AAI Limited t/as GIO v Hijazi (No 1)

[2022] NSWPICMP 468

DETERMINATION OF REVIEW PANEL

CITATION:

AAI Limited t/as GIO v Hijazi (No 1) [2022] NSWPICMP 468

CLAIMANT:

Kamle Hijazi

INSURER:

AAI Limited trading as GIO

REVIEW Panel

MEMBER:

Susan McTegg

MEDICAL ASSESSOR:

Neil Berry

MEDICAL ASSESSOR:

Geoffrey Curtin

DATE OF DECISION:

15 November 2022

CATCHWORDS:

MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident on 15 October 2016; assessment of permanent impairment under the Motor Accident Compensation Act 1999; long history chronic back pain; surgical decompression; causation injury to lumbar spine; injury to cervical spine; full thickness tear of the supraspinatus tendon of left and right shoulder; Held – soft tissue injury to cervical spine; diagnosis related estimate (DRE) Category I or 0% whole person impairment (WPI); accident contributing cause more than negligible to injury to lumbar spine; soft tissue injury superimposed upon pre-existing symptomatic degenerative change; DRE Category II or 5% WPI; accident material contribution to need for surgery; no objective evidence of pre-existing symptomatic impairment in same region at time of accident so presence of pre-existing impairment ignored; Panel not satisfied claimant sustained rupture of both supraspinatus tendons in the accident having regard to mechanism of accident; unlikely to experience near identical injury to both shoulders and rupture would have been associated with immediate severe pain; Panel finds accident caused aggravation of pre-existing degenerative rotator cuff tears; shoulders symptomatic; full range of movement of both shoulders; 0% WPI for each shoulder.

DETERMINATIONS MADE:  

MOTOR ACCIDENTS COMPENSATION ACT 1999

Review Panel Certificate
issued under Part 3.4 of the Motor Accident Compensation Act, 1999
following a review under s 63 as to

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%

THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 63(4) IS AS FOLLOWS:

The Panel revokes the certificate of Medical Assessor Bodel dated 16 March 2021 and issues a new certificate determining that the following injuries were caused by the accident and give rise to a whole person impairment (WPI) which is not greater than 10% and is 5%:

·     soft tissue injury to the cervical spine;

·     soft tissue injury to the lumbar spine;

·     aggravation of pre-existing rotator cuff tear of the left shoulder, and

·     aggravation of pre-existing rotator cuff tear of the right shoulder.

STATEMENT OF REASONS

introduction

1. Ms Kamle Hijazi (the claimant) suffered injury in a motor vehicle collision on 15 October 2016 (the accident).

2. AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Ms Hijazi under the Motor Accident Compensation Act, 1999 (MAC Act).

3. This dispute is in relation to whether the degree of permanent impairment sustained by Ms Hijazi as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]

   [1] Section 57 and 58 of the MAC Act.

REVIEW PROCEDURE

1. The present application is a review of a medical assessment pursuant to s 63 the

   
   

   MAC Act. The relevant medical assessment was conducted by Medical Assessor James Bodel. He issued a certificate dated 16 March 2021.

2. The certificate of Medical Assessor Bodel was not made available to the parties until 1 July 2021. An application for review of the medical assessment of Medical Assessor Bodel was lodged on 23 July 2021 within 28 days of the date on which that certificate was made available to the parties.[2]

   [2] Section 63(7) of the MAC Act.

3. On 2 September 2021, the Delegate of the President being satisfied 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 referred the medical assessment to the Review Panel (the Panel).[3]

   [3] Section 63(2B) of the MAC Act.

4. The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).

5. Under cl 14A(1)(vii) Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.

6. Clause 14F of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a “new decision-maker”. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made after 1 March 2021 the new review provisions apply.

7. The new review provisions provide that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Commission.[4] The President’s Delegate referred this application for review to the panel.

   [4] Section 63(3) of the MAC Act.

8. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (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.[5]

   [5] Clause 1.2 of the Guidelines.

9. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a medical assessor.[6]

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

10. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]

    [7] Rule 128 of the PIC Rules.

11. The review is by way of a new assessment of all matters with which the medical assessment is concerned.[8]

    [8] Section 63(3A) of the MAC Act.

Documents before the Panel

1. An initial Panel comprising Medical Assessor Rhys Gray, Medical Assessor Shane Moloney and Member Susan McTegg (the first Panel) issued a Direction to the parties on 22 November 2021 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the insurer uploaded a bundle of documents paginated from pages 1 to 693 and marked AD9.[9] The solicitor the claimant did not respond to the Direction and has now confirmed she does not intend to file any additional documents to those furnished by the insurer. The claimant seeks to rely upon submissions dated 12 August 2021 uploaded to the portal and marked R1. The Panel proposes to rely upon the documents furnished to the first Panel.

   [9] Insurer’s bundle p 18.

2. On 6 December 2021 the insurer uploaded to the portal a report of Dr Andrew McIntosh, biomechanical engineer dated 11 June 2021. The claimant uploaded a letter dated 10 December 2021 objecting to the report of Dr McIntosh and asking for the first Panel to issue Directions for each party to provide submissions as to the admissibility of that report. On 14 December 2021 the first Panel issued a Direction giving each party an opportunity to provide submissions as to the admissibility of that report. The first Panel issued an interim decision dated 9 March 2022 declining to allow the insurer to rely upon the report of Dr McIntosh dated 11 June 2022.

3. The claimant subsequently lodged a further dispute with the Commission, a treatment dispute bearing matter No. R-M10506157/22. That dispute has been allocated to this Panel and it is proposed to deal with that dispute at the same time as the current dispute in respect of permanent impairment. Matter No. R-M10509157/22 relates to a review of a certificate of Medical Assessor Bodel dated 28 March 2022. In determining that dispute Medical Assessor Bodel considered the report of Dr McIntosh dated 11 June 2021.

4. Accordingly, as both reviews are to be determined together the Panel determined that the report of Dr McIntosh should be admitted in relation to this review. The Panel refers to the decision of the first Panel dated 9 March 2022 in respect of the admissibility of the report of Dr McIntosh dated 11 June 2021 and whilst it is agreed it is appropriate to admit the report of Dr McIntosh, where it is before the Panel in the associated treatment dispute, the Panel does not propose to afford that report any weight where:

   (a)     the expert opinion set out in the report is contested by the claimant;

   (b)     the Panel is unable to establish whether the evidence relied upon by Dr McIntosh is sufficient to establish the facts upon which his expert opinion has been based, and

   (c)     the Panel is tasked to undertake a medical assessment and does not have the expertise to interrogate or assess a biomechanical engineers report.

Medical examination

1. On 13 December 2021 the first Panel agreed an examination was required. An appointment was initially made for a medical examination on 24 March 2022 but that appointment was brought forward to 25 February 2022 but was subsequently cancelled due to the claimant’s vaccination status.

2. Ultimately neither Medical Assessor Moloney nor Medical Assessor Gray were prepared to examine Ms Hijazi having regard to her vaccination status and it became necessary to disband the first Panel.

3. The current panel comprising Medical Assessor Neil Berry, Medical Assessor Geoffrey (Paul) Curtin and Member Susan McTegg (the Panel) was formed.

4. On 27 September 2022 the Panel agreed an examination was required.

MEDICAL ASSESSMENT UNDER REVIEW

1. Medical Assessor Bodel examined Ms Hijazi and provided a certificate dated 16 March 2021. He assessed a 23% whole person impairment (WPI). He found that the impairment arose as a consequence of the soft tissue injury to the neck and back and the rotator cuff injuries to both shoulders.

2. The following injuries were referred for assessment:

   ·        left upper extremity – subacromial/subdeltoid bursitis. Rotator cuff and supraspinatus tendon tears;

   ·        right upper extremity –  subacromial/subdeltoid bursitis. Rotator cuff and supraspinatus tendon tears;

   ·        cervical spine – disc osteophyte complexes at C5/6 andC6/7 levels. Degenerative changes at the uncovertebral joints and facet joints at multiple levels. Central canal stenosis and left neural foraminal stenosis at C5/6 level and C6/7 level. Soft tissue, and

   ·        lumbar spine – Degenerative changes at the intervertebral joints and facet joints at multiple levels. Disc protrusion at L4/5 and L5/S1 levels. Central canal stenosis and left neural foraminal stenosis at L4/5 and L5/S1 levels. Soft tissue injury.

3. Medical Assessor Bodel reported the accident on 15 October 2016 was a significant impact and soon after the accident Ms Hijazi developed head, neck and shoulder girdle pain on both sides and also lower back pain.

4. Medical Assessor Bodel reported Ms Hijazi was in receipt of the Disability Support Pension and not working at the time of the accident. He noted she was a below knee amputee and had been involved in two earlier accidents, one about 20 years ago where she injured her neck and back and the other about 10 years ago where she injured her back.

5. Medical Assessor Bodel reported Ms Hijazi stated she had recovered from those earlier accidents and concluded there was no pre-existing pathology.

6. In respect of the left shoulder Medical Assessor Bodel diagnosed subacromial/subdeltoid bursitis; rotator cuff and supraspinatus tendon tears resulting in an 8% WPI of the left upper extremity.

7. In respect of the right shoulder Medical Assessor Bodel diagnosed subacromial/subdeltoid bursitis; rotator cuff and supraspinatus tendon tears resulting in an 8% WPI of the right upper extremity.

8. In respect of the cervical spine Medical Assessor Bodel made the following diagnosis:

   “Disc osteophyte complexes at C5/6 andC6/7 levels. Degenerative changes at the uncovertebral joints and facet joints at multiple levels. Central canal stenosis and left neural foraminal stenosis at C5/6 level and C6/7 level. Soft tissue.”

   He found a DRE Cervicothoracic Category II impairment in accordance with Table 73 of AMA 4 resulting in a 5% WPI. He found asymmetry of movement and guarding but no clinical sign of radiculopathy.

9. In respect of the lumbar spine Medical Assessor Bodel made the following diagnosis:

   “Degenerative changes at the intervertebral joints and facet joints at multiple levels. Disc protrusion at L4/5 and L5/S1 levels. Central canal stenosis and left neural foraminal stenosis at L4/5 and L5/S1 levels. Soft tissue injury”.

   He found a DRE Lumbosacral Category II impairment in accordance with Table 72 of AMA 4 resulting in a 5% WPI. He reported Ms Hijazi had undergone a decompressive laminectomy in the lumbosacral region but with no clinical signs of persisting radiculopathy. He found asymmetry of back movement.

EVIDENCE BEFORE THE REVIEW PANEL

The Personal Injury Claim Form

1. The Personal Injury Claim Form lists injury to the head, neck, shoulders, arms, hands, chest, back and psychological injury.

2. The Medical Certificate completed by Dr Awada on 18 October 2016 describes the injuries as:

   “•       Neck pain/stiffness;

   •       Bilateral shoulder pain;

   •       Mid – low back pain; and

   •       Reactive anxiety, pressure in ears”.

Treating records

Dr Diwan Records

1. On 9 August 2010 Ms Hijazi completed a questionnaire for Spine Service, Department of Orthopaedic Surgery, St George Hospital. She indicated she had low back and/or buttock pain “all of the time”, leg pain “most of the time”, neck pain “most of the time” and numbness or tingling in arm or hand “most of the time”. She indicated her low back and/or buttock pain was “extremely bothersome”, her leg pain “very bothersome” and numbness or tingling in arm or hand “very bothersome”. On a scale of 9 to 10 Ms Hijazi indicated her low back pain rated 10, her right leg pain rated 9, her neck pain rated 8, her right arm pain rated 9 as did her left arm pain.

2. Dr Diwan, Department of Orthopaedic Surgery, St George Hospital in a report to Dr Giurgius dated 9 August 2010 reported Ms Hijazi had presented with chronic low back pain and neck pain with very occasional transient right leg pain and bilateral arm pain especially on sleeping on and off.[10] He said she rated her low back pain at 10/10 with extreme to moderate restriction of numerous activities. He proposed further investigations.

   [10] Insurer’s bundle p 90.

3. On 27 September 2010 Dr Diwan described Ms Hijazi’s arthritis as quite significant and recommended she start a spinal injection program.

4. On 5 April 2012 Ms Hijazi consulted Dr Diwan in respect of severe aggravation of her right leg pain over the preceding two to three months.[11] He noted painful restriction of her thoracolumbar spine. Dr Diwan was of the impression Ms Hijazi had L5-S1 acute on chronic disc disease with right-sided L5 and S1 radiculopathy. He said he believed she would eventually require a L5-S1 decompression fusion.

   [11] Insurer’s bundle p 116.

5. On 14 June 2012 Dr Diwan noted a transforaminal epidural steroid had not helped. He suggested a repeat injection and surgical decompression.[12]

   [12] Insurer’s bundle p 78.

6. Ms Hijazi was reviewed by Dr Diwan on 10 October 2012 when she also complained of neck and left arm pain.[13] Dr Diwan reviewed the CT scan of the neck and suggested a cognitive motor relearning program and, depending on the response, a spinal injection. He stated if all fails an anterior decompression and stabilisation at multiple levels may be required.

   [13] Insurer’s bundle p 121.

7. At review on 16 January 2013 Dr Diwan noted Ms Hijazi’s pain was predominantly in the right leg and back.[14] He said she was not in a mental state to consider surgery and recommended pain management.

Clinical notes of Punchbowl Medical Centre

[14] Insurer’s bundle p 122.

1. The Panel has sought to highlight those entries which include complaints relating to the back and neck. However, those complaints are often not the only complaint addressed in those consultations.

2. The first entry relating to osteoarthritis appears on 2 January 2007. Thereafter, there are references to back pain or osteoarthritis on 2 January 2007, 1 June 2007, 5 November 2007, 20 November 2007, 4 March 2008, 24 May 2008, 25 June 2008, 26 July 2008, 4 August 2008, 16 August 2008, 30 August 2008, 6 December 2008, 4 February 2009, 10 February 2009, 27 March 2009, 1 May 2009, 23 July 2010, 3 August 2010, 13 September 2010, 8 December 2010, 11 December 2010, 8 January 2011, 22 January 2011, 9 February 2011, 5 March 2011, 2 April 2011, 1 July 2011, 26 July 2011, 25 August 2011, 17 September 2011, 13 October 2011, 16 January 2012, 11 February 2012, 17 February 2012, 26 March 2012, 29 March 2012, 10 April 2012, 3 May 2012, 28 May 2012 and 1 August 2012.

3. In a Centrelink report relating to the provision of a Carer Payment and/or Allowance dated 13 December 2011 Dr Giurgius indicated Ms Hijazi required daily care for medical conditions identified as serious disc disease and below knee left amputation.[15]

   [15] Insurer’s bundle p 106.

4. On 24 September 2012 the entry of Dr Giurgius relates to cervical disc disease and the entry on 24 September 2012 also relates to neck pain and stiffness.

5. Ms Hijazi continued to consult her general practitioner in relation to back complaints on 12 October 2012, 6 November 2012, 23 November 2012, 16 January 2013, 1 February 2013, 22 February 2013, 22 April 2013 (back and neck), 5 September 2013, 20 September 2013, 5 November 2013, 15 January 2014, 31 January 2014, 22 February 2014 (neck and back) and 31 August 2015.

6. On 21 October 2015 Ms Hijazi saw Dr A Selim when he recorded complaints of depression, low back pain and neck pain.

7. Ms Hijazi consulted Dr Giurgius on 3 February 2016 when he referred her for a CT scan of the lumbar spine and prescribed Celebrex, Panadol Osteo and Norspan Patch 5mg.

8. On 26 September 2016 Ms Hijazi consulted Dr Emily Selim for her “usual prescriptions” for her “long-standing history of back pain”.

9. On 4 July 2017 Ms Hijazi consulted Dr A Selim for low back pain and neck pain.

10. On 29 September 2017 Ms Hijazi consulted Dr A Selim for sore head, facial pain, chronic pains and low back pain and stiffness.

11. Those records cease as of 12 October 2017.

12. Notably other entries refer to medications such as Digesic, Panadol Osteo, Panadeine Forte, Celebrex, Mobic, Lyrica and Norspan Patch which may have been prescribed in relation to back pain or osteoarthritis but where the entry is silent as to the reason for the consultation.

Clinical notes of Medical and Dental Centre, Punchbowl

1. These clinical records incorporate the clinical notes of Punchbowl Medical Centre but also include entries from 24 January 2019 to 17 April 2020.

2. On 24 January 2018 Ms Hijazi consulted Dr Emily Selim in relation to, inter alia, ongoing issues with chronic pain She prescribed Celebrex and Lyrica. No mention was made of the accident.

3. On 7 March 2018 Dr A Selim reported Ms Hijazi’s involvement in the accident stating: “MVA on 15.10.2016 was stationery and another car turned left and hit her car on the driver side, severe low back pain”.[16]

   [16] Insurer’s bundle p 261.

4. On 9 August 2018 Dr A Selim reported low back pain and stiffness and prescribed inter alia, Celebrex and Lyrica.

5. On 27 November 2018 Ms Hijazi consulted Dr A Selim and reported right shoulder pain, neck pain and stiffness. Norspan Patch was prescribed.

6. On 1 April 2019 Ms Hijazi consulted Dr Giurgius in respect of headaches and sinusitis but was prescribed, inter alia, Celebrex, Lyrica and Norspan Patch.

1. On 19 November 2019 Dr Natalie Selim records the 2016 accident and notes Ms Hijazi had spinal surgery six months ago, with improvement in her “post MVA back pain”. She prescribed, inter alia, Targin, Panadol Osteo, Lyrica increased from 75mg to 150mg, and Norspan Patch.

2. Ms Hijazi consulted Dr N Selim and was given prescriptions for Norspan Patch, and Targin on 2 December 2019 and 16 December 2019.

3. On 8 January 2020 it was reported Ms Hijazi had withdrawal symptoms after running out of opioid medication. On 29 January 2020 Dr Selim reported chronic pain and noted Ms Hijazi was decreasing all addictive medication.

4. On 26 February 2020 Dr A Selim reported the MRI scans demonstrated complete tears of the supraspinatus tendon bilaterally and noted Ms Hijazi was to see an orthopaedic surgeon the following week. He prescribed Prodeine caplets.

5. A further consultation with Dr A Selim on 18 March 2020 referred to bilateral shoulder pain and low back pain and stiffness. He reported Ms Hijazi required physiotherapy as recommended by an orthopaedic surgeon. He prescribed Panadeine Forte.

6. The last entry refers to a consultation with Dr A Selim on 9 April 2020 when he referred, inter alia to low back pain and prescribed Panadeine Forte.

Report of Dr Rammal of Spine & Co, chiropractor

1. On 9 March 2016 Dr Rammal provided a report to Dr Awada stating Ms Hijazi had attended that day noting “her chronic history of bilateral neck pain of approximately 15 years duration following MVA”.[17]

   [17] Insurer’s bundle p 689.

Clinical notes of Dr Awada

1. Ms Hijazi was a patient of Dr Awada before and following the accident.

2. In the 18 months before the accident the clinical notes of Dr Awada disclose the following:

Date	Summary of clinical record
14 July 2014	Complaint of back pain and right leg pain recorded. Lyrica and Norspan was prescribed.
23 July 2014	Entry “back pain worsens…unable to put up with the pain”.
5 August 2014	Complaint of neck pain and back pain. Dr Awada referred to the CT scans of the cervical and lumbar spine. Ms Hijazi was prescribed, inter alia, Norspan and referred to orthopaedic surgeon Dr Diwan
18 September 2014	An increase in back pain and neck pain was noted. Difficulty mobilizing. Norspan was prescribed
15 October 2014	Back pain and leg pain was recorded.
20 October 2014	Entry reads “neuralgia…multiple joint pain… back pain”.
10 November 2014	Entry reads “back pain worsen”. Norspan and Celebrex prescribed.
27 November 2014	Norspan prescribed.
10 December 2014	Norspan prescribed.
8 January 2015	Entry reads “back pain”. Norspan and Mobic  prescribed.
9 February 2015	Norspan prescribed.
24 February 2015	Entry reads “c/o mid – low back pain…to the legs, pain worse on sitting for long periods. Exam tender on lumbar spine, movement ~50% of normal”. Referred for CT scan and x ray and Norspan prescribed.
23 March 2014	Review of CT scan of lumbar spine. Norspan prescribed.
30 March 2015	Entry reads “multiple joint pain”. Lyrica prescribed.
29 April 2015	Norspan prescribed.
20 May 2015	Norspan prescribed
3 June 2015	Norspan prescribed
13 July 2015	Norspan prescribed
29 July 2015	Norspan prescribed
13 August 2015	severe back pain
16 September 2015	Shoulder pain recorded. Norspan prescribed.
7 October 2015	Shoulder pain recorded. Norspan prescribed.
28 October 2015	Norspan prescribed
15 December 2015	Entry reads “exacerbation of back pain”. Norspan prescribed.
23 December 2015	Lyrica prescribed
09 January 2016	Back pain recorded. Norspan prescribed.
17 February 2016	Entry reads “neuropathic pain… back pain”. Lyrica and Norspan prescribed.
9 March 2016.	Entry reads “neuropathic pain”. Norspan prescribed.
30 March 2016	Complaints of back pain recorded.
25 May 2016	Back pain and neuropathic pain recorded. Lyrica and Norspan prescribed.
2 June 2016	Prescribed Norspan.
29 June 2016	Entry reads “back pain worse with cold weather, neuropathic pain”. Prescribed Norspan and Lyrica.
13 July 2016	Entry reads “c/o multiple joint pain”. Norspan prescribed.
2 August 2016	Lyrica and Norspan prescribed.
25 August 2016	Lyrica and Norspan prescribed.
10 October 2016	Norspan prescribed

Consultations immediately following the accident

1. Ms Hijazi consulted Dr Awada on 15 October 2016 following the accident. He recorded Ms Hijazi was the driver of a car stationary on Canterbury Rd when hit by another car at high speed. His clinical notes record complaints of neck pain, headache, nausea, bilateral shoulder pain, pressure in the ears, mid-lower back pain and increased anxiety.

2. On 18 October 2016 Dr Awada reported Ms Hijazi was complaining of pain across her chest (seat belt area), she continued to have pressure over her ears, neck pain, and 50% ROM (range of movement). On 25 October 2016 Dr Awada recorded severe neck pain nocturnal symptoms, fragmented sleep, headaches …. His handwritten notes are difficult to read.

Dr Awada’s report

1. Dr Awada provided a report dated 3 December 2016.[18] He stated when he saw Ms Hijazi on 15 October 2016, she advised him of her involvement in the accident and complained of neck pain and stiffness, headaches and nausea, bilateral shoulder pain, feeling of pressure in the ears, mid to low back pain, worsening anxiety. He stated later she started to complain of left arm pain associated with pins and needles and some numbness. She also complained of low back pain down both legs, with the left worse than the right associated with paraesthesia.

   [18] Insurer’s bundle p 456.

2. In terms of past history Dr Awada recorded inter alia, a long history of low back pain treated conservatively and intermittent neck pain without involvement of the upper limbs. He stated before the accident the back and neck conditions were quiescent and under good control, but they were severely aggravated by the accident. He also reported no prior history of shoulder injury or symptoms.

3. Dr Awada diagnosed:

   ·        Whiplash injury of the neck.

   ·        Cervical spine discopathy at two levels associated with neuropathic pain due to nerve root compromise.

   ·        Musculo-ligamentous strain and derangement of the lumbar spine lumbo-sacral spine discopathy at two levels causing neuropathic pain in the lower limbs due to nerve root compromise.

   ·        Bilateral shoulder bursitis and tendon tear.

   ·        Aggravation of anxiety and depression.

Investigations

MRI of the lumbar spine 2 September 2010

1. On 2 September 2010 Ms Hijazi underwent an MRI of the lumbar spine.[19] The report stated:

   “There is a mild broadbased disc protrusion at L4/5 encroaching onto both lateral recesses. There is a mild degree of central stenosis at this level as well as mild narrowing of the right intervertebral foramen. There is mild to moderate narrowing of the right L5/SI intervertebral foramen.”

Whole body bone scan 17 September 2010

[19] Insurer’s bundle p 93.

1. A whole-body bone scan undertaken on 17 September 2010[20] concluded:

   “Bilateral L5/SI facet joint arthritis more marked on the right (arrowed);

   Right sacro-iliac joint arthritis;

   Mild right trochanteric bursitis; and

   Minor arthritis of both knees.”

   [20] Insurer’s bundle p 94.

CT Lumbar Sacral spine 22 March 2012[21]

[21] Insurer’s bundle p 235.

1. The report of Dr Chadban addressed to Dr Giurgius reads:

   “Degenerative disease as described with severe canal stenosis at the L4/5 level and moderate to severe canal stenosis at the L5/S1 level. There is moderate bilateral L4 and severe right L5 neural foraminal stenosis. Further degenerative disease is noted within both sacroiliac joints”.

MRI of the Lumbar Spine 12 May 2012[22]

[22] Insurer’s bundle p 551.

1. Dr Kuan reported on an MRI of the lumbar spine of 12 May 2012 as follows:

   “There is a right sided disc protrusion at L5/S1 compressing the L5 nerve root in the exit foramen. There is moderate spondylitic narrowing of the right lateral recess at this level with potential compromise to the right S1 nerve root. There is a mild degree of central canal stenosis at L4/5.”

MRI Lumbar spine 14 May 2012

1. Dr Kuan reported:

   “There is a right sided disc protrusion at L5/S1 compressing the L5 nerve root in the exit foramen. There is moderate spondylitic narrowing of the right lateral recess at this level with potential compromise to the right S1 nerve root. There is a mild degree of central canal stenosis at L4/5.”

CT Cervical Spine 23 August 2012[23]

[23] Insurer’s bundle p 236.

1. In his report addressed to Dr A Selim, Dr Chadban comments:

   “Degenerative disease as described with a focal left paracentral disc osteophyte complex at the C5/6 level abutting and compressing the spinal cord. Prominent left C6 and C7 neural foraminal stenosis with mild right C6 neural foraminal stenosis. Moderate facet joint degenerative disease on the right side at the C4/5 level.”

CT lumbar spine 16 March 2015

1. Dr Davydenko reported on a CT scan of the lumbar spine undergone on 16 March 2015. The report contains the following comment:

   “Mild to moderate degenerative change in the lumbar spine, worse at L5/S1 level.

   Moderate canal stenosis at L4/5.

   Mild canal stenosis at L5/S1 level.

   Moderate to significant multifactorial narrowing of the neuroforamina at L4/5 and L5/S1 bilaterally with expected compromise of the exiting nerve roots of L4 and L5.

   Bilateral multilevel facet joint degeneration, more worse at L5/S1.”

X-ray of the pelvis/left hip/right hip 16 March 2015

1. The report concludes:

   “Hip joint are enlocated.

   There is mild degenerative arthropathy with subchondral sclerosis predominantly involving the acetabular roof. There is mild narrowing of the joint spaces.

   There is mild to moderate degenerative arthropathy involving the sacroiliac joints.

   There is no aggressive bone lesion.

   No acute fractures if defined.”

CT lumbar sacral spine 9 March 2016[24]

[24] Insurer’s bundle p 211.

1. The report of Dr Parker reads:

   “Spondylolisthesis at L5/S1 of 3mm and 1 mm of retrolisthesis at L1/2. Multiple facet joint degenerative change, in particular, marked bilateral L5/S1, moderate bilateral L4/5 and mild bilateral L3/4.

   Mild canal stenosis at L4/5 and L5/S1. At L4/5 there is a moderate sized posterior disc bulge causing marked narrowing of the right and moderate to marked narrowing of the left neural exit foramen (L4 nerve roots). At L5/S1 there is marked narrowing of the left and moderate to marked narrowing of the right neural exit foramen (L5 nerve roots). There is also a partial effacement of the lateral recess partially at L5/S1 level which can be a cause for bilateral S1 nerve root irritation or impingement.”

CT scan of cervical and lumbosacral spine 28 November 2016[25]

[25] Insurer’s bundle p 75.

1. A CT scan of the cervical spine of 28 November 2016 was reported to show

   “Disc osteophyte complexes at C5/6 and C6/7 levels. Degenerative changes at the uncovertebral joints and facet joints at multiple levels. Central canal stenosis and left neural foraminal stenosis at C5/6 level and C6/7 levels.”

2. A CT of the lumbosacral spine performed the same day was reported to demonstrate:

   ”Degenerative changes at Intervertebral Joints and facet joints at multiple levels, Disc protrusion L4/5 and L5/S1 levels. Central canal stenosis and left neural foraminal stenosis at L4/5 and L5/S1 levels.”

X-ray and ultrasound of right and left shoulder 5 December 2016

1. The claimant underwent an X-ray on 5 December 2016 which demonstrated mild to moderate bony spurring at the greater tuberosity of the right and left humerus.[26]

   [26] Insurers bundle p 73.

2. An ultrasound of the right shoulder also on 5 December 2016 was reported to show subacromial/subdeltoid bursitis and a partial width full thickness tear of the supraspinatus tendon.[27] An ultrasound of the left shoulder was reported to show subacromial/subdeltoid bursitis and a partial width full thickness tear of the supraspinatus tendon.

   [27] Insurers bundle p 73.

MRI report of cervical spine 8 August 2017

1. In an MRI report of the cervical spine of 8 August 2017 Dr Matthew Lee[28] provided the following conclusion:

   “1.     Left C6—7 severe foraminal stenosis.

   2.      Central/left paracentral C5-6 disc osteophyte contacting cord but without significant change and also moderate left foraminal stenosis.”

Multiposition MRI lumbosacral spine 22 November 2017[29]

[28] Insurer’s bundle p 65.

[29] Insurer’s bundle p 463.

1. The report of Dr Philip Herald concluded Ms Hijazi had widespread degenerative changes and neural exit foraminal stenosis at L3 and L4 was demonstrated during extension.

X-ray thoracic and lumbar spine 27 February 2018[30]

[30] Insurer’s bundle p 683.

1. In a report dated 27 February 2018 Dr Nicholas reported an exaggerated thoracic kyphosis. Of the lumbar spine she reported a mild anterolisthesis of L4 on L5 grade 1, mild curvature convex to the right, disc heights preserved and facet arthropathy at 4/5 and 5/1 bilaterally.

CT of the Cervical spine and the lumbar spine of 29 November 2018

1. The report of the CT of the cervical spine was not included in the documents furnished by the parties but was referred to in the report of Dr Panjratan dated 8 May 2020 as follows:[31]

   “Disc osteophyte complexes at C5/6 and C6/7 levels. Degenerative changes at the uncovertebral joints and facet joints at multiple levels. Central canal stenosis and left neural foraminal stenosis at C5/6 level and C6/7 level.”

   [31] Insurer’s bundle p 519.

2. Dr Panjratan provided the following report of the CT of the lumbosacral CT:

   “Degenerative changes at the intervertebral joints and facet joints at multiple levels. Disc protrusion at L4/5 and L5/S1 levels. Central canal stenosis and left neural foraminal stenosis at L4/5 and L5/S1 levels.”

MRI of the cervical spine of 5 March 2019

1. This report was not included in the documents furnished by the parties but was referred to in the report of Dr Home dated 8 May 2020 as follows:[32]

   “C1/2 and C3/4 preserved, mild spondylotic change at C4/5. At C5/6 there is moderate disc desiccation with a small central disc protrusion slightly indenting the cord. There is mild canal stenosis. There is prominent uncovertebral and mild apophyseal joint arthropathy. This is causing bilateral high grade foraminal narrowing, left more than right. There is potential compromise to both C6 nerve roots. At C6/7, there is moderate disc desiccation and mild posterior annulus bulging. There is prominent left sided uncovertebral joint arthropathy. There is high grade narrowing of the left intervertebral foramen with potential compromise to the left C7 nerve root. At C7/T1 the disc is intact.”

MRI of the lumbar spine of 27 March 2019[33]

[32] Insurer’s bundle p 484.

[33] Insurer’s bundle p 592.

1. Ms Hijazi underwent an MRI of the lumbar spine on referral from Dr Saeed Kohan on 25 March 2019. Dr Kuan issued a report dated 27 March 2019 in which he reported:

   “Comment: There is no significant neural compression. There is a moderate central disc protrusion at L4/5 and a mild degree of canal stenosis. There is prominent facet joint arthropathy at L5/S1.”

MRI of the right shoulder 30 April 2019

1. This report was not included in the documents furnished by the parties but was referred to in the report of Dr Home dated 8 May 2020 as follows:[34]

   “At the right shoulder, there is a large full thickness tear in the anterior and mid portions of the supraspinatus measuring 2.6cm anteroposterior with proximal retraction beneath the AC joint. There is moderate degree of fatty muscle atrophy. There is a partial thickness articular sided tear in the superior and mid portions of the subscapularis measuring 13 to 14mm superior to inferior. There is a moderate degree of muscle atrophy. The infraspinatus is intact. There is subcortical geode in the greater tuberosity measuring 1cm. There is moderate AC joint arthritis”.

MRI of the left shoulder 1 May 2019[35]

[34] Insurer’s bundle p 484.

[35] Insurer’s bundle p 505.

1. Dr Williams reported:

   “Comment: Complete full thickness tear of supraspinatus with retraction. Diffuse tendinotic changes in the rotator cuff elsewhere. AC joint degeneration, glenohumeral joint effusion, bursal fluid and mild supraspinatus atrophy.”

Clinical records of Physio Interactive

1. These records detail attendances from 23 March 2017 to 4 September 2018. In a report dated 6 January 2018 [36] Patricia Katehos provided the following provisional diagnosis:

   ·        Whiplash associated disorder Grade II, with referred pain down both arms. Underlying C5/6 osteophyte left C6 nerve root irritation and C5/6 osteophyte.

   ·        Discogenic/degenerative lumbar spine, with nerve root irritation of the left exiting L4 and L5 nerve root.

   ·        Right shoulder full thickness tear supraspinatus and noted subacromial bursitis.

   ·        Left shoulder full thickness tear supraspinatus and noted subacromial bursitis.

   [36] Insurer’s bundle p 52.

2. Ms Katehos recommended referral to a pain clinic due to the chronicity of symptoms and only temporary relief to date. She also recommended a cortisone injection for the right shoulder.

3. Ms Katehos provided a further report dated 5 November 2018.[37] She recorded following a cortisone injection Ms Hijazi reported an increase in her bilateral shoulder pain and irritability. She reported she was unable to sleep due to pain.

   [37] Insurer’s bundle p 646.

4. In a report dated 23 January 2019 Ms Katehos reported pain ongoing in the cervical and lumbar spine from the accident and significant anaesthesia into bilateral hands reducing her ability to perform activities of daily living.[38] Ms Katehos reported pain focused behaviour and depression.

Reports of Dr Saeed Kohan

[38] Insurer’s bundle p 650.

1. Ms Hijazi saw Dr Kohan, neurosurgeon on 23 June 2017. Dr Kohan provided a report to Dr Awada the same day.[39] He reported the following:

   “The current issues that she is reporting is pain from the base of the neck radiating to both scapular region and posterior arm and forearm, especially on the left side with associated numbness in the middle and ring finger on the left which is mostly happening at night. She also has constant pain in the lower back with radiation to right buttock, posterior thigh and calf to the ankle.

   She has no previous history of any motor vehicle accident but has had lower back pain on and off previously.”

   [39] Insurer’s bundle p 655.

2. Dr Kohan recommended Ms Hijazi undergo a right S1 peri-radicular steroid injection stating Ms Hijazi had significant chronic spondylotic changes aggravated following the accident. He further stated:

   “There is no evidence any acute injury and this is a situation that we commonly observe in individuals developing radicular symptoms as well as chronic neck and back pan following a significant motor vehicle accident.”

3. On 10 October 2017 Ms Hijazi underwent a CT guided right S1 injection.[40]

   [40] Insurer’s bundle p 461.

4. On 7 November 2017 Dr Kohan reviewed the MRI scan and reported Ms Hijazi continued to complain of right sided sciatica with no improvement with conservative treatment including nerve blocks.[41] He recommended surgery, lumbar laminotomy on the right side and nerve root decompression.

   [41] Insurer’s bundle p 603.

5. In a report dated 19 June 2018 Dr Kohan noted Ms Hijazi was continuing to experience severe right leg pain.[42] Dr Kohan indicated he was happy to proceed to surgery in the public hospital, noting he was concerned that her ongoing chronic pain would lead to a more complicated recovery and potentially predispose her to the risk of chronic neuropathic pain.

   [42] Insurer’s bundle p 639.

6. On 26 February 2019 Dr Kohan reported Ms Hijazi was experiencing calf pain on the left side as well as the right sided leg pain radiating to the foot in a mostly S2 dermatomal distribution.[43]

   [43] Insurer’s bundle p 658.

7. On 15 May 2019 Ms Hijazi underwent a lumbar laminotomy and decompression of the right L5/S1 nerve roots under the care of Dr Kohan at St George Hospital.[44]

   [44] Insurer’s bundle p 663.

8. On 25 June 2019 Dr Kohan noted Ms Hijazi reported significant improvement in her leg pain but was still complaining of back pain.[45]

   [45] Insurer’s bundle p 688.

Reports of Dr Hugh Jones

1. Dr Hugh Jones provided a report to Dr Awada dated 19 July 2018.[46] He reported Ms Hijazi had injuries to her low back, neck, and both shoulders when she was T-boned at a red light and hit on the driver’s side door. He reported she continued to have pain in the antero-lateral left shoulder and right shoulder to a lesser degree. He noted the ultrasound demonstrated high grade partial thickness tear of the left supraspinatus and the right side to a lesser degree. He was unclear whether the neck pathology was contributing to the referred shoulder pain or whether she had significant impingement and symptoms from the rotator cuff tear.

   [46] Insurer’s bundle p 645.

2. In a report dated 13 December 2018 Dr Jones reported Ms Hijazi had no neurological symptoms in her upper extremities but restriction of cervical movement and tenderness on the right.[47] His impression was that whilst there may have been a component of pain arising from the cervical spine there may also exist primary shoulder pathology not yet identified on imaging. He recommended an MRI of the cervical spine.

   [47] Insurer’s bundle p 649.

3. In a report dated 2 April 2019 Dr Jones noted an MRI of the right shoulder showed a “large somewhat retracted tear of her supraspinatus”.[48] Whilst he said he would attempt a repair it might be unsuccessful given the size of the tear.

   [48] Insurers’s bundle p 659.

4. Dr Jones provided a report dated 29 May 2020. [49] He reported Ms Hijazi was quite disabled by bilateral antero-lateral shoulder pain. He diagnosed bilateral full thickness rotator cuff tears.

   [49] Insurer’s bundle p 510.

5. On the basis there was no prior history of shoulder problems he concluded that the shoulder injuries were sustained at the time of the “high energy motor vehicle accident”.

6. Dr Jones reported that because surgery had been delayed the rotator cuff tears had enlarged significantly causing “a significant and irreversible effect on the outcome of intervention in this lady’s long term shoulder function”.

Medico-legal reports

Report of Dr Alan Home dated 17 November 2017[50]

[50] Insurer’s bundle p 465.

1. Ms Hijazi saw Dr Home at the request of the insurer on 17 November 2017. He provided a report dated 29 November 2017. At the time of the assessment Ms Hijazi did not recall any history of shoulder complaints and very little pain in the neck. She recalled occasional pain in the lower back over five to seven years until shown her medical file when she confirmed she had suffered from chronic lower back pain, investigated by CT investigation, a referral to Dr Diwan and the use of analgesia including Norspan patches and Lyrica prior to the accident. Subsequently she recalled a history of periodic neck pain and a prior motor vehicle accident 20 years earlier resulting in neck and back injuries with continuing back pain.

2. Dr Home reported Ms Hijazi described neck pain present most days at an intensity of between 5 and 8 out of 10. She reported difficulty sleeping on either shoulder with an exacerbation of neck pain causing her to wake. She reported she sometimes experiences a sensation of numbness in the left middle finger and sometimes wakes with numbness in her hands.

3. He reported right shoulder pain in the region of the right trapezius muscle and restricted shoulder motion. Ms Hijazi also reported moderate pain in the left shoulder associated with mild restriction of movement.

4. Dr Home stated Ms Hijazi described constant pain in the lower back, which is variable but more severe on the right side than the left. He reported radiation of pain to the buttocks and variable pain radiating down the back of the right leg as far as the knee and sometimes to the ankle.

5. Dr Home concluded there was no significant change in the reported findings of the pre accident CT scan of 16 March 2016 with the post-accident CT scan of 28 November 2016.

6. Dr Home concluded Ms Hijazi sustained the following injuries in the accident:

   “•       soft tissue injury to the cervical spine;

   •       soft tissue injury to the right and left shoulders, resolved; and

   •       soft tissue injury to the lumbar spine superimposed upon pre-existing symptomatic degenerative change (chronic low back pain)”.

7. In relation to her neck complaint, Dr Home found Ms Hijazi had sustained an aggravation of underlying cervical spondylosis. He noted non-verifiable radicular complaints in the left hand. Apart from the finding of reduced sensibility in the left middle finger he found there were no clinical findings of radiculopathy in the left upper extremity.

8. Dr Home found the back complaint is an aggravation of a symptomatic complaint and that the radicular pain in the right leg was an aggravation of previous neurological symptoms repetitively documented by her treating general practitioner in the medical records. Dr Home noted Ms Hijazi was taking Lyrica to manage neuropathic pain prior to the accident and there had been no benefit from a right S1 nerve root block.

Report of Dr Alan Home dated 8 May 2020[51]

[51] Insurer’s bundle p 481.

1. Dr Home reassessed Ms Hijazi at the request of the insurer on 8 May 2020.

2. He reported Ms Hijazi had undergone a right L4/5 and left L5/S1 decompression on 15 May 2019 under the care of Dr Kohan. Following recovery from the surgery Ms Hijazi said her symptoms had settled.

3. Ms Hijazi had come under the care of Dr Hugh Jones, orthopaedic surgeon who had recommended bilateral rotator cuff repair surgery.

4. Her symptoms at that time included neck pain felt daily as a mild ache in the midline, intermittent numbness in both hands occurring at night. Ms Hijazi also reported mild stiffness of neck motion in all planes, prominent pain and restricted motion of both shoulders. She also reported lower back pain present most of the time and avoided heaving lifting due to both back and shoulder complaints.

5. Dr Home’s opinion as to diagnosis was unchanged from his earlier report. He reported Ms Hijazi was reporting symptoms of nocturnal hand numbness possibly signalling either emerging C7 radicular complaints or the development of unrelated carpal tunnel syndrome. He found no abnormal neurological clinical findings on examination of the upper extremities.

6. In relation to the shoulder complaints Dr Home noted the further imaging identified a progression of rotator cuff tears with retraction of the supraspinatus tendons on each side which he concluded reflected a progression of the underlying degenerative changes which were causally unrelated to the accident. In particular, he stated the development of muscle atrophy and tendon retraction on both sides reflected a progression of the underlying degenerative change.

7. In relation to the lumbar spine Dr Home concluded there was an aggravation of the previous symptomatic complaint and the development of more regular radicular pain in the right leg which he considered was a progression of the established pre-existing, pre-accident pathology.

8. Dr Home assessed a DRE Cervicothoracic Spine Category II impairment rating of the cervical spine resulting in a 5% WPI rating. He found there were non-verifiable radicular complaints.

9. Dr Home found the clinical presentation of the lumbar spine was consistent with a DRE Category III impairment rating noting there had been surgical decompression of the L4/5 and L5/S1 nerve roots. However, after deducting 5% for the pre-existing impairment Dr Home determined Ms Hijazi had a 5% WPI as a result of the accident.

10. Whilst Dr Home found restricted shoulder motion, he did not attribute those complaints to the accident but to the progression of underlying degenerative changes and assessed a 0% WPI in respect of each shoulder due to the accident.

Report of Dr Vijay Panjratan dated 8 May 2020[52]

[52] Insurer’s bundle p 512.

1. Dr Panjratan assessed Ms Hijazi at the request of her lawyers. He obtained a history of previous problems in the neck and lower back but no previous problems in the shoulders. Dr Panjratan reported following the accident Ms Hijazi had neck pain and lower back pain which required increasing dose of analgesia. He reported:

   “At that time, she had pain in the base of the neck radiating into both scapular regions and posterior arm and forearm, especially on the left side with associated numbness in the middle and ring fingers on the left which is mostly happening at night. She also had constant pain in the lower back with radiation to right buttock, posterior thigh and calf to the ankle.

   There was no previous history of any motor vehicle accident but has had lower back pain on and off previously. She does not feel any weakness but generally finds it quite difficult to function as the pain stops her from doing any significant physical activity.”

2. On examination Dr Panjratan found cervical movement was reasonable, with some pain on looking down but no marked restriction other than at the extreme range. He concluded that the pain and paraesthesia was in the fingers and likely to be coming from the neck.

3. Dr Panjratan observed restriction of movement of both shoulders and concluded the need for bilateral shoulders surgery was causally related to the injury on the basis Ms Hijazi had no problem in her shoulders before the accident and the problems only developed after the accident.

4. He disagreed with the decision of the Review Panel finding that the lumbar laminotomy and decompression surgery was not reasonable and necessary in relation to the injury sustained in the accident.

5. Whilst Dr Panjratan had access to the reports of Dr Kohan and Dr Jones it does not seem that he had access to the records of Dr Diwan or the pre-accident clinical notes. He did review the CT scan of the lumbar spine of 16 March 2015, the X-ray of the pelvis and hips of 16 March 2015, and the CT of the lumbosacral CT of 9 March 2016.

6. Dr Panjratan provided a supplementary report of 8 May 2020 where he provided an assessment of permanent impairment. In respect of the lumbar spine, he found Ms Hijazi fell into the DRE Lumbosacral Spine Category III which attracted a 10% WPI but he deducted 10% for pre-existing symptoms resulting in a 9% WPI. He concluded Ms Hijazi had radiculopathy of the cervicothoracic spine which would fall into DRE Category III giving a 15% WPI. Again, he deducted 10% for the pre-existing symptoms resulting a 14% WPI. He assessed at 5% WPI for the left shoulder and a 7% WPI for the right shoulder arriving at a total WPI of 31%.

Medical assessment reports

Report of Medical Review Panel[53]

[53] Insurer’s bundle p 497.

1. A Medical Review Panel comprised of Assessor Ian Cameron, Assessor Mohammed Assem and Assessor Sophie Lahz issued a certificate dated 21 April 2019. The Panel determined that the surgery, namely the lumbar laminotomy and decompression of the right L5/S1 nerve roots related to the injuries caused by the accident but found the surgery was not reasonable and necessary.

2. The Panel determined that the use of a Swiss ball and Therabands for a home exercise programme for treatment of injuries to the neck, shoulder, arms, hands, chest and back related to the injuries caused by the accident but found the use of a Swiss ball and Therabands was not reasonable and necessary.

3. The Panel also determined that one proposed consultation with Dr Saeed Kohan on 3 January 2018 for injuries relating to the neck, shoulder, arms, hands, chest and back was related to the injuries caused by the accident and was reasonable and necessary.

4. The Panel found that Ms Hijazi sustained an injury to the lumbar spine in the accident, namely an aggravation of pre-existing lumbar spondylosis. Further the Panel concluded the disputed treatments were causally related to the accident because the treatment requests would not have been made if the accident had not occurred, noting Ms Hijazi had complained of increased pain in the lower back and lower limbs after the accident.

5. However, the Panel found the surgery was not reasonable and necessary because it was unlikely to assist Ms Hijazi’s pain or reduce her disability. This was because the Panel found she had diffuse lower extremity pain that was not radicular in nature associated with lower back pain that was resistant to opioid treatment.

6. The Panel found the Swiss ball and Therabands were unlikely to be used by Ms Hijazi given her intolerance of physical activity/exercise and that such use in the long term was unlikely to alter her symptomatic complaints.

RELEVANT LEGAL AUTHORITY

1. Causation of injury is addressed in the Guidelines:

   “1.5   An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

   1.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

   1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

   2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’

   This, therefore, involves a medical decision and a non-medical informed judgement.

   1.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

2. In Norrington v QBE Insurance (Australia) Ltd[54] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:

   “In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”

SUBMISSIONS

[54] [2021] NSWSC 548, Norrington.

The insurer’s submissions

1. The insurer submits that Medical Assessor Bodel erred in finding Ms Hijazi had “recovered” prior to the accident and was “otherwise quite well” amounting to a clear disregard of the pre-accident treating records, particularly the clinical records of Dr Awada and Dr Diwan. The insurer submits those records “shed light on the claimant’s vast degenerative comorbidities and neuropathic pain in the lumbar spine” which remained symptomatic up to the date of the accident.

2. The insurer submits the records of Dr Awada show an obvious dependency on the opioid Norspan to treat her back issues.

3. The insurer states that according to a self-reported questionnaire dated 9 August 2010, the claimant said she suffered from low back and/or buttock pain “all of the time”. Upon answering the ‘bothersome’ section of the questionnaire, the claimant reported she suffered from extreme pain, where on a scale of 0 to 10 (10 being the worst), the claimant reported a 10. Additionally, there was a notable restricted range of movement. Similar findings were reported on 5 April 2012 and 16 January 2013.

4. The insurer submits that the clinical records of Dr Diwan confirm a pre-accident DRE II impairment of the lumbar spine and when read in conjunction with the clinical records of Dr Awada, it is overtly apparent that the claimant’s symptoms did not subside as erroneously determined by Medical Assessor Bodel.

5. The insurer disputes the conclusion of Medical Assessor Bodel that there were no prior issues with respect to the claimant’s shoulders. The insurer submits:

   “Encompassed within the clinical records of Dr Ashish Diwan, a treating report of Dr Ashish Diwan dated 9 August 2010 confirmed that the claimant has a longstanding history of ‘bilateral arm pain especially on sleeping on an on and off basis’. According to the Department of Orthopaedic Surgery questionnaire completed by the claimant on 27 September 2010, the claimant was experiencing bilateral arm pain ‘Most of the time (Once a day)’ and on a scale of 1 to 10 (with 10 being the most extreme case), the claimant reported a 9/10 for the right arm and a 6/10 in the left arm.

   Having regard to the claimant’s completed ‘Patient Information’ diagram dated 17 October 2012 (page 62, 70 and 73 of the Dr Diwan’s records), it is overtly clear that the claimant was suffering from an extraordinary amount of pain to both shoulders. Indeed, she identified the pain to her shoulder as ‘worst pain’ (10/10) thus resulting in ‘worst disability’ (10/10) with respect to daily activities.

   Further, the insurer draws attention to the clinical records of Dr Awada’s Surgery. From what can be deciphered, the clinical notes of Dr Awada crucially indicate that the claimant was suffering from shoulder pain, where notably on 7 October 2015, Dr Awada reported ‘… shoulder pain worsen… deep irritation…? muscular pain’.”

6. Further the insurer submits Medical Assessor Bodel failed to identify numerous inconsistencies of past examinations of the shoulder when compared to his own assessment. The insurer noted that Medical Assessor Bodel found the restriction in range of movement of both shoulders was identical. The insurer relied upon the following table as to the inconsistencies identified on formal and informal examination:

Exam	Flexion	Extension	Adduction	Abduction	Internal Rotation	External Rotation
Physio Interactive 23.3.17	180º R 140º L	180º R 120º L	4/8	4/8
Dr Home 17.11.17	180º	50º	40º	170º R 180º L	80º	80º
Dr Jones 13.12.18	Claimant’s left shoulder had near full range of motion with 5/5 power.
Dr Vijay Panjratan 8.5.20	115º R 120º L	40º	30º R 40º L	90º R 160º L	60º	80º
Medical Assessor Bodel 16.3.21	120º	30º	10º	90º	50º	50º

1. The insurer submits given the consistent findings of greater range of motion in the shoulders Medical Assessor Bodel ought to have modified the impairment assessment to reflect prior assessments that confirmed greater ranges of motion displayed.

The claimant’s submissions

1. The claimant provided submissions dated 12 August 2021 in response to the Review Application. Noting the Delegate of the President was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect the Panel will only consider those submissions which address the substantive review.

2. The claimant submits that any reference in the clinical notes of Dr Ashish Diwan to arm pain is based on referred pain and not causally related to injury to the shoulders.

3. The claimant point out no radiology of the shoulders was taken before the accident. The claimant submits in arriving at his finding of causation in respect of the bilateral shoulder injuries Medical Assessor Bodel correctly relied upon the MRI of the left shoulder dated 1 May 2019 and the X-ray and ultrasound of both shoulders dated 6 December 2016 which identified bilateral rotator cuff tears.

MEDICAL EXAMINATION

1. Ms Kamle Hijazi attended the medical examination with Medical Assessor Berry on 24 October 2022. An Arabic Interpreter was also present.

Social history

1. Ms Hijazi stated she suffered from a left below knee amputation. This arose from a shotgun injury 30 years ago although the amputation was performed in Australia. She has been on a Disability Support Pension.

2. Ms Hijazi confirmed that she is divorced. She has a son and daughter and is currently living in an apartment with her son.

Background

1. Ms Hijazi stated that she had had two previous motor accidents the first one in 2010 and then in 2012. She is unable to recall the second accident but she knows that from the first accident she suffered chronic neck and back pain. She also indicated that she experienced discomfort in the shoulders which she said came from the joints although this was very minor until she had the 2016 accident.

2. Ms Hijazi also indicated that there was a further motor accident in 2019 when she hit a one metre pole that was being used as a signpost. She indicated she suffered no pain as a result of that accident in any area.

History of accident

1. The accident occurred on 15 October 2016. Ms Hijazi was the driver of a Mazda 3 sedan wearing a seatbelt travelling home from her daughter’s place. She was travelling on Belmore Road and stopped at the intersection of Canterbury Road when a vehicle tried to turn right into Belmore Road from Canterbury and lost control colliding with her vehicle and a number of other vehicles.

2. Ms Hijazi indicated that she was able to self-extricate. She contacted her son and after exchanging details he drove her home. By that stage, she had pain in her neck, back and in both shoulders and she was therefore taken to her general practitioner, Dr Awada, who treated her conservatively.

Treatment after the motor accident

1. Ms Hijazi told me that her neck and back pain was much worse and her shoulder pain changed from occasional pain to constant pain. She came under the care of Dr Saeed Kohan, neurosurgeon, and was admitted to St George Private Hospital in 2019 and underwent decompressive surgery which has significantly relieved her pain.

Current status

1. At the present time, Ms Hijazi complained of pain in the neck which is aggravated by twisting and turning movements. She also has a feeling of numbness down both arms which affects the front and back of both hands. With regards to her shoulders, she still has pain and stiffness. With regards to her back, the pain has virtually resolved.

Present treatment

1. At the present time her treatment consists of medication. She is taking Lyrica, Panadeine Forte, Panadol, Nurofen and Voltaren.

Physical examination

1. Ms Hijazi presented as a woman of short, solid statue who walked without a limp and was able to sit comfortably. She was noted to be 160cm in height and 95kg in weight.

Cervical spine

1. Ms Hijazi was diffusely tender to palpation. There was no muscle spasm and no muscle guarding. There was a full range of flexion, extension and left and right rotation. There was no alteration of spinal contour.

Upper extremities

1. All active movements were measured using a goniometer. Ms Hijazi was able to demonstrate a normal range of movement of both shoulders. She was tender across the front of both shoulders. There was no obvious wasting. Reflexes were intact. There was no unilateral muscle wasting and no dermatomal sensory changes and no evidence of nerve root tension sign.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	180°	180°
Extension	50°	50°
Adduction	50°	50°
Abduction	180°	180°
Internal Rotation	90°	90°
External Rotation	90°	90°

Thoracolumbar spine

1. Ms Hijazi had a midline scar consistent with her surgery. She demonstrated three quarters of the normal range of flexion, virtually no extension and two thirds of the normal range of rotation.

Lower extremities

1. Ms Hijazi had an obvious below knee amputation on the left side. On the right side, reflexes were intact and sensation was normal and there was no obvious wasting. No other abnormality were detected.

PANEL FINDINGS

1. The Panel finds the 11 January 2019 motor accident was a minor one and notes the claimant states she did not suffer any injury in the 2019 accident.

Cervical spine

1. Ms Hijazi admitted to suffering pain in the 2010 and 2012 accident, mainly back pain and to a lesser degree in the neck. The Panel finds Ms Hijazi suffered soft tissue injury to the cervical spine caused by the accident having regard to the contemporaneous records and consistent history of complaint thereafter.

2. Today, Ms Hijazi shows a full range of movement with no dysmetria, guarding or evidence of upper limb symptoms and signs. She complained of pain in the neck and was tender to palpation. However, there were no significant clinical findings, no muscle guarding or spasm, no reduction in range of movement, no documented neurological impairment and no indication of a non-verifiable radicular complaint. In accordance with chapter 3 of the AMA 4 Guides Ms Hijazi would be assessed as DRE Cervicothoracic Category I with an assessment of 0% WPI.

Lumbar spine

1. The Panel notes whilst Ms Hijazi had a long history of chronic back pain there was an increase in her complaints following the accident particularly in relation to pain radiating to the right buttock and down the right leg. Dr Awada the treating general practitioner reported her back condition was under good control but severely aggravated by the accident. Significantly on 7 November 2017 and on 19 June 2018 Dr Kohan reported severe right leg pain which failed to improve with conservative treatment.

2. Noting the test for causation in the Guidelines, the Panel is satisfied the accident, whilst not the sole cause of the claimant’s lumbosacral spine impairment, was a contributing cause which was more than negligible.

3. Ms Hijazi has been operated on and this has considerably reduced her symptoms. There was no evidence of right lower limb radiculopathy.

4. The Panel finds Ms Hijazi sustained a soft tissue injury to the lumbar spine as a result of the accident superimposed upon pre-existing symptomatic degenerative change

5. The Panel finds the clinical presentation of the lumbar spine was consistent with a DRE Category II impairment which results in a 5% WPI rating noting there had been surgical decompression of the L4/5 and L5/S1 nerve roots but with no clinical signs of persisting radiculopathy. 

6. Clause 1.31 of the Guidelines provides:

   “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”.

7. Prior to the accident on 15 October 2016 Ms Hijazi had multiple scans of the lumbar spine demonstrating significant changes including spondylolisthesis at L5/S1. A CT scan on 16 March 2015 showed moderate canal stenosis at L4/5 and mild canal stenosis at L5/S1. A whole-body bone scan dated 17 September 2010 showed bilateral L5/S1 facet joint arthritis more marked on the right. There was also a significant history of complaints and on 5 April 2012 and again on 10 October 2022 Dr Diwan said he believed Ms Hijazi would eventually require a L5-S1 decompression fusion.

8. However, notwithstanding the claimant’s pre-accident lumbar complaints the Panel is satisfied the accident was a material contribution to the need for surgery.

9. The Panel is unable to find objective evidence (such as records of restricted movement) of a pre-existing symptomatic impairment in the same region at the time of the accident, and therefore in accordance with clause 1.31 of the Guidelines, the possible presence of such pre-existing impairment is ignored.

10. Therefore, the Panel determines Ms Hijazi had a 5% WPI of the lumbar spine caused by the accident.

Shoulders

1. In terms of her shoulders, Ms Hijazi admitted that she had pre-existing pain in both shoulders which she said was due to the joints. However, on examination she demonstrated a full range of movement of both shoulders. Reflexes were intact and sensation was normal and there was no unilateral muscle wasting. The claimant did describe sensory changes but indicated they were over the front and back of both hands. Those sensory changes were not present at the time of the examination and did not follow a dermatomal distribution.

2. Not only did Ms Hijazi have a full range of movement of both shoulders on examination, but the Panel also notes she demonstrated inconsistency of shoulder movements when examined by various medical practitioners over time as demonstrated by the table at paragraph 148.

3. Further, the Panel did not find there was corroborative clinical evidence of significant shoulder impairment by way of local wasting at either shoulder or restricted rotation of either shoulder such as to determine a rateable impairment for each shoulder condition by analogy.

4. The Panel notes the ultrasound findings of 5 December 2016 demonstrated a partial width full thickness tear of the supraspinatus tendon of each shoulder, although the 2019 MRI scans demonstrated the claimant had sustained bilateral complete full thickness tears of the supraspinatus tendon with retraction.

5. Dr Jones first assessed the claimant in July 2018 with the ultrasound findings when he reported the presence of a high-grade partial thickness tear of the left supraspinatus and the right side to a lesser degree. However, when he reviewed the claimant on 2 April 2019, he noted the MRI of the right shoulder showed a “large somewhat retracted tear of the supraspinatus”. On 10 May 2019 he commented there had been a significant deterioration but stated the situation was not unusual with full thickness rotator cuff tears that progress or enlarge in size.

6. Dr Home noted the further imaging (the 2019 MRI scan) identified progression of the rotator cuff tears which he concluded reflected a progression of the underlying degenerative changes which were unrelated to the accident. He stated the development of muscle atrophy and tendon retraction on both sides reflected a progression of the underlying degenerative change.

7. On the balance of probabilities, the Panel is not satisfied the claimant suffered a rupture of both supraspinatus tendons in the accident, having regard to the mechanism of the accident which makes it unlikely she would have experienced near identical injury to each shoulder at that time and where such a rupture would have been associated with immediate severe pain. Accordingly, the Panel finds both shoulders were affected by underlying degenerative change as suggested by Dr Home.

8. Notwithstanding frequent attendances on her general practitioner pre-accident and her panoply of complaints, complaints relating to the shoulders are limited to the Patient Information diagram completed on 17 October 2012, which arguably related to referred pain from the neck, and complaints of shoulder pain on 16 September 2015 and on 7 October 2015.

9. Having regard to the limited pre-accident complaint of shoulder pain and the contemporaneous complaint of bilateral shoulder pain following the accident and the consistency of complaint thereafter the Panel is satisfied the accident caused an aggravation of the pre-existing degenerative rotator cuff tears.

10. There is no neurological disturbance in either upper extremity. Whilst Ms Hijazi’s shoulders are still symptomatic the Panel finds there is no assessable impairment. The Panel assesses a 0% WPI in respect of each shoulder.

Body Part or System	AMA Guides/ The 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 DRE I	Ch 3 pages 103-105 Table 73 AMA 4 Guides	Yes	0	0	0
2	Left shoulder	Ch 3 pages 15-74 Tables 1-34 AMA 4 Guides	Yes	0	0	0
3	Right shoulder	Ch 3 pages15-74 Tables 1-34 AMA 4 Guides	Yes	0	0	0
4	Lumbosacral Spine DRE II	Ch 3 pages 101-103 Table 72 AMA 4 Guides	Yes	5	0	5

CONCLUSION

1. The Panel finds the accident caused the following injuries and gives rise to a total WPI of 5%:

   ·soft tissue injury to the cervical spine;

   ·soft tissue injury to the lumbar spine;

   ·aggravation of pre-existing rotator cuff tear of the left shoulder, and

   ·aggravation of pre-existing rotator cuff tear of the right shoulder.

Pre-existing/subsequent impairment

1. There is no pre-existing or subsequent impairment.

Apportionment

1. Apportionment is not applicable.