Ni v AAI Limited t/as AAMI
[2023] NSWPICMP 241
•24 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ni v AAI Limited t/as AAMI [2023] NSWPICMP 241 |
| CLAIMANT: | Shi Ming Ni |
INSURER: | AAI Limited trading as AAMI |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Tai-Tak Wan |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 24 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury whilst riding a pushbike on 19 January 2021; the claimant was assessed by Medical Assessor Wallace who was subsequently found to have a conflict of interest; the Panel found no evidence of radiculopathy in lumbar spine; claimant sustained soft tissue injury of the lumbar spine and left sacroiliac joint; left shoulder, no evidence of injury to the shoulder joint or the rotator cuff; persisting pain and tenderness in left shoulder; sustained soft tissue injury to the left shoulder; any soft tissue injury to right shoulder and left hip now resolved; claimant sustained soft tissue injury to left leg now largely resolved; Panel observed severe psychological sequalae; remedial massage to left leg recommended by general practitioner, effective because the claimant’s left leg condition largely resolved; future remedial massage is a passive treatment and not likely to ameliorate effect of soft tissue injuries; Chinese herbal treatment of limited value in acute phase of injury; no medically accepted peer reviewed evidence to show use of Chinese herbal treatments effective in the long term; Panel of view Chinese herbal remedies unlikely to assist in recovery; Held – soft tissue injury to the left shoulder, the lumbar spine, the right shoulder, the left hip and left leg are all threshold injuries; remedial massage and Chinese Herbal remedies relate to the injury caused by the accident; up to 20 past remedial massage sessions reasonable and necessary; past and future Chinese herbal remedies and future remedial massage not reasonable and necessary. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Ray Wallace dated 12 July 2022 and determines that the following injuries caused by the motor accident are threshold injuries: · soft tissue injury to the left shoulder; · soft tissue injury to the lumbar spine; · soft tissue injury to the right shoulder; · soft tissue injury to the left hip, and · soft tissue injury to the left leg. ASSESSMENT OF TREATMENT AND CARE The Review Panel revokes the certificate of Medical Assessor Ray Wallace dated 1. The Panel finds the following treatments relate to the injury caused by the accident: (a) up to 20 past remedial massage sessions, from the time of the accident to the time of the Personal Injury Commission’s (Commission) assessment for treatment of the claimant’s leg; (b) Chinese herbal remedies as prescribed by Mr Y F Zhang, between April and July 2021, for treatment of the claimant’s leg; (c) future remedial massage sessions (at any frequency) from the time of the Commission’s assessment and ongoing for the remainder of the claimant’s life expectancy, and (d) future Chinese herbal remedies as prescribed by Mr Y F Zhang, from 2. The Panel finds the following treatment is reasonable and necessary in the circumstances: (a) up to 20 past remedial massage sessions, from the time of the accident to the time of the Commission’s assessment, for treatment of the claimant’s leg. 3. The Panel finds the following treatment is not reasonable and necessary in the circumstances: (a) Chinese herbal remedies as prescribed by Mr Y F Zhang, between April and July 2021, for treatment of the claimant’s leg; (b) future remedial massage sessions (at any frequency) from the time of the Commission’s assessment and ongoing for the remainder of the claimant’s life expectancy, and (c) future Chinese herbal remedies as prescribed by Mr Y F Zhang, from the time of the Commission’s assessment and ongoing for the remainder of the claimant’s life expectancy, for treatment of the claimant’s leg. |
STATEMENT OF REASONS
INTRODUCTION
Mr Shi Ming Ni (the claimant) sustained injury as a cyclist when he was hit by a car reversing out of a driveway on 19 January 2021 (the accident). Mr Ni was wearing a helmet and fell onto his right side.
AAI Limited trading as AAMI (the insurer) is the relevant insurer with liability to pay any damages to Mr Ni under the Motor Accident Injuries Act 2017 (MAI Act).
Under the MAI Act statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries (threshold)”.[1]
[1] Section 3.28 of the MAI Act.
On 19 February 2021 Mr Ni lodged an Application for personal injury benefits.
On 15 March 2021 the insurer issued a Liability Notice – benefits up to 26 weeks informing the claimant liability for statutory benefits - treatment had been accepted from the date of the accident to 20 July 2021.[2]
[2] R1 p 272
On 26 March 2021 Mr Zhang sought approval for further treatments of remedial massage and Chinese Herbal medicines.
On 7 April 2021 the insurer advised the request for remedial massage was partially declined. The insurer approved eight visits for physiotherapy with Moses Chu and two final visits for remedial massage with Kongbo.[3]
[3] R1 p 157
On 8 April 2021 the insurer issued a Liability Notice – benefits after 26 weeks informing the claimant that his injuries were minor (threshold) injuries and that his entitlement to statutory benefits including treatment and care would cease from 20 July 2021.
On 13 April 2021 the insurer advised that only two further herbal medication receipts at $72 each would be approved.
On 24 April 2021 Mr Ni indicated he disagreed with the decision of the insurer to approve two remedial massage sessions and two herbal medicine prescriptions. He relied upon the opinion of Mr Zhang, Chinese Medicine practitioner and Dr Christopher Grant, general practitioner (GP) noting he had continued to receive Chinese Remedial Massage and herbal medicine from 26 March 2021, as recommended by Ms Zhang and Dr Grant.
On 7 May 2021 the insurer issued a Certificate of Determination – Internal Review affirming the decision to decline further Chinese Herbal Medicine and further remedial massage sessions on the basis they were not considered reasonable and necessary.
On 28 June 2021 the insurer issued a notice approving four out of the eight physiotherapy sessions requested by Parramatta Physio Sports Rehab Centre.[4]
[4] R1 p 203
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the minor (threshold) injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “whether the injury caused by the motor accident is a minor injury (threshold) for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[5]
[5] Section 7.20 of the MAI Act.
This dispute was assessed by Medical Assessor Raymond Wallace who issued a certificate dated 12 July 2022.
THRESHOLD INJURY- STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on
1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8 Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In Briggs v IAG Limited trading as NRMA Insurance[6] his Honour Justice Wright stated at [35]:
[6] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
TREATMENT – STATUTORY PROVISIONS
Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person-
(a)The reasonable cost of treatment and care,
(b)Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,
(c)If the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and cate for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Section 3.28 of the MAI Act provides statutory benefits for treatment and care expenses incurred more than 26 weeks after the accident are payable if the Guidelines authorise their payment and if the treatment will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.
Clause 5.16 of the Guidelines provides for a person with threshold injuries the payment of treatment and care incurred more than 26 weeks after the accident is authorised if the treatment and care is:
(a) medical treatment, including pharmaceutical;
(b) dental treatment;
(c) rehabilitation;
(d) aids and appliances;
(e) education and vocational training;
(f) home and transport modification;
(g) workplace and educational facility modifications, and
(h) the treatment and care will improve the recovery of the injured person, or
(i) the insurer delayed approval for the treatment and care expenses, or
(j) the treatment and care will improve the injured person’s capacity to return to work and/or usual activities.
Clause 4.79 of the Guidelines provides that:
“People respond differently after a motor accident injury. The insurer must manage claims in a manner that is tailored to the claimant’s individual circumstances and needs, providing support based on best practice and a commitment to early and appropriate treatment and care.”
Clause 4.80 of the Guidelines sets out the principles of the nationally endorsed Clinical Framework for the Delivery of Health Services that the insurer must adhere to in approving treatment and care:
(a) measure and demonstrate the effectiveness of the treatment;
(b) adopt a biopsychological approach consider the whole person and their individual circumstances;
(c) empower the injured person to manage their recovery;
(d) implement goals focused on optimising function, participation and return to work or other activities, and
(e) base treatment on the best available research evidence.
ASSESSMENT UNDER REVIEW
The dispute was referred to Medical Assessor Ray Wallace who assessed
Mr Ni on 3 May 2022 and issued a certificate dated 12 July 2022.[7] The injuries referred for assessment were as follows:· left shoulder;
· right shoulder;
· lumbar spine;
· left hip, and
· left leg.
[7] AD3 p 4.
The Panels notes after completing his assessment Medical Assessor Wallace was found to have had a conflict of interest. Accordingly, whilst the Panel proposes to note his findings on examination his conclusions will not be set out in these Reasons.
The treatment dispute was described as massage and herbal remedy.
Medical Assessor Wallace reported Mr Ni noted a constant aching pain in the region of the left scapular spine with no radiation to the left shoulder or arm. The pain was worse on bending or twisting movements or repetitive activities and is relieved by hot or cold packs. He complained of some stiffness of his left arm but no stiffness of the left shoulder. He also reported a constant aching pain at L3, L4 and L5 spinous processes radiating to the left paravertebral region but with no radiation to the buttock or legs, made worse by walking.
He reported intermittent paraesthesia at the left calf, weakness at the left leg but no stiffness at the lumbar spine. His left hip symptoms had resolved. He also reported intermittent aching pain at the posterior aspect of the left calf made worse on walking long distances or standing.
Medical Assessor Wallace assessed range of movement of each shoulder as follows:
Range of movement
Left shoulder
Right shoulder
Flexion
120º
160º
Extension
10º
40º
Abduction
120º
160º
Adduction
10º
40º
External Rotation
30º
30º
Internal Rotation
30º
30º
He also noted tenderness at the medial end of the left scapular spine. Medical Assessor Wallace reported Mr Ni held his back with his hand complaining of pain during the consultation. He reported an active range of movement at the lumbar spine of forward flexion to the mid tibia, extension 30°, left lateral tilt 40°, right lateral tilt 20°, left rotation 30° and right rotation 30°. He noted tenderness at the L3/4 spinous process. He had straight leg raising to 50º on the right and 30º which was resisted. Medical Assessor Wallace noted neurological examination of his lower limbs and equal and symmetric reflexes. Power and light touch sensation were intact.
Medical Assessor Wallace found no swelling or deformity of the left calf, only very mild tenderness at the juncture of the middle and distal thirds. He noted Mr Ni exhibited pain behaviour.
REVIEW PROCEDURE
The claimant lodged an application for review of the medical assessment of Medical Assessor Wallace on 28 July 2022 within 30 days of the date on which the certificate of
Medical Assessor Wallace was made available to the parties.On 7 September 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[8] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[8] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[9]
[9] 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.[10]
[10] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued a Direction to the parties on 26 October 2022 (the first Direction) which required each party to file an indexed, paginated bundle of documents.
The claimant uploaded to the portal an indexed bundle of documents paginated from pages 1 to 525 and marked AD3.
The solicitor for the insurer uploaded to the portal an indexed bundle of documents paginated from pages 1 to 344 marked as R1.
Teleconference on 29 November 2022
Following a teleconference on 29 November 2022 the Panel agreed a medical examination was required. The Panel issued a Report and Directions to the parties on 1 December 2022 to clarify the issues for determination by the Panel. That report relevantly states:
“3. The Panel notes the minor injury dispute to be assessed in accordance with the provisions of the Motor Accident Injuries Act, 2017 relates to injuries to the lumbar spine, the right shoulder, the left leg, the left shoulder and the left hip.
4. The Panel refers to the Referral for Assessment to Medical Assessor Wallace and notes the following additional treatment disputes are also to be assessed:
(a) whether 0 to 20 (and any amount in between) past remedial massage sessions, for treatment of the claimant’s leg is causally related to the subject motor vehicle accident;
(b) whether 0 to 20 (and any amount in between) past remedial massage sessions, for treatment of the claimant’s leg is reasonable and necessary in the circumstances;
(c) whether the Chinese herbal remedies as prescribed by Mr Y. F. Zhang, between April and July 2021, for treatment of the claimant’s leg, is causally related to the subject motor vehicle accident;
(d) whether the Chinese herbal remedies as prescribed by Mr Y. F. Zhang between April and July 2021, for treatment of the claimant’s leg, is reasonable and necessary in the circumstances;
(e) whether future remedial massage sessions (at any frequency) from the date of the PIC assessment and ongoing for the remainder of the claimant’s life expectancy, for treatment of the claimant’s leg is causally related to the subject motor vehicle accident;
(f) whether future remedial massage sessions (at any frequency) from the date of the PIC assessment and ongoing for the remainder of the claimant’s life expectancy, for treatment of the claimant’s leg is reasonable and necessary in the circumstances;
(g) whether future Chinese herbal remedies as prescribed by Mr Y. F. Zhang, from the date of the PIC assessment and ongoing for the remainder of the claimant’s life expectancy, for treatment of the claimant’s leg, is causally related to the subject motor vehicle accident; and
(h) whether the Chinese herbal remedies as prescribed by Mr Y. F. Zhang from the date of the PIC assessment and ongoing for the remainder of the claimant’s life expectancy, for treatment of the claimant’s leg, is reasonable and necessary in the circumstances.
5. The Panel notes that at page 23 of the claimant’s bundle (marked AD3 in the portal) the claimant seeks to amend the claim for treatment as follows:
(a) Treatment 1 – Remedial Massage
· End date to be amended from 1 July 2021 to continuing;
· Number of visits to be amended from 20 to 14 sessions to date.
(b) Treatment 2- Traditional Chinese Medicine
· End date to be amended from 1 July 2021 to continuing
6. The claimant notes due to COVID 19 restrictions he did not receive treatment from Kong Bo Chinese Clinic between 26 June 2021 and 18 October 2021 when he resumed treatment.
7. The Panel proposes to allow the amendment to the application to facilitate the just, quick and cost-effective resolution of the real issues in the Review between the parties in accordance with s 42 of the Personal Injury Commission Act, 2020 and to avoid the possibility of any further medical dispute in relation to remedial massage and traditional Chinese medicine.”
EVIDENCE BEFORE THE REVIEW PANEL
Relevant pre-accident treating records
The clinical notes of Dr Grant show a relevant past medical history of:
· 13 November 2015 – swelling of right distal achilles tendon;
· 8 December 2018 – occasional pain in the left medial ankle, perhaps two to five times per day lasting 10 to 15 minutes, first started a month ago,[11] and
· 22 August 2019 – left upper anterior chest pain and ankle pain.
[11] R1 p 205.
Mr Ni underwent an X-ray of both ankles on 15 January 2019.[12] The report states:
“The cortical and trabecular pattern of the distal tibia and fibula appear normal bilaterally apart from the presence of a 0.8cm bone island at the base of the left medial malleolus.
The tibiofibular syndesmosis are not widened. The articular surfaces of the talocrural and subtalar joints are normal. The Achilles tendon insertions are normal bilaterally. The metatarsal bases are normal.”
[12] AD3 p 403.
An ultrasound of both ankles on 15 January 2019 reported:[13]
“There is a subcutaneous lesion lying superficial to the right Achilles tendon. … There are also features of mild right sided retrocalcaneal bursitis.
The left ankle has a normal sonographic appearance.”
[13] AD3 P 403.
Mr Ni attended Westmead Hospital on 16 September 2019 in relation to a small soft tissue swelling superficial to the insertion of the right Achilles tendon. Dr Wong has reported “He has low back pain with possible sciatica for 1-2 years, unrelated to this small swelling”.[14]
Post- accident records
[14] R1 p 116.
Application for personal injury benefits
In the Application for personal injury benefits the claimant referred to the police report for the description of the accident and to the GP report and physiotherapy planning report for details of the injuries sustained.
Statement of Shi Ming Ni
Mr Ni provided a statement dated 13 December 2021.[15] He states that as a result of the accident he sustained injures to both shoulders, his lower back, left hip, left leg and psychological sequalae.
[15] AD3 p 20.
He states he had remedial massage and traditional Chinese medicine for his left leg at Kongbo Chinese Clinic from 22 January 2021 to 25 June 2021 when he ceased due to COVID-19. He resumed remedial massage treatments for his left leg once a week on 18 October 2021.
He states he noticed a gradual improvement in his left leg since starting treatment with Kongbo Chinese Clinic on 22 January 2021. Mr Ni states Mr Zhang prescribed traditional Chinese medicine to be orally consumed and topically to eliminate the lump in his left leg and to relieve the pain in his left leg.
Mr Ni states he has paid for remedial massage treatment and traditional Chinese medicine since 27 April 2021 when it was declined by the insurer.
Ambulance report
The ambulance report records the claimant was riding on the footpath when a vehicle exiting the driveway at low speed hit his lower left leg with the tyre knocking him of the bike.[16] The report records left lower leg pain, left groin pain, left hip pain, left little finger abrasion/ graze, left ring finger abrasion/graze, and noted the claimant denied cervical spine pain, headache nausea and altered sensation.
[16] R1 p 40.
Westmead Hospital
Mr Ni was transported to Westmead Hospital by ambulance following the accident on 19 January 2021. The discharge summary reported ongoing pain in the left foot and hip. He was reviewed, his abrasions were cleaned and dressed, he underwent investigations and was given Paracetamol, Ibuprofen, Endone and Clexane medications. He was discharged with crutches with a recommendation that he undergo physiotherapy.[17]
[17] R1 p 26.
The following investigations were conducted whilst at Westmead Hospital:
· an X-ray of the chest reported “no displaced Rib fracture, no supine pneumothorax, the lungs are clear, the cardiac size is not enlarged”;
· an X-ray of the pelvis reported “No fracture seen”;
· an X-ray of the foot, ankle and left tibia fibula reported “No fracture seen”;
· an X-ray of the left elbow reported, “No fat pad elevation to suggest an elbow joint effusion. No acute fracture or dislocation seen”;
· a non-contrast CT scan of the brain reported “No acute intracranial haemorrhage. No acute displaced calvarial or facial bone fractures. The mandibular condyles are enlocated. The mastoid air cells are clear. Minor mucosal thickening is noted in the paranasal sinuses”;
· a non-contrast CT scan of the cervical spine reported “No prevertebral soft tissue swelling. No acute cervical spine fracture or dislocation is identified. Mild multilevel degenerative changes are noted”;
· a CT scan of the aortogram/chest reported “No dissection flap or other acute injury seen in relation to the aorta or its major branches. No retrosternal haematoma, pericardial effusion or pneumomediastinum. No pneumothorax, pleural effusion or consolidation. No acute fractures are seen in the sternum, ribs, thoracic spine, scapulae, clavicles or imaged proximal humeri”, and
· a CT scan of the abdomen/pelvis reported “No free fluid or pneumoperitoneum. No diaphragmatic rupture identified. No acute injury seen in the liver, gallbladder, spleen, pancreas, adrenal glands, kidneys or small/large bowel. - No acute fractures are seen in the lumbosacral spine, pelvis or proximal femora”.
Records of Dr Christopher Grant, GP
Mr Ni first consulted Dr Grant after the accident on 28 January 2021 when he reported Mr Ni was still unable to walk.
On 18 February 2021 Dr Grant reported Mr Ni was still carrying a single crutch, was taking Panadol and Endone to control pain, he had back pain, left knee pain and left medial ankle swelling, pain and tenderness. In the Certificate of Capacity/Certificate of Fitness he recommended chiropractic treatment with Walters Chiropractic.
In his report dated 26 February 2021 Dr Grant diagnosed back pain, left knee pain, left ankle medial pain and swelling. He recommended remedial massage and noted Endone and Panadol was prescribed as required. No stated no pre-existing injuries would impact recovery. Whilst Mr Ni still had symptoms, he was then able to weight bear without crutches.
On 17 March 2021 Dr Grant reported Mr Ni was walking with a single crutch but applying considerable weight on it. In a Certificate of Capacity/Certificate of Fitness
Dr Grant recommended therapeutic massage with Walter Chiropractic and treatment with Moses Chu, physiotherapist.[18][18] R1 p 313.
In a Certificate of Capacity/Certificate of Fitness dated 30 March 2021 Dr Grant reported Mr Ni had no current work capacity until 14 April 2021. Mr Ni was able to walk without a crutch, but his back pain had not improved to any great extent. Dr Grant recommended treatment with Kongbo Chinese Clinic and physiotherapy treatment with Moses Chu.[19]
[19] R1 p 151.
In a Certificate of Capacity/Certificate of Fitness dated 14 April 2021 Dr Grant diagnosed soft tissue injuries to the left side of the body, back pain and a psychological injury.[20] He stated Mr Ni had continued to improve with Chinese Massage once a week with herbal medicine and recommended it continue. Dr Grant reported the claimant had become short tempered and easily annoyed and referred Mr Ni to a psychologist. He certified Mr Ni with no work capacity.
[20] R1 p 167.
In a Certificate of Capacity/Certificate of Fitness dated 26 May 2021 Dr Grant reported Mr Ni continued to improve and was receiving physiotherapy twice a week. He listed treatment provides as Kongbo Chinese Clinic for remedial massage, Moses Chu, physiotherapist and psychologist with the name to be supplied.
In a Certificate of Capacity/Certificate of Fitness dated 3 July 2021 Dr Grant reported Mr Ni continued to complain of pain, tenderness and swelling of his distal left lower leg, although he stated the swelling and pain was reducing with treatment.[21] He again recommended ongoing remedial massage with Kongbo Chinese Clinic and physiotherapy with Moses Chu.
[21] R1 p 326.
Karolina Wojciechowska, remedial massage therapist
On 26 February 2021 Ms Wojciechowska of Walters Chiropractic reported Mr Ni attended for an initial consultation in respect of ongoing back pain and left leg pain due to the accident. She also reported Mr Ni complained of left shoulder pain related to the accident. She recommended remedial massage treatment one hour twice a week for six weeks.
Ms Wojciechowska reported to Dr Grant on 25 March 2021.[22] She reported after six sessions of remedial massage treatment there was no overall improvement in back pain. She reported no improvement in range of movement, walking caused back pain and Mr Ni was still avoiding weight bearing on his left foot. Noting he had not improved after six massage sessions Ms Wojciechowska felt he needed physiotherapy or another allied health practitioner’s advice.[23]
Records of Mr Zhang of Kong Po Herb Clinic
[22] R1 p 148.
[23] R1 p 332.
Mr Ni first consulted Mr Zhang on 22 January 2021 complaining of body pain on the left side. On examination Mr Zhang reported “lumps, bruises and pain in the left lumbar spine, spine muscles and left hand and left foot, and lumps and bruises in the lateral tibia muscles of the right foot, pain refusal to press and skin damage on the foot”.[24]
[24] AD3 p 334.
Mr Zhang reported to Dr Grant on 26 March 2021.[25] He reported Mr Ni had been receiving treatment at his clinic since 22 January 2021. He reported gradual improvement and recommended ongoing treatment of remedial massage as well as Chinese herb medicine.
[25] R1 p 150.
On 14 April 2021 Mr Zhang reported Mr Ni had continued to receive Chinese remedial massage and herbal medicine treatments since 26 March 2021 with improvement. He reported his left leg needed further treatment on a weekly basis until fully recovered.[26]
[26] R1 p 194.
A translation of a letter addressed to Attorney Lieu dated 15 February 2022 refers to the provision of massage treatment, the use of herbal medicines, the application of Chinese herbal ointment and the application of Chinese herbal oil.[27]
[27] AD5.
The oral Chinese medicines listed are as follows:
· Panax notoginsent for warming the meridians[28], dispelling cold and to stop bleeding;
· Salvia Miltiorrhiza for bruises and limb pain;
· Corydalis yanhusuo for pain and traumatic injury;
· Angelica dahurica for analgesic and anti-inflammatories purposes;
· Spanish needles to promote blood circulation and reduce swelling;
· Ramulus mori to dispel wind, dredge collaterals, and for sore muscles and bones;
· Achyranthes bidentata to promote blood circulation, disperse meridians, for traumatic injury and lower limb weakness, and
· Eucommia ulmoides for strengthen muscles and bones and for lower limb atrophy and softness.
[28] In Traditional Chinese Medicine a meridian is a channel through which qi (energy) flows.
The external wash includes:
· Artemisia Vulgaris to warm meridians, dispel cold and relieve pain;
· Panax Notoginsent to remove blood stasis and stop bleeding, promote blood circulation and relieve pain;
· Ligusticum Striatum to activate blood and promote qi, dispel wind and relieve pain;
· Angelica Sinesis to nourish blood, activate blood circulation and relieve pain;
· Lindera Aggregata to activate qi (vital energy) and relieve pain, warm and dispel cold;
· Corydalis Yanhusuo to relieve pain due to blood stagnation;
· Angelica Dahurica, an anti-inflammatory and analgesic, and
· Liquidamibris Fructus to expel wind, dredge collaterals and for limb pain.
The Chinese herbal oil:
· Frankincense to promote blood circulation and promote qi to relieve pain, reduce swelling and regenerate muscles, traumatic injury;
· Myrhh to promote blood circulation and relieve pain, stasis of swelling and pain;
· Panax notogineseng to warm meridians, dispel cold and stop bleeding;
· Salvia miltiorrhiza for bruises and limb pain;
· Artemisia vulgaris to warm meridians, dispel cold and relieve pain, and
· Liquidamibris fructus to dispel wind, dredge collaterals and limb pain.
The ointments for external use include:
· Artemisia vulgaris to warm meridians, dispel cold and relieve pain;
· Angelica Dahurica, an anti-inflammatory and analgesic;
· Davallia mariesii for falling down, slump, injury caused by metal sharp objects to the human body, bone injury, bruise and pain;
· Amber to calm and activate blood, and
· Pyrolusite to dispel stasis and relieve pain.
Mr Yan Fei Zhang is registered with the Chinese Medicine Board of Australia under AHPRA (Australian Health Practitioner Regulation Agency).
Moses Chu, physiotherapist of Parramatta Physio
Mr Chu provided an initial assessment report dated 31 March 2021.[29] He reported injury and pain to the lower back, left knee and left shoulder due to the accident. He reported paraesthesia to the low back and left leg, sitting restricted to 5 to 10 minutes, driving to three minutes, walking to five minutes and standing to five minutes. He recommended eight physiotherapy sessions. On 7 April 2021 the insurer approved eight physiotherapy sessions and two final remedial massage sessions with Ms Zhang to assist with transition to the physiotherapy treatment.
[29] R1 p 154.
An Allied Health Recovery Request (AHRR) No 1 dated 21 April 2021 requested approval for eight sessions of physiotherapy together with a back brace and pain relief cream.[30] This was approved by the insurer on 4 May 2021.
[30] R1 p 180.
An AHRR No 2 dated 19 May 2021 requested eight further sessions of physiotherapy treatment.[31] This was approved by the insurer on 26 May 2021.
[31] R1 p 186.
An AHRR No 3 dated 23 June 2021 requested eight further sessions of physiotherapy treatment for lower back, left knee and left shoulder pain.[32] On 23 June 2021 the insurer approved four further sessions of physiotherapy treatment.
[32] R1 p 197.
Jianqui Xu, New Vision Psychology
An AHRR dated 20 June 2021 provided a provisional diagnosis of post-traumatic stress disorder and noted Mr Ni’s depression, anxiety and stress were elevated. The AHRR also noted chronic back and leg pain.
Medico-legal reports
Report of Dr Uthum Dias, occupational physician
Dr Dias assessed Mr Ni and provided a report dated 2 November 2021.[33]
[33] AD3 p 25.
Dr Dias reported Mr Ni complained of ongoing symptoms of pain, stiffness and discomfort affecting his lower back, left shoulder, left leg and left ankle. He reported
Mr Ni no longer suffered from significant pain affecting his neck, right shoulder, left hip, left thigh or left knee.Dr Dias reported Mr Ni saw a remedial massage therapist on a weekly basis and also takes Chinese herbal medication daily as prescribed by the Congo Herb Clinic.
On examination Dr Dias reported Mr Ni’s cervical spine was normal to examination, he was non-tender to palpation, there was no evidence of muscular guarding or muscular spasm, and he demonstrated a full range of movement. He found no objective clinical evidence of cervical radiculopathy.
Dr Dias reported Mr Ni’s thoracic spine was normal on examination. He was non-tender to palpation and there was no evidence of muscular guarding or muscular spasms. He reported restriction of range of motion but limited by pain and discomfort in the lumbar spine region rather than the thoracic spine. He found no objective clinical evidence of thoracic radiculopathy.
Dr Dias reported Mr Ni’s lumbar spine was normal on examination. He was tender to palpation in the midline and left lumbar paraspinal musculature. He noted significant muscular guarding but no evidence of muscular spasms. Movement of his lumbar spine were limited in all planes. He found no objective clinical evidence of lumbar radiculopathy.
Dr Dias reported Mr Ni’s shoulders were both normal to inspection. He was tender to palpation over the anterior aspect of the left glenohumeral joint and in the region of the left trapezial musculature. He was able to perform left shoulder abduction to 90º, left shoulder flexion to 90º, left shoulder internal rotation to 50º before experiencing worsening pain and discomfort in the left shoulder. He had full range of movement of his left shoulder in the planes of external rotation, adduction and extension.
Mr Ni was non-tender to palpation over the glenohumeral and acromioclavicular joints on the right side. He had a full range of movement of his right shoulder.
Dr Dias reported tenderness of the left ankle and noted range of movement was limited by pain and discomfort.
Dr Dias concluded Mr Ni had symptoms consistent with the following:
· chronic nonspecific lumbar spine pain, stiffness and discomfort, with an associated L2/L3 disc bulge/annular tear, and an L5/S1 disc bulge and associated non-specific intermittent left lower limb sensory symptomatology, secondary to an acute impaction soft tissue injury;
· chronic left shoulder pain, stiffness and discomfort, secondary to an acute rotator cuff tendon strain, and
· chronic left ankle/distal left leg pain, stiffness and discomfort, secondary to an acute soft tissue impaction injury.
Dr Dias recommended ongoing conservative medical management but also suggested he would require 8 to 12 remedial massage treatment sessions over the next 6 to 12 months to manage flare ups and aggravations.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 28 July 2022 in support of the application for review.
The claimant stated evidence to show the right shoulder injury was caused by the accident can be found in the report of Ms Wojchiechowska dated 25 March 2021 where she referred to pain in both shoulders and the report of Dr Dias who recorded a complaint of right shoulder pain from the accident.
The claimant also submitted Medical Assessor Wallace had failed to consider the argument articulated by the claimant that his condition had deteriorated due to the lack of treatment because the state was in lock-down for several months from June 2021 and the insurer’s failure to comply with Part 4.78 and 4.79 of the Guidelines.
The claimant provided submissions dated 14 December 2021 in respect of the substantive dispute.[34]
[34] AD3 p 13.
The claimant notes Dr Grant recommended remedial massage in his initial report to the insurer dated 26 February 2021 and in a Certificate of Capacity dated 14 April 2021 when he stated: “Mr Ni continues to improve with the Chinese massage once per week and with the herbal medicine and these should continue”. In his Certificate of capacity dated 3 July 2021 Dr Grant recommended remedial massage with Kongbo Chinese Clinic suggesting pain was reducing as a result of the treatment.
In reports to Dr Grant dated 26 March 2021 and 14 April 2021 Mr Zhang reported improvement in the claimant’s condition due to remedial massage.
The claimant notes Dr Dias recommended ongoing remedial massage therapy treatment of 8 to 12 sessions over the next 6 to 12 months would be reasonable and necessary to manage flareups and aggravations in the claimant’s condition.
In a report dated 26 February 2021 Ms Wojciechowska chiropractic recommended a course of regular remedial massage treatments for six weeks.
The claimant submitted the insurer failed to comply with the Guidelines in failing to manage the claim in a manner tailored to the claimant’s individual circumstances and needs noting the claimant’s overall improvement with mobility of the left leg, ankle and toes and reduced swelling of the left calf due to treatment received from Mr Zhang.
The claimant also notes that even if his injuries are assessed as threshold injuries cl 5.16 of the Guidelines provides for the payment of treatment expenses incurred more than 26 weeks after the accident if the treatment will improve the recovery of the injured person.
Insurer’s submissions
The insurer provided submissions dated 28 July 2021 in respect of the treatment and care dispute.[35]
[35] R1 p 2.
The insurer submitted the request for ongoing remedial massage treatment with Kong Po Chinese Clinic dated 26 March 2021 and the request for ongoing Chinese Herbal Medicine from Kong Po Chinese Clinic dated 26 March 2021 was not reasonable and necessary.
The insurer notes the claimant’s GP provided a diagnosis of “soft tissue injuries” of the back, left knee and left ankle.
In March 2021, the claimant’s initial remedial massage therapist reported no “overall progress” following six sessions of treatment and recommended treatment with a physiotherapist.
On 26 March 2021, the subsequent remedial massage therapist, Mr Zhang of Kong Po Chinese Clinic reported gradual improvement in walking with remedial massage and Chinese herbal medicine (consumed orally and topically). The remedial massage therapist recommended continuing remedial massage, the subject of this dispute.
On 21 April 2021, the claimant’s physiotherapist provided AHRR 1 requesting eight sessions of physiotherapy treatment for the lower back, left knee/leg and left shoulder.
On 7 April 2021, the insurer approved the eight sessions of physiotherapy treatment sought and approved two further sessions of remedial massage to aid in the transition to physiotherapy treatment.
Subsequently, the insurer approved physiotherapy in accordance with AHRRs 2 and 3 which demonstrated limited improvements in pain while sitting driving, standing, range of motion and lifting capacity.
The insurer notes the claimant has been provided with extensive remedial massage treatment and approximately 26 sessions of physiotherapy treatment and with an exercise program to self-manage treatment.
The insurer submits the claimant has been provided with extensive and reasonable treatment in line with Clinical Framework for the Delivery of Health Services in empowering the claimant to manage his recovery (Part 4.77 (c) of the Motor Accident Guidelines).
The Insurer submits the remedial massage therapist recommendation for ongoing treatment in the management of symptoms in the chronic phase of the recovery process is not reasonable and necessary as the claimant has progressed to physiotherapy treatment requiring active participation, to achieve outstanding goals.
The Insurer submits that the request for ongoing Remedial Massage treatment with Kong Po Chinese Clinic over six months following the accident, is not reasonable and necessary as the claimant has subsequently progressed to physiotherapy treatment.
The Insurer notes that the request for ongoing Chinese herbal medicine has not been well-defined by the claimant’s GP including required duration for the medicine and the benefits it will provide.
Further, the Insurer submits that the request for Chinese herbal medicine is not in line with Clinical Framework for the Delivery of Health Services – based treatment on the best available research evidence (Part 4.77 (e) of the Motor Accident Guidelines).
THE MEDICAL EXAMINATION
Mr Ni was examined at the Commission’s rooms by Medical Assessor Couch over a period of 90 minutes. Ms Yan Yi Kirsten Lam, Mandarin Interpreter, NAATI No CPN8D232M was present throughout. Mr Ni’s sister, Ping Ni, was also present as a support person but did not interfere in any way. At commencement, Mr Ni was asked how he preferred to use the interpreter; he said that he preferred to use the interpreter throughout. In the event, he used the interpreter almost all the time, although he appeared to understand some instructions and spontaneously spoke some English at times.
History
The Medical Assessor went through the history detailed by Medical Assessor Wallace in his certificate of 12 July 2002, clarifying, correcting or elaborating on this as necessary.
Past medical and social history
Mr Ni confirmed that he had immigrated to Australia from China in 2004. He said that initially he had worked for a while as a salesperson, but later became a full time carer for his mother when she became sick. At the time of the accident, he had been living with his wife, his mother and three children in Harris Park. At the time of the accident, he had been acting as a carer for his mother and receiving related benefits.
Mr Ni went on to say that he was currently separated from his wife and was living in an apartment with his mother and his eldest son, aged 13. He said he was currently receiving a Centrelink parenting payment and not working. On questioning, he denied any previous symptoms or medical problems with his back, shoulders or lower limbs. He denied being involved in any previous motor vehicle accidents.
History of the motor accident
Mr Ni confirmed that while he was on his pushbike, he was hit by a car emerging from the driveway of an apartment block. He explained he had been stationary next to the entrance to the carpark. A car accelerated up the driveway and hit him on the left side. He said his bicycle ended up under the front wheel of the car and was severely damaged. He said whilst he was thrown onto the nearby grass verge, he could not describe his movements in detail. His bicycle helmet had been cracked: he would have been killed if he had not been wearing a helmet.
History of symptoms and treatment following the accident
Mr Ni said he was unable to stand up immediately after the accident and continued to lie on the grass verge. He said that the driver of the car did not wish to involve the police, but a neighbour called the ambulance service. An ambulance came but no police attended.
Mr Ni was taken by ambulance to Westmead Hospital where he was kept overnight. When asked about what symptoms he recalled from his stay in hospital, he replied “I really can’t tell but my whole body was in pain – I was given a neck brace by the doctor”.
When asked how he had gone home the next day, Mr Ni stated that the hospital wanted to keep him in longer for observation. However, it was during a serious period of the Covid-19 pandemic, and he was worried about his family. Once he was told there were no fractures, he wanted to go home. Mr Ni added that initially hospital staff did not want him to leave earlier because of the stairs that he needed to negotiate at home. Before discharge, he was taught a safe technique for negotiating stairs. He said that he left hospital using two full-length crutches.
On questioning, Mr Ni said that he used crutches to some extent for two or three months. When asked why, he said that he did in fact change from two to one crutch, and mainly used this because of pain on the left side of his body. He also mentioned low back pain with lower limb radiation and numbness.
He had a three month course of physiotherapy. When asked if he had progressed to an exercise program after this, he replied: “the insurance company stopped physiotherapy when I was about to be taught exercises – the physiotherapist had been using machines to ease the pain – I can’t pay myself”.
Details of any relevant injuries or conditions sustained since the accident
Mr Ni confirmed that he had not sustained any subsequent injuries or conditions.
Current symptoms
When asked what his worst current symptoms were, he referred to pain in his left shoulder and low back. He described his symptoms in more detail.
Left shoulder
Mr Ni pointed to the region of the left scapula (rather than the shoulder joint proper). He said that this was worse with changes in the weather or static postures. For relief he uses electric hot packs and a massage chair at his sister’s home.
Right shoulder
Mr Ni said that he had no symptoms in his right shoulder.
Low back
Although Medical Assessor Wallace had recalled a history of constant pain in the lower back, Mr Ni explained further that “actually at the moment it’s alright – not a painful sort of pain”. He went on to describe low back pain with changes of the weather-particularly cold or rainy weather, adding “it’s normally just numbing in my back if I’m sitting or driving too long”. When describing pain, he pointed to the central lumbosacral region. Mr Ni was asked about radiation of low back pain. He described radiation to the left buttock but not elsewhere.
Left hip
Medical Assessor Wallace understood that any left hip symptoms had resolved. Mr Ni confirmed this and said that he now only had pain in the left buttock, which seemed to radiate from the low back.
Left calf
Mr Ni explained “there was a lump or blood clot in my left calf because I was hit on the left side – not any more after massage and Chinese traditional medicine”. He said that apart from the radiating pain to the left buttock, he now just had some minor aching in his knee and ankle.
Current and proposed treatment
Mr Ni said that he uses electric hot packs, and sometimes visits his sister and uses a massage chair there. The only medication described was either Panadol or Nurofen tablets. He said he might take up to two tablets, four to six times a day on some days, but does not take medication every day.
Present activities
As noted above, Mr Ni said that he is currently separated from his wife and is living in a different apartment with his mother and eldest son, aged 13. He is not working and said he was receiving a Centrelink parenting payment. He said he is not able to do much housework; some is done by his wife, who comes to visit, and some by his mother. He said previously he did some cleaning when living with the whole family. He also said he previously did some cooking but no longer does so, and they rely on takeaway food. When asked why he was not cooking for the family he said it was “mainly because of discomfort when cooking”.
Mr Ni does drive short distances and sometimes drives his 13-year-old son about 10 minutes to his school. When shopping, he takes his son and explained that he only does a small amount at a time. On questioning, Mr Ni said that he does do some walking.
Although Mr Ni smiled at times, he gave the impression of being depressed – on questioning he said that he definitely was depressed. He described poor sleep – this is disturbed by pain.
Physical examination
Mr Ni walked into the examination room slowly but without a limp. He presented as a generally healthy-looking but deconditioned short man. He had short dark hair and was cleanshaven. He wore a long-sleeved shirt, singlet and trousers. He was noted to be wearing a neoprene brace around his waist with elastic shoulder straps. Height was 158 cm and weight 67 kg, giving a BMI of 27 (slightly above the healthy weight range).
As far as could be ascertained, noting the use of the interpreter, he gave his history and answered questions in a straightforward manner. He was cooperative throughout. He smiled at times but did appear to be somewhat depressed. He was able to sit during the interview. He was able to climb on and off the examination couch without any particular difficulty but looked very slow and awkward when rolling over between the supine and prone positions.
Cervical spine
During examination of the neck, Mr Ni was asked if he had any neck pain and he replied “no, just here”, pointing to the region of the left trapezius muscle. There was no tenderness to palpation over the cervical spine. The right trapezius muscle was soft and non-tender, but the left trapezius was visibly prominent, tense to palpation and tender. Flexion and extension were both two-thirds of normal at 30 degrees. Rotation was two-thirds of normal at 50 degrees bilaterally – on most repetitions it was symmetrical, although initially rotation was better to the left than to the right. Lateral flexion was half of normal at 20 degrees left bilaterally.
Thus, the only abnormal sign in the head and neck region was moderate symmetrical restriction of neck movements with a tense, tender left trapezius muscle.
Upper limbs
The hands were very soft and clean with no callouses at all, consistent with very limited recent physical use. Grip strength was normal bilaterally. Mr Ni said that he was right handed.
Both upper limbs were neurologically normal with no signs of radiculopathy. Biceps, triceps and brachioradialis reflexes were normal and symmetrical, power was normal and symmetrical bilaterally, and light touch sensation was preserved in both upper limbs. The right (dominant) upper arm measured 31 cm and the left 30cm, the right forearm 26.5cm and the left 26cm. This difference is consistent with right-sided dominance.
The right shoulder was clinically normal with no tenderness and an essentially full painless range of active movement (AROM) as tabulated below.
In the left shoulder, abnormalities were related to the left trapezius muscle. This was visibly prominent, tense and tender to palpation as noted above. Because of this, the left shoulder girdle was held elevated compared with the right. However, there was no tenderness around the left glenohumeral joint. There was moderate restriction of AROM in the left shoulder, with complaint of pain in the left trapezius muscle at the limits. There was no complaint of glenohumeral pain and impingement signs were negative bilaterally.
Right Left Flexion 170° 130° Extension 50° 30° Abduction 170° 120° Adduction 50° 30° External rotation 90° 80° Internal rotation 60° 60°
Lumbar spine (lumbosacral)
As noted above, when lying supine on the couch and asked to roll over to the prone position, Mr Ni appeared to struggle and exclaimed to some extent. On gentle palpation he was moderately tender over the lower lumbosacral spine, in the midline and to the left side. There was also tenderness to palpation over the left sacroiliac joint (SIJ), but not over the right. There was some guarding/tension of the left lumbar paraspinal movements. When Mr Ni stood alternately on one foot and then the other, the right-sided muscles relaxed in the normal manner when he balanced on the right foot. However, when he balanced on his left foot, the left lumbar paraspinal muscles did not relax fully.
AROM of the lumbar spine was measured with Mr Ni standing with knees straight. All movements were moderately restricted: he could flex with fingertips to just below the knees, with a quite limited 3.5 cm expansion over a measured 15 cm lumbar segment (the normal lower limb for this Holmes-McRae movement is 5 cm). On flexion he described left lumbosacral pain. Lumbar extension was two-thirds of normal at 20 degrees, accompanied by low back pain. Lateral flexion was two-thirds of normal to the right at 20 degrees, and only one-third of normal to the left at 10 degrees.
Noting tenderness over the right sacroiliac joint on palpation Medical Assessor Couch performed Patrick’s provocation test for SIJ (sacroiliac joint) pain. This was positive on the right but negative on the left, suggesting that at least some of his described low back pain was coming from the SIJ.
Lower limbs
Both lower limbs were normal to inspection. Neither calf was tender to palpation and there were no palpable lumps or other abnormalities. Measured 10 cm proximal to the patella, the right thigh measured 44 cm in circumference, the left 43.5 cm. The right calf measured 37.5 cm and the left 36.5 cm. This asymmetry is consistent with right side dominance.
Both lower limbs were neurologically normal with normal and symmetrical knee jerks and ankle jerks and normal plantar responses bilaterally. Sensation to light touch was normal in both lower limbs and power of extensor hallucis longus (L5 nerve root) and ankle eversion (S1 nerve root) was normal bilaterally. Straight-leg-raising was 60 degrees on the right and slightly more restricted at 50 degrees on the left, with reproduction of pain in the left lower back/SIJ region, but no lower limb symptoms to suggest nerve root tension.
AROM of both hips was measured as tabulated:
Right Left Flexion 120° 100° Extension 10° 10° Abduction 30° 20° Adduction 30° 30° Internal rotation 30° 30° External rotation 40° 40°
Mr Ni walked slowly but without a limp. He could take a few steps with weight firstly on his forefeet and heels off the floor, and then weight on his heels with forefeet of the floor, although he did not rise up very far. He could do a full squat and recover without needing hand support. When asked to perform a tandem walk (walking heel to toe in a straight line), he was able to perform this manoeuvre, but he did so slowly.
PANEL’S FINDINGS
Mr Ni presents as a 45-year-old man who was knocked off his pushbike at relatively low speed by a car more than two years earlier.
He was briefly hospitalised, no fractures or other serious injuries were diagnosed, but he was apparently ambulating with difficulty (particularly on stairs) and using crutches for some time after leaving hospital.
He has received some conservative management including physiotherapy. He continues to take simple analgesics. He describes persistent pain related to the left trapezius muscle/shoulder girdle and low back/left sacroiliac joint. There is no evidence of specific injury to the left hip (as opposed to symptoms) and any initial injury to the left calf has resolved. There has been no injury to the left shoulder.
The Panel finds Mr Ni sustained a soft tissue injury to the left shoulder region with persisting pain, tenderness and guarding in left trapezius muscle caused by the accident. The Panel did not find any evidence of injury to the shoulder joint proper or to the rotator cuff. In the absence of evidence of an injury to nerves or a completed or partial rupture of tendons, ligaments, menisci or cartilage the Panel finds the injury to the left shoulder is a soft tissue injury.
The Panel finds Mr Ni sustained a soft tissue injury of the lumbar spine and/or the left sacroiliac joint caused by the accident. There was no evidence of radiculopathy in accordance with cl 5.8 of the Guidelines and the Panel finds the injury to the lumbar spine to be a soft issue injury.
The Panel finds Mr Ni sustained a soft tissue injury of the right shoulder caused by the accident having regard to the report of Ms Wojciechowska of 26 February 2021 and the history provided by Mr Ni in his statement dated 12 December 2021. However, having regard to the subsequent lack of complaint including at the time of the examination by Medical Assessor Couch the Panel finds the soft tissue injury to the right shoulder was minor and has now resolved.
The Panel finds Mr Ni sustained a soft issue injury to the left hip caused by the accident. However, the Panel is satisfied any soft tissue injury was minor and having regard to the history reported by Medical Assessor Couch that any symptoms had resolves concludes that the soft tissue injury to the left hip has now resolved.
The Panel finds Mr Ni sustained a soft tissue injury to the left leg caused by the accident. Tenderness and swelling of the left leg was reported by Dr Grant following the accident, by Ms Wojciechowska, by Moses Chu and by Dr Dias. Medical Assessor Couch reported the only sequalae was some minor aching in the left knee and ankle. The Panel finds any soft tissue injury to the left leg has largely resolved.
The Panel notes that there appear to have been quite severe psychosocial sequelae to his accident, but these do not affect its determinations.
The Panel determines that the following injuries caused by the motor accident are threshold injuries:
· soft tissue injury to the left shoulder;
· soft tissue injury to the lumbar spine;
· soft tissue injury to the right shoulder;
· soft tissue injury to the left hip, and
· soft tissue injury to the left leg.
TREATMENT DISPUTE
Treatment related to the injury resulting from the accident
The treatment dispute relates to past remedial massage sessions, future remedial massage sessions, past Chinese herbal remedies and future Chinese herbal remedies.
In AAI Limited v Phillips[36] Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in
s 58(1) of the MAC Act.[36] AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.
Davies J found the motor accident need only be a material contribution to the need for treatment and he further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.
The Panel is satisfied that the accident has made a material contribution to the need for past and future treatment where the claimant’s attendance on remedial massage and use of Chinese herbal remedies have only arisen as a result of the injuries caused by the accident. However, that does not mean the Panel is satisfied the treatment in dispute is reasonable and necessary in the circumstances.
Is the treatment reasonable and necessary in the circumstances
In Diab v NRMA Ltd[37] at [88] the following factors were found to be relevant to, but not determinative of reasonableness in the workers compensation scheme:
a. the appropriateness of the treatment in dispute;
b. the availability of alternative treatment;
c. the cost effectiveness of the treatment;
d. the actual or potential effectiveness of the treatment, and
e. the acceptance by medical experts of the appropriateness of the treatment.
[37] [2014] NSWWCCPD 2.
In relation to the remedial massage treatment the Panel finds the past remedial massage to be reasonable and necessary in the circumstances where Mr Ni underwent remedial massage as recommended by Dr Grant in his initial report to the insurer dated 14 April 2021 and where it seems to have been effective because the claimant’s left leg condition has largely resolved.
In relation to future remedial massage the Panel does not consider the treatment to be appropriate in the circumstances. The Panel notes remedial massage is a passive treatment and only active physical treatment is likely to have any long term benefit in ameliorating the effect of Mr Ni’s soft tissue injuries.
The Panel notes the availability of alternative treatment such as physiotherapy, exercise physiology or supervised exercise are equally as cost effective as remedial massage, they are active treatments and more likely to be beneficial in assisting Mr Ni in his recovery from his soft tissue injuries.
The Panel finds that Chinese herbal treatment may be of limited value in the acute phase of an injury. Whilst Chinese herbal treatment is commonly used in China there is no medically accepted peer reviewed evidence to show that the use of Chinese herbal remedies is an effective treatment in the long term. The Panel does not accept the recommendation contained in the Certificate of Capacity of Dr Grant dated 3 July 2021 and is of the view the use of Chinese herbal remedies is unlikely to assist in Mr Ni’s recovery.
Indeed, the Panel notes the dispute in relation to Chinese herbal remedies and remedial massage is limited to treatment of the claimant’s left leg and the Panel has found the soft tissue injury to the claimant’s left leg has largely resolved. In these circumstances the Panel is not satisfied that the claimant requires any further treatment of the left leg.
Whilst the soft tissue injury to the left leg has resolved the Panel finds that recovery was assisted by the past remedial massage but is of the view the use of Chinese herbal remedies between April and July 2021 were merely incidental to that recovery.
The Panel finds the following treatments relate to the injury caused by the accident:
a. up to 20 past remedial massage sessions, from the time of the accident to the time of the Commission’s assessment for treatment of the claimant’s leg;
b. Chinese herbal remedies as prescribed by Mr Y F Zhang, between April and July 2021, for treatment of the claimant’s leg;
c. future remedial massage sessions (at any frequency) from the time of the Commission’s assessment and ongoing for the remainder of the claimant’s life expectancy, and
d. future Chinese herbal remedies as prescribed by Mr Y F Zhang, from
1 July 2021 and ongoing for the remainder of the claimant’s life expectancy, for treatment of the claimant’s leg.The Panel finds the following treatment is reasonable and necessary in the circumstances:
(a) up to 20 past remedial massage sessions, from the time of the accident to the time of the Commission’s assessment, for treatment of the claimant’s leg.
The Panel finds the following treatment is not reasonable and necessary in the circumstances:
(a) Chinese herbal remedies as prescribed by Mr Y F Zhang, between April and July 2021, for treatment of the claimant’s leg;
(b) future remedial massage sessions (at any frequency) from the time of the Commission’s assessment and ongoing for the remainder of the claimant’s life expectancy, and
(c) future Chinese herbal remedies as prescribed by Mr Y F Zhang, from the time of the Commission’s assessment and ongoing for the remainder of the claimant’s life expectancy, for treatment of the claimant’s leg.
0
3
0