Insurance Australia Limited t/as NRMA v Choi
[2022] NSWPICMP 248
•14 June 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA v Choi [2022] NSWPICMP 248 |
| CLAIMANT: | Jinsun Choi |
INSURER: | Insurance Australia Limited t/as NRMA |
| REVIEW PANEL: | Principal Member Josephine Bamber Medical Assessor Shane Maloney Medical Assessor David McGrath |
| DATE OF DECISION: | 14 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of Medical Assessment under Motor Accident Compensation Act 1999; dispute as to the degree of permanent impairment as a result of injuries sustained in motor accident on 23 August 2017; Held– original Medical Assessor’s Certificate revoked; the permanent impairment of injuries to the lumbar spine and left shoulder in total are not greater than 10% whole person impairment; finding that the cervical spine was not injured as a result of the motor accident. |
DETERMINATIONS MADE: | |
Medical Assessment – Permanent Impairment
Review Panel Certificate
issued under Part 3.4 of the Motor Accidents Compensation Act 1999
following a review under section 63 as to
WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%
THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER SECTION 63(4) IS AS FOLLOWS:
The Panel revokes the certificate dated 16 June 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, IS NOT GREATER THAN 10%:
· lumbar spine- soft tissue injury
· left shoulder-soft tissue injury
BACKGROUND
Ms Jinsun Choi alleges she suffered personal injuries on 23 August 2017 when she was driving her motor vehicle and became stationary at red lights on Garigal Road at the intersection of Forest Way, Belrose, when another vehicle collided with the rear of her vehicle.
Insurance Australia Limited t/as NRMA (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay Ms Choi any damages to which she may be entitled under the Motor Accidents Compensation 1999 (the MAC Act).
It is relevant to note that Ms Choi was involved in a second motor accident on 7 December 2017 when travelling as a passenger.
In these proceedings the parties are in dispute as to whether the degree of permanent impairment as a result of the injuries caused by the motor accident on 23 August 2017 is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See s 58(1)(d) of the MAC Act.
The degree of permanent impairment is determined by making an assessment pursuant to Motor Accident Permanent Impairment Guidelines - Version 1, effective from 1 June 2018 (the Guidelines)[2]. The Guidelines are based upon the American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4). However, where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[2] Issued pursuant to s 44(1)(c) of the MAC Act and see s 133 of the MAC Act.
[3] Clause 1.2 of the Guidelines.
On 30 November 2020 Ms Choi’s solicitors filed her Application for Assessment of a Permanent Impairment Dispute by the Medical Assessment Service. She sought assessment of injuries to her cervical spine, lumbar spine and functional impairment of the left shoulder due to cervical trauma.
On 1 March 2021 the Personal Injury Commission (the Commission) commenced and now has jurisdiction in relation to Ms Choi’s Application. Medical Assessor Home in his certificate dated 15 June 2021 assessed the degree of permanent impairment suffered by Ms Choi caused by the motor accident on 23 August 2017[4].
[4] Claimant’s document bundle p 3.
Medical Assessor Home found the following injuries were caused by the motor accident: “Left shoulder soft tissue injury and lumbar spine L5/S1 disc injury, left S1 radiculopathy”. At [24] of his certificate/reasons he found that the alleged injury to the cervical spine was not caused by the accident. Medical Assessor Home found Ms Choi has 17% whole person impairment (WPI) comprised of 10% WPI for her lumbar spine and 8% WPI for her left shoulder.
On 13 July 2021 the insurer filed an Application for Review of Medical Assessor Home’s certificate pursuant to s 63 of the MAC Act.
On 30 July 2021, the delegate of the President referred the medical assessment to the Review Panel (the Panel) as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
Pursuant to s 63(3) of the MAC Act and Sch 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a member of the Motor Accidents Division of the Commission.
CONDUCT OF THE REVIEW
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.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Pt 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.[6]
[6] Rule 128 of the PIC Rules.
The Panel issued a Direction to the parties dated 19 November 2021 requiring them to each file an indexed, paginated bundle of documents that they wished to rely upon in relation to the review, including the relevant documents relied upon before the original Medical Assessor.
The Panel conducted a preliminary review of the matter by way of a telephone conference between all of the Panel members. On 3 December 2021 the Panel issued the following Review Panel Directions:
“1. On 30 November 2021 the insurer filed the bundle of documents it relies upon in relation to the review and on 1 December 2021 the claimant filed her bundle of documents. The Panel has considered all of those documents and on 1 December 2021 the Panel conducted a preliminary review of the matter.
2. The Panel wishes to advise the parties of the conduct it proposes to take to determine this matter, absent any objection, as follows:
a.The referral to the original assessor, Assessor Home, related to the assessment of permanent impairment of injuries alleged to have been sustained in motor accident on 23 August 2017. The injuries which were referred for assessment were to the cervical spine, left shoulder and lumbar spine.
b.The Panel considers that examination of the Claimant is required to determine whether each of the above-mentioned claimed injuries were caused by the motor accident and to assess the permanent impairment of injuries found by the Panel to have been caused by the motor accident.
c.The examination of the Claimant will be undertaken by Medical Assessor David McGrath as follows:
i.Date: 19 January 2022
ii.Time: 3pm
iii.Address: AWA Building
Level 9,
47 York St,
Sydney.
d.The Claimant is to bring to the examination all radiological investigations including pre and post the motor accident on 23 August 2017.
e.The Panel notes that an x-ray of the claimant’s lumbar spine was performed on 26 April 2017, a copy of which is at page 73 of the insurer’s documents. This x-ray was performed at the request of Dr Shinyoung Kang 88 Rowe St Eastwood. As the Panel does not have before it records from Dr Kang, the Panel directs the claimant to obtain clinical records from Dr Kang and serve a copy on the insurer and file a copy in the Motor Accidents Division portal on or before 10 January 2022.
f.If either party seeks to make further submissions relating to the records produced from Dr Kang they are to do so on or before 17 January 2022.”
No records from Dr Kang or further submissions have been referred to the Panel.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
SUMMARY OF RELEVANT DOCUMENTATION
[7] Section 63(3A) of the MAC Act.
Claim form
Ms Choi submitted a Motor Vehicle Personal Injury Claim Form dated 28 August 2017[8] which attached a Medical Certificate from Dr Hyun Sang Cho dated 25 August 2017[9]. Dr Cho diagnosed that Ms Choi sustained injuries involving low back pain and had left shoulder blade pain (soft tissue injury). He also referred to some left foot pain. He recommended physiotherapy treatment. Dr Cho advises that Ms Choi had prior low back discomfort and had an X-ray at another surgery. No mention was made of any injury to the cervical spine.
[8] Insurer’s bundle p 6.
[9] Insurer’s bundle p 17.
Ms Choi’s statement
Ms Choi has supplied a statement which is undated and not signed[10]. She says she was running a restaurant in Korea but sold it in 2009 and moved to Australia. She says she married in 2000 but in 2015 Jae Myung Lee and she separated. They have one son, Jun Young Lee who is 18. At [8] she says since August 2019 she has been visiting Jae Myung regularly to care for him at his home. In July 2020 she moved in with Jae Myung and her son lives with them.
[10] Claimant’s bundle p 23.
She relates that in May 2017 she commenced a cleaning business, mainly cleaning residential buildings. She says occasionally Jae Myung accompanied her to provide quotations for new clients and also helps when she gets moving out jobs.
She describes the circumstances surrounding the motor accident on 23 August 2017, stating she was driving and Jae Myung was sitting in the rear passenger seat and in the front passenger seat was a casual employee who she engaged two to three times per week, but, somewhat surprisingly, she says she does not remember his name.
At [17] she stated at the time of the motor accident on 23 August 2017 she was in good health. She does not mention any prior low back pain or left shoulder pain. At [27] she says she sustained injuries to her left pelvis, left lower back, left shoulder, left leg and foot. She refers to the second motor accident on 7 December 2017 and says it was a minor accident but does not provide details about it.
The Panel considers that as the statement is unsigned, undated and does not provide relevant details about the second accident caution should be applied relying on the contents of the statement. However, it is noteworthy that nowhere in the statement is an injury to the neck mentioned including in the further list of injuries at [28] which are stated to have been suffered in the motor vehicle accidents. The plural is used but it is not clear if this list is intended to refer to both accidents. However, the neck also does not feature in the long list of disabilities set out at [48].
General practitioner notes
In the insurer’s bundle of documents there are handwritten consultation notes from Ms Choi’s general practitioner Dr Cho commencing on 19 March 2016[11]. There is a copy of the X-ray of the lumbosacral spine dated 26 April 2017 addressed to Dr Shinyoung Kang. It has a clinical history of lower back pain, and the radiologist reports mostly normal findings, noting some very minimal anterior osteophyte lipping in the lower spine in keeping with early degenerative disease[12].
[11] Insurer’s bundle p 44.
[12] Insurer’s bundle p 73.
There is an entry in the consultation notes of Dr Cho on 3 July 2017 in relation to an itchy left shoulder blade following applying a patch for left shoulder pain.
On 25 August 2017 the doctor has recorded a history of the motor accident on 23 August 2017 noting:
“left lower back pain
mild leg discomfort/ paraesthesia
mild left flexion discomfort
squat: mod discomfort
heel √ , toe√
SLR Ⓛ mildly discomfort/pain”
Dr Cho has drawn a diagram indicating pain over the low back and has written it is in the L5/S1 area. It is also stated that the patient history is “intermittent low back pain. Took x-ray 2-3/12 ago”.
On 28 August 2019 the doctor notes the presence of left shoulder pain since the last visit and he adds “(left shoulder blade pain) ROM Ⓝ → added in MC”, which the Panel interprets as meaning the doctor has added this to the medical certificate.
On 8 September 2017 the doctor notes “ongoing low back pain, back/leg paraesthesia” for which he prescribed Voltaren rapid[13].
[13] Insurer’s bundle p 46.
On 25 September 2017 the doctor writes “Med report ® shoulder and ® leg pain”[14]. The report to NRMA diagnoses “both shoulder pain (shoulder blade)” but says the range of movement was normal. Dr Cho also refers to low back pain with right leg paraesthesia[15]. Dr Cho states there was no pre-existing condition.
[14] Insurer’s bundle p 47.
[15] Insurer’s bundle p 110.
A lumbar spine X-ray report dated 10 October 2017 has a clinical history of “right low back pain referred down right leg post MVA”. The radiologist’s conclusion was there was “early disc and facet joint degeneration at L5/S1. Early degenerative change right sacroiliac joint, No acute bony injury.[16]” The Panel observes such pathology would have pre-existed the motor accident on 28 August 2017 because these type of changes are longstanding and would not have developed in the weeks since the accident on 28 August 2017.
[16] Insurer’s bundle p 52.
On 20 November 2017 the doctor recorded that Ms Choi had a fall on 18 November 2017 and had an occipital head injury. She complained of nausea, headache, vertigo, ataxia but no loss of consciousness. The doctor records there was no focal neurological finding and referred her for a CT brain scan, which was normal[17].
[17] Insurer’s bundle p 62.
On 5 December 2017 Dr Cho wrote to the NRMA advising that Ms Choi had ongoing left side low back pain and left shoulder pain and that she would benefit from further physiotherapy[18]. In his clinical entry for the same day, he records that the right side low back pain had improved but she has ongoing left side low back pain.
[18] Insurer’s bundle p 54.
On 8 December 2017 Dr Cho has written in his consultation notes that Ms Choi had a motor accident yesterday with hyperflexion and extension of the neck, headache, increased low back pain. On examination he recorded both legs paraesthesia and left shoulder pain. He states there is right and left side low back pain and the SLR was equivocal[19]. Dr Cho issued a motor vehicle medical certificate that day in relation to the second accident in which he diagnoses headache, whiplash injury of the neck, low back pain and left shoulder pain[20].
[19] Insurer’s bundle p 63.
[20] Insurer’s bundle p 111.
The insurer then wrote to Dr Cho mentioning the second motor accident and seeking his advices in relation to a number of questions. He replied in a brief report dated 16 February 2018. Dr Cho stated that Ms Choi had some improvement of low back pain from the previous motor accident and she presented to his surgery on 8 December 2017 with increased low back pain. He says “Yes she had whiplash injury of the neck, headache, low back pain and shoulder pain with MVA on 7/12/2017 (She had low back pain and shoulder pain with MVA on 23/08/2017)”[21].
[21] Insurer’s bundle p 57.
Thereafter, Dr Cho has multiple entries in relation to ongoing pain to these body parts covering the period from January 2018 to 15 September 2020[22]. The Panel has read all of these entries but does not need to summaries them in these reasons.
[22] Insurer’s bundle pp 63 to 69.
On 6 January 2018 the physiotherapist, Vincent Yang, reported to Dr Cho that Ms Choi had ongoing severe neck pain, severe low back pain, severe bilateral shoulder pain. It is noted that she reports nil change or improvement in symptoms following the initial accident[23].
[23] Insurer’s bundle p 79.
On 30 April 2018 a CT Lumbar spine scan was performed at the request of Dr Cho. Disc bulges were noted at L4/5 and L5/S1[24].
[24] Insurer’s bundle p 82.
On 7 May 2018 an X-ray of the cervical spine was found by the radiologist to be unremarkable, and a CT scan of the cervical spine was also performed at the request of Dr Bak[25], concerning which he comments below.
[25] Insurer’s bundle p 83.
On 31 January 2019 an ultrasound was undertaken of the left shoulder at Dr Cho’s request. The radiologist did not identify any particular pathology, the rotator cuff and other tendons were intact[26].
[26] Insurer’s bundle p 91.
Dr Haesung Bak
Dr Bak, consultant physician and rheumatologist, reviewed Ms Choi on 5 May 2018 on referral from Dr Cho. He has the history that in the first accident she injured her neck and low back and that those symptoms were improving when she had the second accident. He states that she developed more pronounced pain in her cervical and lower back area, and she has experienced left lower limb paraesthesia. Dr Bak was unaware of Ms Choi’s prior back complaints as he advises “considering that she did not have any previous lower back or radicular symptoms, one may postulate that her problem may be related to the accident she has experienced”[27]. Dr Bak is not specific as to which accident he is speaking about when he made this statement.
[27] Insurer’s bundle p 85.
Dr Bak examined Ms Choi again on 2 June 2018 he advised Dr Cho:
“Feldene seems to help her symptoms to a degree but she still complains of a lot of pain symptoms in her neck and left shoulder region. She seems to have a click with shoulder movements and she may have thoracoscapular bursitis causing symptoms. This particular issue would not be related to the accident. She proceeded with cervical CT scan which showed some small disc protrusion at the level of C5/6. She has a fair degree of neck pain and she should continue with physiotherapy for her neck and lower back issues.”[28]
[28] Insurer’s bundle p 58 and claimant’s bundle p 22.
On 9 February 2019 Dr Bak re-examined Ms Choi advising that the range of movements in her left shoulder were intact excluding the diagnosis of adhesive capsulitis. He noted she had tenderness in her subacromial bursa and AC joint areas, but he said the ultrasound did not look too bad in these areas. He was going to organise ultrasound guided injections into the left AC joint and subacromial bursa[29].
[29] Insurer’s bundle p 92.
On 23 March 2019 Dr Bak provided a further assessment to Dr Cho noting the injections had some effect. He noted that Ms Choi raised the issue of Centrelink and to get further benefit he has to demonstrate objective evidence of problems in her shoulders, and he advised Dr Cho that he does not think the ultrasound supports her claim. He stated he was going to organise a MRI of the left shoulder[30].
[30] Insurer’s bundle p 99.
On 13 April 2019 Dr Bak again provided advice to Dr Cho, stating that the left shoulder MRI demonstrated tendinopathy without a great deal of damage. He injected the left shoulder subacromial bursa with cortisone and lignocaine. He noted that Ms Choi also complains of lower back pain going down to her left lower limb[31].
[31] Insurer’s bundle p 100.
Dr Azhar Naseeb Khan
Dr Khan, occupational physician, provided a medico-legal report for the insurer dated 19 April 2018, having examined Ms Choi on 26 March 2018[32]. Dr Khan took a history from Ms Choi that she recalled injuring her neck, left shoulder blade and lower back following her first motor accident and that she had X-rays to those body parts, but the pain settled down before her second accident on December 2017. Dr Khan notes her advice that following her second accident she developed pain in her right shoulder blade and dizziness with worsening neck and low back pain. Dr Khan records a history of no prior neck, lower back or shoulder injury.
[32] Insurer’s bundle p 34.
He advised the insurer Ms Choi sustained injuries to her lower back with signs associated with left L5 Nerve root impingement, although he says this has not been confirmed on imaging studies. He also refers to a right trapezius strain. However, later in answer to question 4 he refers to a left trapezius strain but then in question 10 he refers to right trapezius strain. Even though in answer to question 1 about what injuries were sustained in the accident Dr Khan did not refer to the neck, he does refer to Ms Choi reporting complaints in her neck following the first accident.
In terms of permanent impairment assessment Dr Khan says Ms Choi does not have pain on palpation of her neck and does not demonstrate asymmetrical loss of movement in her neck and that the neurological examination of her upper limbs was normal. He says he therefore is unable to issue an impairment rating for her neck injury. He says the lower back cannot be assessed as it has not been fully investigated.
Dr John Davis
Dr Davis, occupational physician, provided a medico-legal report for Ms Choi’s solicitors dated 23 September 2020[33]. Dr Davis notes the history that Ms Choi said she has woken with symptoms in her lower back on a couple of occasions for which she sought advice from her general practitioner (GP) and underwent an X-ray on 26 April 2017. Dr Davis says Ms Choi told him at the time of her X-ray her pain had already resolved.
[33] Claimant’s bundle p 12.
Dr Davis relates the details of the motor accident on 23 August 2017 and states she developed pain in her neck which radiated to the left trapezius and pain in the lower back. He does not refer to any injury to the left shoulder but in his diagnosis states there is left shoulder functional impairment as a result of the cervical trauma, and he refers to the matter of Nguyen v Motor Accidents Authority of New South Wales.
In his examination of the shoulders, he states there was no asymmetry, instability or clinical signs present. He found tenderness in the cervical spine and said there were trigger points on the left side of the trapezius, levator scapulae insertion, over the 1st rib and in the upper pectorals. He noted full range of movement on the right side. Dr Davis also sets out his examination findings in relation to the lumbar spine.
However, the Panel finds little weight can be given to the opinions Dr Davis expresses because he does not refer to the second motor accident. The Panel regards this as a significant omission by the doctor, particularly since he lists that he had the clinical notes of Dr Cho which have many references to the second accident and its sequelae. Dr Davis does not refer to the contents of those records.
Dr Brian Stephenson
Dr Stephenson, orthopaedic surgeon, provided a report to the insurer dated 12 November 2020[34]. He has the history that after the motor accident on 23 August 2017 Ms Choi stopped work for two months and slowly returned to work, gradually increasing her hours. The doctor notes that after the second motor accident on 11 December 2017 she was not able to work. Then by August 2019 she tried 16 hours per week until February/March 2020 when she was unable to continue working.
[34] Insurer’s bundle p 22.
Dr Stephenson records that in the second accident she was a passenger and another car which came from the right causing the driver of her car to impact another car. She was not driving her car because after the first accident she was afraid of driving.
Ms Choi informed Dr Stephenson that before the first accident she had some stiffness in her low back around May 2017. She saw her general practitioner and had an X-ray which showed no abnormality.
The doctor set out his examination findings and concluded that there was restricted range of motion of the left shoulder, particularly on elevation, but he did not have any radiological investigations to consider. He advised that Ms Choi probably had a musculoskeletal soft tissue injury to her left shoulder related to tendinitis and bursitis. He also diagnosed a musculoligamentous strain to the lumbar spine. Dr Stephenson records at the outset of his report that the insurer requested that he not provide a permanent impairment assessment, although in discussing his diagnosis in relation to the lumbar spine he says it is “Category 2”, which the Panel infers is a reference to DRE II.
Dr Stephenson also earlier in his report when taking the history of the accident on 11 December 2017 states “I was not of the opinion that that accident materially aggravated the symptoms of clinical findings as regards the initial motor vehicle accident of 23 August 2017.
Medical Assessor Home’s Medical Assessment Certificate 15 June 2021
The injuries referred for assessment to Medical Assessor Home were described as:
(a) Lumbar spine - lumbar spine – lumbar disc injury; radiculopathy.
(b) Shoulder - left shoulder – functional impairment due to cervical trauma.
(c) Cervical spine - cervical spine – disc injury.
Assessor Home noted Ms Choi denied any past history of neck, back or shoulder complaints. At point 11 he records the history of the symptoms and treatment following the motor accident on 23 August 2017 and only refers to low back pain with referred pain to the left leg and pain in the left shoulder and shoulder blade.
The Assessor then at point 12 relates the details of the second motor accident, noting Ms Choi recalled the onset of neck pain following that accident. She also recalled transient right shoulder pain, which resolved and some additional pain in the right side of her lower back. He states that Ms Choi does not recall any material aggravation to her low back and left shoulder.
Assessor Home sets out his examination findings and concluded that the cervical spine was not injured in the motor accident, but he found there was a soft tissue injury to the left shoulder and a lumbar spine L5/S1 disc injury with left S1 radiculopathy. He assessed 10% WPI for the lumbar spine and 8% WPI for the left shoulder, combining to 17% WPI.
The Panel will refer to Assessor Home’s findings on examination later in these reasons.
RE-EXAMINATION
As noted in the Direction to the parties, the Panel formed the view that a re-examination of Ms Choi was necessary to determine causation of all of the alleged injuries and the permanent impairment of those injuries the Panel determines were caused by the motor accident. Accordingly, on 14 December 2021 Medical Assessor McGrath and Medical Assessor Moloney conducted the examination.
The following examination report has been adopted by the whole Panel, taking into account the clinical findings and the history taken from Ms Choi in the examination:
Pre-accident medical history
Ms Choi is separated from her husband and lives with her son. She states that she was physically active before the accident and was working full-time as a cleaner. Ms Choi stated that she had no past history of any injury to her neck back or shoulders. When the Panel pointed out that there had been an X-ray of her lumbosacral spine four months prior to the accident, she then remembered that she had had a sore back at that time which cleared without treatment.
History of motor accident and treatment following the accident
On 23 August 2017, Ms Choi was driving her car when she was stationary and struck from behind. There was damage to the rear bumper of her car, and she was able to get out of the car and drove home. The following day she noted left-sided lower back pain and pain in the left shoulder region and attended her GP, Dr Cho. He prescribed analgesics and referred her for physiotherapy which gave some benefit. Initially Ms Choi returned to work after taking a month off with restricted hours.
There was a second accident on 7 December 2017, when Ms Choi was a front seat passenger in a car which was struck on the driver’s side at the level of the front door. The police and ambulance did not attend this accident scene and Ms Choi was driven home. Ms Choi stated that neck pain developed after this accident with some initial aggravation of her lower back and pain in the right shoulder. She was referred for further physiotherapy and also acupuncture.
She attended a rheumatologist, Dr Bak who organised cortisone injections into the left acromioclavicular joint and subacromial space. She states the second injection gave good relief for one month.
Ms Choi states that there are no changes to the left side of her lower back and left shoulder after the second accident and the discomfort in the right shoulder settled spontaneously.
Current symptoms
Ms Choi states that there is persistent left shoulder pain which has become worse recently. This pain is over the anterior shoulder and in particular left trapezius muscle. She gets pain and tingling in the left arm involves left palmar aspect of her hand and left forearm including the left little finger. The right shoulder is asymptomatic.
There is low back pain on the left which radiates to the left foot. She states there is constant tingling and pain posteriorly from leg, medial left ankle and sole of her foot. This is aggravated when she lies on her back and wakes her at night. After walking more than 5 to 10 minutes there was an electric shock feeling in the left leg. She is able to drive short distances and attended this examination by train.
Since the second accident, Ms Choi has not returned to work and relied on Centrelink payments.
Present medication is paracetamol two or three per day and a daily antidepressant (she can’t remember the name). She continues physiotherapy or acupuncture every two weeks which gives relief for a few days.
Examination
Ms Choi attended the rooms of Assessor McGrath on 23 March 2022. The examination and interview were undertaken by Assessor McGrath and Assessor Moloney with the Korean interpreter, Nina Kang, available online.
Ms Choi was teary at the start of the interview and clutching her left shoulder with the right hand. Eventually she became more relaxed with the help of the interpreter.
Cervical spine
On testing range of movement, flexion/extension, side bending, and rotation were all reduced to 50% of expected range. There was tenderness over the left trapezius muscle and no neurological changes in the upper limbs. Reflexes were equal bilaterally with normal power and no sensory changes were noted. There were no signs of non-verifiable radicular complaints in the upper limbs.
Lumbosacral spine
Ms Choi walked with a normal gait and was able to stand on heels and toes with a normal squat. On testing range of movement, flexion/extension was 50% of expected range and limited due to pain in the left buttock region. Side bending was 50% of expected range bilaterally.
On neurological examination of the lower limbs, there was normal power and reflexes were equal and normal at the level of the knees with a brisk right ankle reflex but reduced in amplitude at the left ankle. On testing for sensation there was a decrease over the left anterior thigh and calf, medial ankle, lateral ankle and sole of foot (mixed L5/S1 pattern). The sensory changes do not conform to a dermatomal pattern. No muscle wasting was measured with the circumference of the lower thighs 37 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 32 cm bilaterally. Straight leg raise was 70° bilaterally with negative sciatic nerve root tension signs. Slump test was negative bilaterally.
The Panel considered that there was non-verifiable radicular complaint in the left leg. Radiculopathy could not be determined with only one positive sign which was a reduction in the left ankle reflex. The sensory changes noted at the time of our examination were not confined to a dermatomal pattern. The Panel considered that there was a non-verifiable radicular sign, with a decreased S1 sensory motor reflex at the ankle.
There were insufficient signs to diagnose radiculopathy under the Guidelines.
There was a full range of movement of the hips and knees.
Left shoulder
On examination of the shoulders, no muscle wasting was observed. Due to the pain that Ms Choi stated occurred with minimal movement of the left shoulder in any direction, the Panel considered that it could not obtain a meaningful impairment. On palpation, there was tenderness over the left acromioclavicular joint with a full range of movement of the right shoulder. Ms Choi stated that the pain was worse today than previously and it was discussed with her the variability in range of movement with different medical examinations including the previous assessment by Assessor Home. Due to this inconsistency, the Panel has determined that the most appropriate measure of impairment would be by analogy supported by current examination findings.
Ms Choi stated that she understood this line of thinking.
Impairment of the left shoulder is determined using Tables 18 and 19 of AMA 4. With Table 18 the acromioclavicular joint as 15% and by analogy the level of mild crepitation in Table 19 is 20% joint impairment. 20% of 15% is 3% WPI for the left shoulder.
The Panel has considered the second accident on 7 December 2017 and determined that there is no evidence of any exacerbation of the injury to the left shoulder or lumbar spine to the level of change in the impairment which was assessed at the time of our examination.
The soft tissue injury to the cervical spine arose after the second accident with no evidence of any injury in the accident which occurred on 23 August 2017.
PANEL’S DETERMINATION
In the Guidelines at 1.5 to 1.7 causation of injury is addressed, noting that the assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. In addition, various Supreme Court and Court of Appeal cases have discussed the principles to apply when determining issues of causation in motor accident cases. Those cases warn that treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation can lead to error as the question to be answered is whether the motor accident materially contributed to the injury to the body part in question. For instance, at [31] in Bugat v Fox(2014) 67 MVR 150; [2014] NSWSC 888 the Court stated:
“One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders.”
The Courts have also considered causation issues in the situation where an injury sustained in a motor accident has subsequently materially contributed to an injury to another body part. In AAI Ltd Trading as GIO as agent for Nominal Defendant v McGiffen[35] the Court of Appeal held at [64]:
“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
Cervical spine
[35] [2016] NSWCA 229, McGiffen.
As noted previously, the Panel finds that Ms Choi did not sustain an injury to her cervical spine in the motor accident on 23 August 2017. This accords with the history that she gave to the medical members of the Panel during the re-examination, that her cervical symptoms developed after the second motor accident.
In addition, as summarised above, the records of Dr Cho including the consultation entries on 25 and 28 August, 8 and 25 September 2017 all do not refer to any cervical spine injury or symptoms. Dr Cho does not refer to a cervical injury in his medical certificate dated 25 August 2017.
The Panel finds this is not just a case of absence of contemporaneous complaint as discussed in Bugat because in his report to the insurer on 16 February 2018 Dr Cho makes it clear that from the accident on 23 August 2017 Ms Choi had low back pain and shoulder pain, and that it was after the second motor accident on 7 December 2017 that she sustained a whiplash injury to the neck. This is consistent with his contemporaneous consultation notes.
The Panel finds that the history recorded by Dr Bak on 5 May 2018 was based on an error that Ms Choi injured her neck in the first accident. Similarly, Dr Khan and Dr Davis have provided their opinions based upon the same error and the Panel finds these doctors opinions in relation to a cervical spine injury cannot be accepted.
Assessor Home also obtained the history from Ms Choi that the onset of neck pain occurred after the second motor accident.
For all of the above reasons the Panel finds that Ms Choi did not sustain an injury to her cervical spine as a result of the motor accident on 23 August 2017. It is noted that Ms Choi’s submissions do not cavil with the finding by Assessor Home that there was no cervical injury.
Lumbar spine
The Panel finds that Ms Choi did sustain an injury to her lumbar spine as a result of the accident on 23 August 2017. This conclusion is supported by the records of Dr Cho, which have been summarised earlier. In their submissions dated 13 July 2021 the insurer does not argue to the contrary. Their criticism of Assessor Home’s medical certificate relates to his assessment of permanent impairment. The insurer submits that Assessor Home has failed to address the subsequent accident. At 3.5 of its submissions the insurer states the fact that Dr Cho found identical complaints in the lumbar spine after the second accident as with the first accident was not taken into account when assessing apportionment of Ms Choi’s injuries.
The submissions of the insurer before the Panel are focused on identifying error to support the application for medical review. The submissions do not identify what is the appropriate assessment of permanent impairment of the lumbar spine. The insurer also submits at 3.17, and following, that Assessor Home failed to interpret the various scans of the lumbar spine.
The Panel’s assessment is by way of a new assessment as provided by s 63(3A) of the MAC Act. It is not an appeal restricted to identifying error in the original assessment. The Panel has carefully considered the entirety of the evidence before it. The Panel is satisfied that in the accident of 23 August 2017 there was an injury to the lumbar spine of a soft tissue nature superimposed on underlying degenerative changes. The X-ray dated 26 April 2017 provides evidence of early degenerative disease.
However, the Panel cannot conclude from that X-ray that there should be a finding that of permanent impairment pre-existing the accident. Clause 1.31 of the Guidelines delas with pre-existing impairment. It provides if there is no objective evidence of pre-existing symptomatic permanent impairment, then its possible presence should be ignored. The Panel asked Ms Choi about this X-ray, and she advised her symptoms had abated by the time she had the X-ray. The Panel notes before this motor accident she was able to work as a cleaner. Apart from this X-ray there is no evidence in Dr Cho’s notes going back to 19 March 2016 of lumbar complaints.
Clause 1.34 of the Guidelines deals with subsequent injuries. The instruction is given that if there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.
The Panel has set out its examination findings noting that there were insufficient signs to diagnose radiculopathy under the Guidelines. The Panel finds DRE II is the appropriate impairment category as at the time of their examination there were non-verifiable radicular complaints. Applying Table 7 of the Guidelines, this equates to 5% WPI.
The Panel considers that an assessment of permanent impairment of the subsequent accident cannot be calculated. Dr Cho’s records establish that before the second accident Ms Choi was experiencing low back pain with the doctor commenting on the presence of referred pain. Following the second accident there was also low back pain on both sides but Dr Cho on 8 December 2017 said the SLR was equivocal and in his report to the insurer he said she had some increased low back pain after the second accident. The Panel considers it is unlikely that the second accident would have increased the DRE category of impairment because to move from DRE II to DRE III there needs to be signs of radiculopathy, which the Panel did not find. Therefore, the Panel cannot assess permanent impairment from the second accident and in accordance with clause 1.34 its possible presence is to be ignored.
The Panel has assessed 5% WPI in relation to the injury to the lumbar spine as a result of the motor accident on 23 August 2017.
Left shoulder
The insurer’s submissions criticise Assessor Home arguing he has failed to explain the difference in the assessments of the left shoulder injury. It also argues that Assessor Home failed to address other opinions in relation to causation of the left shoulder symptoms, such as Dr Bak wherein he postulates that Ms Choi may have thoracoscapular bursitis unrelated to the motor accident.
The Panel has considered the issue of causation of Ms Choi’s left shoulder complaints and finds firstly, that they are not attributable to functional impairment due to cervical trauma, because for the reasons explained above the Panel found no cervical trauma. Dr Davis did not find an injury to the left shoulder but related the symptoms to cervical trauma, therefore, the Panel finds no weight can be given to his opinion about the cause of the left shoulder complaints.
The Panel finds based upon Dr Cho’s records that there was an injury to the left shoulder in the motor accident on 23 August 2017. The Panel finds that this was more likely than not a soft tissue injury. The insurer has referred to one part of the report of Dr Bak dated 2 June 2018, however, Dr Bak does not come to any concluded view about the cause of Ms Choi’s left shoulder complaints. The Panel has also considered the evidence of left shoulder complaints after the second motor accident. As with the lumbar spine, the Panel finds the objective evidence is not sufficient to assess any subsequent impairment in accordance with clause 1.34 of the Guidelines.
The Panel found on examination that it could not obtain meaningful measurement of the range of movement in the left shoulder as explained earlier in these reasons. The Panel notes the differing range of movement in the left shoulder found by Dr Davis, Dr Bak, Dr Stephenson and Assessor Home. The Panel drew these inconsistencies to Ms Choi’s attention when re-examining her. Because of the inconsistency in the different medical examinations and the difficulty the Panel experienced examining Ms Choi’s left shoulder, the Panel determined that the most appropriate measure of impairment would be by way of analogy.
The Guidelines relevantly state:
“Clause 1.50.3: if the medical assessor is not satisfied results of a measurement are reliable, active range of motion should be measured with at least 3 consistent repetitions.
Clause 1.50.4: if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation. Refer to clause 1.40 of these Guidelines.”
“Clause 1.41: where there are inconsistencies between the medical assessor’s clinical findings and information obtained through medical records and/or observations non-clinical activities, the inconsistences must be brought to the injured person’s attention…”
“Clause 1.50.5: if range of motion measurements at examination cannot be used as a valid parameter of the impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
At paragraph 84 of these reasons the Panel has set out how it has assessed impairment in the left shoulder to arrive at 3%WPI using Tables 18 and 19 of AMA 4.
The first three paragraphs on page 58 of AMA 4 explain that the appropriate percents from Tables 19 to 30 are multiplied by percents from Table 18 representing the impaired parts. In the medical members of the Panel’s clinical experience, the most appropriate clinical finding of Ms Choi’s condition is in relation to the acromioclavicular joint which has an assessment of 15% WPI in Table 18. The Panel finds by analogy using the level from joint crepitation in Table 19 is 20%.
Therefore, 20% (from table 19) x 15% WPI (from table 18) equals 3% WPI.
SUMMARY OF INJURIES CAUSED BY THE ACCIDENT
· lumbar spine- soft tissue injury, and
· left shoulder- soft tissue injury,
IMPAIRMENT ASSESSMENT
The Panel has assessed permanent impairment using the Guidelines and AMA 4:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
In the Panel’s view the impairment in this case meets the definition of permanency outlined above. Chapter 1.118 of the Guidelines says the evaluation must not include any allowance for predicted long term change. It is noted that Ms Choi does not intend to undertake surgical treatment.
Combined WPI
The combined WPI equals 8% using the combined values chart, AMA 4 page 322. This is summarised in the Table below:
Body Part or System
AMA Guides/ MAA Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
Current %WPI*
%WPI from pre-existing OR subsequent causes
%WPI due to motor accident
1.
Lumbar spine
AMA4
Chapter 3
page 102
YES
5%
0%
5%
2.
Left shoulder
AMA 4 Chapter 3.1m, Tables 18 and 19, pages 58 and 59.
YES
3%
0%
3%
0