consistent with driver side occupant going from the right clavicle across the chess diagonally. No neurological abnormalities were noted in the upper or lower limbs.
The claimant denied a history of seizure disorder and denied drug use prior to the accident to St Vincent’s Hospital staff on the 9 October 2018, however, the blood results reportedly showed positive for cocaine and amphetamine.[18]
[18] A1 p 175.
The CT scans of the cervical spine, chest, abdomen and pelvis showed:
“No evidence of acute intracranial, thoracic or abdominal pathology. No evidence of acute fractures. No evidence of skull base fracture. Bubbly sections within the nasal cavity, nasopharynx and oropharynx. No evidence of enhancing lesion within the nasal cavity. No evidence of vascular abnormality.”
On 10 October 2018 a UTI (urinary tract infection) was noted and Mr Le was started on oral antibiotics, Augmentin Duo Forte. He underwent a neurology consultation which was normal.[19] An EEG (electroencephalogram) and MRI were ordered although the notes state:
“Seizure in context of drug use & some trauma. Unlikely to have seizure disorder, however it is unclear if a seizure led to the accident.”
[19] A1 p 184.
An EEG on 11 October 2018 showed minor nonspecific slow-wave abnormalities more over the left hemisphere with no epileptiform activity.[20]
[20] A1 p 203.
Before discharge on 12 October 2018 Mr Le underwent PTA testing. On 9 October 2018 it was recorded he had scored 6/7.[21] On 12 October 2018 it was recorded he had scored 12/12 for the third day in a row meeting the Westmead PTA Guidelines for discharge.[22] Mr Le was discharged with a plan including no driving for six months and follow up with neurologist Dr Tisch on 16 November 2018. He was not to operate heavy machinery until review with Dr Tisch and was to complete a five day course of oral Augmentin Duo Forte.[23]
[21] A1 p 178.
[22] A1 p 191.
[23] A1 p 206.
The Panel notes in an entry dated 10 October 2018, the occupational therapist reported PTA score as 12/12. In an entry dated 11 October 2018, the PTA score was 12/12. In an entry dated 12 October 2018 the PTA score was 12/12 and the claimant was considered to be out of PTA. Therefore, technically the claimant was out of PTA since 10 October 2018, meaning that the PTA duration was three days. However, it was heavily contaminated by the medications given to the claimant and the actual PTA was much shorter.

Report of Dr Tisch, 16 November 2018[24]

[24] A1 p 215.

On 16 November 2018 Dr Tisch, the head of neurophysiology, became involved in
Mr Le’s care once he was transferred to the ward on 9 October 2018. He noted Mr Le had features of retrograde amnesia as he was unable to recall any events clearly in the weeks leading up to the accident. He recorded at the time of the consultation Mr Le’s main problems were “continued poor memory and concentration intermittent global headache, fatigue and soreness and restricted movement in his right shoulder and arm and low back pain”. He noted the neurological examination was normal and Mr Le had significant pain and restricted movement of the right shoulder “consistent with a partial frozen shoulder picture”.
Dr Tisch stated:
“On 7 October 2018, Duc Thuong was in a serious motor vehicle accident. The car was travelling at 100 km per hour and collided with a tree. Duc Thuong states that he was a rear seat passenger although whether he was the driver, or the passenger is not mentioned in the ambulance report. The ambulance report does state that when they arrive Duc Thuong was already being held prone to the ground by three police officer and was in a highly agitated, uncooperative state with foaming at the mouth. There was apparently some possible generalised seizure activity at the scene, and he was treated with droperidol and became very drowsy after with his level of consciousness going from GCS 12 to 3 en route. He was brought to St Vincent’s Emergency Department where owing to a low level of consciousness, he was intubated for airway protection. He was managed in Intensive Care and early in the intensive care phase, again some generalised convulsive activity was observed, which was interpreter as a probable seizure. He was admitted under the Trauma Team and fortunately, extensive imaging showed no evidence of craniospinal injury, fractures or organ injury. He did sustain significant abrasions to his face and chest and soft tissue injuries particularly to his right shoulder and lower back. CT brain showed no structural parenchymal lesion and there was no arterial injury in the CT angiography head and neck. Subsequent brain MRI was also normal.
Duc Thuong was treated with IV Keppra as a precaution in light of suspected seizure activity. This was continued for the first 72 hours and then discontinued. No further seizure activity was observed. … Duc Thuong has no recollection of the accident, and his first clear recollection is waking up in Intensive Care around 9 October 2018. Indeed, he has features of retrograde amnesia in that he cannot recall any events clearly in the weeks leading up the accident either.
Duc Thong was discharged on 12 October 2018, and since then has complied with instructions not to drive and has not been working. As a result, he no longer holds his job and is unemployed. He has been following up with a psychologist and he continues to see his physiotherapist. Duc Thuong’ current main problems are continued poor memory and concentration, intermittent global headache, fatigue and soreness and restricted movement in his right shoulder and arm and low back pain.
Neurological examination today was normal. …
… EEG showed minor nonspecific slow wave abnormalities more over the left hemisphere with no epileptiform activity. Urinary drug screen on 7 October 2018 was positive for benzodiazepines, amphetamines and cocaine.”
Dr Tisch concluded:
“Duc Thuong suffered probable seizures in the setting of a motor vehicle accident where he likely sustained some degree of closed head injury with traumatic brain injury and amnesia but also was under the effects of stimulant drugs including cocaine and amphetamines detected in his urine. As such, the seizures were provoked by several factors and there is no clear evidence of him having unprovoked seizures or an underlying epilepsy syndrome.”
Dr Tisch opined:
“Duc Thuong’s ongoing reported impairments in memory, concentration and headaches are consistent with a post-concussion syndrome and he will require continued supervision and support, ideally through outpatient traumatic brain injury service and I am therefore referring… to Dr Stuart Browne, consultant Rehabilitation physician… It is extremely important that Duc Thuong refrain from recreational drug use in the future including in particular cocaine and amphetamines as this may have had a contributory role both to his seizures and the accident.”

Other treating medical records

The Certificate of Capacity dated 18 October 2018 by Dr Yasmin Khan diagnosed closed head injury with PTA for the event, seizures, whiplash injury and recorded the following complaints:
“Neck pain, Transient memory loss, Headache, throbbing in nature, Muscle twitching, Tingling and numbness to bilateral hand, Central chest pain, Upper and low back pain, Facial pain, Bruises to multiple area, Bilateral flank discomfort, Bilateral anterior thigh pain, Bilateral ankle pain, Nightmare, flashback.”
In a referral to psychologist Mr Moubarak on 18 October 2018 it was reported Mr Le had sustained a “closed head injury with post-traumatic amnesia, flashback/nightmare, poor coping”.
In a Certificate of capacity dated 25 October 2018 Dr Khan diagnosed closed head injury with PTA for the event, seizures, whiplash injury and recorded the following complaints: dizziness, vertigo, blurry vision, short term memory loss, neck pain, right upper limb stiffness, right wrist discomfort, numbness and tingling to the right upper limb, lower back pain aggravated by changing posture.[25]
[25] A1 p 94.
A letter of referral to Dr Jonathan Herald dated 25 October 2018 noted Mr Le was suffering from “severe right shoulder stiffness, restricted range of motion, positive apprehension test, numbness and tingling to right radial nerve distribution, right wrist discomfort”.[26]
[26] AD2 p 85.
A letter of referral to Dr Anil Nair dated 25 October 2018 noted Mr Le was suffering from “dizziness, vertigo, blurry of vision relation to changing posture (closed head injury), short term memory loss, neck pain, upper right limb discomfort, lower back pain”.[27]
[27] AD2 p 84.
On 2 November 2018 Mr Le completed the DAS (depression, anxiety stress) test with the following results: Depression score – 9 (Moderate); Anxiety score – 11 (Extremely severe); Stress score – 9 (Mild).
A letter of referral to an ophthalmologist dated 8 November 2018 reported Mr Le had sustained a “closed head injury with post-traumatic retrograde amnesia (?), poor concentration, blurry of vision, dizzy, vertigo (?), reversible causes of blurry of vision ?”.[28]
[28] AD2 p 98.
An MRI scan of the brain on 10 November 2018 was normal. A neurology consultation the same day concluded the seizure activity was “in the context of drug use and head trauma”.
In a Certificate of Capacity dated 19 February 2019 Dr Khan noted the claimant was to be reviewed by Dr Browne on referral from Dr Tisch on 2 April 2019. There are no records to show that Mr Le attended Dr Browne for treatment. Mr Le had not returned to work and was complaining of blurred vision, short term memory loss, neck pain, right shoulder posterior joint line discomfort, lower back pain, poor sleep and muscle twitching.[29]
[29] AD2 p 101.
Certificates of Capacity dated 7 February 2019, 19 February 2019, 7 March 2019,
[30] A1 p 74,79,86.
26 March 2019 and 14 May 2019 by Dr Yasmin Khan diagnosed closed head injury with PTA for the event, seizures, whiplash injury, right shoulder strain and mechanical low back pain and recorded the following complaints: dizziness, vertigo, blurry vision, worsening short term memory loss, concentration issues, neck pain, right shoulder posterior joint line discomfort and stiffness, lower back pain, poor sleep and muscle twitching.[30]
The Physiotherapy Allied health recovery request (AHRR) dated 14 February 2019 diagnosed whiplash Associated Disorder Grade II, Mechanical non-specific lower back pain and right shoulder impingement.[31] The AHRR recorded that Mr Le was complaining of right “shoulder pain with overhead movement and some positions from the body”, the clinical examination showed cervical spine, lumbar spine and right shoulder limited range of motion. The AHRR noted that Mr Le was able to lift up to
[31] A1 p 220.
7.5kg below shoulder level, participate in functional tasks at home and was gradually getting back into gym.
The Exercise Physiology AHRR dated 11 March 2019 diagnosed “cervical whiplash, mechanical lower back pain, right shoulder pain”.[32] Mr Le reported feeling dizzy and lightheaded, experiencing fear and anxiety if hearing a loud car driving past and had developed a limp since the accident. It was reported that Mr Le had full cervical and trunk range of motion but reduced right shoulder range of motion.
[32] A1 p 230.
The Certificates of Capacity dated 11 June 2019, 18 June 2019 and 6 August 2019 by Dr Yasmin Khan diagnosed closed head injury with PTA for the event, seizures, whiplash injury, right shoulder strain and mechanical low back pain and recorded the following complaints: dizziness, vertigo, blurry vision, worsening short term memory loss, concentration issues, neck pain, right upper limb stiffness, right wrist discomfort, ongoing right shoulder pain, lower back pain, poor sleep and muscle twitching.[33]
[33] A1 p 51,63.
The Physiotherapy AHRR dated 01 July 2019 diagnosed whiplash associated disorder grade II, Mechanical non-specific lower back pain and right shoulder impingement.[34] The AHRR recorded that Mr Le was reporting intermittent sharp pain with right shoulder and intermittent headaches with neck pain. The AHRR noted that Mr Le was able to lift up to 7.5kg, was participating in more house chores and participating in the gym.
[34] A1 p 226.
The Exercise Physiology AHRR No 2 by Brian Castro dated 10 September 2019 diagnosed Mr Le with “Cervical Whiplash, Mechanical Lower Back pain, Right shoulder pain”. the AHRR recorded that Mr Le showed “a significant improvement but feel experiences pain and feeling of instability in his shoulder”, “Pain comes and goes in his lower back but is more prominent in the morning”. The AHRR recorded that Mr Le had full cervical and trunk range of motion and reduced right shoulder range of motion. The AHRR noted that Mr Le was working “part time/full time hours office job”, was independent with most activities but still experienced pain “if doing household activities for too long”, was not driving.
The Certificate of Capacity dated 18 February 2020 by Dr Yasmin Khan diagnosed
Mr Le with closed head injury with PTA for the event, seizures, whiplash injury, right shoulder strain and mechanical low back pain and recorded the following ongoing issues: short term memory loss(improving), neck pain, right upper limb stiffness, right wrist discomfort, right shoulder pain, numbness and tingling to the right upper limb, lower back pain aggravated by changing posture.

Dr Anil Nair, spinal surgeon[35]

[35] A1 p 218.

On 20 February 2019 Dr Nair noted that since the subject accident Mr Le had developed pain in the subaxial cervical spine radiating into the right upper extremity.
The physical examination revealed that Mr Le had normal gait pattern; restriction of cervical range of motion in particular rotation to the right. He also had restriction in the right shoulder range of motion. Dr Nair noted he had 1+ upper extremity reflexes in biceps and triceps bilaterally; brachioradialis was present on the right, inverted on the left. Hoffman’s test was negative on the right and positive to the left.
Based on the physical examination Dr Nair formed the following impression: “Cervical disc protrusion with mechanical and radicular symptoms”.

Other medical assessments

Medical Assessor Geoffrey Curtin

Medical Assessor Geoffrey Curtin assessed the claimant. In a Certificate dated
3 April 2022 he certified that ‘face injury: haematomata to the face and traces of superficial facial abrasion’ was caused by the accident and was a minor (threshold) injury.

Medical Assessor Atsumi Fukui

Medical Assessor Atsumi Fukui assessed the claimant. In a Certificate dated
12 December 2022 she certified the claimant had sustained a “generalised anxiety disorder” caused by the accident which was not a minor (threshold) injury.
This certificate is the subject of an application for review which is currently awaiting allocation to a Review Panel.

SUBMISSIONS

Insurer’s submissions

The insurer provided submissions dated 16 September 2022.[36]
[36] A1 p 1.
The insurer notes following the accident the driver and another passenger ran from the scene. The claimant exited the vehicle through a window and then unsuccessfully tried to operate the vehicle. The claimant is then described as behaving erratically, he was agitated and tried to bang his head on the ground. The insurer refers to the statement of the witness and the police report. The insurer also refers to the ambulance report which stated the claimant was “highly agitated, unco-operative, foaming at the mouth ? drug effected, “ ETOH”. GCS was recorded initially as 12 and en route to St Vincent’s Hospital the claimant had “seizure like activity”.

The insurer refers to the records of St Vincent’s Hospital noting injuries to the forehead, head and right cheek as well as a seat belt injury. No neurological abnormalities were noted in the upper or lower limbs. Whilst the claimant denied drug use the insurer notes the blood results showed positive for cocaine, benzodiazepine, and amphetamine. The Neurology consult at St Vincent’s Hospital on 10 October thought the seizure activity was in “in the context of drug use and head trauma”.
The insurer refers to the report of Dr Tisch dated 16 November 2018 and suggests he was not aware of the self-inflicted trauma to the head. Dr Tisch stated the claimant had a closed head injury with traumatic brain injury and amnesia but noted he was also under the effects of stimulant drugs. He concluded the seizures were provoked by several factors.
The insurer submits that Medical Assessor Cameron was not aware that by the time the ambulance arrived the claimant was restrained against the ground and had repeatedly struck his head against the floor out of his own volition.
The insurer refers to the decision in Insurance Australia Limited t.as NRMA Insurance v Warren [2019] NSWSC 1126 at [63] – [65], [68] and [87] and submits Medical Assessor Cameron failed to address any of the evidence of the claimant’s self-inflicted head trauma.
The insurer highlights AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368 at [161] McColl JA with MacFarlan JA agreeing at [173] and Simpson JA [197]-[198] stating:
“…in a matter referred to a medical assessor, it is apparent that doubt about whether an incident falls within the statutory definition exists, the medical assessor should make findings about causation by reference to the physical event or events, and leave it to the court to determine whether or not the events constitute a “motor accident”
The insurer submits it is necessary to determine whether the claimant solely suffered a brain injury in the accident, whether he solely suffered a brain injury due to the self-inflicted head strikes or whether there was a brain injury in the crash as well as self-inflicted head strikes.
Specifically, the insurer submits:
“(1)    The ambulance and subsequent medical records did not have the benefit of the police and witness statements as to the events prior to the ambulance arrival. The opinions based on the medical records should be considered in light of the police interview and the accounts of witnesses at the scene of the subject accident.
(2)     The claimant was a restrained passenger who was able to self-extricate with assistance through the windows, ambulating on scene, yelling and being combative.
(3)     The presence of various drugs in the claimant’s system were confirmed in the Hospital records.
(4)     The claimant’s behaviour at the scene of the crash was consistent with drug consumption as opined by the police officer.
(5)     The police officer was relatively certain that the head trauma was self-inflicted having observed the claimant before, during, and after the self-inflicted head-strikes.
(6)     There is no evidence of seizures until at least after the self-inflicted head-strikes. Based on the Ambulance report, the seizure like activity occurred only after the administration of Droperidol as the seizure like activity occurred en route to the Hospital and required the removal of the C-collar.
(7)     On the balance of probabilities there was no head trauma or concussion in the subject accident.
(8)     On the balance of probabilities, the claimant’s self-inflicted head-strikes were the cause to the soft tissue injuries to the head and cheek and to any brain injury.
(9)     On the balance of probabilities, the administration of Droperidol was solely due to the claimant’s drug induced behaviour.
(10)   On the balance of probabilities, the claimant’s retro-grade amnesia and ongoing memory issues relate to the effects of the drugs, self-inflicted trauma, and possibly interaction of those drugs with Droperidol causing seizure like activity.”
The insurer provided submissions dated 25 August 2021 in relation to the minor injury dispute.[37]
[37] A1 p 19.
In relation to the head injury the insurer submits at the time of the accident Mr Le was a rear passenger wearing a seat belt. The insurer submits there is no evidence to suggest that the claimant’s head was impacted during the collision. However, Constable Giblin confirmed Mr Le hit his head repeatedly and forcefully on the ground at least a dozen times. The insurer also notes that Constable Giblin did not see any signs of head injuries prior to Mr Le hitting his head on the ground.
The insurer submits the head injury and related symptoms was not causally related to the accident but was self-inflicted by the claimant.

Claimant’s submissions

The claimant provided submissions in support of the threshold injury dispute. The claimant submits that Dr Khan has diagnosed a “closed head injury with post traumatic amnesia for the event”. [38]
[38] AD2 p 10.
The claimant notes Dr Khan referred the claimant to Dr Nair due to complaints of “dizziness, vertigo, blurry of vision related to changing posture – closed had injury, short term memory loss…”.
Similarly, Mr Le was referred to an ophthalmologist due to symptoms relating to the closed head injury including “poor concentration, blurry vision, dizzy, reversible cause of blurry vision”.
The claimant’s submission otherwise suggest the claimant has sustained non-threshold injuries due to his continuing complaints.

MEDICAL EXAMINATION

Mr Le was assessed by Medical Assessor Tai-Tak Wan at his rooms at Fairfield on
17 July 2023. Mr Le attended the assessment unaccompanied. The assessment, including history taking, cognitive function assessment and physical examination, lasted for two hours.
The Panel is asked to assess whether the injuries referred to Medical Assessor Cameron and referred to in his certificate dated 28 August 2022 meet the definition of a threshold injury.
The accident occurred on 7 October 2018, over four and a half years ago.
The following injuries were referred by the Commission for assessment:
·        head - closed head injury with post traumatic amnesia;
·        cervical spine - cervical disc protrusion with mechanical and radicular symptom;
·        right shoulder - impingement (radiating to arms and wrist – tingling and numbness including right radial nerve distribution);
·        abdomen - region of geographic low hypoattenuation, and
·        lumbar spine - mechanical lower back pain radiating to lower limbs (bilateral anterior thigh pain), and bilateral ankle pain.

Relevant personal details

Mr Duc Thuong Le is 34 years old and works full-time in IT (cyber security) 37.5 hours per week over five days. His job is mainly office work using a computer with no heavy lifting. He said he did the same at the time of the accident. Medical Assessor Wan noted this history is different from the history reported by Medical Assessor Cameron.

Past medical history

In or about 2015, Mr Le was a restrained driver involved in another motor vehicle accident. He said there was road rage involved, and his car was hit by another car from behind (the 2015 accident). He said initially he did not exit his car because other people involved were holding poles and threatening him. He said he called his wife and he drove the car home. He then went to Bankstown Hospital. He said he sustained a minor fracture of the nose, but no surgery was done. Police visited him while he was in the hospital, as he reported the matter to the police. After discharge from the hospital, he attended a follow up at the hospital. He could not recall any other injury.
Medical Assessor Cameron mentioned in his certificate that Mr Le was assaulted in 2015, “… a stabbing. He sustained injuries to his right forearm and his head and scalp. He was treated in Liverpool Hospital. He thought he had a period of unconsciousness with that…”. Mr Le could not recall another assault. He believed that it might refer to the earlier motor vehicle accident. He also confirmed he was admitted to Bankstown Hospital.
Mr Le said his past medical history was otherwise good.
There is no known history of allergy to medications.

Social history

Mr Le was born in Hong Kong. He came to Australia in 1991 when he was 2 years old. He said he got an UAI of 88.1 and then obtained a bachelor’s degree from the University of Technology Sydney (UTS). He said his academic performance was above average in high school, with Maths and IT his best subject, and Economic his worst subject. He is studying a master’s degree in ‘Cyber Security Management’ at UTS, but the course has been deferred for 18 months. He said he also works full time in IT as a cyber security consultant.
He lives with his wife, a 28-year-old beautician and their three children aged 6 to 10 in a tenth floor unit which is accessed by lifts. This is a second relationship since 2019, and the children are from a previous marriage. Sometimes the mother of his ex-wife helps to look after the children.
He was a chronic smoker, usually 10 cigarettes a day, but he said he has quit smoking since the accident. He is a social drinker.
He drives a manual car.
He said he was very active before the 2015 accident, playing soccer, basketball, swimming, and gym, but he has stopped all of these activities since the motor vehicle accidents.
He liked fishing with friends, doing so usually twice a year. He has continued to visit his friends as usual after the accident. He still rides his bicycle.

History of the accident

Mr Le believed the accident occurred on 28 October 2018 and at night. However according to the police report and other documentation it occurred on 7 October 2018 at about 3:20am. When Medical Assessor Wan presented this discrepancy to Mr Le he said he could not remember details about the accident. He believed he was unconscious for an unspecific time. He said his memory has deteriorated in the last year as he could not even remember things which happened in his childhood.
When asked what he last remembered before he lost consciousness, he refused to give any answer. When asked to nominate the first thing he could remember after he regained consciousness, he again refused to give an answer, but agreed that he woke up in the hospital and found nurses helping him. He said he was not the driver, but he could not remember who the driver was. He admitted he might have taken some drugs that night, but he could not give further details.
He recalled he was taken to St Vincent’s Hospital but could not tell how long he stayed in the hospital. He could not remember whether he had any memory test whilst in the ED or in the hospital.
He could not tell Medical Assessor Wan when he went to see his GP after discharge, and whether he had seen any specialist.

History of symptoms and treatment following the accident

Mr Le said he sustained the following injuries from the accident:
·        head injury - he had an epilepsy soon after admission to the hospital, and he was not allowed to drive for six months;
·        lower back pain;
·        right shoulder pain, and
·        right and left ankle pain.
He believed he did not have any fractures from the accident.
Mr Le could not recall seeing a neuropsychologist for treatment purposes.
He had physiotherapy three times a week for two months. He said he could not remember whether he was still having physiotherapy (from his previous injuries) at the time of the accident.
Mr Le saw Dr Tisch, a neurologist, a few times, but he had stopped seeing the neurologist.
Mr Le could not recall seeing any brain injury specialist, rehabilitation physician or neuropsychologist while he was in the hospital or as an outpatient. He confirmed that although he was once referred to Dr Browne, a brain injury specialist, but he did not attend the appointment.
He said he might have seen a psychologist for some time but that has stopped.
He could not recall seeing any occupational therapist or any therapist to help him return to work.

Details of any relevant injuries or conditions sustained since the accident.

Mr Le denied any history of significant accidents, injuries or other relevant conditions sustained since the accident.

Current symptoms

His current complaints are as follows:
·        low back pain, 8/10 in visual analogue scale (VAS). It is a constant sharp pain, and sometimes goes to the upper back. It is aggravated by prolong sitting or standing. Sometimes it becomes ‘pin and needle’;
·        right shoulder pain, 8/10 in VAS. It is a sharp intermittent pain. It is aggravated by any physical activities. He could not identify any relieving factor;
·        pain in both ankles, 7/10 in VAS. It is an intermittent sharp pin and reduced by resting;
·        sometimes he may also have pain in both knees;
·        neck pain, 7/10 in VAS. It is an intermittent sharp pain, more on the left side. It may radiate to the left shoulder. It is worse if he sleeps on the left side;
·        Mr Le complained that his memory is not good since the accident but is getting worse in the last year. He complained he cannot remember names after 10 minutes. He does not get lost because he uses Google Maps. He may forget appointments if written on paper, but surprisingly noting he is an IT consultant he does not use the calendar in his smart phone for the appointments and he could not show Medical Assessor Wan appointments in his smart phone. Mr Le could not provide other examples of his memory problems, or what strategies he used to address it. Apparently, he can manage his work as he has not received any complaints from his supervisor. When asked about any change in his mood or personality, he said he may be depressed but he could not give any further details. He is not seeing a psychologist regularly, and
·        Mr Le said his sleep is not good but that is mainly due to back pain. On further enquiry he said he usually goes to bed at 10 pm and wakes up at
8 am, suggesting his sleep is okay.
He reported no problem in his bowel or bladder function.
Mr Le said at most he can sit for 30 minutes, stand for 15 minutes and walk for 30 minutes. He can drive for 2 hours.
Mr Le is independent in his personal hygiene and care and most activities of daily living (ADL). He said his wife and daughter do most of the housework, although he sometimes helps. He does not go to the gym frequently, but he does exercise at home.

Current and proposed treatment

Mr Le stated that he has been taking the following medication:
·        Nurofen 2 tab bd as necessary, sometimes more;
·        Ventolin puffer, and
·        Occasionally he may take some Panadol.
He said he takes cannabis “but not regularly” in the last five years. He could not give further details, saying “I cannot remember”. He denied using other recreational drugs.

FINDINGS ON CLINICAL EXAMINATION

The examination on 17 July 2023 showed that Mr Le was orientated and alert. His affect appeared normal. He said he is 172cm tall, and weighs 72kg, which gave a BMI of 24.9 in the ‘normal’ range. He was quite agitated when Medical Assessor Wan asked about the details of the accident and when he sought to clarify discrepancies in the history provided.
He walked independently without a walking aid in a normal symmetrical gait. Mr Le refused to walk on tiptoes or on heels because it would aggravate his ankle pain, but he had no problem walking in tandem (heel-toes) way. However, he could only half squat, complaining of pain in the ankles and the knees. He could dress and undress independently. He could get on the examination couch independently.
He is right hand dominant.
Examination of the head showed no conspicuous scars, swellings, or deformities. Smell sensation was normal. Visual fields tested by confrontation were normal on both eyes. There was no nystagmus found. Mr Le complained of double vision ‘everywhere’ although his eye movements in both eyes were full in all directions. Pupils were equal and reactive. Visual acuity was grossly normal. There was no gross hearing loss. There were no other motor or sensory deficits in the face and head. All the cranial nerves were intact. There was no difficulty in communication, both in expression and comprehension. There were no cerebellar signs found. Romberg test was normal.

Mental state screening

Mr Le scored 28/30 on the Folstein Mini Mental test (MMSE). He lost 2 points on the short term verbal memory test. He scored 5/5 in both the serial 7 test and the reverse spelling test. He had no problem in copying figures including 3-dimensional cubes. He had no problem in alternating sequences. He competently and quickly drew a clock showing the current time. On the written arithmetic tests, he got the correct answer for addition and the wrong answer for subtraction even though the error was hinted at. He refused to try multiplication and division, saying he wouldn’t be able to do it. He gave only two correct answers when asked to give three differences between an apple and orange, and only one answer when asked for three similarities between an apple and an orange.
The Panel has concluded Mr Le did not give his best effort in doing these tests, because unless he was severely demented or had a severe brain injury, his performance in these tests should have been better given his education and experience. Mr Le’s results are not compatible with a man who is able to live independently and who holds down a highly intelligent job.
In summary, no evidence of cognitive impairment was detected clinically in the mental state screening tests. The slight difficulty in short term verbal memory was within normal limits. The arithmetic test results were most likely due to inadequate effort. Whilst abstract thinking and executive function were apparently impaired, the Panel considers it was most likely due to inadequate effort or the existence of a psychological condition, such as severe depression, as the pattern of difficulties is different from what would be expected in a mild to moderate traumatic brain injury (TBI).

Cervical spine (Cervicothoracic)

Mr Le refused to take off his shirt or other clothing for better examination because he was in “too much pain”. Therefore, the following examinations were done fully clothed.
Examination of the neck showed mild tenderness over the left trapezius area but no muscle spasm or guarding. He complained sometimes there was ‘electrical shooting’ in the whole right upper limb but that did not follow any dermatomal or peripheral nerve distribution. There was no evidence of non-verifiable radicular complaints, and there were no features of radiculopathy. There were mild restrictions in active movements of the neck but no evidence of dysmetria (asymmetrical loss of motion).
All the measurements are those of active movements. All the active ranges of movement (ROM) of the spine were measured using a goniometer. They were as follows:

Cervical spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	4/5 normal	4/5 normal	4/5 normal	4/5 normal	3/5 normal	3/5 normal

Thoracic spine (thoracolumbar)

Examination of the upper back showed mild tenderness over the left scapula region but no muscle spasm or guarding. Active movements of the thoracic spine were symmetrical and within normal limits. There was no evidence of any non-verifiable radicular complaints nor radiculopathy.

Thoracic spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	Normal	Normal	Normal	Normal	Normal	Normal

Lumbar spine (Lumbosacral)

Examination of the lower back showed mild tenderness in the lumber region, but no muscle spasm or guarding. There were mild restrictions in active movements of the lumbar spine, but there was no evidence of dysmetria. There was no evidence of radiculopathy nor non-verifiable radicular complaints:

Lumbar spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	4/5 normal	4/5 normal	Normal	Normal	4/5 normal	4/5 normal

Straight leg raising was 60° in on both sides; in supine position but 85° in on both sides in sitting position.

Upper extremity

Examination of the upper limbs showed no gross muscle wasting. Measurements of mid-arm circumference showed that the right side was 0.5 cm larger than the left side, which was within the normal limits, given that he is right hand dominant. Measurement of mid-forearm circumferences were equal on both sides. Muscle power was normal in both upper limbs, both proximally and distally. Reflexes were normal and symmetrical in the upper limbs. He complained of shooting pain down the right upper limb, but that did not follow any dermatomal distribution or peripheral nerve distribution.
Examination of the shoulders showed diffuse tenderness in both shoulders. Active movements of left shoulders were mildly restricted.
All the measurements are those of active movements. All the active ranges of movements (ROM) of the limbs were measured using a goniometer as follows:

Shoulder	Flexion	Extension	Abduction	Adduction	Internal Rotation	External rotation
Right /°	160	50	150	40	80	80
Left /°	160	50	150	50	80	80

Medical Assessor Wan found that the ROM was different from those of Medical Assessor Cameron. When asked about the discrepancy, the claimant replied he “got pain today”. Medical Assessor Wan asked Mr Le to give his best effort and repeated the measurement, but with no significant difference.
Examination of the elbows showed no tenderness or swelling. Active movements of the elbows were symmetrical and within normal limits.
Examination of the wrists and hands showed no deformity or swelling. Active movements of the wrists, hands and fingers were all symmetrical and within normal limits.

Lower extremity

Examination of the lower limbs showed no gross muscle wasting. Measurement of mid-thigh circumference and mid-calf circumference were equal on both sides. Muscle power was normal and symmetrical, both proximally and distally. Reflexes were normal and symmetrical on both lower limbs. There was no sensation over the skin graft area, but otherwise sensation was normal in the lower limbs.
Examination of the hips showed no deformity or swelling. There was no tenderness over the hip regions. FABER test was normal on both sides. Active movements of the hips were normal and symmetrical:
Examination of the knees showed no deformity, swelling or effusion. There was no crepitation on moving the knees. There was no excessive laxity both medial and laterally, and anteriorly and posteriorly. McMurray tests were normal suggesting the menisci were normal on both sides. Active movements of left knees were within normal limits.

Knee

Flexion

Extension

Right /°

135

0

Left /°

135

0

Examination of the ankles showed no deformity or swelling. Active movements of the ankles and feet were symmetrical and largely within normal limits.

Ankle

Plantar Flexion

Dorsi-flexion

Inversion

Eversion

Right /°

50

20

20

10

Left /°

50

20

20

10

Examination of the chest and the abdomen was unremarkable. Mr Le reported that all the soft injury to the abdomen had subsided.

Consistency of Presentation

Medical Assessor Wan noted the claimant was not co-operative during the medical examination. Not only did he refuse to remove his shirt to facilitate the examination he refused to answer some questions. Mr Le became agitated when Medical Assessor Wan questioned his responses.
The Panel has already indicated it was of the view that inadequate effort was given during the mental screen test. The Panel considers, in the absence of any compelling evidence, that it is unlikely the poor performance on the mental screen testing was due to a significant psychological condition or a severe brain injury.

Relevant Imaging Studies and Other Investigations

The claimant did not bring any X-ray films or reports to the assessment, because “he forgot”. The Panel reviewed the reports of the follow investigations enclosed in the supporting documentation.

CT Circle of Willis angiogram, CT cervical spine, CT chest, abdomen and pelvis,

[39] A1 p 210.

7 October 2018[39]

No evidence of acute intracranial, thoracic or abdominal pathology. No evidence of acute fractures. No evidence of skull base fracture. Bubbly secretions within the nasal cavity, nasopharynx and oropharynx. No evidence of enhancing lesion within the nasal cavity. No evidence of vascular abnormality.

Chest X-ray 9 October 2018[40]

[40] A1 p 198.

The report states:
“Normal heart size and cardiomediastinal contour. Normal pulmonary vasculature.
No pneumothorax, pneumomediastinum or pleural effusion.
The lungs are clear.”

MRI scan of the brain, 10 October 2018[41]

[41] A1 p 197.

This was reported as a normal examination.

Ultrasound of the right shoulder, 4 December 2018

No rotator cuff tear was shown, and the report concluded:
“The patients signs and symptoms of restricted movement seem out of proportion to the ultrasound findings supporting the clinical impression that that adhesive capsulitis (frozen shoulder) could be the predominant underlying problem.”

EEG Report, St Vincent’s Hospital, 11 October 2018

Associate Professor Ray Garrick reported it showed minor non-specific slow wave abnormalities with a light left hemisphere preponderance. No additional evidence is gained on photic stimulation.
The Panel notes this report is non-specific and is not epileptiform tracing. It does not support a diagnosis of epilepsy.

DIAGNOSIS AND CAUSATION

Head injury/Brain injury

There is no evidence of a moderate or severe head injury. The MRI brain, CT brain scan and CT angiography were all normal. The PTA duration was 3 days, but was contaminated with medications and intubation, and the real PTA was likely to be much shorter. There was unspecific duration of loss of consciousness reported, but when police saw him, he was conscious although he appeared to be confused or agitated. However, there was evidence the claimant had taken benzodiazepine, cocaine and cannabis (urine test) and probably also alcohol, noting the ambulance officer reported the smell of alcohol so that presentation may have been drug related.
However, the Panel is satisfied, on the balance of probabilities that Mr Le sustained a mild traumatic brain injury (TBI) noting the GCS and the seizure activity observed but also considering the normal CT scan, MRI scan, and short PTA duration.
There is a dispute as to causation of the closed head injury. Having regard to the comments of Wright J in Briggs the Panel considers it is appropriate to apply the test as to causation set out in part 6 of the Guidelines.
In Briggs Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[42] His Honour stated at [70] – [72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes[1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd[1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
[42] Briggs [2022] NSWSC 372.
The Panel notes not only was the claimant involved in the accident, but he was also under the influence of drugs and following the accident was seen to repeatedly strike his head upon the ground. The Panel refers to the opinion of Dr Tisch who concluded several factors contributed to the seizures, namely the likelihood of a closed head injury arising from the accident and the effects of the stimulant drugs. However, although Dr Tisch was aware that Mr Le was agitated and uncooperative at the scene, he was apparently unaware he had struck his head repeatedly on the ground.
It is clear from Briggs that the principles of causation of injury set out in Part 6 of the Guidelines as they apply to permanent impairment also apply to the assessment of threshold injury. The question, therefore, to be considered is whether the traumatic brain injury was caused or materially contributed to by the accident. It is also noted the accident does not have to be the sole cause as long as it is a contributing cause which is more than negligible.
Considering the accident occurred at high speed, estimated to be 100 kmph and Mr Le had to extricate himself from the vehicle through a window with the help of a bystander the Panel is satisfied that the accident was a more than negligible cause of the head injury. Further, where there is no evidence to establish, notwithstanding the presence of drugs in his body, that he was agitated prior to the accident, the Panel finds the claimant’s agitation and conduct in striking his head on the ground was due to the impact of the accident in addition to the presence of stimulant drugs in his body. The Panel finds on the balance of probabilities that the accident contributed to the claimant’s agitation following the accident. The Panel is satisfied, on the balance of probabilities, the accident materially contributed to the TBI, in that it was a contributing cause which was more than negligible.
However, the Panel is less confident about the seizure. Indeed, the Panel has some doubt as to whether the claimant even suffered a seizure. The seizure reportedly occurred when the claimant was being transported by ambulance to hospital. However, when Mr Le was assessed by a neurologist at the hospital no signs of seizure activity were apparent. There is no previous history of seizures and no family history. Furthermore, there was no epileptiform activity apparent on the EEG. There is no diagnosis of epilepsy and nor is there a finding of a severe brain injury. The finding is of no more than a mild TBI.
Whilst Dr Tisch thought any seizure was provoked by several factors, he also considered the effects of stimulant drugs, including cocaine and amphetamines detected in the claimant’s urine, to be significant.
Even if the claimant had sustained a seizure the Panel is not satisfied on the balance of probabilities the accident was a contributing factor. The Panel believes any seizure, if it occurred, was most likely drug related, probably due to the adverse effects of Droperidol as it is well known to cause dystonic reaction, uncontrolled repetitive body movements, stiffness, spasm, shaking, loss of balance and even seizure, or due to drug withdrawal, given it is clear from the hospital records the claimant was under the influence of drugs.
However, the Panel, after considering and balancing the possibilities, finds the accident was a contributing factor which was more than negligible to the head injury-mild traumatic brain injury. A traumatic brain injury is not a threshold injury as it affected the brain, therefore the head injury, even it is mild, is not a threshold injury.

Right shoulder injury

There was complaint of pain in the right shoulder. There was mild restriction in movement of both shoulders, slightly worse in the right shoulder. The findings were different from those of Medical Assessor Cameron who reported a full range of motion at both shoulders. The Panel notes the right shoulder ultrasound of 4 December 2018 approximately two months after the accident and considers the findings on examination were most likely due to pain or inadequate effort.
Since the ultrasound scan was normal, and there was no evidence of muscle tears or joint injury, the Panel is satisfied the claimant sustained a soft tissue injury. Accordingly, it is a threshold injury.
There is no evidence of right radial nerve injury.

Lumbar spine injury

There is no evidence of lumbar radiculopathy, using the criteria for radiculopathy listed in the Guidelines. There is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. There is also no evidence of non-verifiable radicular complaint.
However, considering the history and complaint, it is possible there was soft tissue injury to lumbar spine.
Therefore, the Panel assessed the lumbar spine injury as a threshold injury.

Cervical spine injury

There is no evidence of cervical radiculopathy, using the criteria for radiculopathy listed in the Guidelines. There is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
There is also no evidence non-verifiable radicular complaint. The complaint of occasional shooting pain does not follow any dermatomal or peripheral nerve distribution.
There is no muscle spasm, guarding or wasting.
Although there were mild restrictions in active movements of the cervical spine, clinically there was no asymmetrical restriction (dysmetria).
Clinically there is no evidence of nerve impingement, disc injury or musculoskeletal injury. However, considering the history and complaint, it is possible there was soft tissue injury to cervical spine.
Therefore, the Panel assessed the cervical spine as a threshold injury.

Abdomen injury

The claimant reported that there was some bruises in the abdominal wall, but they have quickly subsided. There was no evidence of internal organ injuries. Therefore, the abdomen injury was a soft tissue injury, and a threshold injury.

Ankle and knee pain

Although the claimant complained of pain in the ankles and knees, they are not listed in in the injuries to be assessed by the Panel and were only mentioned in the referral to Medical Assessor Cameron in the context of pain referred from the lower back.

PANEL FINDINGS

The following injuries were caused by the motor accident and are threshold injuries:
·        cervical spine – soft tissue injury;
·        lumbar spine – soft tissue injury;
·        right shoulder – soft tissue injury, and
·        abdomen – soft tissue injury.
The following injury was caused by the motor accident and is not a threshold injury:
· head - mild traumatic brain injury.
The Panel affirms the certificate of Medical Assessor Cameron dated 28 August 2022.

Ankle	Plantar Flexion	Dorsi-flexion	Inversion	Eversion
Right /°	50	20	20	10
Left /°	50	20	20	10

[2023] NSWPICMP 410

24 August 2023