AAI Limited t/as GIO v Djuric
[2025] NSWPICMP 33
•16 January 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as GIO v Djuric [2025] NSWPICMP 33 |
CLAIMANT: | Mile Djuric |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Terence O’Riain |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Michael Couch |
DATE OF DECISION: | 16 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017 (MAI Act); permanent impairment; review; insurer’s application; Certificate of Medical Assessor Herald dated 21 February 2024 assessed 17% whole person impairment; accident 25 November 20121 deducting 5% pre-accident permanent impairment for DRE II from DRE IV lumbar spine fusion revision; no reasons given for calculating 5%; claimant injured in 1986 (knee), 2009 (lumbar spine) and November 2020 (aggravation of lumbar spine and complaints of bilateral shoulder injuries); claimant re-examined; further submissions on calculating pre-injury impairment; lumbar fusion is multilevel structural compromise under Motor Accident Guidelines therefore DRE IV to be deducted from DRE IV; pre-accident shoulders’ impairment calculated by analogy at 2% for each shoulder; combined impairment certificate; different findings to original assessment; Held – different clinical findings to original assessment; Panel revoked and replaced original medical certificate and combined impairment certificate; permanent impairment not greater than 10%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel assessment of degree of permanent impairment Replacement certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. The Review Panel has assessed that the accident caused injuries with a different permanent impairment to Medical Assessor Herald's assessment and certificate issued on 21 February 2024. 2. Accordingly, the Review Panel revokes the earlier certificate and issues a new Permanent Impairment Certificate assessing the claimant’s permanent impairment from the subject accident as 10%. 3. Medical Assessor Fitzsimons’ certificate dated 3 February 2024 found the claimant’s referred head injury was not related to the subject accident. 4. Accordingly, this Review Panel revokes Lead Medical Assessor Herald’s combined assessment certificate dated 6 June 2024 and issues a replacement combined assessment certificate under s 7.26 (8) of the Motor Accidents Injuries Act 2017 stating the combined injuries caused by the accident were assessed at permanent impairment of 10% which is not greater than 10%. 5. The accident caused injuries with a total percentage permanent impairment of 10%. The total permanent impairment is not greater than 10%. |
REASONS
BACKGROUND
These reasons address permanent impairment disputes under the Motor Accident Injuries Act 2017 (MAI Act).
On 25 November 2021, Mile Djuric (the claimant) passed through the intersection on a green light when a vehicle entered the intersection from the left-hand side and squarely struck the front left corner of his car. The impact moved the claimant’s car across the road and up onto the lawn of a nearby house. The impact severely damaged the car, which was written off.
The claimant had undergone L5/S1 fusion for a work injury in 2009. It is not disputed that the subject accident loosened that fusion, which made further surgery necessary to revise the decompression and fusion.
The claimant was also in a rear end collision on 8 November 2020, which also caused his lumbar spine to be symptomatic.
The claimant was also experiencing other conditions before the subject accident, which will be addressed in the Review Panel’s clinical examination report.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages and statutory compensation under the MAI Act. The insurer denied liability for non-economic loss damages on the basis the claimant’s injuries did not satisfy the permanent impairment threshold of greater than 10% under the MAI Act.
The claimant applied to the Personal Injury Commission’s (Commission) for medical assessment of the permanent impairment dispute.
The Commission referred the following injuries to Medical Assessor Jonathon Herald for assessment on the question of permanent impairment:
(a) cervical spine injury;
(b) shoulder (right) – rotator cuff tendinitis and difficulty moving shoulder;
(c) shoulder (left) – rotator cuff tendinitis and difficulty moving shoulder;
(d) chest Injury (incomplete fracture to right 5th and 6th rib);
(e) thoracic spine injury – small wedge compression fracture L1 and anterior L3 cortex fracture;
(f) lumbar spine injury resulting in a L5/S1 laminectomy and L5/S1 nerve root decompression with redo pedicle screw posterolateral fusion with Dr Simon McKechnie on 16 November 2022;
(g) surgical scarring;
(h) pelvis/hip injury (bilateral), and
(i) bilateral knee injury.
Medical Assessor Herald assessed the claimant’s physical injuries on 31 January 2024. He issued a certificate dated 21 February 2024[1] assessing permanent impairment under Schedule 2, s 2(a) of the MAI Act.
[1] Insurer’s Review Application A2 page 3.
He found the accident caused all the referred injuries.
Medical Assessor Herald assessed the permanent impairment as:
· cervical spine injury 0%;
· shoulders 0% (after deducting 13% of pre-accident permanent impairment);
· chest injury 0%;
· thoracic spine 0%;
· lumbar spine 15% (after deducting 5% for pre-accident permanent impairment);
· scarring 2%;
· pelvis/hip 0%, and
· right knee 0%.
The permanent impairment assessment was 17%, which established that the claimant could claim non-economic loss damages under s 4.11 of the MAI Act.
The insurer applied to the President of the Commission for review stating that Medical Assessor Herald’s original assessment was incorrect in a material respect, and the Medical Assessor failed to provide a proper path of reasons for deducting only 5% permanent impairment for the lumbar spine, when the claimant’s spinal condition was symptomatic before the subject accident and had undergone the same level fusion in 2009.
The Commission’s presidential delegate referred the medical assessment to a Review Panel (this Panel) on 9 May 2024.[2] The delegate agreed with the insurer’s submissions.
[2] Section 7.26(5) of the MAI Act.
There was also a claim for permanent impairment arising from a head injury in the subject accident. Medical Assessor Fitzsimons’ certificate dated 3 February 2024 found the referred head injury was not related to the subject accident. This finding was not disputed.
Accordingly, Medical Assessor Herald issued a combined assessment certificate dated 6 June 2024. This Panel will issue a further combined assessment certificate.
STATUTORY PROVISIONS
The statutory provisions, relevant case law on causation and the applicable Motor Accident Guidelines 9.2, which was published on 2 March 2023 (Guidelines) are set out at Appendix A.
Assessment under review
Medical Assessor Herald relied on Medical Assessor Gorman's minor injury assessment dated 19 October 2022, which was 11 months after the subject accident to establish the claimant's permanent impairment status before the subject accident and apportion permanent impairment between the two accidents on 18 November 2020 and the subject accident.
Using the range of motion (ROM), which Medical Assessor Gorman measured and attributed to the earlier accident, Medical Assessor Herald assessed the existing ROM as 13% and deducted that from the permanent impairment at 9% for the subject accident to produce 0% permanent impairment.
He applied the same reasoning to assessing the cervical, thoracic and lumbar spine injuries as the claimant’s status before the subject accident.
He measured the cervical and lumbar spine injuries as diagnosis-related estimate (DRE) II and the thoracic spine as DRE I.
He assessed the pre-accident scarring as 0% as a best fit and calculated 2% for the subject accident's scarring caused by the revisionary operation, because "his spine is a lot worse now than his pre-accident status…"
In respect of the lumbar spine, he deducted 5% for the claimant’s pre-accident impairment and deducted that from 20% permanent impairment calculated for the post subject accident, based on the claimant’s repeated decompression and fusion.
He did not set out reasons as to why he chose that level of pre-accident impairment.
Matters considered and decided by the Panel
The Panel met on 20 June 2024 to discuss how this matter may proceed. The parties considered the submissions set out in Appendix B.
This is a dispute, in part, about whether there was enough or the correct kind of information to assess impairment existing before the subject accident, and how that should be deducted from the impairment the accident caused or materially contributed to.
The Panel considered it necessary to re-examine the claimant due to other injuries including the shoulders and scarring, which may make a material difference to the outcome.
The Panel directed the parties to provide any general practitioner (GP), physiotherapy or shoulder specialist Dr George Murell's clinical notes created before the subject accident, and in particular between the subject accident and the accident on 8 November 2020.
Medical Assessors Moloney and Couch undertook to re-examine the claimant on behalf of the Panel on14 August at 2.30pm with a Serbian interpreter.
PANEL FINDINGS
Documentation
The Panel considered the documentation in the parties’ bundles. That is listed in Appendix C
Re-examination
Mr Djuric attended the Commission’s medical suites on 14 August 2024 with his wife. His wife remained in the waiting room.
An accredited Serbian speaking interpreter attended throughout the interview and examination.
Medical Assessors Couch and Moloney interviewed and examined the claimant regarding the subject accident.
Pre-accident history
Mr Djuric stated that he had right knee surgery in 1986 after an accident. He also states that he injured his lower back when he was carrying heavy plasterboard sheets at work.
In 2009 Dr McKechnie treated that injury when he performed an L5/S1 laminectomy and L5 S1 fusion. He was put on a disability pension after this injury and did not return to work.
Dr McKechnie's reports refer to Mr Djuric consulting him on 14 May 2019. Mr Djuric complained of chronic lower back pain radiating intermittently through both legs and into the calves. The lumbar spine CT scan demonstrated the internal fixation in a good position without an obvious complication. A follow-up MRI scan of the previous operation site appeared good with no significant stenosis. Dr McKechnie advised him to manage the pain with intermittent analgesics.
When Dr McKechnie saw Mr Djuric after the subject accident on 8 February 2022, he confirmed that he had successfully managed his pain after the 2019 consultation until the subject accident.
Regarding the car accident on 18 November 2020, he was driving his car when another car rear-ended him causing his car to collide with the car in front. He states that accident caused pain in the neck, lower back and the left shoulder region. His GP referred him to Prof Murrell, shoulder specialist after that accident.
After a consultation on 9 June 2021 at Prof Murrell’s rooms, it was recorded on that specialist’s letterhead that he had bilateral shoulder pain which was worse on the right and on examination a painful, moderately restricted range of shoulder motion with a positive impingement sign and mechanical impingement. An ultrasound at that time reported tendinopathy and impingement bilaterally. Prof Murrell applied to have a repeat ultrasound of the shoulders and x-rays. The relevant insurer apparently denied funding so that did not occur.
Mr Djuric told the Medical Assessors that although he already had low back pain at the time of the subject accident, it has now increased. He stated that his shoulders were okay at the time of the subject accident, despite Prof Murrell assessing problems with the shoulders only five months before the subject accident.
History of the motor accident.
On 25 November 2021, Mr Djuric was driving his Kia car when another car failed to give way and squarely hit the front left corner of his car causing it to spin and move to the other side of the road. Police and ambulance officers attended the accident, and he was taken to Bankstown Hospital. At that time, he states that he had shortness of breath, whiplash injury to his neck, thoracic fractures and a sternal fracture. His son was travelling in another car and recorded the accident on dashcam. This film verifies the impact sustained at that time.
History of symptoms and treatment following the accident
Mr Djuric remained at Bankstown Hospital overnight and discharged himself the next day as he was concerned about Covid. He consulted his GP Dr Tomka, the next day and was given analgesics. Dr Tomka referred him to physiotherapy and then referred him to orthopaedic surgeon Dr Matthew Giblin.
Dr Giblin referred him for a bone nuclear scan and arranged cortisone injections to the shoulders. He was later referred to Dr McKechnie, his original neurosurgeon. Dr McKechnie organised further investigations and a cortisone injection at the L5 S1 level.
Due to apparent loosening of the screws at the previous L5 S1 fusion level, Dr McKechnie undertook a revision decompression laminectomy at the L5 S1 level and a revision fusion on 6 November 2022.
Mr Djuric now considers that there was no benefit from this procedure or from the various cortisone injections.
The last consultation with Dr McKechnie was one month before this re-examination who advised that no further surgical procedures were warranted and referred him to a pain specialist, Dr David Manohar. The insurance company has declined to fund that treatment.
He was also referred to orthopaedic surgeon Dr Chandra Dave. Dr Dave examined Mr Djuric on 28 April 2023. After assessing the MRI and examining him, Dr Dave diagnosed degenerative changes in the knees but stated there was no need for any specific surgical interventions. The last consultation with Dr Dave was in June 2024.
Current symptoms
Mr Djuric has continued pain in the right knee anteriorly which increases after walking short distances. He has anterior right shoulder pain which radiates up to the lateral side of his neck and in the last 6 weeks he has developed headaches which increased with extension of the cervical spine. The arms are asymptomatic, and he has occasional pain in the left shoulder with a cracking sensation.
There is persistent low back pain which is centrally located and radiates into the gluteal muscles and in the last two or three months he has developed anterior thigh pain to the mid-thigh level which is constant and increases with walking. There is long-term pain radiating down the posterior side of his legs and lateral shins to the toes. He stated that after the revision operation he had relief for a few months, but the pain has recurred.
Current treatment
Mr Djuric’s present medication is Endone 5mg one to two per day, Cymbalta 60mg One-A-Day, ibuprofen with codeine three to four per week for headaches, Zoton for reflux and medication for hypertension and diabetes. He consults his GP when necessary and Dr McKechnie if needed and he had an appointment coming up with Dr Manohar on 28 August 2024. No manual therapy is being undertaken at present and he exercises occasionally in a swimming pool.
Clinical examination
Mr Djuric walked into the rooms with a kyphotic[3] posture and flat affect. He states that he is right-handed. Weight was 101kg and height 182cm without shoes.
[3] Kyphosis is a spinal deformity that causes the upper back to curve forward abnormally, resulting in a rounded or "humpback" appearance.
Cervical spine
On inspection of the cervical spine there was a marked forward head posture. On testing range of movement, there was a full range of flexion, and extension was limited to 30% of expected range. Rotation and side bending were both 50% of expected range bilaterally. On palpation there was tenderness over the T1-TT spines and right trapezius muscle.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. The circumferences of the upper arms were 34cm on the right and 33cm on the left (which is consistent with a right-handed man) at 10cm above the olecranon process and in the upper forearms 28cm bilaterally.
Thoracic spine
On inspection there was a kyphotic contour with flexion/extension side bending and rotation were 75% of expected range with no asymmetry. On palpation there was tenderness over the upper thoracic spines at T1 and T2, but no guarding or spasm was noted in the thoracic musculature. There are no signs of radiculopathy or non-verifiable radicular complaints in the thoracic spine region.
Lumbar spine
On inspection, there is a large 10cm surgical scar over the lumbar spine which has 2mm width and visible sutures. There is slight colour contrast compared to the surrounding skin with no adherence or trophic changes. This is the same scar for the 2009 surgical procedure and the latest revision. There is also a prominent rash in the natal cleft which has the appearance of psoriasis. On palpation there was tenderness over the L5/S1 spines and paravertebral muscles with some guarding noted. There is minimal lordosis on inspection.
On neurological examination of the lower limbs
Mr Djuric had great difficulty walking on his heels and toes and squatting due to low back pain. Flexion was limited to 50% of expected range with minimal extension and side bending was 50% of expected range. Some muscle wasting was noted over the right quadriceps muscle. The examiners measured circumference of the lower thighs with 48.5cm in the right and 51cm on the left (10cm above the superior patella pole and at the maximum circumference of the calves 42cm in the right and 41.5cm on the left).
Knees
On inspection of the knees, there is an antero-medial surgical scar on the right knee from the 1986 procedure. On testing range of movement, both knees had 120° of flexion and 0° extension. The girth of both knees was 44cm with no effusions apparent. No ligament laxity was noted on testing and on palpation there was tenderness over the medial joint line more so on the right knee. There was right knee mild crepitus on loading the medial patellofemoral compartments.
Shoulders
On palpation there was tenderness over the anterior right glenohumeral joint and right trapezius muscle. There was a decrease in range of movement of both shoulders when tested in measured using a goniometer. There was a positive impingement tests on the right. Mr Djuric stated that the limitation of movement of the right shoulder was due to pain in the glenohumeral joint region.
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
120°
140°
Extension
40°
50°
Adduction
20°
20°
Abduction
100°
150°
Internal Rotation
70°
90°
External Rotation
80°
90°
Recent lumbar spine radiological studies dated 10 May 2024 showed the hardware with screws inserted in the L5/S1 region with persistent spondylolisthesis. X-rays of the knees on the same date showed mild arthritic changes and reasonable joint space on weight-bearing bilaterally.
Causation and whole person impairment (WPI)
Cervical spine – soft tissue injury
There was documentation that Mr Djuric sustained a soft tissue injury to his cervical spine at the time of the accident which was described as a whiplash injury as he was complaining of neck pain at Bankstown Hospital on the day of the accident.
At the time of this examination, there was decreased extension in comparison to flexion on testing range of movement, but this was related to his forward head posture and kyphosis. The Panel did not consider that this was a functional asymmetry. There was tenderness in the right trapezius muscle, but no guarding or spasm was noted. There were no signs of radiculopathy or non-verifiable radicular complaints in the upper limbs. This is a classification of DRE l which is 0% WPI.
Thoracic spine – soft tissue injury
The Panel notes the insurer’s submission regarding the alleged injury to the thoracic spine, the claimant’s application sought assessment of “a small wedge compression fracture of L1 as well as an anterior L3 cortex fracture” – i.e., injuries to the lumbar spine, as opposed to the thoracic.
However, there was documentation of a soft tissue injury to his thoracic spine at the time of the accident which was mainly related to the impact of his chest on the steering wheel. On examination, there was no asymmetry when testing range of movement in flexion/extension, side bending and rotation which were all 60% of expected range. There was no guarding or spasm in the thoracic musculature and no signs of radiculopathy or non-verifiable radicular complaints. This is a classification DRE l which is 0% WPI.
The chest condition, consisting of incomplete fracture to right 5th and 6th rib had resolved.
Lumbar spine – L5/S1 fusion
Mr Djuric was complaining of back pain on his admission to Bankstown Hospital. There had been pre-existing low back pain and a previous L5/S1 laminectomy, microdiscectomy and fusion with pedicle screws in 2009 by Dr McKechnie. The subject accident loosened the pedicle screws which the same surgeon treated with revision fusion at the L5/S1 spinal level on 6 November 2022.
The Panel considered the revision spinal fusion at the same level (L5/S1) in November 2022, had to be classified as DRE Lumbosacral Category IV, giving 20% WPI. (Note that there is no provision in the Guidelines or AMA4 for assessing permanent impairment for any additional surgery.)
The controversy remained about how the pre-accident permanent impairment for the earlier fusion, which was largely asymptomatic before the relevant accident should be calculated.
The Panel considered the parties’ earliest submissions and those that have been produced for this review.
The Panel sought further submissions on how to address the divergence of methods between Dr Bodel’s[4] and Medical Assessor Herald’s outcomes with Dr Gothelf’s outcome in his report dated 16 November 2023.[5]
[4] Djuric Claimant’s Submissions and Supporting evidence page 16.
[5] Insurer’s Review Bundle A3 page 14.
The Panel’s outcome is discussed below in the deliberations.
Hips/pelvis – soft tissue injury
On the day the accident Bankstown Hospital recorded that there was no pelvic tenderness or instability. The current gluteal pain and radiation into the anterior thighs is a recent occurrence and related to the lumbar spine suffered in the subject accident and not an actual injury to the pelvis or hip joints.
The Panel considered there was a Nguyen[6] factor because the spinal injury suffered in the accident caused these secondary injuries
[6] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
The hips and pelvic soft tissue injuries are 0% WPI with no loss of movement of the hip joints and persistent pain in the gluteal muscles with more recent right anterior thigh pain. There is no additional permanent impairment for the lumbar spine.
Right and left knee – soft tissue injury
Bankstown Hospital documented that Mr Djuric felt right knee pain immediately after the accident. There had been previous right knee surgery in 1986 with osteoarthritis developing since then. An MRI dated 11 July 2022 recorded meniscal degeneration without a tear and chronic partial thickness injury to his right anterior cruciate ligament (ACL) but no full-thickness rupture.
Although there were delays in reporting additional symptoms in the right knee and any left knee symptoms, the Panel finds the mechanism of the accident was sufficient to cause impacts on both knees; cause the changes demonstrated in the MRI on the right knee and aggravate osteoarthritis, because there were no other intervening causes of knee pain before the subject accident or since then.
When the Panel examined Mr Djuric, he showed tenderness over the medial joint line on the right with mild crepitus and patellofemoral tenderness on palpation. The Panel calculated WPI using Table 62 of AMA 4th edition in the footnote as there was patellofemoral pain and some crepitation on examination without joint space narrowing which is 2% WPI.
The Panel found 0% WPI for the left knee as there was no crepitus.
Shoulders – soft tissue injuries
Bankstown Hospital did not record shoulder pain and tested to find a full range of movement The treating GP Dr Tomka on 29 November 2021 recorded pain in both shoulders. Dr Tomka also recorded pain in the shoulders on his examination on 19 November 2020 after an accident on the day before that consultation. The GP referred Mr Djuric to Prof Murrell, an orthopaedic shoulder specialist who wrote on 9 June 2021 that Mr Djuric had injured his shoulders in an accident on 18 November 2020 and when he examined him, he recorded pain for moderately restricted range of movement with positive impingement sign and mechanical impingement with weakness in supraspinatus testing.
Mr Djuric told the Panel’s Medical Assessors that the professor did not personally assess him, but rather it was an assistant doctor who examined him and must have reported to the professor.
Mr Djuric was more asymptomatic in the right shoulder associated with right trapezius muscle pain and tenderness over the glenohumeral joint with a positive impingement test on the right
The Panel’s decision on these body parts are set out below.
Scarring – surgical scar to the lumbar spine
The surgical scar was in the same location as the 2009 fusion surgery. There were no photos or workers compensation reports that showed or commented on the earlier scarring to compare with the current scar. The claimant did not comment on it either.
The Panel decided there was insufficient objective evidence to determine whether there was an increase in scar prominence after the second operation. Following clause 6.31 of the Guidelines that lack of objective evidence prevents this Panel assessing pre-existing impairment arising from the scarring.
Dr Gothelf’s report had offered his assessment of the scarring as it was now, but did not attempt to calculate pre-existing scarring. Medical Assessor Herald calculated 0% pre-existing permanent impairment, but that was on his opinion it was worse since the relevant accident. He did not refer to evidence supporting that opinion but relied on “the best fit”.
The Panel considered the table for the evaluation of minor skin impairment (TEMSKI). The claimant was conscious of the scar, inspection showed a noticeable contrast with the surrounding skin, it did not require treatment and there were contours and marks visible. 2% permanent impairment was considered the best fit.
PANEL DELIBERATIONS
The Panel conferred after the re-examination and adopted the examination report with its conclusions and impairment assessment as evidence.
The Panel decided the subject accident caused the injuries referred to the Panel.
The Panel considered that claimant was also injured in a car accident on 8 November 2020, which triggered a referral to shoulder surgery specialist Prof George Murrell to check bilateral shoulder pain arising after that accident.
The Panel noted the professor wrote on 9 June 2021 to Mr Djuric’s GP referring to a possible “rotator cuff tear frozen shoulder right and left shoulder.”
The Panel noted that the professor’s letter does not contain any reference to ROM testing.
Medical Assessor Herald based his estimate of existing shoulder permanent impairment on Medical Assessor Gorman’s certificate dated 19 October 2022 assessing minor injury including range of movement for the 2020 accident. This Panel considers it would be an error to use Medical Assessor Gorman’s assessment to calculate permanent impairment to deduct from the current permanent impairment because that assessment was conducted 11 months after the subject accident.
The Panel concluded that on the basis of how the subject accident is described it was sufficient to injure or aggravate both of the claimant’s shoulders. The insurer denies this on the basis of Prof Murrell’s examination.
Accordingly, the Panel sought further submissions on whether there was sufficient clinical information to calculate bilateral shoulder and lumbar spine impairment existing before the accident in accordance with clauses 6.31-6.33 of the Guidelines.
The claimant’s further submissions dated 22 October 2024 did not address the shoulder questions. The insurer’s further submissions dated 5 November 2024 submitted that the pre-accident records established significant pathology in both shoulders with objective evidence of impingement and restricted range of movement just five months before the subject accident when Prof Murrell saw the claimant and it would not be relevant which medically qualified member of his staff examined the claimant.
The insurer submits Prof Murrell’s report dated 9 June 2021 satisfies clause 6.31 of the Guidelines’ requirement for objective evidence of pre-existing impairment. It may be convenient when present, but it is not necessary to record range of movement’s measurements. That is, the Panel may use its professional judgment as to the degree of impairment considering the objective evidence of its presence.
The Panel decided it would not rely on Prof Murrell, or his junior doctor’s finding, because the Panel considered it did not satisfy clause 6.32 of the Guidelines because it was not sufficiently reliable to calculate permanent impairment.
The Panel was satisfied though that there was a pre-accident permanent impairment due to the complaints following the earlier accident leading to the referral to Prof Murrell, and because the claimant’s work history of applying plaster board in construction, which requires constantly extending the shoulders under loading.
The Panel agreed it was appropriate to assess the pre-accident permanent impairment using analogy with “mild crepitus of the acromioclavicular joint” (Tables 18 and 19 of AMA 4), which Medical Assessors and Review Panels use when active ROM cannot be measured.
This method results in a 2% WPI deduction for each shoulder. Accordingly net impairments arising from the subject accident would then be 5% WPI right, and 1% left.
In respect of the lumbar spine, it is possible that Medical Assessor Herald’s certificate relied on the Guidelines Table 6.7 on Assessing Spinal Impairment – DRE category to find Mr Djuric had “Previous spine operation without radiculopathy” and assessed it as a DRE category II., but he did not state that was his basis for assessing 5% permanent impairment existing before the subject accident.
In respect of the lumbar spine, the claimant submitted it was open to assess the pre-existing lumbar spine category as DRE II, noting that there was no evidence of symptomatic radicular complaints referring to Table 6.7 as being appropriate to assess the lumbar spine’s pre-accident permanent impairment.
The Panel considered whether it could be open to assess the existing lumbar spine impairment to deduct on that basis. The parties made brief additional submissions on whether that is appropriate.
In respect of the lumbar spine the insurer maintained its earlier submissions to Medical Assessor Herald in urging the Panel to follow Dr Gothelf’s method and deduct DRE IV from DRE IV.
The claimant submitted that although Dr Gothelf relied on the report of recurrent back and intermittent leg pain to justify DRE IV from DRE IV, Dr McKechnie’s evidence supported grading Mr Djuric’s lumbar spine impairment status at the date of the subject accident as “Previous spine operation without radiculopathy” attracting DRE II.
Dr Bodel referred to the multi-level structural compromise, but because the lumbar spine fusion was asymptomatic before the subject accident then it was his opinion the fusion should be ignored when calculating pre-accident impairment following clause 6.31 of the Guidelines.
The Panel has discussed these submissions at length and what work Table 6.7 of the Guidelines has to do when there has been an earlier spinal operation.
The Panel considered the finding in AAI Limited t/as GIO v Dell (No 1) [2024] NSWPICMP [200-217], where Medical Assessor Couch and the balance of that panel considered a claimant who had cauda equina then spinal surgery before the relevant accident, which aggravated the cauda equina. That panel found that the condition had worsened after the accident and that the pre-accident impairment deducted from the accident caused impairment left a positive balance.
However, this Panel is of the opinion that the claimant’s current DRE IV should be subtracted from DRE IV because of the pre-existing impairment for the following reasons:
(a) the Guidelines state at clause 6.145: “Multilevel structural compromise also includes spinal fusion and intervertebral disc replacement”. Spinal fusion accordingly does not equate with “Previous spinal operation without radiculopathy”.
(b) From Table 6.7 of the Guidelines, and page 102 of AMA 4, multilevel structural compromise is automatically assigned to DRE Lumbosacral Category IV, giving 20% WPI. (If there is additional radiculopathy, this becomes DRE V – this does not apply in this case.)
(c) The Panel does not agree with Dr Bodel’s findings that 0% was the appropriate pre-accident permanent impairment because the 2009 fusion by itself is objective evidence of symptoms under clause 6.31 of the Guidelines, whether or not it leads to complaints or further treatment.
(d) There was a multilevel structural compromise before the subject accident which must be deducted from the subsequent multilevel structural compromise.
(e) Following the 2009 spinal fusion at L5/S1, there was 20% WPI. This remained the situation immediately before the 2021 accident.
Accordingly, deducting 20% from 20% nets lumbar spine permanent impairment at 0%.
Panel decision
The Panel found that the subject accident caused the following injuries:
· cervical spine injury;
· shoulder (right) – rotator cuff tendinitis and difficulty moving shoulder;
· shoulder (left) – rotator cuff tendinitis and difficulty moving shoulder;
· chest injury (incomplete fracture to right 5th and 6th rib) resolved;
· thoracic spine injury – soft tissue;
· lumbar spine injury resulting in a L5/S1 laminectomy and L5/S1 nerve root decompression with redo pedicle screw posterolateral fusion with Dr Simon McKechnie on 16 November 2022;
· surgical scarring;
· pelvis/hip injury (bilateral), and
· bilateral knee injury.
The Panel found that the following injuries were symptomatic, but were assessed as 0% permanent impairment:
· cervical spine – soft tissue injury;
· thoracic spine – soft tissue injury;
· lumbar spine – pre-accident permanent impairment deducted;
· left knee, and
· pelvis/hip injury (bilateral).
The Panel considered that the following injuries caused permanent impairment above 0%:[7]
· right shoulder – soft tissue injury at 5%;
· left shoulder – soft tissue injury at 1%;
· scarring at 2%, and
· right knee at 2%.
[7] See appendix D.
Permanent impairment
The subject accident caused injuries with total percentage permanent impairment of 10%, which does not satisfy the threshold for non-economic loss damages.[8]
[8] Section 4.11 MAI Act.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. Zero percent WPI indicates that the accident caused an injury and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.
Conclusion
The Panel has assessed that the accident caused injuries with a different permanent impairment to Medical Assessor Herald’s assessment and certificate dated 21 February 2024.
Accordingly, the Panel revokes the earlier certificate and issues a new Permanent Impairment Certificate.
This Panel also revokes Lead Medical Assessor Herald’s combined assessment certificate dated 6 June 2024 and issues a replacement combined assessment certificate under s 7.26 (8) of the MAI Act stating the injuries caused by the accident were assessed at permanent impairment of 10% which is not greater than 10%:
The subject accident caused injuries with a total percentage permanent impairment of 10%. The total permanent impairment is not greater than 10%.
Each Panel member has reviewed this decision and agreed with the findings.
APPENDICES
APPENDIX A
Statutory Provisions
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 9.2 (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 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.
6.7 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.”
Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation.
The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise 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”.
Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation. “Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
The Civil Liability Act 2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] 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. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI Acts.
Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Guidelines “Pre-existing impairment”
6.31 “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.
6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.
6.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident…
Multilevel structural compromise
6.143Multilevel structural compromise (Table 70, page 108, AMA4 Guides) refers to those DREs that are in categories IV and V. It is constituted by structural inclusion, which by definition (page 99, AMA4 Guides) is related to spine fracture patterns and is different from the differentiators and clinical findings in Table 6.8.
6.144Multilevel structural compromise must be interpreted as fractures of more than one vertebra. To provide consistency of interpretation of the meaning of multiple vertebral fractures, the definition of a vertebral fracture includes any fracture of the vertebral body or of the posterior elements forming the ring of the spinal canal (the pedicle or lamina). It does not include fractures of transverse processes or spinous processes, even at multiple levels (see also clause 6.149 in these Guidelines).
6.145Multilevel structural compromise also includes spinal fusion and intervertebral disc replacement.
6.146Multilevel structural compromise or spinal fusion across regions is assessed as if it is in one region. The region giving the highest impairment value must be chosen. A fusion of L5 and S1 is considered to be an intervertebral fusion…”
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under 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.
APPENDIX B
Submissions
Claimant’s submissions
From paragraph 37 the claimant submits:
"…one must consider medical determination of whether the alleged factor (i.e. the motor accident) could have caused or contributed to worsening of the impairment of the injury and one must also consider the factual elements of the causation of the injuries, which is the non-medical determination of the issues. As such, diligent reference to contemporaneous medical evidence (which are provided in support of this application) is often needed in respect of factual element as well.
38. The claimant suffered generalised lower back pain since 2009. This was reported to the GP. He was referred to predominantly conservative management, but he continued to function without any relevant impediments, and as evident in the treating GP’s records, there had been no evidence of radicular complaints or plans for specialist intervention, ongoing complaints or similar issues in the months or years immediately prior to the subject motor vehicle accident.
39. The claimant’s pre-existing radiological reports which have been detailed and summarised by Member Herald (page 7 & 8) do not show evidence of potential complications in the lumbosacral levels (example MRI report of the scan lumbosacral spine taken on 9 May 2019 shows L5/S1 laminectomy and fusion with excellent decompression.)
40. As evident in the material attached, prior to the accident the claimant managed his residual lower back pain prior to the subject accident, as reported in the medical report of his treating surgeon Dr McKechnie dated 1 May 2023:
‘It is my opinion that Mr Mile Djuric’s signs and symptoms are consistent with the motor vehicle accident on 25 November 2021 as it was described to me. The onset of the increased lower back and new radicular leg pain was related to this injury. He had previously undergone a L5/S1 fusion at Liverpool public hospital in 2009. Although he had some residual lower back pain, he was managing this very well for 12 years until the motor vehicle accident in 2021. The current symptoms and subsequent need for further surgery is principally due to the motor vehicle accident on 25 November 2021 for the reasons explained above. Following the 2021 motor vehicle accident, there is CT and bone scan confirmation of loosening of the L5/S1 instrumentation. Historically this has occurred following the 2021 accident.’”
Earlier in the submissions, the claimant submits as follows why it was open to Herald to find as he did, even though he did not express it in his reasons.
“14. In the cases of apportioning a spinal impairment the guidelines and the AMA4 Guide provides that firstly the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The claimant submit that Member Herald followed this methodology and that his findings are correct and in accordance with the Guidelines and the AMA4 Guide.
15. Member Herald clearly outlined the claimant’s pre-accident medical history, including the laminectomy and L5/s1 fusion performed by Dr McKechnie in 2009. Member Herald also noted the claimant’s submission and the insurer’s submissions in reply. The member made an adequate assessment of the pre-existing impairment by allowing a DRE category 2 for his lumbar spine considering the injured person’s pre-accident status. He applied a reduction of 5% WPI in relation to the lumbar spine and no reduction in relation to the revision surgery, noting that the scar is a lot worse to the pre-accident status.
16. Contrary to the insurer’s allegations that the Member should have applied a reduction of 20% on account of the previous surgery performed in 2009, the claimant submits that this methodology and apportionment required by the insurer is not appropriate. The Guidelines and the AMA4 Guide allow the medical examiner to estimate the pre-existing spine problem. As such it was open to the Member to assess the pre-existing lumbar spine category as a minor impairment or a DRE II, noting that the was no evidence of symptomatic radicular complaints. The Guidelines clearly provide for an appropriate assessment of the spine (Table 6.7 – a modified version of Table 70 of the AMA4 Guide, page 108) for the previous spine operation without radiculopathy (as was the case with Mr Djuric) and table 6.7 Assessing Spinal Impairment – DRE category dictates that the ‘Previous spine operation without radiculopathy’ is to be assessed as a DRE category II.”
Insurer’s submissions
The insurer referred to vehicle accidents on 21 May 2015 and 18 November 2020.
The 2015 accident led to complaints about the lower back with radiating symptoms in both limbs.
The 18 November 2020 accident caused injuries to the following:
· neck
· back
· lower back, with complaints radiating into both legs
· both shoulders
The claimant's treating neurosurgeon Dr Simon McKechnie produced notes with pre-subject accident imaging studies:
· cervical spine MRI scan dated 21 April 2020 of the C6/7 disc which complex and potentially the left C7 nerve root.
· Right shoulder ultrasound dated 29 April 2021 showing subacromial bursitis and sub- scapularis/supraspinatus tendinosis.
· Left shoulder ultrasound dated 12 May 2021 showing supraspinatus tendinosis and the subacromial/subdeltoid bursitis with impingement.
Regarding the lumbar spine, although scans showed the claimant suffered a small wedge compression fracture at L1 and anterior L3 cortex fracture those injuries have healed without complication.
The insurer's submissions regarding the claimant's DRE status before and after the subject accident are contained in the body of this decision.
The insurer disputes that the claimant's lower back pain was not present before the accident and provides references in clinical notes for his GP and treating neurosurgeon supporting that submission.
The insurer urged the Medical Assessor to reject Dr Bodel's opinion that 0% impairment before the accident, as it is an incorrect method of permanent impairment assessment for spinal fusion.
The insurer submits the Panel should adopt Dr Gothelf’s assessment method who found that the claimant’s pre-existing impairment was to be assessed as DRE IV being 20%WPI and deduct that from the claimant’s current permanent of DRE IV to make 0%.
Regarding the cervical spine; it presents as DRE I, being 0% permanent impairment.
In respect of the bilateral shoulders the insurer refers to the presence of bilateral shoulder pain before the subject accident, which is documented in the claimant's GPs, treating neurosurgeon, printing shoulder surgeon and in Medical Assessor Gorman's minor injury certificate assessing injuries from the November 2020 accident.
The insurer concedes that apart from a right knee procedure in 1986 there were no complaints until the day of the subject accident for the right knee, with further complaints six months after the accident and four months after the accident for the left knee. The insurer denies the accident caused the claimant's bilateral knee complaints.
APPENDIX C
Documentation
The Review Panel considered the following documentation
Insurer's submissions supporting application for reviewing Medical Assessor Herald's certificate dated 21 February 2024.
Medical Assessor Herald's certificate
Dr Gothelf's report dated 16 November 2023
Insurer's submissions written replying to the permanent impairment assessment application
Claimant's submissions dated 16 August 2023
Dr James Bodel orthopaedic surgeon's medicolegal report assessing permanent impairment dated 13 July 2023
Accident video 25 November 2025
Neurosurgeon Dr Bentovoglio's joint medicolegal report dated 28 October 2022
Application for personal injury benefits signed 14 November 2021
Police report
Treating neurosurgeon Dr Simon McKechnie's correspondence 28 February 2022 to 11 July 2023 regarding laminectomy and fusion plus clinical records
GP Dr Kris Tomka's report dated 20 June 2022 and clinical records
Orthopaedic surgeon Dr Matthew Giblin's reports 11 May, 22 June and 13 July 2022 regarding the treatment
Bone specialist Dr Chandra Dave reports between 15 March 2023 and 30 June 2023
Evidence regarding accident 18 November 2020
Medical Assessor Gorman's certificate regarding minor injury dated 11 February 2023
Shoulder surgeon Prof Murell's report dated 9 June 2021 with right shoulder scan
Clinical records for New South Wales ambulance and Bankstown Lidcombe hospital
Radiology reports between 9 May 2019 and 15 February 2023 (11 reports)
| APPENDIX D Permanent Impairment Table | ||||||
| Body Part or System | AMA4 Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre–existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical spine | AMA4 page 110 table 73 | Yes | 0% | 0 | 0% |
| 2 | Left knee | AMA 4 page 78, Table 62 | Yes | 0% | 0 | 0% |
| 3 | Right knee | AMA 4 page 78, Table 62 | Yes | 2% | 0 | 2% |
| 4 | Pelvis/hips | AMA 4 page 78, Table 40 | Yes | 0% | 0 | 0% |
| 5 | Left shoulder | AMA 4 page 43 to 45, Table 38, 41 & 44 | Yes | 3% | 2% | 1% |
| 6 | Right shoulder | AMA 4 page 43 to 45, Table 38, 41 & 44 | Yes | 7% | 2% | 5% |
| 7 | Skin | Table for the evaluation of minor skin impairment Guidelinespage 132 | Yes | 2% | 0 | 2% |
| 8 | Thoracic spine | AMA 4, page 110 Table 74 | Yes | 0% | 0 | 0% |
| 9% | Lumbar spine | Guidelines Table 6.7, clauses 6.31 to 6.33 and 6.145 | Yes | 20% | 20% | 0% |
| Total | 10% | |||||
* %WPI = percentage whole person impairment
0
1
0