Luo v AAI Ltd
[2022] NSWPICMP 52
•11 March 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Luo v AAI Ltd [2022] NSWPICMP 52 |
| CLAIMANT: | Zeming Luo |
| INSURER: | AAI Ltd |
| REVIEW PANEL: | Principal Member John Harris |
| DATE OF DECISION: | 11 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- The claimant was involved in a motor accident on 22 January 2017 when he sustained soft tissue injuries to the cervical and lumbar spines; the claimant also had pre-existing bilateral shoulder problems for work injuries; the claimant alleged the motor accident aggravated the bilateral shoulder condition; Held- The claimant was examined by both Medical Assessors (MA) who found nil impairment under the Motor Accident Permanent Impairment Guidelines; that assessment was consistent with the fact that the nature of a soft tissue injury may and can resolve over time; finding made that the bilateral shoulder condition was not aggravated by the motor accident based on the absence of contemporaneous complaint to doctors and in the claim form, the absence of complaint that the shoulders was injured to various qualified doctors and the history provided to the MA; the nature of the motor accident was not consistent with a shoulder injury; QBE Insurance (Australia) Ltd v Shah applied; no need to assess the shoulders as they were injured in the motor accident; Jarvis v Allianz Australia Insurance Ltd applied. |
| DETERMINATIONS MADE: | The Panel revokes the certificate dated 6 May 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, and · cervical spine. The Panel determines that the following injuries were not caused by the motor accident: - Injury or exacerbation to the shoulders. |
REASONS
Background
The claimant (Mr Luo) suffered injury in a motor accident on 22 January 2017. The insured vehicle collided into the rear of the claimant’s vehicle.
The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Luo any damages under the Motor Accidents Compensation Act 1999 (the MAC
Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 the MAC Act. The medical assessment was conduct by Medical Assessor Berry who determined that Mr Luo had a 5% impairment of the cervical spine and a 5% impairment of the thoracic spine. He also found that the shoulders were not injured in the motor accident.
On 2 September 2021, the delegate of the President referred the medical assessment to the Review Panel (the Panel) as they were 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.[3]
[3] Section 63(2B) of the Act.
Pursuant to s 63(3) of the MAC Act and Schedule 1, clause 14F(2) of the Personal
Injury Commission 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 Merit Reviewer or a Medical Assessor.[4]
[4] 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.[5]
[5] Rule 128 of the PIC Rules.
On 16 November 2021 the Panel issued a Direction to the parties which required respective bundles of documents to be filed.
The purpose of what has become a standard direction is to avoid problems of procedural fairness and error by a review panel not considering the entire documents.
It otherwise enables the parties to know exactly what a review panel is examining.
On 1 December 2021 the insurer’s legal practitioners advised the Commission that they sought to admit two prior workers compensation files for injuries sustained on 18 August 2015 and 19 August 2016.
The claimant filed submissions objecting to the admission of the material.
By Direction dated 13 December 2021 the Panel admitted the further evidence on the basis that the claimant can file any evidence in reply by 11 February 2021. We also advised that the insurer does not have leave to file any further evidence and that we would provide reasons in due course.
These are our reasons for the admission of the further material.
By letter dated 1 December 2021 the insurer advised that it had received the further material on 12 November 2021 and 19 November 2021 and that the documents were served on the claimant on 19 November 2021. The insurer noted that the further material relates to the prior shoulder injuries which were discussed in the reasons provided by Medical Assessor Berry. It submitted that it would be prejudiced if the documents were not admitted, and the Panel should be able to make an informed decision on the injuries related to the motor accident.
The claimant filed submissions on 8 December 2021 opposing the further evidence. It submitted that:
(a) the insurer had ample time to obtain the material;
(b) the material was sought to be admitted “on the heel of the hunt”;
(c) the claimant had provided authorities to the insurer in February 2017;
(d) the insurer has provided no explanation why it took so long to obtain the material;
(e) the insurer has not articulated what portions of the voluminous documents is relied upon, and
(f) the claimant objects to any further delays and should not be put to any further expense and has a right “to have this dispute determined as soon as possible”.
We have read the further material provided by the insurer. The claimant correctly submitted that the insurer had ample time to obtain the material and has not explained the delay in obtaining the documents.
Of more concern is that the insurer has relied on a further 400 pages of material and not referred to any particular document and how it is relevant to the issues in dispute. A principal issue is whether Mr Lou injured his shoulders in the motor accident. That Mr Luo had a pre-existing bilateral shoulder condition was not in dispute.
We could not discern from any portion of the further material and the insurer did not provide any relevant submission how any portion of the further material related to the
issue of whether the shoulders were injured in the motor accident. What the material showed is the nature of the pre-existing bilateral shoulder problems.
Contrary to the claimant’s submission, the admission of the material did not cause any further delay to the matter. The Panel was required to re-examine Mr Luo independently of the admission of the material and this occurred at the first available opportunity.
The claimant was allowed to file any evidence in reply. The claimant did not object to the timetable the Panel issued but he did not file any evidence in response to the leave granted by the Panel.
We admitted the material in the interests of justice noting the claimant had an opportunity to respond. Our reasons show that the further material filed by the insurer did not ultimately assist us in the determination of whether there was any injury to, or exacerbation of, the shoulders from the motor accident. For the reasons set out later, we conclude that the shoulders were not injured or exacerbated by the motor accident.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”.
Medical assessment matters include “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%”.
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) 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.
1.6 Causation 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.
1.7 There 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.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[6]. In Raina v CIC Allianz Insurance Ltd[7] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of
Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[6] See s 3B(2) of the Civil Liability Act 2002.
[7] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents in accordance with the initial Direction.
Claimant’s statements
Mr Luo provided a statement dated 6 November 2019.[8] He referred to a right shoulder injury in August 2015 with surgery in November 2015. In October 2016 Mr Luo injured his left shoulder which required surgery which was performed after the motor accident.
[8] Claimant’s bundle, page 325 and signed and dated 21 January 2020.
Mr Luo stated that was “jerked backwards and forwards in my seat” and was “aware of immediate pain in my neck and back which got worse and worse”.[9] He stated that his shoulder pain was aggravated and that is related to the level of his neck pain.
[9] Claimant’s bundle, page 330.
Mr Lou completed a claim form dated 10 February 2017. Mr Lou stated that he injured his low back and neck in the motor accident[10] and had prior workers compensation claims relating to both shoulders and right knee.
[10] Claimant’s bundle, page 8.
Records relating to pre-existing shoulder injury
A series of reports by Dr Leonard Kuo discussed the right shoulder injury in 2015 involving a tear of the right supraspinatus tendon and post-operative condition following right shoulder surgery in 2015.[11]
[11] Insurer’s bundle, pages 790 – 797 and pages 825 - 826.
An x-ray and ultrasound of the left shoulder dated 2 September 2016 was reported by Dr Jonathan Seeff as showing a tear within the anterior to mid supraspinatus with long head of biceps tendinopathy and bursal thickening with positive signs of impingement.[12]
[12] Insurer’s bundle, page 361.
In a report dated 25 October 2016[13] Dr Chesterfield-Evans noted that Dr Kuo had recommended left shoulder repair and sought a second opinion from Dr Herald.
[13] Insurer’s bundle, page 373.
Dr Jonathan Herald provided a report dated 14 November 2016.[14] The doctor noted prior right shoulder injury from which Mr Luo had partially recovered and recent left shoulder injury by way of rotator cuff tear which required surgical repair.
[14] Insurer’s bundle, page 1093.
By letter dated 14 November 2016 Mr Luo signed a consent for the left shoulder surgical procedure.[15]
[15] Insurer’s bundle, page 364.
The operation report dated 16 February 2017 reported full thickness supraspinatus rotator cuff tear, biceps tendinosis and tearing and subacromial spur.[16]
[16] Insurer’s bundle, page 377.
On 24 May 2017 Professor Murrell noted that the rotator cuff repair was intact.[17]
[17] Insurer’s bundle, page 1103.
Radiology
An MRI scan of the cervical spine and lumbosacral spine dated 30 May 2019[18] is reported as showing facet joint osteoarthrosis causing bilateral foraminal stenosis most marked at C3/4 to C5/6 and posterior bulging at L4/5 resulting in moderate to severe canal stenosis abutting the emerging L5 nerve roots.
[18] Claimant’s bundle, page 85
An x-ray of the cervical, thoracic and lumbar spine dated 24 September 2019[19] is reported as showing minor thoracic convexity and mild degenerative changes throughout the spine.
[19] Claimant’s bundle, page 314
General practitioner
The clinical notes of Hurstville Medical Practice dated 24 January 2017 record Mr Luo being stressed following the motor accident. On 31 January 2017 the general practitioner reported “neck and lower back pain since 22/1/17”.[20]
[20] Claimant’s bundle, page 20.
The clinical notes repeatedly refer to the neck and back being injured in the motor accident.[21]
[21] See for example clinical notes dated 2.3.17, 3.8.17, 14.8.17, 5.2.18, 5.3.18, 16.4.18, 25.6.18, 4.9.18, 9.10.18, 20.12.18, 28.2.19, 2.5.19, 18.6.19, 27.8.19. and 12.11.19.
A medical certificate dated 31 January 2017 signed by Dr Wang which was attached to the motor accident claim form refers to lower back and neck pain.[22]
[22] Claimant’s bundle, page 248.
Treating opinions
Dr Andreas Loefler, orthopaedic surgeon provided a report dated 20 June 2019.[23] The doctor noted neck and back pain since the motor vehicle accident. Neurological examination was normal, and the doctor did not recommend surgical intervention.
[23] Claimant’s bundle, page 216.
Dr Loefler provided previous reports dated 24 August 2015[24] and 4 July 2016[25] in relation to treatment of the knees and noted some back pain.
[24] Insurer’s bundle, page 631
[25] Insurer’s bundle, page 521
A report by Glen Low, physiotherapist dated 20 February 2018 noted treatment to the cervical spine, left shoulder and lumbar spine over the period from 23 January 2017 to 7 August 2017.[26]
[26] Claimant’s bundle, page 344
Dr Khong, neurosurgeon provided a report dated 2 March 2020.[27] The doctor referred to a presentation of lower back pain and bilateral leg pain, neck pain and bilateral arm symptoms and noted a history of low back pain and neck pain since the motor accident. The neurological examination reported “global” reduction of sensation in the right upper and lower limbs.
[27] Document AD 6.
Dr Khong opined that Mr Luo had an acute exacerbation of degenerative changes in the back and neck with symptoms slowly improving. Non-operative management was recommended.
Qualified opinions
Dr Peter Giblin, orthopaedic surgeon was qualified by the claimant and provided a report dated 24 July 2017.[28] The doctor recorded a history of bilateral shoulder injury in the course of Mr Luo’s work as a chef.
[28] Claimant’s bundle, page 320.
Dr Giblin noted a history of neck pain and recurrent low back ache and diagnosed soft tissue injury to the neck and low back “causally related to the subject motor vehicle accident”. The doctor otherwise opined that there was “no clearly defined history of aggravation in terms of the motor vehicle accident”.[29]
[29] Claimant’s bundle, page 323.
Dr Conrad was qualified by the claimant and provided a report dated 20 December 2017.[30] The doctor recorded a history of lumbar and neck pain from the motor accident with a prior left shoulder injury. Previously scheduled surgery for the left shoulder occurred in February 2017.
[30] Claimant’s bundle, page 351.
Dr Conrad diagnosed whiplash injury to the neck and back and recommended an MRI scan due to the chronicity of the symptoms. He assessed the cervical and lumbar spine each at 5% totalling 10% impairment. In a “special note” the doctor attributed the restriction of movement of both shoulders to previous accidents in 2016 and 2015.
Dr Conrad provided a further report dated 13 November 2019.[31] The opinion was essentially unchanged save that Dr Conrad opined that Mr Lou suffered “discal injury in both the cervical and lumbar spines”.
[31] Claimant’s bundle, page 360.
Dr Conrad provided further reports dated 28 May 2021.[32] In a supplementary assessment, Dr Conrad opined that each shoulder was assessed at 7% whole person impairment of which 1% was “due to aggravation by the motor accident”.[33]
[32] Claimant’s bundle, page 417.
[33] Claimant’s bundle, page 422.
Dr Frank Machart, orthopaedic surgeon, was qualified by the insurer and provided a report dated 1 December 2017.[34] The doctor obtained a history of injury to the neck and low back in the motor accident with prior injuries to the shoulders and the left knee.
[34] Insurer’s bundle, page 16.
Dr Machart diagnosed soft tissue injuries to the cervical and lumbar spine and assessed each at 5%.
Dr Machart provided a further report dated 31 July 2020.[35] He noted the photographs of the motor accident and expected resolution of symptoms which should take up to 18 months. The doctor opined that the impairment was 0%.
[35] Insurer’s bundle, page 26.
Assessor Garvey
Assessor Garvey provided a certificate dated 25 May 2018.[36] A history was taken that the left shoulder was already very bad before the motor accident, but a further scan was taken two days later.
[36] Claimant’s bundle, page 337.
The Assessor concluded that Mr Luo sustained soft tissue injuries to the cervical and thoracolumbar spine totalling 10% impairment.
Medical Assessor Berry
Medical Assessor Berry provided a certificate dated 6 May 2021.[37] The doctor noted pain in the neck and mid-back and stated that “immediately after the accident [Mr Luo]
was not aware of any injury to either the left or right shoulders”.[38]
[37] Insurer’s bundle, page 33.
[38] Insurer’s bundle, page 36.
The Medical Assessor diagnosed soft tissue injuries to the cervical and thoracic spine and assessed each at 5% impairment and found that the shoulders were not injured in the motor accident.
Other records
64. The police record of the motor accident notes that there was a physical altercation between the drivers with different versions as to who was the instigator.
SUBMISSIONS
65. At the outset we observe that this is a new assessment and there are various submissions directed to persuading the President’s delegate[39] that there was error. Some of the submissions are not particularly relevant to our task save that it suggests that the Panel refrain from repeating the same error.
[39] Or the relevant predecessor.
Claimant’s submissions dated 19 July 2021
The claimant did not dispute the findings and assessment of the “cervical spine and lumbar spine impairments” and sought a review “on causation and impairment in relation to the Claimant’s left and right shoulders”. It was submitted that the Medical Assessor failed to review and consider the pre-accident medical records “in order to identify any objective evidence of impairment in either or both of the Claimant’s shoulder which he was required to do in order to justify any negative any negative findings on causation and/or impairment”.[40]
[40] Claimant’s review submissions, paragraph 4(c).
It was submitted that the Medical Assessor’s findings are speculative which contradict the medical evidence and applied an arbitrary opinion on causation.
The Medical Assessor failed to consider and refer to the physiotherapy assessment report and Dr Loeffler’s opinion. The Medical Assessor’s opinion was “mere speculation” citing Insurance Australia Ltd v Brown[41].
[41] [2019] NSWSC 1236 at [76] – [77].
The post-accident records established consistent complaints of pain and restricted movement in the cervical spine, lumbar spine and both upper limbs. The pre-existing impairment has not been identified and must be objectively identified. The Medical Assessor failed to identify and/or refer to any evidence of objective symptomatic impairment reported by or suffered by the claimant.
Insurer’s submissions dated 4 August 2020[42]
[42] Insurer’s bundle, page 1.
These submissions were filed in response to claimant’s submissions for a further assessment following the report by Dr Garvey. The insurer noted that Dr Conrad still assessed 5% separately for the cervical and lumbar spine, and that he now assessed an aggravation of the bilateral shoulder conditions.
The insurer referred to the prior right shoulder injury in August 2015 and left shoulder injury in August 2016 and that the claim form dated 10 February 2017 did not mention injury to either shoulder.
The insurer noted that Dr Giblin did not suggest that the motor accident caused an aggravation to the shoulder conditions and that Dr Conrad did not make any suggestion in his previous examinations.
Insurer’s review submissions dated 12 August 2021[43]
[43] Insurer’s bundle, page 5.
In its submissions opposing any review, the insurer disputed any error by medical Assessor Berry. The insurer noted that there is no dispute that the claimant had a preexisting history of bilateral shoulder injuries and that there were no shoulder complaints which the claimant related to the motor accident.
The insurer submitted that the claimant referred to the incorrect version of the Guidelines and that the relevant clauses were 1.31 to 1.33. It submitted that these clauses were “only triggered when there has been a positive causation finding with respect to an injured area”.
The insurer noted that Dr Loeffler did not support the claimant’s alleged bilateral shoulder Injury. His earlier reports related to the knee and subsequent report in 2019 related to the neck and low back. There was no mention in his reports of any bilateral shoulder injury caused by the motor accident.
The insurer submitted that there was no contemporaneous report of injury to the shoulders, Dr Giblin did not opine that the shoulders were injured, and Dr Conrad was originally of the opinion that the shoulders were not injured in the motor accident.
RE-EXAMINATION
It was determined that Mr Luo should be examined by both Medical Assessors on the Panel.
Mr Luo was examined by Medical Assessor Gray and Medical Assessor Moloney on 25 February 2022. The joint examination report is as follows:
“Personal and Work History.
Mr Luo generally cooperative, although somewhat symptom pre-occupied (over multiple systems). RAT negative.
Mandarin interpreter present throughout all the assessment, and they both understood each other via speaker phone; Mr Luo’s English reasonable and interpreter infrequently required (Ally).
Mr Luo now 60 and migrated to Australia in 1988, having worked as an architect in China.
In Australia, initially a student part time and then worked in the restaurant trade, becoming self-employed in a family business. He now attends/supervises the business part time, with his son fully involved. He currently has no other paid work.
He recalled he was not working at the time of the motor accident because of a markedly symptomatic left shoulder, awaiting reconstruction a week or two after the subject accident; Mr Luo could not recall when he returned to part time or full-time duties after the left shoulder surgery.
Mr Luo said he is married and lives with his wife in his own home; his wife works in the family business.He said he undertakes no sport or regular exercise/recreation.
In the past he denied any other motor accident.
He had an earlier right shoulder injury requiring reconstruction in 2015, saying the surgical result was “not too bad” and the right shoulder became stronger after a few months; with the left shoulder, he recalled experiencing increasing localised shoulder pain after reconstructive surgery in 2017, saying ‘the left shoulder still not very well’; he agreed there was an earlier right knee injury at work.
Apart from surgery the right shoulder in 2015 and the left shoulder in 2017, he recalled a hernia repair when very young; also a more recent gastroscopy and colonoscopy.
In terms of his general health, he said he takes regular Micardis and Lipitor, having concerns with intercurrent cardiac symptoms requiring CT/angiogram investigations; he takes Pariet for epigastric “acid’.
He uses Mobic anti-inflammatory intermittently, on a needs basis, for ongoing low back pain, plus some Panadeine as necessary.History of Motor Accident:
Mr Luo said he was the driver of a Pajero 4WD with his wife as a passenger, on King Georges Road, Hurstville. He recalled a sudden hit to his vehicle from the rear, by another vehicle; he was unsure whether his vehicle was stationary or moving at the time.
Immediately after the collision he recalled no specific symptoms, although soon afterwards said he noticed some stiffness/discomfort to the right side of his neck.
He recalled immediately alighting from his vehicle and then his wife and the driver of the other vehicle became involved in an altercation; Mr Luo said that he was protecting his ongoing painful left shoulder during this process - particularly when, at one stage, the police came and held him to the ground, then being released by the Police, once the situation was explained.
Ambulance did not attend, and he drove his wife home. At that stage he noticed his neck and his low back being symptomatic; the Panel found it difficult to obtain from Mr Luo a consistent pattern of ongoing symptoms at that stage, not limited by any language aspect.Mr Luo said that both shoulders continued to be uncomfortable. he attended his ongoing treating physiotherapist for his shoulders, who suggested he have reviewed with his General Practitioner.
Note: on two separate occasions during the interview, the Medical Assessors asked Mr Luo whether there had been injury or symptoms related to either shoulder from the motor accident, to which he said no; he implied that he had successfully protected his pre-existing painful left shoulder during the physical restraint by the police.
Mr Luo described continuing neck and low back symptoms post-accident, and described this as having an uncomfortable/painful feeling. His shoulders continued to be uncomfortable. He said he was unsure of the timing of these symptoms, as he underwent left shoulder surgery soon after the subject accident.
After the left shoulder surgery, he thought he returned to work after six to eight months, initially part-time; since that time his son has essentially taken over the family restaurant business while he does mostly supervisory work; his wife continues to work in the business.Current Symptoms:
In the cervical spine, Mr Luo complains of intermittent stiffness plus soreness/discomfort, pointing to the lower cervical spine, right more than the left with it being hard to turn his head. He has acupuncture on about a weekly basis that helps the symptoms. No radiation of neck pain and no associated paraesthesia – no cervical radicular symptoms.
He describes early morning hand stiffness and numbness, that he locates generally over the dorsum of each hand, with no palmer symptoms; there has been no arm pain except for a longstanding intermittent lateral right elbow pain related to activity. He said that any exercise helps his symptoms generally.
In the back, he said the whole of his back is stiff and uncomfortable with the acupuncture helping for a few days. He complained of lower back soreness both central in the lumbar back and to the right and left sides; over the last few years, some intermittent discomfort into both gluteal regions and intermittently into both thigh areas and the right leg, but not in a specific nerve root distribution, and without any paraesthetic symptoms or numbness – he could not recall the onset of these leg symptoms.Mr Luo denied any pre accident neck or low back symptoms or treatment.
Comment: the panel noted the past history of back pain documented in Dr
Loeffler’s report of 24 August 2015 - Mr Luo was unable to recall such symptoms.
In the right shoulder he feels he cannot lift heavy objects, with stiffness and discomfort in the right shoulder; however, generally the right shoulder does not particularly worry him with the left shoulder being more dominantly symptomatic, particularly with pain in the left ‘biceps’ area.Mr Luo said there had been little change in his shoulder symptoms over the last two to three years, with no recent specific shoulder treatment; he said he has a 10 kg lifting limit because of the shoulders.
Examination
Mr Luo was cooperative and intermittently complained of multiple sites of discomfort and stiffness throughout his body and non-musculoskeletal symptoms including cardiac and abdominal.
He said he weighed about 85 kgs and was 178 cms in height and right hand dominant.
He had patches applied at the base of the cervical spine and over the right iliac crest area.
In the cervical spine, initially there were variable ranges of active movements; with repeat examinations, lateral flexion (tilt) to the right and left was equal and 1/3 range. There was terminal limitation of rotation to the right and left, and to flexion and extension. There was no dysmetria.
There was general mild tenderness in the paracervical musculature, more definite in the lower neck, without localising tenderness and with no guarding.There were no non-verifiable radicular complaints.
In the thoracic spine there was tenderness over the upper thoracic spinous processes with no para thoracic muscular tenderness or guarding, and no thoracic dysmetria. There were no non-verifiable thoracic radicular complaints.
In the lumbar spine there was mild tenderness over the L5-S1 spinous processes and the right mid lumbar musculature, without guarding. There were no nonverifiable lumbar radicular complaints.
There was full flexion and extension in the lumbar spine, with some symmetrically reduced terminal restriction of lateral tilt to the right and left; there was no asymmetry of spinal rotation and no dysmetria.Peripherally, there was terminal limitation straight leg raising by complaint of low back pain, without a sciatic component.
Lower limb power and sensation were within normal limits. Lower limb reflexes were symmetrical and normal.
Both hips had a reasonable rain range of non-irritable movements, equivalent bilaterally.The circumference of the right thigh (measured 10 cms above each suprapatellar border) measured 40 cms on the right and 39.5 cms on the left. The maximal circumference of the right calf measured 36 cms and the left calf 35.5 cms.
Over both shoulders there was no obvious muscle wasting. There was tenderness in each bicipital groove but no other localising tenderness. Passive movements of both shoulders were irritable.
Note: the range of external rotation of each forearm, with each upper arm adducted in neutral, measured 20 degrees on both the right and left sides.
Clinically this reflected a degree of bilateral ‘frozen shoulders’ [adhesive capsulitis].
There was a longitudinal anterior deltoid surgical scar on the right, with adjacent arthroscopic portals; on the left side, multiple arthroscopic portals.
The active ranges of movements of each shoulder, measured with a goniometer and repeated, were as follows:
Movement Right Left Abduction 80° 90° Adduction 40° 40° Flexion 100° 70° Extension 40° 40° Internal
Rotation
45° 45° External
Rotation
45° 60°
The circumference of each upper arm was equal, measuring 25cms; the maximal circumference of each forearm was equal, measuring 24 cms.
Upper limb reflexes were symmetrical and normal.
There was no upper limb sensory or power deficit elicited.
Provocative testing for carpal tunnel syndrome was negative bilaterally.
Investigations: none were available for review at the re-examination.
Summary
Cervical and Lumbar soft tissue injury caused by the motor accident.
No injury to either shoulder caused by the motor accident.
Cervical Spine 0% WPI
Lumbar Spine 0% WPI.
Thoracic Spine 0% WPI - not caused.
Shoulders: status post bilateral shoulder reconstructions required as a consequence of work injury; residual stiffness plus (clinically) ‘adhesive capsulitis’ bilaterally, unrelated to the motor accident.”
REASONS
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen.[44]
[44] [2021] NSWCA 287 at [40], [41] and [45].
The Panel adopts the joint examination report of both Medical Assessors as part of its reasons and adds the following further reasons.
We observe the claimant incorrectly referred to the wrong Guidelines although they are similar to the Guidelines applicable to the MAC Act.
We conclude that the shoulders were not injured in the motor accident for the following reasons.
First, the existence of complaint is relevant to whether a body part was injured in the motor accident.[45] Logically, the absence of reference to injury to the relevant body part is also relevant. The claim form completed by Mr Luo three weeks after the motor accident did not refer to the shoulders injured in the motor accident.
[45] Bugat v Fox [2014] NSWSC 888 at [31] – [32].
Secondly, there is no record in the initial clinical notes of any shoulder injury related to the motor accident. The certificates issued for the motor accident only reference injury to the cervical and lumbar spine.
Thirdly, the claimant was treated by Dr Khong and Dr Loeffler. There is no record by these doctors that the shoulder condition was aggravated by the motor accident.
Fourthly, the claimant qualified Dr Giblin in 2017. There is no suggestion in that report that the bilateral shoulder condition was aggravated by the motor accident.
Fifthly, the nature of the motor accident is relevant to the determination on causation. In QBE Insurance (Australia) Ltd v Shah[46] referred to the absence of any discussion of a “biomechanical, anatomical, orthopaedic or other scientific reasoning to support the putative traumatic causation”[47] between the motor accident and the alleged injury. His Honour noted:[48]
“Soft tissue injury to the neck is commonly described in damages claims by drivers and passengers of motor vehicles that sustain rear end collisions, including where a front end collision has ensued. The biomechanical causation of that type of injury self-evidently involves the body being heavily accelerated and then decelerated in the horizontal plane. The body is restrained by the upright back of the seat and by the seatbelt and it therefore moves forward suddenly then stops suddenly with the corresponding movement of the vehicle. It is well understood that this acceleration and deceleration of the body causes “whiplash” to the neck because of the inertia of the head. In contrast to such cases of soft tissue injury to the neck, there is no obvious or self-explanatory means by which the rotator cuff tendons of either shoulder could be or would be torn by the first defendant’s involvement in the collision that he has described.”
[46] [2021] NSWSC 288 (Shah).
[47] Shah at [36].
[48] Shah at [16].
There are no self-evident medical reasons why Mr Luo may have sustained a shoulder injury when he described the motor accident as being jerked backwards and forward in his seat.[49] His history recounted to the Medical Assessors on the Panel confirmed that he did not notice an aggravation of his pre-existing bilateral shoulder condition. That history is consistent with the history recorded by Medical Assessor Berry.[50]
[49] See [32] herein.
[50] See [62] herein.
In the medical expertise in the Panel, there is no basis for concluding that Mr Luo injured or aggravated his shoulders in the manner he described when he was “jerked” in the motor accident.
In his further report dated 28 May 2021, Dr Conrad opines that the shoulders were aggravated but he does not explain how the motor accident aggravated the shoulder impairment. The doctor otherwise does not explain how this conclusion is consistent with his view expressed in his report dated 20 December 2017 that the restriction of movement in the shoulders was due to the prior work accidents.
Sixthly, it is common ground that Mr Lou had prior work injuries to the shoulders. At the time of the motor accident, the surgical procedure to the left shoulder had been organised and ultimately came to fruition shortly after the motor accident.
Any deterioration in the bilateral shoulder condition is entirely consistent with the ongoing degenerative process caused by the prior work injuries. That Mr Luo was suffering shoulder pain following the motor accident is otherwise consistent with the fact that he had a prior bilateral condition and was otherwise awaiting left shoulder surgery.
The claimant referred to physiotherapy treatment to the left shoulder following the motor accident. Whilst that assertion is correct, it is undoubtedly the case that Mr Luo was undergoing left shoulder surgery for a work-related injury following the motor accident which had been organised prior to it and would require physiotherapy for a lengthy period following the procedure.
For these reasons we conclude that the shoulders were not injured and the bilateral shoulder condition was not aggravated in the motor accident.
The claimant submitted that there was error by the Medical Assessor in failing to assess the shoulders in circumstances where there was no finding of injury to those body parts. We do not accept that submission shows error, nor does it accurately disclose the role for this Panel. A finding that the body part was not injured means that there is no need to make an assessment: Jarvis v Allianz Australia Insurance Ltd.[51]
[51] [2022] NSWSC 161 at [51].
We accept that the cervical spine and the lumbar spine were injured in the motor accident. This conclusion is consistent with the contemporaneous notes of the general practitioner which show complaints of pain to the neck and low back and the history recorded in the claim form.
The conclusion is consistent with the nature of the complaints made by Mr Luo to a number of doctors including Dr Giblin, Dr Conrad and Dr Khong.
The physiotherapy treatment following the motor accident was to the cervical and lumbar spine.[52]
[52] See pain diagram, Insurer’s bundle, page 346.
The medical assessment undertaken by Assessor Garvey in May 2018 recorded complaints in the cervical and lumbar spine. Examination of the thoracic spine was reported as normal.[53]
[53] Claimant’s bundle, page 340.
The MRI scan to the cervical and lumbar spine dated 30 May 2019 noted ongoing neck and lower back pain post motor accident.[54]
[54] Claimant’s bundle, page 349.
The claimant’s statement signed in early 2020 was of symptoms in the neck and low back.[55]
[55] Claimant’s bundle, page 330. See [42] herein.
Based on the same evidence, we are not satisfied that there was injury to the thoracic spine due to the complete absence of reporting by any doctor and the absence of complaint by Mr Luo in his claim form and in his signed statement.
The nature of the motor accident does not self-evidently suggest that the thoracic spine would be injured. The 2019 thoracic spine x-ray showed minor degenerative changes56 which is not consistent with any injury and consistent with the natural ageing process. The degenerative changes could and probably do explain occasional symptoms which were commented on by Medical Assessor Berry and indeed observed, to a minor extent, by the Medical Assessors on the Panel in their examination.
Further, the Medical Assessors in their recent examination found no assessable impairment of that part of the spine.
The claimant in his review submissions defended Medical Assessor Berry’s assessment of the cervical and thoracic spine although described the findings as being to the cervical and the lumbar spine. It is noted that Medical Assessor Berry found no tenderness in the lumbar spine with a normal range of movement.[56] However, the assessment of the thoracic spine by Medical Assessor Berry was inconsistent with any prior assessable claim for that body part including any assessments provided by the claimant.
[56] Insurer’s bundle, page 37.
The medical evidence is consistent and shows that Mr Luo sustained soft tissue injuries to the cervical and lumbar spine as a result of the motor accident. The clinical examination conducted by the Medical Assessors on 25 February 2022 show that
Mr Luo’s symptomatology did not satisfy the requirements of DRE II in any portion of the spine.
Such a conclusion is consistent with the fact that the nature of soft tissue injuries may resolve or reduce over time explaining how previous doctors may have assessed symptoms and impairments on previous occasions. A finding of DRE category I for a part of the spine does not mean that there are no symptoms, merely that the
symptoms are of a degree that do not satisfy, at least, DRE category II. We can only assess permanent impairment at the time of the examination. The clinical examination of the Medical Assessors did not reveal any basis for finding anything other than a classification of DRE category I for the cervical and lumbar spines.
For these Reasons, we conclude that Mr Luo’s overall impairment as a result of the motor accident is 0%.
FINDINGS
109. The replacement certificate is set out at the commencement of these Reasons.
0
6
0