AAI Limited t/as GIO v Dordevic

[2025] NSWPICMP 677

DETERMINATION OF REVIEW PANEL

CITATION:

AAI Limited t/as GIO v Dordevic [2025] NSWPICMP 677

CLAIMANT:

Snezana Dordevic

INSURER:

AAI Limited t/as GIO

REVIEW PANEL

MEMBER:

Maurice Castagnet

MEDICAL ASSESSOR:

Mohammed Assem

MEDICAL ASSESSOR:

David Gorman

DATE OF DECISION:

5 September 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s review of Medical Assessment Certificate (MAC) under section 7.26; permanent impairment dispute; claimant was thrown off her pushbike after being struck by the insured vehicle; referred injuries include cervical spine, thoracic spine, lumbar spine, both shoulders, left wrist, left knee, right hip, and right ankle; claimant was involved in multiple prior and subsequent motor accidents and work injury incidents; complex pre-existing and subsequent history of musculoskeletal injuries; prior cervical spine and lumbar spine pathology; subsequent lumbar spine pathology; assessment of permanent impairment complicated by pre-existing and subsequent impairments in some of the same body regions; clauses 6.31 and 6.34 of the Motor Accident Guidelines considered; re-examination by the Review Panel; Held – original MAC (finding permanent impairment of 14%) revoked; permanent impairment assessed at 9%.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

Issued under s 7.23(1) of the Motor Accident Injuries Act 2017

The issue determined by the Review Panel is 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%.

Determination

1.     The Review Panel revokes the certificate of Medical Assessor Alan Home dated
14 April 2023.

2.     The Review Panel issues a new certificate determining that the following injuries caused by the motor accident give rise to a permanent impairment that is not greater than 10% (9%):

·        cervical spine;

·        thoracic spine – resolved;

·        lumbar spine;

·        right shoulder; 

·        left shoulder;

·        left wrist;

·        left knee;

·        right hip – resolved, and

·        right ankle – resolved.

STATEMENT OF REASONS

BACKGROUND

1. On 19 February 2019, the claimant, Snezana Dordevic, was involved in a motor accident when the bicycle she was riding was hit by a vehicle insured by AAI Limited t/as GIO.

2. As a result of the accident, the claimant claimed that she sustained physical injuries. She also claimed that she developed psychological injury, although this aspect of her injuries is not the subject of this dispute.

3. The insurer accepted liability to pay the claimant statutory benefits and damages under the Motor Accident Injuries Act 2017 (the MAI Act). As part of her claim for damages, the claimant pursued damages for non-economic loss. According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.

4. The insurer did not concede that the threshold for permanent impairment of the claimant’s physical injuries caused by the accident, was crossed.

5. To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.

6. According to Schedule 2, cl 2 of the MAI Act, a dispute about permanent impairment is declared to be a medical assessment matter. Pursuant to s 7.20 of the MAI Act, the matter is determined at first instance by a Medical Assessor and pursuant to s 7.26, on review, by a review panel.

7. The dispute was referred at first instance to Medical Assessor Alan Home for assessment. On 14 April 2023, the Medical Assessor issued a certificate, finding that the physical injuries caused by the motor accident, gave rise to a permanent impairment that is greater than 10% (14%).

THE REVIEW APPLICATION

1. On 10 May 2023, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessment of Medical Assessor Home to a review panel for review. The review application was made within the time prescribed by s 7.26(10) of the MAI Act.

2. The President referred the application to a review panel for review, being 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.[1]

CONDUCT OF THE REVIEW

1. According to s 7.26(5A) of the MAI Act, the review panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Assem, Medical Assessor Gorman and Member Castagnet (the Panel).

2. Part 5 of the 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.[2]

3. 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. The panel may determine the proceedings solely based on the written application.[3]

4. The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]

RELEVANT LEGISLATION AND GUIDELINES

1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[5]

2. 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.[6]

1. The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[7]

2. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:

   “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), ss5D 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.”

3. Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury.

4. Clause 6.7 of the Guidelines provides:

   “There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”

5. The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[8]

MEDICAL ASSESSMENT UNDER REVIEW

1. The following injuries were referred to Medical Assessor Home for assessment:

   ·        cervical spine – focal spondylosis with posterocentral disc protrusion and fissure with ventral thecal sac indentation, musculoskeletal injury, disc injury, radiculopathy, soft tissue injury;

   ·        thoracic spine – musculoskeletal injury, disc injury, radiculopathy, soft tissue injury;

   ·        lumbar spine – musculoskeletal injury, disc injury, radiculopathy, soft tissue injury;

   ·        left and right shoulders – subscapularis tendon tear in left shoulder, bursitis in both shoulders, musculoskeletal injury;

   ·        left wrist - soft tissue injury, musculoskeletal injury;

   ·        left knee - soft tissue injury, musculoskeletal injury;

   ·        right hip - soft tissue injury, musculoskeletal injury, and

   ·        right ankle - soft tissue injury, musculoskeletal injury.

2. The Medical Assessor found that the following injuries were caused by the accident and gave rise to a permanent impairment of 14%:

   ·        cervical spine: aggravation of underlying degenerative change (whole person impairment (WPI) of 5%);

   ·        thoracic spine: soft tissue injury (WPI of 0%);

   ·        lumbar spine: soft tissue injury (WPI of 0%);

   ·        left shoulder: aggravation of underlying rotator cuff pathology (WPI of 4%);

   ·        right shoulder: aggravation of underlying rotator cuff pathology (WPI of 3%);

   ·        left wrist: soft tissue injury, underlying degenerative change (WPI of 0%);

   ·        left knee: patellofemoral crepitus (WPI of 2%);

   ·        right hip: soft tissue injury, resolved, and

   ·        right ankle: soft tissue injury, resolved.

1. In regard to the lumbar spine, the Medical Assessor assessed a WPI of 5% based on a DRE lumbosacral category II impairment rating. He concluded that this impairment was attributable to a subsequent and unrelated injury at work in April 2022. He assessed the lumbar spine injury caused by the motor accident with a WPI of 0% based on a DRE category I impairment rating.

MATERIAL BEFORE THE PANEL

1. On 28 November 2023, the insurer filed a paginated and indexed bundle of documents comprising 367 pages. On 19 June 2025, at the direction of the Panel, the insurer filed an additional paginated and indexed bundle of documents comprising 199 pages.

2. On 8 November 2023, the claimant filed a paginated and indexed bundle of documents comprising 148 pages. On 31 January 2025, at the direction of the Panel, the claimant filed an additional paginated and indexed bundle of documents comprising 199 pages.

3. The Panel reviewed and considered all the materials filed by the parties.

SUBMISSIONS

1. The insurer’s primary submission was that the Medical Assessor failed to apply cl 6.34 of the Guidelines in relation to the claimant’s subsequent motor accident on 5 February 2020. In that accident, the claimant asserted that she sustained injuries to the bilateral shoulders, cervical spine and lumbar spine. She reported to the Medical Assessor that her neck, back and bilateral shoulder symptoms increased in severity. Nevertheless, the Medical Assessor did not conduct any assessment of impairment relevant to the subsequent 2020 accident.

2. In reply, the claimant submitted that cl 6.34 should only be applied if there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, with its value calculated.

3. Based on the available evidence, the Medical Assessor was entitled to reach a conclusion that the claimant had a WPI of 0% from pre-existing or subsequent causes, including the subsequent 2020 accident, when calculating the claimant's WPI in regard to the cervical spine injury caused by the subject motor accident. The evidence shows that the ongoing complaints were confirmed in the radiological investigations undertaken post-accident. An MRl scan performed on 4 August 2020 revealed disc bulging with posterior central disc protrusion and associated annular fissure at the C6/7 level of the cervical spine with indentation on the ventral thecal sac. As such, the Medical Assessor concluded that the WPI of 5% assessed for that body part was related to the subject motor accident.

EVIDENCE RELATING TO PRE-ACCIDENT HISTORY OF INJURIES

1. The claimant has an extensive pre-existing history of injuries, relevant to the body regions that are the subject of this assessment.

June 2002 work injury

1. On 27 June 2022, the claimant was working as a receptionist/waitress at a licensed club assisting an employee to put stock in the cool room when she slipped on a wet concrete floor and fell. Her head hit the doorway as she landed on her back. She was assisted to her feet, and she felt instant pain in her neck, back and tail bone.

2. The claimant eventually made a claim for workers compensation, and she was off work for some time. During that period, the claimant fell pregnant and remained off work until May 2004.

3. The claimant was treated for her injuries soon after the incident by musculo-skeletal and rehabilitation specialist, Dr David Manohar and such treatment continued until about 2005. According to a report by Dr Manohar dated 7 August 2022, there were initial complaints of pain in the left side of the neck extending to the left shoulder, suprascapular region and into the head in a stabbing manner. There were also complaints of paraesthesia in the top of the right shoulder and low back ache.

4. X- rays of the cervical spine, the lumbar spine and the left shoulder and CT scans of the cervical spine and the lumbar spine were all normal. An ultrasound of the left shoulder was within normal limits.

5. Further reports from Dr Manohar showed that there were complaints of neck and upper thoracic pain extending across the shoulders and low back pain persisting through the remainder of 2002, 2003, and 2004.

6. A Workcover medical certificate issued by general practitioner (GP), Dr N.S Kaushik dated 27 September 2002 recorded a diagnosis of “Neck Pain, Back pain and headaches.”

7. In a medicolegal report by consultant neurologist, Dr Leon Basser, dated 18 February 2003, he expressed the opinion that it was reasonable to expect that there would be improvement in regard to the neck and back pain and the headaches.

8. An MRI of the cervical spine performed on 9 July 2003, revealed a normal study.

9. An MRI of the lumbar spine performed on 14 August 2003 showed an annular rupture at L4-5 without significant protrusion. A CT scan performed on 28 October 2003 confirmed findings at the same level.

10. In a Medical Assessment Certificate of permanent impairment issued by the Workers Compensation Commission (as part of the Commission was then known) on
    7 February 2004, Approved Medical Specialist, Dr D. M. Kumar, assessed a WPI of 5% for the cervical spine injury and a WPI of 5% for the lumbar spine injury.[9]

11. In a medicolegal report dated 2 April 2004, neurosurgeon, Dr Kevin Bleasel assessed the claimant under AMA 5 and the Workcover Guides, with a WPI of 6% for the cervical spine injury, a WPI of 6% for the lumbar spine injury and a WPI of 6% for the left shoulder injury which converted to permanent impairment of 17% on the combined table.

12. The claimant was reviewed by neurosurgeon and spinal surgeon, Associate Professor James van Gelder on 22 February 2005 and 8 March 2005. The claimant reported constant neck pain radiating to her shoulders and low back pain. There was intermittent paraesthesia in the legs. Imaging studies relating to the neck and the lower back during this period were within normal limits. Associate Professor van Gelder recommended conservative treatment.

June 2003 motor accident

1. According to a report from the Emergency Department of Liverpool Hospital dated
   11 June 2003, it was recorded that the claimant attended the hospital for treatment following her involvement in a motor accident. There were complaints of neck and back pain. X-rays were reportedly unremarkable.

2. According to a medicolegal report from specialist in rehabilitation medicine, Dr R Adler, dated 24 July 2006, the claimant was assessed for her injuries sustained in a motor accident on
   11 June 2003. The claimant reported to Dr Adler that there was some aggravation of her neck, headache, lower back and left shoulder symptoms due to the motor accident.

3. In his report, Dr Adler noted that the claimant was involved in an earlier motor accident in 1998 when the car she was driving was struck in a front-end collision. Dr Adler referred to a report from the claimant’s GP, Dr Marinkovic dated 20 October 1999 which recorded at the time assessment in October 1999, the claimant was still complaining of neck, left shoulder and right foot pain as result of the 1998 accident. 

4. Dr Adler noted that the June 2002 injury remained significant and was compounded by earlier incidents in 1998 and a separate workplace fall in 2000. He was of the opinion that the claimant suffered aggravation of pre-existing neck and back pain as a consequence of the June 2003 accident.

2009 motor accident

1. On 27 January 2009, the claimant was involved in a further motor accident when the vehicle she was driving was struck by another vehicle that turned into her path at a set of traffic lights.

2. In her claim form dated 14 July 2008, the claimant stated that she sustained injuries to the head, neck, upper and middle back, both knees and left foot.

3. A medical certificate issued by GP, Dr Velibar Todorovic, recorded the diagnosis as soft tissue injuries to the cervical, thoracic and lumbar spine, both knees and the left foot.

4. There was immediate pain in the shoulder and left knee, with delayed onset of headaches, neck, and low back pain. She presented to her GP the following day. An MRI dated
   30 October 2009 showed a small disc bulge at T11-T12, a disc bulge at L4-L5, focal tendinosis and bursitis in the left shoulder.

5. The claimant was reviewed by orthopaedic surgeon, Dr Mehmat Guirgis, on 9 November 2009, 4 August 2010, 26 May 2011, 29 July 2011 and 4 April 2012. Dr Guirgis diagnosed mechanical derangement of the cervical, thoracic and lumbar spine, and left shoulder. He deemed her totally unfit for work.

6. The claimant was assessed by consultant in occupational medicine, Dr Alan Home on
   27 July 2010. In a report dated 30 July 2010, Dr Home expressed the opinion that it was probable that in this accident, the claimant has sustained soft tissue injuries to the neck, mid thoracic spine and the lower back, exacerbating pre-existing spiral pathology. Dr Home noted the continuation of symptoms related to previous injuries. Dr Home assessed all spinal levels as DRE category II, with no significant additional impairment from the 2009 motor accident. He also recorded left knee patellofemoral crepitus.

7. On 17 August 2010, orthopaedic surgeon, Dr James Bodel provided a medicolegal report to the workers compensation insurer for the 2002 work injury. Dr Bodel recorded complaints involving the cervical, thoracic, and lumbar spine, bilateral scapular and shoulder girdles, and sensory changes in the left arm and lower limb. Dr Bodel attributed the symptoms to the multiple earlier incidents and not uniquely to the 2009 accident. He did not identify any patellofemoral crepitus arising from the work injury on 27 June 2002.

8. On 1 November 2010, Approved Medical Specialist, Dr John C. Beer of the Workers Compensation Commission, issued a Medical Assessment Certificate for an assessment of the degree of permanent impairment in relation to the lumbar spine, thoracic spine, cervical spine and the left upper extremity relating to both the June 2002 injury and the January 2009 injury. Dr Beer assessed permanent impairment of 21%, which included 5% for the cervical spine (after apportionment for pre-existing impairment), 4% for the left shoulder, and 2% for the left knee.

9. On 7 November 2010, Medical Assessor Clive Sun of the Motor Accidents Authority (as part of the Commission was then known), issued a certificate for the assessment of the degree of permanent impairment. He assessed a WPI of 5% for the thoracic spine, 5% for the left shoulder and 2% for the left knee. In regard to the cervical spine and the lumbar spine, he assessed a WPI of 5 % for each injury but found that the impairments were pre-existing, giving rise to a WPI of 0%. He assessed the right shoulder at 0%.

1. An MRI scan of the left shoulder performed on 9 October 2010 and an MRI scan of the right shoulder performed on 10 October 2010 confirmed findings of bursitis and tendinopathy.

2. On 9 October 2013, Medical Assessor Dwight Dowda of the Motor Accidents Authority issued a further certificate for the assessment of the degree of permanent impairment for the injuries sustained in the 2009 accident. He assessed the thoracic spine as giving rise to a WPI of 0%, the cervical spine, a WPI of 5% and the lumbar spine, a WPI of 5%, but found that these impairments were pre-existing. He assessed the left knee as giving rise to a WPI of 2% due to a direct blow to the knee. He assessed a WPI of 7% for the right shoulder. He found that the left shoulder injury was not caused by the accident.

POST-ACCIDENT EVIDENCE

The claimant’s statement

1. In her application for personal injury benefits (claim form), dated 20 March 2019, the claimant described the circumstances as follows:

   “I was cycling to work on the pavement. I was coming to the driveway/exit to orange grove Rd. I noticed the driver was stationary and talking on the phone. He looked at me and I thought it was safe to keep going. As I proceeded past he suddenly accelerated and collided with me. He threw me onto the Roadway – said ‘I thought you had already passed?’”

2. In her claim form, the claimant was asked to describe in her own words to outline all the injuries she received as a result of the accident. That question was not answered.

3. In answer to a question on the claim form about whether she was suffering an illness or injury affecting the same or similar parts of the body at the time of the accident, the claimant replied:

   “No. But I did have a previous claim for an injury in [sic] 27/6/2002.”

Treatment by Dr Tomka after the accident

1. On the day after the accident, the claimant consulted her GP, Dr Krisimir Tomka for treatment. She reported that she has been in a push bike accident the day before. There were complaints of pain in the neck, the upper and lower back, the left shoulder, the right hip, the left knee, the right ankle and the left wrist.

2. On examination, Dr Tomka observed limited range of movement in the neck and shoulders and bruising at the right ankle and left wrist. There was spasm of the entire back muscles.

3. Similar complaints were recorded at subsequent consultations on 12 March 2019,
   2 April 2019, 29 April 2019, 7 May 2019 and 17 September 2019.

4. The following radiological investigations were arranged by Dr Tomka:

   ·         an X-ray of the left hand and wrist performed on 24 April 2019 showed no fracture;

   ·         an MRI of the left wrist performed on 10 May 2019 showed degenerative changes between the scaphoid and the trapezium with cystic change and bone marrow oedema;

   ·      an MRI of the left knee performed on 10 May 2019 was reported as a normal examination;

   ·      an MRI of the right hip performed on 10 May 2019 was reported as normal except for mild soft tissue oedema around the greater trochanter, consistent with trochanteric bursitis;

   ·      an MRI of the left shoulder performed on 9 September 2019 showed mild lateral down sloping of the acromion, minor bony spurring on the undersurface of the acromion, resulting in impingement anatomy. There was mild thickening and oedema of the subacromial bursa consistent with bursitis. The supraspinatus and infraspinatus tendons demonstrated low-grade tendinosis without a tear, and

   ·      an MRI of the right shoulder performed on 9 September 2019 showed minimal lateral downsloping of the acromion without spur, thickened and oedematous subacromial bursa. The supraspinatus and infraspinatus showed minimal tendinosis. There was no labral tear or adhesive capsulitis.

Subsequent motor accident on 5 February 2020

1. On 6 February 2020, the claimant attended a consultation with Dr Tomka reporting that she had been involved in a motor accident the day before. She was travelling as a passenger in a motor vehicle that was struck on the driver’s side back wheel by another vehicle. There were complaints of headaches, pain in the neck, upper and lower back and shoulders. On examination, limited range of movement was observed in the neck and shoulders and upper and lower back. The claimant was prescribed with Mersyndol Forte.

2. The claimant attended subsequent consultations on 13 February 2020, 3 April 2020,
   11 May 2020, 14 July 2020, 15 September 2020, 20 January 2021, 6 April 2021, 22 June 2021 and 30 September 2021, complaining about pain in the neck and shoulders and upper and lower back.

Subsequent injury at work on 22 April 2022

1. According to an incident report form report completed for her employer, Masterton on
   24 April 2022, the claimant stated that as she bent down to pick up a pen that was dropped by a work colleague, she heard a “loud sound of crack and the crack was in my back”.

2. On 26 April 2022, the claimant attended upon Dr Tomka complaining of “left sided sciatica”. She was referred for an MRI scan of the lumbar spine. An MRI scan of the lumbar spine performed on that day, showed a large left paracentral broadbased disc protrusion with causal migration into the subarticular recess impinging the left descending L5 nerve root.

3. It is not clear from the clinical notes of Dr Tomka whether the claimant mentioned the work incident to Dr Tomka at this consultation, but it appears that Dr Tomka considered that it was a work injury. As the evidence shows, on 19 October 2022 and subsequently, Dr Tomka issued Workcover certificates of capacity, diagnosing the injury, “L4/5 large disc prottusion [sic] LS spine discopathy” as a work related injury.

4. On 27 April 2022, the claimant attended upon Dr Tomka, complaining of pain in the lumbosacral region. She was referred to neurosurgeon, Dr Renata Bazina, for further management.

5. On 13 May 2025, the claimant was admitted to Liverpool Hospital for treatment of lower back pain that was radiating to the left hip and left leg after she was administered with a cortisone injection at the L4/5 level of the spine, the day before. She was under the care of Dr Bazina during her stay at the hospital and on 18 May 2022, she was discharged into the care of
   Dr Tomka.

6. On 31 May 2022, the claimant attended upon Dr Tomka complaining of lower back pain. She was prescribed Amitriptyline, Celebrex, Pantoprazole and Paracetamol.

7. The claimant attended further consultations with Dr Tomka on 14 June 2022,
   1 September 2022, 19 October 2022, 2 November 2022, 9 November 2022, 15 November 2022, 1 December 2022, 23 March 2023, 1 May 2023, 8 June 2023 and 15 August 2023, complaining of lower back pain.

Medico-legal evidence

1. The claimant was assessed by general, vascular and trauma surgeon, Dr W G D Patrick at the request of the claimant’s solicitors via a video conference on 11 May 2020 and a consultation on 19 August 2021, without a further clinical examination. A report from
   Dr Patrick dated 19 August 2021 is before the Panel. Dr Patrick recorded the 2002 work injury as the only pre-existing injury.

2. Dr Patrick was of the opinion that the subject accident caused injuries the cervical spine, lumbar spine, both shoulders and the left wrist. He assessed those injuries as giving rise to a permanent impairment of 11% comprising a WPI of 3% for the cervical spine, 3% for the lumbar spine (after deductions for pre-existing impairments), a WPI of 2% for the right shoulder and 3 % for the left shoulder.

3. In later report dated 20 January 2023, after he was made aware of the February 2020 accident, Dr Patrick assessed a permanent impairment of 11% for the injuries sustained in that accident without disturbing his previous assessments for the subject accident. 

4. The claimant was assessed by orthopaedic surgeon, Dr James Powell on 26 April 2022 at the request of the insurer. It appears that the assessment was on the same day that the claimant attended upon Dr Tomka, complaining of “left sided sciatica”. 

5. Dr Powell issued a report on 4 May 2022. He noted that the claimant reported pain in her lower lumbar region that radiated to the left buttock area and then into the thigh and leg. The pain fluctuates in intensity and can be very severe. When the pain is severe, it is accompanied by a feeling of numbness in the left leg. She had been referred for an MRI which was due to be performed on 27 April 2022.

6. Dr Powell noted that the claimant remained standing throughout the assessment due to the pain in the lumbar region and the left leg. He indicated that there was no explanation for the claimant’s fairly dramatic presentation with respect to the lumbar spine region which did not appear to be the case in previous assessments.

7. Dr Powell concluded that it was not possible to determine a diagnosis to explain the claimant’s deterioration in the lumbar region. He believed that the claimant’s injuries to the neck, shoulders, left wrist and right hip have all settled and that there was no rateable impairment.

8. It is apparent to the Panel that Dr Powell was not aware of the incident that occurred at work on 22 April 2022 nor was he aware of the February 2020 motor accident.

9. The claimant was assessed by orthopaedic surgeon, Dr Stephen Rimmer on 3 July 2024 at the request of the insurer. He provided a report dated 10 July 2024. Dr Rimmer was of the opinion that all of the claimant’s injuries arising from the subject accident have resolved and she “clearly demonstrates abnormal illness behaviour/malingering for the purpose of personal financial gain”. The Panel observes that Dr Rimmer stands alone in that opinion as it is inconsistent with the opinions expressed by several Medical Assessors and medicolegal consultants who have assessed the claimant.

RE-EXAMINATION

1. The claimant was examined by Medical Assessor Assem on behalf of the Panel on

   
   

   24 June 2025. She attended the appointment alone.

Relevant personal details

1. The claimant is a 51-year-old right-hand dominant woman who lives with her daughter in a second floor unit. She has a history of multiple traumatic incidents.

History of accident – 19 February 2019

1. On 19 February 2019, the claimant was involved in a motor accident while riding her bicycle near Orange Grove Road in Liverpool, when she was struck by a car on her right side as it exited a driveway, causing her to fall heavily onto her left side and be dragged briefly beneath the vehicle. Bystanders intervened to help extricate her from beneath the car.

2. The claimant did not immediately attend hospital. Her brother attended the scene and took her home. She later presented to her GP, Dr Tomka, reporting widespread pain involving the neck, both shoulders, back, hips, knees, ankles, and the left wrist.

3. She reported that neither the ambulance service or the police attended the scene. On early examination, she exhibited limited range of motion in the neck and shoulders, spasm in the back, and bruising over the right ankle and left wrist.

4. According to her claim form, she believed the driver was on his phone at the time of the accident. She noted a previous workers compensation injury on 27 June 2002.

5. Dr Tomka issued a Certificate of fitness on 2 April 2019, diagnosing injuries to the cervical spine, thoracic and lumbar spine, both shoulders, right hip, left knee, both ankles, and left wrist. He certified partial capacity for work (23 hours per week) for the period 2 to

   
   

   30 April 2019.

6. The claimant resumed part-time work at McDonalds shortly after the accident due to financial pressure. She only received a few sessions of physiotherapy and relied on over-the-counter analgesics.

7. She remained under the care of Dr Tomka with ongoing symptoms involving the neck, bilateral shoulders, and lumbar spine, with continued reports of sleep disturbance.

Details of any relevant injuries or conditions sustained since the accident

1. On 5 February 2020, she was a front seat passenger in a Mazda 3 driven by her daughter on L-plates when another vehicle collided with the rear driver’s side door. She suffered a jarring injury involving the neck, left shoulder, and head, striking her left shoulder and head against the window. She reported aggravation of pre-existing neck and shoulder symptoms. No ambulance or police attended the scene. COVID-19 restrictions significantly limited her access to ongoing care during that period. She remained employed as a barista, albeit with increasing discomfort.

2. Physiotherapy was later commenced. Dr Tomka diagnosed a recurrence of lumbar disc symptoms with referred pain and referred her for imaging. An ultrasound of both shoulders dated 29 July 2020 diagnosed a partial subscapularis tear on the left and tendinosis with bursitis and impingement in both shoulders. An MRI scan of the cervical spine dated

   
   

   4 August 2020 revealed generalised disc bulging with postero-central protrusion and annular fissure at C6/7, indenting the thecal sac.

3. In April 2022, while bending to pick up a pen at work, the claimant experienced acute lower back pain. An MRI confirmed a disc protrusion at L4/5. She experienced another exacerbation in May 2022 after waking with a painful 'click' in her back. She was hospitalised at Liverpool Hospital for approximately one week, then returned to work briefly before ceasing in September 2022. These events led to persistent symptoms and ongoing reliance on analgesia.

Current symptoms

1. The claimant currently reports severe and constant cervical spine pain (7/10), associated with stiffness and occipital headaches that disrupt sleep. Pain radiates to the left upper trapezius and shoulder, with similar but milder symptoms on the right. The left wrist remains intermittently painful, particularly in cold weather, and demonstrates reduced grip strength.

2. Her lumbar symptoms persist with pain rated 7–8/10, radiating to the left buttock and leg, sometimes causing instability and a “giving way” sensation. She describes paraesthesia and nocturnal cramping in the left hamstring and calf. There is also episodic thoracic discomfort with movement, and audible crepitus in the left knee.

3. She continues to work 28 hours per week in retail, with a supportive employer who allows periodic rest breaks. She is able to sit for 30 to 60 minutes at a time, and shares household duties with her adult daughter. Her pain is managed with Mersyndol, Panadeine Forte, and Pariet, though these offer only partial symptomatic relief.

Examination findings

1. The claimant presented in apparent physical discomfort but appeared otherwise well. She was able to sit comfortably throughout the interview and mobilised independently with a normal gait. Her demeanour was cooperative, and she engaged appropriately during the assessment. She was advised to avoid any manoeuvres that might exacerbate her symptoms or pose a risk of injury.

Cervical spine

1. Examination of the cervical spine revealed marked tenderness over the spinous processes and paravertebral musculature, particularly at the lower cervical levels. Cervical rotation to the left was reduced to approximately 1/2 of the expected range and elicited left-sided neck pain. Right rotation was preserved. Flexion and extension were approximately 3/4 of normal. Lateral flexion was similarly restricted to 3/4 of the expected range bilaterally. Muscle guarding was evident during movement, although there was no fixed deformity.

2. Neurological examination of the upper limbs revealed normal tone, reflexes, and power throughout. Sensation was intact to light touch, and there was no evidence of radiculopathy. Hoffmann’s sign was negative, and no upper motor neuron signs were elicited.

Thoracic spine

1. Thoracic spine examination demonstrated tenderness on palpation but no muscle guarding or spasm. Thoracolumbar movements were limited by pain across her lower back.

Lumbar spine

1. Examination of the lumbar spine showed preserved lumbar lordosis. There was marked tenderness on palpation over the lumbosacral junction and adjacent paravertebral muscles. Guarding or spasm was not present. The claimant declined attempts at flexion and extension, citing fear of exacerbating her lower back symptoms, which she linked to prior hospitalisation. Lateral flexion and rotation were both limited to approximately 3/4 of the normal range.

2. Straight leg raise testing elicited pain in the lower back bilaterally, though no sciatica was reported. Neural tension signs were negative. Neurological examination of her lower limbs was otherwise normal, with symmetrical muscle bulk and no fasciculations. Power, reflexes, and sensation were grossly intact.

Upper extremities

1. Examination of the shoulders revealed reported tenderness over the upper trapezius and axillary regions, more pronounced on the left. While she attributed pain to both the upper back and arms, no focal impingement or instability signs were present. Range of motion was limited by reported pain but was assessed with the use of a goniometer.

Movement	Right Shoulder	Left Shoulder
Flexion	120°, 120°, 140°	100°, 100°, 100°
Extension	40°, 50°, 40°	20°, 40°, 50°
Abduction	110°, 130°	90°, 90°, 100°
Adduction	40°	10°
Internal Rotation	80°	80°
External Rotation	60°	60°

1. The medical examiner notes that in a medical assessment conducted by Medical Assessor Nel Wijetunga on 24 June 2021 regarding a threshold injury dispute, she recorded mild tenderness over the lower thoracic and lumbar spine extending into the gluteal region, but noted full, symmetrical, and normal range of movement in the thoracic and lumbar spine. Shoulder flexion was 150 degrees, extension and adduction 50 degrees, abduction 140 degrees, and internal/external rotation 90 degrees

2. The medical examiner notes that in a consultation on 19 August 2021, Dr Patrick recorded that the right shoulder flexion was "minimally diminished" at 170 degrees, abduction at 160 degrees, and extension at 40 degrees, with other movements full. Left shoulder active flexion was reduced to 160 degrees, abduction to 150 degrees, and extension to 40 degrees; other movements were reasonably full.

3. During the examination, variations were noted in the recorded range of motion for both shoulders compared to other medical examiners. These inconsistencies were brought to the claimant’s attention. She attributed the limitation to pain.

4. There was no visible muscle wasting around the shoulder girdles. Movements were attempted multiple times for consistency. The primary limitation appeared to be pain-related rather than structural dysfunction. She had a normal range of motion to both wrists.

Lower extremities

1. There was a normal range of motion to both hips, knees and ankles. There was patellofemoral pain and crepitus noted in her left knee. There was no instability and no significant measurable difference in the circumference of her thighs or calves.

CAUSATION, DIAGNOSIS AND REASONS

1. On 19 February 2019, the claimant was struck by a car while riding her bicycle, resulting in a fall onto her left side that caused subsequent pain involving the neck, shoulders, back, hips, knees, ankles, and left wrist. This was documented in the GP records of Dr Tomka on the day after the accident.

2. Subsequent imaging confirmed subacromial bursitis and tendinosis in both shoulders, bone oedema in the left wrist, and trochanteric bursitis in the right hip.

3. The claimant made complaints of pain arising from these injuries to her GP for the remainder of 2019.

4. The Panel accepts that the motor accident involved high-impact rotational and flexion forces when the claimant was struck on the right and fell heavily to her left side.

5. Based on the mechanism of injury and the available medical evidence, the Panel is satisfied that the accident caused the following injuries:

   ·        cervical spine: aggravation of underlying degenerative change;

   ·        thoracic spine: soft tissue injury (resolved);

   ·        lumbar spine: soft tissue injury;

   ·        left shoulder: aggravation of underlying rotator cuff pathology;

   ·        right shoulder: aggravation of underlying rotator cuff pathology;

   ·        left wrist: soft tissue injury, superimposed on underlying degenerative change;

   ·        left knee: temporary aggravation of pre-existing patellofemoral crepitus;

   ·        right hip: soft tissue injury (resolved), and

   ·        right ankle: soft tissue injury (resolved).

PERMANENT IMPAIRMENT

1. The Panel notes the complex history of musculoskeletal injuries, including prior cervical and lumbar spine pathology, left shoulder bursitis and tendinosis, and left knee patellofemoral crepitus stemming from multiple incidents between 1998 and 2009.

2. The claimant was receiving treatment for these injuries up to 2013. There were numerous assessments of permanent impairment up to that date, notably the following:

   ·        cervical spine: 5% WPI (Approved Medical Specialist Kumar, MAS Assessor Sun, MAS Assessor Dowda);

   ·        lumbar spine: 5% WPI (Approved Medical Specialist Kumar, MAS Assessor Dowda);

   ·        left shoulder: 4–5% WPI (Approved Medical Specialist Beer, MAS Assessor Sun), and

   ·        left knee: 2% WPI (MAS Assessor Sun).

3. The evidence shows that since the accident, the claimant subsequently sustained further aggravation of her cervical spine and left shoulder in a 2020 motor accident and an acute lumbar disc protrusion at L4/5 in 2022 following a work-related incident which have contributed to her ongoing symptoms and functional limitations.

Cervical spine

1. The claimant had a longstanding history of cervical spine symptoms, first documented after a 1998 motor accident and significantly worsened by a 2002 work injury. Records from

   
   

   Dr David Manohar and Dr Graham Hall (2002) described persistent symptoms, with a WPI of 5% subsequently assessed by Approved Medical Specialist Kumar (2004). Imaging in 2003 did not identify any cervical disc pathology. However, reports by MAS Assessor Sun (2010) and MAS Assessor Dowda (2013) confirmed chronic cervical complaints warranting a 5% WPI.

2. As the Panel has found, the subject motor accident involved high-impact rotational and flexion forces when the claimant was struck on the right and fell heavily to her left side. She reported neck pain immediately to her GP, Dr Tomka the day after the accident on

   
   

   20 February 2019. An MRI performed on 4 August 2020 demonstrated a new C6/7 disc protrusion with an annular fissure indenting the thecal sac, findings which were not previously recorded.

3. On current examination, there was muscle guarding and asymmetry of motion, meeting DRE Cervicothoracic Category II or 5% WPI (AMA4, 3/104). Although she had prior chronic neck symptoms, there was no objective impairment recorded in the years immediately preceding the accident. Therefore, the Medical Assessors of the Panel have not applied any deduction in line with Guidelines cl 6.31 (p. 88).

Thoracic spine

1. Although the claimant describes pain extending into the upper back, there was no discrete thoracic injury associated with the subject accident. No objective clinical findings or imaging demonstrating structural change. Therefore, a permanent impairment rating is not applicable (AMA4, Table 15-4, p. 111).

Lumbar spine

1. The claimant had well-documented lumbar spine pathology predating the subject accident, originating from a 2002 work injury. Findings included annular rupture at L4/5 (CT, 2003), a disc bulge (MRI, 2009), and consistent 5% WPI assessments by Approved Medical Specialist Kumar, MAS Assessor Sun, and MAS Assessor Dowda. Although she reported lower back pain immediately following the subject accident (GP records on 20 February 2019), but there is no contemporaneous imaging or objective change indicating new injury at that time.

2. Her lumbar condition remained stable until April 2022 when she sustained a discrete work-related injury, with MRI confirming a new L4/5 disc protrusion and subsequent hospitalisation.

3. On current examination the claimant meets DRE Lumbosacral Category II (5% WPI). However, this entire impairment is attributable to prior and subsequent causes, and 0% is due to the subject accident.

Left shoulder

1. Pre-accident records document longstanding left shoulder symptoms, including tendinosis and bursitis, with confirmed 5% WPI by MAS Assessor Sun (2010). An MRI in 2009 identified subacromial bursitis and rotator cuff tendinosis. The mechanism of injury in the accident—falling directly on her left side—is consistent with shoulder trauma. Symptoms were reported to Dr Tomka on 20 February 2019, and MRI on 9 September 2019 confirmed bilateral subacromial bursitis and low-grade tendinosis. While these findings mirrored pre-existing imaging, the traumatic mechanism and timing suggest a transient aggravation.

2. Notably, subsequent imaging in July 2020 revealed a new partial subscapularis tear, not present in 2019. This pathology developed after the accident and is not attributable to the subject accident. However, functional assessments by Dr Patrick and Medical Assessor Wijetunga in 2021 showed preserved range of motion, and subsequent inconsistencies in movement preclude valid ROM-based assessment (Guidelines, cl 6.41, p. 89). Using an analogy (Guidelines, cl 6.24, p. 87), the condition approximates mild AC joint crepitus, equating to 2% WPI per shoulder (AMA4, Table 19, p. 59; Table 18, p. 58).

Right shoulder

1. An MRI on 9 September 2019 showed mild subacromial bursitis and minimal supraspinatus/infraspinatus tendinosis, without tear. These findings are consistent with a mild aggravation caused by the subject accident. As ROM testing was unreliable, impairment was assessed by analogy to mild AC joint crepitus (AMA4, Tables 18 and 19, p. 3-58–59), equating to 2% WPI.

Left knee

1. The left knee had documented pathology predating the subject accident, including patellofemoral crepitus and 2% WPI (Sun, Beer, Dowda, Home). Although the knee was listed among complaints on 20 February 2019, MRI on 21 May 2019 was normal. There was no acute pathology, no escalation in treatment, and no imaging evidence of a new structural injury. Symptoms likely represent a temporary aggravation of a pre-existing condition. Current findings of crepitus correspond with prior assessments, maintaining 2% WPI (AMA4, Table 62, p. 3-83).

Left wrist

1. There was no prior wrist injury noted or impairment. In the subject accident, the claimant sustained a direct impact to the left wrist. X-ray on 12 March 2019 was normal, but MRI later revealed degenerative changes with associated bone oedema, suggestive of acute-on-chronic pathology.

2. The mechanism supports causation for symptomatic aggravation. However, given normal range of motion on examination, her injury does not give rise to a whole person impairment. (Figure 26, p. 36).

Left ankle and right hip

1. On examination, the claimant demonstrated a normal range of motion in both hips and ankles, with no instability or measurable atrophy.

2. The MRI imaging of the right hip performed on 10 May 2019 was normal except for mild trochanteric bursitis. This has subsequently resolved with no ongoing impairment.

3. There was bruising noted to the right ankle in the immediate aftermath of the accident, but by the time of re-examination conducted by the Panel, there were no abnormal clinical findings and no impairment demonstrated.

4. Accordingly, in accordance with AMA4 and the Guidelines, neither the right hip nor the right ankle give rise to a permanent impairment. The injuries have resolved.

5. Noting that the soft tissue injuries to the thoracic spine, right hip and right ankle have resolved, a summary of permanent impairment assessed by the Medical Assessors of the Panel now follows:

Body Part or System	AMA4 Guides / Guidelines References	Permanent (YES/NO)	Current %WPI	%WPI from Pre-existing or Subsequent Causes	%WPI due to Motor Accident
Cervical spine	AMA4, Chapter 3, Page 104	YES	5%	0%	5%
Lumbar spine	AMA4, Chapter 3, Page 102	YES	5%	5%	0%
Left shoulder	AMA4, Table 19 & 18, p.58–59	YES	2%	0%	2%
Right shoulder	AMA4, Table 19 & 18, p.58–59	YES	2%	0%	2%
Left wrist	AMA4, Figure 26, Page 36	YES	0%	0%	0%
Left knee	AMA4, Table 62, Page 83 (Footnote)	YES	2%	2%	0%

FINDINGS

1. The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.

2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion.[10]

3. The Panel adopts the examination findings and conclusions of Medical Assessor Assem.

4. The Panel finds that the motor accident caused soft tissue injuries to the cervical spine, the thoracic spine, the lumbar spine, the right shoulder, the left shoulder, the left knee and the left wrist which give rise to a permanent impairment of 9%.  The Panel finds that the motor accident caused soft tissue injuries to the right hip and the right ankle which have now resolved.

CONCLUSION

1. For these reasons, the Panel revokes the certificate of Medical Assessor Home dated
   14 April 2023 and issues a new certificate. The new certificate of the Panel is attached at the commencement of these reasons.

[1] Section 7.26(5) of the MAI Act.

[2] Section 41(2) of the PIC Act.

[3] Rule 128 of the PIC Rules.

[4] Section 7.26(6) of the MAI Act.

[5] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.3 which commenced on 6 December 2024.

[6] Clause 6.2 of the Guidelines.

[7] See s 3B (2) of the CL Act.

[8] [2022] NSWSC 372 at [73].

[9] Assessed in accordance with AMA 5 and the Workcover Guides.

[10] See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].