Ly v QBE Insurance (Australia) Limited
[2023] NSWPICMP 408
•23 August 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ly v QBE Insurance (Australia) Limited [2023] NSWPICMP 408 |
| CLAIMANT: | Thi Gai Ly |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Tai-Tak Wan |
| MEDICAL ASSESSOR: | Clive Kenna |
| DATE OF DECISION: | 23 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injuries to her cervical spine, thoracic spine, lumbar spine, head, left shoulder and right hip; the claimant sought a determination that these injuries were non-threshold injuries; the matter came before Medical Assessor (MA) Cameron who found that all of the injuries were caused by the accident and that all of the injuries were threshold injuries; the claimant successfully sought a review of this decision which came before the Panel and which now makes its determination; the claimant relied on an ultrasound undertaken on 12 December 2019 of her left shoulder amongst other things which she says showed a partial thickness tear and that this followed contemporaneous complaints of a left shoulder injury after the accident; during the course of consideration of the claim by the Panel it was ascertained that the claimant used two names and that there were two sets of medical documentation for the same person; examination by MA Wan showed no evidence of a significant head injury, no evidence of cervical radiculopathy, no evidence of any injury to the thoracic spine; whilst the Panel was satisfied that the claimant could have sustained a soft tissue injury to her left shoulder she had left shoulder symptoms before the accident and an ultrasound of the left shoulder on 14 January 2010 showed a partial thickness tear of the supraspinatus and subdeltoid bursitis; when comparing the ultrasound on 14 January 2010 and of 12 December 2019 there are no significant changes but there were only similar findings; whilst the right hip could have been injured in the accident, on examination the hips were normal; Held – the Panel concluded that the claimant had suffered threshold injuries only and affirmed the decision of MA Cameron. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Determination 1. The Panel approves the certificate of Medical Assessor Cameron dated 27 November 2021. 2. The following injuries WERE caused by the motor accident: · cervical spine – soft tissue injury; · thoracic spine – soft tissue injury; · lumbar spine – soft tissue injury; · head – soft tissue injury; · left shoulder – soft tissue injury, and · right hip – soft tissue injury. 3. The following injuries WERE NOT caused by the motor accident: · Nil. 4. The following injuries are a threshold injury: · cervical spine – soft tissue injury; · thoracic spine – soft tissue injury; · lumbar spine – soft tissue injury; · head – soft tissue injury; · left shoulder – soft tissue injury, and · right hip – soft tissue injury. |
The injuries
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
(a) Whether injury to the head – cerebral concussion caused by the motor accident is a minor injury for the purposes of the Motor Accident Injuries Act 2017 (the MAI Act).
(b) Whether injury to the neck caused by the motor accident is a minor injury for the purposes of the Act.
(c) Whether injury to the left shoulder caused by the motor accident is a minor injury for the purposes of the Act.
(d) Whether injury to the upper and lower back caused by the motor accident is a minor injury for the purposes of the Act.
(e) Whether injury to the right hip caused by the motor accident is a minor injury for the purposes of the Act.
The decision reviewed
This is a review of a decision of Medical Assessor Cameron (the Medical Assessor) dated 27 November 2021
At issue is whether or not Thi Gai Ly (the claimant) has suffered a non-minor injury, now referred to as a non-threshold injury.
The Medical Assessor found that the following injuries were caused by the motor accident:
(a) head – soft tissue injury;
(b) cervical spine – soft tissue injury;
(c) left shoulder – soft tissue injury;
(d) thoracic spine – soft tissue injury;
(e) lumbar spine – soft tissue injury;
(f) right hip – soft tissue injury,
and were minor injuries for the purposes of the Act.
Legislative background/jurisdiction
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 decision maker. A ‘new decisionmaker’ 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 provisions apply. The new review provisions provide at s 7.26(5) of the MAI Act that a review panel consists of two Medical Assessors and a member assigned to the Motor Accidents Division of the Personal injury commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a Medical Assessor – see s 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 the proceedings and may determine the proceeding solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned – see s 7.26(6) of the MAI Act.
The Panel issued a direction to the parties requesting the provision of respective bundles. The parties complied with this direction. The claimant’s claim is governed by the provisions of the MAI Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of which is that, under ss 3.11(1) and 3.28(1) of the MAI Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “minor” injuries.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
Threshold injury
A threshold injury is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will not be a non-threshold injury.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric 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)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether an injury is a minor injury. Relevantly to the matters in issue in the claimant’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:
“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.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury”.
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the Act. In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.5 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor 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 minor 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.”
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2023 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.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52 week limitation period.
The accident
On 23 November 2019, the claimant was the driver of a motor vehicle on a multi-lane road. She was driving towards an intersection when a car came from the opposite direction through a red light and into her lane and hit the right back wheel part of her car. The claimant was able to walk out of her car after a couple of minutes.
She was transferred to hospital by ambulance. Her car was towed away. She was at the hospital for four hours during which time she underwent initial assessment and investigations. She was discharged to be followed up by her general practitioner (GP) for further investigations.
The claimant subsequently consulted her GP, Dr Diep. She complained of persisting pain from multiple body parts, particularly the left shoulder. She had two injections to her left shoulder.
The claimant’s submissions
The claimant submits that the Medical Assessor failed to have proper regard of medical evidence and radiological investigations of her left shoulder and failed provide a proper basis for determining that the partial thickness tear suffered by the claimant is not related to the accident.
The claimant submits that there is a clear contemporaneous history of left shoulder complaints following the accident.
The claimant says that the Medical Assessor confirms such history at page 4 of his certificate noting complaints made to the ambulance service, Liverpool Hospital and treating GP, Dr Diep. The claimant says that the Medical Assessor noted the claimant proceeded to an ultrasound of the left shoulder on 12 December 2019, however, the claimant says that the Medical Assessor incorrectly recorded “a small partial thickness supraspinatus and tendon and subdeltoid bursitis” rather than the actual findings which were “small partial thickness tear of the supraspinatus tendon and subdeltoid bursitis”. The claimant said that an ultrasound of the left shoulder on 14 January 2010 (sic 2020) was noted by the Medical Assessor to show tendinosis or a partial thickness tear.
The claimant says that the Medical Assessor recorded certificates of capacity prepared by her GP which confirmed “left shoulder strain, possible rotator”.
The claimant noted that further Certificates of Capacity prepared by her GP confirm that he diagnosed a small partial thickness tear of the supraspinatus tendon.
The claimant submits that as there is no evidence of prior contemporaneous complaints of left shoulder pain in the clinical notes of her GP as recorded by the Medical Assessor, then the Medical Assessor has erred in finding that there is no evidence of ligament injury in the left shoulder and determining that “degenerative tendon tears are common in people of Mrs Ly’s age and that Mrs Ly may have had a pre-existing supraspinatus tendon tear”.
Consequently, the claimant submits that the Medical Assessor has erred in his determination of left shoulder injury as a minor injury having regard to the radiology which confirms a partial thickness tear of the supraspinatus tendon. The claimant submits that a partial tear does not fall within the definition of threshold injury.
The insurers submissions
The insurer submits that the certificate is not incorrect in a material respect.
The insurer addressed the claimant’s submissions to the application.
Going to the submission that the Medical Assessor applied a miswording of the ultrasound of the left shoulder, the insurer refers to the claimant’s submissions, at paragraph 4, the insurer says that here, the claimant says that “Assessor Cameron incorrectly refers to the ultrasound on the left shoulder on 12 December 2019 as: ‘a small partial thickness supraspinatus and tendon and subdeltoid bursitis’ rather than the correct wording of ‘small partial thickness tear of the supraspinatus tendon and subdeltoid bursitis’”. The insurer submits that this minute detail was a clear mistake by the Medical Assessor as to the wording in the certificate. The insurer says that it is not, however, a mistake as to his understanding of the report’s contents.
The insurer says that it is clear, by the mere mention of the ultrasound report and its findings, that the Medical Assessor had reference to the pathology revealed in the ultrasound and that these findings were contemplated in his report.
The insurer says that there is no doubt that the Medical Assessor was aware that the ultrasound revealed a tear of the supraspinatus.
The insurer refers to paragraph 5 of the claimant’s submissions, where it is submitted that the Medical Assessor mentions “left shoulder strain, possible rotator” as a diagnosis in the Certificates of Capacity but does not refer to further certificates which mention a diagnosis of “small partial thickness tear of the supraspinatus tendon”. In response, the insurer says that it is clear, from the Medical Assessor’s Cameron’s mention of the actual ultrasound which showed the tear, that he was aware the tear was present.
The insurer highlights the following points made in relation to the assessment conducted by the Medical Assessor:
(a) he assessed there to be full range of motion at both shoulders;
(b) the claimant self-reported some pain on the extreme range of the left shoulder;
(c) there were no neurological abnormalities in the upper extremities, and
(d) circumferences of the upper extremities were equal.
The insurer submits that the Medical Assessor specifically stated that there was no evidence of a ligament injury being sustained in the accident. The insurer says that he explicitly described the tear as “degenerative tendon tears”. The insurer says that the opinion that the tears were degenerative is on the basis of the claimant’s history, presentation on assessment and the available medical documentation, in addition to his own medical expertise.
The medical evidence
The claimant was examined on behalf of the Panel by Medical Assessor Wan. His report follows;
“Examination of Ms Thi Gai Ly, also known as Joanne Wong.
The claimant is 65 years old. She attended the assessment alone on 12 December 2022. A Vietnamese interpreter, Nolie Huge, NAATI no: CPN5WH97Y was present during the whole assessment. The assessment, including history taking, cognitive functions assessment and physical examination, lasting for 2 hours.
The following injuries were referred by the Personal Injury Commission for assessment:
•Whether injury to the head – cerebral concussion caused by the motor accident is a minor injury for the purposes of the Act.
•Whether injury to the neck caused by the motor accident is a minor injury for the purposes of the Act.
•Whether injury to the left shoulder caused by the motor accident is a minor injury for the purposes of the Act.
•Whether injury to the upper and lower back caused by the motor accident is a minor injury for the purposes of the Act.
•Whether injury to the right hip caused by the motor accident is a minor injury for the purposes of the Act.
History as given by the Injured person
Pre-Accident Medical History and Relevant Personal Details
Ms Thi Gai Ly is 52 years old, and unemployed. She said she is now in receipt of a Newstart allowance, and was not working at the time of subject motor vehicle accident (MVA). She worked as a cleaner or labourer in a butchery before but has stopped working since 2015.
Past Health
Ms Ly initially denied any other history of accidents, injuries or other relevant conditions sustained prior to the subject MVA.
However, later she admitted she had an MVA in 2009, and sustained injury to her left shoulder and lower back. She could not remember further details about the pre-existing accident. She still has on and off left shoulder pain since.
She has the following significant history:
•Hypertension
•Depression since 2004
•Hypercholesterolaemia for 3 years
•Diabetes type 2
She denied any history of allergy to medication.
Subsequent Surgery
When the examining panel member examined the claimant, a healed surgical scar was found over the right knee. The claimant then admitted that she had a right total knee replacement (TKR) in August 2022, 4 months prior to the examination, at Mater Hospital.
Social History
Ms Ly was born in Vietnam. She came to Australia in 1981.
She said she studied high school up to year 12 equivalent in Vietnam and her school performance was above average. Her best subject was chemistry, and the worst subject was mathematics. She then worked in retail there.
After coming to Australia, she studied an English course, but no other study. She worked in a factory, sewing clothes for several years, then worked in a butcher business for 3 years. She might lift heavy weights up to 25 kilograms in these jobs. She stopped working in 2015.
She has separated from her husband. She lives with her daughter (32 years old chef) in a single storey house with 4 steps. She said she has to hold the rail when walking upstairs.
She is a non-smoker and a non-drinker.
She drives an automatic car, but she said she is scared to drive at night.
She does not do sport regularly. She spends most of time as a volunteer in a temple.
History of the Motor Accident
Ms Ly said on 19 February 2015, at about 6:15am, she drove her car to her friend’s home. She was wearing a seat belt, and there was headrest on her car seat. While she was travelling on Edensor Road, St John Park, at a speed of 40 to 50 km/hr, when a car on the opposite lane hit the back of her car, on the right side. She said her head hit the headrest of her seat, and there was brief loss of consciousness, probably for a few seconds. She could remember that she tried to turn left to avoid the accident when she saw the other car coming to her. She could remember the impact when the other car hit her car. She said she could get off the car by herself. She recalled both the police and ambulance came to the scene soon after the accident. Her airbag did not deploy. All these descriptions suggest there were no significant retrograde or anterograde amnesia, and the ‘blackout’ was very brief if ever present.
She was taken to Liverpool Hospital, and stayed in the ED for few hours. X-rays were done but showed no fractures. She found some bruises along the seat belt area, which settled quickly in a few weeks. There was no bleeding, laceration and no suture was needed.
Her car was towed after the accident, and later written off. No other people were injured in the accident.
History of Symptoms and Treatment Following the Motor Accident
Ms Ly stated she consulted her usual GP Dr Diep 2 days after the subject MVA. She complained of dizziness, headache, and pain all over the body. She had an ultrasound scan of shoulders and was told she had ‘a tear in the left shoulder’ and wore a splint in the left arm for some time. It was not clear from her whether she was referred for physiotherapy or not. She had not consulted any specialist for that matter.
She received an injection to the left shoulder, maybe 2 weeks after the subject MVA, but it did not help much.
She said she received some physiotherapy after the subject MVA, but could not recall further details. She was also seen by a psychologist and could not give more details, but she agreed that she probably saw the psychologist even before the subject MVA.
She could not recall seeing any brain injury specialist, neurologist or neuropsychologist while she was in the hospital or as an outpatient. She could not recall testing memory or PTA (post-traumatic amnesia) while she was in the hospital.
Details of Any Relevant Injuries or Conditions Sustained Since the Motor Accident
Ms Ly denied any history of significant accidents, injuries or other relevant conditions sustained since the subject MVA.
Current Symptoms
Her current complaints are as follows:
•Low back pain, 8/10 in visual analogue scale (VAS). It is a constant ache but can be sharp pain at times. She could not identify any aggravating or relieving factors.
•Pain in the upper back, 8/10 in VAS.
•Neck pain, 7/10 in VAS. It is a sharp pain and often lasts for 5 to 6 hours.
•Left shoulder pain. She has injection to left shoulder soon after the accident but that did not relieve the symptoms
•Sometimes she also has pain in the right shoulder.
•Pain in the right hip, 6/10 in VAS. It is an intermittent pain.
•Headache. She said there are 2 types of headaches: migraines with pain mainly in the right eye, and pain radiates from the neck. She has difficulty in finding a good pillow.
•Neck pain. It is a constant pain at the back of neck. It is increased by moving the neck.
•Sleep is not good, mainly due to back pain and late sleeping.
•Memory is not good since the accident. However, she could not give any example of her poor memory. She could not identify any change in her mood or personality.
She complained she has constipation from time to time. She reported no problem in her bladder functions
She said at most she can sit for 20 minutes, stand for 15 minutes and walk for 10 minutes. I noted that she did get up from her chair and move around in the middle of 2 hours of consultation.
She is independent in her personal hygiene care and most activities of daily living (ADL). She said she still does most of the housework, although less than before the subject MVA, which is now done by her family.
She does not participate in any sport even prior to the subject MVA.
She said she volunteers in her temple twice a month now because of the pains. Prior to the subject MVA she went to the temple once a week.
Current and Proposed Treatment
Ms Ly stated that he has been taking the following medication:
•Fenofibrate 1 tab daily
•Atovastatin 1 tab daily
•Olmesartan/ hydrochlorothiazide 1 tab daily
•Venlafaxine 1 tab daily
•Metformin XR 1g daily
She said she once received physiotherapy and psychotherapy, but has ceased them now. She could not recall seeing any occupational therapist.
Findings on Clinical Examination
Clinical Examination
Examination on 12 December 2022 showed that Ms Ly was orientated and alert. She said she was 150 cm tall, and weighed 58 Kg, which gave a BMI of 25.8, in the overweight range. She walked independently without a walking aid in a normal symmetrical gait. She could walk on tip-toes, on heels, and in tandem (heel-toes) way. However, she could only half squat, complaining of pain in the back and the knees. She could dress and undress independently. She could get on the examination couch independently.
She said she uses both hands but writes with her right hand.
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 or diplopia. Pupils were equal and reactive. Active movements of eyes were clinically normal in all directions, and no diplopia or nystagmus found. 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.
Mental State Screening
She scored 29/30 in Folstein Mini Mental test (MMSE) with the assistance of the interpreter. She lost 1 point in short term verbal memory test. She scored 4/5 in serial 7 test, but scored 5/5 in reverse spelling test, so she still got 5/5 in the attention and calculation item. She had no problem in copying figures including 3-dimensional cubes. She had no problem in alternating sequences. She drew a clock showing the current time well. Regarding written arithmetic tests, she got the correct answer for all tests: addition, subtraction, multiplication and division. She gave only 2 answers (all correct) each when asked to give for 3 differences and 3 similarities between apple and orange but declined to give the third answers.
In summary, there was no evidence of cognitive impairment detected clinically in the mental state screening tests. The slight difficulty in short term verbal memory was within normal limits. Abstract thinking and executive function were within normal limits.
Considering the circumstances of the accident, no or very brief retrograde amnesia and anterograde amnesia, no or very brief reported but unwitnessed loss of consciousness (LOC), no documented abnormal GCS (Glasgow coma scale) score or PTA score, and no documented abnormal brain scan finding, it is unlikely that Ms Ly has sustained any brain injury in the subject MVA.
CERVICAL SPINE (Cervicothoracic)
Examination of the neck showed mild tenderness over the occipital area and both trapezius regions but no muscle spasm or guarding. Although she complained some ‘stinging sensation’ in the left upper limb, it did not follow any dermatomal distribution and peripheral nerve distribution. There was no evidence of non-verifiable radicular complaints, and there were no features of radiculopathy. There was moderate but symmetrical restriction in active movements in all direction. [All the measurements are those of active movements. All the active ranges of movements (ROM) of the spine were measured using a goniometer]:
Cervical spine
Flexion
Extension
Rotation to right
Rotation to left
Lateral flexion to right
Lateral flexion to left
ROM found
½ normal
½ normal
½ normal
½ normal
½ normal
½ normal
There was no evidence of dysmetria (asymmetrical loss of motion).
THORACIC SPINE (Thoracolumbar)
Examination of the upper back showed no tenderness, 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. Active movements of the lumbar spine were normal. 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
Normal
Normal
Normal
Normal
Normal
Normal
Straight leg raising was 90° on both sides.
UPPER EXTREMITY
Examination of the upper limbs showed no gross muscle wasting. Measurements of mid-arm circumference showed that the left side was 0.5 cm larger than the right side which was within the normal limits. Measurement of mid-forearm circumferences also showed that the left side was 0.5 cm larger than the right side which was within the normal limits. Muscle power was grade normal in both upper limbs, both proximally and distally. Reflexes were normal and symmetrical in the upper limbs. Sensation was normal in both upper limbs.
Examination of the shoulders showed tenderness in the trapezius muscle region and around left shoulder joint. No crepitation was found on moving shoulders. Active movements of left shoulder was restricted initially in the formal examination, which were different from those reported by Assessor Cameron, and were also not consistent with the observations when not in formal examination, such as undressing. Ms Ly was presented with the inconsistency, but she did not respond. She was asked to give her best efforts and measurements repeated. There was some improvement in the consistency. [All the measurements are those of active movements. All the active ranges of movements (ROM) of the limbs were measured using a goniometer]:
Shoulder
Flexion
extension
Abduction
Adduction
Internal rotation
External rotation
Right /°
175
50
175
50
80
80
Left /°
120,150,160
40,40,50
120,150,160
40,50,50
80,80,80
80,80,80
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 sensory impairment in both 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 within normal limits:
Examination of the knees showed no deformity, swelling or effusion. There was a well healed TKR scar over the right knee but was nontender. There was no crepitation on moving the knees. There were slight medial and lateral laxity of the right knee when compared with the left side. However, there was no excessive anterior-posterior laxity on the right knee. There was no antero-posterior or medial-lateral laxity in the left knee, suggesting that the cruciate and collateral ligaments were intact. McMurray’s test was normal on both sides. Active movements of both knees were symmetrical and within normal limits.
Examination of the ankles showed no deformity or swelling. Active movements of the ankles and feet were symmetrical and largely within normal limits.
Examination of the abdomen and chest was unremarkable.
Consistency of Presentation
I have already mentioned the inconsistency in the shoulder examination.
5. Review of Documentation
Relevant Imaging Studies and Other Investigations
The Panel Members have reviewed the films and/or reports of the following investigations brought to the assessment by the claimant (please note that there were 2 groups of reports, one has the name Thi Gai Ly, and the other group has the name Joanne Wong. (The solicitor of the claimant has confirmed that both names belong to the claimant):
For ‘Joanne Wong’:
•X-ray and CT lumbar spine and X-ray Left shoulder of 13/1/2010, taken at TrueScan Radiology, reported by Dr Joseph Trieu – which showed no fracture of the lumbar spine. There was mild disc budge and facet joint arthropathy at the lower lumbar levels, most severe at L4/5. There was no fracture or dislocation of the left shoulder. The clinical notes stated, ‘Pedestrian accident; increasing pain in the left shoulder and lower back’.
•Ultrasound Left shoulder of 14/1/2010, taken at TrueScan Radiology, reported by Dr Joseph Trieu – which showed focal heterogeneous are in the supraspinatus tendon, in keeping with either focal tendinosis or a partial thickness tear. There was also evidence of subdeltoid bursitis. This scan was done 7 years prior to the subject MVA.
•MRI right hip of 12/5/2010, taken at North West Radiology, reported by Dr Gregory Markson -the clinical indication was, ‘MVA December 2009 with persistent pain’. The scan was done approximately 7 years prior to the subject MVA. It showed mild trochanteric bursitis. There was low grade hamstring tendinosis with a possible tiny partial thickness tear of the conjoint semitendinosus/biceps femoris insertion. Incidental, uterus was large because fibroids.
•MRI left hip of 12/5/2010, taken at North West Radiology, reported by Dr Gregory Markson - It showed gluteus minimus insertional tendinosis with some subgluteal bursitis and mild trochanteric bursitis. The gluteus minimus is replaced with fatty atrophy as is the TFL (tensor fascia lata muscle). There was mild hamstring insertional tendinosis with a t tiny partial thickness tear and adjacent cyst formation.
•MRI lumbar spine of 13/5/2010, taken at North West Radiology, reported by Dr Jaspal Hunjan – which showed mild 2 level spondylotic disease of the lumbar spine.
(My comments: The above scans confirmed that there was a significant MVA in December 2009 with possible injuries to the lower back, left shoulder and right hip.)
•CT cervical spine of 13/4/2011, taken at TrueScan Radiology, reported by Dr Joseph Trieu – which showed early degenerative change at C5/6. There was no evidence of spinal canal stenosis or neural foraminal stenosis. The clinical notes stated, ‘Neck pain and recurrent sharp pain along left forearm’.
For ‘Thi Gai Ly’:
•Whole Body bone scan/SPECT and low dose CT of 4/12/2019, taken at Western Nuclear Medicine, reported by Dr Lin Chen – which showed no recent fracture. There was active right-sided L4/5 facet joint arthropathy. There was mild bilateral L5/S1, left L4/5 and bilateral L3/4 facet joint arthritis. There was active marginal osteophytic lipping along the mid to lower thoracic spine on the right, more prominent at the T10/11 level. There were arthritic changes in the sacroiliac joints (SIJ). There was increased uptake in the lower cervical spine on the left. There were mild to moderate arthritic/degenerative changes in the small joints of both hands, intercarpal joints bilaterally, thumb bases, wrists, shoulders, SC joints, hips, lateral and patellofemoral compartments of both knees, intertarsal, TMT and bilateral 1st MTP joints of the feet. There were features of left sided plantar fasciitis. There was intense increased activity in a peri-articular distribution in the MCP joint of the left middle finger and the radiologist opined that it could be post-traumatic synovitis arthritis and suggested clinical correlation.
(My comment: The scan was done 9 days after the subject MVA. Most of these changes are chronic degenerative changes and take months to develop and therefore are causally unrelated to the subject MVA.)
•Ultrasound left shoulder of 12/12/2019, taken at TrueScan Radiology reported by Dr Joseph Trieu – which showed a small partial thickness tear of the supraspinatus tendon and subdeltoid bursitis.
•Ultrasound guided injection left shoulder of 16/12/19, taken at TrueScan radiology, reported by Dr Lawrence Trieu – which showed ultrasound guided steroid injection into the left subdeltoid bursa.
•Thoracic spine X-ray of 1/10/2020, taken at Truescan radiology, reported by Dr Reshinie Akmeemana – which was normal apart from marginal osteophyte formation, and mild loss of disc height at multiple levels consistent with early spondylosis.
•Ultrasound left shoulder of 23/12/2021, taken at TrueScan Radiology reported by Dr Joseph Trieu – which showed features of the supraspinatus tendinosis and subdeltoid bursitis. The scan was done 2 years after the subject MVA. There were also features of biceps tendinosis and tenosynovitis.
•Ultrasound and X-ray left shoulder and X-ray cervical spine of 1/11/2022, taken at TrueScan Radiology reported by Dr Joseph Trieu – which showed features of subacromial-subdeltoid bursitis. There was also tendinosis of the supraspinatus and biceps. The scan was done 2 years after the subject MVA.
•Ultrasound guided injection left shoulder of 1/12/2022, taken at TrueScan radiology, reported by Dr Lawrence Trieu – which showed ultrasound guided steroid injection into the left subdeltoid bursa. The injection was done only 11 days prior to the panel examination
Overall, the examining Panel member agrees with the reports of the radiologists.
Summary of Relevant Documentation Provided for the Initial Assessment
•The ambulance report showed that the subject MVA occurred on 23 November 2019. The ambulance arrived 12 minutes after receiving call. The claimant was involved in an MVA of unknown speed on a low speed zone. Her car was hit at an oblique angle by an oncoming vehicle who was driving on the wrong side of the road. She complained of pain to left scapula, left shoulder, and left arm. She was alert and oriented to person, time and place. GCS was 15 and she could recall full events leading up to event and after accident. She self extricated from vehicle and ambulating. She denied headache and visual disturbance and answer all questions appropriately. Neck had full ROM, no neck pain, and full ROM
•In a report dated 28 February 2020, Ye Rong of Workfocus Australia got the history that Ms Ly initially lived in Melbourne and moved to Sydney in 1996. She separated from her husband in 2018 and lives with her daughter and her nephew. She was diagnosed with Major Depression since 2005 after the death of her father in 2004 and was seen by a psychiatrist Dr Luong
•In a ‘full summary as at 20/12/2019”, apparently clinical notes of her GP, the active past medical history includes,’ … 2006: depression… hypercholesterolaemia… knee medial enthesopathy (left)… 2009 Left upper and forearm strain, L epicondylitis, comm ext tendos… low back stttrain with degenerative spinal disease… STI [soft tissue injury] of buttock, sacrococcyx, tendinosis of gluteus medius… STI of left leg, left ankle sprain… whiplash, cerebral concussion, pedestrian injury… left shoulder strain, partial thickness tear of supraspinatus (left)… left wrist strain, left hand soft tissue inj… thigh muscles strain, tendinosis of hamstring origin (bilateral)… 2012 osteoarthritis – knee (right) … 2018, hypertension …”.
•There were several ‘Allied health recovery request’ (AHHR) by physiotherapist.
•In an ‘Early specialist opinion (ESO) report’, dated 1 April 2020, Dr Gaurav Tandon, a psychiatrist, advised psychologist consultation and further assessment.
•In a ‘Complete record as at 5/7/2022’, the clinical notes of Cabrammatta John St medical Complex, the entries were printed in reverse chronological order. The earliest medical entry was dated 10 August 2005. In an entry dated 21 August 2007, Dr Brian Nguy prescribed Voltaren Rapid 50, but did not state the indications.
In an entry dated 21 January 2009, Dr Van Hung Phan mentioned left knee osteoarthritis: crepitus, near full ROM, and continue Volataren 50 EC.
In an entry dated 31 December 2009, Dr Xiao Hua Lin said, ‘…. Stated that she was knock[ed] down by a car backwards yesterday… unable to state how did she fall and which part of her body landing. She was sent to F/F hospital and Dx. of soft tissue injury and d/c [discharged]. Now c/o pain in left palm, left knee, low back. Examination: there are tender to left thenar and some bruise. There is a sport abrasion on left knee cap. Back: tender to low sacral area. All joints were in normal ROM. IMP: multiple soft tissue injury…’
In an entry dated 28 June 2010, Dr Thomas Diep stated, ‘…. Hip pain (injury), worse when intercourse, tried to avoid intercourse, husband not happy. Counselling: try certain position to reduce stress to the hip…’,
In an entry dated 9 October 2011, Dr Van Hung Phan stated, ‘… fall at home, sustained head injury, LOC, seen by Fairfield hospital, had CT scan of brain and cervical spine, no more headache…not in pain/distress. Neuro:and…’.
In an entry dated 15 September 2012, Dr Diep stated there was knee pain > 1 year, right > left side. Pain on squatting, stair walking, ground walking stand at rest. No give way, no locked knee. She was given Celebrex
It appeared that the knee pain, both sides, due to osteoarthritis became worse with time.
In an entry dated 25 November 2019, Dr Diep mentioned an MVA on 23/11/2019, but he did not mention any specific treatment.
In the subsequent entries, Dr Diep noted depression and psychosis reviewed by Dr Luong, some deterioration in knee pain, but did not mention any brain injury symptoms or signs.
In an entry dated 1 October 2020, nearly 1 year after the subject MVA, Dr Diep stated there was 3 days of right sided upper back pain radiating along right side of lower chest up the epigastrium pain increase with right shoulder movement. There was no recent injury.
Summary of Other Relevant Documentation
I also reviewed the following documents, with the patient’s name, ‘Joanne Wong’:
•In an ED discharge referral of Fairfield Hospital, dated 4 October 2011, it was stated that the claimant presented to ED following a fall from a ladder about 1.5m high, landing on her back. She complained of headache, neck pain and laceration on occipital area. Physical exam was normal and suturing was done. After X-ray cervical spine, CT brain and X-ray Chest, she was discharged home with amoxicillin.
6. Conclusions
Diagnosis and Causation
• Head injury
There is no evidence of a significant head injury: there is no documented loss of consciousness, no documented post-traumatic amnesia, and no evidence of brain imaging abnormalities. There is no evidence of retrograde amnesia or anterograde amnesia. Mental status screening tests do not show objective signs of cognitive impairment, memory impairment or executive function impairment.
There is no documented or clinical evidence of concussion or post-concussion syndrome.
Therefore, there is no evidence of brain injury.
Since the claimant reported her head hit the headrest of her car seat, it is possible that she might have soft tissue injury of the head, but it is not documented. Therefor the head soft tissue injury is a minor injury.
• Cervical spine injury
There is no evidence cervical radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 8.2: 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 her cervical spine. The Panel noted that from the GP notes and previous radiological investigation, the claimant has a significant MVA in 2009 and sustained neck, back, right and left hips, and left shoulder injuries. She continued to complain neck and left upper limb pain and had CT cervical spine in 2011. The bone scan of 4/12/2019 only showed degenerative changes at the cervical spine, but no fracture.
Therefore, the Panel assessed the soft tissue injury to the cervical spine as a minor injury
• Thoracic spine injury
There is no evidence of any injury to the thoracic spine sustained in the subject MVA. Examination of the thoracic spine was normal. There is no evidence of fracture, radiculopathy or bony lesion. Bone scan of 2019 showed no abnormality in thoracic spine. Thoracic spine X-ray of 1/10/2020 is normal, apart from some early degenerative changes.
Considering the circumstances of the accident, it is possible there was soft tissue injury to the thoracic spine, although it is not documented. Therefore, the Panel finds that the possible soft tissue injury of thoracic spine is a minor injury
• Lumbar spine injury
There is no evidence lumbar radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 8.2: 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.
However, considering the history and complaint, it is possible there was soft tissue injury to lumbar spine.
There was no evidence of DRE II modifier. Therefore, it should be assessed as DRE I.
As mentioned above there is history of pre-existing MVA in 2009 leading to lumbar spine injury.
A bone scan of 2019 does not show any fractures. It showed degenerative changes in facet joints of lumbar spine, which is likely related to the age of the claimant, and not causally related to the subject MVA. Considering the circumstances of the accident, she might have sustained a soft tissue injury to the lumbar spine, however it is assessed as a minor injury.
• Left shoulder injury
Considering the history and circumstances of the accident, it is possible that the claimant sustained soft tissue injury to the left shoulder.
However, she has had left shoulder symptoms since the pre-existing MVA of 2009. An ultrasound of the left shoulder of 14/1/2010 has already showed partial thickness tear of supraspinatus and subdeltoid bursitis. When comparing it with the ultrasound of the left shoulder of 12/12/2019, there are no significant changes in the findings. The ultrasound of the left shoulder of 23/12/2021 basically shows similar findings. There is no full thickness tear.
Therefore, the Panel found that the soft tissue injury to the left shoulder sustained in the subject MVA is a minor injury.
• Right hip injury
Although, considering the circumstances of the accident, it is possible that the claimant sustained some soft tissue injury in subject MVA, it is not well documented. However clinically, examination of the hips was normal. The bone scan of 2019 only showed arthritic/degenerative changes in the sacroiliac joints and hips, but no fractures were seen.
There was no other radiological investigation for the right hip.
Therefore, the Panel finds that the soft tissue injury to the right hip is a minor injury.
Summary of Injuries Listed by the Parties and found to be Caused by the Accident
The following injuries WERE caused by the motor accident:
•Cervical spine – soft tissue injury
•Thoracic spine – soft tissue injury
•lumbar spine – soft tissue injury
•Head – soft tissue injury
•Left shoulder – soft tissue injury
•Right hip – soft tissue injury
Summary of Injuries Listed by the Parties and found Not to be Caused by the Accident
The following injuries WERE NOT caused by the motor accident:
•nil
Conclusion – the claimant has suffered threshold injuries
The following injuries are a threshold injuries:
•Cervical spine – soft tissue injury
•Thoracic spine – soft tissue injury
•lumbar spine – soft tissue injury
•Head – soft tissue injury
•Left shoulder – soft tissue injury
•Right hip – soft tissue injury
The Panel adopts the findings of Medical Assessor Wan.
Causation
The circumstances of the accident are the claimant was proceeding through an intersection with the benefit of a green traffic control light. The driver of the insured car drove into the intersection against a red traffic control light and collided with the rear of the claimant’s car. The impact would not have been insignificant in the circumstances. The Panel is satisfied that it would be reasonable to expect that the claimant might suffer injuries to her cervical spine, lumbar spine, left shoulder and right hip, although not all of these were complained of at the time of examination of the claimant by the attending ambulance paramedics.
Conclusion
There is no evidence of a significant head injury nor any consequent brain injury.
There is no evidence of cervical radiculopathy. There are no signs of radiculopathy as per the criteria listed in paragraph 6.138 of the Guidelines.
There is no evidence of any injury to the thoracic spine having occurred in the motor vehicle accident.
There is no evidence of lumbar spine radiculopathy. There are no signs of radiculopathy as per the criteria listed in paragraph 6.138 of the Guidelines.
Regarding the left shoulder, the claimant had a pre-existing condition for which she had sought treatment. A comparison of an ultrasound study of the left shoulder on 14 January 2010 with another ultrasound study post-accident on 23 December 2021 show similar findings. There is no full thickness tear. The claimant has only suffered a soft tissue injury.
Clinical examination of the claimant’s right hip revealed normal findings. A bone scan undertaken on 4 December 2019 showed arthritic/degenerative changes but no sign of a fracture. There was no other radiological investigation of the right hip. The Panel concludes that the claimant has suffered a soft tissue injury to her right hip.
The Panel is satisfied that the claimant has suffered soft tissue injuries only arising out of the accident and that these are minor injuries.
The Panel, following examination of the claimant, is satisfied that the claimant has suffered soft tissue injuries being:
“…an 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.”
The Panel has seen no evidence that the claimant suffered an injury to nerves, or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
The claimant has not suffered a non-threshold injury.
Determination
The Panel approves the certificate of Medical Assessor Cameron dated 27 November 2021.
The following injuries WERE caused by the motor accident:
· cervical spine – soft tissue injury;
· thoracic spine – soft tissue injury;
· lumbar spine – soft tissue injury;
· head – soft tissue injury;
· left shoulder – soft tissue injury, and
· right hip – soft tissue injury.
The following injuries WERE NOT caused by the motor accident:
· Nil.
The following injuries are a threshold injury:
· cervical spine – soft tissue injury;
· thoracic spine – soft tissue injury;
· lumbar spine – soft tissue injury;
· head – soft tissue injury;
· left shoulder – soft tissue injury, and
· right hip – soft tissue injury.
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