Vuong v Allianz Australia Insurance Limited
[2022] NSWPICMP 277
•6 July 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Vuong v Allianz Australia Insurance Limited [2022] NSWPICMP 277 |
| CLAIMANT: | Van Thanh Vuong |
INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL: | Principal Member Josephine Bamber Medical Assessor Margaret Gibson Medical Assessor Shane Maloney |
| DATE OF DECISION: | 6 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of medical assessment under Motor Accident Injuries Act 2017; dispute as to the degree of permanent impairment as a result of injuries sustained in motor accident on 29 August 2018; Held- Original Medical Assessor’s Certificate revoked; the permanent impairment of injuries to the cervical spine, lumbar spine and right shoulder are not greater than 10% whole person impairment; finding that the right hip was not injured as a result of the motor accident and that the accident did not contribute to the left shoulder being injured because of overuse. |
Medical Assessment – Permanent Impairment
Review Panel Certificate
Issued under section 7.26(7) of the Motor Accident Injuries Act 2017
following a review as to
WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%
THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER SECTION 7.26 IS AS FOLLOWS:
The Panel revokes the certificate dated 29 June 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, IS NOT GREATER THAN 10%:
· cervical spine – soft tissue injury;
· lumbar spine- soft tissue injury, and
· right shoulder-soft tissue injury; fracture of the greater tuberosity of the humerus.
BACKGROUND
Mr Van Thanh Vuong was a mathematics teacher in Vietnam and came to Australia in 1978. He worked as a machine operator and delivering milk until 1994, when he commenced his own restaurant business. He has not worked since 2003 when he commenced to receive a Disability Support Pension for a depressive illness. He is now aged almost 66.
Mr Vuong alleges he suffered injury when he was driving his vehicle along the Cumberland Highway, Fairfield West, on 29 August 2018 when an oncoming vehicle made a right hand turn across his path and collided with his vehicle.
Allianz Australia Insurance Limited (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay Mr Vuong damages and/or statutory benefits to which he may be entitled under the Motor Accident Injuries Act 2017 (the MAI Act).
The parties are in dispute as to whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAI Act.[1]
[1] See ss 7.17, 7.20 and Sch 2 (2)(a) of the MAI Act.
The degree of permanent impairment is determined by making an assessment pursuant to Motor Accident Guidelines- Version 8, effective from 29 October 2019 (the Guidelines)[2]. The Guidelines are based upon the American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4). However, where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[2] Note at the time of Medical Assessor Gorman’s assessment version 7 of the Guidelines applied, however, the introduction to version 8 of the Guidelines provides for version 8 to come into effect on 29 October 2021 and therefore they are the relevant Guidelines for the review.
[3] Part 6.2 of the Guidelines.
Mr Vuong’s solicitors filed with the Dispute Resolution Service an Application for Assessment of a Permanent Impairment Dispute by the Medical Assessment Service. He sought assessment of injuries to his right hip, lumbar spine, right shoulder, left shoulder and cervical spine.
On 1 March 2021 the Personal Injury Commission (the Commission) commenced and now has jurisdiction in relation to Mr Vuong’s Application. Medical Assessor Gorman in his certificate dated 29 June 2021[4] assessed the degree of permanent impairment suffered by Mr Vuong caused by the motor accident on 29 August 2018. Medical Assessor Gorman found the above-mentioned injuries gave rise to a permanent impairment of 0%.
[4] AD2 p 5.
On 22 July 2021 Mr Truong, through his solicitors, filed an Application for Review of Medical Assessor Gorman’s certificate pursuant to s 7.26(1) of the MAI Act.
On 27 August 2021, the delegate of the President issued her decision to refer the medical assessment to a review panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(2) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Sch 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On 25 November 2021 the President convened the present Review Panel (the Panel) to determine the Application for Review.
CONDUCT OF THE REVIEW
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
On 23 December 2021 the Panel issued the following Medical Review Panel Directions:
“1. On 29 November 2021 the Review Panel (the Panel) issued a direction requiring the parties to each file an indexed, paginated bundle of the documents they rely upon in relation to the review.
2. On 6 December 2021 the claimant filed his bundle of documents (AD2- 135 pages). The insurer filed its bundle of documents (AD3-42 pages). The Panel considered those documents and on 15 December 2021 the Panel conducted a preliminary review of the matter.
3. The Review Application was filed by the claimant seeking a review of the decision of Medical Assessor Gorman dated 29 June 2021. Assessor Gorman assessed injuries to the cervical spine, left shoulder, right shoulder, low back and right hip and found injuries to these body parts were caused by the motor accident and had a whole person impairment (WPI) of 0%. Accordingly, he issued a certificate finding the degree of permanent impairment sustained in the motor vehicle accident on 29 August 2018 was not greater than 10% WPI.
4. The claimant in his submissions dated 22 July 2021 makes brief submissions about the range of movement found by Assessor Gorman in relation to the shoulders and the hips. Thereafter, the claimant’s submissions are focused on the findings made in relation to the impairment in the shoulders caused by the motor accident. There are no submissions about the cervical spine or low back. The Panel observes that if the claimant made submissions for the original medical assessment, they are not included in the claimant’s bundle of documents, whereas the insurer relies upon its submissions dated 28 September 2020 and 20 August 2021.
5. In addition, the Panel advises it has preliminary concerns in relation to the causation of the claimed injuries to the right hip, low back and left shoulder, whether they were caused by the motor accident. The Panel wishes to give the parties the opportunity to make further submissions in relation to these claimed injuries. Such submissions should refer to the evidence in the parties’ respective bundles of documents by reference to the relevant page numbers.
6. The Panel makes the following directions:
a.On or before 21 January 2021 the claimant is to file and serve his further submissions.
b.On or before 28 January 2022 the insurer is to file and serve submissions in response.
7. At this stage, the Panel advises it considers that a re-examination of the claimant should be undertaken by the Panel’s Medical Assessors in relation to all the claimed body parts, noting that the review panel’s determination is a fresh assessment.
8. The re-examination appointment is as follows:
Date: Tuesday 8 March 2022
Time: 2.15pm
Address: Suite 4, 66 Pacific Highway,
St Leonards 2065
9. The claimant is directed to bring to the above-mentioned appointment all radiological tests undertaken, including pre and post the motor accident on 29 August 2018, in relation to all the claimed injuries.
10. The Commission will liaise with the claimant before the appointment in relation to the covid-19 requirements.”
In response to the above-mentioned Directions Mr Vuong filed additional submissions dated 21 January 2022 (AD4). The insurer filed additional submissions dated 1 February 2022 together with further documents being the clinical records from Fairfield Chase Medical and Dental Centre which were served on Mr Vuong’s solicitors on 19 October 2021 (AD6).
SUMMARY OF RELEVANT DOCUMENTATION
Claim form
Mr Vuong lodged his Motor Vehicle Accident Claim Form on 12 December 2018[9]. He answered “no” to the question “[w]ere you suffering an illness or injury affecting the same or similar parts of your body at the time of the accident?”[10]. He did not fill out the part of the form enquiring as to the injuries sustained in the accident.
[9] AD2 p 16.
[10] AD2 p 18.
The claim form was accompanied with a Certificate of capacity from Dr Van Thang Bui dated 12 December 2018[11]. The diagnosis on the certificate only refers to “fracture of the greater tuberosity of right humerus”.
[11] AD2 p 21.
Statutory declaration
Mr Vuong swore a statutory declaration on 14 January 2019 in which he states he sustained injuries to his right arm, right shoulder, neck and back in the motor accident on 29 August 2018. He says he consulted Ms Nguyen, solicitor, on 7 September 2018 and he was concentrating on trying to get better but after three months he was still having pain in his right elbow, shoulder, neck and back. He became concerned about his treatment needs. He consulted his solicitor again in December 2018 and took the steps to make his claim. His statutory declaration was sworn in the presence of Mr Tran, solicitor[12].
[12] AD3 pp 2-3.
Treating medical evidence
On 30 August 2018 Dr Bui’s clinical entry in the progress notes from the Edward Medical Centre refers to the motor accident the day prior. It is recorded that Mr Vuong had “R shoulder pain, no limited movement”. On examination tenderness was noted over the C4/5. Analgesia was prescribed[13].
[13] AD2 p 49.
On 30 August 2018 an x-ray of the right shoulder and cervical spine was undertaken at the request of Dr Bui[14]. The clinical notes recorded on the report is “right shoulder pain and neck pain post MVA, ?Fracture. ?Tear of rotator cuff”. The radiologist found a “minimally displaced fracture of the greater tuberosity of the proximal right humerus. No evidence of a cervical spine fracture”.
[14] AD2 p 39.
On 31 August 2018 Dr Bui notes the result of the x-ray and that Mr Vuong had limited movement of the right arm and advised no lifting greater than 2kg[15].
[15] AD2 p 49.
On 2 October 2018 Dr Bui recorded that Mr Vuong had intermittent right shoulder pain requiring analgesia[16].
[16] AD2 p 48.
On 9 January 2019 an Allied Health Recovery Request No. 1 was issued by Hamza Hamwi from TLC Physio Canley Heights. It refers to Mr Vuong having sustained multiple injuries to his neck, shoulders and ribs[17]. There is no mention of a hip injury or of a back injury, although there is reference when detailing the examination of the ribs to “lower back pain reported due to compensation”.
[17] AD3 p 16
On 10 January 2019 Dr Bui recorded that Mr Vuong’s right shoulder pain persists and recommended analgesia and physiotherapy[18]. Dr Bui issued a certificate of capacity on 10 January 2019 which only listed the right humerus fracture as the injury sustained in the motor accident[19]. There is no further entry in Dr Bui’s notes excepting for 17 June 2020 when a surgery consultation took place, but no other details are recorded[20].
[18] AD2 p 57
[19] AD3 p 12.
[20] AD2 p 58.
On 25 May 2019 Mr Vuong consulted Dr Dang-Vu Tran at Medlife Family Medical Centre, Lansvale[21]. The doctor notes the details of the motor accident and records “presented with right shoulder pain, followed with left shoulder pain + whiplash neck pain and right mid/low back pain”. On examination the doctor found restricted neck movement in all range of motion. He states neurovascular/sensation as intact. In relation to the right shoulder, he found restricted movements with elevation/abduction to 90 degrees. He diagnosed post motor vehicle accident (MVA) whiplash neck sprain, mechanical right>left shoulder pain and mechanical right mid/low back pain. He requested various scans and recommended analgesia and physiotherapy[22].
[21] AD2 p 68.
[22] AD2 p 69.
On 3 June 2019 at the request of Dr Tran an MRI scan was undertaken of the right shoulder[23]. The radiologist’s impression was that there was:
“high grade near full thickness tear of the supraspinatus tendon measuring 20 x 14mm with posterior most fibres containing delamination. Full thickness tear of the superior tendinous band of the subscapularis with medialisation and subluxation of the tendinotic bicipital tendon. Extrascapular bicipital intrasubstance delamination and cystic change with bicipital tenosynovitis. Evidence of subacromial bursitis and impingement. Biceps labral anchor undersurface tear extending to the posterior labrum.”
[23] AD2 p 40.
On 3 June 2019 an MRI scan was also carried out on the cervical spine[24]. The radiologist reported that the paravertebral soft tissues appeared within normal limits. He also found multilevel spondylosis as detailed below:
“At C3/4, there is degenerative posterior disc osteophyte formation. This causes mild central spinal canal stenosis with ventral cord indentation. There is encroachment onto the origin of the right C4 nerve root. Mild to moderate left foraminal stenosis is also visible, with potential impingement of the left emerging C4 nerve root.
At C4/5, there is posterior disc osteophyte formation, causing mild central canal narrowing with indentation of the ventral cord. Mild bilateral foraminal stenosis, with no evidence of nerve root impingement.
At CS/6, there is a right paracentral disc osteophyte complex causing mild ventral thecal sac indentation. There is encroachment onto the origin of the right C6 nerve root. With possible compression. There is mild right foraminal stenosis with no overt exiting nerve root impingement.”
[24] AD2 p 42.
On 4 June 2019 an MRI of the left shoulder was performed, and the radiologist found “long head biceps tendinosis in its intrascapular course with a delamination tear. Subscapularis tendinosis with small tear superiorly. 17mm x 26 mm full thickness supraspinatus tendon tear. The posterior fibres are intact. Prominent enthesophyte formation at the under surface of the acromion[25]”. The radiologist suggested that if it was clinically indicated a bursal injection with local anaesthetic and cortisone could be performed.
[25] AD2 p43.
On 4 June 2019 an MRI scan of the lumbosacral spine was found by the radiologist to be unremarkable[26].
[26] AD2 p 45.
On 11 June 2019 Dr Tran recorded the various scan results[27]. A certificate of capacity was issued with the diagnosis of post MVA whiplash neck sprain, mechanical right > left shoulder pain and right mid/low back pain[28].
[27] AD2 pp 69- 70.
[28] AD2 p 82.
On 9 July 2019 Dr Tran referred Mr Vuong to Dr Nabavi[29].
[29] AD2 p 70 and p 88.
On 15 July 2019 Dr Tran answered the insurer’s questionnaire in which he referred to injuries sustained in the motor accident involving the neck, shoulders and low back[30].
[30] AD 3 p 11
On 19 August 2019 Dr Nabavi, orthopaedic surgeon, reported to Dr Dang Vu Tran[31]. The doctor took a history that Mr Vuong suffers from bilateral shoulder pain, with the left more painful than the right. Dr Nabavi records that the pain is over the anterolateral aspect and radiates to the biceps. It is present mostly at night and during shoulder elevation. He states that Mr Vuong has noticed a little stiffness and weakness but no crepitus. On examination Dr Nabavi found forward flexion of 160° bilaterally, external rotation of 30°, internal rotation is to the buttock. The doctor found normal power of the supraspinatus but pain on loading and weakness of the subscapularis, particularly on the right. He also found positive biceps provocation signs bilaterally. He stated that an MRI scan demonstrated bilateral rotator cuff tears and biceps tendinosis. Mr Vuong declined injections and advised he did not want to have surgery.
[31] AD2 p 38.
On 30 August 2019 Dr Tran referred Mr Vuong to Dr McKechnie[32]. A certificate of capacity was issued[33].
[32] AD2 p 71 and p 92.
[33] AD2 p 89.
On 10 October 2019 Dr Tran recorded that Mr Vuong presented with neck pain on both sides, radiating to the upper shoulders and restricted movements. He also notes restricted movement of the back in all range of motion and the presence of tense upper shoulder muscle. Pain was rated at 5/10.[34] A similar entry was made on 8 November 2019 with also bilateral shoulders pain radiating to the upper arms, with elevation/abduction to 90 degrees with positive impingement[35].
[34] AD2 p 71.
[35] Ad2 p 72.
On 6 December 2019 Dr Tran records restriction of neck and shoulders movements with elevation/abduction to 90 degrees, painful arc and restricted above shoulder level movements[36]. On 23 December 2019 it is recorded that Mr Vuong had constant neck pain, shoulders pain, radiated to upper arms/ upper shoulders and restricted neck movement in all planes of motion[37]. A similar entry is noted on 17 January 2020 also adding stiffness to both sides of the neck and mid and low back pain and restricted back movements. Further entries are noted on 21 February 2020, 20 March 2020, 20 April 2020, and 20 May 2020. On 19 June 2020 pain was also noted to be radiating to his buttocks and the pain was said to be worse in winter[38]. At each of these visits, certificates of capacity were issued[39].
[36] AD2 p 73.
[37] AD2 p 74.
[38] AD2 p 77.
[39] AD2 pp 93- 123.
Dr Porteous
Dr Andrew Porteous, occupational physician, provided two medico-legal reports for
Mr Vuong dated 2 October 2019[40]. The doctor sets out his history of the accident and that Mr Vuong “reports with the accident, he had onset of cervical pain, bilateral shoulder pain, lumbar spine and right hip pain[41]”.[40] AD2 pp30 and 36.
[41] AD2 p 31.
Dr Porteous records that Mr Vuong has been on a disability pension since 2003 for depression. His medical history does not include reference to symptoms in the body parts alleged to have been injured in the motor accident.
Dr Porteous assessed that Mr Vuong has 12% whole person impairment (WPI) comprised of 5% for the cervical spine, 3% for the right shoulder and 4% for the left shoulder and 0% for the lumbar spine[42].
[42] AD2 p 36.
Associate Professor Shatwell
Associate Professor Shatwell, orthopaedic surgeon, provided a medico-legal report to the insurer dated 23 July 2020. The doctor sets out the history he took from Mr Vuong regarding the accident, his subsequent treatment and the radiological investigations undertaken. Mr Vuong advised the doctor that he first experienced left shoulder pain around three months post- accident and Mr Vuong attributed this to overusing his left shoulder because of the pain and limitation of movement in the right shoulder[43].
[43] AD3 p 31.
After setting out his examination findings, Associate Professor Shatwell found the violent swerve in the motor accident, to avoid a head on collision with the other vehicle, caused the avulsion fracture of the greater tuberosity of the right humerus, where the supraspinatus tendon is inserted.
The doctor considered as Mr Vuong was not working and his wife looked after him following the accident it is unlikely that his left shoulder was overused. He advises that he does not consider the left shoulder rotator cuff degenerative change has arisen due to three months of increased activity. He says it is more likely that the symmetrical changes in the rotator cuffs have arisen as a process of degenerative change generally which would be common in his age group, 64 years. He adds that the changes in the shoulders are long-standing, and it appears the fracture, which was undisplaced has healed without displacement. He considers the shoulder problems would have produced symptoms around this time even if the motor accident had not occurred. The doctor adds that the findings on the MRI scan in both shoulders are not unusual in man of his age and background.
Associate Professor Shatwell also noted that the lumbar MRI scan was unremarkable and the changes in the cervical region are within normal limits for a man of his age and build. He concludes by asserting that the only injuries caused by the accident were the greater tuberosity fracture and to the cervical spine. He assessed these injuries at 0% WPI.
Medical Assessor Gorman’s Medical Assessment Certificate 29 June 2021
The injuries referred for assessment to Medical Assessor Gorman were described as:
(a) hip- right hip- musculoligamentous sprain;
(b) lumbar spine- low back- musculoligamentous sprain;
(c) shoulder- right shoulder- musculoligamentous sprain, and restriction to shoulder as result of neck injury referred in accordance with Nguyen v Motor Accidents Authority of New South Wales and Anor[44];
(d) shoulder- left shoulder- musculoligamentous sprain, and restriction to shoulder as a result of neck injury referred in accordance with Nguyen, and
(e) cervical spine- neck- musculoligamentous sprain.
[44] (2011) NSWSC 351, Nguyen.
Medical Assessor Gorman found that all of the injuries were caused by the motor vehicle accident and were musculoligamentous sprains with the right shoulder also having a fracture to the greater tuberosity of the humerus. He assessed permanent impairment at 0% WPI for each injury.
The Assessor’s clinical findings and assessment are discussed later in these reasons.
RE-EXAMINATION
As noted in the Direction to the parties, the Panel formed the view that in order to determine the matter a re-examination of Mr Vuong was necessary to determine causation of all of the alleged injuries and the permanent impairment of those injuries that the Panel determines were caused by the motor accident. Accordingly, on 8 March 2022 Medical Assessors Gibson and Moloney conducted the examination. There was an interpreter available over the phone for the duration of the assessment.
By way of background, Mr Vuong had asserted that as a consequence of the subject accident he had sustained injuries in the accident to his cervical, lumbar spine, both shoulders, and right hip, and that there was a WPI in excess of 10%. Whereas the insurer asserted that the only injuries caused in the subject accident were to cervical spine and to right upper limb, there being un-displaced right humeral fracture.
Mr Vuong was first asked about his prior medical history. This had included diabetes and hypertension. He had been on Disability Support Pension since 2003, due to depression. There was no history of any prior motor accidents or work injuries. There were no other relevant medical or surgical issues.
Mr Vuong was then asked about the circumstances of the subject accident. He had been the driver and he had his seat belt fastened, when he was involved in the head-on collision. He had attempted evasive action so the impact had been to the driver’s side of his vehicle which was subsequently written off.
An ambulance had attended, but Mr Vuong declined transfer to a hospital. His son arrived at the scene and had taken him home. He said he was “numb” for the remainder of the day so “could not feel anything”.
The following day, Mr Vuong consulted his regular general practitioner Dr Van Tan Bui. At that stage, there was pain and swelling of his right shoulder. He was referred for imaging of his cervical spine and right shoulder. The latter demonstrated a nondisplaced fracture of the greater tuberosity of the right humerus together with some degenerative changes in both the glenohumeral and acromioclavicular joints. He was offered a sling, but he said he had not worn it because he felt embarrassed wearing this in public. He was prescribed medication for pain.
Several months after the accident in June 2019, he was referred for MRI scan of the cervical spine, lumbosacral spine, and both shoulders.
Mr Vuong was asked about why he felt the general practitioner and physiotherapist had made no early mention of any left shoulder or any low back complaint, these not being mentioned in the clinical notes until about 10 months after the accident. He said he was unsure why this was, but that he had “no control” as to what practitioners wrote in their clinical notes.
He was referred for acupuncture.
He said initially he had not put in any claim, as he did not want to create any problems, but it was about two months after the accident that he had seen a lawyer and the lawyer suggested he do so.
Mr Vuong indicated his current symptoms as including pain of both deltoid regions, left greater than right. He said his neck is stiff and sore. There is pain over the right side of his back spreading to the upper anterior aspect of the right thigh but no further.
There was numbness involving both upper and lower limbs, this seemed to come on at rest and resolve with movements. When clarified by the Panel, this numbness had a global (non-dermatomal) distribution.
There were no complaints of any specific right hip pain, this being consistent with the earlier examination of Assessor David Gorman.
Mr Vuong’s current treatment involved Panadeine Forte, every second day, and paracetamol, Voltaren and Mobic being taken as required.
Physical examination
Mr Vuong had a kyphotic posture. He had a normal gait. He was right hand dominant.
On examination of the neck, there was mild diffuse tenderness over the posterior neck, but more focused over the lower cervical spine. Flexion and extension of the neck was to three-quarters normal, lateral flexion was to half normal and rotation was to three-quarters normal. There was no asymmetry, muscle spasm or guarding.
On examination of the upper limbs, circumferential measurements are consistent with right-hand dominance, there was normal power and sensation in both upper limbs. There were global sensory complaints over the left upper limb, but these did not conform to any dermatomal distribution.
Shoulder movements were variable as follows:
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Forward Flexion | 120 ° | 100 °- 130 ° |
| Extension | 50 ° | 40 ° |
| Internal Rotation | 70 ° | 80 ° |
| External Rotation | 80 ° | 50 ° |
| Abduction | 100 °- 130 ° | 100 °- 130 ° |
| Adduction | 40 ° | 40 ° |
There were crepitations on movements of the right, but not the left shoulder.
Mr Vuong was then asked about the variability in his shoulder movements, as measured by the Panel and, the fact that his shoulder surgeon Dr Nabavi had some time after the accident recorded normal range of movements. Mr Vuong said that he “does not know why”.
On examination of the lumbar spine, there was non-specific tenderness and also some tenderness over the right sacroiliac joint. Flexion and extension were to two-thirds normal, lateral flexion was to three-quarters normal bilaterally and rotation was to one-third normal bilaterally. There was no asymmetry, muscle spasm or guarding. Straight leg raise was to 70 degrees on the right, 80 degrees on the left. Neural tension signs were negative bilaterally.
On examination of the lower limbs, circumferential measurements were equivalent, therefore there is no muscle wasting, there was normal power and reflexes, but global reduction in sensory appreciation affecting the entire left lower limb which did not follow any dermatomal distribution.
On examination of both hips, movements were symmetrical and measured as follows:
| Hip movements | Right | Left |
| Flexion | 100 ° | 100 ° |
| Internal Rotation | 30 ° | 30 ° |
| External Rotation | 30 ° | 30 ° |
| Abduction | 30 ° | 30 ° |
| Adduction | 20 ° | 20 ° |
SUBMISSIONS
Mr Vuong relies on submissions dated 22 July 2021[45] and 21 January 2022[46].
[45] AD2 p 1.
[46] AD4.
The insurer has provided submissions dated 28 September 2020[47], 20 August 2021[48] and 1 February 2022[49].
[47] AD3 p 3.
[48] AD3 p 9.
[49] AD6
To avoid repetition in these reasons, the parties’ submissions are referred to below when the Panel is considering each body part.
The Panel notes that together with their further submissions dated 1 February 2022 the insurer has sought to introduce additional documents that were not included in the bundle of documents filed in response to the Panel’s direction dated 29 November 2021. The records the insurer seeks to introduce are the clinical records of Fairfield Chase Medical & Dental Centre. The documents comprise some 325 pages. Most of those pages are irrelevant.
However, the insurer has referred specifically to several documents showing Mr Vuong had chronic neck and left shoulder pain from 2015 to 2018 and a month before the accident he had physiotherapy treatment for his left shoulder. The records also contain a left shoulder ultrasound on 25 August 2015 which revealed a full thickness tear 2.2cm in size involving the anterior and mid portions of the supraspinatus tendon[50]. Mr Vuong’s solicitors have not sought to respond to this material. The Panel has considered whether it should seek further submissions about these documents, however it is of the view the same is not necessary in this instance because even without these records being taken into account the Panel has found the permanent impairment assessment of the cervical spine is 0% WPI and it has not been established that the motor accident materially contributed to the left shoulder symptoms.
[50] AD6 p 172.
For completeness’ sake, the Panel notes that these records also contain references to low back pain being experienced by Mr Vuong at times in the past, but as the Panel has assessed the lumbar injury as having permanent impairment of 0%WPI, further submissions are not necessary.
PANEL’S DETERMINATION
Applicable legal principles
In the Guidelines at 6.5 to 6.7 causation of injury is addressed, noting that the assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. In addition, various Supreme Court and Court of Appeal cases have discussed the principles to apply when determining issues of causation in motor accident cases. Those cases warn that treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation can lead to error as the question to be answered is whether the motor accident materially contributed to the injury to the body part in question. For instance, at [31] in Bugat v Fox(2014) 67 MVR 150; [2014] NSWSC 888 the Court stated:
“One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders.”
The Courts have also considered causation issues in the situation where an injury sustained in a motor accident has subsequently materially contributed to an injury to another body part. In AAI Ltd Trading as GIO as agent for Nominal Defendant v McGiffen[51] the Court of Appeal held 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.”
Cervical spine
[51] [2016] NSWCA 229, McGiffen.
The insurer accepts in its submissions that there was an injury to the cervical spine caused by the motor accident. The Panel notes that while the medical certificate accompanying the claim form did not refer to an injury to the cervical spine, in the first consultation with Dr Bui on the day after the accident he found on examination tenderness over the C4/5 level. Dr Porteous, Associate Professor Shatwell and Assessor Gorman all found there had been an injury to the cervical spine.
The Panel also diagnoses an injury to the cervical spine caused as a result of the motor accident.
There has been divergence of opinion as to the degree of permanent impairment of the cervical spine. Assessor Gorman found restricted symmetrical movement, with no arm radiation, no muscle spasm and assessed DRE I impairment giving 0%WPI. Associate Professor Shatwell found soft tissue injury to the cervical spine, which he said was minor soft tissue injury and not causing permanent impairment. However, Dr Porteous, who conducted an earlier assessment on 1 October 2019, found asymmetry of movement and guarding but no clinical sign of radiculopathy, resulting in DRE II and 5%WPI.
In Mr Vuong’s further submissions dated 21 January 2022 it was argued that he had radiculopathy and attention was drawn to the Allied Health Recovery Request dated 19 January 2019 which recorded there were pins and needles down both arms intermittently.[52] These submissions acknowledge that Dr Porteous did not find radiculopathy, however attention was drawn to the reasons why that doctor assessed the cervical spine at 5%, due to asymmetry of movement and guarding.
[52] AD3 p 16.
Clause 6.21 of the Guidelines provide that “the evaluation should only consider the impairment as it is at the time of the assessment”.[53] Therefore, while the Panel has considered all the material before it, the assessment of the degree of permanent impairment is based on the impairment found by the Panel at the time of its assessment.
[53] Guidelines p 90.
The examination findings by the Medical Assessors of the Panel have been summarised in detail above and no asymmetry, muscle spasm or guarding was found. There was no radiculopathy. The Panel finds in accordance with Table 6.7 of the Guidelines at page 107 Mr Vuong is assessed as coming within DRE I and therefore has permanent impairment of the cervical spine of 0%WPI.
Lumbar spine
Mr Vuong’s solicitors submit that in his statutory declaration dated 14 January 2019 he does refer to having sustained an injury to his back in the motor accident and after three months he was still having significant pain including to his back. He advises in that statutory declaration he does not speak English fluently[54].
[54] AD3 p 2.
Even though there is no contemporaneous record of a lumbar spine injury the Panel finds it is more likely than not on the balance of probabilities that there was a minor soft tissue injury to the lumbar spine. The reason for this conclusion is that although Dr Bui does not record an injury to the lumbar spine the physiotherapist on 9 January 2019 does note some lower back pain, albeit in the context of the examination of the ribs. This record is close in time to Mr Vuong’s statutory declaration and is about four and a half months post-accident and provides some corroboration that he was suffering back symptoms at that time.
Mr Vuong’s solicitor also submits that the force of the impact in the accident was sufficient to cause a fracture to the humerus and was also likely to have been sufficient to cause an injury to Mr Vuong’s lumbar spine. The insurer in its submissions in reply argues this submission should not be accepted because the legal representative is not entitled to provide such an assessment. The Panel infers that the thrust of the insurer’s submission is there is no expert opinion in relation to the forces of the accident.
In the case of Briggs v IAG Limited t/as NRMA Insurance[55] Harrison AsJ issued a decision in relation to an application of judicial review of medical certificate issued by a Review Panel involving the application of section 1.6 of the MAI Act. The Review Panel in Briggs was constituted by three Medical Assessors before the changes brought in by the PIC Act. The Review Panel’s certificate in Briggs was set aside because of the lack of procedural fairness in basing their decision on an article about which the Review Panel had not given the parties the opportunity to make submissions.
[55] [2020] NSWSC 1318, (Briggs).
In Mr Vuong’s case there is not the same issue as in Briggs, however, AsJ Harrison found at [59], “[t]he terms ‘violent’ and ‘less than violent’, pulled from the article, introduce defined standards of severity which do not appear in the statue or relevant guidelines”. The Panel finds that these comments illustrate that some caution needs to be exercised by a Medical Review Panel in making findings relating to “forces” of the accident. As explained above, the Panel has not based its finding on causation on this aspect of Mr Vuong’s submissions. The Panel has accepted the evidence he provides in his statutory declaration that he suffered back pain following the accident.
The insurer’s submissions in reply conclude with arguing that DRE I is the best fit in relation to the lumbar spine and that Mr Vuong has not established any error in Assessor Gorman’s certificate. The Medical Review Panel is not confined to identifying error. Its task is to conduct a “review” which entails a fresh assessment.
The insurer urges acceptance of Assessor Gorman’s findings. However, Assessor Gorman did find that a soft tissue injury to the lumbar spine was caused by the motor accident. The insurer’s submissions to some extent muddle the arguments it seeks to make about “causation” of injury and the degree of permanent impairment of that injury.
Having found an injury to the lumbar spine, it is now necessary for the Panel to consider the degree of permanent impairment of the lumbar spine. Dr Porteous assessed Mr Vuong as having 0% WPI as did Assessor Gorman.
The Panel also finds DRE I is the appropriate category for the lumbar spine as there was no asymmetry, muscle spasm or guarding. Neural tension signs were negative bilaterally. There was no radiculopathy. The Panel’s full examination findings have been detailed earlier in these reasons. DRE I results in an assessment of 0% WPI.
Right hip
Mr Vuong does not refer to an injury to his right hip in his statutory declaration. There is no reference to it in the physiotherapist’s Allied Health Recovery Request dated 9 January 2019 or in Dr Bui’s clinical notes and certificate. Nor does Dr Dang-Vu Tran refer to the same on 25 May 2019 or in his response to the insurer’s questionnaire on 15 July 2019. The earliest reference to right hip pain seems to be by Dr Porteous in his report dated 2 October 2019. Nonetheless Dr Porteous did not assess any permanent impairment in relation to the right hip.
Mr Vuong’s further submissions rely upon Dr Porteous and Assessor Gorman accepting that Mr Vuong had symptoms in the right hip which they submit developed over the months after the motor accident. It is also submitted that the complaints of pain are referred from the low back. However, as noted above the Panel found no radiculopathy in relation to the lumbar spine injury, nor did Dr Porteous[56]. Indeed, Dr Porteous on examination, while he found some discomfort in the hip, found full equal movements when compared to the left hip and no restriction resulting in impairment. Assessor Gorman under the heading current symptoms stated Mr Vuong did not have hip pain but indicated some left loin pain and on examination found no pain or tenderness around the hips.
[56] AD2 p 36.
The Panel considers that the evidence does not support a finding of causation, that the right hip was injured in the motor accident. The absence of mention to such an injury by any of the treating practitioners and by Mr Vuong himself leads the Panel to conclude that Mr Vuong has not discharged his onus of proof and has not established on the balance of probabilities that he did sustain an injury to his right hip as a result of the motor accident.
Right shoulder
Mr Vuong sustained a fracture to his right humerus in the motor accident. Dr Bui records that the radiologist found “a minimally displaced fracture of the greater tuberosity of the proximal right humerus”. In addition, Assessor Gorman also found a musculoligamentous strain of the shoulder.
Dr Porteous in 2019 assessed the permanent impairment at 3%WPI.
Associate Professor Shatwell was of the opinion that the fractured humerus healed without displacement and there was no residual sign of this injury on the MRI scan in 2019.The Panel notes that Dr Nabavi, treating orthopaedic surgeon, in his report dated 19 August 2019 found forward flexion of 160° bilaterally. The Panel drew this to Mr Vuong’s attention because that represents a normal range of movement. The Panel advises that there have been variability in the range of shoulder movement since then. For example, the Panel found 120° flexion, whereas Dr Porteous found 150° in his examination on 1 October 2019 and in 2020 Associate Professor Shatwell found 90°. The Panel’s physical examination of Mr Vuong revealed normal power and sensation and the shoulder movements.
Notwithstanding the Panel’s concerns about the variability and inconsistency of the right shoulder movements, the Panel finds if the maximum range of motion is applied that gives rise to 7% upper limb impairment (UEI) which equates to 4% WPI. The Panel has given Mr Vuong the benefit of doubt given the circumstances of the accident involving trauma to the right shoulder with a fracture having been sustained.
Left shoulder
The Panel has significant concerns in relation to whether Mr Vuong has established a causal connection with his left shoulder condition and the motor accident. Mr Vuong in his statutory declaration did not refer to left shoulder complaints. In his further submissions it is argued that because of the injury to the right shoulder he had to use his left shoulder and arm more and so has overcompensated leading to the symptoms in the left shoulder.
Attention is drawn to the Allied Health Recovery Request plan dated 9 January 2019 which states “shoulder- right humerus fracture, left side overcompensating”. The physiotherapist records the left shoulder having 65% flexion, abduction and extension and the right 55%, 70% and 70% respectively.
Mr Vuong’s solicitor also refers to the physiotherapist’s plan dated 19 June 2019 wherein it is noted that the right shoulder has improved but the left shoulder pain has not reduced, and he was finding it difficult to sleep or perform daily household activities[57].
[57] AD3 p 21.
The first recorded mention by a doctor about left shoulder pain seems to be in Dr Tran’s clinical entry on 25 May 2019 which states that Mr Vuong presented “with right shoulder pain, followed by left shoulder pain + whiplash neck pain…” On 4 June 2019 an MRI scan of the left shoulder was undertaken with the radiologist referring to:
“long head biceps tendinosis in its intrascapular course with a delamination tear. Subscapularis tendinosis with small tear superiorly. 17mm x 26mm full thickness supraspinatus tendon tear. The posterior fibres are intact. Prominent enthesophyte formation at the under surface of the acromion.”
The medical members of the Panel advise that in their clinical experience and expertise such findings are more likely than not on the balance of probabilities due to underlying degenerative changes and would not be caused by any “overuse” of the left shoulder following the injury to the right shoulder. Furthermore, had there been any overuse it would have been more manifest in the early period after the accident while the fracture was recovering and not some four months later in January 2019. It is noted that
Assessor Gorman also considered the findings on MRI were degenerative.Mr Vuong’s case now is not that he sustained a direct injury in the motor accident, but the left shoulder symptoms have been caused by overuse. Cases such as McGiffen, referred to above, provide authority for the test of causation including whether the accident materially contributed Mr Vuong’s later experience of left shoulder symptoms.
In such cases it is necessary for a claimant to provide evidence as to what actions comprised the alleged overuse. In McGiffen there was evidence about gait derangement. It is not sufficient for submissions to assert there has been overuse, there needs to be evidence upon which to base such a submission. No doubt it is for this reason that Mr Vuong’s solicitors have drawn attention to the use of the word “overcompensation” by the physiotherapist. However, there is no detail in the physiotherapist report as to what tasks have led to overcompensation.
Associate Professor Shatwell expresses doubt as to what tasks Mr Vuong would have been undertaking with his left shoulder when the right shoulder was recovering from injury. He points to the fact that Mr Vuong was not in employment and had the assistance of his wife in performing home tasks post- accident[58].
[58] AD2 p 38.
Dr Nabavi the treating orthopaedic surgeon in his report to Dr Tran on 19 August 2019 does not consider causation of the left shoulder pain.
The Panel finds that the report of Dr Porteous does not provide them with assistance because the history he took from Mr Vuong is very brief, he states “he reports with the accident, he had onset of cervical pain, bilateral shoulder pain, lumbar pain and right hip pain”. The doctor does not attempt to ascertain when the left shoulder symptoms came on and the cause of the same. He takes no history of any “overcompensation”. He notes there are no gardens or lawns at Mr Vuong’s residence, that he can do self-care, although he sometimes needs help getting his arms into his clothes. The doctor states he can do very simple domestic activities, but his wife does most of it, although Mr Vuong used to do more. Dr Porteous notes his recreational activities as reading the newspaper, watching TV and videos and socialising[59]. The Panel finds that this description of Mr Vuong’s activities does not provide evidence of overuse of the left shoulder.
[59] AD2 p 32.
Mr Vuong has not included in his statutory declaration any reference to his left shoulder. Mr Vuong did not inform the Panel medical members of any tasks he had to perform with his left shoulder when the right shoulder was injured.
The Panel finds that Mr Vuong has not discharged his onus of proof to establish that he did in fact overuse his left shoulder as a result of injuries he sustained in the motor accident. The Panel accepts the opinion of Associate Professor Shatwell in this regard, that it is unlikely that the left shoulder symptoms are as a result of overcompensation. The Panel finds on the balance of probabilities the left shoulder symptoms are degenerative in nature, which is consistent with the findings on the MRI scan.
Because the Panel has found the left shoulder condition was not contributed to by the injury to the right shoulder, and therefore there is no causal connection to the motor accident, the Panel has not needed to consider the submissions made by the insurer relating to the records from Fairfield Chase Medical & Dental Centre relating to the pre-injury left shoulder symptoms.
SUMMARY OF INJURIES CAUSED BY THE ACCIDENT
· Cervical spine- soft tissue injury;
· Lumbar spine- soft tissue injury, and
· Right shoulder- soft tissue injury, fracture of the greater tuberosity of the humerus.
IMPAIRMENT ASSESSMENT
The Panel has assessed permanent impairment using the Guidelines and AMA 4. Permanent impairment is defined in AMA 4 as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”In the Panel’s view the impairment in this case meets the definition of permanency outlined above. Clauses 6.19 to 6.22 of the Guidelines say the evaluation must not include any allowance for predicted long term change. It is noted that Mr Vuong does not intend to undertake surgical treatment.
Combined whole person impairment
The combined WPI equals 4% using the combined values chart, AMA 4 page 322. This is summarised in the Table below:
Body Part or System AMA Guides/ MAA Guidelines References
(chapter/ page/table)Permanent (YES/NO)
Current %WPI* %WPI from pre-existing OR subsequent causes %WPI due to motor accident 1.
Cervical spine
Guidelines Table 6.7, p 107
YES
0%
0%
0%
2.
Lumbar spine
Guidelines Table 6.7 p 107.
YES
0%
0%
0%
3.
Right shoulder
AMA 4 Chapter 3.1m, Tables 18 and 23, pages 58 and 60. Table 3, page 20.
YES
4%
0%
4%
0
2
0