AAI Limited t/as GIO v Di-Filippo
[2025] NSWPICMP 105
•19 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as GIO v Di-Filippo [2025] NSWPICMP 105 |
CLAIMANT: | Frank Di-Filippo |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Mohammed Assem |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 19 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical panel review of assessment of whole person impairment (WPI) of single Medical Assessor (MA); motor accident of 3 June 2021 involving head on collision; number of injuries alleged including a right shoulder injury; MA declined to assess the right shoulder as it had not reached maximum medical improvement (MMI); Review Panel assessed right shoulder and various other injuries referred for assessment; Held – right shoulder has not reached MMI due to ‘frozen shoulder’ so assessment not performed, cervical spine assessed at 5% WPI and remaining injuries certified as not caused by the motor accident; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Woo dated 9 March 2024. 2. Declines to make an assessment of whole person impairment of the following injury which is not yet permanent: · right shoulder. 3. Certifies the following injury caused by the motor accident gives rise to a permanent impairment of 5% and is not greater than 10%: · cervical spine – soft tissue injury. 4. Certifies the following injuries were not caused by the motor accident: · lumbar spine – soft tissue injury; · thoracic spine – soft tissue injury; · right hip – soft tissue injury, and · left leg – soft tissue injury. |
STATEMENT OF REASONS
INTRODUCTION
Mr Frank Di-Filippo, (the claimant) is a 38-year-old man who suffered injury on 3 June 2021. The claimant was the driver of a motor vehicle when the insured semi trailer swerved and jack knifed causing a head on collision with the claimant’s vehicle.
A claim was lodged upon AAI Limited trading as GIO (the insurer) who is the insurer of the truck involved in the motor accident. The insurer has a liability to pay statutory benefits and/or damages under the Motor Accident Injuries Act2017 (MAI Act).
The subject issue in dispute is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”.[1]
[1] Section 4.11 of the MAI Act.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Dr Alexander Woo. He issued a certificate dated 9 March 2024. The Medical Assessor certified that injuries caused by the accident give rise to a permanent impairment of 10% and is not greater than 10%. However, he also declined to make an assessment of the alleged injury to the right shoulder on the basis that the injury was “not yet permanent”.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[2]
[2] Section 7.26(10) of the MAI Act.
In a determination dated 14 June 2024, the President’s delegate referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
Interim directions were issued by the Panel requiring the parties to lodge bundles of all documents relied upon. Those bundles were received in compliance with the direction.
A teleconference was arranged to occur between the representatives of the parties and Member Medland on 14 August 2024. This was to discuss the parameters of the dispute arising from some discourse from the parties regarding the assessment of the right shoulder injury.
The claimant had submitted that the review application should not be assessed until after the claimant’s right shoulder injury was assessed by a separate Medical Assessor.
The insurer submitted that the separate assessment for the right shoulder should be cancelled due to the Panel having the ability to assess the injury, with it being a matter the subject of the original assessment.
At the teleconference both parties maintained their position. It was noted that the Panel has no power to cancel any appointment, and accordingly the matter was dealt with separately by the Commission. The Panel understands that the separate medical assessment was cancelled and the Panel advised that the right shoulder injury is to form part of the assessment.
Thereafter, the Panel convened a teleconference on 9 September 2024 and determined that a re-examination of the claimant was required. This occurred on 26 November 2024 with Medical Assessor Assem at the Commission’s medical suites.
The Panel reconvened via teleconference on 4 December 2024.
Permanent impairment assessment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[7]
[7] Clause 6.2 of the Guidelines.
Guidelines
Causation of injury is addressed from cl 1.5 of the Guidelines. Whilst the clauses are set out in respect of permanent impairment they are relevant to a dispute as to threshold injury.[8] Clause 1.6 & 1.7 provides:
“1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 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.”
[8] See Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 at [35].
In determining the issue of causation, the Panel is to also have regard to s 5D of the Civil Liability Act 2002 (CL Act).[9]
[9] See s 3B(2) of the CL Act.
“5D General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
ASSESSMENT UNDER REVIEW
Medical Assessor Woo certified a 10% whole person impairment arising from the following injuries:
(a) cervical spine – soft tissue injury;
(b) thoracic spine – soft tissue injury;
(c) lumbar spine – soft tissue injury;
(d) right clavicle distal fracture;
(e) right hip – soft tissue injury, and
(f) left leg – soft tissue injury.
On examination, Medical Assessor Woo found tenderness of the cervical spine and over the right trapezius. A restriction of one half of normal in all directions of the range of movement was noted. There was no dysmetria or muscle guarding found. Non-verifiable complaints by way of pins and needles to the right hand was noted.
In respect of the upper limbs, the md Assessor found reflexes as normal and symmetrical with some weakness of the right hand grip and no atrophy. Some deranged sensation in the right upper limb was noted.
In respect of the thoracic spine, no specific tenderness was found and the range of movement was noted as normal. Neurological examination was normal.
In respect of the lumbar spine, tenderness was found with range of motion restricted by one half of normal in flexion. No dysmetria was found. Straight leg raising was 50 degrees on the right and 80 degrees on the left. Neurological examination of the lower limbs found deranged sensation in the right shin, not localised to any spinal nerve root distribution.
The Medical Assessor noted the active range of motion found on examination of the shoulders with tenderness of the distal clavicle of the right shoulder found. The Medical Assessor concluded that the loss of range of motion in the right shoulder was consistent with frozen shoulder (adhesive capsulitis). No muscle wasting was found.
Examination of the lower extremity included a report of the range of motion found with a goniometer. No abnormality of the left lower limb was found with thigh and calf circumferences equal on both sides.
The Medical Assessor was satisfied that all listed injuries were caused by the motor accident. He assessed a 5% whole person impairment of the lumbar spine and a 5% whole person impairment of the cervical spine. All other injuries were assessed at 0% whole person impairment. He declined to assess the right shoulder on the basis that the impairment was not permanent due to development of adhesive capsulitis. He anticipated that it would reach maximum medical improvement 12 to 18 months since it was reported in July 2023.
DOCUMENTATION
The Panel has considered all documentation received by the parties in their respective bundles lodged in compliance with the Panel directions.
The NSW Ambulance report documents the claimant complaining of severe pain in the right shoulder. He was noted to be moving all limbs freely with no cervical spine tenderness or pain. “nil” back pain or hip pain was noted.
The Emergency Department Discharge referral of Campbelltown Hospital, notes the claimant reported neck and shoulder pain post accident and was placed in a soft collar by the NSW Ambulance crew. He was discharged home with advice to take regular simple analgesia and Endone as needed.
In the Application for personal injury benefits (claim form) dated 24 June 2021 (three weeks after the motor accident) the claimant describes his physical injuries as including: “right shoulder pain – tears in muscle, right neck pain, down right side of body to hip – pain, right shoulder fracture.”
A Certificate of Capacity/fitness dated 7 June 2021 completed by Dr Soni is not entirely legible, however, the diagnosis is listed as: right shoulder, right neck pain, right hip pain. A further certificate dated 25 June 2021 includes a diagnosis of “MVA, PTSD, stress fracture (right distal clavicle, fracture) + underlying impingement of the right shoulder (right shoulder bursitis) Needs crtison request form is given.” [sic]
An Allied Health Recovery Request (AHHR) of Rehabilitation Services Pty Ltd dated 26 May 2022 has the right shoulder listed in the diagnosis along with the psychological injury. No other body parts are mentioned.
Photographs of the claimant’s vehicle post accident demonstrate relatively significant damage to the driver’s side of the vehicle, including the front end.
The claimant was referred to orthopaedic surgeon, Dr Chin by Dr Soni. In a report dated 22 July 2021 the doctor refers to unchanged symptoms, presumably of the right shoulder. Access to physiotherapy was noted as restricted due to the Covid-19 pandemic. The possibility of shoulder arthroscopy and excision of the outer clavicle was raised as a possibility.
In a report dated 2 September 2021, Dr Chin noted it was 12 weeks post accident and he considered the claimant had “turned around the corner and he has full range of motion and a much better pain profile”.
In a Rehabilitation Services questionnaire dated 26 August 2021, Dr Chin listed the diagnosis as right shoulder distal clavicle fracture. Possible surgery was noted if the shoulder did not settle down.
The claimant’s physiotherapist, Cathleen Sengmany, reported on 20 October 2021 that the claimant attended for initial session on 18 October 2021 for right shoulder pain (clavicle fracture and underlying impingement). By 5 November 2021 it was reported that the claimant was still very limited in what he can do, and he was unable to lift his arms above shoulder height without severe pain.
The general practitioner record of Carnes Hill Medical Centre is noted. The latest note is dated 21 September 2022 where notes regarding shoulder symptoms are included. The claimant reportedly stated that his tight shoulder pains had settled and he was “ok” doing his normal duties.
A note of 8 September 2022 includes mention of “PTSD stress” and the fracture and symptoms related to the right shoulder injury. He was happy to trial pre-injury duties. Remaining attendances focus on the right shoulder symptoms and psychological symptoms. On 8 December 2021 left shoulder pains are noted.
In an exercise physiology functional recovery program final report of OccHealth dated 2 September 2022 the “presenting problem” is listed as “PTSD” and a right shoulder injury including a stress fracture and underlying impingement.
Various reports of MSK Therapy & Injury Management (MSK) have been provided. Difficulties related to the claimant’s right shoulder symptoms are documented throughout, in addition to mention of psychological symptoms. Some upper back pain is noted in a consultation note of 10 January 2022. On 6 April 2022 it was noted the pain from the right shoulder was “going up into the neck”, with neck and shoulders noted as tight on 10 April 2022. On 6 January 2023 pain in the centre of the back is noted. On 26 July 2023 the onset of frozen shoulder is raised.
In a MSK questionnaire completed by the claimant on 18 October 2021 the claimant lists his shoulder injury as the “main problem/concern”. In a body diagram, the claimant circles the right shoulder region when asked to “…mark on the diagrams below any areas of discomfort or concern”.
Medico-legal reports
Reporting to the insurer on 27 March 2023, Dr Wallace, orthopaedic surgeon, diagnosed musculoligamentous strains to the lumbar and cervical spine together with a minor subchondral fracture of the distal right clavicle. In respect of causation a simple statement that the injuries are related is made. An assessment of whole person impairment is made of 7% related to a 5% impairment of the cervical spine and 2% of the right shoulder.
Dr Patrick in a report of the claimant’s solicitor dated 10 May 2023 took issue with the clinical findings of Dr Wallace. Dr Patrick assessed a 21% whole person impairment (5% neck, 10% back – diagnostic related estimate (DRE) III, 5% right shoulder, and 2% right hip).
RE-EXAMINATION
Mr. Frank Di-Filippo attended the Commission’s medical suites on 26 November 2024 accompanied by his wife. He was examined by Medical Assessor Assem.
Pre-accident medical history and relevant personal details
Mr Frank Di-Filippo is a 38-year-old, right-handed, self-employed Level 2 electrician, trading as Corporate Electrical alongside his brother. The business name changed in 2020. He has over 14 years of experience in the electrical trade, including a prior role with Spotless Asset Services, which transitioned into Spotless.
He lives with his wife, two sons, and his parents in Brownlow Hill, a suburb near Camden. He relies heavily on his wife and mother for housework. Before the accident, he was physically active, with no significant musculoskeletal complaints, chronic pain conditions, or surgical history. He reported no prior neck, back, shoulder, or hip problems, and there is no documentation of such conditions in his medical records.
History of the accident
On June 3, 2021, while driving his van at approximately 50-60kmph at Broughton Pass, a gorge near Appin, Mr Di-Filippo was involved in a head-on collision. A semi-trailer, traveling in the opposite direction, veered onto his side of the road and struck his vehicle. The collision forced his van into a guardrail, partially wedging it into the gorge. Although the van's airbags did not deploy, Mr Di-Filippo was wearing his seatbelt. The vehicle sustained significant damage, rendering it undrivable and necessitating towing from the scene. Bystanders assisted him in exiting through the passenger window, as the driver’s side was severely damaged.
Immediately after the accident, Mr Di-Filippo reported pain in his right shoulder and neck. Emergency services, including police and ambulance, responded to the scene. Paramedics documented right shoulder pain and an abrasion without deformity, along with the absence of midline spinal tenderness or sensory deficits. He was subsequently transported to Campbelltown Hospital for further evaluation.
History of symptoms and treatment following the accident
At Campbelltown Hospital, a CT scan of his cervical spine showed no acute fractures or abnormalities. A plain X-ray of his right shoulder was also normal, apart from mild acromioclavicular (AC) joint arthrosis. He was diagnosed with a cervical spine strain and a soft tissue injury to the right shoulder. He was discharged the same day with instructions to manage his symptoms conservatively using analgesia and a soft cervical collar for neck support.
On June 4 2021, Mr Di-Filippo consulted his general practitioner, Dr Soni, who noted persistent neck pain and right shoulder discomfort. An MRI of the right shoulder on 16 June 2021 revealed a muscle strain in the deltoid muscle, small intramuscular tears, mild marrow oedema at the acromion and scapular spine, and a possible subchondral fracture of the distal clavicle. He was referred to Dr Ray Chin, an orthopaedic surgeon, who reviewed the MRI findings and recommended conservative treatment, including the use of a sling and physiotherapy. Surgery was deemed unnecessary.
An X-ray of the right clavicle on July 20, 2021, confirmed healing cortical step at the distal clavicle. Chiropractic treatment was attempted during this time, but Mr Di-Filippo reported that it exacerbated his symptoms. On October 18, 2021, he began physiotherapy, which focused on restoring shoulder mobility and reducing neck stiffness. His progress was slow due to persistent pain. In April 2022, he received a cortisone injection in his right shoulder, which provided partial relief.
Mr Di-Filippo reported that his condition initially improved within the first year following the accident. However, by July 2023, he experienced a marked deterioration and was diagnosed with adhesive capsulitis (frozen shoulder). His physiotherapist documented a significant restriction in his right shoulder motion at that time.
When informed that there were no contemporaneous complaints of back pain documented in general practitioner or specialist records until a physiotherapy note dated 20 December 2021, which recorded upper back pain and difficulty sleeping over the preceding week, Mr Di-Filippo stated that he began experiencing lower back pain two to six months after the accident. Regarding hip pain, he acknowledged that during physiotherapy sessions approximately two years post-accident he began to report hip pain. Although he believes he mentioned this to his general practitioner earlier.
Present symptoms
Mr Di-Filippo reports intermittent neck discomfort that fluctuates in intensity. He rates his pain as 8/10 during the consultation, exacerbated by his partner driving him to the appointment from Camden. He states that his neck pain is predominantly localised to the right side, radiating to the right upper trapezius. The discomfort worsens with prolonged activities, such as sitting or driving. There are intermittent “pins and needles” involving he middle two fingers in his right hand. The Panel notes that Dr Patrick mentioned “pins and needles” but did not document a particular distribution, Dr Wallace noted “pins and needles” involving the tips of his finger and Medical Assessor Woo, fingertips and around the right thumb.
Mr Di-Filippo states that his shoulder initially improved 12 months post-accident but then deteriorated. He now experiences sharp pain at all times. He also reports a loss of grip strength in his right hand. He rates the shoulder pain as 8.5/10 at the time of consultation.
He reports that his upper back is fine, with no current complaints. He describes his lower back symptoms as fluctuating in intensity, dependent on his sitting posture. At the time of the consultation, he reports feeling fine, but states that symptoms often worsen at night or with awkward positions. He previously experienced radiation to his left leg, but this has resolved.
He states that his right hip pain is severe and describes it as "killing me." His symptoms improve temporarily with massage and acupuncture performed by his partner, who has studied nursing.
Since the accident, Mr Di-Filippo has transitioned to administrative work, working over 40 hours per week. He relies on subcontractors to perform the physical aspects of his business. His wife drives him to work and appointments due to discomfort during prolonged sitting or driving. He no longer performs housework and relies on his partner and mother for domestic tasks.
Details of any relevant injuries or conditions sustained since the accident
There were no other new injuries unrelated to the accident reported.
Clinical examination
Mr Di-Filippo appeared well and was not in visible physical distress during the assessment. He sat comfortably throughout the interview and ambulated with a normal gait. His height was recorded as 171cm, and his weight as approximately 83kg. At the outset of the examination, he was advised to avoid any manoeuvres that might cause pain or exacerbate his condition, and he complied with these instructions.
Cervical spine
Posture and appearance: Mr Di-Filippo had a normal cervical posture.
Palpation: tenderness was noted on the right paraspinal processes without associated muscle guarding or spasm.
Range of motion: cervical movements were restricted, with documented limitations as follows:
· flexion: approximately three-quarters of the normal range;
· extension: approximately half of the normal range;
· rotation:
oto the right: approximately three-quarters of the normal range, and
oto the left: normal, and
· lateral flexion: normal bilaterally.
Asymmetry of movement and spinal dysmetria were noted.
Neurological testing:
· neural tension signs: negative;
· reflexes: brisk and symmetrical in the upper limbs, and
· power: globally reduced in the right arm, primarily due to right shoulder pain. significant weakness in the right hand was observed, though this appeared to be related to lack of cooperation rather than true motor deficit.
Other findings:
· no calluses were noted on the hands, and
· muscle tone was normal, and there was no measurable difference in the circumference of the upper arms or forearms.
Thoracic Spine
Palpation: no tenderness, muscle guarding, or spasm was noted.
Range of motion: no limitations in thoracic mobility.
Lumbar spine
Palpation: tenderness was reported over the right sacroiliac joint, but no muscle guarding or spasm was identified.
Range of motion: symmetrically reduced across all planes, with approximately three-quarters of the normal range for flexion, extension and lateral flexion. Rotation was normal. There was no asymmetry of movement or spinal dysmetria.
The claimant had no difficulty climbing onto the examination couch. Straight leg raise was limited to 30 degrees on the right with back pain reported and 50 degrees on the left.
Neurological testing:
· neural tension signs: negative;
· knee and ankle reflexes: brisk and symmetrical bilaterally;
· power, tone, and sensation: all normal, and
· circumference: no measurable differences in the thighs or calves.
Upper extremity
Tenderness was present over the right AC joint and anterior aspect of the right shoulder. No joint crepitations detected. Active range of motion was tested multiple times and found to be relatively consistent on repeated attempts. Results were as follows:
Shoulder Movements
Right
Left
Flexion
90°
140°
Abduction
80°
120°
Adduction
20°–30°
40°
Extension
20°–30°
50°
External Rotation
20°–30°
60°
Internal Rotation
80°
80°
Lower extremity
Apart from a marked restriction in right hip flexion to 80 degrees, all other movements were normal.
Hip Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
80°
110°
Extension
0°
0°
Adduction
20°
20°
Abduction
30°
30°
Internal Rotation
30°
30°
External Rotation
40°
40°
Diagnosis, causation and reasons
Right shoulder (strain, partial tear, adhesive capsulitis)
The claimant sustained a right shoulder strain with partial muscle tears and subchondral fracture at the distal clavicle that was complicated by the subsequent development of adhesive capsulitis. His consistent complaints and imaging findings support a traumatic origin. He continues to have adhesive capsulitis as noted by the marked restriction in right shoulder external rotation. Although he considered his left shoulder to be ‘normal’ there was
a mild restriction in left shoulder motion without any discomfort reported.
Cervical spine (musculoligamentous strain)
The claimant sustained a whiplash injury caused by the abrupt deceleration and collision forces. Mild stiffness was noted intermittently during physiotherapy. The contemporaneous onset of symptoms immediately after the motor vehicle accident supports a direct causal relationship. He demonstrated slight asymmetry of motion and spinal dysmetria. However, the limitations were different to what was documented by other medical examiners. Medical Assessor Woo noted a symmetrical restriction in cervical movement. Dr Wallace documented similar asymmetry and Dr Patrick noted “definite” spinal dysmetria. There were also differences reported in the distribution of the “pins and needles” involving his right hand. The Panel has given him the benefit of the doubt (MAA Guidelines, paragraph 6.126, p 107) and awarded a DRE Cervicothoracic Category II or 5% whole person impairment (AMA 4, 3/104).
Thoracic spine
There are retrospective reports suggest thoracic strain, however, the absence of contemporaneous symptoms and diagnostic findings rules out a direct causal relationship with the motor vehicle accident. Nevertheless, his thoracic symptoms have subsided.
Lumbar spine (musculoligamentous strain)
There are retrospective reports of back pain with only mild degenerative changes on radiological imaging that is unrelated to trauma. There were no complaints of lower back pain documented in ambulance, hospital record or general practitioner records. In July 2023, his treating physiotherapy documented lumbar stiffness due to compensatory postural adaptations.
The absence of contemporaneous complaints and imaging findings strongly suggests no causative relationship with the motor accident.
Right hip
The assessment for the right hip revealed mild discomfort without supporting clinical or imaging evidence. It was determined that the discomfort was unlikely caused by the motor vehicle accident as no direct trauma was documented.
Given the mechanism of injury, it is plausible that he may have sustained a soft tissue injury to his right hip. However, the contemporaneous medical records do not support an ongoing hip injury. The ambulance report explicitly noted the absence of hip pain, and there were no recorded hip complaints in the hospital discharge records or early general practitioner consultations. While the Certificate of Capacity/Certificate of Fitness dated 24 June 2021—approximately three weeks post-accident – mentions right hip pain, this complaint was not followed up with any further hip complaints, medical investigations or treatment, suggesting that any soft tissue injury, if present, had resolved without lasting consequences.
Despite multiple interactions with treating doctors, physiotherapists, and specialists, there is no further mention of hip symptoms in the medical records until 18 June 2024, nearly three years after the accident. The first documented hip complaint at that time appears in the physiotherapy records, where it was noted that he was “starting to get hip pain.”
Given the substantial gap in reporting, the absence of documented medical concerns during regular treatment sessions, and the lack of early objective findings, the delayed onset of hip complaints does not support, on the balance of probabilities, a causal relationship with the motor vehicle accident.
Left leg
Similarly, the left leg showed retrospective reports of stiffness but there was no evidence linking the leg discomfort to the motor accident. His medical records showed no complaints of leg pain immediately following the accident or in the months thereafter. Mild left leg discomfort was only recorded in July 2023, linked to compensatory postural adaptations during physiotherapy. Thus, it was determined that on the balance of probabilities the left leg issues were not related to the motor accident.
WHOLE PERSON IMPAIRMENT
Right shoulder: the right shoulder injury, including strain, partial muscle tear, and subsequent adhesive capsulitis, is directly attributable to the motor accident. The condition has not reached maximum medical improvement (MMI), as evidenced by persistent and significant restrictions in shoulder motion, particularly in external rotation, which are consistent with the diagnosis of adhesive capsulitis. An accurate prediction as to when MMI will be reached is not possible, but a suggestion of a further six months before assessment can be undertaken is reasonable.
Cervical spine: caused by the motor accident, giving 5% whole person impairment.
CONCLUSION
The Panel finds that the following injuries were caused by the motor accident:
· cervical spine – soft tissue injury, and
· right shoulder – clavicle distal fracture.
The Panel has found a 5% whole person impairment due to the cervical spine injury which is not greater than 10%.
The right shoulder injury is not yet permanent and the Panel therefore declines to make an assessment of whole person impairment.
The Panel finds that the following injuries were not caused by the motor accident:
· lumbar spine – soft tissue injury;
· thoracic spine – soft tissue injury;
· right hip – soft tissue injury, and
· left leg – soft tissue injury.
The findings of the Panel differ from that of the medical certificate of Medical Assessor Woo and accordingly the certificate of Medical Assessor Woo is revoked and a new certificate is issued by the Panel at the beginning of these reasons.
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