Tang v Transport Accident Commission
[2024] NSWPICMP 590
•21 August 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Tang v Transport Accident Commission [2024] NSWPICMP 590 |
CLAIMANT: | Le Tang |
INSURER: | Transport Accident Commission |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Thomas Rosenthal |
DATE OF DECISION: | 21 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whether injury a threshold injury; collision with the front of driver’s side of claimant’s vehicle by insured vehicle; claimant failed to attend re-examination and advised would not attend another; matter determined on the papers following clarification of the issues by the parties; issue confined to causation; lack of complaint, inconsistent with full range of motion recorded after the motor accident; Held – injuries found to lumbar spine and left shoulder; right shoulder tear of the supraspinatus tendon on the balance of probabilities not caused by the motor accident; Medical Assessment Certificate confirmed; injuries are threshold injuries. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Assessment of Threshold injury Certificate issued under s 7.23(1) of the Motor Accident injuries Act 2017
|
STATEMENT OF REASONS
INTRODUCTION
Ms Le Nga Tang (the claimant) alleges injury as a result of a motor vehicle accident occurring on 13 July 2018. She was the driver of a Lexus 4WD in Fairfield when a car came to her right and impacted on the front driver’s side of her vehicle causing the car to spin.
The claimant lodged a claim for statutory benefits with the Transport Accident Commission (the insurer) who insured the vehicle considered to be at fault.
The insurer denied ongoing statutory benefits on the basis that they considered the claimant to have suffered a minor injury (now known as threshold injury) for the purposes of the
Motor Accident Injuries Act2017 (MAI Act).
The claimant requested an internal review of this decision and in a letter dated
18 March 2022 the insurer denied the request on the basis that the claimant “has not provided additional information for review.”
The claimant subsequently lodged an application with the Personal Injury Commission (Commission) for determination of the dispute.
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.”
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.
The dispute about whether the claimant’s accident caused psychological injury is a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The medical dispute was assessment was assessed by Medical Assessor Alan Home. The Medical Assessor gave a certificate dated 28 August 2023 wherein he certified that the claimant suffered a threshold injury for the purposes of the MAI as result of the motor accident.
THE REVIEW
The claimant sought a review of the medical assessment in accordance with s 7.26 of the MAI Act (the Review). On 26 October 2023 the President’s delegate determined that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to this Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (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 (s 7.26(5A) of the MAI Act) that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The review of a medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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: Rule 128 of the Rules.
The Panel issued interim directions dated 27 November 2023 requiring the parties to lodge bundles of all documents relied upon in the review. Bundles were subsequently received by the parties.
The Panel convened a teleconference on 20 February 2024, and directions were subsequently issues requiring the claimant to attend a re-examination on 17 April 2024. However, the claimant failed to attend.
Commission staff requested an explanation from the claimant’s legal representatives. A response was received on or about 30 April 2024 wherein the legal representatives advised that due to an administrative error the claimant was not advised of the appointment. It was further stated:
“we are instructed to request if the review application could proceed to be determined on the papers as our client has instructed us that she will not attend a further appointment if re-arranged by the Commission.”
The insurer’s representatives responded on or about 7 May 2024 stating that it was a matter for the Panel, and that
“if the Review Panel decides that it cannot determine the application for review without an assessment, and the claimant maintains her refusal to attend an assessment, then we submit that the application for review should be dismissed.”
The Panel convened a further teleconference to occur on 30 May 2024. Directions were then issued to the parties dated 6 June 2024. The directions noted the Panel had reviewed the submissions of the parties and concluded that it would appear that the dispute is confined to issues of causation. It was further stated that:
“if the parties agree that this is the case, and accept the clinical examination findings of Dr Home (without accepting the conclusions as to causation), the Panel considers the matter ought to be determined on the papers.”
Directions were made requiring the parties to provide their responses.
The claimant’s representatives responded on or about 18 June 2024 via the Commission’s digital portal stating “…the claimant accepts the clinical examination findings of Assessor Home (excluding findings as to causation).” The insurer’s representatives responded on or about 26 June 2024 confirming that the clinical examination findings of the Assessor were accepted (excluding findings as to causation).
The Panel reconvened via teleconference on 8 July 2024 and confirmed that the matter would be determined on the papers.
LEGISLATIVE FRAMEWORK
The term ‘threshold injury’ is defined in s 1.6 of the MAI Act. It provides that a threshold injury is 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:
“…an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 also provides that the regulations may 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 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 a 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:
“General provisions for assessment
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.”
Clauses 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 5.6 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 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.”
Clause 5.9 of the Guidelines provides that neurological symptoms of the neck or spine that do not meet the assessment criteria for radiculopathy, will be assessed as a threshold injury.
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[1]
[1] See s3B(2) of the Civil Liability Act 2002.
In respect of the issue of causation, Part 6 of the Guidelines includes guidance. Whilst Part 6 deals with permanent impairment, it is still relevant to the issue of causation in respect of threshold injury disputes.[2]
[2] Briggs v IAG Ltd [2022] NSWSC 372.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
ORIGINAL MEDICAL ASSESSMENT
Medical Assessor Home certified the following injuries as being threshold injuries for the purposes of the MAI Act:
·Cervical spine – soft tissue injury, underlying cervical spondylosis;
·Right shoulder – soft tissue injury, and
·Left knee – contusion, soft tissue injury.
He found that the alleged injuries to the lumbar spine and the left shoulder were not caused by the motor accident.
On examination, the Medical Assessor found normal spinal curvature of the lumbar and cervical spine. In addition, no muscle spasm was found. He found some deficits in range of movement. He found no “true muscle guarding” in respect of the cervical spine and no dysmetria. Neurological examination was normal in the upper and lower limbs.
Some loss of range of motion was found in the right and left shoulders.
On examination of the left knee some tenderness was found to palpation at the medial joint line.
In respect of causation, Assessor Home notes the development of lumbar back pain is not detailed in the physiotherapy notes or the claim form. He states there is some doubt about the timing of onset of lower back pain which is documented by Dr Dryson in June 2020.
In respect of the right shoulder, Assessor Home accepts the claimant suffered a soft tissue injury from the seatbelt. He notes the MRI performed in January 2021 demonstrate underlying cuff degeneration with a small full thickness tear in the right supraspinatus tendon and insertional tendinopathy and tear in the left shoulder. However, he does not consider it plausible that the mechanism of the accident would cause a rotator cuff tear in the absence of early symptoms of prominent lateral shoulder pain.
In respect of the left shoulder, Assessor Home found no record of injury.
DOCUMENTATION
The Panel has considered all material provided by the parties in their respective bundles lodged in response to the Panel directions. Whilst not all documents may be specifically mentioned in these Reasons, that is not to say the Panel has not taken into account all evidence. The Panel has taken into account all the material provided.
SUBMISSIONS
Insurer’s submissions dated 17 March 2023
The insurer notes the Emergency Department (ED) notes of Fairfield hospital document the accident being a low speed impact.
The insurer relies upon the opinion of Dr Vote, as set out in his report of 9 November 2021. In particular, it is suggested that the opinion of Dr Vote in respect of findings of the lumbar spine where it was concluded that no nerve root injury occurred. The insurer notes that
Dr Dryson, qualified on behalf of the claimant, found no radiculopathy.
Insurer submissions dated 21 April 2023
These submissions suggested that no weight should be given to the opinion of Dr Dryson as expressed in his supplementary report where he concludes that the claimant suffered a tear of the supraspinatus tendon being caused by the accident. The insurer notes the opinion is given without having re-examined the claimant.
Claimant submissions dated 25 September 2023
These are the only submissions the claimant’s representatives have included in their bundle for the Panel to consider. The submissions are made in support of the application for review of the medical assessment of Assessor Home.
It is submitted that the Assessor erred in finding that the right shoulder injury is a threshold injury. It is submitted that there were early symptoms of “prominent lateral shoulder pain” and refers to the certificate of fitness of Dr Tran who recorded mechanical upper shoulder/back pain. Also referred to is the reports of Dr Hoang (12 July 2018) who noted the claimant to complain of pain in the right shoulder where the seatbelt is.
The claimant submits that an incorrect test of causation was applied. It is not a test of whether or not it is plausible that the mechanism of accident would cause a rotator cuff, but whether the motor accident caused or contributed to the development of the tear (QBE v Hoblos [2023] NSWPICMP 209). It is submitted that the accident need not be the sole cause of the tear, and suggests the motor accident may have contributed to the tear worsening.
In respect of the neck, the submissions note that Dr Trieu in a report dated 21 July 2018 noted the claimant had radicular pain in the left upper limb. In addition, Dr Hoang in a report dated 8 October 2018 recorded complaints of tingling and numbness. Also referred to is the MRI cervical spine report of Dr Jones dated 18 December 2018 that recorded a history of neck pain radiating to upper limbs.
In respect of the left shoulder, the submissions note that Dr Hoang in her reports of
30 July 2018 and 15 April 2019 recorded that the claimant complained of significant pain in both trapezii and that range of movement of both shoulders were restricted by 1/3 due to pain.
The submissions assert that the Assessor erred in finding that the lumbar spine injury was not caused by the accident. The claimant refers to the certificate of fitness of Dr Tran that records: “post MVA – mechanical upper shoulder/back pain.”
In addition, the MRI lumbar spine report of Dr Pillay dated 13 January 2020 records complaints of lower back pain and right sciatica with radiculopathy to bilateral limbs.
The hospital notes also are referred to where it states “back pain following MVA last July”
Insurer submissions dated 16 October 2023
In response to the claimant’s submissions in respect of the right shoulder, the insurer denies there is any evidence of “prominent lateral shoulder pain” as suggested. The insurer notes that the Assessor accepted that there was an injury to the right shoulder, however, he was not convinced that the accident caused a tear to the rotator cuff in the absence of prominent lateral shoulder pain. It is noted that neither references of shoulder pain relied on by the claimant suggest that the pain was “prominent”.
In respect of the issue of causation, the insurer notes that the Assessor found that the accident was not consistent with a rotator cuff tear and that the appearance on the imaging was more likely degenerative in nature. Therefore, the path of reasoning is clearly set out.
In respect of the cervical spine, the insurer submits that the earlier radicular complaints are irrelevant as the Assessor is required to assess the injury at the time of the examination.
The insurer submits in respect of the left shoulder that the Assessor found there to be no record of left shoulder injury, and it is clear that in reaching that conclusion the Assessor considered the reports of Phu Hoang, physiotherapist that document shoulder pain.
It is further suggested that the reference to “shoulders” in the report of Phu Hoang, is likely a typographical error noting that when drawing final conclusions he states “I have started prescribed exercises for the neck and shoulder” referring to singular shoulder pain and not bilateral. Further, it is noted that the report of Phu Hoang dated 30 July 2018 refers to the findings of Mr Hoang at the time of the initial assessment at which time the claimant complained of right shoulder pain.
The insurer rejects the claimant’s suggestion that the certificate of fitness recording upper shoulder/back pain is a reference to upper back pain, being consistent with the claim form completed one day earlier, where a soft tissue injury is alleged to the upper back and not the lower back.
It is further submitted that the MRI of the lumbar spine is irrelevant as it post-dates the accident by around 18 months. Further, the note in the Fairfield Hospital file of back pain, is also irrelevant due to it being made on 14 May 2019 – 10 months after the accident and is made by a midwife in the context of a pregnancy assessment. Furthermore, it is not a specific mention of the lumbar spine, and is more likely a reference to the upper back.
Application for Personal Injury Benefits dated 17 July 2018
The claimant has listed injuries to include “head, neck, upper back, shoulders and left knee.”
Statement of claimant dated 17 February 2021
The claimant describes being in good health prior to the accident, with no prior injuries or disabilities.
She describes the circumstances of the motor accident and states the collision was very forceful with her car being “pushed violently to the left”. She disagrees with the Fairfield Hospital calling the accident “low speed”.
The claimant acknowledges the hospital records describing the claimant denying neck pain. The claimant states that she was very dazed after the accident. However, she does recall that she suffered from pain in the neck and back shortly after the accident and by the time she saw Dr Tran she was complaining of significant problems with headaches, sore ear and pain in neck, upper back and both shoulders. She states that her right shoulder was very painful for a long time.
The claimant goes on to state that she has pain in her upper back and low back and regularly experienced referred pain from the low back into her buttocks and tingling in the front of her thighs.
Certificate of Fitness – Dr Tran dated 18 July 2018
The diagnosis is listed as:
Post MVA – whiplash neck pain;
Post MVA – mechanical upper shoulder/back pain;
Post MVA – mechanical left knee pain, and
Post MVA – Post traumatic stress disorder with anxiety/insomnia
Fairfield Hospital
The ED discharge referral dated 13 July 2018 (date of accident) includes a diagnosis of knee pain.
The description of the accident is:
“was stopped in an intersection and started to move forward. Another vehicle came from R side and hit the front vehicle. Low speed. Air bags not deployed. Wearing the seat belt. Hit the R ear on the door, has mid pain”
No loss of consciousness is recorded, and the claimant denied neck pain. She complained of left knee pain at the front region. The left knee was said to look normal with tenderness over the medial tibial plateau.
The impression is recorded as “low speed MVA with L knee pain – no features of head/neck/multiple injuries”
X-rays of the neck and knee demonstrated nil obvious fracture/dislocation.
The claimant was discharged with a plan of simple analgesia and follow up with GP.
The file includes notes related to the claimant’s pregnancy. The claimant was seen by a midwife on 14 May 2019 and the claimant is noted to have a back disorder – “back pain following MVA last July”.
Radiology
Left knee X-ray/CT cervical spine dated 21 July 2018: clinical notes record a history of post-accident whiplash, radicular pain left upper limb and mechanical left knee pain. Conclusion reported as unremarkable.
MRI Cervical spine – 18 December 2018 – Dr Christopher Jones: the doctor notes the clinical notes are difficult to read. He notes the motor accident with neck pain radiating to upper limbs and pins and needles. The report concludes no vertebral body compression fracture or misalignment, no canal stenosis or cord compression. Minor disc osteophte disease is noted and no foraminal stenosis or nerve root compression evident. It is stated that no cause for patient’s symptoms is defined.
MRI Lumbar spine – 13 January 2020 – Dr Pillay: history is recorded as post motor accident mechanical lower back pain and right sciatica with radiculopathy to bilateral lower limbs. The report records some contact of the nerve roots at the l4/L5 with a neural exit foramina and subarticular recesses mildly narrowed. A minor disc bulge is noted. At the L5-S1 findings were consistent with an annular tear. Mild underlying annular bulge with foraminal extension causing moderate right and mild left exit foraminal narrowing contacting the exiting nerve roots laterally. The conclusion of the report is: “lower lumbar spondylosis mainly at L4-5 and L5-S1 level”
MRI right shoulder/left shoulder – 15 January 2021 – Dr Gacs: the history is recorded as previous motor accident with whiplash injury. Bilateral shoulder pain worse on the right side. The right shoulder is reported to have a bursal surface partial tear of the posterior fibres of the supraspinatus tendon. In addition, mild subacromial bursitis is noted and no full-thickness tear.
In respect of the left shoulder, the impression is recorded as no evidence of full thickness rotator cuff tendon tear. An insertional tendinopathy of the supraspinatus with a small chronic rim rent tear is noted. A chronic laminar tear of the supraspinatous tendon extending distally with the associated elongated intramuscular cyst is noted together with mild osteoarthritis in the AC joint.
Report of Dr Phu Hoang PhD, of Medlife Physiotherapy
Reporting to GP, Dr Tran, Dr Hoang records in an initial report of 30 July 2018 main complaints of the claimant to include severe neck pain, especially on the left side with limited movements. She also complained of pain in the right shoulder (where the seatbelt is) and disturbed sleep patterns.
She was noted to have restricted range of motion of the cervical spine in all directions with palpation producing significant pain in both trapezius. “Shoulder” noted to have 2/3 of range, restricted by pain. The left knee was noted to have pain upon palpation but the claimant could walk without much pain.
Dr Hoang felt the claimant suffered a Grade II whiplash injury and knee pain. He then states “I have started prescribed exercises for the neck and shoulder…”
In a further report dated 8 October 2018, Dr Hoang reports that the neck pain, especially the left side, had improved significantly. The right shoulder (where the seatbelt is) was noted to be still sore on palpation but did not stop the shoulder from moving full range. The claimant was noted to complain of “new symptoms” that included tingling and numbness in the tips of the fingers in both hands and “the symptoms are likely to have a radiculopathy origin”.
The physical assessment noted some restriction in the cervical spine and “shoulders” had limited but functional range in all direction with tolerable pain near end of range.
In a report dated 15 April 2019, Dr Hoang notes that physiotherapy treatment stopped by December 2018 as the claimant was pregnant and had hyperemesis. With the condition improving in the second trimester treatments were requested to resume. It is noted the claimant was unfit for work due to persistent hyperemesis and severe low back pain. Main complaints were noted to include the neck radiating to both shoulders and sometimes numbness in both hands.
In a further report dated 10 July 2019 it was noted that on that date the claimant had improved shoulder movements and left shoulder pain, however, the right shoulder pain was still a concern.
Insurer questionnaire completed by Dr Tran, GP dated 24 August 2018
The diagnosis is provided as whiplash/neck pain with notes of pain, stiffness and cervical migraine/headache. In addition, mechanical right upper shoulder pain is mentioned with clinical findings notes of “upper back/shoulder pain”. Also diagnosed is a mechanical left knee pain together with psychological complaints.
Report of Dr Dryson, occupational physician, addressed to the claimant’s legal representatives dated 15 June 2020
The doctor records asking the claimant why it was so long after the accident that she had an MRI of the lumbar spine. She stated it was because she was pregnant and was advised not to do the scan until after she had her baby.
Current symptoms are recorded as head pain, however no longer troubling her. Also mentioned is neck pain, particularly on the right side of the neck, radiating to both upper arms and pins and needles affecting all of the fingers.
Upper back pain is also recorded in addition to left knee pain. Dr Dryson also notes the claimant to report low back pain that is present at all times and is “the worst area of pain that she is experiencing following the car accident.”
The diagnosis of Dr Dryson is:
“aggravation of cervical spondylosis with non-verified radiculopathy, painful restricted shoulders – pathology not yet identified, aggravation of lumbar spondylosis”.
In a further report dated 18 February 2021, Dr Dryson reviewed the MRI scan of both shoulders and concludes that the tear of the supraspinatus tendon and mild subacromial bursitis in both shoulders is consistent with being caused by the motor accident.
Report of Dr Vote, orthopaedic surgeon, dated 9 November 2021 addressed to the insurer’s legal representatives
On examination, Dr Vote found cervical spine movements to be limited with extension to one-third of normal and forward flexion virtually zero. He stated that the findings were not consistent with those seen on casual examination. In respect of the shoulders, right side movement was noted as restricted, as was the left, however with less restriction.
The doctor states that he believed there to be a relationship between the conditions found on examination and the injuries outlined.
In a supplementary report dated 9 November 2021, Dr Vote considered the injuries to be “minor” (now known as threshold).
CAUSATION
Cervical spine – soft tissue injury
Mrs Tang complained of neck pain immediately after the accident at Fairfield Hospital an X-ray was undertaken at that time. Follow-up physiotherapy records also recorded neck pain. The Panel accepts that Mrs Tang sustained a soft tissue injury to cervical spine in the subject accident. Assessor Home came to the same conclusion.
There had been no documentation of radiculopathy in the cervical spine in the treating practitioners’ reports (that is present in two or more of the signs stipulated in the guidelines) nor at the time of the examination by Assessor Home. He recorded no evidence of abnormal neurological findings on the arms.
Therefore, this injury meets the definition of a threshold injury for the purposes of the MAI Act.
The cervical spine radiology does not support a complete or partial rupture to a ligament, tendon, meniscus or cartilage.
Lumbar spine
There is no contemporaneous documentation of any acute injury to the lumbar spine sustained in the subject accident. It was not recorded by Fairfield Hospital or mentioned in the claim form. The physiotherapist did not mention low back pain in the first few consultations. The physiotherapist noted low back pain on 15 April 2019 which is 9 months after the accident and happened to coincide with the 2nd trimester pregnancy. It appears that there was ongoing low back pain during this later stage of pregnancy mentioned by the midwife and GP.
The Panel acknowledges that the certificate of fitness of Dr Tran refers to “mechanical upper shoulder/back pain”, however, agrees with the submission of the insurer that this is in all likelihood a reference to the upper back, in the context of a claim form (filled in one day prior) making no reference to lumbar spine pain.
There were no recorded signs of radiculopathy as set out in the Guidelines by the treating doctors or by Assessor Home. A lumbar spine injury is not consistent with the mechanism of injury from the accident. The Panel has determined that, on the balance of probabilities, there was no lumbar spine injury sustained in the subject accident. Assessor Home came to the same conclusion.
Left knee – soft tissue injury
Fairfield Hospital recorded acute left knee pain on the day of the accident which was also noted by the treating GP. The Panel has determined that there was an injury to the left knee sustained in the subject accident. It was investigated by an X-ray one week after the accident and in hospital on the day of the accident.
Assessor Home recorded reasonable movement of the knee joint with no ligament laxity and no patellofemoral tenderness or crepitus. He considered that the injury to the left knee was causally related to the subject accident. This injury meets the definition of a threshold injury for the purposes of the MAI Act. There is no evidence of complete or partial rupture of tendon, ligament, menisci or cartilage.
Left shoulder
There was no documentation of any injury sustained to the left shoulder at Fairfield Hospital or by the initial physiotherapy report. The physiotherapist later records neck and trapezius muscle pain with a reduce range of movement of both shoulders. The first investigation of the left shoulder was an MRI dated 15 January 2021 which is 2 ½ years after the accident. This reported insertional tendinopathy of the supraspinatus with a small chronic rim rent tear and no full-thickness cuff tear with mild osteoarthritis of the acromioclavicular joint. The Panel has determined that there has been no injury sustained in the subject accident to the left shoulder joint. The Panel has considered the mechanism of the accident and decided that if there had been an injury to the left shoulder joint at the time of the accident, Mrs Tang would have had immediate pain in the shoulder joint. Assessor Home came to the same conclusion. The reported tear in the radiology in all likelihood represents a degenerative pre-existing condition and was not caused or aggravated by the subject accident.
Right shoulder – soft tissue injury
It was recorded by the treating physiotherapist 8 days after the accident Mrs Tang had pain in the right shoulder region. In a follow-up on 8 October 2018, it was recorded the right shoulder was tender but had a full range of movement and 6 months later, it was recorded that there was neck and trapezius muscle pain with reduce range of movement of both shoulders. The Panel has determined that there has been a soft tissue injury to the right shoulder sustained in the subject accident. Assessor Home came to the same conclusion.
An MRI of the right shoulder dated 15 January 21 (which is 2 ½ years after the accident) reported no evidence of full-thickness tears of the supraspinatus tendon but a chronic
10 x 4 mm bursal surface tear of the posterior fibres. The glenoid labrum was intact with no evidence of an effusion.
The claimant submits that the incorrect test of causation was applied by Assessor Home. The Panel agrees that the test is not one of medical plausibility. However, the Panel having considered the evidence does not find, on the balance of probabilities, that the motor accident caused or contributed to the tear. Had the motor accident caused or contributed to the tear then it would, in all likelihood, have resulted in acute significant pain. Furthermore, the accident causing or contributing to the tear is inconsistent with a full range of movement documented on 8 October 2018.
The Panel considers that this is most likely a degenerative process limited to the bursal surface. It was not caused or aggravated by the subject accident. Therefore, it does not meet the description of a complete or partial rupture of ligaments or tendons. Thus, the classification is a threshold injury. Assessor Home made the same conclusion as did
Dr Vote, an orthopaedic surgeon, when he assessed the right shoulder. He recorded that the MRI had mild acromioclavicular osteoarthritis and mild tendinopathy of the supraspinatus tendon with mild bursitis and no tears were visible.
CONCLUSION
For the above reasons, the findings of the Panel are the same as Assessor Home. Accordingly, the certificate of Medical Assessor Home is confirmed.
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