Tran v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 297
•23 June 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Tran v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 297 |
| CLAIMANT: | Hue Thi Anh Tran |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Les Barnsley |
| MEDICAL ASSESSOR: | David Gorman |
| DATE OF DECISION: | 23 June 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment of whole person impairment (WPI) and insurer’s review under section 63; claimant injured in accident in June 2017; claimant involved in collision with a car that turned into her car and alleged injuries to her neck, lower back and right shoulder; Medical Assessor (MA) Rosenthal found inconsistency during his examination and allowed 2% for WPI; application for review on basis no interpreter present and inconsistencies not properly brought to the claimant’s attention; Held – Panel satisfied claimant injured her neck, back and right shoulder; no evidence of pre-accident impairments; cervical and lumbar spines assessed at diagnosis related estimates (DRE) I (0%) and right shoulder 11%; no evidence of inconsistency during course of examination or between formal examination and informal observation; difference in range of motion over last five years due to fear avoidance behaviour and resultant inactivity leading to stiffness in the soft tissue injuries of the shoulder and muscle deconditioning; assessment of MA revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Medical Assessor Rosenthal dated 4 May 2022. 2. Certifies that the degree of Hue Thi Anh Tran’s permanent impairment resulting from the injuries caused by the motor accident on 6 August 2013 is greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
On 6 August 2013, Ms Hue Thi Anh Tran was involved in a motor accident. She was the driver of her own car travelling in Edensor Road at Bonnyrigg when, apparently without warning another vehicle made a sudden u-turn and collided with the side of Ms Tran’s car.
Ms Tran says she sustained injuries to her neck, lower back and right shoulder in the accident. On 27 August 2013 Ms Tran made a claim for damages against NRMA, the third-party insurer of the vehicle she says caused the accident.
A dispute has arisen between Ms Tran and NRMA in respect of Mr Tran’s entitlement to damages for non-economic loss. That dispute was referred to the Personal Injury Commission (the Commission) and on 4 May 2022 Medical Assessor Rosenthal determined the claimant did not have an entitlement to non-economic loss.
Ms Tran was disappointed with that result and lodged an application for Review with the Commission.
On 25 July 2022, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in Medical Assessor Rosenthal’s assessment and on 10 August 2022, the President convened a Panel to conduct the assessment. One of the members of the Panel recused himself during the course of the proceedings and another member appointed to the Panel.
LEGISLATIVE FRAMEWORK
General
Ms Tran’s claim and her entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2022 is $605,000.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[2] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[2] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Due to the nature of the injuries sustained by the claimant, the chapter 3 of the AMA4 Guides are relevant that is the chapter concerning the musculoskeletal system.
Dispute resolution
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[3]
[3] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Rosenthal’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 61, 62 and 63 of the MAC Act.
ASSESSMENT UNDER REVIEW
Medical Assessor Rosenthal assessed the claimant on 27 April 2022 and issued his certificate on 4 May 2022.
At [2] Medical Assessor Rosenthal states he was asked to assess the claimant’s right shoulder, neck and lumbar spine.
At [8]-[10] the following history was recorded by the Medical Assessor:
(a) the claimant had no previous medical conditions;
(b) she used to make rice paper rolls at a market but has stopped work;
(c) she lives with her husband and three children and since the accident has greatly reduced the chores she does around the home because she is scared of aggravating her injuries;
(d) she is scared to drive but can go shopping;
(e) she does some stretches at home but does no gardening or other physical activities;
(f) the accident occurred when a car performed a U-turn directly in front of her. She was the driver of her car but her airbags did not deploy;
(g) she was taken by ambulance to Fairfield Hospital;
(h) she saw her general practitioner (GP) who referred her for physiotherapy which did not help and she was then referred to Dr Chin an orthopaedic surgeon who operated on her right shoulder in 2014;
(i) she was referred to Dr Sheridan a neurosurgeon who has treated her conservatively, and
(j) she has massage treatment and hydrotherapy and has had an injection into her right shoulder, she has had intermittent physiotherapy.
In terms of her current symptoms her neck, right shoulder and back are all sore and she gets an “electric feeling in her right leg which goes down to her foot” which the Medical Assessor said did not describe a radicular pattern. Her back pain radiates into her right buttock and travels down the back of her leg to her foot. She also complains of electric feelings in her hands which are not strong. She says her walking and sitting are restricted.
The claimant provided details of a number of medications including Celebrex and Panadeine Forte.
On examination of her neck, there was no muscle spasm or guarding but tenderness. Rotation in the three planes of motion was reduced but symmetrically so. There were no neurological deficits in the upper limbs and no sensory changes.
The claimant was tender through the whole of the lumbar spine but with no spasm or guarding. All movements were restricted but again symmetrically. There was global sensory loss reported in the right leg but otherwise no neurological deficits.
The Medical Assessor noted full range of left shoulder movement but significant variations of right shoulder motion.
Medical Assessor Rosenthal reviewed the documents and the radiology and noted that the MRIs taken of the neck and lower back in 2013 and again in 2018 show “longstanding degenerative discal changes and disc bulges which are all unrelated to trauma and are pre-existing degenerative conditions”. The right shoulder MRI showed a degenerative MRI joint.
He diagnosed soft tissue injuries to the cervical and lumbar spine and aggravation of pre-existing degenerative changes in the right shoulder.
He assessed WPI as follows:
(a) cervical spine – 0%
(b) lumbar spine – 0%
(c) right shoulder – range of motion not to be used due to inconsistency and that mild crepitation of the AC joint at 2% WPI is the most appropriate.
MATTER SUMMARY AND SUBMISSIONS
Claimant’s submissions
Submissions in support of the review application
The claimant alleged that the material error in the assessment by Medical Assessor Rosenthal was the absence of a Vietnamese interpreter as a result of which the examination was conducted in English.
The claimant drew to the attention of the President’s delegate cl 1.41 of the Guidelines which states that any inconsistencies must be brought to the attention of the injured person and the injured person must be given the opportunity to respond.
The claimant says that while Medical Assessor Rosenthal did attempt to bring the inconsistencies to the claimant’s attention, the absence of an interpreter meant the inconsistencies were not properly put to the claimant and she could not properly respond.
The claimant also asserted that the absence of non-verifiable radicular complaints in the absence of an interpreter raised a question that the claimant may not have understood the questions.
Submissions in the original assessment
The claimant asserted her injuries resulted in an impairment of greater than 10% and relied on the documents currently before the Commission.
The claimant notes the claimant’s shoulder surgery was paid for the insurer and that the list of payments made on the claim total $39,000.
Insurer submissions
Submissions in response to the application for review
The insurer agued that information before the Commission established that the claimant was fluent in English and no interpreter was necessary and on that basis there was no error. The insurer pointed to:
(a) the histories taken by Dr Parmegiani without an interpreter and the note from Ms Piebanger who examined the claimant in her home on 21 May 2022 who also conducted an interview with the claimant without an interpreter;
(b) the claimant’s statements not translated or made with the assistance of an interpreter;
(c) Medical Assessor Rosenthal did not indicate there was any difficulty during his examination, and
(d) the claimant did not complain about the absence of an interpreter until after the certificate of assessment was issued.
The insurer suggested if there was a concern about the claimant’s proficiency in English that the matter should be referred back to Medical Assessor Rosenthal.
Submissions in the original assessment
The insurer’s submissions in the original application for assessment simply stated the claimant’s injuries did not give rise to an impairment of greater than 10% and relied upon the reports of Drs Maxell and McClure. The insurer advised that there were 14 entities which the insurer wanted to approach for documentation but that the claimant had not signed the authorities. The reserved the right to provide additional material or submissions.
No additional material or submissions have been provided other than the bundle of documents in response to the Panel’s directions.
Procedural matters (first direction, second direction, non-compliance)
The Panel was first convened by the President’s delegate on 10 August 2022. The insurer had requested the Panel issue a direction for the claimant to sign 15 authorities which would enable the insurer to obtain documents from 15 entities. The insurer then requested the Panel issue directions to those 15 entities. In a decision dated 8 November 2022 the Panel determined it did not have power to make those directions.[5]
[5] Tran v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIMP 485.
The Panel had determined it would defer its consideration of the review of Medical Assessor Rosenthal’s assessment pending the application made by the insurer to challenge the assessment of psychiatric impairment undertaken by Medical Assessor Young. When the application for review of that medical assessment matter was dismissed, the insurer advised that it was seeking additional documentation and further material and was planning to seek a further assessment.
The original Panel met on 29 March 2023 and decided to progress the review of the claimant’s physical assessment. The Panel directed the parties to produce bundles of documents which have been provided and advised the parties of the medical examination. The claimant was requested to bring all relevant medical imaging studies to the examination.
The new Panel met on 16 June 2023 to discuss the examination findings and in order to finalise the assessment.
REVIEW OF THE EVIDENCE
General matters
The claimant has provided a bundle of documents comprising over 330 pages. The only medico-legal evidence in respect of the claimant’s physical injuries is dated 2016 (Dr Giblin). The most recent medical evidence is dated 12 August 2021 from Dr Parmegiani (medico-legal psychiatrist).
The insurer’s bundle comprises 230 pages and incorporates the insurer’s submissions regarding Medical Assessor Young’s assessment of the claimant’s psychiatric injuries, 70 pages of correspondence concerning the signing of authorities to enable the insurer to obtain third party records, and the insurer’s medical legal evidence namely one 2014 report concerning physical injuries and three reports from psychiatrist Dr McClure the most recent being from September 2017.
The claimant’s GP records contain referrals to Dr Sheridan and Dr Teychenne. The Panel has not been taken to any reports from Dr Sheridan or Dr Teychenne in the claimant’s bundle. Ms Piebanga refers to the claimant consulting Dr Pope who the Panel considers may be Dr Pope a spinal and neurosurgeon and there are no records from him. There is a single short letter from Dr Sun to Dr Lam but no other reports but a suggestion that there was further treatment by Dr Sun.
The Panel notes the insurer has been trying to obtain records from a number of entities including Dr Sheridan, Dr Teychenne and Dr Sun.
The Panel would have been assisted by any additional treatment material available, particularly in the light of the age of the medico-legal evidence, but does not propose to defer the review noting the availability of the further assessment mechanism under s 62 of the MAC Act.
Pre-accident records
The claimant’s treating GP at the time of the accident was Dr Nguyen of Edensor Park. His handwritten notes commence with an entry on 27 March 2000. While they are difficult to read, the Panel cannot ascertain within them any evidence of any previous musculoskeletal issues.
His electronic records commence on 13 May 2010 with travel related issues about vaccine and medication.
There is an entry concerning back pain on 11 October 2010 and Panadeine forte was prescribed and an entry on 29 November 2010 with a four-day history of joint pain, stiffness and neck pain. On examination the claimant’s neck was tender but she had a full range of motion, and a diagnosis of muscle strain was made. No medication was prescribed on this occasion and no investigations were arranged for either the lower back or neck.
In February 2012 there was an attendance for left upper chest pain considered to be muscular pain.
There are no other attendances of significance.
Claim forms and related documents
The claim form was completed by the claimant and witnessed as true and correct by Mr Khanh Ton of Ton Legal on 22 August 2013. The claimant lists her injuries as “whiplash, back, neck and right shoulder”. She notes her treating practitioners as Dr Thanh Tam Nguyen, Dr Loi Lam and TLC Physio. The claimant denied any previous injuries, accidents or claims.
Dr Lam completed the medical certificate attached to the claim form and diagnosed a whiplash injury, lumbar sprain and right shoulder sprain. He says he saw the claimant for the first time on 13 August 2013 and completed the medical certificate on that date.
There is a statement from the claimant, signed and dated 23 May 2018 but not accompanied by the usual interpreter’s translation. Ms Tran describes the accident as “big” and says that she saw Dr Nguyen first, then she went to see Dr Lam and Dr Sheridan.
Treatment records and reports
The ambulance report from the day of the accident notes that the claimant denied neck pain but complained of right shoulder pain. She refused pain relief from the ambulance personnel preferring to wait until reaching hospital. The ambulance was called at 10:22 am and the claimant was “off stretcher” and at the hospital at 11:12 am.
The claimant was taken to Fairfield Hospital. The discharge summary records a diagnosis of shoulder pain noting that x-rays showed no bony injury, and that the claimant was given pain relief and a sling for comfort. The claimant was discharged at 12:18pm.
Dr Nguyen saw the claimant on 6 August 2013, the day of the accident at 12.40pm. Ms Tran reported pain on the right shoulder but “no sternal pain / neck pain / back pain”. Ms Tran’s right shoulder was tender and with restricted range of motion. The neck, back and chest were non-tender. Dr Nguyen diagnosed a soft tissue injury and prescribed Panadeine Forte.
The claimant continued to see Dr Nguyen for non-accident related conditions, but did mention to him psychological issues of depression in September 2016 after hitting one of her children and the school reporting it. In her statement she appears to attribute this (and other) losses of temper to her depression, sleep deprivation and anger following the accident.
An MRI of the right shoulder and whole spine was requested by Dr Lam and the report dated 27 August 2013 says “features of mid ACJ arthritis, subdeltoid subacromial bursitis and moderate tendinopathy of the supraspinatus tendon are noted. Degenerative changes at multiple levels of the spine were noted with a C3/4 flattening of the spinal cord and possible compression myelopathy.
The claimant was referred to Dr Sheridan (neurosurgeon) on 4 September 2013 by Dr Lam and to Dr Teychenne on 2 October 2013.
The claimant was referred by Dr Lam to Dr Chin on 30 October 2013 concerning her right shoulder pain, neck pain and headache. Dr Chin responded on 3 December 2013 recording complaints of constant pain over the right trapezius and into the hand, pain over the anterior part of her shoulder with weakness. There was mild wasting of the supraspinatus, and the subscapularis was weak. She had “good range of motion of the shoulder”. He suspected a small partial tear in the supraspinatus and he requested a further MRI.
The further MRI of the right shoulder requested by Dr Chin was reported on 13 December 2013 showing “tendinopathy of supraspinatus without tear. Moderate grade subacromial / subdeltoid bursitis. No other significant finding. No labral abnormality.”
Dr Chin reported to Dr Lam on 23 January 2014 that he wanted to undertake an arthroscopic decompression due to the impingement type symptoms.
The surgery occurred on 18 March 2014 and Dr Chin reports there was a stable tear of the anterior labrum with minor fraying, an intact rotator cuff, abundant synovitis in the shoulder with the thickened bursa and a bursectomy was performed.
On 1 April 2014 the claimant was reviewed, the sling was dispensed with, and physiotherapy advised. On 29 April 2014 Dr Chin noted the claimant’s shoulder was stiff and painful and that the claimant was “reluctant to do any of her physiotherapy”. He encouraged her to do so as the clamant could only elevate to 90 degrees.
On 15 July 2014 Dr Lam noted the claimant could elevate to 140 degrees passively and 120 degrees actively and 30 degrees of external rotation. She had poor strength, and he was concerned she was developing a pain syndrome.
Ms Tran had a steroid injection under ultrasound guidance into the right subacromial space on 18 July 2014.
On 4 September 2014, Dr Chin was concerned at the claimant’s lack of progress and the limited effect of the steroid injection. He requested a further MRI scan and review.
An MRI of the right shoulder dated 29 September 2014 done at the request of Dr Chin found mild subacromial/subdeltoid bursitis and AC joint synovitis. There was some mild insertional tendinosis with bursal surface fraying.
Dr Chin wrote to Dr Lam on 4 November 2014 noting the MRI showed no major pathology and he expected the claimant to improve and discharged her from his care with directions to return if there were ongoing problems.
The claimant was referred to Dr Sheridan (neurosurgeon) for the second time on 10 November 2014.
On 20 October 2015, Dr Clive Sun, rehabilitation and pain medicine physician conducted a “APM medical review assessment” and reported on the recent MRI noting the claimant was “very pain focussed and protective of her right shoulder, low back and right thigh” and had not adjusted the medication as advised. He wanted a nuclear bone scan undertaken.
The claimant had a whole-body SPECT and CT scan performed on 26 October 2015.[6] The report notes persistent pain in the neck radiating to the right elbow, right shoulder and scapular. Pain in the thoracolumbar junction and lumbosacral junction to the right thigh. The conclusion was:
(a) disc protrusion and posterior osteophytic calcification and stenosis in the mid cervical and mid thoracic spine;
(b) loss of lordosis consistent with muscle spasm;
(c) at C3/4 and C4/5 disc protrusion with osteophytic bar and a degree of canal stenosis;
(d) no abnormal update to suggest active arthritis in the cervical the thoracic or lumbar spine, and
(e) both AC joints glenohumeral joints, elbows, wrists and small joints unremarkable.
[6] Page 261 of the claimant’s bundle.
The claimant participated in an active pain management program at the referral of Dr Lam. The report dated 24 November 2015 was a joint effort from a psychologist (Ms Jeong), occupational therapist (Ms Memon) and exercise physiologist (Ms Helfendsdorfer). The goal of the program was to return the claimant to her previous job as the manager of a takeaway shop.
The claimant complained at the outset of constant pain in her neck, shoulder, head and back with a scale of pain 8 out of 10. The claimant reported cognitive impairment confusing the accelerator with the brake. She had a helper with her at all times being her carer and assistant at home with chores, driving and caring for the children.
While she did show some improvement over the four-week period Ms Tran was said “she continues to remain quite deconditioned and weak particularly in her upper limbs”, and the clamant was “quite pain focused in the consultations”.
On 5 February 2016 the claimant had a right L5/S1 perineural injection at the request of Dr Lam and on 30 March 2016 a CT scan of her brain due to worsening headaches (normal result).
There are referrals to Dr Way (psychiatrist) and Dr Teychenne (neurologist). There is also a “referral” to Mr Khanh Ton[7] dated 13 August 2013 for assistance with “management / legal advice”. On the same date a referral for physiotherapy was given by Dr Lam.
[7] Page 277 of the claimant’s bundle.
Medico-legal reports
Dr Maxwell provided a report dated 3 October 2014 to the insurer following an examination facilitated by a Vietnamese interpreter. He has a history that the claimant does the cooking and housework and some light cleaning and that she can drive the children to school, she drives to the shops and to her physiotherapist.
Dr Maxwell has a history of the accident that is consistent with the other histories. He says the claimant was driving at 20 kmph and that the impact of the other car was to the driver’s door. She said she was wearing a seatbelt over her right shoulder and recalls being thrown forwards and backwards and hit her head on the headrest. Her airbags did not deploy but the car was written off.
The claimant said she went home and saw Dr Lam who her brother recommended to her. She has investigations and was referred to Dr Chin and Dr Sheridan.
The claimant reported pain over her lower back (which started a few months after the accident) and she has pain in her right leg. The clamant also reported pain in the neck and difficulty with lifting her arms.
Dr Maxwell observed no spasm, guarding or wasting of the right shoulder girdle muscles. There was no evidence of radiculopathy found.
Dr Maxwell assessed the claimant’s injuries as follows:
(a) cervical spine – DRE 1 – 0%;
(b) lumbar spine – DRE I – 0%, and
(c) right shoulder – 2% due to the slight restriction of motion in accordance with the measurements noted in the appendix to these reasons.
Dr McClure reported to the insurer on 13 May 2015 following an examination undertaken with the assistance of a Vietnamese interpreter. She gave a consistent history of the accident and treatment noting that the surgery she had to her shoulder has given her little benefit. She said she cannot reach overhead without difficulty. She had an exacerbation of her pain five to six months earlier which has resulted in her hiring a domestic assistance and giving up driving.
Dr McClure declined to assess WPI on the basis the claimant’s injuries had not stabilised.
Dr Rose, psychiatrist reported to the claimant’s solicitor on 28 September 2015. He notes the claimant’s English was very poor and that the assistance of an interpreter was required.
Dr Rose has a consistent history of the accident and details the claimant’s treatment. He diagnoses a post-traumatic stress disorder and advised the claimant required ongoing psychiatric care. He assessed whole person impairment at 19%.
Dr Matthew Giblin provided a report to the claimant’s solicitors dated 18 April 2016 with an interpreter. Ms Tran complained of neck pain, right shoulder pain, headaches, pain in the right upper limb and low back pain radiating down the right lower limb.
The claimant said she did not significantly improve after the surgery to her shoulder. She reported ongoing pains in all areas injured in the accident.
Dr Giblin assessed WPI at 17% which comprised:
(a) cervical spine – DRE II – 5%;
(b) lumbar spine – DRE II – 5%, and
(c) right shoulder – 8%.
Dr McClure re-examined the claimant on 28 June 2017. When she was taken through her history, she added that she had hit her head on the steering wheel. She maintained that she had pain in her right shoulder, neck, lower back and right leg with daily headaches.
Dr McClure assessed the claimant’s impairment at 18% but said it was not caused by the accident due to the time from accident to the onset of symptoms which coincided with an apparent “near miss” with a bus at an intersection. In a subsequent report he estimated the claimant’s impairment before the bus incident at 5%.
Dr Julian Parmegiani examined the claimant at the request of her solicitor and reported on 24 April 2019. Dr Parmegiani noted “Ms Tran was interviewed without an interpreter. Her English was adequate for the purposes of the interview”.
He took a consistent history of the accident and her treatment. The claimant reported the right shoulder surgery in 2014 reduced her pain but she never regained full movement.
Dr Parmegiani diagnosed a post-traumatic stress disorder with depression and assessed her WPI at 24%.
Ms Piebanga, occupational therapist undertook an assessment of the claimant’s care needs and provided a report to the insurer dated 10 July 2020. She reports overt pain behaviours when challenged including groaning, rubbing her back and neck and lying down. Ms Piebanga notes that when asked to retrieve documentation or showing the house, the claimant moved quickly and efficiently.
Ms Piebanga has a history of the claimant attending upon Dr Nguyen within 20 minutes of discharge from hospital and then attending upon Dr Lam as he was a “doctor who specialises in compensation”. Ms Piebanga reports at that at her brother’s further suggestion she attended upon a Dr Pope because Dr Lam advised her all was normal.
Ms Piebanga had two reports from Dr Sheridan that do not appear to be before the Panel. She expressed the opinion at [9.0] that “Ms Tran’s physical recovery was prolonged and was not consistent with injury management guidelines and research for soft tissue injuries.”
Other assessments
Medical Assessor Young undertook an assessment of the claimant’s psychological or psychiatric injuries following the accident with the assistance of a Vietnamese interpreter. Medical Assessor Young’s certificate is dated 29 August 2022. He assessed WPI at 24%. The Panel understands his assessment is under review.
He diagnosed a post-traumatic stress disorder and major depressive disorder.
RE-EXAMINATION FINDINGS
The claimant attended a medical examination conducted by Medical Assessor Gorman in the Commission’s medical suites at Oxford St, Sydney.
Ms Tran attended with a Vietnamese interpreter. She did go to school here from year 7 to year 10 but, since then, has been at home raising her family and her English is not good. She relied exclusively on the interpreter throughout the interview.
History
Pre-accident medical history and relevant personal details
Medical Assessor Gorman read to the claimant the history recorded by Medical Assessor Rosenthal. It was interpreted for the claimant, and she was asked to correct any errors or add anything to it.
Ms Tran is now 42 years of age. She was born in Vietnam and came to Australia in 1991 at the age of 10. She was educated to year 10 but left school and apart from a year in employment before she had her children, she has been primarily occupied in a homemaker role.
She worked as a sewing machinist but is not working now. She stated that she made rice paper rolls working at a market in Sydney but following the accident she stopped this work.
She said she had no significant pre-existing medical conditions and says she enjoyed good health before the motor vehicle accident.
She is not receiving any Centrelink benefits. She lives with her husband who works and three children aged 21, 15 and 14 in their house in Green Valley.
History of the motor accident
Ms Tran was involved in a motor vehicle accident on 6 August 2013. She said that she was the driver of the family car (a Camry) with her seatbelt on. Another car performed a U-turn in front of her causing a collision to the front driver’s side of her vehicle. No airbags went off.
Police and ambulance attended the scene, and an ambulance took her to Fairfield Hospital.
History of symptoms and treatment following the motor accident
She said she developed neck, back and right shoulder pain after the accident. She did not get any specific treatment at Fairfield Hospital and then went to see Dr Lam who sent her for physiotherapy treatment which she had for about four weeks. This did not help.
She was later referred to Dr Chin, orthopaedic surgeon, who operated on her right shoulder in 2014 (arthroscopic subacromial decompression).
She was then referred to Dr Sheridan, neurosurgeon, who treated her conservatively. She has had massage treatment and hydrotherapy, but no further surgery has occurred although she did have another injection into her right shoulder.
Her symptoms have continued. She has had some physiotherapy.
She also reports developing a psychological injury with anxiety and depression being diagnosed and treated.
Details of any relevant injuries or conditions sustained since the motor accident
There have been no relevant injuries or conditions since the motor accident.
Current symptoms
She says her right shoulder, neck and back have all remained sore she says. Her right shoulder is the worst however. She cannot lie on it. If she does it wakes her.
The pain radiates from her right shoulder to her neck and head. It can be “sharp” or “throbbing”.
She has trouble walking but could not estimate how far she can walk but said it is restricted, and she can only sit for about 20 minutes. She does not do exercises at home – even when she stretches, she gets pain.
Since the accident, she has reduced the amount of household chores she is doing, sometimes doing very little. She is fearful of aggravating pain. She is scared to drive. She can go shopping. She said her husband and children help with the housework. She can manage her personal care activities. She does no gardening and no other physical activities.
Her stress and depression are worse she says. She is in no mood to cook. She is fearful of leaving the house.
Current and proposed treatment
She is taking a number of medications: Olanzapine, Valpro 500, Topamax, Celebrex, dothiapine, Duloxetine, Nizatidine, Naratriptan and Panadeine Forte (now reduced to one box of 20 per month).
She is not seeing the psychologist or physiotherapist now.
No further treatment has been proposed.
Clinical examination
General presentation
On examination, Ms Tran walked with a normal gait and posture. She was in no obvious distress. She weighed 62kg. She was 156cm tall.
Cervical spine (cervicothoracic)
Examination of her neck revealed mild right sided tenderness. There was normal cervical lordosis, no muscle spasm or guarding.
Rotation to left and right, flexion, extension and lateral flexion were all reduced to one half normal. There was no asymmetry of neck movement although there was some more discomfort on looking to the right.
There were no neurological deficits in the upper limbs. Muscle power, tone and reflexes were normal. There were no objective sensory changes although she reported that the whole of the left arm felt different (in a non-dermatomal distribution).
There was no atrophy or muscle wasting in the upper limbs.
Lumbar spine (lumbosacral)
She was generally tender throughout the whole of the spine, particularly in the midline, but there was no spasm or guarding. Back movements were all reduced by one-half in all directions – flexion, extension, lateral flexion and rotation. She could not easily get up on her heels or toes or squat.
Muscle power, tone, objective sensation and reflexes in her lower limbs were normal however although there was different sensation she reported in a non-dermatomal distribution in the whole of the left leg. There was no atrophy or muscle wasting in the lower limbs.
Upper extremity
On the left side she could easily reach her occiput and the left buttock. On the right side she could not reach her occiput and could only just touch the right buttock.
She reported that she does her ‘bra up at the front.
When observed putting on her wind jacket she carefully fitted the right arm first and never abducted past 60 degrees.
She had a full range of left shoulder movement without pain and discomfort.
At the right shoulder there were significant restricted movements as outlined below. The ranges of motion were measured three times with a goniometer and were reproducible and the claimant said she could not move further without pain.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 50° 180° Extension 10° 50° Abduction 60° 180° Adduction 20° 50° Internal Rotation 70° 80° External Rotation 80° 90°
Comments on consistency
Ms Tran was cooperative throughout the examination and there were no abnormal pain behaviours demonstrated. In particular, there was no behaviour such as that observed by Ms Piebanga or Medical Assessor Rosenthal who said:
“Passive movement of the shoulder also resulted in significant outbursts of screaming in pain and was not pursued because of reported pain.”
When observed informally, such as when putting on her wind jacket, Ms Tran carefully fitted the right arm first and never abducted past 60 degrees.
There were no inconsistencies evidence during the formal examination itself with the measurements obtained consistent for three repetitions of each movement.
CONSIDERATION OF THE ISSUES
What injuries did the claimant sustain in the accident?
The medical members of the Panel are satisfied, based on the clinical information available including the history, Medical Assessor Gorman’s examination and the radiological findings that the claimant sustained the following injuries in the accident:
(a) soft tissue injury to the cervical spine – while the claimant did not mention any neck pain or injury to the ambulance personnel, Fairfield hospital or her long standing GP Dr Nguyen, she did report neck pain one week after the accident to her new GP, Dr Lam. The Panel is not of the view that the apparent delay of a week in reporting neck pain is, in the circumstances of this claimant is clinically significant;
(b) soft tissue injury to the lumbar spine – the first mention of lower back pain in any medical record occurred on 19 August 2013 when the claimant attended Dr Lam. The delay in reporting back pain was not explained by the claimant, but in the light of the Panel’s impairment finding, the Panel does not intend to further consider the issue of causation, and
(c) right shoulder – the claimant has consistently complained of right shoulder pain since the accident. She was a seat-belted driver hit on the driver’s side. The mechanism of this accident and impact could have, in the Medical Assessor’s view and did cause an injury to the claimant’s shoulder. The Medical Assessor’s diagnosis is of bursitis and rotator cuff tendinopathy – as demonstrated on MRI in 2013. The claimant had surgery to repair the bursa in 2014 but has been left with residual symptoms of pain and restriction of motion.
The Panel notes Dr Nguyen’s notes from before the accident. While the claimant did see him for previous neck and lower back issues these appear isolated incidents of sprains or strains that did not require investigation or further treatment such as physiotherapy. These do not evidence any pre-accident impairments.
What is the impairment related to the cervical spine?
Assessment of impairment to the spine requires consideration of Chapter 3 of AMA4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 1.111 of the Guidelines).
The spine is divided (cl 1.131) into three regions:
(a) cervicothoracic;
(b) thoracolumbar, and
(c) lumbosacral.
There are five diagnostic related categories and a number of indicia provided to assist an examiner or assessor determining which of the categories is the correct category (see Table 7). The first is DRE category I which is selected if there are symptoms which may include pain.
A classification of DRE category II requires:
(a) pain with guarding; or
(b) non-uniform range of motion – dysmetria, or
(c) non-verifiable radicular complaints defined in table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling), which
(ii)follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes
On examination by Medical Assessor Gorman, there was some pain and tenderness but no dysmetria. While there was loss of motion it was uniform on all three planes. There was no muscle spasm or guarding observed.
There were no neurological signs of radiculopathy in the upper limbs and no true non-verifiable radicular symptoms. While the claimant complained of a different feeling in her left arm, this feeling was over the whole of the arm and did not conform to a specific nerve root distribution.
Ms Tran’s cervical spine injury is therefore assessed at DRE I which attracted a WPI of 0%. While other examiners have noted symptoms that have placed the claimant in DRE category II, the claimant did not qualify on the basis of Medical Assessor Gorman’s findings. This is to be expected noting the passage of time since the accident and the usual path of recovery for soft tissue injuries of this nature.
What is the impairment related to the lumbar spine?
The claimant has complaints of pain and tenderness on examination and therefore qualifies for a finding of at least DRE category I.
At the examination by Medical Assessor Gorman, there was no dysmetria present. There was loss of motion in the two planes, but this loss was symmetrical. There was no muscle spasm and no neurological signs in the lower limb suggestive of radiculopathy. While Ms Tran complained of an altered sensation in her left leg this was not a true non-verifiable radicular symptom as the alteration of sensation was to the whole of the leg and did not conform to a specific dermatome.
What is the impairment of the right shoulder?
The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand.
There are several methods of assessment provided for in section 3.1 as follows:
(a) amputation (part 3.1b);
(b) sensory loss of the digits (part 3.1c);
(c) abnormal range of motion (part 3.1d);
(d) peripheral nerve disorders (part 3.1k);
(e) vascular disorders (part 3.1l), and
(f) other disorders (part 3.1m)
Shoulder impairment is usually determined by assessing the impairment of shoulder function in accordance with the restriction or loss of motion in the shoulder joint according to three functional units of motion:
(a) flexion plus extension (figure 38 at page 43 of AMA4);
(b) abduction plus adduction (figure 41 at page 44), and
(c) internal plus external rotation (figure 44 at page 45)
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with table 3 on page 20 of AMA4.
The measurements obtained by Medical Assessor Gorman are as follows:
Right Shoulder Normal Review Panel Impairment Flexion 180 50 9 Extension 50 10 2 Abduction 180 60 6 Adduction 50 20 1 Internal rotation 90 70 1 External rotation 90 80 0 UEI 19%
The total UEI of the claimant’s right shoulder is therefore 19% which equates to 11% WPI using Table 3 on page 20 of AMA4.
Clause 1.41, which applies to the assessment of all impairments, states:
“Where there are inconsistencies between the medical assessor’s clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person’s attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”
Medical Assessor Gorman found no inconsistency within the examination or between the formal examination and his informal observation.
The Panel notes that the claimant’s range of left shoulder motion has been reported as normal at every examination she has attended. However, her right shoulder has shown a continued significant decline in performance since she was examined by Dr Maxwell in 2014 as shown in the table below.
Right Shoulder Normal Dr Maxwell
October
2014Dr Giblin
April
2016Assessor Rosenthal
May 2022Assessor Gorman
April 2023Flexion 180 180 100 60-90 50° Extension 50 45 30 10° Abduction 180 160 90 60-90 60° Adduction 50 20 20 20° Internal rotation 90 70 50 70° External rotation 90 90 80 80° WPI 2% 8% 11%
The panel has reviewed the claimant almost 10 years after the accident. Her right shoulder pain and restriction in movement has been a persistent finding in the medical records since the date of the accident. Also, a feature in the records since as early as Dr Chin’s note of 29 April 2014 is the claimant’s fear of moving the shoulder, either because of precipitating pain or further injury to the shoulder.
Over the course of 10 years, this long-standing fear avoidance behaviour and resultant inactivity has led to stiffness in the soft tissues around the right shoulder and muscle deconditioning. This has, in the clinical judgment of the medical members of the Panel, led to the reduced ranges of motion measured by Medical Assessor Gorman in April 2023.
CONCLUSION
The Panel is satisfied that the claimant’s WPI resulting from the injuries sustained in the accident is 11% which is, of course, greater than 10%.
As the Panel has come to a different view to Medical Assessor Rosenthal it follows that his certificate must be revoked.
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