QBE Insurance (Australia) Limited v Dang

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Dang [2023] NSWPICMP 356
CLAIMANT:	James Andrew Dang
INSURER:	QBE Insurance (Australia) Limited
REVIEW Panel
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Mohammed Assem
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	25 July 2023
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident on 11 May 2021; assessment of threshold injury; no dispute injury to lumbar spine, cervical spine, thoracic spine and right leg were threshold injuries; parties agreed dispute limited to left shoulder injury; dispute as to causation of left shoulder injury; Medical Assessor (MA) Woo found partial thickness tendon tear of the left shoulder caused by the accident and was a non-threshold injury; Held – test as to causation as per Briggs v IAG Limited trading as NRMA Insurance; on balance of probabilities Panel not satisfied accident caused injury to left shoulder; no evidence of any impact to left shoulder; no contemporaneous evidence of left shoulder injury; finding of MRI conducted more than a year post accident of tear of left supraspinatus tendon inconsistent with reported absence of immediate pain or dysfunction in left shoulder; unlike acute tears chronic supraspinatus tears can occur insidiously over months or years often associated with age-related degenerative changes; on balance of probabilities no direct causal relationship between left shoulder injury and the accident; Certificate of MA revoked; the claimant did not sustain injury to the left shoulder caused by the accident.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Assessment of Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate of Medical Assessor Alexander Woo dated 3 July 2022 and confirms the agreement between the parties that the following constitute threshold injuries: · cervical spine soft tissue injury: · thoracic spine soft tissue injury: · lumbar spine soft tissue injury, and · right leg soft tissue injury. The Panel determines the claimant did not sustain an injury to the left shoulder caused by the motor accident.

STATEMENT OF REASONS

INTRODUCTION

On 11 May 2021 Mr James Andrew Dang (the claimant) sustained injury in a motor vehicle accident when a semi-trailer side swiped his vehicle while changing lanes (the accident).
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Dang under the Motor Accident Injuries Act 2017 (MAI Act).
At the date of accident statutory benefits for treatment and care payable under the MAI Act cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.[1]
[1] Section 3.28 of the MAI Act.
Medical Assessor Alexander Woo issued a certificate dated 13 May 2022 in which he certified that the left shoulder partial-thickness tendon tear caused by the accident was not a minor (threshold) injury for the purposes of the MAI Act.
The insurer has sought a review of the certificate of Medical Assessor Woo.

BACKGROUND

Mr Dang is now 60 years of age and was 58 years of age at the time of the accident.
On 17 May 2021 Mr Dang lodged an Application for Personal Injury Benefits in which he described his injuries as “neck, trapexius, lower back, psychological injuries” [sic].
On 1 September 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 4 September 2021.
On 2 September 2021 Mr Dang sought an Internal Review of the minor (threshold) injury decision.
On 16 September 2021 the insurer issued their Internal Review – Certificate of Determination and Statement of Reasons affirming their earlier minor (threshold) injury decision.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the minor (threshold) injury dispute.
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 threshold injury 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.[2]
[2] Section 7.20 of the MAI Act.

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
(b) positive sciatic nerve root tension signs
(c) muscle atrophy and/or decreased limb circumference
(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[3] his Honour Justice Wright stated at [35]:
[3] 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.”

ASSESSMENT UNDER REVIEW

The dispute referred to Medical Assessor Woo was whether the injury is a minor (threshold) injury under the MAI Act. The injuries referred for assessment were the following:
·        injury to the cervical spine;
·        injury to the left shoulder;
·        injury to the lumbar spine,
·        injury to the right leg; and
·        injury to the thoracic spine.
Medical Assessor Woo reported there was no fracture, no verified radiculopathy in the upper and lower limbs related to the cervical and lumbar spine injuries. He was uncertain about the aetiology of the annular tear of the L4/5 disc, concluding it may have been caused by the earlier motor vehicle accident in 2016 or by the accident and recommended a review of any available MRI scans.
Medical Assessor Woo issued a certificate dated 13 May 2022. He concluded the following were minor (threshold) injuries:
·        cervical spine soft tissue injury:
·        thoracic spine soft tissue injury:
·        lumbar spine soft tissue injury, and
·        right leg soft tissue injury
Medical Assessor Woo noted the ultrasound findings of a partial-thickness tendon tear and concluded the injury to the left shoulder was not a minor (threshold) injury.

REVIEW PROCEDURE

The insurer lodged an application for review of the medical assessment of Medical Assessor Woo on 6 June 2022 within 28 days of the date on which the certificate of Medical Assessor Woo was made available to the parties.
On 23 August 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 cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new 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 Personal Injury Commission (the Commission).[4] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[4] 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.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to 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.[6]
[6] 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 solicitor for the insurer uploaded to the portal an indexed bundle of documents paginated from pages 1 to 191 and marked as AD5. The claimant uploaded to the portal an indexed bundle of documents paginated from pages 1 to 368 and marked AD6 (note: pages 369 to 513 do not relate to the claimant and have not been considered by the Panel).
On 20 October 2022 the Panel agreed an examination was required. The medical examination originally scheduled to take place on 21 February 2023 was delayed because Mr Dang underwent surgery on 15 August 2022 and again on 2 February 2023.
The Panel issued a Direction to the parties dated 20 October 2022. Paragraph 9 of that Direction states:
"On or before 10 November 2022 the parties are asked to advise in writing through the portal whether it is conceded injury sustained by the claimant to the cervical spine, to the thoracic spine and to the lumbar spine are all minor (threshold) injuries for the purposes of the Motor Accident Injuries Act, 2017 and that the dispute as to minor injury is limited to the injury to the left shoulder."
On or about 11 November 2022 the insurer contended the threshold injury dispute was limited to the alleged injury of the left shoulder.
On 26 June 2023 the Panel sought a response from the claimant to that direction and on 26 June 2023 the claimant responded, “yes only the left shoulder”.
Having regard to the provisions of s 7.25 of the MAI Act the medical re-examination was, by consent, limited to a review of the left shoulder injury.
On 21 October 2022 the Panel directed the claimant to upload to the portal the following documents:
(a) the clinical records of all treatment providers including all radiological imaging from 1 January 2015 to date, and
(b) records in relation to any claim arising out of the 2016 motor vehicle accident.
On 8 February 2023 the insurer uploaded to the portal records from the claim arising out of the 2016 motor vehicle accident paginated from pages 1 to 221 and marked AD7.
On 5 June 2023 the insurer uploaded to the portal the following additional records which were marked AD10:
·        clinical records of Dellwood Medical Centre as of 6 April 2023;
·        clinical records of Dr Doron Sher as of 6 April 2023, and
·        report of Mr Griffiths of Road Safety Solutions dated 8 May 2023.
The claimant consented to the admission of those medical records. On 20 June 2023 the claimant indicated consent to the inclusion of the report of Mr Griffiths.
On 22 June 2023 the insurer uploaded to the portal a report of Dr Hyde-Page dated 21 June 2023. On 23 June 2023 the claimant consented to the inclusion of that report.
On 28 June 2023 the claimant uploaded to the portal a bundle of medical records pertaining to the 2016 motor vehicle accident in response to the Panel’s direction.
The claimant was medically examined by Medical Assessor Assem on 27 June 2023.
On 17 July 2023 the insurer uploaded to the portal an Application to Admit Late Documents dated 17 July 2023 together with a report of Dr Robin Mitchell dated 12 July 2023 and a letter from Moray & Agnew to State Law Group dated 13 July 2023 seeking consent to the admission of that report.
The Panel does not propose to admit the report of Dr Mitchell where the medical examination has already taken place and where it would be prejudicial to the claimant.

EVIDENCE BEFORE THE REVIEW PANEL

Accident on 6 December 2016 (the 2016 accident)

In the Personal Injury Claim Form dated 29 December 2016 Mr Dang listed injuries sustained as right shoulder, back and both legs although the accompanying medical certificate provided by Dr Vidanalage refers to mechanical bilateral shoulder discomfort.[7]
[7] AD7 p 11.
On 18 January 2017 Dr Jonathon Herald, orthopaedic surgeon reported Mr Dang had pain radiating from his neck to both shoulder blades. He reported his shoulder had full range of motion and negative impingement signs.[8]
[8] AD7 p 134.
Mr Dang was assessed for medico-legal purposes by Dr Uthum Dias. In his report dated 7 December 2017 Dr Dias reported Mr Dang had continued to experience ongoing symptoms of pain, stiffness and discomfort in his neck, lower back and right and left shoulder regions on a daily basis for more than 12 months following the accident.[9] Dr Dias concluded the symptoms of pain, stiffness and discomfort in the right and left shoulder regions were referred pain from his cervical spine condition.
[9] AD7 p 23.
Mr Dang underwent an assessment with Dr Horace Ting, vocational assessor of Injury Assess on 18 October 2018.[10] He reported, inter alia, that his shoulder movements were guarded, and the active ranges of motion were restricted in almost all directions.
[10] AD7 p 34.
On 1 November 2018 exercise physiologist Brian Castro reported inter alia “7/10 constant pain in neck, bilateral shoulders, lower back and bilateral legs”.[11]
[11] AD7 p 198.

Mr Dang provided a statement dated 3 May 2019.[12] He stated following the 2016 accident he had ongoing pain, discomfort and stiffness in his neck which radiated down to his shoulders.
[12] AD7 p 62.

Statement of the claimant dated 28 September 2021

In his statement dated 28 September 2021[13] the claimant disclosed the following pre-accident injuries:
(a)     in 2014 he suffered from an episode of neck and lower back pain which resolved in about three to four months;
(b)     in or about 2015 he had soft tissue injury to his left knee which resolved in about three to four weeks, and
(c)     on 6 December 2016 (the 2016 accident) he was involved in a motor vehicle accident where he sustained injuries to his neck, shoulders and back, with ongoing occasional sporadic back pain managed with over the counter medications. Mr Dang states he was able to play squash, go to the gym, walk and jog freely with minimal pain in his neck, shoulders and back.
[13] AD6 p 51.
Mr Dang described the accident as follows:
“As I was driving, I noticed there was another motor vehicle merging onto the M4 westbound from James Ruse Drive on-ramp. Instead of slowing down to allow that motor vehicle to merge onto the M4, the truck driver of the B-double cut into my lane unsafely. As a result, the B-double truck collided into my motor vehicle from the passenger side, to the front end of my vehicle which pushed my vehicle towards the concrete barrier.
I remembered that my body was thrown sideways and hit the door before being pulled back by my seat belt”.

Photographs

The Panel sighted photographs of the Kenworth semi-trailer registered No. TR 74 HK and the claimant’s vehicle, a Nissan Navarra Utility showing damage to the length of the passenger side of the vehicle.[14]

Treating medical records

[14] AD6 p 19.

Clinical notes of Dellwood Medical Centre

The clinical notes commence on 29 January 2015.
Mr Dang consulted Dr Hung Ma on 11 May 2021 when he reported the accident on his way to work. Dr Ma recorded pain and tenderness on the right side of the neck and trapezius and also right low back pain.[15]
[15] AD5 p 21.
On 12 May 2021 Dr Ma reported right scapula pain. He was provided with analgesic samples and prescribed Panadeine Forte. On 14 May 2021 Dr Ma reported lethargy, poor sleep and upper back pain. On 14 May 2021 Dr Ma referred Mr Dang for physiotherapy treatment. On 18 June 2021 Dr Ma reported “still has body pains, now having PTSD symptoms…”. On 28 June 2021 Dr Ma recorded “low back has been very tight”, on 9 July 2021 he recorded low back pain worsened by the cold” and on 19 July 2021 he recorded “back was bad”. On 4 August 2021 Dr Ma recorded “still having back pain” and noted he was waiting for approval for an MRI recommended by the physiotherapist. On 17 August 2021 Dr Ma reported “degenerative discs in neck and disc bulges in lumbar spine”. On 1 November 2021 Dr Ma reported “been getting dizzy now – stopped driving for now – will do exercises and swimming to get better”. On 2 December 2021 Dr Ma reported “still gets headaches, neck pain, poor sleep, flashbacks”.
In a handwritten response to the insurer on 24 June 2021 Dr Ma described the claimant’s symptoms as “right sided neck pain, right trapezius pain, right low back pain, right scapula pain, poor sleep, PTSD symptoms”.[16] He suggested the expected time for medical recovery was three to six months.
[16] AD5 p 97.
Mr Dang was certified unfit for work until 18 June 2021 when he was certified fit for pre-injury duties.[17] The diagnosis recorded on each Certificate of Capacity is “right neck and trapezius pain and back pain, insomnia” and from 18 June 2021 “PTSD” was also recorded on each certificate. On 9 August 2021 and again on 7 September 2021 Dr Ma certified Mr Dang fit for work 2 days a week with 10 kg lifting/carrying capacity, 30 minutes sitting tolerance, standing as tolerated, 10 kg pushing/pulling/squatting ability and 30-minute driving ability.[18] On 5 October 2021, 1 November 2021, and 2 December 2021 Dr Ma certified the claimant with no current work capacity.[19]
[17] AD5 p 44.
[18] AD5 pp 54 and 60.
[19] AD5 pp 63, 68 and 72.
On 7 January 2022 Dr Ma reported:
“having a lot of pains in his arms
says lifting kettle is hard
back is stiff too
taking celebrex PF, dencorub
tried driving on M4, got panicky.”[20]
[20] AD10 p 24.
On 11 February 2022 Dr Ma reported:
“been having bilateral shoulder pain
EP helping him with this in hydro pool
would like to try diff antidepressant
still getting very tense with drives
pulls over if sees fast car behind him”.[21]
[21] AD10 p 26.
On 22 March 2022 Dr Ma reported “left shoulder sharp pains” and diagnosed left bursitis – subacromial and referred Mr Dang for an ultrasound. The ultrasound showed a partial tear of the supraspinatus tendon and subacromial bursitis.[22]
[22] AD10 p 27.
Mr Dang has been under the care of a clinical psychologist for treatment of his post-traumatic stress disorder. On 4 October 2021 Ms Therese Davies reported Mr Dang had attended six sessions and concluded his symptoms were consistent with a diagnosis of post-traumatic stress disorder.[23] On 2 May 2022 Ms Davies reported Mr Dang had attended 15 sessions and concluded his symptoms were consistent with a diagnosis of post-traumatic stress disorder and major depressive disorder.[24]
[23] AD10 p 189.
[24] AD10 p 218.
On 8 April 2022 Dr Ma referred Mr Dang to Dr Richa Rastogi, psychiatrist regarding “PTSD symptoms”.[25]
[25] AD10 P 96.
On 26 May 2022 Dr Ma referred the claimant to Dr Doron Sher regarding “his left supraspinatus tear post MVA…”.[26]
[26] AD10 p 103.
The claimant has continued to be certified with no current work capacity. From 3 June 2022 the diagnosis recorded on each Certificate of Capacity has been “right neck and trapezius pain and back pain. Insomnia. PTSD. Left shoulder injury”.[27]

[27] AD10 p 105.

Hiu Sin Lau, physiotherapist

Ms Lau provided a report 22 May 2021.[28] She reported following the accident Mr Dang experienced pain in his right cervical spine, right shoulder and right lumbar spine. She reported the pain had worsened over time, with symptoms in the cervical spine radiating down the right posterior thigh and neurological symptoms such as pins and needles and altered sensations bilaterally through his middle finger. She reported restrictions in cervical and lumbar movements.
[28] AD5 p 185.
She diagnosed:
·        cervical spine musculo-ligamentous strains;
·        lumbar spine musculo-ligamentous strains with possible radicular pain. and
·        right shoulder upper traps and biceps tendinopathy.

Dr Eric Lim, general practitioner

Mr Dang consulted Dr Lim on 11 May 2021. In a report dated 5 October 2021 he reported the claimant was experiencing headaches, neck pain radiating down the left shoulder, left arm pain, pins and needles in the left hand, lower back pain radiating down the right leg, numbness in the feet, trouble sleeping, nightmares, flashbacks, nausea, low motivation, depressed, anxious, stressed, low mood, fatigue and poor memory. [29]
[29] AD6 p 57.
Mr Dang consulted Dr Lim on 2 November 2021 when he reported neck pain travelling down to shoulder, lower back pain travelling down to leg and nightmares.[30]
[30] AD6 p 365.

Tam Nguyen, chiropractor

In a report dated 24 August 2021 Mr Nguyen reported Mr Dang attended an initial consultation on 6 July 2021 when he presented with the following symptoms:
·        sharp neck pain with associated headaches;
·         left shoulder pain with associated tingling and numbness down the left arm towards the fingers;
·        mid back stiffness and pain;
·        lower back pain and stiffness - sharp pain, and
·        pins and needles down the right glute and leg.[31]
[31] AD5 p 103.
On assessment Mr Nguyen found decreased range of movement of the cervical, thoracic and lumbar spine, and in the shoulder. He also found “Kemps for nerve root impingement at C6/7 and at L4/5, and L5/S1, positive SLR, positive braggards, positive lumbar compression test, weak rotator cuff muscles, gluteus muscles and trapezius”. Dr Nguyen reported Mr Dang had high levels of pain impacting on his functional capabilities to perform day to day tasks.

Auburn Hospital

On 6 September 2021 Mr Dang attended Auburn Hospital with vertigo.[32] He underwent a CT of the brain which did not disclose any acute intracranial pathology and was discharged home with paracetamol and stemetil.
[32] AD6 p 141.

Dr Andrew Kam

Dr Andrew Kam, neurosurgeon assessed Mr Dang by telehealth on 21 September 2021.[33] He stated Mr Dang described pain in his neck radiating into his arms, affecting his upper extremity and the middle three digits of his right hand. He also described a sense of fatigue in both arms and occasional clumsiness associated with increasing sub-occipital headaches. He reported lower back pain with buttock pain and numbness. He also complained of pins and needles radiating down into his ankle and into his big toe on the right side.
[33] AD5 p 105.
Dr Kam recommended a conservative non-surgical approach for as long as possible.
Mr Dang underwent an ultrasound guided injection of the left subacromial bursa.[34]
[34] AD6 p 361.

Dr Doron Sher

On 8 June 2022 Dr Sher reported Mr Dang attended for treatment (with his GP) on the day of the accident and since that time he had undergone a subacromial injection and extensive physiotherapy.[35] He reported on clinical examination there was a global loss of motion of both shoulders. He reported an MRI scan of the left shoulder showed a full thickness supraspinatus tear and recommended surgical reattachment of the tendon.
[35] AD10 p 231.
The Panel notes in concluding both shoulders were injured at the time of the accident Dr Sher was not in possession of an accurate history.
On 15 August 2022 Mr Dang underwent left shoulder arthroscopic rotator cuff repair, acromioplasty and biceps tenodesis under the care of Dr Sher.[36]
[36] AD10 p 244.
On 2 February 2023 Mr Dang underwent right shoulder arthroscopic rotator cuff repair.[37]

Investigations

[37] AD10 pp 251 and 255.

CT cervical spine, CT lumbar spine 23 January 2017

The report concludes:
“No fracture is demonstrated in the cervical or lumbar spine.
Small disc protrusions are demonstrated at the C5/6, L4/5 and L5/S1 levels. They are only mild and do not cause spinal canal stenosis or nerve root impingement”.[38]
[38] AD7 p 216.

MRI of the cervical spine, 6 February 2017

The report concludes:
“Mild cervical spondylosis but no neural impingement and no traumatic injury”.[39]

MRI of the lumbar spine, 6 February 2017
[39] AD7 p 161.

The report concludes:
“Discovertebral changes of the lower three lumbar levels with annulus tears and disc protrusions and L4/5 and L5/S1.”

MRI of the cervical spine, 4 August 2017

The report concludes:
“Mild cervical spondylosis without neural impingement”.[40]

MRI of the cervical spine, 11 August 2021[41]

[40] AD7 p 286.

[41] AD6 p 17.

The report concludes:
“Multilevel degenerative disc disease.
No distinct bony oedema to suggest a fracture.
There is no evidence of disc protrusion.
C4/5 right and C6/7 bilateral moderate to severe foraminal narrowing.”

MRI of the lumbar spine, 11 August 2021[42]

[42] AD6 p 18.

The report concludes:
“L4/5 diffuse disc bulge/protrusion with a posterior annular tear and possible contact of bilateral descending LS nerve roots. L5/S1 central broad based protrusion without evidence of nerve root impingement.”

Ultrasound left shoulder, 23 March 2022[43]
[43] AD6 p 75.

The report concludes:
“Subacromial bursitis with impingement. Ultrasound guided steroid injection is suggested. Fluid along the biceps tendon sheath. Full thickness partial width tear involving the anterior and mid part of the supraspinatus tendon. Acromioclavicular joint degeneration is seen.”

MRI left shoulder arthrogram, 29 June 2022

The claimant underwent an arthrogram of the left shoulder.[44] The report concludes:
“Supraspinatus rupture with tear extending to the conjoint/anterior infraspinatus tendon manifested as a moderate grade partial-thickness articular surface tear. The other rotator cuff tendons are intact and there is no muscular atrophy.
No labral tear identified. Mild myxoid degeneration of the superior labrum.
Mild-to-moderate degeneration of the ACJ. There is no evidence of active synovitis.”

MRI right shoulder, 17 October 2022[45]
[44] AD6 p 336.
[45] AD10 p 246.

The report concludes:
“•      Partial width full-thickness tear of supraspinatous tendon.
·        Tendinopathy changes and subscapularis.
·        Acromioclavicular degeneration, lateral downsloping of acromion is seen with inferior hooking.
·        Geodes at the humeral head, glenohumeral degeneration.”

Medico-legal reports
Dr Murray Hyde Page, orthopaedic surgeon

Dr Hyde Page provided a report dated 21 June 2023. Mr Dang reported ongoing neck pain and stiffness, continual pain and stiffness in both shoulders and low back pain shooting into the right buttock associated with stiffness.
On examination he recorded the following range of movement of both shoulders:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	100°	150°
Extension	40°	50°
Adduction	30°	40°
Abduction	90°	90°
Internal Rotation	60°	80°
External Rotation	60°	60°

He reported restriction of movement of the cervical spine in all directions by about a quarter. He found no evidence of muscle guarding or dysmetria and no radicular symptoms. He found a normal neurological examination of the upper limbs with normal power, sensation and reflexes.
On examination of the lumbar spine, he found mild stiffness and discomfort only. He reported reasonable full flexion and extension as well as rotation and tilt to the left and right with no evidence of muscle guarding or dysmetria. Mr Dang did not complain of radicular symptoms in the lower limbs, and he had a normal neurological examination of his lower limbs.
Dr Hyde Page noted Mr Dang developed symptoms in his neck and lower back for which he had scans performed and he saw a neurosurgeon in September 2021. He concluded he had ongoing neck and back pain because of the accident.
Dr Hyde Page concluded Mr Dang did not injure his shoulders in the accident. He found the conclusion of Mr Griffiths was supported by the fact that Mr Dang did not display any symptoms in his shoulders until the end of 2021. He did not consider the need for surgery was related to the accident.

Report of Michael Griffiths, Road Safety Solutions

Michael Griffiths, biomedical and mechanical engineer provided a report dated 19 April 2023.[46]
[46] AD10 p 325.
He noted the circumstances of the accident are not controversial, that is, the two vehicles has some sideswipe contact. However, he also stated “the limited extent of the indentation on the claimant’s vehicle is sound physical evidence of the relatively small magnitude of the lateral/sideways energy transfer which occurred between the two vehicles.”
Mr Griffiths concluded:
“It is not physically possible that either his right or his left shoulder had any heavy direct impact with an adjacent part of the vehicle interior in the incident which resulted in the damage seen to the left and right sides of the vehicle’s mudguard flares”.[47]
[47] AD10 p 348.
Mr Griffiths also concluded for the shoulder to receive injury it is necessary for some kind of load to be applied, either externally by direct impact adjacent to the shoulder or by an axial load applied by the upper arm. His conclusion that there was no potential for any direct impact to the shoulder was consistent with the lack of any report of superficial injury by way of bruising or abrasions to the shoulder regions. He noted the loads applied by his upper arm to the shoulder were limited to that provided voluntarily from his grip on the steering wheel.[48]

SUBMISSIONS

[48] AD10 p 373.

Insurer’s submissions

The insurer provided undated submissions in response to the dispute filed by the claimant.[49]
[49] AD5 p 1.
The insurer notes an Allied Health Recovery Request (AHRR) form completed by the treating chiropractor provided a diagnosis of ‘acute whiplash injury to the cervical and lumbar spine’.
The insurer submitted the claimant merely sustained soft tissue injury to the cervical and lumbar spine, noting the claimant has continued to work despite alleged disability and where the radiological evidence does not reveal any acute pathology.
The insurer provided undated submissions in support of the review application and the failure of Medical Assessor Woo to provide adequate reasons for his conclusion particularly having regard to clause 5.6 of the Guidelines.[50]
[50] AD5 p 4.

Claimant’s submissions

The claimant provided undated submissions disputing the insurer’s assertion that Medical Assessor Woo failed to provide adequate reasoning for his finding of non-minor left shoulder injury.

THE MEDICAL EXAMINATION

Mr Dang was examined by Medical Assessor Assem on 27 June 2023 at the Medical Suites, Personal Injury Commission.

Personal details

Mr Dang is 60-year-old right hand dominant man who is originally from Vietnam immigrating to Australia in 1980.
At the time of the accident, he was employed as a manager with MP Rail, which provides maintenance work for the New South Wales rail network.

Past history

Mr Dang stated he had previously experienced neck and back problems which resolved. He denied any previous shoulder complaints. Medical Assessor Assem brought to his attention his involvement in a motor vehicle accident on 6 December 2016. According to the report of Dr Dias, he sustained an injury to his neck, back and both shoulders. Mr Dang maintained he made a full recovery from those injuries, allowing him to resume his sporting activities. He vaguely remembered undergoing some form of imaging for his shoulders, but to his knowledge, no significant problems were identified at that time.
Medical Assessor Assem also noted that on 15 January 2020, Dr Hung Ma reported Mr Dang’s right shoulder hurt after trying push ups. There was no other reference to shoulder complaints documented by Dr Ma prior to the accident.

History of injury

On 11 May 2021, Mr Dang was driving a company vehicle, in a westerly direction on the M4 motorway. Unexpectedly, his vehicle was side swiped on the right by a truck, which pushed his vehicle to the left, resulting in a collision with a concrete barrier. The incident led to minor damage to the passenger side of his vehicle, as evidenced by the photographs. The truck driver, seemingly oblivious to the accident, continued until Mr Dang got his attention by repeatedly flashing his car's lights and honking the horn.
Following the accident, Mr Dang stated he felt no immediate discomfort. He recounted being jostled from left to right during the collision, leading to his right shoulder impacting the side pillar. However, he was unable to identify a specific event during the accident that could have resulted in his subsequent left shoulder issues. After exchanging details with the truck driver, he continued his journey to work. It was only at the end of his work shift that he began to experience neck and back pain, which prompted him to seek medical attention.
On the same day, Dr Ma assessed him and recorded symptoms of pain in his right neck and trapezius muscle, and mild discomfort in the right lower back. On the following day, 12 May 2021, Dr Ma updated the record to include pain in the right scapula. Mr Dang was then required to stay home due to the ongoing COVID-19 pandemic and a company restructuring and has not returned to work since.
When confronted with the lack of contemporary evidence for his left shoulder symptoms, Mr Dang asserted he had no issues with his left shoulder prior to the accident. He also reported his vehicle was later written off for insurance purposes.
AHRR Physiotherapy’s records dated 24 May 2021, confirm an injury to the right shoulder, noting a full range of motion in both shoulders with negative impingement tests. On 28 June 2021, Dr Ma recorded that Mr Dang's lower back had been significantly tense. Despite frequent consultations, there are no references to any shoulder pain until 23 December 2021.

On 6 July 2021, seven weeks post-accident, Mr Dang sought help from a chiropractor, Mr Nguyen, who documented left shoulder pain along with associated tingling and numbness extending down to the fingers of the left arm. Additionally, Mr Dang also reported injuries to his neck, upper back, lower back, and experienced 'pins and needles' sensation down the right gluteal musculature and right leg. However, these findings were contradicted in the records dated 16 July 2021, where an injury to the right shoulder was noted instead.
In March 2022, Mr Dang received a cortisone injection in his left shoulder from Dr Sher, who later performed arthroscopic surgeries on both shoulders, the left shoulder on 15 August 2022 and the right shoulder on 2 February 2023. Following the surgeries, Mr Dang continued to report shoulder pain and stiffness, which was more pronounced in his right shoulder, impeding his ability to sleep on his right side. He rated his right shoulder discomfort as 7-8/10 on the pain scale. To manage his symptoms, he was prescribed Lyrica, Celebrex, and Mobic, and was enrolled in a therapeutic exercise program under the guidance of an exercise physiologist.

Work capacity

Despite his physical issues, Mr Dang was certified fit for pre-injury duties on 18 June 2021, with post-traumatic stress disorder added to his diagnosis. On 9 August 2021 and 7 September 2021, he was certified fit for work two days a week with certain limitations. From 5 October 2021 onwards, he has been certified as having no current work capacity.

Clinical examination

Mr Dang appeared well and in no apparent physical distress. He sat comfortably throughout the interview. He mobilised with a normal gait. His height was 172cm and he weighed 94kg. He was informed at the time of examination not to engage in any manoeuvre beyond what he could tolerate, or which may cause harm or injury.
There were arthroscopic porthole surgical scars in both shoulders. He reported tenderness over his right shoulder but not the left. There was no instability. There were no joint crepitations.
Active range of motion was limited as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	70°	90°
Extension	20°	30°
Adduction	20°	30°
Abduction	70°	100°
Internal Rotation	50°	70°
External Rotation	20°	30°

CONCLUSION

Having regard to the comments of Wright J in Briggs the Panel considers it is appropriate to apply the test as to causation set out in part 6 of the Guidelines.
In Briggs Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[51] His Honour stated at [70]-[72]:
[51] Briggs [2022] NSWSC 372.
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11[TR1] , the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143][TR2] :
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
Mr Dang was involved in a motor vehicle accident on 6 December 2016, resulting in injuries to both his shoulders. Dr Dias examined him on 7 December 2017 and documented a restriction in the right shoulder elevation to 90° and the left shoulder elevation to 120°. Mr Dang mentions that he might have undergone radiological imaging for his shoulders, although there was no imaging available.
The Panel finds the claimant’s vague recollection of the 2016 accident surprising where it is apparent, he instructed State Law Group and pursued a claim for damages arising out of that accident. Not only was he assessed by Dr Dias but also by Dr Horace Ting some 22 months post-accident in October 2018. The Panel concedes his complaints to Dr Ting focused on pain in the lower back and neck although the Panel also notes that in his statement dated 3 May 2019 in support of the claim relating to the 2016 accident Mr Dang stated he had ongoing pain, discomfort and stiffness in his neck radiating to his shoulders. Mr Dang asserts that his symptoms fully resolved following the 2016 accident and whilst there is no evidence to demonstrate otherwise the Panel considers Mr Dang has been less than forthright about the impact of the 2016 accident and that he had ongoing symptoms at least until May 2019.
Dr Ma's clinical records lack any mention of shoulder complaints prior to the accident on 11 May 2021, implying that Mr Dang might have been consulting another doctor. The records of the 2016 accident reveal the treating doctor at that time was Dr Sajani Vidanalage of Injury Care. Certificates of Capacity/Certificate of Fitness pertaining to the 2016 accident have also been completed by Dr Yasmin Khan of Injury Care.
The accident on 11 May 2021 suggests a potential injury to Mr Dang's right shoulder. However, no specific mechanism of injury can explain his left shoulder complaints, and there is no contemporaneous evidence of an injury to his left shoulder. Dr Ma reported pain in the region of the right scapula and right trapezius but did not report any complaint pertaining to the left shoulder until 11 February 2022 when he reported bilateral shoulder pain. Physiotherapist Ms Lau only reported symptoms in the right shoulder.
Whilst Mr Nguyen chiropractor reported Dr Dang presented with left shoulder pain with associated tingling and numbness down the left arm on 6 July 2021, he also reported he had a full range of motion in all directions and all provocative tests of the left shoulder were negative.
An MRI arthrogram conducted on 29 June 2022, more than a year post-accident, revealed a full-thickness, partial-width tear involving the anterior and mid part of Mr. Dang's left supraspinatus tendon. Such an injury typically presents with immediate severe pain and noticeable functional impairment following a significant direct trauma, which is inconsistent with Mr. Dang's reported absence of immediate pain or dysfunction in his left shoulder.
Another possible explanation for Mr Dang's left shoulder symptoms is referred pain from his cervical spine. The nerves that emerge from the neck (cervical spine) supply sensation to the shoulders, arms, and hands. Therefore, an issue such as a nerve impingement or disc herniation in the cervical spine can cause pain to be perceived in the shoulder, even in the absence of a direct shoulder injury. This would explain why no left shoulder symptoms or limitations were documented by his treating physiotherapist initially. In a case of referred pain, the shoulder would have a full range of motion, and impingement tests would be negative, because the shoulder itself isn't the source of the pain. This explanation would be consistent with the left shoulder pain with associated tingling and numbness down the left arm reported by Mr Nguyen, chiropractor on 6 July 2021, particularly given the findings he reported on examination.
The substantial delay in reporting left shoulder pain, the absence of consistent clinical documentation, and the discrepancy between typical symptomatology and Mr. Dang's reports all cast doubt on the attribution of this left shoulder injury to the accident.
This is consistent with the opinion of the biomedical engineer Mr Griffiths who concluded there was no direct impact to the claimant’s left shoulder in the accident and nor was there any immediate report of superficial injury by way of bruising or abrasion to the left shoulder region.
Based on the available evidence, inconsistent reporting, the sequence of events, and lack of a clear causal mechanism, it appears more likely that Mr. Dang's left supraspinatus tendon rupture occurred independently of the reported accident. Unlike acute tears, chronic supraspinatus tears can occur insidiously over months or years, often associated with age-related degenerative changes in a person of his age group.
Given the significant delay between the reported accident and the detection of the tear, it is more likely that his supraspinatus tendon tear is a chronic, degenerative condition rather than a result of the accident.
Whilst the legal test as to causation does not require scientific certainty it does require a causal link to be possible on the balance of probabilities. Based on these observations and the presented chronology of events, the Panel finds there is no direct causal relationship between Mr Dang's left shoulder injury and the accident that occurred on 11 May 2021.

CONCLUSION

The Panel confirms the agreement between the parties that the following constitute threshold injuries:
·        cervical spine soft tissue injury:
·        thoracic spine soft tissue injury:
·        lumbar spine soft tissue injury, and
·        right leg soft tissue injury.
The Panel determines the claimant did not sustain injury to the left shoulder caused by the accident.

[TR1]I am assuming you wish to keep the hyperlink 'active'?

[TR2]Same as previous comment

[2023] NSWPICMP 356

25 July 2023