Tran v AAI Limited t/as AAMI

DETERMINATION OF REVIEW PANEL
CITATION:	Tran v AAI Limited t/as AAMI [2023] NSWPICMP 366
CLAIMANT:	Van Binh Tran
INSURER:	AAI Limited trading as AAMI
REVIEW Panel
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Chris Oates
DATE OF DECISION:	2 August 2023
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident on 29 May 2021; assessment of threshold injury; dispute as to causation of triangular fibrocartilage (TFCC) rupture; dispute as to causation of annular rupture; dispute as to left shoulder injury; dispute as to threshold injury; dispute as to whole person impairment (WPI); Held – test as to causation as per Briggs v IAG Limited trading as NRMA Insurance; on balance of probabilities annular tear was a pre-existing condition; Panel finds the claimant sustained soft tissue injury to the lumbar spine; Panel finds the TFCC rupture was an incidental finding and due to pre-existing wear and tear; no symptoms reported by the claimant in that part of his wrist; Panel finds the claimant sustained soft tissue injury to right wrist; Panel finds soft tissue injury to the cervical spine; no evidence of injury to left shoulder; Panel certifies claimant sustained soft tissue injury to right wrist, soft tissue injury to cervical spine, soft tissue injury to lumbar spine; all threshold injuries; lumbosacral spine assessed as 0% WPI; cervical spine assessed as 0% WPI and soft tissue injury to right wrist assessed as 3% WPI.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Assessment of Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate of Medical Assessor Clive Kenna dated 4 November 2022 and determines that the following injuries caused by the motor accident are threshold injuries: · right wrist – soft tissue injury; · lumbar spine – soft tissue injury; and · cervical spine – soft tissue injury. The Review Panel determines the following injuries were not caused by the motor accident: · right wrist and hand – triangular fibrocartilage lesion, shift in positioning on bones in wrist; · low back – annular rupture, and · left shoulder – strain. WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the Certificate of Medical Assessor Kenna dated 4 November 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is 3% and is not greater than 10%: · lumbar spine – soft tissue injury; · right wrist – soft tissue injury; and · cervical spine – soft tissue injury.

STATEMENT OF REASONS

INTRODUCTION

Mr Van Binh Tran (the claimant) sustained injury in a motor vehicle accident on 29 May 2021 (the accident). Mr Tran stopped his vehicle to park when the insured vehicle failed to stop and collided with the rear of his vehicle pushing it forwards by 10 to 15 metres.
AAI Limited trading as AAMI (the insurer) is the relevant insurer with liability to pay any damages to Mr Tran under the Motor Accident Injuries Act 2017 (MAI Act).
At the time of this accident statutory benefits for treatment and care under the MAI Act ceased after 26 weeks if the person’s only injuries resulting from the motor accident were threshold injuries.[1]
[1] Section 3.28 of the MAI Act.
On 9 June 2021 Mr Tran lodged an Application for Personal Injury Benefits.
On 21 September 2021 the insurer issued a Liability Notice – benefits after 26 weeks informing the claimant that his injuries were minor (threshold) injuries and that his entitlement to statutory benefits including treatment and care would cease from 27 November 2021.[2]
[2] A1 (claimant’s bundle of documents) p 9.
On 6 October 2021 Mr Tran sought an Internal Review of the minor injury decision.[3]
[3] A1 p 15.
On 21 October 2021 the insurer issued their Internal Review - Certificate of Determination and Statement of Reasons affirming their earlier minor (threshold) injury decision.[4]
[4] A1 p 22.
On or about 7 June 2022 the claimant filed an application with the Personal Injury Commission (the Commission) seeking a medical assessment to resolve the minor (threshold) injury dispute between the parties.
On 22 August 2022, the insurer determined that the claimant’s degree of permanent impairment was not greater than 10%.
Section 6.14(1) of the MAI Act provides that “A claim for damages cannot be made before the expiration of 20 months after the motor accident to which the claim relates unless the claim is in respect of the death of a person or injury resulting in a degree of permanent impairment of the injured person that is greater than 10%”.
On 7 September 2022, the claimant sought an internal review of the insurer’s permanent impairment determination dated 22 August 2022 and on 23 September 2022, the insurer affirmed its decision of 22 August 2022.
A separate application for medical assessment of a permanent impairment dispute (M10536791/22) was lodged by the claimant on or about 27 September 2022.
Section 4.12 of the MAI Act provides if there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a medical assessor under Division 7.5.
Section 7.17 of the MAI Act defines a medical dispute as a dispute between a claimant and an insurer about a medical assessment matter.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including:
(a) the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage), and
(e) whether the injury caused by the motor accident is a minor injury for the purposes of the Act.
The first referral to Medical Assessor Kenna dated 26 September 2022 was in relation to minor injury only. A second referral to Medical Assessor Kenna dated 25 October 2022 was described as an updated referral and referred two disputes:
· permanent impairment injury, and
· minor injury.
Having regard to that referral Medical Assessor Kenna not only determined minor injury but also undertook an assessment of permanent impairment.

A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[5]

STATUTORY PROVISIONS

[5] Section 7.20 of the MAI Act.

Threshold injury

The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3   The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6     The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7   In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8    Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9    Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”

Permanent impairment

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 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 (AMA4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[6]
[6] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“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.
6.7 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.”

CAUSATION OF THRESHOLD INJURY

In Briggs v IAG Limited trading as NRMA Insurance[7] his Honour Justice Wright stated at [35]:
[7] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

ASSESSMENT UNDER REVIEW

The dispute was referred to Medical Assessor Clive Kenna who assessed Mr Tran on 2 November 2022 and issued a certificate dated 4 November 2022. Medical Assessor Kenna was asked to assess whether the injuries referred for assessment were minor injuries for the purposes of the MAI Act and to assess permanent impairment for those injuries. The injuries referred for assessment were described as follows:
·        right wrist and hand – triangular fibrocartilage lesion, shift in positioning of bones in wrist;
·        low back – annular rupture, radiculopathy;
·        cervical spine, and
·        left shoulder – strain.
Medical Assessor Kenna found there was no evidence to demonstrate Mr Tran sustained an injury to his left shoulder in the accident. He also found there was a full range of movement and no indication of pathology pertaining to the rotator cuff or acromioclavicular joint. He concluded soft tissue injury to the left shoulder was not caused by the accident.
In relation to the cervical spine Medical Assessor Kenna reported uniform restriction of movement, no radiological findings distally and noted the radiological findings confirmed pre-existing degenerative change. Noting there was no evidence of radiculopathy he concluded Mr Tran had sustained a soft tissue injury to the cervical spine which met the definition of minor injury.
Medical Assessor Kenna concluded the annular tear demonstrated on the MRI of the lumbar spine was not specifically related to the accident and noted Mr Tran had advanced degenerative change of the lumbar spine with associated anterior listhesis and multi-level discogenic pathology. He concluded Mr Tran had sustained soft tissue injury to the lumbar spine with no evidence of radiculopathy, a minor injury.
In respect of the right wrist, Medical Assessor Kenna found Mr Tran had full range of movement in supination and pronation, provocative testing for the triangular cartilage was negative and there was also full range of flexion extension. He noted there was associated advanced degenerative change confirmed radiologically and that the pain and discomfort of the right wrist was related to the radial styloid process where there was associated arthritic swelling. Medical Assessor Kenna concluded the Triangular Fibrocartilage Complex (TFCC) pathology was an incidental finding and not related to the accident. He concluded the injury to the right wrist was a minor injury.
In relation to permanent impairment Medical Assessor Kenna assessed 0% WPI for the cervical spine, 0% WPI for the lumbosacral spine and 1% WPI for the right wrist.

REVIEW PROCEDURE

The claimant lodged an application for review of the medical assessment of Medical Assessor Kenna on 13 December 2022 within 28 days of the date on which the certificate of
Assessor Kenna was made available to the parties.
On 20 December 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).[8] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[8] Section 7.26(5A) of the MAI Act.

Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[9]
[9] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[10]
[10] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.

EVIDENCE BEFORE THE REVIEW PANEL

The claimant uploaded to the portal an index marked A1 and a bundle of documents marked A2 and paginated from pages 1 to 51. The claimant also sought to rely on submissions dated 13 December 2022 marked A2.
The insurer uploaded to the portal an index marked R2 and a bundle of documents marked R1 paginated from pages 1 to 116. The insurer also uploaded submissions dated 10 January 2023 and an article titled “TFCC injuries: How we treat?” by Jawed, Ansari and Gupta published in the Journal of Clinical Orthopaedics and Trauma in June 2020.
At the request of the Panel the insurer also uploaded submissions dated 6 March 2023 outlining the basis of the dispute as to permanent impairment between the parties. The claimant also uploaded to the portal on 10 March 2023 document evidencing the dispute as to permanent impairment.
In a Review Panel Report and Directions dated 20 March 2023 the Panel directed the claimant by close of business 17 April 2023 to upload to the portal records of all general practitioners consulted by the claimant for the period two years prior to the accident to date. The claimant was unable to secure the release of records from Dr Albert Nguyen. A Direction for Production was served on Dr Nguyen. He produced documents which were uploaded to the portal on 27 July 2023.

Application for Personal Injury Benefits

In the Application for Personal Injury Benefits dated 9 June 2021 Mr Tran described his injuries as “neck, back, right wrist, left shoulder, shock”.[11]
[11] A2 p 2.

Clinical records of Dr Albert Nguyen

The clinical records of Dr Nguyen, general practitioner (GP) disclose the first attendance was on 24 October 2018. Other than complaints about recurrent right knee pain on 4 December 2020, 14 February 2021 and 18 February 2021 there were no musculoskeletal complaints reported.
On 31 May 2021 Dr Nguyen reported:
“Patient stated that an MVA occurred on 29/05/2021
Speed of impact = ?40-50km.h.
Patient was a driver. Car has damage to its rear. Seat belt was worn
Able to self-extricated from car
Denied any ETOH / Drug use at the time of incident
No head impaction nor headache / LOC. Able to recall the event fully
No chest pain / headache / visual changes / SOB pre and post incident
C/o shoulders pain / right wrist pain since
Look well. No wheeze or stridor. Breathing comfortably
Well perfused / hydrated. No cyanosis
TML. Good AE bilat. PN not hyper-resonant. ABND. No palpable ribs fracture / flail chest
HSDNM. Well hydrated. BP 129/76. P64reg. No postural changes
Abdo and flank SNT. No features of intra-abdo bleed
Normal gait / weight bearing. Alert / oriented. GCS 15/15
PERRLA. FROM both eyes w/o diplopia / nystagmus. Normal VA / VF
Normal facial symmetry / sensation
No periorbital heamatoma. Red reflexes present bilat
No CSF rhinorrhoea / ottorhoea. Battle's sign neg
No palpable skull fracture.
C-spine = mild tenderness paravertebral muscles
Full ROM of shoulders. Pain max with abduction both shoulders
Full ROM both wrist. Mild tenderness right wrist
Carotid / Neck: Non tender”
On 3 June 2021 Dr Nguyen reported the wrist pain was improving but the neck and lower back pain was worsening since the accident.
On 7 June 2021 Dr Nguyen reported the claimant’s lumbo-sacral back pain was better, he had better mobilisation and was able to walk and weight bear normally. He reported no abnormalities of the spine, other than mild tenderness at the paravertebral muscle at the L5/S1 level on the left side. He issued a Certificate of capacity/certificate of fitness in which he listed the injuries sustained in the accident as “soft tissue injury involved right wrist,
[12] A2 p 6.
C-spine and lumbo-sacral spine”.[12]
However, on 22 and 25 June 2021 Dr Nguyen reported the neck, lower back and wrist pain persisted.
On 7 July 2021 Dr Nguyen reported acute on chronic lumbo-sacral back pain for the last few days. Again, there were no abnormalities of the spine other than mild tenderness of the paravertebral muscle.
On 10 and 12 July 2021 Dr Nguyen reported the lower back pain persisted although he noted it was improving when he reviewed the claimant on 15 July 2021 and 22 July 2021.
On 19 August 2021, 2 September 2021 and 11 October 2021 Dr Nguyen again reported acute on chronic lumbo-sacral back pain.
On 27 October 2021 Dr Nguyen reported:
“Recurrent pain in right wrist for last few months since recent MVA
Looks well
Afebrile
Anatomical snuff box non tender
Full ROM of wrist / MCP + PIP + DIP joints without pain. NV intact distally
Mild tenderness base of right wrist
No swelling
Discussed re PRN analgesia….”
The next and last relevant entry is on 18 July 2023 when Dr Nguyen reported:
“Pain at and proximal to right wrist on radial border esp during pinch grasping and thumb / wrist movement
Mostly dull ache but intermittent severe pain during acute flare-up. Rarely unable to use the hand (e.g. writing)
No recent trauma / injury
Work as seafood processer
Looks well
Tender radial styloid process + Firm tender localised swelling in area of radial styloid
Finklestein +
Reproducible pain with extension of extensor pollicis brevis and abductor pollicis longus
Full ROM. NV intact distally
Tinel / Phallen neg
Likely De Quervain's tenosynovitis / "Washer woman's sprain"
Advised re need for rest and avoid aggravating maneuvers + thumb / wrist splint
Consider cortisone injection if persist
May need surgical release if recalcitrant”.
Dr Nguyen diagnosed right De Quervain’s tenosynovitis.

Duc Loc Tran, physiotherapist

Physiotherapist Duc Loc Tran issued an Allied health recovery request (AHRR) dated 23 July 2021 with the following opinion as to diagnosis:[13]
“Clinical presentation is consistent with:
1.     Whiplash related cervical radiculitis. Symptom was clinically reproduced with stimulation at C3/4, C4/5 and C5/6 level.
2.     Right wrist intra-articular injury with synovitis.
3.     Whiplash triggered recurrent lumbar pain …”
[13] A2 p 26.
In a subsequent AHRR dated 24 September 2021 Mr Duc Loc Tran reported the following clinical findings which showed improvement on the earlier findings:
“1.     Abnormally moderately tender C4/5, moderately 5/6 and severely C6/7.
2.     Right wrist mild effusion, abnormally moderately tender radiocarpal wrist joint.
3.      Clinical stress tests:
i. Cervical rotation reduced to 90% of norm.
ii. Waist to chest cradle lifting of 9.0kg sensitized cervical spine 3/10, shoulder girdle 4/10
iii. Right wrist ROM reduced to 85% of the normal left side.
iv. Pain reduced right hand grip to 70% of the normal left side (29k Vs 42kg).”[14]
[14] A2 p 38.

David Elvish, Workplace Physiotherapy

Mr David Elvish, independent physiotherapy consultant undertook a documentation review on 1 December 2021.[15] He reported physiotherapy had commenced with Liberty Physiotherapy on 15 July 2021.
[15] R1 p 108.
He noted Mr Tran was employed as an Oyster Opener on a full-time basis and was certified as having capacity for some type of work for normal hours and days subject to the following recommendations:
·        avoid prolonged walking/standing;
·        not work in chain production;
·        lift/carry up to 2 kg, only between waist and chest height;
·        avoid stooping/twisting/repetitive bending;
·        avoid forceful pushing and pulling;
·        avoid awkward postures, and
·        alternate postures regularly.
It was reported Mr Tran had achieved graduated gains to mobility and function and a resumption of work duties. Mr Elvish concluded that Mr Tran had been established in a comprehensive self-management program and that further physiotherapy was not reasonable and necessary.

Imaging

MRI lumbar spine, 28 August 2021[16]
Conclusion: L4/5 Grade 1 anterolisthesis with left L4 nerve root contact.
L5/S1 central broad-based bulge with posterior annular tear and bilateral L5 nerve root contact/impingement.
[16] A1 p 43.
MRI cervical spine, 23 October 2021[17]
Impression:
1.     Left paracentral disc osteophyte complex at C6/7 level causing left-sided neural foraminal narrowing and compression upon the left exiting C7 nerve root.
2.     Broad-based and left paracentral disc osteophytic complex at C5/6 level causing left-sided neural foraminal narrowing and compression upon left exiting C6 nerve root.
3.     Mild bilateral facet joint arthropathy at C2/3 and C3/4 level.
[17] A1 p 45.
MRI right wrist 12 November 2021[18]
“Comment:
1.     There has been perforation of the peripheral part of the TFC, this along with chondromalacia and lunotriquetral ligament disruption and arthritic changes with radiocarpal and radioulnar joint.
According to Palmer classification of TFC lesions, features suggesting Class 2E TFC lesion.
2.     There is volar angulation of lunate and dorsal rotation of capitate suggestive of (VISI) volar intercalated segment instability.
3.     There are degenerative changes within the intercarpal joints with subarticular cyst formation noted within the lunate, capitate, scaphoid, triquetrum and hamate bone.”

SUBMISSIONS
Claimant’s submissions
[18] A1 p 48.

The claimant provided submissions dated 30 November 2021.[19] Having regard to the complaints of persistent right wrist pain and the findings on the MRI including the class 2E lesion of the TFCC and the volar shift of the lunate bone and dorsal capitate the claimant submits he has sustained injury to the cartilage and bone of the right wrist, a non-minor injury.
[19] A2 P 51.
The claimant submits there is rupture of the annulus in the lumbar spine identified on MRI examination. In his MRI lumbar spine report dated 28 August 2021 the claimant identified an annular tear at L5/S1 and bilateral L5 nerve root contact/impingement. It is further submitted that grade 1 anterolisthesis with left L4 nerve root contact was identified at the L4/5 level.
The claimant submits there is evidence of cervical radiculopathy having regard to the history of prolonged pain in the neck radiating to the left arm and the compression of the left C6 and C7 nerve roots identified on the MRI.
The claimant provided submissions dated 13 December 2022. The claimant notes Medical Assessor Kenna found there was evidence that injury to the right wrist was causally related to the accident. The claimant submits that Medical Assessor Kenna erred in concluding that the tear to the triangular fibrocartilage complex (TFCC) fell within the definition of minor injury, noting that the definition of minor injury does not include a complete or partial rupture of tendons, ligaments, menisci or cartilage.
The claimant also submits that the volar shift of the lunate bone and dorsal capitate bone is indicative of physical trauma sustained to the wrist in the accident and does not fall within the definition of minor injury.

Insurer’s submissions

The insurer provided submissions dated 24 June 2022 in respect of the minor injury dispute.[20]
[20] R1 p 1.
The insurer submits the findings in the MRI scan of the cervical spine indicated degenerative changes which have occurred with the passage of time. Based on the evidence the insurer submits the claimant has sustained a minor injury to the cervical spine.
The insurer submits the findings shown on the MRI scan of the right wrist are degenerative in nature and there is no evidence of any trauma related injury caused by the accident. The insurer submits there is no evidence of a complete or partial rupture of tendons, ligaments or cartilage in the right wrist.
Whilst the claimant referred to injury to the left shoulder in the Application for personal injury benefits the insurer notes no complaint was made to treatment providers and there is no record of any examination findings or diagnosis. The insurer submits the injury to the left shoulder was not caused by the accident.
In respect of the lumbar spine the insurer notes neither the claimant’s GP or physiotherapist identified two or more signs of clinically verified radiculopathy pertaining to a specific dermatomal or myotomal nerve root. It is noted the physiotherapist provided a diagnosis of whiplash triggered recurrent lumbar pain, and also noted pre-existing lower back symptoms. The insurer submits the finding of a posterior annular tear is an incidental finding considering the extensive degeneration found in the claimant’s spine. The insurer submits the claimant sustained a minor injury to the lumbar spine.
The insurer provided submissions dated 10 January 2023 in relation to the medical review.
The insurer asserts that the claimant’s contention that Medical Assessor Kenna erred in his determination that pathology in the TFCC identified by MRI of the claimant’s right wrist was not caused by the accident is misconceived.
Attached to the insurer’s submissions is an article, “TFCC injuries: How we treat?” by Jawed, Ansari and Gupta published in the Journal of Clinical Orthopaedics and Trauma in June 2020. The insurer notes the radiologist who performed the MRI on 12 November 2021 noted there was Palmer classification 2E pathology in the claimant’s right TFCC. The insurer notes the article makes clear that class 2E indicates degenerative rather than traumatic pathology. The insurer submits this is consistent with the opinion of Medical Assessor Kenna that the pathology was “non-traumatically induced” and “indicat[ed] extensive degenerative change of the right wrist”.
The insurer also disputes the claimant’s contention that Medical Assessor Kenna did not provide adequate reasons for his determination that volar shift of the claimant’s right lunate and dorsal capitate bones was not caused by the accident.
In any event the insurer submits “volar angulation of lunate and dorsal rotation capitate suggestive of … volar interciated segment instability” does not describe an injury to “hard tissue” but slight movement of bones in the wrist as a result of surrounding pathology in the TFCC. The insurer submits the slight movement of bones would not fall outside the definition of minor injury.
Further the insurer submits slight movement of the bones can be secondary to TFCC pathology and vice versa. The insurer notes from the article that class 2E TFCC pathology represents the most significant and widespread degenerative pathology under the Palmer classification system.

THE MEDICAL EXAMINATION

Mr Tran was examined by Medical Assessor Christopher Oates on 15 June 2023. A Vietnamese interpreter, Ms Kim Loan Bui (NAATI No. CPN7BI45C), was present for the duration of the assessment.

History

Pre-accident medical history and relevant personal details

Mr Tran is married with two children and came to Australia in 2000 when he was aged about 45. He is now 58 years of age.
He has worked full-time in a seafood processing company in Lidcombe for the last 13 years. He was an oyster opener but not for the last 10 years. His usual job was mixing salads.
He cannot recall the details of any time off work after the accident, but he did at some point return to work doing lighter duties, loading salmon fillets on trays, and then putting them on display, and still works on these duties full-time.
He has had no previous motor vehicle accidents.
He had a fractured left wrist at the age of 25 in Vietnam, treated by plaster of Paris cast. He had an appendicectomy at age 20. His health was generally good, and he was on no regular medications.

History of the accident

Mr Tran states he is right-handed.
He says on 29 May 2021, he was the driver of a vehicle with his wife as front seat passenger. He had a seatbelt on. He had stopped his car, signalled to park, and commenced a reverse park, turning the steering wheel to the left, when a following vehicle impacted the right rear corner of his vehicle, pushing his car between four to five metres forward.
Mr Tran does not recall hitting any part of his body inside the cab. He was not knocked out. He was in shock and at the time couldn’t feel which body part was hurting. Police and ambulance did not attend.
The right rear wheel was stuck against the wheel arch so he could not drive the car. Mr Tran called his son-in-law who came and picked them up. He says his car was taken to a smash repairer and was repairable, but he opted to sell it instead.

History of symptoms and treatment following the accident

Mr Tran saw his GP, Dr Nguyen in Bankstown, the day after the accident. He was diagnosed with whiplash-related cervical radiculitis, right wrist intra-articular injury with synovitis, and whiplash-triggered recurrent lumbar pain.
Mr Tran said he was complaining of neck pain radiating towards the left upper trapezius, low back pain mainly right sided, and radial right wrist pain pointing to the snuff box area. He was treated with over-the-counter analgesics, such as paracetamol.
He had a course of physiotherapy with treatment to the neck, the right side of the lower back and right wrist for several months, which gave short-term benefit. Liability was then declined, and he did a further five physiotherapy sessions under a GP healthcare plan.
Because of persistent symptoms, Mr Tran had MRI scans of the neck, back and right wrist. After this, his GP recommended more physiotherapy, but he could not afford it.
An MRI of the lumbar spine showed a Grade 1 L4/5 anterolisthesis with left L4 nerve root contact and central broad-based L5/S1 disc bulge with posterior annular tear, and bilateral L5 nerve root contact.
An MRI scan of the cervical spine showed left C6/7 paracentral disc osteophyte complex causing left-sided foraminal narrowing and compression on exiting left C7 nerve root, with a broad-based left paracentral C5/6 disc osteophyte complex with left foraminal narrowing and compression upon left exiting C6 nerve root, and facet joint arthropathy bilaterally at C2/3 and C3/4.
The MRI scan of the right wrist showed perforation of peripheral part of TFCC, with chondromalacia and lunotriquetral ligament disruption and arthritic changes within the radiocarpal and radioulnar joint. According to Palmer classification of TFC lesions, the features suggested Class 2(e) TFC lesions.
There was also volar angulation of lunate and dorsal rotation of capitate suggestive of VISI (volar intercalated segment instability). There were degenerative changes within the intercarpal joint with subarticular cyst formation within the lunate, capitate, scaphoid, triquetrum and hamate bones.

Details of any relevant injuries or conditions sustained since the accident

Mr Tran stated he had not had any subsequent injuries, nor any relevant condition develop since the accident.

Current symptoms

Mr Tran has neck discomfort radiating to the left trapezius which flares up at times, particularly if he turns his head quickly to the left. He takes Panadol. There are no radiating symptoms to the shoulders or arms.
There is specific radial right wrist pain which he feels if he overuses that body part, and it is tender when pressed over the radial side of the wrist. Actions such as turning the steering wheel or lifting a heavy weight or holding an object tightly with the right hand will produce right radial wrist discomfort, so he uses his left hand more when turning the steering wheel.
He has constant low back pain but of variable severity. It is made worse with prolonged standing or reaching upwards. He notices numbness from the waist level to the posterior right thigh and upper right calf with prolonged standing or sometimes when simply lying in bed. His low back pain is relieved by sitting down to rest.

He works full-time and works standing up.
He does household chores on the weekend, and this causes him pain. He has discomfort during the week, so avoids such chores then. He lives in an apartment with his wife. She did not work before the motor vehicle accident, but did try waitressing after the accident, but gave it up after one day as she had symptoms from a whiplash injury she had received in the same accident. There are two children aged nine and four.
He is independent with personal care.

Current and proposed treatment

He takes paracetamol as required for discomfort.

CLINICAL EXAMINATION

He was of short stocky build with height 157cm and weight 70kg.
He sat comfortably whilst relating the history and could transfer freely from a chair and on and off the examination couch and move freely about the examination room.

Cervical spine (cervicothoracic)

There was no muscle spasm or guarding. There were no non-verifiable radicular complaints. Normal contour.
Flexion and extension were both three-quarters of normal range. Lateral flexion was two-thirds of normal range bilaterally with complaint of left neck tightness on right lateral flexion. Rotation three-quarters bilaterally with complaint of left neck discomfort on rotation to the right and left.
There was some tenderness over the left upper trapezius at the base of the neck. Reflexes, power and sensation in the upper limbs were normal.
Upper arm girth; right 30.5cm, left 31cm measured at 10cm above the elbow crease. Forearm girth; right equals left equals 27cm measured at 5cm below the elbow crease.

Lumbar spine (lumbosacral)

There was no muscle guarding or spasm. There was tenderness in the right L5/S1 area. Normal lumbar lordosis.
Flexion was three-quarters of normal range with complaint of right-sided low back discomfort. Extension three-quarters of normal range. Lateral flexion was full bilaterally and rotation was full bilaterally. There was complaint of right-sided low back discomfort at the end of flexion, extension, rotation to the right and left, and lateral flexion to the left.
He was able to squat and could heel and toe walk. Reflexes and power in the lower limbs were normal. Sensation was normal in the left lower limb. In the right lower limb, there was said to be partial decrease to light touch over the entire right lower extremity, except for the medial lower leg, and reduced sensation over the entire right foot, which is a non-dermatomal distribution.
Thigh girth; right 48cm, left 47cm. Leg girth; right 36cm, left 37cm.

Upper extremity (right and left shoulders)

Right and left shoulders showed full range of movement in flexion, extension, adduction, abduction, internal and external rotation.
There was complaint of left basal neck discomfort at the end of abduction and rotation of the left shoulder.
There was full range of movement of right and left elbows in flexion, extension, pronation and supination.

Right and left wrists

There was tenderness localised to the radial aspect of the right wrist with some thickening of this area. There was no wrist instability and no crepitus, and no tenderness over the dorso-ulnar wrist site of the triangular fibrocartilage complex.
The press test for triangular fibrocartilage disorder was negative bilaterally. Performing this test, which involves pushing oneself upwards out of a chair using the palms of the hands on the arm rests, caused complaint of radial wrist pain not dorso-ulnar wrist pain, as would be expected with an active TFCC lesion.
Active range of motion was measured as follows:

Wrist Movements Active ROM Measured
RIGHT Active ROM Measured
LEFT

Dorsiflexion

50°

50°

Volar flexion 70° 60°

Radial deviation 5° 20°

Ulnar deviation 40° 30°

Right and left hands

There was a full range of movement bilaterally.

Comments on consistency

The claimant was pain focused and this caused inhibition in demonstrating active range of movement, but he was asked to show his best range of movement, performing the movements slowly so as not to cause discomfort. After this explanation, he was able to do this, allowing a valid assessment to be performed.
The restriction in volar flexion in the left wrist was said by the claimant to be the result of a previous left wrist fracture and the restriction in radial deviation in the right wrist is the result of advanced degenerative changes in the radial right wrist, as evidenced by thickening and tenderness in this area of the wrist.

Investigations

Mr Tran brought to the appointment the films of the MRI scan of the lumbar spine dated 28 August 2021, the films of the MRI scan of the cervical spine dated 23 October 2021, and the films of the MRI scan of the right wrist dated 12 November 2021.
The scan films showed degenerative changes in the lumbar and cervical spine, and particularly in the right wrist.

DIAGNOSIS AND THRESHOLD INJURY

Lumbar spine

The annular tear described in the L5/S1 disc is mid-line and at the site of an L5/S1 central broad-based disc bulge and these are both degenerative findings, as are:
(a)    the mild loss of lordosis explicable on the basis of multi-level lumbar degenerative disease;
(b)    multi-level disc desiccation; with
(c)    left sided, mild and right sided, moderate to severe L5/S1 facet joint degenerative disease resulting in severe bilateral foraminal narrowing;
all of which indicate advanced lumbar degenerative changes.
The MRI scan report also noted no bony oedema suggestive of acute injury such as fracture.
A post-traumatic finding was not reported. There are no accompanying changes on MRI scan to suggest the presence of an injury, such as disc herniation or end plate oedema.
The end plate is a bi-layer of cartilage and bone that separates the intervertebral disc from the adjacent vertebrae.
The bright signal seen on the T2 weighted image of the MRI scan and described as an “annular tear” by the radiologist is a high intensity zone. The signal indicates a high water content in a small part of a tissue – the ligament like annulus fibrosis – which normally has a low water content, but of itself, does not tell us why the water content is high. This may be an acute trauma response, some other form of inflammatory response, penetration of nuclear material, or tissue degeneration, in particular mucoid degeneration, which is commonly seen in the body’s ligaments and tendons as part of ageing, or it may be delamination, also a normal feature of connective tissue degeneration.
It may be a source of pain, or it may not.
It is clear from Briggs that the principles applicable to the assessment of permanent impairment are relevant to the question of causation when considering whether an injury is a threshold injury. The Motor Accident Guidelines state that the presence of morphological variations in spinal imaging studies do not make the diagnosis and that some imaging findings are normal for age. Specifically, clause 6.121 provides:
“While imaging and other studies may assist medical assessors in making a diagnosis, it is important to note that the presence of a morphological variation from what is called normal in an imaging study does not make the diagnosis. Several reports indicate that approximately 30% of people who have never had back pain will have an imaging study that can be interpreted as positive for a herniated disc, and 50% or more will have bulging discs. Further, the prevalence of degenerative changes, bulges and herniations increases with advancing age. To be of diagnostic value, imaging findings must be concordant with clinical symptoms and signs, and the history of injury. In other words, an imaging test is useful to confirm a diagnosis, but an imaging result alone is insufficient to qualify for a DRE category”.
Use of the term “tear” can be misunderstood because the analogy to other types of connective tissue tear has a connotation of injury, which is inappropriate in the context of annular tear. The term “fissure” is the correct medical term. Use of the term “tear” should be discouraged and when it appears, it should be recognised that it is meant to be synonymous with “fissure” and is not reflective of injury. The term annular “tear” is now regarded as non-standard usage by medical practitioners in this field of medicine.
Because imaging is clearly not definitive in informing as to whether an annular fissure is a post-traumatic or an incidental degenerative finding, the Panel used its clinical expertise and experience to assess the contemporaneous medical evidence.
Importantly, to sustain an acute disc disruption would require a violent mechanical force to the torso which is not the case here. There was no need for an ambulance to attend, the claimant did not require hospital treatment and did not see his GP until the following day. MRI scan of the lumbar spine was not performed until three months after the accident, because of persistent low back pain, after an extended course of physiotherapy.
Had the claimant sustained an acute disc disruption injury, the Panel would have expected reports of severe low back pain within minutes to hours of the accident which would then persist either on a continuous or intermittent basis and be accompanied by a rigid lower back due to muscle spasm, with the inability to sit comfortably, limiting the subject to either lying flat or standing up only. There could also have been possible radicular symptoms of pain and pins and needles radiating to the lower extremities, if a lateralising disc injury had been caused, resulting in lumbar nerve root pressure. This is not the case here, according to the medical evidence and the results of Panel re-examination, with no signs of radiculopathy, such as reflex or sensory changes or weakness in the lower extremities evident.
On the balance of probabilities, the Panel finds the annular tear/fissure is a pre-existing condition. The lumbar spine clinical examination did not disclose two or more clinical signs to establish lumbar radiculopathy. The injury to the lumbar spine is a soft tissue injury and therefore a threshold injury.

Right wrist injury

The changes at the right wrist are extensive and represent degenerative rather than post-traumatic changes.
The disruption of the TFC (perforation) and of lunotriquetral ligaments are the results of degenerative changes which are pre-existing. There is no tenderness in these areas.
The claimant has and continues to experience tenderness over the radial aspect of the right wrist.
The AHRR from the physiotherapist referred to radial wrist tenderness and pain after the accident and Medical Assessor Kenna noted tenderness over the radial styloid which is consistent with the findings of the physiotherapist.
The Panel is satisfied the MRI scan finding of TFCC rupture is an incidental finding, because the records do not indicate Mr Tran experienced symptoms in this part of his wrist. Indeed, Mr Tran indicated that region had never been symptomatic following the accident.
The Panel finds it was more likely that the TFCC rupture was due to pre-existing wear and tear degenerative change. The Panel notes in a letter dated 21 September 2020 Jennifer De Souza of Tassal Group Limited described the physical requirements for a processing attendant as follows:

Material Handling

Packing of fish products (500g – 2 kg) – bench height

Picking up of crate – up to 20 kg, shared between two employees, Floor to bench height

Lifting of bags and pouring of bags of vegetables – up to 2 kgs.

Postural Demands

Stooping

Squatting

Standing

Sitting

Reaching forward from shoulder and hip

The Panel considers it is more likely that the physical requirements of the claimant’s employment as outlined in the letter from Ms De Souza would have resulted in wear and tear degenerative change. The Panel is not satisfied the TFCC rupture was aggravated by the accident.
There has not been any acute injury to nor an aggravation of the degenerative changes affecting the triangular fibrocartilage complex or nearby ligaments.
The Panel finds the claimant sustained a soft tissue injury to the right wrist with aggravation of pre-existing asymptomatic radial wrist degenerative change. In the absence of an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage this is classified as a threshold injury.

Cervical spine

The injury to the cervical spine is a threshold injury, consisting of soft tissue injury and significant aggravation of pre-existing cervical spine degenerative changes. There is no evidence of cervical radiculopathy on clinical examination.

Left shoulder injury

The Panel is not satisfied the claimed left shoulder injury is related to the accident. There is no evidence of complaint of injury to the left shoulder following the accident, no investigations have been performed, no treatment has been administered and the claimant made no reference to the left shoulder. There are neck symptoms radiating to the left upper trapezius, but this does not constitute a shoulder injury.
The Panel is not satisfied Mr Tran sustained any injury to the left shoulder caused by the accident.

PERMANENT IMPAIRMENT

Lumbosacral spine

On examination of the lumbar spine there was no dysmetria, no guarding, and no radiculopathy. The non-dermatomal distribution of claimed sensory loss in the lower extremities does not qualify as non-verifiable radicular complaints because they do not follow a specific lumbar spinal nerve root distribution.
In accordance with Table 72, AMA 4 Guides page 110 symptoms which are present are a clinical differentiator for DRE (diagnosis-related estimates) Lumbosacral Category I giving 0% WPI.

Right wrist injury

Under Figure 29 on page 3/38 of the AMA 4 Guides a radial deviation of 5° gives 3% upper extremity impairment (UEI); under Figure 26 on page 3/36 of the AMA 4 Guides dorsiflexion 50° gives 2% UEI. These values are added giving a 5% UEI, which under table 3 on page 20 of the AMA 4 Guides is equivalent to 3% WPI.
The uninjured left wrist which has restricted dorsiflexion cannot be used as a baseline because it is not a “normal uninjured” joint. There is no documented evidence of restricted right wrist range of motion prior to the accident on which to make a deduction.

Cervical spine

On examination of the cervical spine there was no dysmetria, no guarding, no non-verifiable radicular complaints and no radiculopathy. In accordance with Table 73 on page 110 of the AMA 4 Guides the symptoms which are present are a clinical differentiator for DRE Cervicothoracic Category I giving 0% WPI.

Total permanent impairment

The Panel assesses a total WPI of 3%.

CONCLUSION

The Review Panel revokes the certificate of Medical Assessor Clive Kenna dated 4 November 2022 and determines that the following injuries caused by the motor accident are threshold injuries:
·        right wrist – soft tissue injury;
·        lumbar spine – soft tissue injury; and
·        cervical spine – soft tissue injury.
The Review Panel determines the following injuries were not caused by the motor accident:
·        right wrist and hand – triangular fibrocartilage lesion, shift in positioning on bones in wrist;
·        low back – annular rupture, and
·        left shoulder – strain.
The Review Panel revokes the Certificate of Medical Assessor Kenna dated 4 November 2022 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is 3% and is not greater than 10%:
·        lumbar spine – soft tissue injury;
·        right wrist – soft tissue injury; and
·        cervical spine – soft tissue injury.

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Citations

Tran v AAI Limited t/as AAMI [2023] NSWPICMP 366

Cases Citing This Decision

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Cases Cited

1

Statutory Material Cited

0

Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372

Wrist Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Dorsiflexion	50°	50°
Volar flexion	70°	60°
Radial deviation	5°	20°
Ulnar deviation	40°	30°

[2023] NSWPICMP 366

2 August 2023