A lot of people who have been involved in a motor vehicle accident and who have sustained a whiplash injury will not immediately realise that they have sustained injuries to other body parts.
In some cases, there may not be any direct evidence in the documentation that there was a direct injury to the right or left shoulder in the motor vehicle accident. Similarly, such right or left shoulder pain or injury may not be mentioned in the ambulance report or the hospital records. The medical certificates may not make mention of it and some doctors and even specialists may not make mention of the fact that there was an injury to the shoulders complaint of shoulder problems they and/or the insurance company may argue is not related to the motor vehicle accident. The insurance company in such instances will try to argue that because there was no complaint, there was no injury – “They Are WRONG”.
It is clear that it is of the utmost importance that when you have pain radiating from the neck down to the shoulders and the upper back region these must be reported to the doctors and in particular general practitioners.
The Supreme Court Judgment by Justice Hall in Nguyen v the Motor Accidents Authority of NSW & Zurich Australia Insurance (2011) NSW SC3 51 – Judgment date 3 May 2011, Justice Hall, in that case held that “application of common law causation principal would support ……. the conclusion that impairment in one or both of the claimant’s upper limbs consequent upon injury to the cervical spine would be compensable as the nature and direct consequence of spinal injury”; and that, the words in Section s58(1)D of the Act “as a result of” should not be given a broad construction (96).
In that case, His Honour considered the impairment of the shoulder in the case in question was directly related to the cervical injury (in other words, the neck injury i.e. whiplash injury) and that such a direct connection “satisfies both common law principals of causation and the statutory formulation as a result of the injury”.
Therefore the medical assessment of permanent impairment required “an assessment of the injury to the cervical spine and its direct effects of related areas including, in particular, the claimant’s shoulder, it is therefore important that all doctors and the victims of accident are aware that as a result of whiplash injury to the neck or upper back region which symptoms of pain radiating to the upper limbs and where is as before they may not have been assessable to determine a degree of impairment, these systems especially to the right and left shoulder are now by virtue of the judgment of Justice Hall are injuries which are causally directed to the motor vehicle accident and are now accessible in terms of the degree of impairment. It is therefore important for solicitors and doctors to monitor and note if there is any reduction in the range of motion to the shoulders or any difficulties in those areas as these are now clearly assessable.
Vrege (Reg) Kolokossian, Accredited Personal Injury Specialist Solicitor at Gerard Malouf Partners comments:
“It is important for all victims of accidents to ensure when they see their GP, they report thoroughly to that Doctor the extend of any symptoms, pain and discomfort of injuries sustained, especially symptoms related to whiplash injury to the neck, upper back and lower back. It is important to ensure that these are recorded and that any ongoing symptoms or any other difficulties arise within a short period of time after the accident are also recorded. It is also important for the victim to ensure that their Doctors thoroughly investigate these conditions, arrange CT scans, MRI’s or ultrasounds, if need be.” ….
“That in all instances; it is up to the Treating Doctor to record these problems, mainly because there is more weight given to the contemporaneous records of the GP and the complaints made by the Claimant to the GP then any other body of evidence.”
“That this body of contemporaneous material, in particular the GP clinical records symptoms of complaints are one of the most important tools when we as solicitors come to properly assess the degree of impairment sustained by our clients.”
The decision by Justice Hall in the Nguyen under the Motor Accidents Authority of NSW & Zurich Australia Insurance (2011) NSW SC3 51, clearly highlights the fact that an assessment of the injury to the cervical spine (neck) as a result of a whiplash injury also requires the Doctors and the Medical Assessors to look at the direct effect on related areas, that is the shoulders.