Wang v AAI Limited t/as GIO
[2022] NSWPICMP 314
•1 August 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Wang v AAI Limited t/as GIO [2022] NSWPICMP 314 |
| CLAIMANT: | Huaiqiang Wang |
INSURER: | AAI Limited trading as GIO |
| REVIEW PANEL: | Member Susan McTegg Medical Assessor Shane Moloney |
| DATE OF DECISION: | 1 August 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Rear end collision; whole person impairment; cervical spine; thoracic spine; shoulder injury; soft tissue injury; medical review panel; causation; Motor Accident Compensation Act 1999 (1999 Act); the claimant suffered injury in a rear end collision on 24 March 2017; the dispute related to the assessment of permanent impairment under the 1999 Act; assessment of injury to cervical spine; thoracic spine and right shoulder; question of causation of shoulder injury; Held — cervical spine soft tissue injury; assessed as diagnosis-related estimate (DRE) cervicothoracic category 1 resulting in 0% whole person impairment; thoracic spine soft tissue injury; assessed as DRE lumbosacral category 1 resulting in 0% whole person impairment; Panel not satisfied right shoulder injury causally related to accident; lack of complaint of shoulder injury; no restriction of range of movement recorded by medico-legal specialists in the 12 months post-accident. |
DETERMINATIONS MADE: | Motor Accidents Compensation Act 1999 Review Panel Certificate issued under Part 3.4 of the Motor Accident Compensation Act 1999 following a review under s 63 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 Panel revokes the certificate of Medical Assessor Woo dated 11 December 2021 and issues a new certificate determining that the following injuries were caused by the motor accident and do not give rise to a whole person impairment which is greater than 10%: cervical spine soft tissue injury; and1. thoracic spine soft tissue injury2. The Panel determines that the following injury was not caused by the motor accident: right shoulder soft tissue injury.1. |
STATEMENT OF REASONS
INTRODUCTION
Mr Huaiqiang Wang (the claimant) was driving his Toyota Yaris to work on 24 March 2017. He stopped his vehicle at a red light when it was rear-ended by a Lexus SUV (the accident). Mr Wang was holding the steering wheel with his right hand at the time. He felt a jerking movement to his neck and torso and his neck hit the headrest. Mr Wang exchanged details with the driver of the other car before continuing his journey to work.
Mr Wang asserts he sustained injury to his neck, mid back and right shoulder in the accident.
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Mr Wang under the Motor Accident Compensation Act, 1999 (MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Wang as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Sections 57 and 58 of the MAC Act.
MEDICAL EXAMINATION UNDER REVIEW
Medical Assessor Alexander Woo issued a certificate dated 11 December 2021.[2]
[2] AD1 p18.
The following injuries were referred to Assessor Woo for an assessment of the degree of permanent impairment:
· cervical spine soft tissue injury;
· thoracic spine soft tissue injury, and
· right shoulder soft tissue injury.
Assessor Woo reported Mr Wang complained of right shoulder pain and restricted elevation to 90%. Whilst his neck and back pain had improved his neck became stiff after working in the garden. He felt tired in the thoracic spine and had numbness in the palm of the right hand and the 4th and 5th fingers.
On examination of both the cervical and thoracic spine Assessor Woo noted no tenderness, spasm or guarding. He observed range of movement to be normal with no dysmetria. The neurological examination was normal. However, in respect of the cervical spine he found non-verifiable radicular complaints whilst he found no non-verifiable complaints in the thoracic spine.
Assessor Woo observed mild tenderness in the right shoulder. There was no muscle wasting in both upper limbs. He recorded the following active range of motion of both shoulders:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
110°
180°
Extension
40°
50°
Adduction
40°
50°
Abduction
110°
180°
Internal Rotation
40°
90°
External Rotation
60°
90°
Assessor Woo noted the clinical notes of Dr Weinrauch of 6 April 2017 did not report any right shoulder pain. However, on 4 September 2017 in his referral for physiotherapy Dr Weinrach reported:
“Currently he is experiencing ongoing soreness of the mid-scapular area and numbness Rt little finger and ulnar border of forearm.
There is tenderness from T3 to about T7 (not corresponding to the ulnar area pf symptoms) and at the costovertebral joints at those levels.”
Assessor Woo reported Mr Wang had symptoms in his neck and back immediately following the accident. He found Mr Wang had discomfort in his right shoulder and his pain increased subsequently. He concluded Mr Wang had sustained a right shoulder injury as a result of being restrained by the seat belt at the time of the accident.
Assessor Woo concluded:
“It is likely that he had some pre-existing degenerative changes of the rotator cuff in his right shoulder with regard to his age and the MRI findings of tendinosis and intrasubstance tear of the supraspinatus tendon. The MRI findings are commonly seen in degenerative changes in the rotator cuff rather than acute injury. The motor accident caused aggravation of the degenerative changes with gradual onset of symptoms of pain and restriction of movement”.
The cervical spine was assessed at 5% whole person impairment (WPI) on the basis of injury with non-verifiable radicular complaints.
The thoracic spine was assessed at 0% WPI on the basis of injury without non-verifiable radicular complaints.
Assessor Woo assessed a 7% WPI in respect of the right shoulder but deducted half of the impairment on the basis there was evidence of pre-existing degenerative changes of the rotator cuff in the right shoulder. The assessment of 3.5% WPI was rounded up to 4% WPI.
In summary Assessor Woo found a 9% WPI caused by the accident.
REVIEW PROCEDURE
An application for review of the medical assessment of Assessor Woo was lodged within 28 days of the date on which the certificate of Assessor Woo was made available to the parties.[3]
[3] Section 63(7) of the MAC Act.
On 24 February 2022, the delegate of the President being satisfied 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 referred the medical assessment to the Review Panel (the Panel).[4]
[4] Section 63(2B) of the MAC Act; AD1 p 6.
The Personal Injury Commission (the Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under cl 14A(1)(vii) Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a “new decision-maker”. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made after 1 March 2021 the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[5] The President’s Delegate referred this application for review to the panel.
[5] Section 63(3) of the MAC Act.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[6]
[6] Clause 1.2 of the Guidelines.
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.[7]
[7] 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.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[9]
[9] Section 63(3A) of the MAC Act.
The Panel issued a Direction to the parties on 8 March 2022 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 195 and marked AD1. The solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 33 and marked AD2.
On 26 April 2022 the Panel agreed an examination was required.
EVIDENCE BEFORE THE REVIEW PANEL
Personal Injury Claim form
In the Personal Injury Claim form[10] dated 31 August 2017 Mr Wang listed his injuries as follows:
[10] AD1 p 34.
Injury
Location
Head
Concussion
Cervical Spine
Whiplash injury
Thoracic Spine
Whiplash injury
Both arms
Symptoms radiating from neck into upper extremities and hands
Psychological injury
Stress & anxiety.
Radiological imaging
Mr Wang underwent an X-ray of the cervical and thoracic spine on 30 August 2017[11]. The report states:
“Cervical spine vertebral body height is preserved. There is no fracture or destructive lesion seen. The odontoid process is centrally placed between the lateral masses of C1. There is mild cervical spondylosis, most prominent at C4/5. No evidence of significant bony foraminal stenosis, with mild uncinate spurring noted at C3/4 and C4/5 bilaterally, slightly more prominent on the left ….
Thoracic spine vertebral body height appears preserved. There is no fracture or destructive lesion seen …”.
[11] AD1 p 78.
The report of a CT scan of the cervical and thoracic spine on 31 August 2019[12] reads as follows:
“Mild facet joint arthropathy of the thoracic spine. Mild spondylopathy of the cervical spine including right neural exit foraminal narrowing at C5/6 and C4/5”.
[12] AD1 p 59.
Mr Wang underwent an MRI of the cervical spine and right shoulder on 6 November 2019. Dr Andrew Carter reported:[13]
“There is a small high-grade bursal surface tear in the anterior supraspinatus, with near full-thickness communication. There is tendinosis and mild intrasubstance delamination of the tendon over 15mm.
There Is moderate overlying bursitis.
There are multilevel spondylotlc changes throughout the cervical spine, with mild narrowing of the spinal canal at C4/5.
There is moderate multilevel foramlnal stenosis, more severe on the left.
With reference to the patient’s symptoms however, there is moderate narrowing at the right C6 neural exit foramen due to loss of disc height and uncovertebral hypertrophy”.
Ryde Hospital, 25 March 2017
[13] AD1 p 60.
A discharge referral from Ryde Hospital details an attendance by Mr Wang on 25 March 2017.[14]
[14] AD1 p 48.
Mr Wang reported his car, (Toyota Yaris) was stationary at lights, when it was hit from behind by a Lexus SUV which was running in moderate speed. He described a jerking motion in the head and torso. The airbags did not deploy. There was no loss of consciousness, dizziness or pain post-accident.
Mr Wang presented with a mild headache and dull pain in the neck. He was diagnosed with likely muscular tension type pain, advised to rest and to trial Panadol and Nurofen.
Clinical notes of Carlingford Court Medical Centre[15]
[15] AD1 p 127.
The clinical notes commence on 8 June 2013 and do not disclose any relevant pre-accident history.
On 6 April 2017 Mr Wang consulted Dr Weinrauch. She reported he sustained a whiplash injury on 24 March 2017 and had experienced ongoing soreness of the neck and a numb feeling at the back of his head. On examination Dr Weinrauch found a full range of movement of the head and neck with no radicular signs. Dr Weinrauch referred Mr Wang to Mr Adrian Cheuk, physiotherapist.[16]
[16] AD1 p 43.
On 24 April 2017 Dr Weinrauch reported Mr Wang’s neck was improving with physiotherapy. On 3 May 2017 Dr Weinrauch reported neck pain and range of movement was improving. Mr Wang was experiencing anxiety when driving. Dr Weinrauch diagnosed an adjustment disorder with anxiety.
On 19 July 2017 Dr Weinrauch reported complaints of intermittent lower back pain and numbness along the small finger and ulnar aspect of both forearms and arms since the accident. She reported the neck pain had resolved fully. She also reported minor para thoracic muscle tenderness.
On 4 September 2017 Dr Weinrauch reported the cervical whiplash injury had resolved. Mr Wang was experiencing ongoing soreness of the mid-scapular area and numbness of the right little finger ulnar border of forearm. She also noted the ongoing mid-scapular discomfort had been present since the accident. She also reported intermittent lower back pain and minor para thoracic muscle tenderness.
On 4 September 2017 Dr Weinrauch wrote to Adrian Cheuk stating inter alia “He presents now with pain interscapular and weakness Rt shoulder after heavy lifting”[17].
[17] AD1 p 76.
On 8 November 2017 Dr Weinrauch wrote to Adrian Cheuk stating Mr Wang’s cervical spine whiplash injury had resolved.[18] She noted he was still experiencing intermittent ongoing soreness of the mid-scapular area and numbness of the right little finger and ulnar border of the forearm, triggered by heavy lifting, for example, his five-year-old son or heavy groceries. She also reported tenderness from T3 to T7.
[18] AD1 p 79.
Clinical notes of Tan Hands, physiotherapist
On 15 May 2017 the clinical notes of Tan Hands[19] state:
“S/E: Last Thu/Fri particular sore, otherwise. Busy with work. Sat better. Last 2 days shoulder a bit stiff, some H/A's. PM usually worse. AM feels quite ok now”.
[19] AD1 p 87.
On 18 September 2017 Mr Hands referenced right shoulder exercises and continued education for the shoulder problem[20].
[20] AD1 p 89.
Mr Wang continued to consult Mr Hands and on 15 December 2018 he recorded complaints in the bilateral shoulders, although by 2 February 2019 Mr Hands reported the left shoulder was much better although the right shoulder was not great.[21] Thereafter the records refer to right shoulder pain on a regular basis whilst the earlier records focused on the upper back.
[21] AD1 p 92.
In an Allied health recovery request dated 27 May 2017[22] the recovery plan included commencement of a shoulder strengthening program to reduce the possibility of recurring neck and shoulder pain.
[22] AD1 p 117.
Report of Tan Hands, physiotherapist, 15 April 2017[23]
[23] AD1 p 44.
Mr Hands reported Mr Wang presented on 11 April 2017 with significant discomfort in the neck. He reported postural problems, with rounded shoulders, increased thoracic kyphosis and noted the neck was in a head forward position. He also reported feeling fatigued in the afternoon. A provisional diagnosis was made of whiplash injury.
Report of Tan Hands, physiotherapist 15 September 2018[24]
[24] AD1 p 99.
Mr Hands reported Mr Wang had returned recently to see him as he was again experiencing intermittent discomfort with his upper back and shoulders. He stated he had started Mr Wang on exercises to improve his neuromuscular control and activation at the base of his neck.
Report of Tan Hands, physiotherapist 9 September 2019[25]
[25] AD1 p 100.
Mr Hands refers to his continued management of the claimant’s upper back, neck and right shoulder pain. Mr Hands stated Mr Wang had attended that day with complaints of right arm pain on elevation and upper back discomfort. He reported the symptoms had been intermittent and exacerbated by exercise or hard physical exertion. Mr Hands diagnosed right shoulder strain with impingement signs.
Report of Dr Murray Hyde-Page, orthopaedic specialist 18 April 2018
Dr Hyde-Page assessed Mr Wang at the request of the insurer. He reported Mr Wang attended Ryde Hospital the day after the accident when he was assessed as having suffered a soft tissue injury to his neck. No investigation or treatment was provided. He reported Mr Wang saw his general practitioner (GP) a couple of weeks later with ongoing neck and thoracic back pain for which he attended physiotherapy. Dr Hyde Page also reported Mr Wang had continued to do his normal office-based work in property management.
He reported Mr Wang’s neck pain had settled down and he was nearly 100% better. He had no pain going into his shoulders or arms. He reported the only ongoing pain experienced by Mr Wang was pain in the upper thoracic spine between the shoulder blades, aggravated by bending and lifting and prolonged sitting.
Dr Hyde Page provided the following report of his examination:
“Today’s examination indicated completely normal examination of the cervical spine, shoulders and upper limbs. He had normal examination of his thoracic spine except for some discomfort in the mid-thoracic area. There was no muscle guarding or stiffness. He had no dysmetria or asymmetrical movement”.
Dr Hyde Page diagnosed a musculoligamentous or soft tissue injury to the cervical and thoracic spine. He assessed a 0% WPI.
Report of Dr Murray Hyde-Page dated 25 May 2020
Dr Hyde-Page reviewed Mr Wang by video link. Mr Wang reported his neck had settled down well, but he had developed discomfort around his right shoulder which increased with elevation of his arm about his head and which first came on when he was playing badminton with his daughter. He also described weakness in the shoulder. He also complained of persistent numbness in his right ring and little fingers and some ongoing upper thoracic back pain.
Dr Hyde-Page reported the MRI scan of the cervical spine and right shoulder performed in November 2019 showed generalised cervical spondylotic changes, but no evidence of any disc protrusion or significant nerve root entrapment. He concluded there was not enough evidence to suggest nerve root entrapment causing the numbness in the right hand, ring and little fingers. He stated the moderate narrowing of the right C6 neural exit foramina did not correspond to the ongoing symptoms.
He reported the MRI scan of the right shoulder showed a significant tear of the supraspinatus tendon associated with some tendonitis and moderate overlying bursitis, but with no muscle atrophy. He thought the changes were more likely to be of recent origin rather than dating back to the accident.
Dr Hyde-Page noted there was no evidence of any injury to the right shoulder when Mr Wang attended Ryde Hospital a day after the accident, no complaint to Dr Weinrauch during follow up, no complaint during his earlier assessment of Mr Wang and symptoms only developed in 2019, over two years after the accident when playing badminton with his daughter. Dr Hyde-Page also reported Dr Dixon did not comment on any stiffness or rotator cuff tendonitis in the right shoulder and only commented on some pain in the right upper arm. He stated the MRI scan suggested a more recent injury and he concluded the rotator cuff tendonitis was unrelated to the accident.
Dr Hyde-Page reported Mr Wang’s neck injury had fully resolved. He had mild back pain in the mid to upper thoracic region and some numbness in his right ring and little fingers that does not interfere with the function of his hand. He concluded Mr Wang had sustained musculoligamentous or soft tissue injury to the cervical and thoracic spine in the accident.
Dr Hyde-Page concluded Mr Wang had sustained a DRE Category I cervical spine injury and a DRE Category I thoracic spine injury, both resulting in a 0% WPI.
Dr Drew Dixon, orthopaedic specialist, 6 June 2018[26]
[26] AD1 p 62.
Dr Dixon assessed Mr Wang at the request of his lawyers on 6 June 2018. Dr Dixon reported the following symptoms:
“He reports the pain and stiffness in his neck has improved as had his headaches. He does however, have some pain In the right upper arm with paraesthesia intermittently extending to the little finger of his right hand. He reports no stiffness in his shoulders but does report stiffness in his thoracic spine with upper thoracic and inter-scapular back pain, particularly on trunk rotation to the right”.
On examination Dr Dixon found a full range of motion of both shoulders but felt there was inter-scapular pain on shoulder elevation. He noted stiffness of the thoracic spine with a reduction in forward flexion, extension, and trunk rotation. He found tenderness in the upper and inter-scapular regions of the thoracic spine but no gross neurological deficit. He noted two centimetres of wasting of the left arm, noting Mr Wang to be right-handed.
Dr Dixon provided the following opinion as to diagnosis:
(a) whiplash injury to his neck which had settled;
(b) seat belt injury to the right shoulder with pain in the upper arm;
(c) thoracic back strain injury with posttraumatic stiffness with dysmetria on trunk rotation, and
(d) radicular complaint with pain radiating in his upper arm and occasionally into his forearm with intermittent paraesthesia in his little finger on the right.
Dr Drew Dixon, orthopaedic specialist, 10 March 2020[27]
[27] AD1 p 188.
Dr Dixon reviewed Mr Wang on 24 February 2020 and provided a report dated 10 March 2020.
On this occasion Dr Dixon reported Mr Wang did complain to his doctor within three weeks of the accident about pain in his right shoulder due to seat belt injury, although this was not investigated at the time. He noted the pain in the right shoulder had become progressively more severe and Mr Wang had difficulty adducting the arm, and difficulty with heavy lifting and carrying due to right shoulder brachalgia.
He also reported Mr Wang had ongoing pain and stiffness in his neck which had deteriorated, although the thoracic spine had improved.
Dr Dixon provided the following expanded opinion as to diagnosis:
(a) whiplash injury to his neck with post traumatic stiffness with dysmetria and facet arthralgia and right shoulder brachalgia and trapezial muscle pain and spasm;
(b) seat belt injury to the right shoulder with post traumatic stiffness with subacromial bursitis and partial rotator cuff tear;
(c) thoracic back strain injury with post traumatic stiffness which, in the main, has settled, and
(d) radicular complaint with pain radiating to his upper arm and occasionally into his forearm with intermittent paraesthesia in his little finger on the right.
Dr Dixon assessed a 5% WPI for injury to the cervical spine, a 0% WPI for injury to the thoracic spine and 6% WPI for injury to the right shoulder, resulting in a total of 11% from the Combined Values Chart.
Mr Yanni Sergides, neurosurgeon, 22 November 2019[28]
[28] AD1 p 195.
In a report dated 22 November 2019 Mr Sergides states he saw Mr Wang for follow up. He reported the cervical spine MRI showed degenerative change but no significant right sided foraminal stenosis. He reported the symptoms in the right hand had largely resolved and the ongoing problem was within the right shoulder. Mr Sergides referred Mr Wang to a specialist shoulder physiotherapist.
RELEVANT LEGAL AUTHORITY
Causation of injury is addressed in the Guidelines:
1. “1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
2. 1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
3.1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
4.2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
5.This, therefore, involves a medical decision and a non-medical informed judgement.”
In Wingfoot Australia Partners Pty Ltd v Kocak Harrison AsJ at [57] confirmed that a Review Panel has “an obligation to set out its actual path of reasoning so as to enable a reader to determine whether it fell into error”. [29]
[29] [2013] HCA 43; (2013) 252 CLR 480, Wingfoot.
Adamson J in a recent decision of Hunter v Insurance Australia Ltd trading as NRMA Insurance considered the question of causation where a plaintiff made a claim for psychiatric injuries suffered as a consequent of an overdose of analgesia following surgery to treat injury sustained in a motor vehicle accident.[30]
[30] [2021] NSWSC 623, Hunter.
Adamson J after referring to the Guidelines set out above outlined the common law principles of causation as follows:
“16 The Panel was obliged to apply the PI Guidelines with respect to causation which, as set out above, incorporated common law principles of causation. It is well established at common law that for there to be a causal link between a consequence and a cause it is not necessary that the consequence be a direct consequence of the cause as long as it is reasonably foreseeable. This principle is illustrated by Mahony v J. Kruschich (Demolitions) Proprietary Limited (1985) 156 CLR 522; [1985] HCA 37. In that case, a worker sued his employer for damages for personal injuries suffered by him in the course of employment. The employer cross claimed against the worker’s doctor, alleging that his negligent treatment of the worker had caused or contributed to the worker’s injuries and incapacity. The trial judge struck out the cross claim on the ground that it disclosed no reasonable cause of action. The Court of Appeal restored the cross claim. The doctor’s appeal to the High Court was dismissed.
17 The High Court (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ) held that if a plaintiff acts reasonably in seeking medical treatment for injuries sustained as a result of negligence, and is further injured by the medical treatment, the original tortfeasor will be liable for the consequences of the medical treatment. The original injury is regarded as carrying some risk that medical treatment administered by reason of it will be negligently administered.”
In Allianz v Francica[31] the Supreme Court stated that when determining issues of causation and identifying the nature of an underlying problem, medical assessors ought to corroborate assertions of symptoms with objective evidence, rather than simply accepting the history provided at face value.
SUBMISSIONS
[31] [2012] NSWSC 1577.
The claimant’s submissions
The claimant provided submissions dated 17 December 2021.[32] Whilst the submissions were directed to the question to be determined by the Delegate of the President the claimant submitted there was no objective evidence of any pre-existing symptomatic permanent impairment of the right shoulder.
[32] AD1 p 1.
The claimant submits that the clinical notes of Tan Hands Physiotherapy evidence right shoulder complaints as early as seven weeks following the accident.
The claimant submits there should be no apportionment of the WPI assessment for the right shoulder.
The insurer’s submissions
The insurer provided submissions dated 21 February 2020 in respect of the initial application for permanent impairment. The insurer submits:
· the CT and X-ray of the cervical and thoracic spine reportedly found unremarkable appearances;
· the X-ray of the thoracic spine found no fracture or dislocation;
· the X-ray of the thoracic spine found normal curvature and alignment, normal vertebral height and no fracture, dislocation or bone destructive lesion;
· the CT of the cervical spine found no prevertebral soft tissue swelling and no paravertebral mass was seen;
· further, the CT of the thoracic spine found normal curvature and alignment. There was mild facet joint arthropathy demonstrated throughout the thoracic spine;
· the report from orthopaedic surgeon Dr Murray Hyde Page dated 18 April 2018 opined 0% WPI;
· no further treatment was required for the injuries which had stabilised, and
· Mr Wang only took two days off work and has continued to do normal office-based work without any restrictions and no further time off work.
The insurer provided submissions dated 19 January 2022 largely directed to the question to be determined by the Delegate of the President although still of relevance to the dispute to be determined by the Panel.
Relevantly, the insurer submits:
“The findings of Assessor Woo - that is, that the claimant initially experienced some discomfort in the post-accident period, and that the more severe right shoulder pain commenced in early 2019 – are entirely consistent with what is recorded in relation to the claimant’s attendance at Tan Hands. It is noted that on 5 May 2017(about 7 weeks following the motor accident), being the entry relied on by the claimant in their submissions, it is recorded that ‘last 2 days shoulder a bit stiff’.”
Furthermore, the insurer submits the findings of Assessor Woo are also consistent with the clinical records of Carlingford Medical Centre which make no reference to the right shoulder between the date of accident and the last entry on 21 September 2017.
The insurer also submits that Dr Hyde Page reported normal range of movement of the right shoulder on examination on 6 April 2018 as well as no report of right shoulder complaints by Mr Wang.
The insurer submitted Assessor Woo provided a clear path of reasoning in determining that the tendon tears in the right shoulder and resulting impairment were most likely pre-existing and degenerative (as opposed to traumatic). The insurer submits a finding of pre-existing degenerative changes in the right shoulder is underpinned by the following:
(a) the claimant’s age;
(b) the nature of the pathology displayed in the radiology, and
(c) the gradual onset of right shoulder pain some considerable period of time after the accident which was reflected in the claimant’s history to Assessor Woo on examination as well as in the treating material.
THE MEDICAL EXAMINATION
Mr Wang was examined by Medical Assessor Moloney the Commission medical rooms. Interpreter, Helen Yang (NAATI CPN5SZ69L) was present for the entire interview and examination.
Background
Mr Wang is now 48 years of age. He migrated from China in 2008 and worked a variety of jobs as a packer, property manager and valuation manager in Australia.
He lives with his wife and two children aged 16 and 10. He states that prior to the accident he played soccer, walking and occasionally badminton on a social basis.
History of accident and subsequent treatment
Mr Wang was the driver of his Toyota Yaris when he was hit in a rear end collision whilst he was stationary. He states that at the time of impact he was holding the steering wheel with his right hand. He was able to get out of the car, drove the car to work and had it repaired later. He attended Ryde Hospital the next day for assessment.
Mr Wang attended his GP, Dr Weinrauch two weeks after the accident on 6 April 2017. At that time, he was complaining of neck pain associated with headache. His GP referred him for physiotherapy. He considers that he had slight right shoulder discomfort at that time and pointed to the right trapezius muscle region but states that his shoulder movements were normal.
The physiotherapist reported stiffness in the right shoulder but a full range of movement. In May 2019 he consulted his GP and gave a history of increased right shoulder pain after playing badminton with his daughter. His GP at that time organised an MRI of the right shoulder and neck and referred him for more physiotherapy. He apparently consulted a specialist at that time who recommended a cortisone injection, but Mr Wang said that as his shoulder was improving, he did not get the injection.
Current symptoms
Mr Wang states it has a constant ache in the right shoulder region with occasional numbness in the fourth and fifth fingers of the right hand and the ulnar border of his palm. He states that the rest of the right arm is asymptomatic. He also gets an ache in the interscapular region of the upper thoracic region which increases with any gardening. Any prolonged computer work increases the right shoulder discomfort.
At present, Mr Wang works full-time and drives normally. He ceased physiotherapy a few months ago and takes no medications for pain relief.
Clinical examination
Mr Wang sat comfortably during the interview and stated that he was right-handed. His height was recorded as 179 cm and his weight was 93kg. Mr Wang walked with a normal gait and had a normal range of movement of the lumbar spine with pain free walking on his heels and toes and squatting.
Cervical spine
On inspection of the cervical spine there was a normal contour with a full range of flexion/extension and side bending and rotation were 60% of expected range with no asymmetry. On palpation there was no guarding or spasm noted in the cervical musculature.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumferences of the upper arms 34cm bilaterally (10cm above the olecranon process) and 31cm on the left and 32cm right in the upper forearms which is consistent with a right-handed person.
Thoracic spine
On inspection there was a slight kyphosis of the thoracic spine with a normal range of movement flexion/extension, side bending and rotation. On palpation there was no guarding or spasm noted and no signs of radiculopathy or non-verifiable radicular complaints in the thoracic spine region.
Right shoulder
On inspection of the right shoulder there was slight wasting of the right deltoid muscle but no wasting of the shoulder girdle. On passive movement, no crepitus was detected but there was a positive impingement test on the right. Mr Wang stated that his right shoulder became stuck with movement due to a feeling of stiffness rather than pain. Active movement of the shoulder joints were measured with the goniometer and repeated three times.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion
80°/90°
160°
Extension 50° 50° Adduction 40° 50° Abduction 100°/90° 160° Internal Rotation 50° 90° External Rotation 60° 80°
No radiological films were available for inspection.
The medical Panel discussed with Mr Wang the findings of the right shoulder, in particular the lack of documentation of any right shoulder discomfort or pain in the initial medical certificate or GP treatment notes. Whilst the physiotherapist recorded some stiffness in the right shoulder, he found a full range of movement on 15 May 2019 (two years after the accident) with increased pain in the following months. On September 2019 the treating GP reported Mr Wang had presented with interscapular pain and weakness in the right shoulder after heavy lifting. In a medico-legal report dated 6 June 2019 (15 months after the accident) Dr Dixon recorded a full range of movement of both shoulders. Mr Wang indicated he thought he had jolted his right shoulder at the time of the collision.
PANEL DETERMINATION
Right shoulder
In relation to the right shoulder the Panel notes:
· Mr Wang did not make any complaint about the right shoulder when he attended Ryde Hospital following the accident.
· Mr Wang did not make any complaint about his right shoulder when he saw Dr Weinrauch on 6 April 2017, 24 April 2017 or 19 July 2017. Dr Weinrauch did not obtain any history of complaint to the right shoulder until 4 September 2017, some six months after the accident.
· Whilst Mr Hands, physiotherapist had referred to shoulder discomfort on 9 September 2019 he reported symptoms had been intermittent and exacerbated by exercise or hard physical exertion.
· On 18 April 2018 Dr Hyde-Page reported Mr Wang had no pain going into his shoulders or arms and the only ongoing pain he experienced was between the shoulder blades. Dr Hyde-Page recorded a normal range of movement of the right shoulder.
· When he reviewed Mr Wang on 25 May 2020 Dr Hyde-Page reported he had developed discomfort around his right shoulder when playing badminton with his daughter in 2019. Dr Hyde-Page thought the changes shown on the MRI scan of the right shoulder were likely to be of recent origin.
· On 6 June 2018 Dr Dixon found a full range of movement of both shoulders and whilst Mr Wang reported some pain in the right upper arm he did not report any stiffness in the shoulder.
Having regard to the lack of contemporaneous complaint, and the failure of Drs Hyde-Page and Dixon to find any restriction of range of movement of the right shoulder in the period 12 months post-accident the Panel is not satisfied that Mr Wang suffered injury to the right shoulder as a result of the accident, but finds it was more likely that his right shoulder injury occurred in 2019 when his shoulder symptoms became significant. The Panel determines the injury to the right shoulder was not caused by the accident.
The Panel has determined that Mr Wang sustained a soft tissue injury to his cervical spine caused by the accident. The Panel finds there is no evidence of any non-verifiable radicular complaints in the cervical spine as the numbness in the fourth and fifth fingers experienced by Mr Wang is related to a peripheral nerve and is not dermatomal. Mr Wang’s condition is consistent with DRE Cervicothoracic category 1 and in accordance with Table 73, page 3/110 of the AMA 4 Guides the Panel assesses a 0% WPI.
The Panel has determined that Mr Wang sustained a soft tissue injury to the thoracic spine caused by the accident. The Panel finds there is no evidence of any non-verifiable radicular complaints. Mr Wang’s condition is consistent with DRE Thoracolumbar Category 1 and in accordance with Table 74, page 3/111 of the AMA 4 Guides the Panel assesses a 0% WPI.
0
5
0