AAI Limited t/as AAMI v Oram
[2025] NSWPICMP 342
•15 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as AAMI v Oram [2025] NSWPICMP 342 |
CLAIMANT: | Robert Elias Oram |
INSURER: | AAI Limited t/as AAMI |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Mohammed Assem |
MEDICAL ASSESSOR: | Shane Moloney |
DATE OF DECISION: | 15 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); whole person impairment (WPI); lumbar spine (soft tissue injury); cervical spine (soft tissue injury); re-examination of claimant required; pre-existing medical conditions; prior motor vehicle claims; Held – post-accident surgery not related to injuries caused by accident; inconsistent distribution of sensation; not in dermatomal pattern; examination radiological studies; pre-existing decreased left knee jerk; WPI assessed at 0%; MAC revoked; new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the Act) 1. The Review Panel revokes the certificate of Medical Assessor Robert Kuru dated 29 May 2024 and issues a new certificate determining that the following injuries were caused by the motor vehicle accident and give rise to a whole person impairment of 0% which is not greater than 10%. · lumbar spine – soft tissue injury with L4 radiculopathy/musculoligamentous strain, and · cervical spine – soft tissue injury/ musculoligamentous strain. |
STATEMENT OF REASONS
INTRODUCTION
Robert Elias Oram (the claimant) is a 60-year-old man who was injured in a motor vehicle accident on 20 May 2017. It was determined that the claimant’s injuries are non-threshold injuries. The claimant has sought a concession from the insurer that his injuries exceed 10% whole person impairment. The insurer, after a review, declined to make this concession and accordingly the matter was referred to the Personal Injury Commission (Commission) for the determination of whole person impairment.
The claimant was examined by Medical Assessor Christopher Grainge, who in a certificate dated 6 May 2024, determined that the claimant had sustained an 8% impairment consequent on sleep and arousal disorder.
The claimant was examined by Medical Assessor Robert Kuru on 9 May 2024 who, in a certificate dated 29 May 2024, determined that the claimant sustained a permanent impairment of 9% consequent on an injury to his lumbar spine. He found that there was a 0% whole person impairment for the alleged injury to his cervical spine. This gave rise to a combined certificate of 16%.
The insurer sought a review of this certificate and in a decision dated 9 October 2024 the President’s delegate, Rachel Brittliff, had determined that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect. Thereafter the matter was referred to this Medical Review Panel (Panel).
The Panel convened on 16 January 2024 and reviewed the material available. The Panel notes the medical material in respect to this matter, including the very lengthy certificate and statement of reasons of the Medical Review Panel dated 22 August 2023 certifying that none of the treatment in dispute is related to the injuries caused by the accident, and determined that it was appropriate to re-examine the claimant in respect to the injuries to his lumbar spine and cervical spine.
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 MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 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.
The claimant was examined by Medical Assessor Drew Dixon at the Medical Suites at 1 Oxford Street, Sydney on 23 April 2025. He was unaccompanied.
Pre-accident history
The claimant stated that he was in good health prior to the accident. He was divorced and now single and rents a room in a house. Initially when migrating to Australia he was on a working visa then obtained of permanent visa when he started working as a packer. He states that he took one year off work after an accident in 2005.
Since 2014 he had been working as a pathology courier on a subcontracting basis and working up to 60 hours per week.
History of motor accident
On 20 May 2025 the claimant was driving his work car as a courier and was stationary when hit from the rear. He was wearing a seatbelt at the time but airbags were not deployed. He was able to get out of his car and contacted his supervisor and swapped cars to complete the pathology run. As this was on a weekend he consulted his general practitioner (GP) on the following Monday.
History of symptoms and treatment following the motor accident
The treating GP, Dr Kodsi, referred him for scans and prescribed analgesics. He was also referred to physiotherapy and initially had six weeks off work. The claimant states that at that time he had low back pain radiating down his left leg associated with numbness and cervical spine pain. His GP referred him to an orthopaedic surgeon, Dr Nair.
Due to persistent low back pain radiating into the left leg, Dr Nair undertook a lateral microdiscectomy at the L4/5 level on 29 October 2018. The claimant says he had no benefit from this procedure. He also states that he had no lumbar injection but only physiotherapy. However, there is the radiological study of a CT guided cortisone injection at the L3/4 level dated 19 March 2018.
There was a further motor vehicle accident on 7 October 2018. The claimant stated he had increased back pain immediately after this accident and, notwithstanding this, underwent spinal surgery on 29 October 2018. His treating GP, Dr Kodsi gave an opinion that there was no increase in pain after this accident to his lower back and legs when he examined him on 23 October 2018. He found no changes in symptoms and signs just prior to his surgery.
Current symptoms
The claimant has persistent low back pain which is centrally located and on the right lumbar side. He states that was on the left lumbar region but this has now settled. He has tightness in the left inner thigh and lateral left calf most of the time with numbness in the left big toe and foot when seated. He also gets pain on the right inner thigh and lateral calf at times. He is able to walk 30 minutes at a time which he does twice per day but this increases his low back pain.
There is a posterior cervical pain with pins and needles in this region which increases with sitting or praying and he gets intermittent pain in the left trapezius muscle but the arms are asymptomatic. He states that the pain is worse in the last year and he now gets cramping. He has a poor sleep pattern and often wakes with cramps in his legs. He is able to drive for a maximum of 15 minutes before low back pain occurs.
At present he lives in a home unit and one of his daughters lives with him who helps with cooking and cleaning.
He is unemployed at present.
Present medication
Present medication is Mobic 15mg One-A-Day, Panadeine Forte three to four per week. He has ceased taking Lyrica and sees his GP on a monthly basis. He attended physiotherapy five times a year under Medicare plan and does some self-massage and home exercises. There are no appointments with any specialist.
Clinical examination
The claimant walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is right-handed. Height was measured at 160cm and weight of 75kg.
Cervical spine
On testing range of movement, flexion/extension was 70% of expected range and side bending rotation were 60% of expected range bilaterally with no asymmetry. On palpation there was tenderness over the C7-T1 spine and left paravertebral muscles and left trapezius muscle but no guarding or spasm was noted in the cervical musculature.
On neurological examination of the upper limbs reflexes were equal bilaterally with normal power. No muscle wasting was apparent with the circumference of the right upper arm 27cm and 26.5cm on the left (10cm above the olecranon process) and in the upper forearms 24cm in the right and 23.5cm on the left (5cm below the olecranon process). This is consistent with a right-handed man. On testing for sensation there was a global decrease in sensation over the left forearm to light touch which was not in a dermatomal pattern.
Lumbar spine
The claimant walked with a normal gait and was able to stand on his heels and toes. Squatting was limited to 75% of expected range due to low back pain. On testing range of movement flexion/extension was 60% of expected range, side bending was 75% of expected range bilaterally and rotation was 50% of expected range bilaterally with no asymmetry. On palpation no guarding or spasm was noted in the lumbar musculature. Straight leg rise when lying was 70° bilaterally with negative sciatic nerve root tension signs. There was a normal range of movement of the hips and knees.
On neurological examination of the lower limbs, reflexes were equal bilaterally at the ankles but the left knee reflex was minimal compared to the right. There was normal power in the lower limbs with decreased sensation over the left thigh globally and lateral left calf but normal sensation in the foot. No muscle wasting was apparent with the circumference of the lower thighs 40cm bilaterally (10cm above the superior patella pole) and at the maximum circumference of the calves 35cm bilaterally.
Radiological studies
The claimant provided MRIs of the lumbar spine dated 11 April 2018 and 7 June 2019. These both show degeneration of the L4/5 disc herniation to the left compressing the L4 nerve root. An MRI of the lumbosacral spine dated 27 February 2018 reported narrowing of the exit foramen secondary to degeneration left L3/4, 4/5 and 5/S1 levels.
A previous MRI dated 12 September 2006 was not available but reported disc tears at L4/5 with a protrusion of the disc to the left.
Review of relevant documentation
The material included a large amount of material relating to the pre-injury sustained in the motor vehicle accident in 2005. This included a personal injury claim form noting injuries in claimant just to his neck and back. The report of Dr Kam, Neurosurgeon, 3 May 2007 suggests surgery to the claimant’s lumbar spine noting complaint of back pain and left sided sciatica.
The claimant was assessed by Medical Assessor Marsh who, in a certificate dated 7 June 2007, identified signs of radiculopathy and a disc protrusion at L4/5 compressing the left nerve root.
Determination
Cervical spine – soft tissue injury
The claimant gives a history of neck pain after the accident which was eventually investigated with a CT and later on MRI of cervical spine. This was a soft tissue injury and has a classification of diagnostic related estimate (DRE) l which is 0% whole person impairment. On examination there was a symmetrical reduction in range of movement no dysmetria and no guarding or spasm noted on palpation. There were no signs of radiculopathy or non-verifiable radicular complaints that conformed to a dermatomal pattern in the upper limbs.
Lumbar spine – soft tissue injury
There is documentation that the claimant sustained low back pain immediately after the accident and was treated by a physiotherapist. He had a cortisone injection which was CT guided at L3/4 on 19 March 2018 as well as an MRI which was repeated three times and
X-rays.In 2010, Dr McCusker wrote a report that the claimant had weakness in the left leg and an absent left knee jerk with reinforcement but a normal right knee jerk with decreased sensation over the left foot. Medical Assessor Noll reported an absent left knee jerk on 1 May 2006 and Dr Lawson did the same on 26 September 2006. It is highly likely that the absent left knee jerk became a permanent clinical finding. The decreased left knee reflex was also noted by Dr Carney on 7 June 2018 and by Medical Assessor Gibson in the review assessment. Thus, it is the opinion of the Panel that the decreased left knee jerk was pre-existing prior to the accident in 2017.Thus there are no signs of radiculopathy at the time of the examination by the Panel. This gives a classification of DRE l which is 0% whole person impairment. There is no dysmetria, no guarding and no signs of radiculopathy or non-verifiable radicular complaints that conform to a dermatomal pattern in the lower limbs.
Conclusion
There is a high degree of imprecision in respect to the sensory changes in the L4/5 derma tomal distribution. Additionally, the Panel is of the view that the left knee jerk decreased. It was pre-existing. This is strongly supported by the clinical findings made by Medical Assessor Brian Noll, Dr Lawson in his report of 26 September 2006 and report of Dr Mackie 2010.
The Panel is of the view that the claimant sustained soft tissue injuries to his lumbar spine which give rise to a whole person impairment of 0%.
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