Tran v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Tran v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 603
CLAIMANT:	Ngoc Dung Tran
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Susan McTegg
SENIOR MEDICAL ASSESSOR:	Ian Cameron
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	27 August 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whole person impairment (WPI); causation; injuries to cervical spine, lumbar spine, left shoulders, chest; pre-existing degenerative change; surgery to cervical spine; lack of complaint; Medical Assessor (MA) assessed 10% WPI; claimant injured in accident on 11 January 2020; pre-existing disc protrusion at C3/4 level; no complaint between 26 November 2016 and 11 January 2020 even though consulted GP on 26 occasions; finding that claimant sustained soft tissue injury to neck; claimant underwent C3/4 cervical decompression and fusion on 13 November 2023; reasons for surgery given as persistent pain, cord impingement and myelomalacia; whilst cord impingement and myelomalacia pre-dated accident it was not symptomatic; AAI Limited t/as AAMI v Phillips cited; accident caused condition to become symptomatic; accident was a material contribution to need for surgery; no complaint of back pain until about August 2021; Norrington v QBE Insurance (Australia) Limited considered; accident did not cause injury to lumbar spine; injury sustained to chest and left shoulder resolved; Held – certificate of MA revoked; 25% WPI found.
DETERMINATIONS MADE:	*MOTOR ACCIDENT INJURIES ACT 2017* Review Panel Assessment of Permanent Impairment Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Woo dated 21 January 2024 and issues a new certificate determining that the following injury caused by the accident gives rise to a WPI which is greater than 10%: · cervical spine – soft tissue injury and aggravation of pre-existing degenerative change. 2. The Review Panel determines that the following injuries caused by the motor accident have resolved: · left shoulder - soft tissue injury and aggravation of pre-existing degenerative change, and · chest – soft tissue injury. 3. The Review Panel finds the following injury was not caused by the accident: · lumbar spine – soft tissue injury.

REASONS FOR DECISION
BACKGROUND

On 11 January 2020 Mr Tran (the claimant) was the front seat passenger of a car accompanying his 19 year old daughter, a learner driver. The at fault car approaching from behind tried to overtake their car and collided with the rear corner on the driver’s side causing the car to spin onto the other side of the road (the accident). The driver’s side air bag deployed. Mr Tran sustained injury.
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Tran under the Motor Accident injuries Act 2017 (the MAI Act).
A dispute arose as whether the claimant had sustained a whole person impairment (WPI) greater than 10%.[1] The claimant filed an application with the Personal Injury Commission (the Commission) seeking a medical assessment to resolve the dispute between the parties.
[1] Claimant’s bundle p 43.
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).”
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
[2] Section 7.20 of the MAI Act.
The permanent dispute in respect of the cervical spine, the lumbar spine, the chest and the left shoulder was referred to Medical Assessor Woo.
The claimant sought a review of the assessment of Medical Assessor Woo.

DOCUMENTS CONSIDERED BY THE PANEL

On 12 April 2024 the claimant uploaded to the portal an indexed bundle of documents paginated from pages 1 to 145 (claimant’s bundle). On 23 April 2024 the insurer uploaded to the portal an indexed bundle of documents paginated from pages 1 to 214 (insurer’s bundle).

STATUTORY PROVISIONS

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 Motor Accident 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 with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[3]
[3] 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.”

REVIEW PROCEDURE

The claimant lodged an application for review of the medical assessment of Medical Assessor Woo on 16 February 2024 within 28 days of the date on which the certificate of Medical Assessor Woo was made available to the parties.
On 10 April 2024, 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).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
On 20 May 2024 the Panel agreed a medical examination was required.

CERTIFICATE UNDER REVIEW

Medical Assessor Woo issued a certificate dated 31 July 2023.
The following injuries were referred to Medical Assessor Woo for an assessment of permanent impairment:
·        cervical spine – soft tissue injury;
·        lumbar spine – soft tissue injury;
·        chest – soft tissue injury, and
·        left shoulder – soft tissue injury.
Medical Assessor Woo reported Mr Tran was born in Vietnam and came to Australia in 1983. He had prior work related injuries to both shoulders and underwent surgery in about 2005/2006.
He injured his cervical spine playing soccer on 17 June 2016. He presented to Liverpool Hospital and was referred by his general practitioner (GP) to Dr Abraszko, neurosurgeon. His cervical spine symptoms resolved without treatment.
Medical Assessor Woo reported following the accident the claimant attended Liverpool Hospital. A CT scan of the left shoulder suggested acromion fracture although this was not confirmed on subsequent imaging.
A subsequent CT scan showed degenerative arthropathy involving the acromioclavicular joint. Mr Tran underwent a left shoulder arthroscopic subacromial decompression and rotator cuff repair on 24 September 2020.
Dr Nguyen referred Mr Tran to Dr McKechnie, neurosurgeon who diagnosed cord compression on an MRI and myelomalacia and recommended surgery.
On 6 September 2021 Dr McKechnie reported back pain radiating intermittently through the right leg.
On 11 March 2022 Dr McKechnie performed a C3/5 discectomy and anterior fusion.
On examination Medical Assessor Woo found tenderness and stiffness in the cervical spine. Range of movement was ¾ normal with the suggestion of voluntary guarding. There was no dysmetria. There were non-verifiable radicular complaints – numbness of fingers in both hands. Reflexes were normal and symmetrical, there was no weakness and no atrophy. The reported deranged sensation of the ulnar two fingers of both hands did not correspond to the disc injury at the C3/4 level.
Medical Assessor Woo reported tenderness in the lumbar spine, and range of movement was restricted to half normal with the suggestion of voluntary guarding. Straight leg raising was 90º on both sides. Sciatic nerve root tension signs were negative. There was no dysmetria. There were non-verifiable radicular complaints – right leg numbness. Reflexes were normal and symmetrical, there was no weakness and no atrophy. He reported deranged sensation of the right lower limb was not localised to any spinal nerve root distribution.
Medical Assessor Woo reported anterior tenderness in both shoulders over the acromioclavicular joint. He measured shoulder active range of movement of both shoulders as follows:

Shoulder Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

150°

150°

Extension

40°

40°

Adduction

40°

40°

Abduction

90°

90°

Internal Rotation

60°

60°

External Rotation

70°

70°

Medical Assessor Woo reported there was a suggestion of voluntary guarding.
Medical Assessor Woo concluded “surgery carried out at the C3/4 level is considered to be related to the pre-existing C3/4 injury and the surgery was required earlier due to the aggravation by the motor accident”.
He certified the following injuries were caused by the accident:
·        cervical spine – soft tissue injury, aggravation of pre-existing degenerative changes;
·        lumbar spine – soft tissue injury; aggravation of pre-existing degenerative changes;
·        chest – soft tissue injury, resolved, and
·        left shoulder – soft tissue injury, aggravation of pre-existing degenerative changes.
Medical Assessor Woo assessed a 10% WPI on the basis Mr Tran had sustained a 5% WPI of the cervical spine and a 5% WPI of the lumbar spine. He assessed a 5% WPI of the left shoulder but noting Mr Tran had a similar range of motion of the uninjured right shoulder he deducted 5% resulting in 0% WPI caused by the accident.

EVIDENCE BEFORE THE REVIEW PANEL

Mr Tran is now 66 years of age and was 61 at the time of the accident.

Application for personal injury benefits

In an application dated 20 January 2020 Mr Tran reported he had sustained the following injuries in the accident on 11 January 2020:
·      chest injury;
·      neck injury, and
·      left shoulder.[5]
[5] Claimant’s bundle p 24.
In respect of pre-existing conditions Mr Tran reported “5/2009 work injuries + left shoulder + neck”.

Pre accident treating medical records

Liverpool Hospital

Mr Tran presented to Liverpool Hospital on 17 June 2016 with neck and eye pain following a knee to the face during soccer. A neck strain was diagnosed. The ED Discharge Referral states:
“On examination there was oedema of the right periorbital region but no bony tenderness. Evidence of previous epistaxis but no nasal deformity or tenderness. Lateral neck pain over the trapezius, no midline tenderness, normal peripheral neurology.”
Mr Tran again presented to Liverpool Hospital on 18 June 2016 with neck pain. He reported he was tackled yesterday while playing soccer. He asserted a loss of consciousness for 10 seconds. He was complaining of neck pain and shoulder bilateral pain. He was tender at C7, to the right side of the neck and the right shoulder. Range of movement of the neck was normal and range of movement of both shoulders was very good. The impression was reported at “?muscular pain in the neck”.

Cabra Vale Medical Centre

On 18 June 2016 Dr Vincent Nguyen reported neck pain on movement and pain radiating to both elbows following a knee hit to the face. Dr Nguyen referred him to Liverpool Hospital.
On 24 June 2016 Dr Nguyen reported the facial CT scan showed a right orbit fracture and the neck CT scan showed a disc protrusion at C3/4 and mild canal stenosis.[6]
[6] Insurer’s bundle p 71.
On 19 August 2016 Dr Nguyen referred Mr Tran to Dr Renata Abraszko. The presenting problem was described as neck stiffness on rotation.[7]
[7] Insurer’s bundle p 55.
On 29 September 2016 Dr Tran reported occasional numbness and tingling in both arms. [8]
[8] Insurer’s bundle pp 70-71.
On 12 November 2016 Dr Nguyen reported the neck MRI showed degenerative, worse at C3/4 and C4/5 with spinal stenosis and myelomalacia.
Thereafter Mr Tran consulted Dr Nguyen on 26 occasions between 26 November 2016 and the accident without any complaint of neck pain or related symptoms.

Dr Renata Abraszko, neurosurgeon

Dr Abraszko saw the claimant on 3 November 2016 when he presented with neck pain and stiffness. In June 2016 he had an incident when his right knee hit his face and he had a blowout fracture of the medial wall of the right orbit. She reported the CT scan of the cervical spine showed only mild disc protrusion at C3-C4 level. She reported he was complaining of pins and needles in both hands. On examination she reported power, tone, reflexes and sensation was normal. She reported Phalen’s sign was slightly positive in both hands. She recommended an MRI and nerve conduction studies. She stated she thought it was unlikely he would require any operative procedure in relation to his cervical spine.[9]

Post-accident treating medical records

[9] Insurer’s bundle p 59.

NSW Ambulance Service

On 11 January 2020 Mr Tran was conveyed by ambulance to Bankstown Hospital. The ambulance report states:
“… Pt was seated in the front L side passenger seat. Airbags were deployed on drivers side only. … Pt denies head strike. Denies LOC. Denies C spine tenderness. CO central sternal CP aggravated by movement …Nil seatbelt marks or bruises to chest. Denies Abdo pain….”[10]

Bankstown Hospital
[10] Claimant’s bundle p 78.

The ED Discharge referral reports Mr Tran had a left acromion fracture on CT which correlated with the clinical picture.[11] Dr Govender reported Mr Tran felt sore in his central chest, exacerbated by movement and deep breathing, he had nil neck tenderness, nil sensation change and local weakness. Dr Govender reported nil abdominal pain or bruising.
[11] Claimant’s bundle p 83.

Bonnyrigg Family Medical Centre.

Mr Tran consulted Dr Lam on 13 January 2020. He reported the accident and complained of neck pain especially with rotation. He also had lower sternal mild discomfort. On examination he reported:
“neck rom restricted left rotation
tender base of neck
UL normal
ROM normal
fingers and hands normal power and sensation.
hs dual
chest – clear
wearing splint”.[12]
[12] Claimant’s bundle p 105.
On 20 January 2020 Dr Thi Thao Cam Nguyen reported left shoulder pain and in a certificate dated 30 January 2020 he diagnosed a “left shoulder injury secondary to MVA 12/1/2020”.
On 30 January 2020 Dr Nguyen discussed the MRI of the left shoulder. He reported the pain had improved significantly but Mr Tran still had limited left shoulder movement.
On 13 February 2020 Dr Nguyen reported shoulder pain improved gradually and noted Mr Tran had been seen by a physiotherapist twice a week. He reported pain and tenderness of the left shoulder and limited left shoulder movement.[13]
[13] Claimant’s bundle p 107.
On 25 July 2020 Dr Nguyen referred Mr Tran to Dr Simon McKechnie. The presenting problem was described as:
“Neck pain radiated to shoulders L>R – c/o pins and needles – MVA 11/1/2020”.[14]
[14] Claimant’s bundle p 127.

H Vu Le, physiotherapist

Mr Le reported Mr Tran presented on 21 January 2020 with acute left shoulder pain as a result of the accident. He reported left shoulder active range of motion (AROM) was very painful and there was marked tenderness in the acromioclavicular joint (AC).[15]
[15] Claimant’s bundle p 48.
On 1 April 2020 Mr Le reported Mr Tran had regained fair AROM and the left shoulder was less symptomatic although there was still some impingement with abduction.

Cabra Vale Medical Centre

On 18 July 2020 when Dr Vincent Nguyen reported neck pain for a few days.[16] He reported a history of neck pain going to the left shoulder.
[16] Insurer’s bundle p 64.
On 25 July 2020 Dr Nguyen reported a neck scan and neck MRI showed myelopathy and nerve impingement.
The records were provided as of 25 February 2021.

Dr Kevin Luu, chiropractor

On 18 November 2020 Dr Luu reported Mr Tran had been receiving chiropractic care for his neck and shoulder pain post motor vehicle accident.[17]
[17] Claimant’s bundle p 50.

First Care Medical Centre

On 26 August 2021 Dr Ngoc Nguyen referred Mr Tran to Dr McKechnie “with chronic back pain for review and management advice”.[18]
[18] Claimant’s bundle p 129.

Dr David Lieu, orthopaedic surgeon

On 3 April 2020 Dr Lieu reported symptoms had worsened over the past two weeks. He noted tenderness over the greater tuberosity and biceps groove, restriction of movement and impingement. He recommended an arthroscopic subacromial decompression.[19]
[19] Claimant’s bundle p 43.
On 24 September 2020 Mr Tran underwent a left shoulder subacromial decompression at Sydney Southwest Private Hospital under the care of Dr Lieu.[20]
[20] Claimant’s bundle p 88.
On 20 November 2020, two months post-surgery Dr Lieu reported Mr Tran was progressing well but had some persisting numbness from his limb block or alternatively some pathology in his cervical spine.[21]
[21] Claimant’s bundle p 45.
On 15 January 2021 Dr Lieu reported continued improvement but having regard to some numbness in his hand despite full active movement of his fingers, referred Mr Tran for an MRI of his cervical spine.[22]
[22] Claimant’s bundle p 46.
On 21 May 2021 Dr Lieu reported Mr Tran had reached maximum medical improvement with some mild persisting impingement. He noted he was awaiting surgery for his cervical spine.[23]
[23] Claimant’s bundle p 47.

Dr Simon McKechnie, neurosurgeon

Mr Tran saw Dr McKechnie on 25 August 2020.[24] He reported he was a passenger in a vehicle on 11 January 2020 when it was rear ended, and he injured his neck and left shoulder. Dr McKechnie reported Mr Tran complained of chronic neck pain extending across the left shoulder with numbness in the left little finger. He reported he felt slight dizzy when he walked although there was no definite weakness or ataxia. Dr McKechnie stated:
“…given the persistent pain, cord impingement on the MRI and myelomalacia, I have recommended he proceed with surgery. Surgically I would recommend an anterior C3/4 discectomy and fusion with cage and plate. I would estimate an 80% chance of improvement in the radicular left neck and shoulder pain. The other main reason to perform the surgery is to decompress the cord and prevent further spinal cord damage and neurological deficits.”
[24] Claimant’s bundle p 109.

On 26 October 2020 Dr McKechnie reported Mr Tran was neurologically stable since the diagnosis of cord compression and myelomalacia.[25] On 3 December 2020 Dr McKechnie reported Mr Tran continued to experience neck and arm pain with numbness in the left hand.[26] Similarly on 19 January 2021 Dr McKechnie reported persistent pain in the neck and left shoulder as well as numbness and paraesthesia affecting the left hand.[27]
[25] Claimant’s bundle p 112.
[26] Claimant’s bundle p 113.
[27] Claimant’s bundle p 114.
On 31 May 2021 Dr McKechnie reported Mr Tran was clinically unchanged with neck pain radiating across the left shoulder and numbness in the left hand with slight loss of balance. [28]He reported the insurer would not approve the surgery, so he recommended he proceed through Liverpool public hospital.
[28] Claimant’s bundle p 117.
On 6 September 2021 Dr McKechnie reported Mr Tran was still complaining of neck and upper arm symptoms. He noted a delay with the C3/4 discectomy and fusion due to COVID-19. He reported Mr Tran was also complaining of low back pain intermittently through the right leg and has difficulty walking for long distances. He reported an MRI of the lumbar spine demonstrated right L4/5 lateral recess stenosis with L5 nerve root impingement.[29]
[29] Claimant’s bundle p 118.
Dr McKechnie reviewed the claimant on 29 November 2021 when he reported he was complaining of persistent pain in the neck as well as the lower back radiating through the right leg and into the foot.[30]
[30] Claimant’s bundle p 120.
On 8 February 2022 Dr McKechnie reported there was some improvement in leg pain following a CT guided L5 perineural cortisone injection.
Mr Tran underwent a C3/4 anterior cervical discectomy and fusion for cervical myelopathy at Liverpool Hospital on 11 March 2022.[31]
[31] Claimant’s bundle pp 91 and 137.
On 22 March 2022 Dr McKechnie reported the post-operative recovery was unremarkable.[32] He reported minimal dysphagia. He noted the preoperative sensory disturbance was unchanged. Mr Tran walked well without assistance and there was no neurological deterioration.
[32] Claimant’s bundle p 122.

Imaging

CT cervical spine, 20 June 2016 – the report concludes:
“No cervical spine fracture of dislocation. The odontoid process is intact. The vertebral heights are maintained. There is no paravertebral or epidural haematoma.
C2/3: Mild facet arthritis. No disc herniation, spinal canal stenosis or neural foraminal stenosis.
C3/4: Mild central disc protrusion causing mild canal stenosis. There is mild facet joint arthritis without significant neural foraminal narrowing.
C4/5 and C5/6: There are minor disc protrusions which do not cause significant canal stenosis. There is mild facet joint arthritis without significant neural foraminal narrowing.
C6/7 and C7/T1: Normal. No disc herniation, spinal canal stenosis or neural foraminal stenosis.”[33]
[33] Insurer’s bundle p 46.
MRI cervical spine, 4 November 2016 – the report reads:
“Normal appearance of the cranio-cervical junction and the partially imaged brain.
Vertebral body heights are preserved.
No abnormal bone marrow signal.
C2/C3: Small central disc osteophyte complex. No spinal canal stenosis. Mild narrowing of the left neural foramen.
C3/C4: Moderate central disc osteophyte complex which indents the spinal cord. There is associated high T2 signal within the spinal cord at this level. Moderate to severe spinal canal stenosis and moderate narrowing of the left neural foramen.
C4/C5: Small central disc osteophyte complex contacting the anterior cord, with mild to moderate spinal canal stenosis. No neural foraminal stenosis. There is also subtle high T2 signal at this level.
C5/C6: Minor posterior disc osteophyte complex. No spinal canal or neural foraminal stenosis.
C6/C7: Small right paracentral disc osteophyte complex. No significant spinal canal stenosis or neural foraminal stenosis.
C7/T1: No significant disc osteophyte complex formation, spinal canal or neural foraminal stenosis.
Conclusion: Multilevel degenerative changes in the cervical spine, worst at C3/C4 and C4/C5. There is moderate spinal canal stenosis at these levels, worst at C3/C4 with indentation of the spinal cord anteriorly and associated high T2 signal within the cord in keeping with oedema, developing myelomalacia. There is subtle high T2 signal within the spinal cord at C4/C5.”[34]
[34] Insurer’s bundle p 50.
CT Chest, abdomen and pelvis, Bankstown Hospital, 10 January 2020 – the report concluded:
“Left acromion fracture”
An addendum to the report on 11 January 2020 reported:
“The left acromion fracture is age-indeterminate as the ossicle or margins appear well corticated. Please correlate clinically for localised tenderness and if required consider further evaluation with dedicated x-rays”.[35]
[35] Claimant’s bundle p 86.
X-ray left shoulder, 13 January 2020 – the findings were reported as follows:
“Several ossified bodies are seen in the subacromial space on the frontal views.
The glenohumeral and AC joints are normally aligned.”[36]
[36] Claimant’s bundle p 56.
CT arthrogram and MR arthrogram left shoulder, 29 January 2020 – the report concludes:
“AC joint arthropathy.
Intermediate grade partial thickness mid supraspinatus tear without retraction.
Hypointense foci corresponding to the areas of calcification identified on CT superficial to the rotator cuff and anterior to the acromion as well as one closely associated with the superficial fibres of the supraspinatus muscle belly.”[37]
[37] Claimant’s bundle p 58.
Cervical spine X-ray, 16 July 2020 – the report concludes:
“Mild cervical spondylosis.”[38]
[38] Claimant’s bundle p 59.
CT cervical spine, chest X-ray, 20 July 2020 – the report concludes:
“The lungs and pleural spaces appear clear.
There is moderate neural foraminal narrowing at C3/4 and C4/5 on the left (for the exiting left C4 and left C5 nerve roots).”[39]
[39] Claimant’s bundle p 61.
MRI cervical spine, 23 July 2020 - the report states:
“Findings:
Cervical spine alignment is normal. Intervertebral disc heights are preserved. There is no fracture or focal bone lesion. There is moderate facet arthropathy at L3/L4 on the left, with oedema in the adjacent bone and surrounding soft tissue. There is no facet subluxation or effusion.
The visualised posterior fossa structures are normal. There cranio-cervical junction is normal. Atlanto-axial articulations are normal.
At C2/C3, there is no disc herniation, canal stenosis or foraminal narrowing.
At C3/C4, there is a mild broad-based central disc protrusion. There is moderate associated canal stenosis. There is focal T2 hyperintensity within the cord centrally consistent with myelopathy. There is no right foraminal narrowing. There is moderate left foraminal narrowing.
At C4/C5, there is a mild broad-based central disc protrusion. There is no canal stenosis or right foraminal narrowing. There is mild left foraminal narrowing.
At C5/C6, there is a mild central disc bulge. There is no canal stenosis or foraminal narrowing.
At C6/C7, there is a mild broad-based central disc/osteophyte complex. There is no canal stenosis. There is moderate right foraminal narrowing. There is no left foraminal narrowing.
At C7/T1, there is no disc herniation, canal stenosis or foraminal narrowing.
Paraspinal soft tissues appear normal.
Comment:
Myelopathy at C3/C4. The degree of canal stenosis at this level seems to be less than required to cause compressive myelopathy; this may reflect myelopathy from previous trauma.
Moderate left foraminal narrowing at C3/C4 with potential C4 nerve root impingement. Moderate right foraminal narrowing at C6/C7 potential C7 nerve root impingement.
Facet arthropathy at C3/C4 on the left with surrounding oedema suggesting active osteoarthritis.”[40]
[40] Claimant’s bundle p 63.
MRI left shoulder, 7 December 2020 – the report concludes:
“Status post supraspinatus tendon repair which appears intact. …
Small volume effusion in the subacromial space extending into the acromioclavicular joint with inflammatory thickening more laterally in the subacromial space possibly representing reactive inflammatory change. Post-surgical changes of the acromioclavicular interval.”[41]
[41] Claimant’s bundle p 65.
MRI cervical spine, 8 February 2021 - the report states:
“The craniocervical junction defines normally.
The C2/3 disc defines normally and the foramina are of reasonable size.
The C3/4 disc is narrowed with a posterocentral disc bulge and endplate osteophytes. The disc osteophyte complex is flattening the anterior aspect of the thecal sac reducing the AP diameter of the canal to 6mm. There is effacement of the cord and increased signal intensity within the cord indicating myelomalacia and the findings are consistent with severe central canal stenosis at C3/4. Loss of disc height and bony degenerative changes are causing mild narrowing of the right foramen and moderate narrowing of the left foramen at this level. There are degenerative changes in the apophyseal joints more marked on the left.
The C4/5 disc is degenerative and narrowed with disc bulge and endplate osteophytes causing mild canal stenosis. The foraminal are of reasonable size.
The C5/6 disc defines normally and the foramina are of reasonable size.
The C6/7 disc defines normally and the foramina are of reasonable size.
The C7/T1 disc defines normally and the foramina are of reasonable size.
There is no bone oedema on the sagitall STIR sequence. There is no Chiari malformation.
Comment: Disc and bony degenerative changes are causing severe canal stenosis at C3/4 with cord flattening and myelomalacia.”[42]
[42] Claimant’s bundle p 66.
CT lumbar spine, 17 August 2021 – the report concludes:
“Multilevel degenerative disc disease of the lumbar spine worse at L4-5 level causing moderate central canal stenosis and possible attenuation of the L5 descending nerve roots. … Multilevel facet joint OA worse at the left L4-5 level which could explain the focal pain.”[43]
[43] Claimant’s bundle p 68
MRI lumbar spine, 1 September 2021 – the report concludes:
“There is multilevel degenerative disease of the lumbar spine. At L4/5, there is moderate to marked narrowing of the right lateral recess, possibly causing irritation/compression of the descending right L5 nerve.”[44]
[44] Claimant’s bundle p 69
CT right shoulder, 12 February 2022 – the report concludes:
“No fracture or dislocation.
There are small calcified foci in the rotator cuff interval. …”[45]

Medico-legal reports
Dr Vidyasagar Casikar, neurosurgeon
[45] Claimant’s bundle p 71

Dr Casikar assessed the claimant on 10 November 2021 and provided a report dated 17 November 2021.[46] He reported following the accident there was the suggestion of a fracture in the clavicle in the region of the acromion. Mr Tran was referred to Dr Lieu and underwent surgery.
[46] Insurer’s bundle p 13
On examination Dr Casikar reported movements of the neck were complete and pain-free. The left shoulder internal rotation was reduced by 10º whilst other movements were complete and pain free. He stated the neurological examination of the upper limbs suggested hypoesthesia over the entire left upper limb and the chest including parts of the face.
Dr Casikar stated he could not find any evidence of surgical treatment for the acromion fracture and concluded the surgery was to address the soft tissue injury to the left shoulder following the accident.
Dr Casikar found the only injury was a soft tissue injury to the shoulder that had recovered. Any possible injury to the neck had recovered. However, he considered physiotherapy and home based exercises to be reasonable. Dr Casikar also concluded the claimant had a degenerative disease of the cervical spine, a progressive condition which had not been accelerated by the accident.

Dr Raymond Wallace, orthopaedic surgeon

Dr Wallace assessed the claimant on 12 July 2022 and provided a report dated 14 July 2022.[47]
[47] Insurer’s bundle p 20.
He reported following the accident Mr Tran reported pain at his left shoulder. He subsequently underwent arthroscopic debridement at the left shoulder with subacromial decompression and rotator cuff repair.
He reported five months post injury in June 2020 Mr Tran noted the gradual onset of pain at his cervical spine.
Dr Wallace reported previous bilateral shoulder injuries in the course of his work with GSF Australia in 2005. In 2006 he underwent arthroscopic debridement at his bilateral shoulders following which his symptoms resolved. He reported an injury to the cervical spine on 17 June 2016 whilst playing soccer. He sustained a loss of consciousness and the onset of neck pain. He was referred to Dr Abraszko who referred him to another specialist. His symptoms resolved without treatment.
On examination Dr Wallace reported an active range of movement at the left shoulder of flexion 160º, extension 30º, abduction 160º, adduction 40º, external rotation 70º and internal rotation 70º. He found no tender areas, the biceps tendons were intact and Mr Tran had normal strength in abduction and external rotation. He was neurovascularly intact distally.
He reported examination of the right shoulder showed an active range of movement of flexion 160º, extension 30º, abduction 160º, adduction 40º, external rotation 80º and internal rotation 70º.
Dr Wallace concluded Mr Tran sustained an injury to his left shoulder caused by the accident, namely a partial thickness supraspinatus tendon tear of the left shoulder and aggravation of a pre-existing degenerative rotator cuff tendinopathy.
Dr Wallace concluded there was no evidence he suffered any injury to the cervical spine as a result of the accident. He noted evidence of significant degenerative spondylosis at the C3/4 level on MRI in November 2016. He concluded the surgery on 11 March 2022 was for treatment of the pre-existing degenerative cervical spinal condition.
Dr Wallace assessed 0º WPI of the left shoulder.

SUBMISSIONS

Claimant’s submissions

The claimant provided submissions dated 16 February 2024. The claimant submitted that Medical Assessor Woo reported Mr Tran had immediate symptoms related to his neck, chest and left shoulder injuries caused by the accident.
The claimant submitted he underwent a C3/4 discectomy and anterior fusion on 11 March 2022. Medical Assessor Woo failed to determine if the need for surgery was caused by the accident as required by clause 6.113 of the Guidelines.
It is noted that Medical Assessor Woo stated on page 12:
“There is evidence of pre-existing degenerative changes in the cervical spine and I consider that he will likely require surgery as that carried out by Dr McKechnie in March 2022 with regard to the nature of the condition.
She (sic) surgery carried out at the C3/4 level is considered to be related to the pre-existing C3/4 injury and the surgery was required earlier due to the aggravation by the motor accident.”
On the basis the need for surgery was caused by the accident and noting it does not have to be a sole cause as long as it is a contributing cause which is more than negligible the claimant submits he should have been assessed as Diagnosis Related Estimates IV (DRE IV.

Insurer’s submissions

The insurer provided submissions dated 11 March 2024.[48]
[48] Insurer’s bundle p 4.
The insurer submitted the need for surgery was due to a previous degenerative cervical condition diagnosed in 2016. The insurer refers to the following medical evidence:
(a)    The claimant sustained an injury to his cervical spine while playing soccer on 17 June 2016.
(b)    On 18 June 2016, he reported to his GP that he was experiencing "neck pain on movement and pain radiates to both elbows".
(c)    The claimant was referred to Liverpool Hospital the same day and attended with neck pain with tingling sensation, and bilateral shoulder pain. He was discharged the same day with analgesia.
(d)    On 29 September 2016, the claimant reported "numbness and tingling in both arms" to his GP. He was referred to a Neurosurgeon, Dr Renata Abraszko.
(e)    On 3 November 2016, the claimant attended on Dr Renata Abraszko, who ordered an MRI investigation of the cervical spine.
(f)    On 4 November 2016 he underwent an MRI of the cervical spine dated 4 November 2016 which revealed the following:
“Multilevel degenerative changes in the cervical spine, worst at C3/4 and C4/5. There is moderate spinal canal stenosis at these levels, worst at C3/4 with indentation of the spinal cord anteriorly and associated high T2 signal within the cord in keeping with oedema, developing myelomalacia. There is subtle high T2 signal within the cervical spinal cord at C4/5.”
(g)    On 3 November 2016, the claimant reported to Dr Abraskzo pins and needles in both hands, especially his 1st, 2nd and 3rd fingers, as well as stiffness in his neck. The claimant was referred to another specialist but could not get an appointment.
(h)    On 12 November 2016, the claimant's GP recorded "Neck MRI: degenerative. Worse at C3/4 and C4/5, spinal stenosis and myelomalacia”.
The insurer submitted that subsequent investigations of the claimant’s cervical spine demonstrate pathology at the same levels as in 2016 which were consistently described as degenerative in nature noting:
(a)    a CT scan of the cervical spine dated 20 July 2020 taken some six months after the subject accident, revealed moderate neural foraminal narrowing at C3/4 and C4/5 on the left side. The pathology is at the same levels as the degenerative changes described in the 2016 MRI.
(b)    An MRI of the cervical spine dated 8 February 2021 demonstrated "disc and bony degenerative changes are causing severe canal stenosis at C3/4 with cord flattening and myelomalacia".
(c)    A CT scan of the cervical spine dated 1 July 2022, following the claimant's C3/4 anterior discectomy and fusion surgery, again confirmed the presence of "multilevel degenerative change, most marked at C3-4 level."
The insurer relies on the opinion of expert neurosurgeon, Dr Casikar who opined the claimant suffered a "degenerative disease of the cervical spine. This is a progressive condition. The accident has not altered its normal progress". Accordingly, Dr Casikar assessed 0% impairment in respect of the cervical spine.
The Insurer also relies on the opinion of expert orthopaedic surgeon, Dr Wallace who did not accept an injury to the neck as a result of the accident and concluded the onset of neck pain was five months post-accident based on the clinical evidence before him.
The insurer also provided submissions dated 31 January 2023.[49]
[49] Insurer’s bundle p 10.
The insurer submitted there was a four month delay in reporting neck symptoms after the accident noting the following:
(a)    in the ambulance records, it was reported the claimant "denies C spine tenderness".
(b)    In the Blacktown Hospital Discharge referral, the claimant was recorded to have "Nil cervical tenderness" on examination.
(c)    The claimant did not complain of neck pain to his GP, Dr Vincent Nguyen until 15 May 2020, 4 months after the accident.
The insurer submits there is no evidence the claimant sustained an injury to his lumbar spine in the accident noting the following:
(a) there is no mention of a lower back injury or pain in the ambulance records or the Blacktown Hospital Discharge Referral.
(b) The claimant did not report a low back or lumbar spine injury in his Claim Form or Certificate of Capacity dated 30 January 2020.
The insurer submits the claimant only sustained a soft tissue injury to the left shoulder noting the following:
(a)    the claimant's physiotherapist, Mr Vu Le, reported on 1 April 2020 that the claimant had "regained fair AROM and the left shoulder is less symptomatic".
(b)    In his report dated 17 November 2021, Dr Casikar opines the claimant sustained a soft tissue injury to the left shoulder, constituting a minor injury. Dr Casikar opined the left shoulder had recovered and there was, therefore, no rateable impairment.
(c)    In his report dated 14 July 2022, Dr Wallace observed an active range of movement at the left shoulder of flexion 160°, extension 30°, abduction 160°, adduction 40°, external rotation 70° and internal rotation 70°. This was the same in the right shoulder, except for external rotation which was 80° in the right shoulder. He assessed 0% impairment in accordance with pages 43-45 of the AMA 4 Guides.

The insurer submits the claimant sustained a soft tissue injury to the chest which has since resolved and does not attract any assessable impairment. The insurer notes:
(a)    the claimant has undergone normal imaging of his chest since the accident, demonstrated in a chest X-ray dated 12 May 2020 which revealed "heart size and mediastinal contour is within normal limits. Lungs and pleural spaces appear clear".
(b)    On 15 May 2020 the claimant reported to his GP, Dr Nguyen, that he had "no more chest pain". The claimant did not report any chest pain to his GP after that.
(c)    Dr Wallace did not assess any injury or impairment to the claimant's chest.

MEDICAL EXAMINATION

Mr Tran was assessed by Medical Assessor Cameron at Ultimo on 16 July 2024. He was accompanied by Mr Thinh Trung, Vietnamese interpreter NAATI number 64954.
Medical Assessor Cameron explained that the reassessment was a review of a previous assessment.

Background

Mr Tran continues to live at Sadlier with his partner and one of his daughters.
Mr Tran said that he was terminated from work in 2023 after working as a forklift driver for 27 years. He currently has no income.
Mr Tran reported he had a further motor vehicle accident which he said was minor in 2023.

History of incident

On 11 January 2020 Mr Tran was the front seat passenger in a vehicle driven by his daughter who was a learner driver, and another daughter was also in the vehicle. Their vehicle was hit from behind and the vehicle spun.
Mr Tran recalls that he felt pain from the seatbelt in his chest, neck and left shoulder.
An ambulance attended and he was taken to Bankstown Lidcombe Hospital where he was assessed.
Mr Tran said he returned to work after about three weeks and gradually increased to normal duties. He said the vehicle was written off.
Mr Tran returned to driving after about four weeks.
There were persistent symptoms after the accident and Mr Tran was referred to Dr McKechnie on 11 March 2022. Dr McKechnie performed an anterior cervical spine decompression and fusion at C3/4. This was performed at Liverpool Hospital. Mr Tran said that he was working up to the time of surgery, but he had been unable to return to work following the surgery.
Mr Tran confirmed he sustained an injury to his neck while playing soccer on 17 June 2016. He said he had seen Dr Abrazsko. He said she referred him to another doctor, but he could not get an appointment. As his symptoms had improved, he did not pursue an appointment. Mr Tran pointed out he was able to return to full time work as a forklift driver for many years following this incident.

Current status

Mr Tran said he had numbness of the fourth and fifth fingers in both hands. He also said he had numbness in the right big toe. He said there was low back pain, and he wears a lumbar orthosis. He said his mobility is variable. He sometimes has numbness on the left side of his body. The symptoms are worse at night.
Current medications are Micardis, Rosuvastatin, Melatonin, Lyrica, a Lidocaine patch and Paracetamol. His general practitioner is Dr Thi Nguyen at Bonnyrigg.

Examination

Mr Tran is right-handed, he is 163cm in height and weighs 79kg.
Mr Tran was co-operative and provided a clear history. He spoke partly in English and partly in Vietnamese.
There was a small inconspicuous right sided anterior neck scar consistent with a history of spinal fusion.
There was no definite sensory deficit and no definite motor deficit. There were brisk reflexes in the lower extremities.
At the cervical spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, and no dysmetria. There were no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both shoulders.
There was a full range of motion at the other upper extremity joints.
There were no neurological abnormalities in the upper extremities.
Circumferences of the upper extremities were right 27cm and left 27cm.
At the thoracic spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, and no dysmetria. There were no non-verifiable radicular complaints present.

At the lumbar spine there was moderately and asymmetrically reduced range of motion (to 70% normal generally and to 60% on lateral bending to the left), with no muscle spasm, no muscle guarding and no dysmetria. There were no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both knees.
There was a full range of motion at the other lower extremity joints.
There were no neurological abnormalities in the lower extremities.
Circumferences of the lower extremities were right 39cm and left 39cm.

Mr Tran walked with a normal gait.

Further examination on 8 August 2024

Mr Tran participate in a further examination conducted by Medical Assessor Cameron on 8 August 2024. The examination was conducted by videoconference and was for the purposes of clarifying with the claimant his history. A Vietnamese interpreter was also present.

Clarification of history

Following a further review of the available clinical records Medical Assessor Cameron confirmed with Mr Tran the following history.
Mr Tran confirmed that he attended Liverpool Hospital on 17 June 2016 after being injured at soccer. He had neck symptoms. He subsequently consulted his general practitioner, Dr Vincent Nguyen. Dr Nguyen made a referral to Dr Abraszko and she provided an assessment. An MRI of the cervical spine was performed on 4 November 2016 which was reported as showing moderate spinal canal stenosis at C3/4 and C4/5 with indentation of the spinal cord anteriorly at C3/4 and spinal cord changes consistent with developing myelomalacia. There was also a suspicion of similar issues at C4/5.
Mr Tran said that Dr Abraszko referred him to another medical specialist. He said that specialist was on holidays. Mr Tran said that his symptoms resolved and therefore he did not pursue an appointment with that medical specialist.
The clinical records show that Mr Tran consulted Dr Vincent Nguyen on 26 occasions between 26 November 2016 and January 2020 without complaints of neck pain or other associated symptoms.
The accident occurred on 11 January 2020. There was initial assessment at Bankstown Hospital and then a consultation with Dr Lam at Bonnyrigg Family Medical Centre. Neck pain was noted. Mr Tran explained that his usual general practitioner, Dr Vincent Nguyen did not see patients with insurance claims. He suggested consulting Dr Thi Thao Cam Nguyen at Bonnyrigg Family Medical Centre. However, Dr Thi Nguyen was on leave and hence the initial consultation after the accident was with Dr Lam. There were ongoing symptoms including neck and left shoulder pain. There was a referral to Dr Lieu, orthopaedic surgeon regarding the left shoulder.
On 18 July 2020 Mr Tran consulted Dr Vincent Nguyen at Cabravale Medical Centre. There was neck pain and pain in the left shoulder. Mr Tran said he returned to work after the accident and due to frequent use of a forklift which required him to rotate his neck frequently his neck pain increased.
At a consultation with Dr Thi Nguyen on 25 July 2020 a referral was made to Dr McKechnie. There was neck pain with radiation to the shoulders and symptoms in the upper extremities. The consultation with Dr McKechnie on 25 August 2020 noted neck pain since the accident with radiation and numbness in the left little finger. He recommended a C3/4 discectomy and fusion.
On 24 September 2020 there was left shoulder surgery from Dr Lieu.
On 20 November 2020 Dr Lieu noted persisting upper limb numbness which he thought could have been from a limb block associated with surgery or pathology in the cervical spine.
On 3 December 2020 Dr McKechnie said there was neck pain and arm pain with numbness in the left hand.
On 15 January 2021 Dr Lieu noted numbness in the hands.
On 19 January 2021 Dr McKechnie noted pain in the neck and left shoulder as well as numbness and paranesthesia in the left hand.
On 26 August 2021 Dr Ngoc Nguyen at First Care Medical Centre referred Mr Tran to Dr McKechnie with chronic back pain. Mr Tran said that his back pain developed around that time. He said that it had not been present after the motor accident until then.
On 6 September 2021 Dr McKechnie said there was persistent neck pain as well as pain in the lower back radiating into the right leg and foot.
On 10 November 2020 neurosurgeon Dr Casikar provided a medico-legal report. He stated that neck movements were complete and pain free. Left shoulder internal rotation movement was reduced by 10%. He said the injury to the neck had recovered and there was degenerative disease of the cervical spine not accelerated by the accident.
On 22 March 2022 there was a C3/4 anterior cervical discectomy and fusion.
On 12 July 2022 orthopaedic surgeon Dr Wallace provided a medico-legal report. He reported pain in the left shoulder. His history was of gradual onset of cervical spine pain five months after the accident. He said that there had been partial thickness supraspinatus tendon tear of the left shoulder and aggravation of the pre-existing degenerative rotator cuff tendinopathy. He also said there was significant degenerative spondylosis at C3/4 shown on November 2016 MRI. He said the surgery for the cervical spine had been related to the pre-existing condition.
Medical Assessor Cameron asked Mr Tran about an alleged overdose of medication and an admission to Liverpool Hospital on 28 April 2022.[50] Mr Tran said he had no memory of that event and on further review of that record it seems it does not relate to Mr Tran.
[50] Claimant’s bundle p 96.
Mr Tran clarified that he had a further motor vehicle accident at the start of 2023. This occurred with him reversing his car and hitting an object. He said he sustained no injuries.
Mr Tran clarified that his GP had not allowed him to continue to hold a motor driver's license. He said he had turned into a wrong lane and proceeded through a red traffic signal precipitating that recommendation.

Current status

Mr Tran said there was numbness in both hands, in the fourth and fifth fingers. The left hand was affected more than the right. He also said there was numbness in the right leg from the buttocks to the big toe. Sometimes there is left sided body numbness after bending.
Mr Tran said he sometimes has tiredness after lifting his arms and occasional pain.
Mr Tran said he continued to see a psychologist. His medications are unchanged. He said his main usual local doctor is Dr Vincent Nguyen.

Imaging

Mr Tran brought with him a copy of a report of a nerve conduction study performed at Liverpool Hospital on 1 February 2024. It said there was a left ulnar nerve abnormality at the elbow and possibly early left median nerve symptoms.
He also had a report of an MRI of the cervical and lumbar spine of 13 November 2013. It was reported as showing a C3/4 anterior cervical decompression and fusion with myelomalacia at that level as well as degenerative disease at the lumbar spine.
The following imaging was reviewed at the time of the reassessment:
· MRI of the lumbar spine on 28 October 2022 which showed degenerative changes, and
· MRI of the cervical spine on 01 July 2022 which showed a small area of myelomalacia at C3.

Consistency of presentation

Mr Tran was consistent in his presentation.

Diagnosis and causation

The Panel notes in Briggs v IAG Limited Trading as NRMAInsurance Wright J reminded us that the relevant legal test in relation to causation does not require scientific certainty.[51] His Honour stated at [70]-[72]:
[51] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
“An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference”.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”

Injury to the cervical spine

Mr Tran had a previous injury to his cervical spine. On 17 June 2016 he sustained a neck strain when he received a knee to the face whilst playing soccer. He saw Dr Vincent Nguyen and on 24 August 2016 was referred to Dr Abraszko, neurosurgeon with “neck pain on rotation”. On 29 September 2016 Dr Vincent Nguyen reported occasional numbness and tingling in both arms. Mr Tran saw Dr Abraszko on 3 November 2016. She commented that a CT scan of the cervical spine showed only a mild disc protrusion at the C3/4 level. She recommended an MRI scan but concluded she thought it was unlikely Mr Tran would require cervical spine surgery. The MRI scan of 4 November 2016 disclosed myelomalacia.
There is no record of complaint relating to the cervical spine between 26 November 2016 and the accident on 11 January 2020 even though Mr Tran consulted Dr Vincent Nguyen on 26 occasions during that period.
After the accident on 11 January 2020 the claimant consulted Dr Lam on 13 January 2020. Dr Lam reported Mr Tran complained of neck pain especially with rotation. In the Application for personal injury benefits dated 20 January 2020 Mr Tran reported he sustained injury to the chest, neck and left shoulder in the accident.
Thereafter, there is a lack of complaint pertaining to the cervical spine until 18 July 2020 when Dr Vincent Nguyen of Cabra Vale Medical Centre reported a history of neck pain going to the left shoulder. However, whilst there is no specific report of neck pain between 20 January 2020 and 18 July 2020 the Panel notes Mr Tran reported complaints pertaining to his left shoulder for which he underwent physiotherapy, followed by a referral to Dr Lieu, orthopaedic surgeon. The Panel accepts it is likely the neck pain was masked by the left shoulder pain which was more prominent in that period.
Mr Tran saw Dr McKechnie on 25 August 2020 on referral from Dr Thi Thao Cam Nguyen of Bonnyrigg Family Medical Centre for neck pain radiating to the shoulders, left greater than right. Dr McKechnie reported Mr Tran had experienced chronic neck pain extending across the left shoulder since the accident.
The Panel finds Mr Tran sustained injury to the cervical spine having regard to the contemporaneous complaint of injury and the lack of complaint between 26 November 2016 and the accident on 11 January 2020.
The Panel also accepts that due to that earlier injury and the presence of cervical spine degenerative disease, the claimant had a pre-existing area of spinal cord softening (myelomalacia). However, having regard to the lack of complaint for over three years prior to the accident the Panel finds the accident caused a soft tissue injury and an aggravation of the pre-existing degenerative changes.
In AAI Limited v Phillips[52] Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accidents Compensation Act, 1999.
[52] AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.
Davies J found the motor accident need only be a material contribution to the need for treatment and he further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.
Dr McKechnie described the reasons for surgery as the “persistent pain, cord impingement on the MRI and myelomalacia”.
Whilst the cord impingement and myelomalacia pre-dated the accident the absence of pain in the three years pre-accident suggests it was not symptomatic. The condition only became symptomatic following the claimant’s involvement in the accident.
The need for spinal surgery at that time arose because the condition became symptomatic. Keeping in mind the comments of the Court in Briggs that the relevant legal test does not require scientific certainty the Panel finds the accident was a material contribution to the need for surgery.

Lumbar spine

In Norrington v QBE Insurance (Australia) Ltd[53] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[53] [2021] NSWSC 548, (Norrington).
Brereton J referred to the decision of Campbell J in Owen v Motor Accidents Authority(NSW)[54] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where “busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]).”
[54] [2012] NSWSC 650, (Owen).
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[55] where the Court stated at [64]:
“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
[55] [2016] NSWCA 229, (McGiffen).

The Panel notes there is no contemporaneous history of complaint relating to the lumbar spine in the clinical notes of Dr Thi Thao Cam Nguyen of Bonnyrigg Family Medical Centre, in the Application for personal injury benefits, in the records of Mr Le, physiotherapist, in the records of Dr Vincent Nguyen, the records of Dr Lieu and the records of Dr McKechnie until 26 August 2021 when Dr Ngoc T Nguyen referred Mr Tran to Dr McKechnie with chronic back pain.
It is also significant that the claimant saw Dr Casikar for the insurer on 10 November 2020 and Dr Wallace on 12 July 2022 without apparently referencing lumbar spine pain.
Mr Tran informed Senior Medical Assessor Cameron that his back pain developed around the time he consulted Dr Ngoc Nguyen on 26 August 2021. He confirmed he did not experience back pain following the accident until about August 2021.
Whilst the Panel is aware the question of causation should not be decided solely on the existence or otherwise of contemporaneous evidence of complaint the Panel notes that where there is a total lack of record of injury to the lumbar spine by any of the various medical practitioners who examined Mr Tran in the 18 month period following the accident it cannot simply be a question of busy doctors misunderstanding or mis-recording the history.
The Panel accepts the accident could have caused the claimant to sustain injury to his lumbar spine but finds the accident did not, in fact, cause the claimant to sustain such injury in the absence of any back pain, as confirmed by Mr Tran, until about August 2021, over eighteen months post-accident.
It is inexplicable that there would not have been an earlier complaint of injury to the lower back particularly where Mr Tran also complained of pain radiating intermittently through the right leg and where the MRI demonstrated right l4/5 lateral recess stenosis with L5 nerve root impingement.
The Panel finds the claimant did not sustain injury to the lumbar spine caused by the accident.

Chest

The ambulance report refers to central sternal pain injury to the chest was referenced in the Application for personal injury benefits.
The Panel is satisfied the claimant sustained a soft tissue injury to the chest. However, there has been no ongoing complaint of chest pain. The Panel finds the claimant sustained a soft tissue injury of the chest which has now resolved.

Left shoulder

Not only did Mr Tran reference injury to the left shoulder in the Application for personal injury benefits the preliminary diagnosis of Bankstown Hospital was of a left acromion fracture. Dr Nguyen of Bonnyrigg Family Medical Centre reported left shoulder pain on 20 January 2020 and diagnosed a left shoulder injury on 30 January 2020. Mr Tran attended Mr Le, physiotherapist for treatment of his left shoulder and following his referral to Dr Lieu he underwent a left shoulder subacromial decompression under the care of Dr Lieu.
The Panel finds the claimant sustained a soft tissue injury and aggravation of pre-existing degenerative changes caused by the accident.
The Panel finds the frank injury to the left shoulder was caused by the accident having regard to the contemporaneous record of complaint.

PERMANENT IMPAIRMENT

Cervical spine

The neck injury (injury to the cervicothoracic spine) is assessed with reference to the Diagnosis Related Estimate method from Chapter 3.3h of AMA 4 Guides.
Mr Tran has had a cervical spinal fusion. The Panel has concluded that there was an injury to the cervical spine sustained in the accident and the accident was a material contribution to the need for surgery. In accordance with page 104 of Chapter 3 of the AMA 4 Guides the claimant meets the criteria for DRE Cervicothoracic Category IV which equates to a 25% WPI.

Left shoulder

The claimant sustained injury to the left shoulder and underwent surgery. At the time of the examination by Senior Medical Assessor Cameron the left shoulder was asymptomatic with a full range of motion of both shoulders.
The Panel considers any upper extremity symptoms are related to the known cervical spine pathology.
The Panel finds the injury to the left shoulder has resolved and there is no assessable impairment.
The Panel assesses WPI as per the following table:

Body Part or System

AMA Guides/ MAA Guidelines References

(chapter/ page/table)

Stabilised (YES/NO)

Current %WPI*

%WPI* from pre-existing OR subsequent causes

%WPI* due to motor accident

Cervical spine

Chapter 3, page 104 (AMA4)

Yes

25

0

25

DETERMINATION

The Panel revokes the certificate of Medical Assessor Woo dated 21 January 2024 and issues a new certificate determining that the following injury caused by the accident gives rise to a WPI which is greater than 10%:
· cervical spine – soft tissue injury and aggravation of pre-existing degenerative change.
The Panel determines that the following injuries caused by the motor accident have resolved:
· left shoulder - soft tissue injury and aggravation of pre-existing degenerative change; and
· chest – soft tissue injury.
The Panel finds the following injury was not caused by the accident:
· lumbar spine – soft tissue injury.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	150°	150°
Extension	40°	40°
Adduction	40°	40°
Abduction	90°	90°
Internal Rotation	60°	60°
External Rotation	70°	70°

[2024] NSWPICMP 603

27 August 2024