QBE Insurance (Australia) Limited v Nguyen
[2024] NSWPICMP 528
•1 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Nguyen [2024] NSWPICMP 528 |
CLAIMANT: | Ngoc Van Nguyen |
INSURER: | QBE Insurance (Australia) Ltd |
REVIEW PANEL | |
PRINCIPAL MEMBER: | John Harris |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | Leslie Barnsley |
DATE OF DECISION: | 1 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury dispute for motor accident in March 2022; car was reversing and collided with pushbike ridden by claimant; delayed recorded complaint of left shoulder pain of ten days not significant; initial ultrasound stated that tear may be present; subsequent scan showed tear; no pre-accident left shoulder complaints; fall from bike capable of causing tear; video showing claimant riding away following accident not inconsistent with tear; Held – the motor accident caused an intrasubstance tear of the left shoulder; non-threshold injury confirmed; Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | Medical Assessment – Threshold Injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate dated 13 February 2024. |
REASONS
BACKGROUND
Mr Ngoc Van Nguyen (the claimant) suffered injury in a motor accident on 19 March 2022 whilst riding a bicycle (the motor accident).[1] The claimant alleges that he was riding a bicycle on a footpath when the insured reversed from a driveway causing the collision.
[1] Insurer’s bundle, p 4
The insurer is liable to pay to Mr Nguyen any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether the injuries are classified as a “threshold injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
The following injuries were referred in the medical dispute:
(a) cervical spine;
(b) ribs;
(c) left shoulder; and
(d) thoracic spine (alleged T7 fracture).
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages. For threshold injuries the entitlement to statutory benefits ceases after either 26 or 52 weeks, depending on the date of injury and the injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[3]
[3] Section 4.4 of the MAI Act.
STATUTORY AMENDMENT
The Motor Accident Injuries Amendment Act 2022 (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.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.
MEDICAL ASSESSMENT
The medical dispute was referred to Medical Assessor Dixon who issued a Medical Assessment Certificate dated 13 February 2024 (the medical assessment certificate).
Medical Assessor Dixon concluded that Mr Nguyen sustained soft tissue injuries to the cervical and thoracic spines and ribs which are a threshold injury for the purposes of the MAI Act. The Medical Assessor concluded that the motor accident caused a non-threshold injury to the left shoulder. The Medical Assessor noted the subsequent ultrasound demonstrated a full-thickness tear of the supraspinatus tendon “which has been accepted as evidence of a non-threshold injury. He concluded:
“I prefer to accept the report of the radiologist. The claimant had a severe fall onto his left shoulder when knocked off his bicycle.”
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the medical assessment certificate.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 7.26(5) of the MAI Act.
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 review provisions provide[5] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[5] 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.[6]
[6] 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.[7]
[7] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
The Panel requested the claimant to produce his medical records for the two-year period prior to the motor accident. The claimant produced medical records from Medlife Family Medical Centre and Cabramatta John St Medical Complex.
On 1 July 2024 the Panel sent a further direction in the following terms.
“The Panel notes that the claimant had produced previous clinical records in compliance with the previous direction.
We note that the clinical records refer to a motor accident in late 2012 and show spinal complaints. Further, a CT scan of the lumbar and cervical spine dated 13 January 2014 is addressed to Gajic lawyers.
We could not identify any reference in the pre-accident medical records to any left shoulder injury/condition.
The Panel will assume, unless the claimant’s solicitors advise to the contrary noting that they previously acted for the claimant, that there was no pre-accident left shoulder complaint.
The insurer has liberty to immediately file any submissions if it wishes to correct our understanding identified in this direction of the Panel’s view that there is an absence in the pre-accident medical records to any left shoulder injury/condition.” (emphasis in original)
There was no response to this direction.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “threshold psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
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 minor 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 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.”
Clause 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“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.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[9]
[9] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[10] In Raina v CIC Allianz Insurance Ltd[11] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[10] See s 3B(2) of the Civil Liability Act 2002.
[11] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
SUBMISSIONS
Claimant’s submissions undated[12]
[12] Claimant’s submissions, p 41.
The claimant asserted that the motor accident caused physical injuries to the cervical spine, thoracic spine, left shoulder and ribs.
The claimant submitted that the cervical spine X-ray dated 21 March 2022 demonstrated reduction in disc space and anterior endplate osteophytosis in the lower cervical spine, the thoracic spine X-ray dated 21 March 2022 demonstrated a’s T7 fracture and the ultrasound the left shoulder dated 31 March 2022 demonstrated an intrasubstance tear.
The claimant referred to certificates of capacity, the clinical notes of the general practitioner (GP) and the referral for physiotherapy dated 16 June 2022 which noted the various injuries.
Claimant’s submissions dated 4 August 2023[13]
[13] Claimant’s bundle, p 22.
These submissions sought leave to have a further assessment based on the additional relevant information being the ultrasound of the left shoulder dated 1 January 2023.
The claimant noted that the ultrasound of the left shoulder dated 31 March 2022 expressed the view that there may have been an intrasubstance tear. Medical Assessor Assem noted that there was a possibility of a supraspinatus tear based on the March 2022 scan.
The claimant submitted that the January 2023 scan demonstrated definitively a supraspinatus tear and such pathology falls outside the definition of a threshold injury.
Claimant’s submissions dated 27 March 2024[14]
[14] Claimant’s bundle, p 19.
These submissions opposed leave to review the medical assessment.
The claimant submitted that the Medical Assessor had regard to the relevant evidence and the insurer’s submissions. He submitted that the Medical Assessor preferred the evidence of the radiologist and relied on the mechanism of the fall in concluding that the accident caused a full thickness tear of the supraspinatus tendon.
Insurer’s submissions undated[15]
[15] Insurer’s bundle, p 47.
The insurer submitted that the claimant suffered only minor injuries “as the pathology identified in the imaging are simple age-related degenerative changes which are unrelated to the accident.”
The insurer noted the circumstances of the accident, that no police or ambulance attended the scene, the claimant did not attend hospital and submitted that this was an accident which was “minor in nature”. It submitted that this was consistent with the statement provided by the insured driver.
The insurer relied upon the photographs of the claimant in the position he was found after the motor accident, the video of the claimant leaving the accident which showed no apparent injuries or pain response and the photographs of the insured damage which revealed only a damaged left brake light.
In respect of the cervical spine injury, the insurer referred to the X-ray which showed normal alignment and no fracture or dislocation and the various clinical notes which noted “whiplash neck pain”. The insurer submitted that the changes shown on the X-ray were age-related degenerative changes.
The insurer submitted that the T7 fracture shown in the X-ray dated 21 March 2022 was longstanding and unchanged from a previous X-ray in 2015.
In relation to the changes shown in the left shoulder, the insurer submitted that the changes shown on the scans were degenerative and unrelated to the minor accident. It noted that the left shoulder was not mentioned until the third post-accident consultation with the GP.
The insurer submitted that the claimant sustained a soft tissue injury to the ribs with the X-ray showing no evidence of a fracture or dislocation.
Insurer’s submission undated[16]
[16] Insurer’s bundle, p 51.
These submissions were filed opposing the further application.
The insurer noted that Medical Assessor Assem provided a medical assessment certificate dated 7 December 2022 which found minor injuries caused by the motor accident to the cervical and thoracic spines, ribs and left shoulder.
The further application is based on an ultrasound dated 21 January 2023 showed a full thickness tear of the supraspinatus tendon.
The insurer noted there is no new evidence that the tear was caused by the accident and the ultrasound confirms Medical Assessor Assem’s opinion that this pathology was likely present.
The insurer submitted that this pathology was not identified in the scan dated 31 March 2022 and the further scan “may potentially document a further injury sustained after that date”.[17]
[17] Insurer’s bundle, p 52.
The insurer referred to the opinions of Medical Assessor Assem and Dr Antoun that any pathology in the left supraspinatus was age related degenerative changes.
Insurer’s submission undated[18]
[18] Insurer’s bundle, p 101.
These submissions sought leave to review the medical assessment.
The insurer noted that the statement by the Medical Assessor that there was no reply was incorrect and refer to the various material including submissions that it relied upon. The insurer otherwise submitted that the Medical Assessor had mischaracterised its submissions.
The insurer submitted that the Medical Assessor failed to engage with its argument that the full thickness tear identified on the latter scan was not caused by the motor accident.
The insurer submitted that the statement that the second ultrasound had been accepted as evidence of a non-threshold injury was unclear.
The insurer submitted that the Medical Assessor failed to provide proper reasons why the teas shown in the second ultrasound was caused by the motor accident when the tear was not previously observed in the earlier ultrasound dated 31 March 2022.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
The medical records from Cabramatta John St Medical Complex cover the period from March 2003. In November 2012 the GP noted spinal pain. In January 2013 there are references to neck and low back pain and a “TP” file.
A CT scan of the lumbar spine addressed to Gajic lawyers dated 13 January 2014 showed moderate degenerative changes in the lower lumbar spine. The CT scan of the cervical spine does not appear in the records produced by the previous GP.
A chest X-ray dated 3 August 2015 showed mild left basal scarring and was otherwise clear.[19] The X-ray noted mild vertebral wedging throughout the thoracic spine with loss of height less than 20%.
[19] Insurer’s bundle, p 16.
In May 2019 the claimant reported right knee pain following a fall on concrete.
Post-accident medical records
The claimant attended his GP on 21 March 2022 who noted a history that the claimant was riding his bicycle when a vehicle reversed out of the driveway hitting the bicycle and causing the claimant to fall to the ground with outstretched hands and rolling. The doctor noted the claimant was shocked, traumatised and was unable to recall much. The reported symptoms were neck pain, dull aching, left upper back pain, right hand/upper limb pain.[20] The GP noted restriction of movement of the shoulders.
[20] Insurer’s bundle, p 61.
The X-rays of the cervical and thoracic spine dated 21 March 2022 showed reduction in disc space at C5/6 and C6/7 and anterior endplate osteophytosis in the lower cervical spine and a compression fracture at T7 which is “long-standing, unchanged from the previous x-ray from 2015.”[21] The left rib X-rays were normal.
[21] Claimant’s bundle, p 55.
Dr Trieu, radiologist, noted that there was no acute fracture detected and the wedge fracture at T7 was “chronic”.
The claimant attended his GP on 22 March 2022 who noted the various x-ray showed osteophytosis in the lower cervical spine and a compression fracture at T7.[22]
[22] Insurer’s bundle, p 62.
A left shoulder ultrasound dated 21 March 2022 is reported as showing a “hypoechoic area within the supraspinatus tendon which may represent marked tendinosis or an intrasubstance tear”.[23]
[23] Insurer’s bundle, p 58.
On 29 March 2022 the GP noted neck pain, mechanical left upper back pain and severe left parascapular pain around the T7 level. The GP requested an ultrasound scan of the left scapula/trapezius and questioned whether there was a trapezius muscle tear.[24]
[24] Insurer’s bundle, p 63.
A certificate dated 29 March 2022 referred to severe left parascapular pain around the T7 level and restricted range of back movement.[25]
[25] Insurer’s bundle, p 65.
A bone mineral scan dated 29 March 2022 showed mineral density in the neck as normal and the lumbar spine as mildly reduced consistent with osteopenia.[26]
[26] Insurer’s bundle, p 70.
On 4 April 2022 the GP noted the recent scan results and recorded ongoing neck and mechanical left upper back pain.[27]
[27] Insurer’s bundle, p 64.
A certificate of capacity dated 4 April 2022 noted the ultrasound scan of the left shoulder revealed tendinitis and an intrasubstance tear.[28]
[28] Insurer’s bundle, p 67.
A claim form completed by the claimant and dated 14 April 2022 referred to injuries to the neck, left shoulder, compression fracture at T7, rib injury and psychological injury.[29]
[29] Claimant’s bundle, p 46.
The police report dated 20 April 2022 records the circumstances of the motor accident.[30]
[30] Insurer’s bundle, p 4.
A referral by the GP to the physiotherapist dated 24 April 2024 noted neck and upper back pain and mechanical left shoulder pain.[31]
[31] Claimant’s bundle, p 119.
On 27 July 2022 the insurer determined that the motor accident caused minor injuries.[32]
[32] Insurer’s bundle, p 9.
A left shoulder X-ray and ultrasound dated 21 January 2023[33] showed a full thickness tear of the anterior insertional fibres of the supraspinatus tendon measuring 10mm.
[33] Insurer’s bundle, p 59.
Statements
The insured provided a statement dated 24 March 2015 [sic].[34] The insurer stated that he was reversing out of a driveway when he heard his wife call out. He stated:
[34] Insurer’s bundle, p 25.
“I was stopped for only a second or two. The engine was still running and the car was in the reverse gear. I had my foot on the brake. Almost instantaneously I heard a sound like glass breaking. I did not feel my car shake or move when the sound happened. I did not fill any impact.
….
I did not see the man on the ground at any point. He was standing the whole time I saw him.
….
I spoke with the man who was next to the bike.
I said: ‘Are you alright. What happened?’
He said: ‘Yeah and nodded his head.
I asked someone to bring him some water. We gave him a bottle of water which he took.
The man was only at the accident scene for three to four minutes and then he took off, riding the bike along Salisbury Street heading towards Fairfield. When he took off, he was riding the bike fine. He almost jumped on it. I could see that he was pedalling as he rode away.”
The insured did not notice any physical injuries. He provided a video of the claimant riding away from the scene.
The insured advised that the police contacted him the following day and no further action was taken.
Photographs of the insured vehicle show a broken indicator cover.[35]
Qualified opinions
[35] Insurer’s bundle, pp 39-40.
Dr Antoun
Dr Tony Antoun, GP, was qualified by the insurer and provided a report dated 15 September 2022.[36]
[36] Insurer’s bundle, p 18.
The doctor was asked whether the pathology reported on the left shoulder ultrasound dated 31 March 2022 was caused by the motor accident.
Dr Antoun stated:[37]
“Based on the mechanism of injury, age group, marked tendinosis, no confirmed acute or traumatic changes, and a documented history that does not correlate with the clinical findings or suspected pathology (trapezius muscle tear), the reported pathology on the ultrasound has been confirmed as degenerative in nature and not related to or a direct result of the claimed incident on the 19 March 2022.
Mr Nguyen’s claimed shoulder complaints have been confirmed on imaging with no acute or traumatic changes to correlate with the clinical suspicion or reported time frame and are considered a musculoligamentous strain and soft tissue in nature.”
[37] Insurer’s bundle, p 20.
Previous medical assessment certificate
Medical Assessor Assem provided a medical assessment certificate dated 7 December 2022.[38] The Medical Assessor concluded that the injuries to the cervical spine, left shoulder, ribs and thoracic spine was minor injuries. The left shoulder examination findings were:
“There was no wasting of his shoulder girdle musculature. There was no tenderness over the shoulder joint, acromion or adjacent structures. The only tenderness reported was at the vertebral border of the scapula with very light superficial palpation. This was accompanied by pain behaviour in the form of grimacing and vocalisation.”
[38] Claimant’s bundle, p 25.
The Medical Assessor opined that the claimant only sustained a minor left shoulder injury. He concluded:
“Mr Nguyen pointed to his scapula when complaining of shoulder pain. Clinically, there was no tenderness over his shoulder and no joint crepitation. Tests for impingement could not be performed due to marked limited range of motion which could be due to pain or lack of cooperation. Although there is a possibility of a tear to the supraspinatus tendon, this did not correlate with the location of the symptoms reported or his clinical presentation. I would agree with the opinion of the radiologist that the changes more likely reflect age related degenerative pathology than an acute tear. The injury to his left shoulder is therefore a minor injury for the purpose of the Act.”
RE-EXAMINATION
The claimant was examined by Medical Assessor Barnsley who provided the following report.
“Mr Nguyen attended the PIC rooms for assessment with Medical Assessor Barnsley on the 19th July 29 2024. A Vietnamese interpreter was present for the entire assessment. At the outset of the assessment, it was confirmed that Mr Nguyen understood the reason for the assessment. It was explained that the assessment did not enjoy the confidentiality of a standard medical consultation. It was also explained that the assessor would not be involved in the management of Mr Nguyen’s condition. The conduct of the assessment was explained with reference to the broad areas of questioning and the nature of the physical examination that might be required. It was explained that the Assessor and other Panel members had read and considered his medical records. Finally, it was explained that where inconsistencies between components of the history or physical examination findings were recognised these would be put to Mr Nguyen to permit him to explain these inconsistencies to maintain procedural fairness.
Past Medical History
Mr Nguyen volunteered that he had been involved in a motor vehicle accident in 2012. He was the driver of a car that was travelling in a 40 kilometre per hour zone when it was struck from behind by another vehicle. He reported developing back pain from this accident and stated that it had been present ever since. He denied any neck pain from this accident. His attention was then drawn to the CT scan of his cervical spine ordered in January 2014 by Gajic Lawyers (Page 199, Records of John st Medical Complex) It was also brought to his attention that Wendy Cheng, Physiotherapist at Cabramatta Physiotherapy had described neck symptoms attributable to whiplash which had ‘almost subsided’ by June 12th 2012 (page 203 Records of John St Medical complex). Mr Nguyen reaffirmed that he did not have neck pain after this accident. The Panel accepted that that a considerable period had elapsed since 2012 and accepted that there was evidence of substantial resolution of his neck symptoms in 2012 within a few weeks of treatment. The Panel also notes that there was no mention of shoulder pain by Wendy Cheng in her report.
He stated that he has had ongoing low back pain since the MVA in 2012. This is variable in intensity and affects the left lower back. He volunteered that it had not been affected by the motor vehicle accident in March 2022 when he fell off his push bike.
He was asked specifically about neck pain, shoulder pain or upper back pain in the period of months leading up to the accident in 2022. He said that he had no symptoms in these areas, just the low back pain.
On the 19th March 2022 he was riding his bicycle on a bike lane which crossed driveways. He stated that he was hit by a car reversing out of the driveway so that he fell off his bicycle. He recalls falling onto his left shoulder, not an outstretched hand and that the fall displaced his helmet. There was no loss of consciousness.
He was concerned that he might be hit by a vehicle, and he got up quickly off the road. Some people then assisted him up and gave him some water. He thought that he stayed on the scene for about 30 minutes. He then said he scooted his bike away. It was put to him that other witnesses at the scene said he was only there for a few minutes and there was video evidence that he had ridden his bike away normally. This was shown to Mr Nguyen. He accepted that he had ridden rather than scooted away and also explained that he thought it had taken some time for the water to be provided to him.
He said that his symptoms developed in the left shoulder at that time, but these were significantly worse the next day. He described the pain as primarily over the posterior aspect of the scapula in the region of the spine of the scapula. The pain radiated proximally to the neck on the left side.
He saw his local doctor after a few days, and was referred to a specialist, who he understands was Dr Dang Tran Vu. He also recalls being given some medications and was referred for a scan.
His symptoms have persisted since then. He has not received any injections and has not had surgery for his shoulder.
His current symptoms are pain in the region of his posterior upper trapezius and spine of the scapula on the left. The pain can radiate anteriorly and down the upper arm as well as into the lower part of the neck. He always experiences these symptoms together, rather than individually, and considers that they start in the shoulder. He does not have any thoracic spinal pain. He experiences occasional tingling in the 3rd and 4th fingers in the left hand.
He continues to experience low back pain. In response to specific questioning, he confirmed that it was unaffected by the accident in 2022.
On Examination he was 155cm tall. He weighed 64.5kg. He reported being left-handed.
He held his left arm rigid by his side.
His cervical spine was tender over the lower left articular pillars, but there was no guarding or spasm. On formal examination he had very limited left rotation to 25% of expected. Extension was similarly limited but other movements were of normal amplitude. However, at other times during the assessment he was noted to rotate his neck fully to the left, specifically when he was speaking to the interpreter who was seated to his left.
Neurological examination of the upper limbs revealed global weakness of the left arm due to precipitation of shoulder pain. Right arm strength was normal. Biceps, triceps and supinator reflexes were all present and symmetrical. Light touch sensation was intact in all dermatomes, but subjectively decreased in the entire left arm compared to the right.
Biceps circumference was 28cm on the right and 29cm on the left, consistent with being left-handed. Forearm circumference was 26cm on both sides.
Examining the shoulders there was no obvious muscle wasting. All movements were active and assessed with a goniometer. The measurements in the left shoulder were repeated to confirm consistency. The following table reports the results in degrees.
Flexion
Extension
Abduction
Adduction
Internal Rotation
External Rotation
Right
180
50
180
50
70
90
Left
70
50
60
20
20
50
70
40
60
10
20
50
Inconsistencies
The inconsistencies on history are noted above. The inconsistency between the casually observed neck range of movement and that seen on formal assessment was put to Mr Nguyen. He stated that ‘I just do this normally’.
Lumbar Spinal Injury
The Panel did not find evidence that there was any new injury to the lumbar spine. The claimant has chronic low back pain for approximately 10 years and both volunteered there was no contribution from the 2022 accident and denied any new lumbar spine symptoms on specific questioning. The Panel concluded that there was no injury to the lumbar spine caused by the accident.
Thoracic Spine Injury
The claimant denies pain in areas that would suggest a new thoracic spinal injury. The reported fracture at T7 is confirmed to be old on reviewing prior imaging reports, acknowledging that the affected vertebra has been described as T6 on some imaging. There is therefore no injury to the thoracic spine from the 2022 accident.
Cervical Spine Injury
The Panel considers that there has been a new soft tissue injury to the cervical spine. There is some inconsistency on examination of cervical movements that are not adequately explained by the claimant’s responses. The key consideration is whether there is evidence of a non-threshold injury of the cervical spine. This would be through either a complete or partial tear of cartilage, menisci, ligaments or tendons or the demonstration of radiculopathy in the upper limbs related to the cervical spine. There is no evidence before the panel of any tear of the aforementioned structures. Signs of radiculopathy were specifically sought on examination and were not found. The global decreased sensation and loss of power in the arms are not features of radiculopathy based on the definitions in the MAG. The cervical spine injury is a soft tissue injury and is a threshold injury.
Left Shoulder Injury
In considering the left shoulder injury the panel considered whether a tear of the supraspinatus tendon, which was strongly suspected on the first post-accident shoulder ultrasound, could be caused by the accident. Falls onto the shoulder are a recognised cause of rotator cuff tears. The medical members of the Panel therefore considered that the accident could have caused the tear. With regards the presence of a tear as opposed to severe tendinosis, the absence of symptoms prior to the accident, on the balance of probabilities, would argue against severe tendinosis.
The second issue of causation would be whether the accident did cause the tear. The Panel noted that there was no evidence of any prior shoulder pain before 2022, and that symptoms developed in the left shoulder shortly after the MVA. This would argue that there was a new injury to the shoulder. The Panel therefore concluded that the injury to the left shoulder was caused by the accident.
The Panel notes that there were some inconsistencies in the claimant’s history and physical examination. The inconsistencies around the exact details of the accident, such as the amount of time spent at the scene and the way that he rode his bicycle afterwards are not critical in refuting the relationship between the accident and the injury. The key fact is that a fall occurred, and this is not in dispute. Furthermore, as the tear was intrasubstance (ie wholly within the middle of the tendon), it may not have been immediately symptomatic until an inflammatory repair response ensued. Therefore, consideration of his behaviour immediately after the fall cannot be used to refute the possibility that he injured his shoulder.
The observed inconsistencies raise the possibility that the claimant may not be a reliable historian or may be lacking veracity in his presentation. However, the factual objective data is that there has been an accident capable of causing the injury and there is a tear in the shoulder tendon.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were threshold or not threshold injuries as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[39] and Insurance Australia Ltd v Marsh.[40]
[39] [2021] NSWCA 287 at [40], [41] and [45].
[40] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[41] that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act.
[41] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[42] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act. That conclusion is consistent with the observations in Briggs v IAG Ltd (No 2):[43]
“The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty.”
[42] [2022] NSWPICMP 6 at [44]-[62].
[43] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The Panel adopts the report of Medical Assessor Barnsley and adds the following reasons.
We accept that a fall from a bike could cause an intrasubstance tear of the left shoulder.
We accept that there were no left shoulder symptoms prior to the motor accident. We also accept the claimant’s history that there were no subsequent reasons that would explain the pathology in the left shoulder.
We note that the initial post-accident ultrasound doesn’t say there was no tear but that the hypoechoic area within the supraspinatus tendon “may represent marked tendinosis or an intrasubstance tear”. The insurer’s submission that the earlier scan did not show a tear misstates the radiologist’s findings.
We note that the left shoulder was not mentioned until the third visit to the GP on 29 March 2022. However, that visit is only 10 days after the motor accident and seven days after the second consultation. It is likely that, assuming the accuracy of the clinical notes that there was an onset of left shoulder pain in the intervening period between the second and third consultation. This is not a significant delay and the delay in onset of pain is otherwise explained by Medical Assessor Barnsley.
The reasonable contemporaneous complaint of left shoulder pain is highly suggestive of a causative link between the motor accident and a left shoulder injury.
We note that the insurer relied on the findings of Medical Assessor Assem and Dr Antoun that the shoulder tear was degenerative and that any clinical findings were inconsistent with the established pathology.
We cannot comment on findings of other medical practitioners, and we are required to form our own opinion. Whilst the degree of loss of movement is more than might be expected from a tendon tear, this cannot refute the ultrasound finding of an intrasubstance tear. We note that the Medical Assessor Assem’s comment that the source of the pain was at the scapula is not inconsistent with an intrasubstance rotator cuff tear.
The clinical records of the GP, for what they are worth, appear to indicate that the source of the pain was within the left shoulder as opposed to the scapula.
The two ultrasound scans suggest the possibility of a partial tear in the initial scan and the definitive findings of a full thickness tear one year later. Ultrasound scans are not necessarily precise which is consistent with the comments of the earlier radiologist. Further, it is entirely conceivable that a partial tear, once it had occurred, could develop of its own accord into a full-thickness tear over the intervening 12-month period.
We otherwise note the other reasons provided by Medical Assessor Barnsley responding to the insurer’s submissions. We do not accept that the fact that the claimant rode off without any complaint as inconsistent with the fact that the claimant had probably suffered an intrasubstance tear.
On the balance of probabilities, the Panel finds that the motor accident caused an intrasubstance tear of the left supraspinatus tendon which is a non-threshold injury.
In relation to the injuries to the cervical spine, ribs and thoracic spine, there is no basis for a finding of a non-threshold injury. The suggestion that the motor accident caused a T7 fracture is without merit as the 2015 X-ray noted mild vertebral wedging and the fracture was described by the radiologist in March 2022 as chronic, that is longstanding.
The changes on radiology to the cervical spine are longstanding and degenerative.
CONCLUSION
For these reasons the Panel confirms the medical assessment certificate.
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