Wang v QBE Insurance (Australia) Limited
[2024] NSWPICMP 708
•10 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Wang v QBE Insurance (Australia) Limited [2024] NSWPICMP 708 |
CLAIMANT: | Yanfeng Wang |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Christopher Oates |
MEDICAL ASSESSOR: | Mohammed Assem |
DATE OF DECISION: | 10 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Certificate of Determination; threshold injury; reasonable cause to suspect medical assessment was incorrect in a material respect; delay in mentioning lumbar spine pain; neck pain radiated to the left upper trapezius and shoulder; acupuncture and physiotherapy treatment; multiple certificates of capacity; cervical pathology as being long standing and degenerative in nature; pre-existing condition rather than post traumatic condition; no cervical radiculopathy; no lumbar radiculopathy; no evidence of injury to nerves; no complete or partial rupture of tendons, ligaments, menisci or cartilage; soft tissue injury cervical spine; soft tissue injury lumbar spine; Held – finding of threshold injury confirmed; Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment – Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate of Medical Assessor Ian Cameron dated |
STATEMENT OF REASONS
BACKGROUND
The claimant is a 40-year-old man who was injured in a motor vehicle accident on
21 December 2022. Following the accident the claimant lodged an application for Personal Injury Benefits and thereafter sought a concession from the insurer that the injuries he sustained in the motor vehicle ought to be considered non-threshold injuries. Following a review the insurer, on 4 May 2023, declined to make this concession. Thereafter the claimant made an application to the Personal Injury Commission (Commission) for an Assessment of Threshold Injury as well as an application of Assessment of Treatment and Care.The claimant was examined by Medical Assessor Ian Cameron on 22 March 2024 who, in a certificate dated 4 April 2024 determined that the injuries the claimant alleges to have suffered to his cervical spine, lumbar spine, both legs, both shoulders, both arms and chest are threshold injuries for the purposes of the Motor Accident Injuries Act 2017 (MAI Act). Following the issuing of this certificate the claimant sought a review of the certificate of Medical Assessor Ian Cameron. The matter was considered by President’s delegate
Ratula Gupta who, in a certificate dated 19 June 2024, determined that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect. This was seemingly on the basis that the Medical Assessor did not give full consideration to the medical evidence. Specifically, to an MRI report dated 13 February 2023 which referred to an injury to the claimant’s cervical spine.Thereafter the matter was referred to this Medical Review Panel which convened on
8 August 2024 at 4.00pm. Following consideration of the matter it was determined that there was a requirement to have before the Panel, all material which was before Medical Assessor Ian Cameron.Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Sections 58 and 60 of the MAC Act together with cls 1.5-1.7 of the Guidelines set out the procedures for referral to one or more Medical Assessors and the principles to be applied at such assessments.
Following the uploading of all relevant material the claimant was examined by Medical Assessor Oates on behalf of the Panel on 29 August 2024 with the assistance of a Mandarin interpreter.
HISTORY
Pre-accident medical history and relevant personal details
Mr Wang stated he is 40 years old and naturally left-handed, although he uses his right hand for writing. He was a smoker but stopped before the motor vehicle accident.
He played basketball from childhood and tried this once again after the motor vehicle accident, but had neck and left shoulder pain, such that he did not try again thereafter.
He migrated from China to Australia in 2003. He has a Bachelor of Arts degree. Whilst a student, he worked as a kitchen hand and kitchen manager. He has a Bachelor of Accountancy. After finishing his degree, he worked as an accountant for 1-2 years and then opened his own restaurant business, which he had for three years. Thereafter, he opened his own driving instruction business and used to employ four or five people, but nowadays employs only two people.
He has had Hepatitis B and has had one year of treatment.
In 2007 he had a minor low speed, rear-end motor vehicle accident but did not have any injuries. He has had a right ACL reconstruction in about 2017 from a basketball injury. He made a good recovery.
I asked Mr Wang about the medical records we had been given. Referring to September 2020, he does not recall going to the physiotherapist with neck pain. With respect to October 2020 entry, he thinks he hurt his left ankle at basketball.
He has a regular medication of Viread, which he has been taking for 11 years. He developed hypothyroidism and has Thyroxine treatment for this.
History of the motor accident
Mr Wang said on 21 December 2022 he was the driver of a vehicle, a Tesla SUV, with no passengers. He was stationary in traffic and was rear-ended by a large truck.
He says his car was not pushed forward by the impact. He was wearing a seatbelt. The airbags did not deploy.
He was shocked by the severity of the impact and thrown forward and backward several times. He had immediate headache and dizziness. He doesn’t recall any impact injury. He was not knocked out and was not bleeding.
No police or ambulance attended.
After the accident, his car was still driveable and he drove five minutes onwards to his home. His car was subsequently repaired but he doesn’t know the cost.
History of symptoms and treatment following the motor accident
He saw his general practitioner (GP), Dr Shi, at Burwood on 23 December 2022. I asked him why low back pain wasn’t mentioned on the Claim Form dated 27 December 2022 and he said he had concentrated on the neck and head symptoms. He also had central low back pain but focused on the neck pain and headaches.
He saw a physiotherapist, Lyn and Michelle, at Parramatta, with treatment to the neck and back.
His GP was unsupportive, so he changed to Dr Gao at Blacktown. He had an MRI scan of the cervical spine on 24 January 2023 showing impingement on bilateral C5 nerve roots and bilateral C6 nerve roots.
Neck pain radiated to the left upper trapezius and shoulder, and he had numbness in all fingers of the left hand and pins and needles in the thumb and middle fingers, and a heaviness in the left arm with weakness in the left arm and hand. He says he had some minor intermittent symptoms in the right arm. His other problem was back pain which did not radiate, but the back pain improved with physiotherapy. He had 6-8 months of physiotherapy for the neck and back, however the neck did not improve.
He then tried acupuncture for eight months once or twice a week and Chinese herbal medicine. He also tried medicinal plasters but there was no benefit.
He was referred to Dr Kanawati, orthopaedic surgeon, regarding his neck. He had a CT-guided left C5/6 nerve root injection on 9 June 2023. He said this did not help him and actually worsened the numbness in the left thumb and hand.
At specialist review, Dr Kanawati told him there was indication for surgery and that he possibly had a shoulder problem, however Mr Wang says he did not injure his shoulder, just his neck.
Details of any injuries or conditions sustained since the motor accident
He said he has had no subsequent injury or relevant condition develop.
Current symptoms
His main problem is the neck pain radiating to the left trapezius with headaches, and thereafter radiating down the left arm to the left hand.
The lower back is not too bad, except if he sits longer than 30-60 minutes he gets some numbness in both legs, which settles when he moves around. He also has some pain in the right calf and gets relief by getting up and moving around.
Current and proposed treatment
He attends acupuncture from Daniel Deng at Kingsford every 1-2 weeks, but is not finding any real benefit from it. He feels he is gradually getting worse overall.
He takes Chinese medicinal herbs.
He stopped paracetamol as it was not helping.
MEDICAL MATERIAL
The material consisted of multiple certificates of capacity and certificates of fitness completed by Dr Gao. The diagnosis of injuries noted:
(a) headache and dizziness likely due to post-concussion syndrome;
(b) whiplash Grade 2, C-spine pain;
(c) lumbar spine pain, and
(d) bilateral shoulder and arm paraesthesia.
This diagnosis was repeated, including the typographical errors contained in each certificate between January and May 2023.
The material also included a report from Dr Antoun which identified the cervical pathology as being long standing and degenerative in nature. That is unrelated to the motor vehicle accident.
The Panel was also provided with MRI scans which are considered in this report.
EXAMINATION
General presentation
He was average build with height 178cm and weight 90kg.
Cervical spine (cervicothoracic)
Dysmetria was present with flexion two-thirds of normal and extension three-quarters of normal. Lateral flexion to the right was two-thirds and to the left one-half, rotation to the left was two-thirds and to the right one-half. There was no guarding and no spasm and no focal tenderness.
Reflexes were symmetrical. Power was normal in the upper limbs. Sensation was intact apart from some decrease to light touch and pin prick on the inner left upper arm and forearm, through to the middle three fingers of the left hand. Neural tension test was negative.
Upper arm girth; right 32cm, left 33cm at 10cm above the elbow crease. Forearm girth; right equals left equals 30cm at 5cm below the elbow crease.
Right and left shoulders
| Shoulder Movements | ||
| Active ROM measured RIGHT | Active ROM measured LEFT | |
| Flexion | 160° | 140° |
| Extension | 40° | 40° |
| Adduction | 40° | 40° |
| Abduction | 130° | 130° |
| Internal rotation | 80° | 80° |
| External rotation | 70° | 60° |
Bilateral shoulder elevation movements were limited by complaints of cervical pain.
There was a full range of movement at elbows, wrists and hands bilaterally.
Lumbar spine (lumbosacral)
There was no guarding or spasm. There were no non-verifiable radicular complaints. There was no focal tenderness.
Flexion, extension, lateral flexion and rotation were of full range.
He did complain of some soreness in the lower back when lying supine on the examination couch.
Thigh girth; right 48cm, left 47cm at 10cm above the superior patellar pole. Calf girth; right 43cm, left 42.5cm at 12cm below the inferior patellar pole (maximal circumference).
Straight leg raising 80° bilaterally with negative sciatic nerve stretch test.
Reflexes were symmetrical but all of low amplitude. Plantar responses were both flexor. Sensation and power in the lower limbs were normal.
There was full range of movement at the hips, knees, ankles and hind feet.
There was no patellofemoral crepitus or knee ligamentous laxity in anteroposterior or mediolateral directions bilaterally.
Comments on consistency
The claimant presented in a consistent manner.
IMAGING
The claimant did not bring any imaging to the assessment and was asked to send a link to the Commission in order that the Medical Assessors could view the images of MRI scan of the cervical spine, the subject of submissions from parties.
The Panel received a link to the imaging from the claimant Medical Assessor Oates viewed MRI scan of the cervical spine images dated 13 February 2023. The cervical lordosis was reduced in keeping with muscle stiffness from soft tissue injury (whiplash associated disorder). There were mild multi-level degenerative changes with probable degenerative stenosis of left C5/6 neural foramen with potential for impingement of left C6 nerve root. There was a chronic C6/7 posterocentral annular fissure. I agree with the radiological report, that this is a pre-existing condition rather than a post-traumatic condition, because there was no adjacent soft tissue oedema to indicate that the annular fissure had resulted from an acute post-traumatic condition. The cervical spinal cord and the paraspinal soft tissues were described as appearing normal by the radiologist and I agree with this.
The Panel notes that the original determination of Medical Assessor Cameron included assessments of treatment and care for physiotherapy provided to the claimant. The original certificate considered that these either did not relate to the injury, were not reasonable and necessary in the circumstances nor will improve the recovery of the injured person. Whilst there was some material that addresses this matter neither party to the current threshold dispute made submissions addressing this treatment dispute. The referral from the President’s delegate refers to only the threshold dispute to give full consideration to the medical evidence and does not deal with the treatment dispute. The Panel was of the view that there was insufficient material, in particular submissions as to the findings of Medical Assessor Cameron, to further consider the treatment dispute dealt with by the Certificate of Medical Assessor Cameron.
DETERMINATIONS
Diagnosis, causation and reasons
The diagnoses are cervical spine soft tissue injury with radiating symptoms to the shoulders and left upper extremity, and lumbar spine soft tissue injury with no radiating symptoms.
There was no evidence on clinical examination of either cervical or lumbar radiculopathy, in that none of the five criteria for diagnosis of radiculopathy were present.
The Panel considered that these injuries were caused by the motor vehicle accident, as they are mentioned on the Claim Form in the case of the neck injury and referred to in the early contemporaneous medical records in the case of the neck and back.
The Panel accepted the claimant’s explanation as to why the back was not mentioned on the claim form or at the initial GP visit but was referred to in the physiotherapy record and subsequent GP records.
The Panel did not consider that the accident was a cause of direct soft tissue injury to either left or right shoulders or arms, nor to the chest, nor direct injury to the left and right lower extremities.
There was no reference to leg injuries in any of the contemporaneous medical evidence, and the claimant did not refer to injuries to these parts. There was also no evidence of injury or reference by the claimant to the chest. The shoulders and left arm were affected by the accident in terms of referred symptoms from the neck.
Threshold injury dispute
Cervical spine
The Panel considered this was a threshold injury. There were none of the five criteria, at least two of which must be present, on clinical examination to make a diagnosis of cervical radiculopathy. Hence, Schedule 1(2), cl 4 of the Motor Accident Injuries Regulation 2017 was not satisfied.
There was no loss or asymmetry of reflexes. There was no muscle atrophy. The upper arm girth measurements were consistent with stated left-hand dominance. There was no muscle weakness anatomically localised to an appropriate spinal nerve root distribution. The left upper extremity sensory changes reported by the claimant were not anatomically localised to an appropriate spinal nerve root distribution, following partly C8 and partly C7 dermatomes. Sciatic nerve root tension sign refers to the lower extremity.
MRI scan of the cervical spine report dated 13 February 2023 referred to evidence of a chronic annular tear at the C6/C7 posterocentral region. The radiology report did not refer to any changes, such as soft tissue swelling, which would indicate that the tear may be a more acute post-traumatic phenomenon, rather than being a pre-existing condition. Medical Assessor Oates viewed the imaging and agreed with the radiologist’s report regarding the annular fissure, being a pre-existing degenerative condition and not resulting from trauma. The Panel is also aware that a radiologist Dr Dugal viewed the images and advised that there were no acute or traumatic features noted, and that the changes present were the result of longstanding degenerative pathology, and did not correlate with the claimed time frame or event. The Medical Review Panel accepted the findings of Medical Assessor Oates.
There was also no evidence of injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage referred to in the imaging report for the cervical spine. Hence, s 1.6(2) of the Act indicates a threshold injury exists.
Lumbar spine
On clinical examination, there were not at least two out of five criteria present to justify a diagnosis of lumbar radiculopathy.
There was no reflex asymmetry, muscle weakness or sensory loss. The sciatic nerve stretch test was negative. There was 1cm left thigh atrophy, but one sign is insufficient to satisfy cl 6.138 of the guidelines.
There was no lumbar spine imaging which would indicate an injury to nerves or complete or partial rupture of tendons, ligaments, menisci or cartilage.
Therefore, according to s 1.6(2) of Motor Accident Injuries Act 2017 and Schedule 1(2), Clause of the Motor Accident Injuries Regulation 2017, the lumbar spine injury is a threshold injury, that is soft tissue injury.
There was no documented medical evidence that cervical or lumbar radiculopathy had been diagnosed according to the criteria required in the SIRA Motor Accident Guidelines at any time following the subject motor vehicle accident.
The Panel is not aware of any other imaging of the injured parts to indicate an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage which would result in any of the injuries found to be caused by the accident being classified as non-threshold injuries.
CONCLUSION
The Panel confirms that the claimant sustained threshold injuries in the motor vehicle accident.
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