AAI Limited t/as GIO v Anand

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Anand [2023] NSWPICMP 65
CLAIMANT:	Rina Anand
INSURER:	AAI Limited t/as GIO
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Neil Berry
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	1 March 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical dispute about whole person impairment (WPI) and review under section 63; Medical Assessor (MA) Truskett’s decision set out that claimant had a WPI greater than 10%; claimant injured in earlier car accident in September 2015 and the current accident in May 2016; both rear end collisions; first accident more severe than the second; biomechanical evidence in second accident from insurer not challenged or answered by claimant was that injury impossible; histories of what parts of her body were injured varied; primary issue one of causation; Held – claimant’s evidence should be approached with caution due inconsistencies in histories and evidence; injuries in 2015 accident were neck, back and right shoulder and claimant had not recovered at time of second accident; Panel did not accept claimant could have injured or did injure her neck, lower back or right shoulder; Medical Assessment Certificate of MA revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Medical Assessor Truskett dated 4 March 2021. 2. Certifies that the degree of Rina Anand’s permanent impairment resulting from the injuries caused by the motor accident on 4 April 2016 is not greater than 10%.

STATEMENT OF REASONS

Introduction

On 4 April 2016 Rina Anand was a passenger in a vehicle driven by her husband on the Hume Highway at Greenacre. As their vehicle was slowing due to traffic ahead, another vehicle hit them from behind.
On or about 17 May 2016, Ms Anand made a claim against GIO, the third-party insurer of the vehicle that collided with hers. She alleged injuries to her head and neck.
A medical dispute about Ms Anand’s entitlement to non-economic loss damages has arisen in the claim due primarily to the claimant’s involvement in an earlier motor accident on 8 July 2015.[1] The dispute was referred to the Medical Assessment Service (MAS) of the State Insurance Regulatory Authority (SIRA) for assessment.
[1] The third-party insurer in respect of the claim made after the 2015 accident is Allianz Australia Insurance Limited (Allianz). For ease of reference that accident will be referred to as the “2015 accident” and the claimant’s 2016 accident which is the subject of these proceedings will be referred to as the “current accident”.
The dispute was allocated to Medical Assessor Truskett for assessment. He examined the claimant on February 2021 and issued his certificate of assessment on 4 March 2021. By that time the MAS had been abolished due to the creation and commencement of the Personal Injury Commission (Commission).
The insurer was dissatisfied with Medical Assessor Truskett’s decision and, on 26 April 2021 lodged an application for review of his decision with the Commission. On 3 June 2021, the President’s delegate, Ms Redmond determined there was reasonable cause to suspect a material error in the Assessor’s decision and on 20 September 2022, this Review Panel was convened by the President of the Commission.[2]

Legislative framework

[2] The delay between the delegate’s decision of 3 June 2021 and the convening of this Panel over 15 months later is due, as the Panel understands, to a previous panel having been convened and COVID-19 vaccination related difficulties with obtaining a medical appointment suitable to that panel.

General

Ms Anand’s claim and her entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are provided for in part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[3] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
[3] The current maximum as of October 2022 is $605,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[4]
[4] See ss 132 and 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Truskett’s, further medical assessments and the review of medical assessments by this Review Panel.[5]
[5] Sections 61, 62 and 63 of the MAC Act.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[6] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[6] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.

Spinal impairment assessment

Assessment of the spine required consideration of chapter 3 of AMA 4. Cl 1.111 of the Guidelines provides that only the diagnostic related estimate method of assessment is allowed.
The spine is divided into three regions:
(a)   the cervicothoracic;
(b)   the thoracolumbar, and
(c)   the lumbosacral.
If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment.
There are five diagnostic related categories and a number of indicia provided in table 7 of the Guidelines. The first is DRE category I which is appropriate if there are symptoms which may include pain. In the circumstances of this claim DRE categories II and III are also relevant. DRE category II requires the presence of radicular symptoms and DRE category III requires there to be present at the time of the assessment two of the five signs of radiculopathy provided for in cl 1.138 of the Guidelines.

Shoulder impairment assessment

The assessment of upper extremity impairment (UEI) is governed by chapter 3 of the AMA 4 Guides. The upper extremity is divided into four regions; the shoulder, the elbow, the wrist and the hand.
Shoulder impairment is usually determined by assessing the impairment of shoulder function in accordance with the restriction or loss of motion in the shoulder joint according to six planes of motion:
(a)   flexion;
(b)   extension;
(c)   abduction;
(d)   adduction;
(e)   internal, and
(f)    external rotation.
Measurement of motion is undertaken using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with table 3 on page 20 of AMA 4.
If there is any impairment to the shoulders resulting from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor[7] that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.
[7] [2011] NSWSC 351.

Pre-existing impairment

Due to the claimant’s involvement in the 2015 accident, the issue of pre-existing impairment has been raised by the insurer in its submissions. The Guidelines provide for the assessment of pre-existing impairment as follows:
“[1.31] The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.”

Inconsistency

Clause 1.41 of the Guidelines says:
“a medical assessor who detects inconsistency between clinical findings and information obtained through medical records and/or observations of non-clinical activities to draw these inconsistencies to the claimant’s attention in order to provide an opportunity for explanation.”
There are several potential areas for “inconsistency to present itself in a medical assessment or review of a medical assessment”:
(a)   a claimant could be informally observed demonstrating greater movement than when formally examined e.g. the injured person walks into the room without a limp whereas on examination the claimant walks with a limp;
(b)   a claimant demonstrates inconsistent movement within the examination on repetition when measured with a goniometer e.g. the flexion measurements in a shoulder are recorded at 120, 60 and 80 and extension as 20, 50 and 30, and
(c)   a claimant’s medical condition is inconsistent with the records e.g. the injured person complains of symptoms in the right knee when all records indicate injury in the left knee.
A claimant might also be examined by two different medico-legal experts and a medical assessor over the passage of two years and discloses different levels of motion e.g. 120 degrees flexion in the insurer’s expert’s examination, 60 degrees in the claimant’s expert’s examination and 80 degrees in the medical assessment examination.

Review panel proceedings

Part 5 of the Personal Injury Commission Act 2020 (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.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to part 5 of the PIC Act. A review panel determines how it will conduct and determine the review proceedings and may determine the proceedings on the basis of the written application.[9]
[9] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[10]
[10] Section 7.26(6) of the MAI Act.

Assessment under review

Medical Assessor Truskett issued his certificate on 4 March 2021. He was asked to assess the following injuries:
(a)   cervical spine - soft tissue injury / discopathy;
(b)   right shoulder – restricted range of movement, and
(c)   lumbar spine - soft tissue injury.
Medical Assessor Truskett had a history of the claimant’s 2015 accident. The claimant said she was a passenger in her husband’s car when it was run into from the rear. Ms Anand conceded that she “had symptoms in her neck and back that were persisting” at the time of the current accident but she denied any right shoulder pain at the time of the current accident.
The claimant worked two jobs as a quality controller in an ice cream factory and another at a discount department store warehouse as a “picker packer” at the time of the current accident. She has returned to work but not these jobs.
In terms of the current accident, the claimant says she was hit from behind, but the vehicle was not pushed into the vehicle in front and the airbags did not deploy. She remembers hitting the headrest and described neck and right shoulder pain and says her neck pain and head pain were worse.
Police and ambulance did not attend the accident, details were exchanged, and

Ms Anand’s husband drove home. Their car was later repaired.
Ms Anand recalls ringing her doctor the day after the accident and then seeing him the following day. She says she was given Endone (later Medical Assessor Truskett notes she was still taking Endone after the first accident). She was already having physiotherapy at the time due to the 2015 accident. She saw a neurosurgeon Dr Bazina in 2016 who gave her two cortisone injections and recommended surgery which has not occurred.
The claimant told Medical Assessor Truskett she returned to work in 2018 because her husband left her. She now works 37 hours a week for a publishing company in administration.
Medical Assessor Truskett records:
(a)   neck pain all the time with pain radiating down her right arm to the index finger and thumb (in keeping with a C6 distribution). She scored the pain as 9 out of 10 and that before the current accident it was 5 out of 10;
(b)   episodic back pain which does not radiate, but which occurs multiple times per week. This pain she scored at 5 out of 10 and said at the time of the current accident this pain was 3 to 4 out of 10, and
(c)   pain over the scapula and trapezius of her shoulder all the time and is aggravated by activity.
The claimant says she was taking Nurofen at night and Panadol in the day and ceased taking Endone in 2018.
On examination:
(a)
neck - there was muscle guarding and dysmetria but neurologically

Ms Anand’s neck was normal;
(b)   back - there was no guarding and full movements, and
(c)   shoulders – there was no muscle wasting, no tenderness but reduction in right shoulder movement. The range of motion measurements are recorded in the Appendix to these reasons. At [15] under a heading “lower extremity”[11] Medical Assessor Truskett has noted there was some impingement on the right side, pain over the scapula on the right and all movements were glenohumeral.
[11] Clearly an error and should read “upper extremity”.
Medical Assessor Truskett noted that the claimant had a sensory loss over the right lower limb which he could not explain on an anatomical basis but otherwise says there were no inconsistencies with the examination.
He reviewed the documentation and radiology and refers to photographs of the rear of the claimant’s car which he says showed “relatively minor deformity”. He does not refer to the report of Dr Lim or the biomechanical report of Dr Griffiths.
Medical Assessor Truskett noted the nature of the first accident and doubted the claimant’s history that although she had symptoms of neck and back pain at the time of the second accident, that her shoulder symptoms had resolved. He notes the letter from Dr Davies dated 24 November 2016 suggesting Ms Anand had right shoulder and arm pain persisting at the time of the current accident which had been unresponsive to cortisone. He was clear that there were no radicular symptoms at the time of the second accident but radicular symptoms (guarding and dysmetria) now present. He therefore diagnosed an aggravation of soft tissue injury to her neck, lumbar spine and right shoulder and the development of non-verifiable radicular complaints caused by the accident. He was of the view that before the current accident the claimant had subacromial bursitis but that a rotator cuff injury was caused by the current accident.
He noted degenerative changes were present in the claimant’s neck which were asymptomatic at the time of the 2015 accident.
Medical Assessor Truskett assessed 5% for the neck (DRE II) 0% for the lower back (DRE I) and 6% for the right shoulder. He adjusted the impairment percentage by deducting 10% for the effects of the 2015 accident injuries.

Issues for determination

Insurer’s submissions

The insurer’s submissions in support of the review are dated 21 April 2021. The insurer refers to a previous medical assessment undertaken by Dr Michael Gliksman on

5 December 2019 and a previous application for review which had been deferred.
The insurer’s submissions are twofold. GIO says:
(a) the assessment of pre-existing impairment was undertaken contrary to the provisions of the Guidelines, and
(b) inconsistencies were not put to the claimant in respect of the shoulder impairment.
In relation to the assessment of pre-existing impairment the insurer submits the Medical Assessor’s “one-tenth deduction” was not undertaken in accordance with

cl 1.31 which requires the pre-existing impairment to be determined and then deducted from the current impairment. The insurer points to the claimant’s own expert who examined the pre-existing neck impairment as DRE II (5%) and Dr Lim who examined the claimant nine days after the accident and found only a temporary effect.
In terms of inconsistencies, the insurer says Medical Assessor Truskett failed to put inconsistencies in the report of a right shoulder injury to the claimant and failed to challenge her on the range of motion observed when compared to other assessments. The insurer also says the Medical Assessor did not consider the comparable severity of the two accidents. The insurer says this is in breach of cl 1.41 of the Guidelines.

Claimant’s submissions

The claimant says Dr Lim examined the claimant nine days after the accident and it would have been reasonable for the claimant to have immediate pain and restricted movement (from the current accident) at that time.
The claimant notes the opinion of Dr Lim that Ms Anand had a 0% WPI for her neck and lower back but that he could not give an opinion on the impairment of the shoulder as both the injured shoulder and contralateral uninjured shoulder were restricted.
The claimant analyses the range of motion found by Dr Lim, Dr Habib and Medical Assessor Truskett noting they are all similar.
The claimant says that Medical Assessor Truskett’s calculation of WPI was correct, and he was entitled to deduct 1%. As Dr Lim had found 0% that was objective evidence of no impairment, and no deduction should have been made in accordance with cl 1.31.
The claimant says there is evidence of right shoulder pain after the first accident and an entry in the notes of the General Practitioner (GP) dated 10 July 2015 but then no complaints in the notes thereafter suggesting the claimant’s right shoulder was asymptomatic at the time of the second accident.
The claimant submits that Medical Assessor Truskett did not observe any inconsistencies at the time of his assessment and had no need to challenge the claimant under cl 1.41.

Procedural matters

The parties had, in response to the directions of the previous panel, lodged bundles of documents relied on in these proceedings. The insurer’s bundle is identified as document AD3 in the Commission’s electronic file and the claimant’s bundle is identified as AD4.
The Panel met on 18 October 2022 and issued a report to the parties on 24 October 2022 with directions.
The Panel identified the following issues to be determined:
(a)   what injuries did the claimant sustain in her 2015 accident?
(b)   what injuries did the claimant sustain in the current accident?
(c)   what is the claimant’s current WPI resulting from the injuries sustained in the current accident?
(d)   is there objective evidence of any pre-existing impairment at the time of the current accident and if so, how is that pre-existing impairment to be calculated?
(e)   what is the significance of Dr Lim’s examination findings, the pain diagram signed by the claimant and assessment of impairment undertaken nine days after the 2016 accident?
The Panel asked the parties the following questions and requested documents:
(a)   has an application for WPI assessment been made in respect of the 2015 accident? If so, please provide details;
(b)   was a medical assessment undertaken by MAS in respect of the 2015 accident? If so, a copy of that medical assessment is required;
(c)   did the claim arising out of the 2015 claim settle or was the claim assessed by Claims Assessment and Resolution Service, the Commission or the court? If the claim was assessed a copy of the certificate of assessment or judgment of the court is required;
(d)   the records suggest the claimant was referred to a physiotherapist after the first accident. Copies of all records from that physiotherapist are required;
(e)   the records also suggest the claimant was referred to Peak Conditioning for exercise physiology or other treatment shortly before the 2016 car accident. Copies of all records from that entity are required;
(f)    there is a letter on file dated 26 April 2021 from the claimant’s solicitor to the insurer indicating that if the insurer intended to maintain its reliance on the report from Dr Michael Griffiths, the claimant would obtain her own report in response. The Panel notes there is no bio-mechanical report from the claimant. Has a biomechanical or similar report been obtained by the claimant? and
(g)   the Panel notes there is no updated medical evidence from the claimant and in particular no medico-legal evidence later than 2019. Any updated evidence including medico-legal evidence obtained by the claimant should be provided.

The Panel invited the parties to provide any final submissions and advised them of the re-examination date.

Responses from the parties

Claimant

On 3 November 2022, the claimant responded to the Panel’s report[12] advising that there was no MAS application or assessment in respect of the 2015 accident and that the claim arising from that accident was settled.
[12] Document AD5 in the Commission’s electronic file.
The claimant also advised she did have physiotherapy after the first accident and notes had been provided (as part of the GP notes) but that no exercise physiology took place because it was declined by Allianz (the 2015 insurer) on 5 August 2016.
The claimant advised she did not intend to obtain a bio-mechanical report and did not intend to serve any additional medical evidence.

Insurer

The insurer was unaware of the activity in the 2015 claim and advised it did not have copies of the physiotherapist’s notes.
The insurer referred to correspondence from Allianz approving eight of the requested 16 physiotherapy sessions in respect of the claimant’s neck and lower back injuries. The insurer points to a report from Dr Michael Davies where it is recorded that the claimant said he obtained no benefit from physiotherapy.[13]
[13] Page 299 of the insurer’s bundle.
The insurer advised that Peak Conditioning had advised it had no documents relevant to the claimant or her injuries.

Review of the evidence

Claim form and claim documents

2015 claim documents

The claim form from the 2015 accident is signed as true and correct by the claimant and dated 10 September 2015.[14] The claimant says she was a passenger in a car run into “suddenly” from behind. She says the car was towed away and written off and that police and ambulance attended. The police report suggests the claimant’s husband had slowed down suddenly when two vehicles had merged in the lane in front of him and that the offending vehicle was travelling at 45km per hour before the accident.
[14] Page 6 of the insurer’s bundle.
At question 22 in the claim form the claimant lists her injuries from the 2015 accident:
(a)   pain - whiplash neck;
(b)   pain - right shoulder;
(c)   pain – back, and
(d)   shock dizziness psychological sequelae – psychiatric.
She refers to treatment from Liverpool hospital, Dr Soliman and physiotherapy from Minh Pham. She denied (at questions 24 and 25) any previous injuries, illnesses, accidents or relevant medical conditions.
The medical certificate attached to this claim form was completed by Dr Soliman the claimant’s usual GP on 11 September 2015.[15] He diagnoses soft tissue injuries to the cervical and lumbar spine along with headaches. There is no mention of right shoulder or any psychiatric issues. Dr Soliman says he examined the claimant on

11 September 2015 and certified her unfit for work until 30 September 2015. He prescribed physiotherapy, pain killers, rest and CT scans.
[15] Page 16 of the insurer’s bundle.

Current claim documents

The claim form for the current accident is signed by the claimant as true and correct and dated 18 April 2016[16] two weeks after the accident.
[16] Page 25 of the insurer’s bundle.
The claimant disclosed her previous accident and claim, said she was the passenger and that in the 12 hours before the accident she had taken pain killers.
The accident is described as a rear-end collision caused when her husband slowed down for traffic in front of him and the following vehicle could not stop in time.
At question 16 the claimant says that the accident was reported to the police assistance line on 7 April 2016. The Panel notes there is no mention of an in-person report at a police station although the form provides that option and that in some histories the claimant said she or her husband attended the police station in person.
At question 22, the claimant lists the following injuries:
(a)   soft tissue - head right side;
(b)   soft tissue – neck;
(c)   whiplash – cervical spine;
(d)   headache – head, and
(e)   dizziness – head.
Of significance to the Panel is that two weeks after the accident this claim form does not include a reference to right shoulder symptoms or the lower back.
The claimant says in the form that she has received treatment from her GP Dr Soliman and disclosed at questions 24 and 25 that the injuries from her previous accident were “pain in the neck, right shoulder, back, PTSD”. At question 27 she says she was off work at the time of the accident due to the injuries sustained in the previous accident.
The medical certificate attached to the claim form was completed by Dr Soliman on 12 April 2016.[17] He diagnoses right sided head injury and right sided neck injury with restricted painful movements. He said the claimant did not attend hospital and that she was unfit for work from 12 April to 29 April 2016 and that the claimant’s 2015 accident resulted in a neck injury and lower back injury. There is no mention of right shoulder injury or symptoms in this certificate in respect of either accident and no mention of lower back pain arising from the current accident in this certificate.
[17] Page 32 of the insurer’s bundle.

Investigation and liability documents

There is an accident report form from the at-fault owner Margaret Borham[18] who identifies the driver as her son Matthew Borham and says that he was to blame. She says he was stationary behind another car stopped at traffic lights and accelerated before the other car had moved off and hit them at 10 – 15km per hour.
[18] Page 33 of the insurer’s bundle.
GIO commissioned MJM Corporate Risk Services (MJM) to provide a report[19] which includes the following information:
(a) photographs of the claimant’s husband’s vehicle which were provided by Matthew Borham showing what appears to be a scratch on the bumper bar and some possible damage to the passenger side rear parking sensor. It does not appear to the Panel that there is any deformation of the bumper bar or rear end of the car, and
(b) police did not attend the scene and the accident was reported by the claimant to the police assistance line two days after the accident.
[19] The report is dated 30 September 2016 and is at page 36 of the insurer’s bundle.
MJM also obtained a statement from Matthew Borham which is signed and dated

12 August 2016.[20] He says:
(a)   he was stationary at traffic lights about four cars back from the intersection and when the lights turned green “I was more responsive” and he accelerated accidentally touching the car in front [20] – [21];
(b)   “I felt only a very slight impact, I did not feel any jolting at all”. He estimates he was travelling at about 10 – 15km per hour and had time to put his brakes on so could have been slower than that [22];
(c)   he describes the damage to both cars as “minor” and that both cars drove away from the scene. He says there was “one very small scratch on the bumper and one reverse sensor knocked or pushed”. He says there were no dents [30], and
(d)   his car was damaged and cost $1,200 to repair [32] and [36].
[20] Page 72 of the insurer’s bundle.

General Practitioner notes

The Ingleburn Medical Centre notes appear to include attendances on medical practitioners as well as allied health practitioners working at the centre.[21] The notes commence in August 2004 and the relevant entries from before and after the claimant’s accidents include:
[21] Both parties have included these documents however the claimant’s bundle is out of focus and unclear and therefore the insurer’s bundle is preferred. The documents end with an entry on
(a)   early entries in 2004 and 2007 relevant to gastrointestinal and kidney issues;
(b)   in 2012 there were issues with pain in the right foot, headaches and a brief mention of neck pain;
(c)   in 2014 and 2015 there were issues with hyperthyroidism, lower back pains radiating from the abdomen. Also, occasional pain in the neck is mentioned in January 2015. The claimant was said to be poorly compliant with her thyroid medication and had poor control of her diabetes;
(d)   the 10 July 2015 car accident is mentioned with neck and back pains and the comment “still sore in neck and shoulders” and Panadeine Forte was prescribed;
(e)   15 July 2015 – there is an entry reading still sore right-side neck and lower back with restricted movements. There are further similar attendances in August 2015;
(f)    7 September 2015 – lower back pains and neck pains were affecting movement. Dizzy sometimes. Could not afford physiotherapy. Claimant was not taking her diabetes medication. There were further attendances in September 2015 and Ms Anand was referred for physiotherapy. There was a further attendance in November 2015 and a referral to Dr Bazina;
(g)   6 January 2016 – complains about back pains restricting movement;
(h)   13 January 2016 - referral was given to a psychologist and exercise physiologist for chronic back and neck pain;
(i)    6 February 2016 – will start Peak Conditioning soon, starting exercise, seen psychologist once;
(j)
15 March 2016 – the claimant told her GP she had been reviewed by

Dr Thomson Parramatta (the claimant’s medico-legal expert), and there is mention of physiotherapy, home assistance and Peak Conditioning. There is also a note of “going on medication”;
(k)   6 April 2016 – the claimant reported a car accident on Monday 4 April 2016 causing headaches left side, physiotherapy, right side neck, pains on right side shoulder, light exercise for back. Not taking Endep or Naprosyn or her diabetic medicine;
(l)    12 April 2016 – right side neck pains and head pains with similar reports on 22 April 2016;
(m)     2 August 2016 – right shoulder pains from right side neck – restricted painful movements. Ultrasound right shoulder;
(n)   22 August 2016 – Right shoulder ultrasound shows subdeltoid bursitis with impingement – can have steroid injection, and
(o)   8 September 2016 had guided steroid injection.
These notes also contain a list of prescriptions which, apart from the claimant’s diabetes medication includes:
(a)
Panadeine Forte (pain killer) – February 2007, March and May 2012,

July 2015;
(b)   Lyrica (neuropathic pain) – January, February and August 2016, and
(c)   Endep (antidepressant) – September and December 2015, January 2016.

Treating medical records and reports

Before the current accident

The discharge referral from Liverpool Hospital concerns the claimant’s two-day admission following the accident on 8 July 2015 and that the claimant’s car was travelling at 60km per hour when it was hit, and that the claimant hit her head hard on the headrest after moving forward. The claimant had back and neck pain and an MRI revealed a C5/6 disc osteophyte complex.
The claimant consulted Dr Bazina, neurosurgeon on 21 October 2015.[22] In Dr Bazina’s letter to Dr Soliman at the Ingleburn Medical Centre she records that the claimant complained of “significant cervical, thoracic and midline lumbar pain” with no radicular symptoms since the accident. Dr Bazina has a history of the claimant being off work and there being no improvement. She reviewed the CT scan and requested an MRI scan.
[22] Page 76 of the claimant’s bundle.
Included in the insurer’s bundle is a referral to Peak Conditioning exercise physiology dated 13 January 2016. The referral requested, “assess and advise on further exercise programme regarding neck/back pains. Car accident July 2015. Chronic back neck pains”. Ms Miczcuk, the insurer’s occupational therapist refers to a report from Peak Conditioning dated 18 January 2016 involving the claimant’s initial screening for musculoskeletal issues, functional assessment and goal setting. The Panel does not appear to have a copy of this document.
Dr Soliman also referred the claimant on 13 January 2016 for psychological counselling and the psychologist, Ms McGee wrote a short letter to Dr Soliman dated

15 February 2016. The claimant attended on 1 February 2016 “but looked to be in pain throughout the session”. A more fulsome letter was sent to the insurer. Ms McGee refers to the claimant’s stress and frustration due to the impact of her neck and back injury on her life. She was having sleep difficulties and low mood. The claimant denied previous physical symptoms and said she had physiotherapy which she ceased when her pains worsened.
Ms McGee had a history of the claimant’s difficulties with her domestic duties and her inability to work due to the injuries sustained in the 2015 accident.
Ms McGee was of the view the claimant had an adjustment disorder or post-traumatic stress disorder and required further assessment along with family assistance to undertake household tasks.

After the current accident

The claimant has consulted Dr Davies neurosurgeon and pain medicine physician. A number of his letters to Dr Pramod George[23] have been provided.[24] These can be summarised as follows:
(a)   24 November 2016 – first attendance – he was told the claimant had to be extracted from the car after the 2015 accident and that she had neck, back, right shoulder and right arm pain since that accident. He also has a history of physiotherapy and a conditioning program with Peak Conditioning with no benefit and that a right cortisone injection gave no benefit. In the current accident the claimant reported increased neck and back pain and pain over the right side of the head and ear. Dr Davies does not record any shoulder pain arising out of this accident. Neck, right shoulder and lower back movements were restricted due to pain. He noted chronic pain affecting the neck, lower back, right shoulder and upper limb and requested approval for further tests;
(b)   3 April 2017 – the claimant obtained no benefit from a suprascapular nerve block, and she had pain around the right shoulder girdle extending to the elbow with recent episodes of paraesthesia in the index and middle fingers of her right hand and swelling. There was reduced sensation in the right C6 dermatome. He requested an MRI;
(c)   29 May 2017 – MRI showed a disc protrusion on the right at C5/6 with osteophyte formation and impingement on both C6 nerve root exits and the right side of the spinal cord. She was quite disabled, and he recommended and requested a C5/6 cortisone injection;
(d)   18 July 2017 – her pain was worse and no approval had been given for the nerve root block and Ms Anand reported dropping things from her right hand;
(e)   29 August 2017 – he records that there is a dispute between the insurers as to which accident is responsible. The claimant said her pain was getting worse. He made no further appointments until the insurance company had responded, and
(f)    9 April 2019 – the claimant was experiencing “significant pain in the neck and right side of the face, with pain radiating into the right shoulder and down the right upper limb”.
[23] Dr Pramod George is a GP in practice at Glenfield. Dr Davis addresses his letters to Dr George Parmod.
[24] Commencing at page 62 of the claimant’s bundle.
There is also a report to the claimant’s solicitors dated 21 March 2019 which says “Her neck pain has been persistently worse since the second motor vehicle accident, and it would be reasonable to undertake diagnostic blocks … The need for these blocks has been precipitated by the increased neck pain that occurred following the second motor vehicle accident”.

Medico-legal reports

2015 accident-related reports

Dr Thomson provided a report to the claimant’s former solicitors dated 18 January 2016[25] following his examination on the same day. He has a history of the 2015 accident being “fairly violent” and that her husband’s vehicle was struck “with such force” that it was written off.
[25] Page 126 of the insurer’s bundle.
The claimant gave a history to Dr Thomson that she is “much improved at the neck / shoulders” but worse in the lower back which is causing constant pain.
On examination of the shoulders, Dr Thomson noted “slight deficit in all planes owing to some mild associated neck discomfort but insufficient to attract any impairment”.
Movements in the neck were uniform with some discomfort and mild tenderness but no neurological abnormality.
Lumbar spine movements were asymmetrical with muscle guarding present.
Dr Thomson diagnosed a resolving musculo-ligamentous strain of the neck and a strain of the lower back possibly aggravating pre-existing lumbar spondylosis. He declined to assess impairment.
Dr Lim saw the claimant on 13 April 2016 and submitted a report to the insurance company dated 7 May 2016.[26]
[26] Page 131 of the insurer’s bundle.
He has a history of the claimant remaining in the car after the 2015 accident because her neck and back were stiff. She was extricated from the car by the fire brigade removing the passenger side door. She was taken by ambulance to hospital where she remained for two days.
Dr Lim has a history of the claimant having had 10 physiotherapy sessions in total, five sessions of physiotherapy and then five out of eight further sessions of exercise therapy at Peak Conditioning before the intervention of the current accident.
Dr Lim was given the following details of the current accident which occurred nine days before his examination:
(a)   the car was stationary when hit from behind;
(b)   immediately afterwards she felt the right side of her neck was swollen and she had a right-sided headache;
(c)   their car was driveable and they drove to the police to report the accident;
(d)   they then drove to the doctor but he was not there and she saw the doctor two days later, and
(e)   the doctor told her to continue taking her pills but stop her exercise program [with Peak Conditioning].
Dr Lim includes a pain diagram which is reproduced below:

[image unable to reproduce]

The diagram is signed and dated by the claimant and Dr Lim records the claimant’s current symptoms as head, neck, right shoulder and back. He noted Ms Anand’s neck and back pains were diffuse affecting the whole of the spinal column. The claimant identified pain in her right temple radiating to the right eye caused by the 2015 accident and an occipital (back of head) headache since the current accident. Dr Lim records that Ms Anand told him that the right shoulder pain was related to the first accident as were the totality of her spinal symptoms.
The claimant said her husband had also been injured in both car accidents.
Dr Lim examined the claimant’s neck. There was pain and tenderness, no dysmetria or guarding. There were no other radicular symptoms and the neurological examination was normal.
When her shoulders were examined, there was pain affecting the right trapezius muscles and restricted range of motion in both shoulders (the measurements are included in the tables in the appendix to these reasons). Dr Lim noted “significant” reduction in range of motion in the uninjured left shoulder and that the range of motion reduction in both shoulders suggested adhesive capsulitis. He obtained a greater range of motion on another test “indicative of behavioural elements”.
The claimant’s lumbar spine was palpated with no tenderness and no muscle spasm. There was no guarding or dysmetria, no radicular symptoms and no evidence of radiculopathy.
Dr Lim undertook a thorough review of the material and expressed the view the claimant had a chronic pain disorder and has features suggestive of bilateral frozen shoulder (adhesive capsulitis) that may be related to her chronic diabetes condition. He considered the current accident had further aggravated her condition.
Dr Lim assessed WPI as follows:
(a)   neck – DRE category I = 0%
(b)   lower back – DRE category I = 0%
(c)   right shoulder – not assessable because there was no evidence of injury to the shoulder and the left shoulder was similarly reduced suggesting bilateral frozen shoulders from diabetes and evidence of psychological overlay (0%).
The Panel observes that Dr Lim’s assessment was undertaken in what would be the acute post-accident phase of the 2016 injuries. His findings related to the neck are similar to Dr Thomson’s a few months earlier (pain but no radicular symptoms) although his findings in the back suggest there has been an improvement in the claimant’s lumbar spine condition (radicular symptoms present on Dr Thomson’s examination but not present now). Dr Lim’s findings of significant and similar impairment to both shoulders does not accord with the claimant’s allegation in both accidents of a right shoulder injury only.

Current accident-related reports

The claimant relies on a report of Dr Habib dated 8 July 2019.[27] He had a history of the 2015 accident described by the claimant as at a “fairly high speed”. The claimant told him she injured her neck, back and right shoulder in that accident. Although she said she had not returned to work after the 2015 accident she said her neck and right shoulder pain “had gradually improved” and that she had reasonable neck and right shoulder movements before the current accident.
[27] Page 16 of the claimant’s bundle.
Ms Anand described the current accident as occurring suddenly and that she felt “severe increase in the neck pain, headache and a very sharp pain in the right ear”. She says the neck pain radiated into her shoulder but did not settle at which stage she consulted her doctor.
The claimant’s complaints to Dr Habib were of constant neck pain, headaches and pain in the right ear, right shoulder pain and restriction of movement and lower back pain which had temporarily increased but was now back to the level it was after the 2015 accident.
Dr Habib examined the claimant’s neck and noted there was guarding and asymmetrical restricted movement present. There was sensory loss in the right corresponding to a C6 distribution but no other neurological abnormalities.
In terms of the right shoulder there was restriction of movement (measurements are recorded in the appendix to these reasons) and some mildly positive impingement signs. The left shoulder was normal.
Dr Habib diagnosed C5/6 discopathy with right sided radiculopathy and rotator cuff tendinopathy and subacromial impingement of the right shoulder.
Dr Habib considered the claimant’s current neck impairment was 15% (DRE category III) and was previously DRE category II (5%) and that her right shoulder UEI was assessed at 15% of which 50% was pre-existing. The Panel notes that Dr Habib records only one sign of radiculopathy (sensory loss) and that the definition of radiculopathy in the Guidelines requires there to be two or more of the five signs of radiculopathy for a claimant to be assessed as DRE category III.
GIO obtained a report from Dr Rosenthal on 28 November 2016.[28] He has a history of the claimant hitting her head on the headrest and experiencing immediate pain on the right side. The claimant says she developed a painful right ear, and her neck pain was worse. The claimant did not tell Dr Rosenthal her back was injured in the 2016 car accident. The claimant said she was taking Lyrica at the time of the 2016 accident.
[28] Page 172 of the insurer’s bundle.
On examination, Dr Rosenthal recorded “significant pain behaviours” including grimacing, grabbing and lack of full effort. The claimant’s left shoulder motion was full but the right significantly restricted. He noted no instability in the shoulders and negative impingement signs.
He considered it likely the claimant had aggravated the previous injury other than the ear injury which he declined to assess as it was outside his area of expertise.
Dr Rosenthal re-examined the claimant on 2 October 2020 and his report dated

7 October 2020 is relied on by the insurer.[29] The claimant had been seen by Dr Fowler who apparently wished to undertake a foraminotomy and discectomy.
[29] Page 183 of the insurer’s bundle.
The claimant said her symptoms had continued and worsened and that she has neck pain radiating to the right shoulder with head pain around her right ear. Dr Rosenthal records complaints of right index and middle finger numbness which could be interpreted as radicular.
On examination of the neck there was some tenderness but no spasm or guarding and symmetrical restriction of motion. Shoulder movements were normal on the left and restricted on the right but with no muscle wasting.
Dr Rosenthal restated his previous opinion that the claimant’s current state was due to the 2015 accident and that she sustained a temporary aggravation of previous neck pain in the current accident.
The insurer obtained a report from Dr Payten and ear nose and throat (ENT) surgeon dated 19 May 2017.[30] The claimant says she was turned to the right talking to her husband when they were hit from behind by another car as they were moving slowly in traffic. She says she hit the right side of her head on the headrest. The claimant told

Dr Payten she complained to her GP of neck pain and pain in the right ear which comes and goes with tinnitus. Dr Payten considered she had normal hearing but that her earache was referred pain from the neck and there was no impairment.
[30] Page 147 of the insurer’s bundle.
The insurer had the claimant examined by psychiatrist Dr Rees and her report is dated 31 July 2017.[31] Dr Rees has a history of the onset of neck pain and right head / ear pain with migraines and that the claimant’s previous neck problems had worsened and she has “started recently” experiencing pins and needles in her right arm.
[31] Page 157 of the insurer’s bundle.
Both the claimant and the insurer have retained occupational therapists to provide opinions as to the claimant’s past and future care and domestic assistance needs. The claimant’s expert, Ms Memon provided her report based on four medical reports only and the claimant’s history.[32] The insurer’s expert, Mr Miszczuk has provided a report dated 24 November 2020. This report includes a summary of documentation and information provided which when compared with the documents provided in the parties’ bundles suggests there may be documents not put before the Panel.
[32] See page 25 of her report at page 234 of the insurer’s bundle.

Other assessments

Medical Assessor Gliksman examined the claimant on 9 October 2019 on behalf of SIRA’s MAS and issued a certificate on 23 October 2019.[33]
[33] Page 25 of the claimant’s bundle.
He was asked to assess:
(a)   neck – C5/6 discopathy with right radiculopathy;
(b)   right shoulder – rotator cuff tendinopathy and subacromial impingement, and
(c)   low back - soft tissue.
He has a history of the 2015 accident and the claimant told him she was admitted to hospital for two days after that accident. She reports significant improvement as a result of her treatment at the time of the current accident.
Ms Anand complained of pain at the right side of the head and right ear and right paracervical pain with a sensation of swelling. She complained of pain radiating into the right shoulder and “more recently” into the right upper limb, affecting the index and middle fingers”. She did not complain of back pain.
On examination of the cervical spine there was muscle guarding and asymmetry of motion. There was a full range of motion in the left shoulder and mild reduction of motion in the right (the measurements are recorded in the appendix to these reasons). While there was no rotator cuff muscle wasting, the Medical Assessor records 1.5cm right upper limb wasting at the biceps. There was no loss of reflexes but loss of sensation in a C6/7 distribution.
Medical Assessor Gliksman then has a history of the current accident noting onset of cervical and right shoulder symptoms with milder pain on the right side of her head and ear.
Having reviewed the documentation, Medical Assessor Gliksman formed the view that the claimant injured her neck in the 2015 accident, but that the cervical radiculopathy was the result of the current accident. There were no recorded clinical findings to suggest anything other than DRE I and he noted Dr Lim found no evidence of radiculopathy. The Medical Assessor says:
“It is medically credible that on a background of initial injury in a motor vehicle accident occurring in July 2015 leading to increased vulnerability, an otherwise relatively minor motor vehicle accident that occurred on 4 April 2016 could have resulted in cervical radiculopathy.”
In relation to the right shoulder, he considered range of motion was consistently restricted due either to the radiculopathy or due to pathology in the right shoulder itself but thought it was related to the spine injury.
He noted that any lumbar spine injury had resolved. He declined to assess permanent impairment on the basis the claimant’s injuries had not stabilised because at that time Dr Absrasko (or possibly Dr Fowler) was considering surgery. The Panel notes that Medical Assessor Gliksman also found only one sign of radiculopathy (loss of sensation) and made a diagnosis of radiculopathy that is unlikely to have satisfied a finding of DRE category III as a result.

Biomechanical evidence

Dr Griffiths provided a biomechanical report to the insurer on 23 December 2020.[34] He says the 2015 accident was the more severe of the two and was asked to consider whether the current accident could have aggravated the claimant’s 2015 injury.
[34] Page 80 of the insurer’s bundle.
Dr Griffiths examined the photographs of the vehicles. He considered the evidence of the claimant and the driver Mr Borham. He had the photographs of the vehicles and the quotes from the smash repairers who repaired both vehicles. He considered at [5.5] that there was a minor magnitude energy exchange and the vehicles absorbed most of the energy and says, “Rina Anand would have been aware that there had been contact between the two vehicles, but her body would not have responded with any motion relative to the vehicle interior”.
At [6.3] he says while there would have been a transfer of energy between the vehicles there would have been no movement of the wheels of the claimant’s vehicle on the surface of the road.
Dr Griffiths then considers the seat design and protection offered in cars generally and in the model of car in which the claimant was travelling at the time of the accident. He says at [7.3] that even if there was forward movement of the claimant’s vehicle (which he considered improbable), the “anatomically orientated support of the seat and its ancillaries would have offered well distributed support with no possible mechanism of differential or point loading”.
Dr Griffiths undertakes a review of the medical evidence available and expresses the opinions, that:
(a)   at [8.3.1] “there is no possible injury mechanism for the head”;
(b)   at [8.3.2] “there is no possible injury mechanism for the neck”;
(c)   at [8.3.3] “there is no possible injury mechanism for the right shoulder”, and
(d)   at [8.3.4] “there is no possible injury mechanism for the lower back”.
He says at [9.2]:
“By the reasoning processes described in Section 5.5, it is deduced that the energy exchange was insufficient to have caused any forward motion of the vehicle in which Rina Anand was seated. By the reasoning processes described in Sections 5 and 8, it is deduced that there was no feasible injury mechanism that could have caused movement or loading of the anatomical regions of her head, neck, right shoulder or back which could have aggravated her pre-existing pathology.”
The claimant has served no lay or expert evidence in response to the Dr Griffiths’ report.

Re-examination findings

The claimant attended an appointment with Medical Assessor Berry in his Fairfield rooms on 1 December 2022.

History of Motor Accident

Ms Anand who is now aged 56 said that on 4 April 2016, she was a front seat passenger wearing a seatbelt in a Toyota Corolla driven by her husband. They were coming home from the City and were travelling on the Hume Highway at Greenacre. The traffic slowed and they were hit from behind with considerable force. The airbags did not deploy. She recalls that she was thrown forwards and her head then hit the headrest and she was immediately aware of pain in the back of her head and in the right shoulder and arm. She also became aware of pain in her neck. She did not get out of the vehicle while her husband was exchanging details with the other driver. Police and ambulance did not attend the scene. Her husband then drove her to her GP’s rooms, but nobody was there, and she went to her doctor the next day.

History of symptoms and treatment following the motor accident

When she saw Dr Soliman, Ms Anand says he prescribed Endone and referred her for X-rays. The Panel notes this history does not appear to be correct. While Dr Soliman’s records indicate Panadeine Forte was prescribed after the 2015 accident, his records do not mention any medication prescribed after the current accident.[35] There were scans undertaken at Liverpool Hospital after the 2015 accident but there is no record of any X-rays having been undertaken at the request of Dr Soliman immediately after the accident.
[35] The full medication list on page 312 of the insurer’s bundle refers to Endep and Lyrica. The only medication prescribed after the accident appear to be the claimant’s diabetic medication. Lyrica was re-prescribed in August 2016.
Ms Anand said she was supposed to attend physiotherapy, but the insurer would not pay for it, and she has had no further treatment.
Ms Anand told me that her husband left shortly after the accident, and she became a single parent with two children (who were, at the time of the current accident 23 and 16). She said that she had considerable financial difficulty, but she and the children continued to live in the marital home and she obtained employment in administrative duties. She has worked 37 hours a week from 2018 until the present time.

Current symptoms

Ms Anand said she suffers headaches involving the right side of the head, virtually every day. She has pain in the right side of her neck and down the right shoulder and arm and a feeling of numbness in the index and middle fingers. Her neck is constantly painful. She is able to drive to work as it is only 10 minutes from home.
The claimant did not report pain in her right shoulder but pain radiating into her shoulder from her neck.
She continues to suffer intermittent back pain. The claimant did not report any pain in her legs.

Current treatment

Ms Anand takes Nurofen and Panadol. She has ceased taking Endone because it affected her stomach. She also takes Oroxine for a thyroid disorder which she has had for many years.

Past history

Ms Anand said she was involved in a motor accident in June 2015 when she and her husband were travelling in Milperra having come from Parramatta. She was a front seat passenger, and their vehicle was hit from behind. She does not recall being knocked unconscious, but she was shaken and dazed. She had pain on the right side of her head and down onto the right side of her neck and right shoulder. She was taken by Ambulance to Liverpool Hospital. The vehicle she was in, was towed and written off.
She was admitted to Liverpool Hospital for two days. X-rays were carried out and she was prescribed medication to control her pain.
Ms Anand said she made a claim for that accident, and she was paid money. She could not recall what specialists she saw or when and how the claim was settled.

Work history

Ms Anand said that she was born in Fiji. Her father had a marshmallow sweet factory and she ran it for him as he got older. She attended university and completed an accountancy degree before migrating to Australia in 1990. She had her daughter and then worked in administration for eight years and then for an ice-cream company, for 12 years.

Social history

Ms Anand is separated from her husband. She and her two adult children are living in the marital home.

Physical examination

Ms Anand is now 56 years of age. She is 155cm in height and 73kg in weight. She sat and stood with normal posture and moved with a normal gait.

Cervical spine

Ms Anand was tender in the right paraspinal muscles. There was no guarding or spasm observed and no alteration of spinal contour. Extension and flexion were both reduced by half. Right rotation was two thirds of the expected normal range and left rotation was only one third therefore there was asymmetry of movement that is dysmetria. Lateral flexion right and left was not measured.

Upper extremities

Ms Anand’s reflexes were intact. There was some sensory disturbance involving both the palmar and dorsal surfaces of the index and middle fingers. There was no wasting, swelling or other change in the forearm, upper arm or fingers.
Ms Anand’s left upper extremity including her left shoulder was normal in all respects.
In terms of her right shoulder movements, Ms Anand could only demonstrate 90 degrees of abduction and forward flexion. Internal and external rotation was normal. Extension was to 30 degrees and adduction was 40 degrees. The measurements obtained are included in the appendix to these reasons.

Lumbosacral spine

In giving her history, Ms Anand complained of intermittent back pain since the date of the accident.
On examination, she was mildly tender in the right paraspinal muscles just above the pelvic brim. Flexion was to less than half the normal range and extension was minimal. The asymmetrical loss of motion represents dysmetria. Rotation was half range on both sides.

Lower extremities

Ms Anand demonstrated 70 degrees of straight leg raising on both sides. Reflexes were intact and there was no wasting of the muscles of either leg and no sensory changes in the lower limbs.

Comment on consistency

Within the examination itself, the claimant’s movements were repeated three times and were consistent.
It was put to the claimant that her range of movement in the neck, back and right shoulder had varied over time and between examinations and was far more restricted than would be expected. Ms Anand responded saying that all her movements were painful and that what she demonstrated was all she could achieve.
The claimant was shown the pain diagram which she completed at Dr Lim’s examination. She agreed that she had filled in and signed this form. She said she filled in similar forms for other medical practitioners as well.

CONSIDERATION OF THE ISSUES

Is the claimant’s evidence reliable?

The Panel notes a number of factual inconsistencies in the histories given by the claimant. For example, the claimant told Dr Lim that she was driven from the accident directly to the police in order for a report to be made whereas her claim form suggests a report was made by telephone.
Ms Anand told Dr Lim after driving to the police station she was driven to her doctor who was not there. She told Medical Assessor Truskett that she was driven home and telephoned her doctor the day after the accident and saw him the day after that. She told Medical Assessor Berry she was driven to the doctor on the day of the accident, but he was not there and she saw him the next day.
The claimant gave a history to Dr Lim that her doctor told her to stop her treatment at Peak Conditioning however, according to the records, the claimant was not having any treatment at Peak Conditioning at the time of the current accident.
Ms Anand told Dr Thompson she had five physiotherapy treatments only. She told

Dr Lim she had 10 physiotherapy and exercise physiology treatments at Peak Conditioning. There is no evidence before the Panel of any treatment (other than an initial screening session) at Peak Conditioning.
The claimant told Medical Assessor Truskett she was prescribed Endone at her first visit to the doctor after the current accident, and she was having physiotherapy at the time of the current accident whereas the records of Dr Soliman do not suggest any prescription was given at the time of the first attendance after the current accident and there is no evidence of the claimant having any physiotherapy at that time. The Panel also notes the claimant does not appear to have been prescribed Endone at all. She has had previous prescriptions of pain killers after the first accident (Panadeine Forte and Lyrica) but not Endone and one repeat of Lyrica in August 2016.
The Panel notes the claimant appears to have exaggerated the extent of the 2016 accident. The claimant told Assessor Berry the accident occurred with “considerable force” and that she was thrown backwards and forwards which does not appear borne out by the photographs of the vehicle and the evidence of Mr Borham. The Panel notes that the 2015 accident did involve considerable violence or force. The claimant was cut from the vehicle by emergency services and that vehicle was written off.

The Panel is particularly concerned with the claimant’s evidence concerning her right shoulder symptoms. Ms Anand told Medical Assessor Truskett that she “had symptoms in her neck and back that were persisting” but denied any right shoulder pain at the time of the 2016 accident. At her attendance on Dr Lim nine days after the current accident she coloured in a pain diagram and told Dr Lim that her right shoulder pain was caused by the first accident and that the only injuries sustained in the 2016 accident was an occipital headache. 14 days after the accident the claimant signed as true and correct a claim form which indicated head and neck symptoms only but which did not list right shoulder symptoms (or lower back). The claimant also gave a history to Dr Davies of right shoulder symptoms after the first accident but not after the second.
It is now over seven years since the 2015 accident and six years since the current accident. That is a lengthy period of time, and it is not to be expected that someone will recall all details of accidents, treatment and medication with accuracy particularly in this case when the two accidents both involved rear end collisions when Ms Anand was a front seat passenger and when the accidents were not far apart in time.
The Panel does not intend to make any finding in relation to the claimant’s credibility but for all the reasons set out above, the Panel believes her evidence and the histories she has given in more recent years should be approached with caution and that we should prefer the more contemporaneous evidence and look for corroboration of her evidence and histories in the documentation from the early post-accident period.

What is the test of causation?

The Panel is required to undertake an assessment of “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%”.[36]
[36] Section 58(1)(c) of the MAI Act.
Clause 1.7 of the Guidelines provides guidance in respect of determining causation of injuries as follows:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The Panel notes that the provisions of the Civil Liability Act 2002 (the CL Act) apply to it when determining issues of causation. In Raina v CIC Allianz Insurance Ltd[37] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act...”
[37] [2021] NSWSC 13.
Justice Campbell in Owen v Motor Accidents Authority of NSW[38] said that it was “well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
[38] [2012] NSWSC 560.
The approach to causation therefore requires a Panel to make both a medical decision and a non-medical informed judgment as follows:
(a) could the accident have caused the injury alleged from which the impairment results (medical determination), and
(b) did the accident in fact cause the injury (non-medical determination).

What injuries did Ms Anand sustain in the 2015 accident?

When both claim forms are read together and considered along with the history given to Dr Lim within nine days of the second accident and the GP’s notes, the Panel accepts that the claimant injured her neck and lower back in the 2015 accident.
The CT and MRI scans undertaken by Liverpool Hospital reveal degenerative changes (osteophyte complex) at the C5/6 level of the claimant’s neck.
The claimant identified in her 2015 claim form, right shoulder symptoms and

Dr Soliman’s record of the consultation on 10 July 2015 notes the claimant was still sore in the neck and the shoulders. Ms Anand told Dr Lim in April 2016 that her right shoulder symptoms arose from the 2015 accident.
There is no suggestion of an actual, specific or frank injury to the claimant’s right shoulder in that accident. The claimant’s symptoms of pain and restriction in movement in the right shoulder appear to be related to the claimant’s neck injury.

Had the claimant recovered by the time of the 2016 accident?

The claimant told Dr Thomson her neck and shoulder symptoms were improving at the time of the current accident. The claimant reported to Dr Lim, nine days after the accident she still had neck and right shoulder symptoms related to the 2015 accident.
The claimant’s GP records, Ms McGee’s report and the Peak Conditioning referral suggest that in January / February 2016 the claimant was still experiencing pain and symptoms. The claimant was prescribed pain killing medication in January and February 2016. An entry in Dr Soliman’s records on 15 March 2016 (less than three weeks before the accident) suggests continuing symptoms at that time. Of significance to the Panel is that in Ms Anand’s 2016 sworn claim form she says she had taken pain killers on the day of the accident and was still experiencing neck, back and right shoulder problems from her first accident.
The Panel is satisfied that at the time of the 2016 accident the claimant was still experiencing pain and symptoms in her neck, right shoulder and lower back stemming from the 2015 accident.

What injuries did Ms Anand sustain in the 2016 accident?

The Panel has carefully considered the report of Dr Griffiths and the lay evidence from the driver who collided with the claimant’s husband’s car. The Panel notes in particular that the report of Dr Griffiths has not been challenged. The claimant was queried about any report to address his opinions but has chosen not to do so.

Lumbar spine

The claimant denied in her claim form, sworn two weeks after the accident, that she injured her back. She told Dr Lim nine days after the accident that she did not injure her back in the accident. She did not tell Dr Rosenthal in November 2016 that her back was injured in the car accident.
On the basis of the claimant’s evidence, and the unchallenged evidence of Dr Griffiths the Panel finds that the accident on 4 April 2016 could not cause and did not cause an injury to the claimant’s lumbar spine.
While Dr Griffiths suggests the forces involved in the accident could not have resulted in any injury to the claimant’s lower back, Medical Assessor Gliksman thought it possible that she could have sustained an aggravation or exacerbation. I note

Dr Griffiths’ report was obtained after the determination of the Medical Assessor.
The claimant told Dr Habib in July 2019 that her back pain had returned to its pre-2016 level and she did not complain of back pain to Assessor Gliksman in October 2019.
If the claimant did injure her back in the accident, the Panel would not be satisfied that she sustained anything other than a minor or temporary aggravation of her 2015 injury and that any lower back injury has recovered leaving her with no impairment.

Cervical spine

The claimant says she has had neck pain since the accident, worse than before the accident. The claimant’s GP records complaints of right sided neck symptoms on

6, 12 and 22 April 2016. The claim form alleges a neck injury.
Dr Lim reported nine days after the accident, symptoms of pain and restriction of movement but no neurological deficits in the upper limbs. Dr Davies, neurosurgeon, referred in November 2016 to the claimant having tenderness and restriction of movement only but no neurological abnormality in the upper or lower limbs.
Dr Davies, at his 26 March 2017 examination, a year after the accident, is the first doctor to record neurological involvement or radicular symptoms (altered sensation in the right hand) which he considered suggestive of a C6 nerve root dysfunction.

Dr Gliksman in October 2019 referred to a further deterioration of symptoms and the recent emergence of symptoms of pain radiating into the right arm affecting the index and middle fingers of her right hand.
The radiology at Liverpool Hospital indicated the presence of a C5/6 osteophyte complex in July 2015 which indented the thecal sac and contracted (but did not compress) the anterior spinal cord. There was narrowing at the right exit foramina.

Dr Davies, the claimant’s treating neurosurgeon, did not have the CT and MRI scans from the first accident before him to compare with the claimant’s 2017 radiology which showed nerve root impingement at the C6 level.
While Dr Griffiths says there is no possible mechanism which could result in a head or neck injury in this accident, Medical Assessor Gliksman suggests the accident could have caused a further injury to a vulnerable spine. Medical Assessor Gliksman did not have the report of Dr Griffiths at the time he determined the matter before him.
The Panel is not satisfied, on the evidence of Dr Griffiths, that the 4 April 2016 accident could cause or did cause an injury to Ms Anand’s neck in this accident. If it did then the Medical Assessors of the Panel are of the view any injury was soft tissue in nature causing a short term exacerbation of the injuries she sustained in 2015 or a further short term aggravation of the degenerative changes in her cervical spine at the C5/6 level but that any aggravation or exacerbation has ceased. In the Panel’s view noting the occasional complaints of neck symptoms before the accident, the nature of the first accident and the low levels of force involved in her second accident, any symptoms in Ms Anand’s neck and any related impairment is now related to the underlying degenerative changes in her spine.

Right shoulder

The claimant’s 2015 claim form says she injured her right shoulder in the accident. Ms Anand told Assessor Berry she settled her claim arising from the 2015 accident. This would have been on the basis of the allegation of injury contained in that claim form.
The claim form from 2016 does not mention any complaints in the right shoulder.

Dr Lim, nine days after the 2016 accident has a history from the claimant that her right shoulder symptoms were caused by the first accident and not the second. Dr Soliman’s notes do not have any significant complaint of right shoulder symptoms until

August 2016. Dr Davies, her treating neurosurgeon in November 2016 has a history that the claimant injured her right shoulder in the 2015 accident but no mention of the right shoulder being injured in the 2016 accident.
The Panel is not satisfied on the basis of the claimant’s histories and the report of

Dr Griffiths that the claimant could or did sustain a frank or specific right shoulder injury in the accident or that any right shoulder symptoms result from the 2016 accident.

What is claimant’s current whole person impairment?

Ms Anand’s lumbar spine impairment

Ms Anand reports intermittent pain in her lower back. She therefore at least has a DRE Category I (0%). She does not have any signs of radiculopathy and therefore does not qualify for an assessment of DRE category III. There would appear to be dysmetria present (asymmetrical loss of motion in flexion and extension of the lumbar spine) which is a non-radicular sign and would qualify the claimant for a DRE category II assessment and 5% WPI.
The Panel is of the view that Ms Anand has a 0% WPI in her lumbar spine not because she has no rateable impairment but because the Panel is not satisfied the accident could have caused or did cause any lumbar spine injury from which there could be any impairment. Any impairment the claimant may have in relation to any condition of the lumbar spine is, in the opinion of the Panel caused by the 2015 accident.

Ms Anand’s cervical spine impairment

Ms Anand reports constant pain in her neck and she demonstrated at the examination with Medical Assessor Berry, asymmetric restriction of neck movements (dysmetria). Therefore she would qualify as DRE category II and has a WPI of 5%.
While Ms Anand has some sensory loss consistent with the C6/7 dermatomes, she does not have any other of the other five signs of radiculopathy therefore she does not qualify for DRE Category III. The Panel has earlier commented that other examiners had found sensory changes in the C6 dermatome distribution but no other signs of radiculopathy suggesting Ms Anand has never satisfied the criteria for a DRE category III impairment.
The Panel is of the view that Ms Anand has a 0% impairment of her cervical spine because the accident could not have caused and did not cause any cervical spine injury from which there would be any impairment. If the claimant has a cervical spine impairment, then the Panel is of the view it stems from the ongoing effects of the injury from the 2015 accident or the underlying degenerative condition of her cervical spine shown on radiology in 2015 and 2016.

Ms Anand’s shoulder impairment

In accordance with the measurements included in the appendix to these reasons, the claimant has the following current impairment:
(a)   Flexion                  90 degrees     6% UEI
(b)   Extension              30 degrees     1% UEI
(c)   Abduction              90 degrees     4% UEI
(d)   Adduction              40 degrees     0%
(e)   Internal rotation      90 degrees     0%
(f)    External rotation     90 degrees     0%
The total UEI is 11% which converts to a WPI of 7%.
The claimant’s left shoulder range of motion has been measured as normal by every examiner except Dr Lim who found significant restriction of motion. The claimant’s right shoulder impairment has been measured as causing an 8% WPI (Dr Lim, Dr Habib and Dr Rosenthal), 6% (Medical Assessor Truskett and Medical Assessor Berry) and 4% by Medical Assessor Gliksman. The claimant’s right shoulder range of motion has clearly varied over time.
The Panel has previously expressed the view that due to the claimant’s history given to Dr Lim, the sworn claim form, the GP’s records and the history taken by Dr Davies that the claimant did not sustain a specific, frank or actual right shoulder injury in this accident.
If Ms Anand’s symptoms in the right shoulder are caused by a neck injury, then in accordance with the Nguyen principle, that impairment should be included. However, based on the report of Dr Griffiths, as the Panel is not satisfied that current accident could have caused or has caused a neck injury, it follows that any impairment to the claimant’s right shoulder caused by a neck condition are not related to the accident. The Panel is of the view that any shoulder impairment is related to either the 2015 accident caused injuries or the claimant’s pre-existing degenerative spine and disc condition.

CONCLUSION

In summary, the Panel is of the view that the claimant has no impairment resulting from any injuries caused by the car accident of 4 April 2016.
It therefore follows that the certificate issued by Medical Assessor Truskett must be revoked.

Appendix

Right shoulder range of motion measurements

Flexion	Extension	Adduction	Abduction	Internal Rotation	External Rotation
Dr Thomson January 2016	Slight deficit in all planes owing to some mild associated neck discomfort but insufficient to attract any impairment in respect of the shoulders.
Dr Lim 13 Apr 2016	90	30	30	70 [120]	40	45
Dr Rosenthal Nov 2016	70	30	20	80	Unable to be measured
Dr Habib Jul 2019	90	25	30	80	50	80
Ass Gliksman Oct 2019	150	50	50	120	70	50
Dr Rosenthal 7 Oct 2020	80	40	40	90	50	90
Ass Truskett Feb 2021	90	30	50	90	90	90
Review Panel Dec 2022	90	30	40	90	90	90

Left shoulder range of motion measurements

Flexion	Extension	Adduction	Abduction	Internal Rotation	External Rotation
Dr Thomson January 2016	Slight deficit in all planes owing to some mild associated neck discomfort but insufficient to attract any impairment in respect of the shoulders.
Dr Lim 13 April 2016	105	40	30	105 [120]	40	45
Dr Rosenthal Nov 2016	Full range of movement
Dr Habib July 2019	180	50	50	180	90	90
Ass Gliksman Oct 2019	180	50	50	180	90	90
Dr Rosenthal Oct 2020	180	50	50	180	90	90
Ass Truskett Feb 2021	180	50	50	180	90	90
Review Panel Dec 2022	180	50	50	180	90	90

9 September 2016.

[2023] NSWPICMP 65

1 March 2023