Thanyakulthip v Youi Pty Ltd
[2025] NSWPICMP 531
•22 July 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Thanyakulthip v Youi Pty Ltd [2025] NSWPICMP 531 |
CLAIMANT: | Chittiphan Thanyakulthip |
INSURER: | Youi Pty Ltd ABN 79 123 074 733 t/as Youi Insurance |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Christopher Oates |
MEDICAL ASSESSOR: | David Gorman |
DATE OF DECISION: | 22 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) determined the claimant’s whole person impairment (WPI) as a result of the accident was 11%; insurer made an application under section 7.26 for referral of assessment to the Panel; the Review Panel conducted its own examination and found that WPI as a result of injuries sustained in the accident totalled 8%; Held – MAC revoked and the Review Panel issued a new MAC assessing 8% WPI as a result of the accident. |
DETERMINATIONS MADE: | 1. The Review Panel revokes the certificate of Medical Assessor Nelukshi Wijetunga of · right ulnar nerve injury – 8% WPI, and · cervical spine – 0% WPI. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Chittiphan Thanyakulthip (Ms Thanyakulthip), was injured in a motor vehicle accident (the Accident) on 27 November 2021 when a car with no driver rolled into her, hitting her right arm and pinning her right thigh against her own car.
Following the accident, Ms Thanyakulthip made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on the Insurer, Youi Pty Ltd (Youi).
A medical dispute about the degree of Ms Thanyakulthip’s whole person impairment (WPI) has arisen. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the Motor Accident Injuries Act 2017 (MAI Act).
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Nelukshi Wijetunga for assessment.
On 4 November 2024, Medical Assessor Wijetunga assessed Ms Thanyakulthip and on
8 November 2024, certified that the injuries sustained to the cervical spine, right shoulder, right arm and right hand were caused by the accident and gave rise to a permanent impairment of 11%.
Review procedure
The insurer sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review). The application for referral of a medical assessment to a Review Panel (the Panel) was not made by the Insurer within 28 days after the parties were issued with the certificate: s 7.26(10) of the MAI Act. However, the insurer was granted an extension of time to make the application under cl 133A(5) of the Personal Injury Commission Rules 2021 (the Rules). The review application was accepted and referred to this 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 which is the subject of the Review was made on or after 1 March 2021, the new review provisions apply.
A delegate of the President of the Commission determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the matter to the Panel.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
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: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. 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.
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.
LEGISLATIVE FRAMEWORK
Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Ms Thanyakulthip’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages. However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
Permanent impairment assessment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 Causation 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.”
Clause 6.7 of the Guidelines states:
“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.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.”
ASSESSMENT UNDER REVIEW
Medical Assessor Nelukshi Wijetunga assessed Ms Thanyakulthip on 4 November 2024 and issued her certificate on 8 November 2024. The Panel repeats her findings below:
[1]-[2] Medical Assessor Wijetunga provided a background of the dispute and the injuries to be assessed, being:
·cervicothoracic spine - C6/C7 lateral disc protrusion with foraminal stenosis;
·lumbosacral spine - strain/pain;
·right shoulder/ elbow - superior labral tear and numbness extending along the limb to the right hand, with injury to ulnar nerve, and
·right hand - damage to triangular fibrocartilage complex.
[3]-[4] Medical Assessor Wijetunga referred to the submissions made by the parties.
[5]-[6] She set out the documents considered in her examination.
Medical Assessor Wijetunga provided a pre-accident medical history noting that she completed her secondary education to the age of 17 when she migrated to Australia and completed year 12. She completed a Bachelor of Hospitality Management and a Master of Event Management. She was a post-sale analyst for Fuji Xerox for about six to seven years on full time basis. After having children, she went part time. She ceased working and then purchased a Bubble Tea business in May 2018. She sold the business after the accident. She remained off work for a couple of weeks. She now works as a customer service assistant at Chat time about one to two times a week. She reports consulting a chiropractor for an episode of lower back pain prior to the accident several years ago, which resolved in a few weeks. Ms Thanyakulthip lives in a house with her husband and two children aged 8 and 5 years old. She does not smoke or drink alcohol. Prior to the accident she would attend Pilates one to two times a week. She has not returned to this activity.
Medical Assessor Wijetunga set out the history of the accident of 27 November 2021:
“She reports being parked and just about to get into the car on the driver’s side and was faced slightly to the driver side. She saw a car rolling backwards and putting her right arm to try and stop it at which time she realised that there was no driver in the car. The car continued to roll with her right arm striking the mirror, causing it to come off. She became squashed between her car and the rolling car and the offending vehicle continued to roll until it hit another parked car. She was extremely scared and shocked. She sat on the side of the road and contacted the police. Police arrived at the scene who advised her to proceed to the hospital. No ambulance arrived.”
Medical Assessor Wijetunga set out the history of symptoms and treatment following the accident, noting that she proceeded to Bankstown Hospital at which time she was not aware of any physical pain. She recalled that she was mainly in shock. The following day she developed a large bruise on the right arm around the elbow. She developed pain in her neck, right shoulder and arm and right hand pain. She consulted her general practitioner and she was referred to shoulder specialist, Dr Sher and physiotherapist.
Dr Sher believed that the pain was originating from the spine not the shoulder. She reports that the shoulder pain was mainly in the right side of trapezius and has reduced to a bearable level. She does not recall any anterolateral pain indicative of a discrete shoulder injury She consulted a hand specialist, Dr Sungarjan in early 2024. She has continued to consult a physiotherapist. In the first few months, her main areas of concern were tingling and numbness along the posteromedial aspect of her forearm and the medial two fingers of right hand. This was also associated with occasional pain, which was manageable during the day. The numbness occurred predominantly at night. She experienced neck stiffness and a restricted range of movements, which was described as a tightness. She cannot recall pain in her lower back. Over the next few months, she continued to attend physiotherapy at which time she noted a deterioration in her grip strength. She experienced significant nocturnal symptoms which disturbs her sleep. She is hypervigilant about getting in her vehicle and extremely concerned about her children getting in and out of cars. She consulted a neurologist who suspected cubital tunnel syndrome and she was referred for a nerve conduction study. The nerve conduction study was negative.Medical Assessor Wijetunga set out Ms Thanyakulthip’s current symptoms, noting that she describes a constant bilateral lower neck pain which at a baseline is estimated at 3-4/10. She gets worsening pain after prolonged sitting at which time it may increase to 6-7/10 which onsets about two to three times a month. She does not describe any pain extending from her neck into either of her upper extremities. As to the right shoulder and arm and hand, she describes her intermittent right shoulder pain in the scapular region of the upper trapezius which onsets one to two times a week. It onsets predominantly with prolonged positions. As a further discrete region she describes intermittent numbness, tingling and sensitivity which extends just proximal to the medial epicondyle and distally into the back of forearm and the medial two fingers of the right hand. She reports waking frequently with global arm numbness. She reports that when her symptoms are severe her medial two fingers turn purple. She does not perceive any temperature changes. She reports dry and cracked skin on the dorsum of the hand. There are no reported hair or nail changes. She describes a weak grip. As to the lower back, she does not recall any pain in her lower back from the time of, or since the accident.
Medical Assessor Wijetunga set out her clinical examination of Ms Thanyakulthip:
“Cervicothoracic spine (Cervical)
She has tenderness on firm palpation of her cervical spine at the cervicothoracic junction and right sided trapezius. There is normal spinal curvature. There is no muscle spasm or guarding. She demonstrates the following range of movements expressed as a fraction of normal.
| Movements | Cervical Spine |
| Extension | Normal |
| Flexion | Half |
| Right rotation | Normal |
| Left rotation | Normal |
| Right flexion | Three quarter |
| Left flexion | Three quarter |
Neurological examination of the upper limbs was undertaken. There is normal tone, muscle strength and bilateral symmetrical reflexes of the upper limbs. There is an area of altered sensibility and hyperaesthesia extending 10 cm proximal and 5 cm distal to her right elbow.
Upper extremity
Ms Thanyakulthip has some atrophy on inspection. On formal measurement she has an upper arm circumference of 33.5cm of the left and 32 cm of her right dominant arm, which reflects disuse atrophy. She also has a forearm circumference of 22 cm of her left and 21 cm of her dominant arm which also reflects disuse atrophy. There is no tenderness over the insertion point of the rotator cuff in the areas of bicipital groove and greater tuberosity. She has tenderness on palpation of the acromioclavicular joint. There are signs of impingement on the right side. There is tenderness at the right-sided trapezius muscle. She demonstrates the following range of movements as measured by goniometer.
| Shoulder Movements | Active ROM Measured RIGHT (°) | Active ROM Measured LEFT (°) |
| Flexion | 140 | 180 |
| Extension | 40 | 50 |
| Adduction | 50 | 50 |
| Abduction | 120 | 180 |
| Internal Rotation | 60 | 80 |
| External Rotation | 80 | 80 |
There is local tenderness over the lateral/extensor forearm muscle. There is a full range of active motion at the elbows.
There is a local area of hyperaesthesia 10 cm above the elbow to just below the elbow which correlates with the territory of the inferior lateral brachial cutaneous nerve (branch of the radial nerve). There are no abnormalities of the wrists on inspection. There is tenderness elicited to palpation at the radial and ulnar aspect of the wrist joint. Phalen’s and Tinel’s signs are negative for median and ulna neuropathy. She demonstrates a full symmetrical range of movement of the digits in both hands. The grip strength is 15 kg on the left and 10 kg of her right dominant hand She performed active range of movements as measured by goniometer.
| Wrist Movements | Active ROM Measured RIGHT (°) | Active ROM Measured LEFT (°) |
| Flexion | 90 | 90 |
| Extension | 60 | 60 |
| Ulnar deviation | 30 | 30 |
| Radial deviation | 40 | 40 |
She describes pain travelling on the dorsum of her forearm when her wrist is flexed. There is ulnar sided pain with ulnar deviation. There is no sensory abnormality or motor weakness in the right hand. There are no clinical sings of an ulnar neuropathy.
Lumbosacral spine (Lumbar)
There is normal spinal curvature of the lumbosacral spine. There is tenderness elicited to firm palpation in the lower lumbar spine. There is no muscle spasm or guarding in the spine. She demonstrates the following range of movements expressed as a fraction of normal.
Movements
Lumbar Spine
Extension
Normal
Flexion
Normal
Right Rotation
Normal
Left Rotation
Normal
Right Flexion
Normal
Left Flexion
Normal
The neurological examination of the lower limbs was undertaken which reflects normal tone, muscle strength, bilateral symmetrical reflexes of the lower limbs and no areas of altered sensation of the lower limbs. There is no wasting.”
Medical Assessor Wijetunga provided a summary of the relevant documentation relied upon during her examination of Ms Thanyakulthip.
Medical Assessor Wijetunga provided a summary of the relevant radiological and medical imaging and other investigations relied upon during her examination of Ms Thanyakulthip.
Medical Assessor Wijetunga set out her opinion on causation, diagnosis, and her reasons as to her examination, noting that Ms Thanyakulthip does not have any relevant pre-accident medical history. She described a car accident where she was pinned between her car and a car rolling backwards as she was attempting to get inside her vehicle. Initially she held out her right arm to alert the driver only to find that the car was in fact rolling backwards on its own. At that time, the car collided with her right elbow and arm with sufficient force to break the side mirror. The mechanism of the accident where her body which was in a twisted position was pinned against her car would have most probably resulted in forced cervical rotation to the right and her car was directly hit by the offending vehicle most probably causing forced retraction backwards. This clinically correlates with the development of injuries to the cervical spine, right shoulder elbow and hand. Therefore, the injuries to cervical spine, right shoulder and arm and hand are causally related to the accident. She does not describe any lower back pain from the accident and therefore that condition it is not causally related to the accident. On examination, there were no neurological deficits and cervical spine imaging did not should any signs of nerve impingement. She was tender to palpation around the trapezius and acromioclavicular joint. This correlates with a diagnosis of whiplash associated disorder. She demonstrated a reduced range of movements of her right shoulder restricted by pain. She has signs of impingement. The MRI scan demonstrates a labral tear. Therefore, her diagnosis is soft tissue injury to right shoulder with labral tear. She initially had swelling of her ulnar nerve and increased vascularity at the site of a crush injury. Her nerve conduction tests are normal. She has a resolving ulnar nerve injury and elbow soft tissue injury which is causally related to the accident. She also has pain around her wrist with numbness into her left finger. The latter of these is most probably related to her arm injury. The MRI scan of her wrist demonstrated partial tear of the triangular fibrocartilage tears which correlates with the mechanism of the injury. Therefore, this diagnosis is causally related to the accident.
Medical Assessor Wijetunga concluded that the following injuries were caused by the accident:
· cervical spine – whiplash associated disorder;
· right shoulder – soft tissue injury with labral tear;
· right arm – resolving ulnar nerve and soft tissue crush injury of right arm, and
· right hand – triangular fibrocartilage tears (right wrist).
Medical Assessor Wijetunga concluded that the following injuries were not caused by the accident:
· lower back.
[21]-[27] Medical Assessor Wijetunga set out her findings as to permanent impairment, finding a total of 11% WPI caused by the accident:
| Body part or system | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI | %WPI from pre-existing OR subsequent causes | %WPI due to motor accident | |
| 1 | Cervical spine | AMA 4, Chapter 3 page 104 | Yes | 5 | 0 | 5 |
| 2 | Right shoulder | AMA 4, Chapter 3, pages 42- 45 | Yes | 5 | 0 | 5 |
| 3 | Right arm | AMA 4 chapter 3 pages 48-50, table 11 and 15 | Yes | 1 | 0 | 1 |
| 4 | Right wrist | AMA 4 chapters 3 pages 36-38 | Yes | 0 | 0 | 0 |
| TOTAL | 11 |
EVIDENCE BEFORE THE PANEL
ED Discharge Referral of 27 November 2021
Describes no midline tenderness of cervical spine. Right shoulder full active abduction. Nil bruising or bony tenderness. No swelling to upper arm.
Right hip/thigh: no swelling or bruising.
Application for Personal Injury Benefits of 17 December 2021
In the Personal Injury Claim Form, Ms Thanyakulthip reported injuries to her right shoulder, whole right arm, right hip, right leg, and psychological.
Certificate of Capacity dated 17 December 2021
The Certificate of Capacity diagnoses right shoulder pain, upper arm pain, right hand numbness to 31 May 2024 diagnosing the same and post-traumatic stress disorder.
Police report of 5 January 2022
The police report summarises the crash as follows:
“About 12:00PM on Saturday the 27th of November 2021 VEH1 was driven by the POI a 50 year old male. The POI was driving his daughters vehicle VEH1 a White FIAT. The POI has parked VEH1 in lane 3 of Hassall street facing a west bound which is a one way street. The POI has failed to but the car in park and engage the hand brake. The POI has then left VEH1 unattended. VEH1 has then rolled backwards in a westerly direction, whilst rolling backwards the car has travelled across lane 2 and into lane 1. The car has rolled in excess of 25 meters. At this time the owner of VEH2 a White Hyundai CX6 was walking around the side of their vehicle. The owner of VEH2 has reached the Offside drivers door and has seen VEH1 rolled straight to her. The owner of VEH2 has then called out to VEH1 under the assumption that there was a driver reversing into her. VEH1 has then jammed the owner of VEH2 between VEH1 and VEH2 resulting in the Owner of VEH2 having pulsing pain from her right should to her left knee. After coming in contact with VEH2 and the owner VEH1 has continued to roll down towards VEH3 a Silver Mazda GLE 250d. VEH1 has collided with the front bumper of VEH3 where it has come to a stop in lane 1 of hassall street. No drivers were in their vehicles at the time, VEH3 had 2 occupants an adult in the nearside front passenger seat and a child in the rear nearside child seat.”
Report of Dr Sher, orthopaedic surgeon, dated 28 January 2022
Dr Sher suspects that most of the symptoms are originating from the spine, not the shoulder and arranged for a nerve conduction study.
Clinical record of Burwood Medical Health dated 29 March 2022 to 24 May 2022
Getting into drivers’ seat with the car rolling down hill and the momentum resulted in the side window hitting the left shoulder. Did not describe any pre-accident relevant symptoms.
Noted ulna nerve palsy and nerve conduction study is not clear.
Report of Dr Nham, neurologist and nuerotologist dated 29 March 2022 and 24 May 2022
Dr Nham suspects that the underlying pathology maybe carpal tunnel syndrome or cubital tunnel syndrome. On examination, there was decreased pinprick subjectively over third and fourth digits.
Described mild left ulna neuropathy at elbow resolving. She has made a good recovery from ulna neuropathy which is probably unrelated to the accident.
Commission’s Medical Assessment by Medical Assessor Clive Kenna dated 11 August 2022
The cervical spine, right arm and hand was considered a minor injury for the purposes of the Act
It was noted that she demonstrated a full range of movement of the cervical spine with no neurological findings.
She demonstrated a normal range of movement of both right and left shoulders, upper extremity, right arm and hand. Examination of both third and fourth fingers showed full range of motion of all joints and normal two point discrimination. Very mild reduced sensation in third and fourth fingers, which she described as intermittent.
He noted that the right shoulder labral tear would be consistent with definition of a non-minor injury as it involves complete or partial rupture of tendons, ligaments or cartilage and he considers that the labral tear was caused by the motor vehicle accident.
Report of Dr Bodel, orthopaedic surgeon, dated 3 October 2023
There was mild dysmetria of the cervical spine.
Shoulder movements right to left are as follows: Flexion 160°, 180° Extension 40°, 50° Adduction 40°, 50° Abduction 160°, 180° Internal rotation 70°, 90° External rotation 70°, 90°
The elbow range of movements right to left are as follows: Flexion 120°, 140° Extension -10°, 0° Pronation 70°, 80° Supination 70°, 80°
No restriction of wrist or hand movement but sensory loss in ulna nerve distribution with grade 2 sensory loss with diminished light touch. No wasting of small muscles. No impairment of straight leg raising and good range of hip and knee movements. He assessed her as DRE Category II for cervicothoracic and lumbosacral spine. The total upper extremity impairment was 7% WPI with 1/4 of that is 1.75% rounded to 2% with a total combined WPI of 15%.
Clinical notes of North Strathfield Medical Practice dated 15 January 2018 to November 2023
15 January 2018 – describes back pain with some radicular symptoms. No further mention of this.
2 December 2021 – pedestrian motor vehicle accident. Was getting into car and car drove/rolled past without driver and pinned her briefly between her and car, hit onto right hip and right upper arm. Complained of right shoulder pains, worse on abduction, bruising right arm, right sided pain on entire body and right upper arm bruising.
17 December 2021 – describes right shoulder upper arm pains and numbness in right hand.
19 January 2022 – ongoing right shoulder pain and neck pains. Subacromial bursal thickening, low to intermediate grade tear involving anterior fibres of supraspinatus and labral tear demonstrated on MRI imaging.
9 March 2022 – right arm numbness third and fourth fingers.
15 September 2022 – right hand intermittent numbness third and fourth fingers. Seeing neurologist. Nerve conduction study clear.
25 October 2023 – seeing hand physiotherapist weekly.
November 2023 – continues to see hand physiotherapist. Has been working part time three days a week from 9.00am to 3.00pm. Seeing Dr Sungaran for nerve conduction study.
Medical scans and imaging
The Panel notes the multiple MRI, ultrasound, and nerve conduction studies of
Ms Thanyakulthip from 14 January 2022 to 26 April 2024 but does not reproduce them.
SUBMISSIONS
The Panel notes that Ms Thanyakulthip has not provided any submissions in reply to the insurer’s application for review of the medical assessment.
Submissions of the insurer dated 6 December 2024
The Panel summarises the submissions made by Youi on 6 December 2024 by reference to paragraph numbers:
Overview
[1] Youi seeks a review of Assessor Wijetunga's Certificate dated 8 November 2024 pursuant to s 7.26 of the MAI Act.
[2] Medical Assessor Wijetunga assessed Ms Thanyakulthip’s impairment at 11%, as follows:
(a) cervical spine – 5% WPI;
(b) right shoulder – 5% WPI;
(c) right arm – 1% WPI, and
(d) right wrist – 0% WPI.
[3] Youi submits that Medical Assessor Wijetunga's assessment of Ms Thanyakulthip’s right arm impairment contains material error.
Overview of Assessor Wijetunga's Assessment
[5] Medical Assessor Wijetunga provided her diagnoses on page 13 of her certificate, which included:
(a) right shoulder – soft tissue injury with labral tear, and
(b) right arm – resolving ulnar nerve and soft tissue crush injury of the right arm.
[6] Medical Assessor Wijetunga proceeded to assess Ms Thanyakulthip’s right shoulder impairment at 5%. Youi has no complaint with regard to that assessment.
[7] Medical Assessor Wijetunga assessed Ms Thanyakulthip’s right arm impairment as follows:
“The area corresponding with her sensory changes as per AMAIV page 50 figure 45 is the inferior lateral brachial cutaneous. There are no motor changes. She has sensory changes that do not interfere with activity. Using table 11 she is classified as grade 2 (25%). The maximum UEI for a sensory radial nerve lesion is 5% (Table 15). Multiplying this out, the UEI is 1%.”
“Using AMA 4 table 3, page 20, an upper extremity impairment of 1% converts to a 1% WPI.”[8] In other words, Medical Assessor Wijetunga:
(a) diagnosed an injury to the ulnar nerve, but
(b) assessed impairment by reference to sensory lesion of the radial nerve.
Distinction between Ulnar Nerve and Radial Nerve
[9] Youi notes the terms "ulnar nerve" and "radial nerve" are not interchangeable.
[10] Youi provides a diagram taken from the American Society of Surgery to illustrate the point.
[11] Youi notes that:
(a) the radial nerve is named because it runs alongside the radius bone and the radial artery in the forearm. It supports the posterior muscles and skin of the upper arm, forearm and part of the hand, and
(b) by contrast, the ulnar nerve extends from the elbow to the hand. It supports the medial side of the forearm and some of the fingers, the ring and little fingers in particular.
[12] The difference is further highlighted by the diagram reproduced at the end of these submissions.
Error #1 – Malignment between Injury and Impairment
[13] Medical Assessor Wijetunga summarised her reasoning with respect to
Ms Thanyakulthip’s right arm injury on page 13 of her certificate, under the heading "Causation, Diagnosis and Reasons":"She initially had swelling of her ulnar nerve and increased vascularity at the site of a crush injury. Her nerve conduction tests are normal. She has a resolving ulnar nerve injury and elbow soft tissue injury which is causally related to the accident."
[14] Under the heading "Causation, Diagnosis and Reasons", Medical Assessor Wijetunga makes no reference to any injury to the radial nerve.
[15] Medical Assessor Wijetunga's assessment of Ms Thanyakulthip’s right shoulder impairment was afflicted by material error because she assessed impairment by reference to an injury which she did not diagnose.
[16] Youi submits that what Medical Assessor Wijetunga did was akin to diagnosing an injury to the neck but using the paragraphs of the AMA IV Guidelines relevant to an injury to the knee in order to assess impairment.
Error #2 – Failure To Provide Reasons
[17] In the alternative, Youi submits that Medical Assessor Wijetunga failed to expose her path of reasoning because she did not explain how the AMA IV Guidelines with respect to a radial nerve injury could be applied to an ulnar nerve injury.
Error #3 – Failure to apply para 6.53
[18] Youi highlights paragraph 6.53 of the Guidelines:
"Figure 1 of the AMA4 Guides (pages 16-17) is extremely useful to document findings and guide assessment of the upper extremity. Note, however, that the final summary part of Figure 1 (pages 16-17, AMA4 Guides) does not make it clear that impairments due to peripheral nerve injuries cannot be combined with other impairments in the upper extremities unless they are separate injuries."
[19] Youi submits it follows that Medical Assessor Wijetunga fell into error if she combined an impairment caused by a peripheral nerve injury in Ms Thanyakulthip’s right arm with the impairment caused by the injury to her shoulder without diagnosing separate injuries.
[20] Given that Medical Assessor Wijetunga did not diagnose any injury to the radial nerve in Ms Thanyakulthip’s right arm, Youi submits it follows that she failed to apply paragraph 6.53 of the Guidelines.
Conclusion
[21] For the three reasons set out above, Youi submits Medical Assessor Wijetunga's assessment discloses material error and the WPI dispute should be referred to the Review Panel.
[22] Youi submits the error is material because if the 1% WPI allocated to the right arm is removed, Ms Thanyakulthip’s combined impairment falls to 10% WPI and, therefore, below the threshold for WPI.
RE-EXAMINATION BY THE PANEL ON 9 MAY 2025
Medical Assessor Christopher Oates examined Ms Thanyakulthip on behalf of the Panel on
9 May 2025. The Panel summarises his findings below:
History
Pre-accident medical history and relevant personal details
The claimant is right-hand dominant.
She came from Thailand in 1999 at the age of 17, where she completed secondary education in Perth. She completed a Bachelor of Hospitality Management at Macquarie University in Sydney and a Master of Events Management.
She worked as an analyst for Fuji Xerox for about seven years full-time in Sydney.
She had her first child in 2016 and was out of the workforce for a period, and then purchased a Bubble Tea business (Cha Time) franchise in May 2018. She worked there full-time. She had a team of 12 part-time workers.
After the accident, she was off work for a couple of weeks and then went back to work part-time.
After she sold the business in March 2022, she worked one or two days per week at Cha Time until she stopped work altogether in 2024 because she was continually dropping things like bubble tea drinks for customers from her right hand. Her husband now supports her financially. They had their second child born in 2020.
She has had no prior neck or arm problems, but did have low back pain from lifting prior to the motor accident. She attended a chiropractor twice a week for two or three months for treatment.
She has no operations and no serious illnesses.
Two or three years ago she developed hyperthyroidism, which she thinks was due to stress, and she was treated with Neo-Mercazole. However when she stopped work, her thyroid function tests returned to normal and she was able to cease this medication.
She does not smoke or drink alcohol. She used to attend pilates and yoga prior to the accident but can’t do yoga now and can only do leg exercise because of her continuing right arm problem.
History of the accident
The claimant confirmed on 27/11/2021 her husband had got their two children out of the car and was taking them elsewhere, and she had parked the car and was just about to get back into the car through the driver’s door. She saw a car rolling backwards towards her, down an incline, and she signalled with her arm to alert the driver to stop, but then she realised there was no driver in the car. The car rolled into her, with her right arm being hit by the left wing mirror and this caused the mirror to fall off. She then became crushed between her car and the rolling vehicle at her right thigh, up to the torso.
She says the side mirror hit the mid to lower posterolateral right upper arm before it fell off. Her body was pinned tightly between the two cars and her bottom left a dent in the driver’s door of her car. The offending car then continued to roll further until it stopped after hitting another parked car on the other side of a driveway between her car and the car behind, which was hit.
She was very emotionally upset after the accident and called the police. The accident happened just outside the Parramatta Police Station. Police arrived and advised her to go to hospital. Her husband then drove her to Bankstown Lidcombe Hospital to have a check-up.
History of symptoms and treatment following the accident
At the hospital she was mainly feeling emotionally stressed, but the next day she got a large bruise on the right arm, in the mid-section, just above the elbow, and she developed pain in the neck and right shoulder, and down the arm into the right wrist and hand.
She saw a GP and was referred to Dr Sher, orthopaedic surgeon, to assess her shoulder and also for physiotherapy. She doesn’t recall having any low back pain, but did have some initial bruising over the right hip area, but this resolved.
Dr Sher ordered an MRI scan of the right shoulder on 14/1/2022 and also a cervical spine MRI scan, and reviewed her on 28/1/2022. The shoulder scan showed low to intermediate grade tear involving anterior fibres of supraspinatus tendon and a superior labral tear from 1 o’clock to 9 o’clock, with no displaced labral fragment. There was also subacromial bursal thickening.
Clinical examination on 28/1/2022 showed loss of cervical spine motion but right shoulder examination was essentially normal with full range of motion, normal power, no instability and negative impingement sign. She was irritable at the ulnar nerve proximal to the cubital tunnel at the elbow and Tinel’s test was positive but created pain into the forearm rather than down into the fingers. The ulnar nerve light touch sensation was slightly diminished but power was within normal limits.
The cervical spine MRI scan showed a far lateral C6/7 disc protrusion causing mild to moderate left neural foraminal stenosis but no significant spinal canal stenosis, with normal signal within the cervical cord. There was no acute fracture or soft tissue oedema.
At his review, Dr Sher told her that he believed that her pain was originating from the cervical spine, not the right shoulder. He found irritability at the elbow proximal to the right cubital tunnel.
He referred her to Dr Nham, neurologist, whom she saw on 29/3/2022. He found mild weakness of the first dorsal interosseous and abductor digiti minimi but no wasting, and there was decreased pin prick sensation in the third and fourth fingers of the right hand.
She had an ultrasound of the elbows and wrists, and this showed right ulnar neuritis or neuropathy at the site of crush injury, with swollen right ulnar nerve with the forearm extended. Ulnar nerve subluxation on flexion and extension of the elbow. Findings do suggest right ulnar neuritis, presumably traumatic in etiology given the history of crush injury approximately four weeks earlier.
She saw Dr C Yannikis, neurologist, who performed a nerve conduction study of the upper limb on 26/4/2022 which was negative.
Numbness was reported to be variable over the fourth and fifth, and occasionally the third right digit, but mainly the fourth right digit.
She had an MRI scan of the right arm on 18/9/2023 and MRI right elbow of even date. The MRI right upper arm showed no definite abnormality of radial nerve at the radial groove on the posterior humerus, and no definite abnormality of median nerve or ulnar nerve within the arm.
MRI elbow showed no significant elbow joint effusion and no acute fracture or bone contusion at the elbow. There was tendinopathy at the flexor tendon origin with thickening of the common flexor tendon origin but no tear. The ulnar collateral ligament was mildly frayed and lax but intact. The ulnar nerve appeared mildly flattened in the cubital tunnel. There was no definite abnormality of the posterior interosseous nerve, nor of the median nerve demonstrated.
An MRI of right hand was then performed on 18/9/2023 and this showed at least intermediate grade partial tears at the triangular fibrocartilage at the foveal and styloid attachment. There was also partial tear of the volar band of the scapholunate ligament. There was a lobular ganglion at the volar aspect of the wrist, possibly arising from the radiocarpal joint or scapholunate joint. The median nerve does appear mildly thickened and hyperintense within the carpal tunnel. Clinical correlation is recommended. Dedicated MRI of the rest of the hand and digits was not performed today.
She went to the hand surgeon, Dr Sungaran, North Strathfield for the first time in approximately mid-2023. She was sent for an MRI scan and then reviewed a month later. She was diagnosed with a bruised ulnar nerve at the distal upper arm.
She was reviewed again in early 2024 and he suggested surgery to the ulnar nerve, but she was reluctant to proceed, so she was sent back to physiotherapy. She was told if symptoms persist, she may have to seriously consider surgery.
She continued with physiotherapy as treatment to the right arm and hand once a week, and this has been ongoing since the date of accident.
She stopped at one point after the insurer had stated that she had had enough therapy. She then had an assessment by the head hand therapist She was noted to have skin dryness with cracking of her skin and change of colour in the fourth right finger only, and after this assessment she was allowed to continue physiotherapy.”
Current symptoms
Her back is OK. She does get some right buttock and hip discomfort felt from time to time when she is lying in bed, but if she changes positions she can settle it down.
She has some stiffness in the right trapezius. However, the main problem is if she lies on her right side in bed, she gets tingling and numbness in the right hand and has to sit up and shake it out. She drops things from this hand without warning.
She gets dryness and numbness of the right ring finger and colour changes there at times. There is weakness of grip in this finger, but movements are normal. She hasn’t noticed any loss of sensation.
Whilst she was relating her right arm symptoms, I observed flexion and extension of the right elbow at the desk and noticed the ulnar nerve was flicking in and out (subluxating) over the olecranon process at the elbow from the ulnar groove.”
Current and proposed treatment
She is under the care of her GP, Dr Aulah, North Strathfield. She goes to hand therapy in the same suburb once a week.
She may go back to the upper limb orthopaedic surgeon depending on her future progress.
She first saw Dr Sungaran, a hand surgeon at Burwood, in February 2024. He ordered a nerve conduction study performed by Dr Rudhas, neurologist. This was performed on both upper limbs and EMG recorded for the right arm only. This was a normal study with no neurophysiological evidence of peripheral nerve dysfunction. Needle EMG of selected right ulnar denervated muscles did not demonstrate neurogenic changes.
Clinical examination
General presentation
She was of proportionate build with height 158cm and weight 59.1kg.
55.She stood erect, walked without a limp, and sat comfortably and transferred freely out of a chair and on and off the examination couch.
Cervical spine (cervicothoracic)
There was no guarding. There was some tenderness over the right upper trapezius. Flexion and extension were both two-thirds of normal range. Lateral flexion was three-quarters of normal bilaterally and rotation was three-quarters of normal bilaterally. Movements were symmetrical.
Power was normal in the upper limbs, apart from reduced grip strength in the right hand compared with the left, and some weakness of right hand intrinsic muscles. Sensation was intact in both upper extremities, apart from some reduction in the ulnar nerve territory of the right forearm distal to the elbow and into the ulnar side of the right hand.
There was no sensory loss of weakness in relation to the median or radial nerves in the right forearm.
Upper arm girth: right = 23.5cm, left = 24cm at 5cm above the elbow.
Forearm girth: right = 23cm , left = 22.5cm at 5cm below the elbow. The forearm differential is consistent with the stated right hand dominance.
Measurements were recorded to the nearest 0.5cm, however, for reasons of reproducibility, the difference in circumference needs to be 1cm or greater in the arm or forearm to be clinically significant.
There was no indication of cervical radiculopathy as there were not two or more signs of radiculopathy present.
There were no non-verifiable radicular complaints in the upper extremities, with complaint of ulnar nerve irritation in the right forearm due to injury to a peripheral nerve.
Upper extremity
Active ROM measured by goniometer.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 180° | 180° |
| Extension | 40° | 50° |
| Adduction | 40° | 40° |
| Abduction | 180° | 180° |
| Internal Rotation | 80° | 80° |
| External Rotation | 90° | 90° |
The claimant complained of tingling in the ulnar nerve distribution of the distal right upper arm and forearm to the ulnar side of the hand with repeated above shoulder height movements of the right arm. There was no tenderness in the shoulders.
There was full active range of movement at both elbows in flexion, extension, pronation and supination. There was tenderness at the medial epicondyle and adjacent ulnar groove at the right elbow but with a negative Tinel’s sign over the ulnar nerve at the elbow.
There was no instability of the elbow joint however, the ulnar nerve was clearly seen to be subluxating at the medial aspect of the elbow, in and out of the ulnar groove. When this was repeated, it increased symptoms of paraesthesia to the ulnar nerve territory of the forearm and hand on the right side.
| Wrist Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 80° | 80° |
| Extension | 50° | 60° |
| Ulnar deviation | 30° | 30° |
| Radial deviation | 40° | 40° |
No wrist tenderness, crepitus or instability.
Lumbar spine (lumbosacral)
Lordosis was preserved. There was no muscle guarding. There was no tenderness.
Flexion and extension of lumbar spine were normal. Lateral flexion to the right and left was normal and rotation was normal to the right and left.
Straight leg raising was negative but there was complaint of low back pain on the right side at 75° flexion when supine.
Power and sensation in the lower limbs were normal. Reflexes were symmetrical with plantar responses both flexor. There was no atrophy in the lower limbs measurable.
Right and left hips
Right and left hips showed a full range of movement bilaterally in flexion, extension, abduction, adduction, and internal and external rotation.
The claimant presented in a straightforward consistent manner.
Diagnosis, causation and reasons
Cervical spine
The diagnosis is soft tissue injury.
The accident was a cause of this injury, as it is mentioned in the hospital records of 27 November 2021 and the GP record of 2 December 2021, at which time there was full range of movement of the neck.
An MRI scan of 14 January 2022 showed a left C6 protrusion which was an incidental finding, as was on the opposite side to her symptoms, which affected only the right upper extremity.
Dr Sher noted on 28 January 2022 some loss of cervical range of movement.
Right hand/wrist
The accident was not a cause of this injury, a triangular fibrocartilage complex tear (TFCC tear), as it was noted in the Application for Personal Injury Benefits Form (APIB) of 17 December 2021, however the TFCC tear was found coincidentally on an MRI scan of 18 September 2023, which was performed to investigate numbness of the right third, fourth and fifth fingers.
Dr Bodel made no mention of right wrist pain and recorded full range of movement of the wrist on 3 October 2023.
There was no history given at this MRP examination of injury to the right wrist area and Medical Assessor Kenna did not record any history of injury to the right wrist. There was no history given today of specific injury to the right wrist area or directly to the right hand, although there are referred symptoms through the right wrist and hand area from the ulnar nerve injury situated more proximally in the upper extremity.
Lumbar spine
This is defined as a soft tissue condition and the accident is not considered to be a cause of lumbar spine injury.
There was no mention of this area being symptomatic in the hospital records or in the general practitioner records, and although there was some bruising to the right lateral hip area at the time of the accident, this resolved without issue and there was no history obtained from the claimant of definite injury to the lumbar spine.
The accident is not a cause of a lumbar spine injury.
Right shoulder and elbow
With respect to the right shoulder and elbow, the diagnosis is crush injury to ulnar nerve in distal right upper arm, with subsequent development of subluxation of ulnar nerve at the right elbow and ongoing ulnar nerve neuritis symptoms affecting the right forearm and hand, with weakness, numbness and loss of co-ordination of the ulnar supplied digits of the right hand.
The accident is considered to be a cause of this elbow injury, as the arm is mentioned in the APIB, in the hospital and early general practitioner records which refer to right hand numbness, by the treating orthopaedic surgeon, Dr Sher, who noted ulnar nerve problems at the cubital tunnel, and the neurologist, Dr Nham, who noted numbness in the right third and fourth fingers, with mild weakness of ulnar supplied muscles in the right hand, and scans which were positive for right ulnar neuritis.
The accident is not considered to be a cause of right shoulder injury because there was no history of injury given to this area in the accident, and although there was some tenderness about the right upper trapezius adjacent to the right shoulder, there is no evidence that there was direct injury to the right shoulder itself.
Initially it was thought that symptoms affecting the right upper arm and forearm and hand were referred from the cervical spine through the shoulder, however after further specialist assessment and imaging, it became clear that the site of injury is actually the ulnar nerve in the distal posterior right upper arm, with a radiating ulnar neuropathy as a result.
Permanent impairment
In the cervical spine, there is 0% WPI. There are very few symptoms still present, apart from some intermittent right upper trapezial discomfort. There is no asymmetric loss of range of motion, no guarding, no non-verifiable radicular complaints, and there are no signs to indicate diagnosis of cervical radiculopathy.
The assessment is DRE Cervicothoracic Category I giving 0% WPI.
As mentioned above, the right hand/wrist injury of triangular fibrocartilage complex tear and lumbar spine conditions were found to be not related to the accident, hence there was no assessable permanent impairment.
There was no injury found to the right shoulder arising from the accident, hence no assessable permanent impairment.
There was full range of movement in the right shoulder on today’s examination, although symptoms were reported indicating ulnar nerve irritation on repeated elevation of the right arm above shoulder height causing some traction on the ulnar nerve.
With respect to the right ulnar nerve injury, the Panel has proceeded on the basis that although there is a potentially treatable lesion of the ulnar nerve present, on the basis of what Ms Thanyakulthip said at her re-examination by the Panel, she has decided not to proceed with surgery for the right ulnar nerve injury and she has opted to continue with conservative treatment.
On that basis, the Panel will proceed to determine the permanent whole person impairment to the right ulnar nerve.
The nerve to be assessed is the ulnar nerve above mid-forearm.
Grade 2 sensory impairment is assessed, based on the description of sensory loss. 25% of 7% = 1.75%, rounded to 2% upper extremity impairment.
Grade 4 motor loss is assessed based on the examination findings.25% of 46% = 11.5%, rounded to 12% upper extremity impairment.
AMA4 chapter 3, tables 11,12 & 15,
Combining 12% with 2% = 14% upper extremity impairment, which converts to 8% whole person impairment.
AMA4 chapter 3, table 3.
The Panel’s assessment of WPI differs from that of the original Medical Assessor, because the Panel Medical Assessor did not find any descriptors present on physical re-examination, namely guarding, dysmetria, non-verifiable radicular complaints, on which to base a finding of DRE category II for the cervical spine injury.
There was near full active range of movement in the right shoulder at the Panel’s re-examination, which did not result in any assessable impairment.
The Panel’s re-examination findings at the right wrist (not related to the accident) of 50° extension would give 2% upper extremity impairment (UEI), which if it were hypothetically combined with the above impairments would result in 16% UEI, converting to 10% WPI.
The Panel’s re-examination findings in relation to which peripheral nerve was injured in the accident differed from that found by the original Medical Assessor, resulting in a different impairment rating for the peripheral nerve injury.
The Panel also differed from the original Medical Assessor in its findings in respect of causation of the right shoulder and right wrist.
Her problems continue, with loss of strength and dexterity with fine use of the fingers of the right hand, leading to her repeatedly dropping objects from the right hand without warning, and leading to her stopping work as a casual at a Bubble tea franchise after she had sold the business on.
The tendency to drop things continues with everyday household activities and she has continuing symptoms which are irritating to her, arising from the ulnar nerve irritability, causing difficulty with sleeping and with activities of daily living involving use of the dominant right arm and hand.
Summary of areas of permanent impairment
The Review Panel was of the opinion that the following injuries were caused by the accident:
(a) right ulnar nerve injury - on the basis that on the balance of probabilities,
Ms Thanyakulthip is unlikely to have surgery – 8% WPI, and(b) cervical spine – 0% WPI.
HOW THE PANEL DEALT WITH THE SUBMISSIONS
Submissions by Youi
The Panel conducted its own clinical examination performed by Medical Assessor Oates on behalf of the Panel on 9 May 2025.
At a further conference on 19 May 2025, the Panel discussed the findings of Medical Assessor Oates, and after giving detailed consideration to his reasoning, agreed with his conclusions.
On examination, there was a finding of 0% WPI for the cervical spine as there was no guarding, movements were symmetrical and there was no indication of cervical radiculopathy as there were not two or more signs of radiculopathy present.
Further, as set out in paragraph [78]-[81], the diagnosis arrived at was a soft-tissue injury. Although the accident was the cause of the injury, there was no mention in the hospital records of 27 November 2021 or in the general practitioner records of 2 December 2021.
On 14 January 2022, an MRI scan showed the C6 protrusion, but this was only an incidental finding.
On 28 January 2022, Dr Sher noted some loss of cervical range of movement.
As to the lumbar spine, the Panel concluded that the accident was not a cause of lumbar spine injury and arrived at 0% WPI for the reasons set out in paragraph [71] and following.
For the reasons set out above, there was an 8% WPI for the injury to the ulnar nerve above the mid-forearm.
DETERMINATION
The Review Panel revokes the Certificate of Medical Assessor Nelukshi Wijetunga of
8 November 2024 and substitutes the determination that the following injuries caused by the accident gave rise to a permanent impairment of 8% and is NOT greater than 10%:· right ulnar nerve injury – 8% WPI, and
· cervical spine – 0% WPI.
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