Park v Allianz Australia Insurance Limited
[2024] NSWPICMP 481
•18 July 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Park v Allianz Australia Insurance Limited [2024] NSWPICMP 481 |
CLAIMANT: | Choongsung Park |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Mohammed Assem |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 18 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whole person impairment (WPI); physical injuries; causation; Medical Assessor certified a 1% WPI due to a partial medial meniscectomy of the left knee; injuries to the cervical spine, lumbar spine, left shoulder, left wrist and left knee found to be caused by the accident; injuries to the right shoulder, right wrist, right knee and left ankle found to be not related; Medical Review Panel noted delayed onset of symptoms and complaint when nature of alleged injuries would have resulted in immediate symptoms; Held – injuries to the cervical spine, lumbar spine and left knee caused by the accident and give rise to 3% WPI; injuries to the left wrist and left shoulder caused by the accident but have resolved; injuries to the right wrist, right shoulder, right knee and left ankle not caused by the accident. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Chan dated 12 October 2023 and issues a new certificate as follows: (a) the following injuries caused by the motor accident give rise to a permanent impairment of 3% which is NOT GREATER THAN 10%: · cervical spine; · lumbar spine, and · left knee. (b) The following injuries caused by the motor accident have resolved and do not result in a permanent impairment: · left wrist, and · left shoulder. (c) The following injuries were NOT caused by the motor accident: · right wrist; · right knee; · right shoulder, and · left ankle. |
STATEMENT OF REASONS
INTRODUCTION
Mr Choonsung Park (the claimant) suffered injury on 26 October 2020 when his vehicle was stationary at a traffic light, and a truck travelling behind scraped the right side of his vehicle.
Mr Park subsequently lodged a claim with the compulsory third party insurer of the truck, Allianz Australia Insurance Limited (the insurer).
The insurer has a liability to pay Mr Park statutory benefits and/or damages in accordance with the provisions of the Motor Accident Injuries Act2017 (MAI Act).
The issue in dispute is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This is a medical dispute for the purposes of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Chan who issued a certificate dated 12 October 2023 certifying that the claimant’s physical injuries caused by the motor accident gave rise to a 1% whole person impairment and is not greater than 10%.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[2]
[2] Section 7.26(10) of the MAI Act.
The President’s delegate referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[7]
[7] Clause 6.2 of the Guidelines.
The Panel convened via teleconference on 4 April 2024. The Panel decided that a re-examination of the claimant was necessary and an examination was arranged to occur on 4 June 2024 accordingly.
ASSESSMENT UNDER REVIEW
After examination and consideration of the material, Medical Assessor Chan found that as a result of the motor accident the claimant suffered soft tissue injuries to the soft tissue injuries to the following:
(a) cervical spine;
(b) lumbar spine;
(c) left shoulder;
(d) left wrist, and
(e) left knee.
He found the following injuries were NOT caused by the motor accident:
(a) right shoulder – supraspinatus and infraspinatus tendinosis, moderate subscapularis tendinopathy, subacromial bursopathy, full thickness tear of supraspinatus tendon, soft tissue injury;
(b) right wrist – soft tissue injury;
(c) right knee – soft tissue injury, and
(d) left ankle – chronic avulsion fracture at medial/talar footprint.
Based on the claimant having a normal range of movement at the examination, and also when examined by Dr Bodel in November 2022, Medical Assessor Chan concluded the left shoulder injury had resolved. Medical Assessor Chan made a similar finding in respect of the left wrist injury.
Medical Assessor Chan notes the absence of recorded complaint in respect of the right shoulder for two weeks after the accident. He concluded that symptoms would have occurred immediately or within a few days of the accident had there been an injury to the right shoulder. A similar finding was made in respect of the right wrist.
Medical Assessor Chan did not accept the claimant suffered an injury to his left ankle as a result of the motor accident noting the absence of complaint in the medical material. It is also noted the claimant fractured his left ankle when he was 17 years old.
Medical Assessor Chan reports his examination did not reveal any neurological deficit and no signs of radiculopathy of the cervical or lumbar spines.
The claimant advised Medical Assessor Chan that he did not have any complaints in respect of his right knee and did not injure his right knee in the motor accident.
In assessing whole person impairment, Medical Assessor Chan found a 1% whole person impairment in respect of the left knee, owing to a partial medial meniscectomy (Table 64 page 85 of AMA 4).
SUBMISSIONS
Claimant’s submissions dated 2 February 2023
These are the submissions lodged in support of the original medical dispute as to whole person impairment.
The submissions note the circumstances of the motor accident and refer to the medical treatment received thereafter. It is submitted the claimant has suffered significant injuries that exceed 10% whole person impairment. The opinion of Dr Bodel is relied upon who found an 18% whole person impairment.
Claimant’s submissions dated 15 December 2023
The claimant submits that Medical Assessor Chan’s certificate includes an error in finding that the left shoulder injury and left ankle injury were not caused by the motor accident.
It is additionally submitted that Medical Assessor Chan’s determination as to whole person impairment of the cervical and lumbar spine is “demonstrably flawed, illogical and incorrect”.
It is submitted that Medical Assessor Chan noting at page 15 of his reasons that the claimant “could have aggravated the osteoarthritis and degenerative changes in the left ankle joint” is contradictory to his finding that the claimant did not injure his left ankle as a result of the accident. The claimant also notes the finding of Dr Negrine who concluded that the left ankle injury seems to have been aggravated by the motor accident.
In respect of the right shoulder injury, the claimant submits that the complaint to Dr Banik 15 days after the accident is a short period of time and well within the accepted time period upon which an injury would be accepted as causally related.
The submissions assert that the Medical Assessor’s findings that the claimant could not have suffered a whiplash injury because the accident was not a “rear-end” accident is “entirely illogical.” It is suggested that a whiplash injury is more serious than a soft tissue injury. It is submitted that the significant pathology demonstrated on the MRI is simply not dealt with by the Medical Assessor.
It is noted that the Medical Assessor found no radiculopathy, however noted that the claimant complained of pins and needles in his hands. It is submitted that if the correct injury findings had been made it would have resulted in a significantly higher whole person impairment finding.
Claimant submissions dated 29 January 2024
These submissions confirm that the review application is not withdrawn and that causation is a “real issue” in the matter.
It is stated that “the mere fact that the client’s psychiatric injuries have been determined at over 10% does not negate the importance of the subject Review Application with respect of the claimant’s physical injuries in light of the ongoing issues between the parties…”
Insurer submissions dated 24 February 2023
The insurer notes treating doctors and medico-legal doctors have taken an incorrect history in respect of the mechanisms of the motor accident. They refer to a rear impact as opposed to an impact to the side of the claimant’s vehicle.
In respect of the lumbar spine the insurer notes no reference to a lumbar spine injury in the Concord Hospital notes. The insurer then refers to the SPECT bone scan conducted at the request of Dr Pope. It is submitted that the evidence does not support an assessable impairment of the lumbar spine.
The insurer refutes the causation of the right shoulder. The insurer refers to the dynamics of the accident and refutes the suggestion that the claimant’s vehicle was struck forcefully from behind. The insurer notes the absence of right shoulder complaint recorded in the hospital notes. In addition, the records of Dr Banik note the first reference to right shoulder to be 9 November 2020.
The insurer notes that Dr Popoff’s opinion is based on an incorrect assumption that the claimant was struck from behind in the accident.
The insurer concedes the claimant made initial complaint related to the left shoulder, however, the injury has subsequently resolved noting the absence of ongoing complaints of pain, disability or any treatment in respect of the left shoulder.
The insurer refutes the causation of the left wrist injury. Again, the insurer notes the incorrect history in respect of the mechanism of the motor accident. In addition, the insurer notes there being no initial complaint of left wrist symptoms in the hospital notes.
Similar submissions are made in respect of the right wrist. It is also observed that the claimant’s own medicolegal evidence notes there is no assessable impairment of the right wrist injury.
In respect of the left ankle the insurer refutes causation, noting a pre-existing injury. The insurer again refers to the incorrect history of the mechanism of the accident and also notes the absence of initial complaint recorded in the hospital notes. In addition, there is no mention of this body part in the application for personal injury benefits.
The insurer notes a history of pre-existing injury to the left knee. The insurer concedes complaints in respect of the left knee after the accident, however, notes that Dr Nazha reported a good outcome as a consequence of the operation with Dr Popoff. The insurer submits that any injury has now resolved.
The insurer refutes the causation of the right knee injury noting the absence of complaint at the hospital, in the application for personal injury benefits or at the initial attendance on Dr Banik. In addition, Dr Bodel did not reference right knee injury.
The insurer notes there is no evidence to indicate an assessable impairment as a result of scarring arising from the accident.
Insurer submissions dated 10 January 2024
The insurer refutes the claimant’s suggestion that Medical Assessor Chan’s reasons in respect of causation were illogical, confusing and incorrect. The insurer points to various aspects of the Medical Assessor’s reasons that, in the insurer’s submission, correctly set out the reasoning in respect of causation findings.
The insurer submits that the fact that the claimant is not satisfied with Medical Assessor Chan’s findings is not a ground for review. The insurer rejects the suggestion that the certificate and reasons contain a “material error”.
Insurer’s submissions dated 2 February 2024
The insurer notes the claimant has been assessed by Medical Assessor Shen who provided a certificate determining that the claimant’s psychiatric injury caused by the motor accident gives rise to a 20% whole person impairment.
The insurer submits that the claimant’s review application of Medical Assessor Chan’s certificate ought to be assessed on its merits.
DOCUMENTATION
Application for personal injury benefits dated 9 November 2020
The form notes the motor accident involved the claimant stationary at an intersection when the insured truck collided with the left sided rear passenger door of the claimant’s vehicle.
Injuries are listed as whiplash and musculoligamentous injuries to the: neck, right shoulder, left shoulder, left wrist and lower back in addition to psychological injury.
Concord Repatriation General Hospital
The discharge referral documents the claimant attending on 26 October 2020 and discharged on the same day. Left shoulder and knee pain is recorded, noting the claimant was able to self extricate, walk and present to emergency. On examination, there were no concerns regarding a cervical spine injury. Soft tissue tenderness was palpated over the left posterior shoulder, and left lateral knee. He was discharged home and told to take pain medications. Noted that if pain in the shoulder and knee does not improve he is to see his general practitioner (GP).
Strathfield Medical Centre – Dr Banik
The claimant attended upon Dr Banik after the motor accident on 30 October 2020 (four days after the accident). The notes record immediate pain to the left knee, shoulder and hand. He then started feeling pain in the neck, lower back, hand, knee and shoulder.
The claimant is noted to have been taking over the counter pain medications but was not feeling better. He had worsening anxiety. On examination, the claimant was noted to have pain in the lower back, neck and left shoulder and left knee. The left scapular region was noted as painful. Occasional paraesthesia was noted in the left hand.
Dr Banik lists injuries as whiplash, musculoligamentous injury to the neck, left shoulder, lower back, left wrist and left knee.
On 9 November 2020 Dr Banik records the claimant having issues with his right shoulder, neck, lower back, right “waist” (presumably wrist), left shoulder and left knee. Pain levels were noted as slightly improved.
On 16 November 2020 the claimant was noted to have problem with his lower back, neck pain and left knee pain.
On 24 November 2020 the notes state the claimant was not feeling better had had general body pain, neck, left knee and lower back, was attending physiotherapy and was waiting to have an MRI scan.
On 2 December 2020 right shoulder pain is mentioned in addition to left knee pain, left ankle pain and left shoulder pain. The claimant was noted to be worried about the pain and his shoulder movement had pain on certain movement.
Medico legal report of Dr Bodel dated 1 November 2022
Dr Bodel takes a history of the claimant’s vehicle being hit from behind, hitting the back left corner of the vehicle and then down the whole of the passenger side of the vehicle, smashing all of the windows as it went by.
Dr Bodel records: “…once the generalised pain settled, he was able to localise his symptoms to the neck, the right shoulder both wrists, the lower back, the left knee and the left ankle. The wrists have resolved but all other areas are still causing pain.”
Dr Bodel found a restricted range of shoulder movement on the right side. He found impingement in the right shoulder but no instability.
He found no restriction of elbow, wrist or hand movements with a normal grip strength. No abnormalities were detected in the upper limbs.
In the lumbar spine tenderness on palpation was found with guarding on the left side. Backache present when reaching forward in flexion to the knees, and also on extension with restricted range of lateral bending to the right. Straight leg raising was unimpaired.
Prior anterior cruciate ligament (ACL) reconstruction of the left knee (15 years) was noted and a recent arthroscopy with minor scars anteriorly. Full knee flexion on both sides was noted but tenderness over the medial joint line.
Restricted range of movement was noted in the left ankle with generalised swelling when compared to the right. No neurological abnormality was noted in the lower limbs.
Dr Bodel opines that the left ankle injury is longstanding, however, has been aggravated by the motor accident.
Dr Bodel provides a diagnosis of soft tissue injury to the cervical spine and an aggravation of some underlying degenerative changes in that region. In addition, Dr Bodel found aggravation to degenerative discs in the lumbar spine. Dr Bodel found a rotator cuff injury caused by the motor accident the right shoulder. In respect of the left knee, Dr Bodel found a partial thickness tear of the posterior horn of the medial meniscus and he noted the previous ACL reconstruction.
Dr Bodel found an 18% whole person impairment in total comprised of the following:
(a) cervical spine – Diagnostic Related Estimates (DRE) II – asymmetry of movement and guarding but no clinical radiculopathy – 5%;
(b) right upper extremity – asymmetry of movement and guarding but no clinical radiculopathy – 6%;
(c) lumbar spine – DRE II – asymmetry of movement and guarding but no clinical radiculopathy – 5%, and
(d) left lower extremity – 4%.
RE-EXAMINATION
Mr Park was examined by Medical Assessor Assem at the Commission Medical Suites on 4 June 2024. Ms Seungmee Yun CPN5IS77W, official Korean speaking interpreter was present for the duration of the assessment.
Pre-accident medical history and relevant personal details
Mr Park is a 40-year-old right hand dominant man who completed his high school education in Korea and has worked as a tiler since graduating. He has no other formal education or skills in different fields. Prior to relocating to Australia, he sustained a fracture to his left ankle at the age of 17, which was treated with immobilization in a plaster cast for three months. Additionally, he underwent reconstruction of the left ACL in Korea.
He immigrated to Australia in 2013 and continued working as a full-time as a tiler, averaging over 32 hours per week. After the motor vehicle accident on 26 October 2020, he enrolled in a Diploma of Program Management course at Australia Prime Education and Training, which he attended from 9 May 2022 to 5 November 2022. Due to injuries sustained in the accident, Mr Park has not been able to return to work as a tiler.
History of symptoms and treatment following the motor accident
On 6 October 2020, Mr Choongsung Park was the sole occupant of a Jeep stationary at a traffic light on Henry Parry Drive, when a truck travelling behind lost control, scraping the right side of his Jeep and breaking the glass window of the rear passenger door.
Mr Park recalled his left foot was on the foot brake at the time of the crash, and his left knee hit the dashboard. His Jeep did not collide into the cars in front of it. The airbags did not deploy. The police attended the accident scene, and his car was towed away.
Mr Park described feeling a sudden jerk during the accident and being in shock for a few minutes. He noted symptoms in his left knee and suspected that his right shoulder might have been injured from the seatbelt restraint. He insists that his right shoulder was injured and not the left. He added that he had surgery on his right shoulder. He also reported constant pain in his neck and lower back. A work colleague traveling in another vehicle gave him a lift home that afternoon.
That evening, Mr Park presented himself at Concord Repatriation General Hospital (CRGH). He complained of left shoulder and left knee pain and provided a history of the motor vehicle accident in which his vehicle was scraped on the passenger side. There was no concern regarding his cervical spine. The medical staff noted soft tissue tenderness over the left posterior shoulder and left lateral knee but found no evidence of fractures. No imaging was performed at the hospital. Mr Park was discharged with instructions to take paracetamol for pain relief and to seek further treatment if his symptoms did not improve. He later explained that the pain was not severe on the day of the accident, but it increased in intensity the following morning.
History of symptoms and treatment following the motor accident
Mr Park attended his GP, Dr Banik, on 30 October 2020, where he reported pain in the neck, left shoulder, left scapula, left wrist, lumbar area, and left knee. When asked why he didn’t seek medical attention earlier, he stated that he asked people what to do, which caused the delay.
During a follow-up visit on 9 November 2020, Mr Park reported additional pain in the right shoulder and right wrist.
An MRI on 11 December 2020 showed small central disc protrusion at the C4/5 level and mild degenerative changes at C3/4 to C6/7 discs without nerve root impingement. In the lumbar spine there was mild disc degeneration at L4/5 with no impingement of the exiting nerve root and no acute bony injury or facet pathology.
He consulted Dr Pope, neurosurgeon on 17 February 2021 and noted to have a direct impact to his left knee with the dashboard, jarring injury to his right wrist from the steering wheel and pain radiating across his lower back and shoulders. In addition, there is neck pain with bilateral radiation, occasional headaches and radicular like pain in the lateral shoulder and arm with pins and needles involving his wrist. On examination there was tenderness and spasm to the cervicothoracic junction. He showed a normal range of shoulder motion and there were no neurological abnormalities.
A whole body scan with Spect CT on 27 April 2021 revealed mild arthritic changes at the SI joint (left and right) and minor facet joint arthropathy in the cervical and lumbar spine. Mild-to-moderate arthritic changes with mild inflammation were noted in the left ankle. Dr Pope recommended against spine surgery and advised Mr Park to see Dr Nazha, a pain specialist, for pain management.
He consulted Dr Popoff on 27 April 2021, reporting that both arms were on the steering wheel, resulting in a bilateral axial loading injury to both shoulders, immediate pain, and impact injuries to the left knee and ankle. An MRI arthrogram of the right shoulder on 11 May 2021 revealed a superior labral tear with extension into the anterior labrum, contributing to multidirectional instability. On 30 September 2021, Dr Popoff proceeded to perform a right shoulder arthroscopic Superior Labrum, Anterior to Posterior (SLAP) repair and stabilization performed at Waratah Private Hospital.
An MRI scan of his left knee on 6 February 2021 showed a tear to the posterior horn of the medial meniscus. On 14 April 2022, he underwent left knee arthroscopic partial medial meniscectomy.
He consulted Dr Negrine on 21 October 2022. Dr Negrine believed that Mr Park’s ankle had not been normal for many years but was aggravated by the accident. The MRI of the left ankle showed impingement spurs on the distal tibia and proximal talus with some chondral damage and insufficiency at the anterior inferior tibiofibular ligament. Lateral ligaments were clinically stable, but serious dorsiflexion was limited compared to the opposite side. Dr Negrine recommended continued physiotherapy and noted the need for blood tests to check for possible gout or musculo-ligamentous issues.
He consulted Dr Nazha, pain specialist on 17 November 2022. He reported a good outcome to his right shoulder and left knee operations. His primary concern was left ankle and lower back pain. Dr Nazha recommended diagnostic lateral branch and medial branch injections to help ascertain likely contributors to Mr Park's chronic lumbar back pain. If successful, this would determine if he was a candidate for radiofrequency ablation or potentially platelet-rich plasma (PRP) injection.
Current symptoms
Mr Park reports experiencing intermittent neck discomfort and stiffness. He occasionally feels a pins-and-needles sensation in his hands, which subsides after massaging them. Regarding his right shoulder, he experiences intermittent discomfort worse in colder weather conditions. His left shoulder was normal. He has intermittent discomfort in his right wrist but not the left wrist.
He describes a constant stabbing pain in the left side of his lower back. This lumbar pain that radiates to involve the entire left leg in a global distribution. In terms of his left knee and ankle, Mr Park mentions morning stiffness. While the knee pain has improved, the stiffness remains bothersome. He continues to experience pain in his left ankle.
He lives alone in a granny flat at Chester Hill. He has difficulty with the heavier household chores. He takes Celebrex for pain and Cymbalta for depression.
Clinical examination
Mr Park appeared well and in no apparent distress. He was cooperative during the examination and presented in a straightforward manner. He was informed at the time of the examination not to engage in any manoeuvre beyond what he could tolerate or which might cause harm or injury.
Cervical spine (cervicothoracic) and head
No tenderness, muscle guarding, or spasm detected in the paravertebral muscles of the cervical spine. Mild tenderness over the upper trapezius. No muscle guarding or spasm.
Cervical movements were symmetrically reduced in flexion and extension to half normal range. This was accompanied by pain behaviour in the form of grimacing and vocalisation. Lateral flexion and rotation were symmetrically reduced to three-quarters of normal range.
His upper limb reflexes were symmetrically reduced. Power, tone and sensation was normal. The circumference of his right upper arm and forearm was 0.5cm greater than the left. Neural tension signs were negative.
Lumbar spine (lumbosacral)
No tenderness, muscle guarding, or spasm detected in the paravertebral muscles of the lumbar spine. Lumbar movements were symmetrically restricted to three-quarters of normal range. He did not have any difficulty climbing on or off the examination couch. Active straight leg raising in supine position was 40 degrees bilaterally. Neural tension signs were negative.
Upper extremity
There were minor arthroscopic surgical scars. No muscle wasting evident. No tenderness or crepitations. Active range of motion was consistent on repeated testing. The range measure with a goniometer was as follows:
Shoulder ROM
Right°
RUEI%
Left°
LUEI%
Normal
Flexion
140
3
180
0
180
Extension
30
1
50
0
50
Abduction
120
3
180
0
180
Adduction
30
1
50
0
50
Internal rotation
80
0
80
0
80
External rotation
60
0
60
0
60
Total RUEI
8
Total LUEI
0
Lower extremity
Left knee:
Surgical scars consistent with past surgery but no swelling. Tenderness in the patellofemoral compartment with coarse crepitations on the left but not the right. The patellofemoral grind was positive. Full knee flexion and extension in both knees, achieving 130 degrees of flexion. No instability was detected. He was able to squat three-quarters of normal range.
Left ankle:
Tenderness anteromedially. Pain on stressing the medial ligaments. He demonstrated a normal range of ankle movement in plantarflexion, dorsiflexion, inversion and eversion. There was no instability. He was able to stand on his heels and toes without difficulty.
Consistency of presentation:
There were no significant inconsistencies in his presentation.
SUMMARY AND OPINION
The subject accident occurred in the morning when Mr Park's Jeep was stationary at a traffic light on a wet road. A truck scraped the passenger side of the Jeep, causing extensive damage to the rear quarter panel, rear passenger door, and shattering the rear passenger door glass window, with less damage to the front passenger door.
In the evening, Mr Park was able to walk into the Emergency Department of Concord Repatriation General Hospital (CRGH) with complaints of left shoulder and left knee pain. The discharge referral letter from CRGH indicated no concern for a cervical spine injury and no imaging was performed for his cervical spine or left knee.
Four days after the accident, Mr Park consulted his GP, Dr Banik, with complaints of pain in the neck, left shoulder, left wrist, lumbar spine, and left knee. There were no symptoms in his right shoulder or left ankle at this time.
Nearly two weeks after the accident, Mr Park had a second consultation with Dr Banik, adding complaints of pain in his right shoulder and right wrist.
CAUSATION
Clause 6.6 of the Guidelines sets out the definition of causation 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 informed judgement.
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Cervical spine:
Mr Park reported immediate neck pain after the accident. The cervical spine MRI showed mild disc degeneration and annular fissure but no acute bony injury. The examination did not reveal any neurological deficits or radiculopathy. The impact on the passenger side of the Jeep likely caused a sideways movement, leading to a soft tissue injury to the cervical spine. This is supported by the consistent reports of neck pain in the follow-up consultations with Dr Banik and therefore causally related to the accident.
Lumbar spine:
Mr Park’s back complaints were documented by Dr Banik at the initial consultation on 30 October 2020. His lumbar spine MRI showed mild disc degeneration at L4/5 without significant pathology. The whole body scan indicated mild arthritic changes in the sacroiliac joint, consistent with his complaints of stabbing pain in the left lower back. The positive response to medial and lateral branch injections further supports the diagnosis of soft tissue injury to the lumbar spine, causally related to the accident.
Left shoulder:
Immediate left shoulder pain was reported post-accident. The left shoulder MRI revealed a labral injury and low-grade tendinosis. The consistent reports of shoulder pain and the MRI findings support a diagnosis of soft tissue injury to the left shoulder, causally related to the accident. His left shoulder symptoms have now resolved.
Right shoulder:
There were no immediate symptoms were reported in the right shoulder. Despite Dr Popoff reporting the claimant experiencing immediate pain to the right shoulder this is not supported by the contemporaneous evidence, particularly the hospital records and the notes of Dr Banik. The right shoulder MRI later revealed a SLAP tear and low-grade tendinosis. Given the delayed onset of symptoms and the lack of immediate complaints, the Panel is not satisfied that on the balance of probabilities the right shoulder injury was caused by the accident. Had the motor vehicle accident caused a SLAP tear, the symptoms would have been present immediately after the accident. In this regard, it is noted the left shoulder is mentioned at the hospital and the initial consultation with Dr Banik.
Left wrist:
Immediate left wrist pain was reported after the accident. The left wrist MRI showed mild degenerative changes and a tiny dorsal ganglion, with no acute bony injury. The consistent complaints and MRI findings support a diagnosis of soft tissue injury to the left wrist, causally related to the accident. His left wrist symptoms have now resolved.
Right wrist:
No immediate symptoms were reported in the right wrist. The right wrist MRI later showed mild degenerative changes and a tiny dorsal ganglion, with no acute bony injury. The right wrist is not mentioned in the application for personal injury benefits and there are no complaints recorded in the Hospital notes and the initial consultation with Dr Banik. The Panel is not satisfied on the balance of probabilities that the claimant suffered a right wrist caused by the motor accident.
Left knee:
Immediate left knee pain was reported post-accident. The left knee MRI showed a significant medial meniscus tear, consistent with the reported pain and mechanism of injury. The diagnosis of a soft tissue injury to the left knee is causally related to the accident.
Right knee:
Mr Park did not report any injury to his right knee arising from the motor accident. There is no contemporaneous clinical or radiological evidence included in the records available to the Panel that would support a finding that the right knee was injured as a result of the motor accident. Therefore, the Panel is not satisfied on the balance of probabilities that the motor accident caused an injury to the claimant’s right knee.
Left ankle:
No immediate symptoms were reported in the left ankle. Initial post-accident medical records and consultations with Dr Banik on 30 October 2020, 9 November 2020, 16 November 2020, and 24 November 2020, did not document any complaints regarding the left ankle. The application for personal injury benefits does not include mention of an alleged left ankle injury. The first documented complaint of left ankle pain was made on 2 December 2020. The left ankle MRI showed longstanding osteoarthritic and degenerative changes. The lack of initial complaints and the nature of the MRI findings suggest that the left ankle condition is pre-existing and therefore the Panel is not satisfied on the balance of probabilities that the motor accident caused an injury to the claimant’s left ankle.
CONCLUSION
Based on the contemporaneous medical evidence and the history of the accident, the Panel finds that the following injuries are causally related to the accident:
(a) soft tissue injury to the cervical spine;
(b) soft tissue injury to the lumbar spine;
(c) soft tissue injury to the left shoulder;
(d) soft tissue injury to the left wrist, and
(e) soft tissue injury to the left knee.
The Panel finds that the injuries to the right shoulder, right wrist, right knee and left ankle are not causally related to the accident.
WHOLE PERSON IMPAIRMENT
Cervical spine
On examination, there was no evidence of muscle guarding in the paravertebral soft tissues of the cervical spine. No dysmetria was observed, and there were no non-verifiable radicular complaints. His condition is consistent with DRE Cervicothoracic Category I (AMA 4, 3/104), which corresponds to a 0% whole person impairment.
Lumbar spine
Similarly, there was no muscle guarding in the paravertebral soft tissues of the lumbar spine. No dysmetria was present, and there were no non-verifiable radicular complaints. Clinical evaluation did not reveal any signs that met the criteria for radiculopathy of the lumbar spine. His condition is consistent with DRE Lumbosacral Category I (AMA 4, Table 72, p 110), which corresponds to a 0% whole person impairment.
Left knee
Using the range of motion method for assessing permanent impairment, with full extension and normal full flexion in the left knee, the impairment rating would be 0% whole person impairment (AMA 4, Table 41, p 78). Alternatively, applying the Diagnosis-Based Estimates method, a partial medial meniscectomy gives 2% lower extremity impairment (AMA 4, Table 64, pages 3-85). In addition, he has patellofemoral pain and crepitations after a direct injury giving 5% lower extremity impairment (AMA 4, Table 62, pages 3-83). The combined lower extremity impairment is 7% which converts to 3% whole person impairment.
The total whole person impairment is 3%.
Injuries to the left wrist and left shoulder have resolved and therefore no assessable permanent impairment exists.
The certificate of Medical Assessor Chan dated 12 October 2023 is revoked and a new certificate issued.
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