AAI Limited t/as GIO v Mousa

[2024] NSWPICMP 800

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA v Mousa [2024] NSWPICMP 800

CLAIMANT:

Matthew Mousa

INSURER:

Insurance Australia Limited t/as NRMA

REVIEW PANEL

MEMBER:

Stephen Boyd-Boland

MEDICAL ASSESSOR:

Clive Kenna

MEDICAL ASSESSOR:

David Gorman

DATE OF DECISION:

27 November 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about degree of permanent impairment, physical injury, cervical spine, lumbar spine, thoracic spine, right hip, left hip, right knee, and right shoulder; Medical Assessor (MA) Nair found that the injuries to cervical spine, lumbar spine, thoracic spine, right knee, and right shoulder were caused by the motor accident; MA Nair found that the injuries to right hip and left hip were not caused by the motor accident; MA Nair assessed whole person impairment (WPI) as follows: cervical spine 10%, lumbar spine 0%, thoracic spine 5%, right knee 2%, and right shoulder 2%, finding a 19% WPI; re-examination by Medical Review Panel (Panel); Panel found that the injuries to cervical spine were caused by the motor accident; Panel found that the injuries to lumbar spine, thoracic spine; right hip, left hip; right knee, and right shoulder were not caused by the motor accident; Panel assessed WPI as follows: cervical spine 5%, finding a total 5% WPI; Held – the injuries caused by the motor accident give rise to a permanent impairment of 5%; Medical Assessment Certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

Issued under s 7.26 of the Motor Accident Injuries Act 2017

1.     The Review Panel revokes the certificate of Medical Assessor Anil Nair dated 12 December 2023.

2.     The following injury caused by the motor accident gives rise to a permanent impairment of 5% and is NOT greater than 10%:

(a)    cervical spine, soft tissue injury to the cervical spine.

STATEMENT OF REASONS

BACKGROUND

1. On 19 June 2020, Matthew Mousa (the claimant) sustained injury in a motor vehicle accident (the motor accident).

2. Insurance Australia Ltd t/as NRMA Insurance (the insurer) is the relevant insurer.

3. Matthew Mousa was involved in disputes related to treatment and also in relation to whole person impairment (WPI). This decision relates to the WPI dispute but because the initial decision involved both the treatment and WPI disputes there is some overlap of the material relating to both.

4. In this context claims and entitlements to benefits and compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).

5. Claims are initiated by lodgement of an Application for Personal Injury Benefits and also an application for Damages under Common Law arising out of the motor accident against the insurer. The legislation provides a scheme of statutory benefits (under Part 3) and lump sum damages (under Part 4).

6. Statutory benefits include weekly benefits for lost earnings and treatment and care needs for accident-related injuries.

7. Claims for damages include damages for economic losses and possibly non-economic loss resulting from accident-related injuries.

8. While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available.

9. Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13^[2] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.

10. If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for medical assessment.

11. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including (a) the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage).

12. This constitutes a medical dispute within the meaning of the MAI Act.

13. A medical assessment was conducted by Medical Assessor Anil Nair who subsequently provided a certificate dated 12 December 2023 (the Initial Assessment).

14. The following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor Anil Nair for assessment:

    (a)    cervical spine;

    (b)    thoracic spine;

    (c)    lumbar spine;

    (d)    right hip;

    (e)    left hip;

    (f)    right knee, and

    (g)    right shoulder.

15. The following treatment was referred by the Personal Injury Commission (Commission) to Medical Assessor Anil Nair for assessment:

    (a)    post-operative physiotherapy treatment for the right knee;

    (b)    physiotherapy treatment for the right knee;

    (c)    medical specialist consultation with Dr Molnar for the right knee;

    (d)    MRI scan for the right knee, and

    (e)    right knee arthroscopy.

The Medical Assessor’s certificate

1. Medical Assessor Anil Nair found that the following injuries were caused by the motor accident:

   (a)    cervical spine being cervical discogenic injury;

   (b)    thoracic spine;

   (c)    lumbar spine being degenerative disc disease in the lumbar spine;

   (d)    right knee being right knee retropatellar injury, and

   (e)    right shoulder being right shoulder tendonitis.

2. Medical Assessor Anil Nair found that the following injuries were not caused by the accident:

   (a)    right hip being right hip slipped capital femoral epiphysis, and

   (b)    left hip being left hip slipped capital femoral epiphysis.

3. The Medical Assessor found that the following treatment was related to the injuries:

   (a)    post-operative physiotherapy treatment for the right knee;

   (b)    physiotherapy treatment for the right knee;

   (c)    medical specialist consultation with Dr Molnar for the right knee;

   (d)    MRI scan for the right knee, and

   (e)    right knee arthroscopy.

4. The Medical Assessor found that the following treatment was reasonable and necessary:

   (a)    post-operative physiotherapy treatment for the right knee;

   (b)    physiotherapy treatment for the right knee;

   (c)    medical specialist consultation with Dr Molnar for the right knee;

   (d)    MRI scan for the right knee, and

   (e)    right knee arthroscopy.

5. Medical Assessor Anil Nair determined the permanent impairment as follows:

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	Tables 73	Yes	10%	0	10%
2	Thoracic Spine	Table 74 on page 11, and is DRE category 2.	Yes	5%	0	5%
3	Lumbar Spine	Yes	0	0	0
4	Right Shoulder	Pie charts 38, 41, 44, and 43 to 45.	Yes	2%	0	2%
5	Right Knee	Table 62 of AMA Version 4.	Yes	2%	0	2%

The review

1. The insurer lodged an application for review of the assessment of Medical Assessor Anil Nair.

2. On 2 February 2024 the delegate of the President determined there was reasonable cause to suspect a material error in that assessment.

3. The President of the Commission then convened a panel to conduct the review. 

4. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a decision maker. A ‘new decisionmaker’ is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new provisions apply.

5. The new review provisions provide at s 7.26(5) of the MAI Act that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.

6. Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a Medical Assessor – see s 41(2) of the PIC Act.

7. 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 the proceedings and may determine the proceeding solely based on the written application.

8. The Review Panel was comprised of two specialist medical practitioners and a legal member. The Review Panel met on a number of occasions and provided Directions to the parties.

9. The Review is not a stand alone hearing but a process involving the Review Panel seeking evidence, including additional material provided by the parties and further submissions, and potentially further medical examination, then meeting on a number of occasions to discuss the evidence before the Review Panel and to reach a view on the relevant issues and reduce that to written reasons.

10. The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion: 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] and [64].

11. Both the claimant and the insurer are legally represented and have the opportunity to provide submissions and to identify and narrow the issues in dispute so as to meet the objectives of the MAI Act.

12. Whilst the review is by way of a new assessment of all matters with which the medical assessment is concerned this occurs in the context of the initial assessment and certificate, the application for review of the assessment and the determination to conduct a review.

13. The following injuries were referred by the Commission for assessment:

    (a)    cervical spine being cervical discogenic injury;

    (b)    thoracic spine;

    (c)    lumbar spine being degenerative disc disease in the lumbar spine;

    (d)    right hip being right hip slipped capital femoral epiphysis;

    (e)    left hip being left hip slipped capital femoral epiphysis;

    (f)    right knee being right knee retropatellar injury, and

    (g)    right shoulder being right shoulder tendonitis.

Material before the Review Panel

1. Directions were issued by the Review Panel.

2. The parties were asked to provide submissions for the purpose of the review addressing various specific issues.

3. The parties provided documentation to the Review Panel.

4. The insurer provided:

   (a)    a bundle of documents “Mousa - 22.12.2023 - Revised Insurer's PIC Review Application (Certificate of Assessor Nair(92500791.1)” being 17 pages;

   (b)    a bundle of documents “Mousa - 12.04.2024 - Submissions and enclosures Review panel bundle(93921567.1)” being 1,371 pages, and

   (c)    a bundle of documents “Mousa - 2024.05.13 - Insurer's Application to admit late documents - Submissions (compiled)” being 6 pages.

5. The claimant provided:

   (a)    a bundle of documents “Claimant's submissions in reply dated 30.01.2024” being 5 pages;

   (b)    a bundle of documents “Application to admit late documents - Final Medical Review Dispute 25 March 2024” being 11 pages;

   (c)    a bundle of documents “Application to admit late documents - Submissions (003) (002)” being 3 pages;

   (d)    a bundle of documents “Claimant Bundle” being 945 pages;

   (e)    a bundle of documents “Dr McKechnie Report dated 6 May 2024” being 4 pages;

   (f)    a bundle of documents “Claimant's Additional Submissions dated 09_05_2024” being 3 pages;

   (g)    a bundle of documents “Application to admit late documents – AALD” being 3 pages, and

   (h)    a bundle of documents “Claimant's Application to Admit Late Documents - 21 May 2024” being 8 pages.

6. The insurer relied upon submissions dated 22 December 2023, 12 April 2024 and 13 May 2024.

7. The claimant relied upon submissions dated 29 January 2024, 30 April 2024, 9 May 2024 and 21 May 2024.

8. Pursuant to s 7.26(6A) of the MAIA the Review Panel agreed that Medical Assessor Kenna would conduct the medical re-examination of the claimant for the purposes of the review.

9. Re-examination of Matthew Mousa by Medical Assessor Kenna was arranged.

10. In Rahman v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 1079 Justice Basten referred to Court of Appeal comments on the volume of material which is routinely provided to Medical Assessors. Justice Basten confirmed that in reasons accompanying a certificate there was not a need to refer to all the documentation to which he or she has had access, but rather to be discriminating as to that material.

11. The Review Panel does not intend to refer to each and every document in the substantial volume of material before it, but only those documents considered significant to the issues in dispute. 

The insurer’s submissions

1. The insurer lodged an application for review of the assessment of Medical Assessor Anil Nair.

2. The insurer relied upon submissions dated 22 December 2023, 12 April 2024 and 13 May 2024.

3. The insurers submission take issue with causation, specifically in relation to the right knee and lower back.

4. The insurers submission take issue with the conclusion that following injuries were caused by the motor accident:

   (a)    cervical spine being cervical discogenic injury;

   (b)    thoracic spine;

   (c)    lumbar spine being degenerative disc disease in the lumbar spine;

   (d)    right knee being right knee retropatellar injury, and

   (e)    right shoulder being right shoulder tendonitis.

5. The insurer’s submissions do not take issue with the conclusion that the following injuries were not caused by the accident:

   (a)    right hip being right hip slipped capital femoral epiphysis, and

   (b)    left hip being left hip slipped capital femoral epiphysis.

The claimant’s submissions

1. The claimant relied upon submissions dated 29 January 2024, 30 April 2024, 9 May 2024 and 21 May 2024.

2. The claimant’s submissions take issue with the conclusion that the following injuries were not caused by the accident:

   (a)    right hip being right hip slipped capital femoral epiphysis, and

   (b)    left hip being left hip slipped capital femoral epiphysis.

3. The claimant maintains there was no other error with the conclusion of Medical Assessor Anil Nair.

Re-examination of the claimant

1. Pursuant to s 7.26(6A) the Review Panel agreed that Medical Assessor Kenna would conduct the medical re-examination of the claimant for the purposes of the review.

2. Matthew Mousa attended the medical suite at the Commission’s rooms on Thursday 23 May 2024 was was examined by Medical Assessor Kenna.

HISTORY

Pre-accident medical history and relevant personal details

1. Matthew Moussa is a 37-year-old male, married, who has his own financial planning company (office). He lives in Rouse Hill. His wife works as a psychologist and they have one child, a daughter aged seven.

2. With regard to relevant injuries in relation to this motor vehicle accident, he states that he has not been involved in motor vehicle accidents previously in which he sustained any injuries. There may have been some minor incidents but no injuries per se. He has not been involved in any motor vehicle accidents since the accident in question of 19 June 2020.

3. He notes a background of bilateral hip dysplasia for which he underwent operative procedures between the ages of 10 to 12.

4. That weight has been an issue and in 2016 he underwent gastric sleeve, as at that stage he was 140kg. By 2017 he had dropped to 70kg and at the time of my assessment, he was at 93kg.

5. He acknowledged a past history of right knee problems in 2010 when he dislocated his patella. He was able to put it back into place, but subsequently he had physio and hydrotherapy, and to his understanding the injury resolved with no ongoing residual symptoms.

History of the motor accident: 19 June 2020

1. The accident occurred on 19 June 2020, a Friday night and he was driving a Hyundai Tucson heading home, no passengers, on the M5 from the office. It was around 6.00pm

2. He wished to correct one factor in previous documents description of the motor vehicle accident, in that it was stated he was stationary at lights. That wasn’t true he said as he was stationary in the car but this was due to heavy traffic. His car had a tow bar (he wished to emphasise that) and he stated that a car ran into the back of him, a Hyundai i30.

3. There was no loss of consciousness, felt somewhat shocked at the time but no immediate pain. He then pulled over into the side lane as his car was quite driveable where he and the other driver exchanged details , subsequent to that, he then drove home.

History of symptoms and treatment following the motor accident

1. On the weekend he experienced quite marked neck pain with stiffness.

2. On the Saturday morning after the accident, his neck was a bit sore but the day after on the Sunday, his neck was almost rigid. It was at that stage he started to experience some right arm pain.

3. As a result, he saw a general practitioner (GP) on the Monday, not his usual one, and he was referred through to a physiotherapist, prescribed anti-inflammatories, and was attending up to two to three times a week.

4. Physiotherapy was with Ms Brianna Lock (who in treater’s notes recorded 20% extension of the cervical spine and reduction in other movements such as lateral flexion and rotation). It was noted at the time there was also some reduction of shoulder movement, particularly on the right, to 80-90° of flexion and abduction.

5. Hence, he was treated conservatively initially on a regular basis and was taking anti-inflammatories as well as analgesics. He lost about a week in his estimate from work and then returned to work, as he was the sole owner of the company.

6. Progress initially appeared to be reasonable and as noted the accident happened in mid-June. By early to mid-August, his condition had deteriorated with onset of symptoms involving right upper limb in early August 2020. At that stage he was also having some headaches.

7. As a result of his symptoms, he once again saw his GP, Dr Bassem Wilson, who prescribed Lyrica with a provisional diagnosis of right C6 nerve root involvement.

8. As a result of such, in early September 2020 he was referred through to Dr Simon McKechnie, a neurosurgeon, who saw him on 9 October 2020.

9. He had had an MRI on 9 July 2020, three weeks post motor vehicle accident, the report noted at the C5/6 level there was a small broad-based right foraminal disc protrusion in contact with the right C6 nerve root with associated moderate right foraminal stenosis. There was asymmetric disc bulging greater on the right than the left, but no spinal canal or foraminal stenosis.

10. Dr McKechnie responded to the referring GP, noting that there was onset of neck and arm pain, no previous history of neck injury. That the MRI demonstrated a moderate right C5/6 foraminal disc protrusion compressing the right C6 nerve root, consistent with the signs and symptoms of a right C6 radiculopathy.

11. There was a trial of perineural cortisone injection on 21 October 2020 with some mild improvement, but insufficient, and as a result he then underwent a C5/6 foraminotomy on the right side and that was performed in April 2021.

12. This resulted in a substantial improvement initially and on a review in June 2012, Dr McKechnie wrote to the treating GP that Mr Moussa’s stated radicular right arm pain had resolved and that as a result, Targin was being reduced from 20mg to 5mg per day.

13. He subsequently underwent a review MRI in July 2021, noting that the cervical MRI showed no residual foraminal stenosis or significant nerve root impingement. In the region was also a small seroma in the operative field which Dr McKechnie did not feel required any further surgical intervention and expected it to resolve spontaneously.

14. Nevertheless, the consistent notes were one of significant improvement involving the neck and right upper limb symptoms post foraminotomy.

15. Nevertheless, there was some ongoing neck pain and Dr McKechnie considered a CT-guided cortisone injection to the facet joint could be of benefit.

16. In the meantime, Ms Moussa had been attending physio. He was also seen by another physiotherapist, Trudy Rebbeck, and Dr McKechnie also recommended referral to a pain specialist, Dr James Yu.

Onset of knee symptoms

1. One notes his previous history of right knee pathology some years earlier. The right knee was not recorded as an injury in any of the initial details post motor vehicle accident, be it physiotherapist or GP, but the right knee started then to become painful in September 2020, several months post motor vehicle accident. He states at that stage the condition started to get worse.

2. In retrospect, however, he feels that maybe there was some element of niggling pain which was negligible but not worth reporting post motor vehicle accident, but that it deteriorated around September 2020, several months post motor vehicle accident.

3. It was on that basis that he was referred by his treating GP to Dr Molnar, knee surgeon, who listed onset of symptomatology in September 2020.

4. There was a request for an MRI of the right knee which was declined by the insurer, as the right knee at that stage was not considered related to the motor vehicle accident.

5. It was initially considered that he had developed patellofemoral syndrome-related to the previous history. That he presented to 360 Physiotherapy on 23 May 2021, presenting with right knee pain. That on examination, the pain was localised to the anterior aspect of the knee and there was acknowledgement that the onset of knee problems occurred during his rehabilitation exercises post motor vehicle accident, noting it was commented by the physiotherapy clinic that he experienced pain dynamically with walking up and down steps and the objective examination that he also demonstrated pain with squatting and half range of motion, and these symptoms were present midway through the motor vehicle accident rehabilitation period and it therefore seemed plausible to say that the knee symptoms had developed as a response to the conditioning of the body.

6. The MRI of the right knee of 5 May 2021 concluded that he had moderate chondromalacia patellae with associated subchondral bony stress response which would be the likely cause of anterior symptoms. There was no unstable cartilage flap demonstrated. Tibiofemoral cartilage was preserved. No meniscal ligament tear was demonstrated. Noting there was a Grade 3/4 cartilage fissuring of the patellar apex in the lateral patellar facet with moderate subchondral stress response. No unstable cartilage was demonstrated.

7. Hence, with regards to the right knee, he started to develop symptoms whilst undergoing a rehabilitation course for his cervical spine. He was only then referred through to Dr Molnar. The claimant returned to physio but due to also decreased number of sessions and intensity, there was suboptimal rehabilitation which also impacted his upper body symptoms.

8. In that respect, he underwent an operative procedure by Dr Molnar for a lateral retinaculum release. He states that he certainly has improved since that point in time, as he is no longer experiencing that sharp pain on the superior lateral aspect of the right knee.

9. Indeed at the time of Medical Assessor Kenna’s assessment, he was also starting to complain of left knee issues, as he states due to altered gain he was putting more stress on the left knee.

10. Nevertheless, the surgery for the right knee occurred in September 2022 and since then he states he is not limping as much as before, but has now got left knee symptoms, but overall acknowledged that pertaining to the right knee that it is a lot better than before and that he acknowledged that he self-funded both the operative procedure costs, as well as the physio.

11. In that respect, the sequence pertaining to the cervical spine has been one of soft tissue injury which as been acknowledged, but no clearly defined presence of radiculopathy. Note Dr McKechnie’s assessment in which it is not formal radiculopathy but is more of a non-verifiable nature. That he trialled physiotherapy with little benefit. There was temporary benefit by an injection procedure (one week’s benefit) and subsequent to that, in April 2021 he underwent decompressive foraminotomy of the C6 foramen and he states that following that there was significant improvement with his left arm symptoms, indeed far less severe than previously. This also resulted in improved neck symptoms.

12. Hence, there was some improvement over time but he states his neck deteriorated spontaneously in August 2023. He went to the Westmead Hospital, as at that stage there was increased neck pain and right arm symptoms. He was prescribed Lyrica. He once again was reviewed by Dr McKechnie and in voluminous notes Dr McKechnie has since recommended a fusion at the C5/6 level and that request was declined by the insurer in February 2024.

13. Hence at the time of the assessment, the conditions were fluctuating.

14. Four years had elapsed since the motor vehicle accident.

15. He had returned to work self-employed.

16. He had stopped all soft tissue therapy as funding was an issue, but he was attending a psychologist and was on medication for such (not the subject of this report). He had also cancelled the gym, as he found that that was also playing a part in aggravation of symptoms.

Current symptoms

1. At the time of the examination, his complaint was one of cervical pain centrally located, some referral towards the shoulders, and some intermittent symptoms involving the right upper extremity in a C6 distribution.

2. There were also interscapular symptoms mid-thoracic, central lower back pain and intermittent pain over both buttocks and iliac crests, as well as mild to moderate pain involving the right knee.

3. In that respect, he noted headaches were usually once per week and impacted his sleeping. That his hips were discomforting but were not a substantial problem.

4. That pertaining to the right knee, he could walk but avoided running and jogging, and did not kneel or squat. Nevertheless he felt the knee was not necessarily stable but acknowledged significant improvement post the operative procedure.

CLINICAL EXAMINATION

General presentation

1. Findings on clinical examination including specific measurements of r)ange of movement (ROM (where applicable) of each of the injuries assessed.

2. Mr Moussa was a heavy set individual.

Cervical spine (cervicothoracic)

1. Muscle guarding and spasm present and non-uniform range of movement.

2. No neurological deficit in either upper limb.

3. He was tight along the right apophyseal pillar with tenderness and a hint of muscle spasm at C5/6 level.

4. The Assessor  considered the right upper limbs reflected a C6 dermatomal pattern.

5. There was a 6cm surgical scar in the mid line of the posterior part of the neck.
    

MOVEMENTS	RANGE EXHIBITED
Flexion	100% full
Extension	40% restriction
Rotation to the right	40% restriction
Rotation to the left	20% restriction
Lateral bending to the right	20% restriction
Lateral bending to the left	10% restriction

NEUROLOGICAL TESTS

Reflexes:

REFLEX	LEFT	RIGHT
TRICEPS JERK	Normal	Normal
BICEPS JERK	Normal	Normal
BRACHIORADIALIS	Normal	Normal

SENSATION: normal

1. Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.

MUSCLE WASTING: nil

LEFT (cm)	RIGHT (cm)
UPPER ARM	31	31
FOREARM	27	27

MUSCLE POWER

LEVEL	MOTOR POWER	LEFT	RIGHT
C4	5/5	NORMAL	NORMAL
C5	5/5	NORMAL	NORMAL
C6	5/5	NORMAL	NORMAL
C7	5/5	NORMAL	NORMAL
C8	5/5	NORMAL	NORMAL
T1	5/5	NORMAL	NORMAL

Muscle power

5 is active movement against gravity with full resistance

4 is active movement against gravity with some resistance

3 is active movement against gravity only, without resistance.

DURAL TENSION TESTS

TEST	RIGHT	LEFT
PASSIVE NECK FLEXION	Normal	Normal
BRACHIAL PLEXUS STRETCH	Normal	Normal

Thoracic spine

1. On inspection of the thoracic spine posture was normal. No tenderness on palpation of the thoracic spine and no muscle guarding or spasm. No neurological deficit evident in either upper limb. On formal examination of range of movement there was full range of movement as follows:

MOVEMENT	RANGE OF MOTION
Flexion	100% full
Extension	100% full
Side bending to the right	100% full
Side bending to the left	100% full
Rotation to the left	100% full
Rotation to the right	100% full

Lumbar spine

1. No muscle guarding or spasm present, full range of motion and no asymmetry present.

2. No neurological deficit evident in either lower limb.

3. Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.

4. On formal examination of range of movement there was full range of movement as follows:

MOVEMENTS	RANGE EXHIBITED
Flexion	100% full
Extension	100% full
Rotation to the right	100% full
Rotation to the left	100% full
Lateral bending to the right	100% full
Lateral bending to the left	100% full

NEUROLOGICAL TESTS

Reflexes

REFLEX	LEFT	RIGHT
KNEE JERK	Normal	Normal
ANKLE JERK	Normal	Normal

LEFT	RIGHT
Sciatic nerve stretch (straight leg raise)	Normal	Normal
Femoral nerve stretch (prone knee bending)	Normal	Normal

SENSATION: normal

1. Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.

MUSCLE WASTING: nil

LEFT (cm)	RIGHT (cm)
THIGH (measured 10cm above the superior pole of the patella)	Equal 42cm	Equal  42cm
CALF	Equal 37cm	Equal 37cm

MUSCLE POWER

LEVEL	MOTOR POWER	LEFT	RIGHT
L3	5/5	NORMAL	NORMAL
L4	5/5	NORMAL	NORMAL
L5	5/5	NORMAL	NORMAL
S1	5/5	NORMAL	NORMAL

5 is active movement against gravity with full resistance

4 is active movement against gravity with some resistance

3 is active movement against gravity only, without resistance.

MUSCLE ATROPHY:

THIGH	LEFT = RIGHT
CALF	LEFT = RIGHT

1. No unilateral muscle atrophy present.

DURAL TENSION TESTS

TEST	RIGHT	LEFT
PRONE KNEE BEND	Normal	Normal
STRAIGHT LEG RAISE	Normal	Normal
SLUMP	Normal	Normal

Upper extremity

Right shoulder

Measurement	Reference (4th ed.)	Normal	Upper Extremity Impairment
Flexion	180°	Figure 38 (43)	180°	0
Extension	50°	Figure 38 (43)	50°	0
Adduction	50°	Figure 41 (44)	50°	0
Abduction	180°	Figure 41 (44)	180°	0
Internal Rotation	90°	Figure 44 (45)	90°	0
External Rotation	90°	Figure 44 (45)	90°	0
Total	0

Goniometer measuredI.

1. Inspection of the right shoulder was normal. Arc, resisted motions, and passive motions were pain free on the right. There was no abnormal tenderness. Impingement tests were negative.

Left Shoulder

Measurement	Reference (4th ed.)	Normal	Upper Extremity Impairment
Flexion	180°	Figure 38 (43)	180°	0
Extension	50°	Figure 38 (43)	50°	0
Adduction	50°	Figure 41 (44)	50°	0
Abduction	180°	Figure 41 (44)	180°	0
Internal Rotation	90°	Figure 44 (45)	90°	0
External Rotation	90°	Figure 44 (45)	90°	0
Total	0

Goniometer measured.

1. Inspection of the left shoulder was normal. Arc, resisted motions, and passive motions were pain free on the left. There was no abnormal tenderness. Impingement tests were negative.

Lower extremity

Hips

Right hip

1. Full range of mobility. Gait was unaffected. The claimant was able to walk on toes and heels.

MOVEMENT	RETAINED	LOST
Flexion	110° (full)	0
Backward Extension	30° (full)	0
Abduction	50° (full)	0
Adduction	30° (full)	0
Internal rotation	45° (full)	0
External rotation	45° (full)	0

1. Full range of mobility. Gait was unaffected. The claimant was able to walk on toes and heels.

2. No short leg

3. Normal gait

4. No atrophy of right lower extremity as compared to left

5. No evidence of muscle weakness right hip/thigh

6. Normal range of movement of right hip (see chart)

7. No evidence of arthritis or degenerative joint disease

8. Amputation - not relevant

9. Diagnosis based assessment – not relevant

10. No evidence of neurological disability right lower extremity or right hip

11. No evidence of reflex sympathetic dystrophy right hip, right lower extremity

12. No evidence of peripheral vascular condition right lower extremity

Left hip

1. Full range of mobility. Gait was unaffected. The claimant was able to walk on toes and heels.

MOVEMENT	RETAINED	LOST
Flexion	110° (full)	0
Backward Extension	30° (full)	0
Abduction	50° (full)	0
Adduction	30° (full)	0
Internal rotation	45° (full)	0
External rotation	45° (full)	0

1. No short leg

2. Normal gait

3. No atrophy of right lower extremity as compared to left

4. No evidence of muscle weakness right hip/thigh

5. Normal range of movement of right hip (see chart)

6. No evidence of arthritis or degenerative joint disease

7. Amputation - not relevant

8. Diagnosis based assessment – not relevant

9. No evidence of neurological disability right lower extremity or right hip

10. No evidence of reflex sympathetic dystrophy right hip, right lower extremity

11. No evidence of peripheral vascular condition right lower extremity

KNEES

1. Left knee – no effusion.

2. Right knee – no effusion.

3. There is no muscle wasting.

4. There is symmetry between right and left legs above and below the knee.

5. Normal gait.

6. There is no use of a cane or brace and no redness, warmth, swelling, effusion or deformity.

7. Measurement of the involved calf and thigh are symmetrical with the contralateral side.

8. Ligamentous and meniscal stress tests are normal and painless.

9. The knee range is from 0 to 125°.

10. Manual muscle testing shows normal strength in the extremity.

11. Note that the knees have normal alignment.

12. No crepitus. No crepitus.

13. Normal motion

14. Scars     Nil

15. Quadriceps Wasting      Nil

16. Swelling            Nil

17. Collateral Ligaments     Intact

18. Cruciate Ligaments      Intact

19. McMurray’s Test           Normal

20. Patello-femoral joint      Normal

21. Lateral patellar tilt         Nil

22. Lateral drift (with quadriceps contraction)       Nil

23. Gait Normal

24. Short leg           Nil

25. Atrophy Negative

26. Weakness         Negative

27. Range of movement     Normal

28. Osteoarthritis     Nil

29. Amputation       Nil

30. Neurological deficit       Nil

31. Reflex sympathetic dystrophy   Nil

32. Vascular Normal

REVIEW OF DOCUMENTATION

Summary of relevant documentation

1. There was a range of independent medical reports.

2. I note he was seen by Dr Ian Cameron on 13 August 2022 who commented that Mr Moussa had developed right knee pain in about September 2020 when he resumed activity. This was some three months post motor vehicle accident and it was subsequent to that, after seeing Dr Molnar, that a right knee arthroscopy and iliotibial band release was performed.

3. He noted at the time a full range of movement of both shoulders, no neurological abnormalities in either upper extremity, moderately reduced movement pertaining to the lumbar spine.

4. Dr Cameron considered that it was difficult to relate the right knee symptoms to the motor vehicle accident, as there was onset some months after the accident, and also at the time of the accident it was not established there had been a direct injury to the knee. Hence, he was not convinced that the right knee condition was causal to the motor vehicle accident.

5. He was then also seen by Associate Professor Michael Shatwell in a report of September 2022. His report was done in a similar timeframe to Dr Cameron’s. It was his considered view that the accident as described caused the injuries to his neck, precipitating a radiculitis of the right C6 nerve root. That there was no relevant prior history of injury to the neck and therefore no question of apportionment.

6. That at the time of his assessment post foraminotomy, that the radicular pain had improved and there was no wasting of the upper limb and power in the forearm was normal.

7. As again with Dr Cameron, he considered with respect to the right knee, there was no specific evidence of an injury in relation to the motor vehicle accident.

8. He was also of the view that there was no impairment relating to the right shoulder which was not injured in the motor vehicle accident.

9. There was no impairment to the thoracic spine which had normal movement, and also was not injured in the motor vehicle accident and the same was true for the lumbar spine.

10. Similarly, there was no injury to the knee, nor any link between current symptoms and the accident in question. That any symptoms involving the right upper limb, right shoulder, was cervicogenic in origin.

11. Furthermore, the examination by Medical Assessor Nair of 12 December 2023 considered that impairment in relation to the injuries incurred in the motor vehicle accident to the cervical and thoracolumbar spine, both hips, right knee and right shoulder was some 19%, i.e. greater than 10%. Not relevant was both hips, as it was considered not caused by the accident, but he did relate to the right knee symptoms an injury and management to the motor vehicle accident per se. That is referral to Dr Molnar, MRI scan of the right knee, subsequent arthroscopy and subsequently post-operative physiotherapy in that it was both causally related and reasonable and necessary.

Summary of relevant radiological and medical imaging and other investigations

1. On 23 June 2021 – MRI cervical spine – post-operative film demonstrating a seroma. There is increased signal in the region of the operative site.

2. On 5 May 2021 – MRI right knee – reported as within normal limits.

3. On 4 March 2021 – X-ray right knee – features of a small high patella with a rather long patellar tendon. Features common in patients who have subluxation or lateral dislocation in the kneecap.

4. On 18 August 2023 – X-ray cervical spine – conclusion: neurocentric joint osteoarthritis encroaching into the right C5/6 intervertebral foramen. No other findings.

5. On 18 August 2023 – MRI cervical spine – conclusion: there is disc osteophyte complex and neurocentric joint osteoarthritis causing right C5/6 intervertebral foraminal narrowing. The narrowing appears to have increased since the previous MRI. This may affect the exiting C6 nerve root.

6. On 18 August 2023 – MRI right knee – conclusion: moderate chondromalacia patellae with associated subchondral bony stress respect which would be the likely cause of anterior symptoms. No unstable cartilage flap is demonstrated. No meniscal ligament tear is demonstrated. Tibiofemoral articular cartilage is preserved. There was a Grade 3/4 cartilage fissuring at the patellar apex and lateral patellar facet with moderate subchondral stress response. No unstable cartilage flap is demonstrated as noted. Lateral compartment lateral meniscus is normal in size and morphology. Medial compartment medical meniscus is normal in size and morphology. No meniscal tear is demonstrated in either medial or laterally. Also ACL, PCL, MCL and lateral collateral structures are intact with a low signal thickening of the proximal MCL in keeping with a chronic low-grade injury and mature scar tissue repair.

DETERMINATIONS

1. There is no evidence that the right knee was injured in the motor vehicle accident and taking into account his prior history pre-motor vehicle accident, the Review Panel believes that the right knee onset of symptoms was not related to the motor vehicle accident given the time post motor vehicle accident that it was reported and that only occurred subsequently in rehabilitation.

2. There was a lack of contemporaneous medical evidence documenting any injury to the right knee in relation to the motor vehicle accident.

3. Similarly, there was no contemporaneous information to support any injury to the right shoulder, left hip, right hip, lumbar or thoracic spine.

4. The evidence does support injury to the cervical spine with onset of non-verifiable radicular symptoms involving the right upper extremity.

5. In that respect, he underwent a right C5/6 foraminotomy on 1 April 2021. There was improvement in the radicular right arm pain and then he proceeded onto physiotherapy.

1. It is important to note, as acknowledged by Dr McKechnie, that with regards to his right upper limb symptoms, this did not constitute formal radiculopathy but he considered the right C5/6 foraminal stenosis caused C6 nerve root impingement.

2. In Dr McKechnie’s letter with regards to examination of the claimant there was reduced range of movement involving the cervical spine with radicular pain with intermittent sensory disturbance extending through the right arm to the forearm and thumb, which was consistent with the right C6 dermatome, but allowing for pain there was no weakness and the patient suffers from right C6 radiculopathy symptoms consistent with MRI findings of a right C5/6 foraminal stenosis and C6 nerve root impingement.

3. As noted by him at the time, there was no previous history of neck injury and the onset of right upper limb symptoms was at the time of the motor vehicle accident.

4. The following injury relates to the motor vehicle accident:

   (a)    cervical spine.

5. The following injuries do not relate to the motor vehicle accident:

   (a)    thoracic and lumbar spine;

   (b)    both hips;

   (c)    right knee, and

   (d)    right shoulder.

Permanent Impairment

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 II	Ch 3,  pgs102-107, AMA 4 Tables 7 & 8 The Guidelines	Yes	5%	0	5%

*5 %WPI = percentage WPI.

1. This is due to asymmetric range of movement, altered muscle tone (i.e. muscle spasm) but no evidence of formal radiculopathy involving two or more signs. There was evidence of referral of symptoms involving the C6 dermatome but reflexes and power were intact.

2. The Review Panel accepted the examination report from Medical Assessor Kenna, set out above.

3. The Review Panel accepted and adopted the findings and clinical opinions of Medical Assessor Kenna, set out above.

Review of the evidence

1. The parties take issue with many aspects of the consideration of the material by Medfical Assessor Nair, including the pre-accident history and pre-existing conditions, the current symptoms, physical examination and the conclusions that flow from those issues.

2. We have addressed each of these where releven to each of the ssppecific issues.

Issues for the review

1. Schedule 2, cl 2(a) of the MAI Act, involves a determination of two issues:

   (a)    whether the injury (was) caused by the motor accident, and

   (b)    the degree of permanent impairment of the injured person that has resulted from the injury.

2. The Review Panel was required to determine whether the following injuries were caused by the motor accident;

   (a)    cervical spine being cervical discogenic injury;

   (b)    thoracic spine;

   (c)    lumbar spine being degenerative disc disease in the lumbar spine;

   (d)    right hip being right hip slipped capital femoral epiphysis;

   (e)    left hip being left hip slipped capital femoral epiphysis;

   (f)    right knee being right knee retropatellar injury, and

   (g)    right shoulder being right shoulder tendonitis.

3. The Review Panel was required to determine the degree of permanent impairment resulting from the the following injuries:

   (a)    cervical spine being cervical discogenic injury;

   (b)    thoracic spine;

   (c)    lumbar spine being degenerative disc disease in the lumbar spine;

   (d)    right hip being right hip slipped capital femoral epiphysis;

   (e)    left hip being left hip slipped capital femoral epiphysis;

   (f)    right knee being right knee retropatellar injury, and

   (g)    right shoulder being right shoulder tendonitis.

Causation

1. The Motor Accident Guidelines (Guidelines) set out the relevant considerations in relation to causation in Part 6 specifically cls 6.5, 6.6 and 6.7.

2. In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372 (Briggs) his Honour Justice Wright stated at [35]:

   “The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries…”

3. In Briggs Wright J confirmed that the relevant legal test in relation to causation does not require scientific certainty. It is not to be determined on the basis of scientific certainty, but on the balance of probabilities. A finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible.

4. The question to be considered is whether the injury was caused or materially contributed to by the accident. It is also noted the accident does not have to be the sole cause as long as it is a contributing cause which is more than negligible.

Causatation generally

1. The insurer’s submissions of 12 April 2024 included reference to the biomechanical report of Mr Michael Griffiths dated 26 May 2023. The Insurer asserts that Mr Griffiths’ findings are within his expertise and largely consistent with the opinions expressed by Dr Cameron and Professor Shatwell.

2. The insurer submits that the Review Panel will find that Mr Griffiths’ opinion is persuasive in relation to the lack of mechanism for the claimant’s alleged injuries and that it should be considered in determining the issue of causation in relation to all alleged injuries.

3. The claimant’s submission of 30 January 2024 and prior submissions assert that the report of Mr Griffith is of no practical value. The mechanism of the accident as described in the insurer’s biomechanical report should not be accepted by the Review Panel as it cannot assist with the understanding of the accident crash dynamics.

4. We considered the report of Mr Michael Griffiths dated 26 May 2023 and concluded that the views he expressed needed to be considered in terms of surrounding factual matters including the account of symptoms post accident and the various medical opinions.

5. We did not accept, based on the report of Mr Michael Griffiths dated 26 May 2023, that any injury to the claimant as a result of the accident could be excluded.

6. The claimant submits that the opinions of Dr Molnar, Dr Dixon, Dr Ting (rehabilitation vocational assessor), Medical Assessor Nair and those of treating GP (Dr Wilson) that the cervical spine, right shoulder, thoracic spine, and the right knee injury were caused by the subject accident, and they should be accepted by the Medical Assessor in preference to the views of Mr Griffith, Dr Shatwell or Dr Cameron.

7. The claimant submits that the accident happened on Friday, 19 June 2020, an ambulance was not called, and the claimant was not hospitalised after the accident.

8. The claimant asserts that on Monday, 22 June 2020, the claimant was in too much pain to travel to his usual GP at Ramsgate, he consulted the closest and the first doctor available near his home.

9. He consulted the local GP, Dr Kumari Obeyesekera, who referred him for physio and provided advice concerning pain control.

10. The claimant asserts that the most contemporaneous clinical evidence available from the local GP shows that the claimant initially complained of severe pain resulting from the accident, and that this pain did no dissipate as proposed by the insurer, as the claimant’s next consultation with the local GP on 7 July 2020 show clear and unambiguous evidence of serious injuries, the effects of which still plague the claimant.

11. The claimant extracted the notes of Dr Kumari Obeyesekera:

    “ … Worried about ongoing neck pains. able to look sideways and bending back is limitted [sic]. pains radiating along the thoracic spine too. shoulder pains are better. hips improving …”

12. The insurer’s submissions of 12 April 2024 note the claimant consulted Dr Kumari Obeyesekera on 22 June 2020 and reported severe pain over right arm, right side of chest, neck and hips.

13. The claimant attended a physiotherapist, 360 Performance, on 22 June 2020. He said he had experienced neck pain the day after the accident. Ms Brianna Lock recorded symptoms consistent with whiplash, acromioclavicular (AC) joint sprain and thoracic spasm.

Whether the cervical spine injury (was) caused by the motor accident?

1. In the certificate dated 12 December 2023 Medical Assessor Anil Nair concluded that the cervical spine injury was caused by the motor accident.

2. Medical Assessor Anil Nair diagnosed the injury as cervical discogenic injury.

3. The insurer disputed the conclusion that the claimant sustained an injury to the cervical spine, specifically cervical discogenic injury, as a result of the motor accident.

4. The claimant did not dispute the conclusion that the claimant sustained an injury to the cervical spine, specifically cervical discogenic injury, as a result of the motor accident.

5. The claimant’s submission of 30 January 2024 provide that in relation to the cervical spine, the records confirm discogenic cervical spine injury, with C5/6 foraminal disc protrusion and annular tear, with associated impingements and radicular pain, necessitating a C5/6 foraminotomy and discectomy on 1 April 2021 to treat C5/6 disc lesion and C4/5 and C7/T1 annular tears.

6. The claimant relies on the opinions of its qualified experts, but most relevantly on the opinion and findings of the treating neurosurgeon, Dr Simon McKechnie, who reported on 21 November 2023 that: “The patient suffers from a right C6 radiculopathy consistent with the MRI findings of right C5/6 foraminal stenosis and C6 nerve root impingement.”

7. The claimant notes that Medical Assessor Nair’s clinical findings at the assessment performed on 24 November 2023 were consistent with Dr McKechnie’s findings and should be preferred by the Review Panel as opposed to the insurer’s expert opinions.

8. The claimant’s submission of 9 May 2024 focused on the report of Dr McKechnie and the neck injury. The submissions assert that Dr McKechnie offers the most helpful chronology of the neck injury resulting from the motor accident, as well as concise analysis of his clinical observations from the beginning of his treatment until the present. He unequivocally opines that the claimant’s neck injury was caused by the motor accident.

9. We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and it’s immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.

10. We reviewed the various medical opinions provided.

11. The Review Panel accepts the evidence was to the effect that:

    (a)    the claimant had no significant cervical spine symptoms prior to the accident;

    (b)    the circumstances of the accident as described did not suggest any direct trauma to the cervical spine (although this was possible);

    (c)    at the time of the accident the claimant did not assert that there was any direct impact to the cervical spine (although this was possible);

    (d)    at the time of the accident the claimant did assert that he felt immediate pain in the cervical spine;

    (e)    shortly after the accident the claimant sought medical treatment in relation to the cervical spine, and

    (f)    there is medical opinion to the effect that the cervical spine injury was caused by the motor accident.

12. The evidence available is consistent with the claimant suffering an injury to the cervical spine in the motor accident.

13. In our view this was consistent with the reasoning of Medical Assessor Anil Nair in the certificate dated 12 December 2023.

14. Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the cervical spine injury.

15. We accepted the medical determination of Medical Assessor Kenna that the motor accident could have caused or contributed to the cervical spine injury.

16. We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the cervical spine injury.

17. Medical Assessor Kenna considered that the evidence supported injury to the cervical spine with onset of non-verifiable radicular symptoms involving the right upper extremity.

18. We accepted that cervical discogenic injury with onset of non-verifiable radicular symptoms involving the right upper extremity was caused by the motor accident because having considered the dynamics of the accident, the reported symptoms of cervical spine pain contemporaneously with the accident, the ongoing complaints in relation to the cervical spine and the consideration of these issues by the other medical professional we accepted that the cervical spine injury was caused or materially contributed to by the accident.

19. We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the cervical spine injury was satisfied.

20. We accepted, on the balance of probabilities, that the motor accident did cause the cervical spine injury.

Whether the thoracic spine injury (was) caused by the motor accident?

1. The insurer disputed the conclusion that the claimant sustained an injury to the thoracic spine as a result of the motor accident.

2. The claimant did not dispute the conclusion that the claimant sustained an injury to the thoracic spine as a result of the motor accident.

3. In relation to the thoracic spine, Associate Professor Shatwell opined that it was unlikely that injuries with the severity described by the claimant would have been sustained in the accident, commenting “the thoracolumbar spine is very well protected from injury in rear and [sic] end collision by the support of the seat back in motor cars. There are no flexion, extensions, rotational or sheer forces acting on the spine in this type of collision”.

4. We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and it’s immediate aftermath, including the claimant’s account of the accident and the claimants account of the injuries.

5. We reviewed the various medical opinions provided.

6. Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the thoracic spine injury.

7. We accepted the medical determination of Medical Assessor Kenna that the motor accident could have caused or contributed to the thoracic spine injury.

8. We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the thoracic spine injury.

9. Medical Assessor Kenna considered that there was no contemporaneous information to support any injury to the thoracic spine.

10. Having considered the dynamics of the accident, the reported symptoms of pain contemporaneous with the accident, the onset of complaints in relation to the thoracic spine and the consideration of these issues by the other medical professional we did not accepted that the thoracic spine injury was caused or materially contributed to by the accident.

11. We did not accept, on the balance of probabilities, that the motor accident, did cause the thoracic spine injury.

Whether the lumbar spine injury (was) caused by the motor accident?

1. In the certificate dated 12 December 2023 Medical Assessor Anil Nair concluded that the lumbar spine injury was caused by the motor accident.

2. Medical Assessor Anil Nair diagnosed the injury as degenerative disc disease in the lumbar spine

3. The insurer disputed the conclusion that the claimant sustained an injury to the lumbar spine, specifically degenerative disc disease in the lumbar spine, as a result of the motor accident.

4. The claimant did not dispute the conclusion that the claimant sustained an injury to the lumbar spine, specifically degenerative disc disease in the lumbar spine, as a result of the motor accident.

5. The claimant’s submission of 30 January 2024 provided that in relation to the lumbar spine, the claimant sustained an injury to his lower back, which is consistent with the mechanism of a lower back injury with post traumatic stiffness with facet arthralgia.

6. In relation to the lumbar spine, Associate Professor Shatwell opined that it was unlikely that injuries with the severity described by the claimant would have been sustained in the accident, commenting “the thoracolumbar spine is very well protected from injury in rear and [sic] end collision by the support of the seat back in motor cars. There are no flexion, extensions, rotational or sheer forces acting on the spine in this type of collision”.

7. We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and it’s immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.

8. We reviewed the various medical opinions provided.

9. Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the lumbar spine injury.

10. We accepted the medical determination of Medical Assessor Kenna that the motor accident could have caused or contributed to the lumbar spine injury.

11. We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the lumbar spine injury.

12. Medical Assessor Kenna considered that there was no contemporaneous information to support any injury to the lumbar spine.

13. Having considered the dynamics of the accident, the reported symptoms of pain contemporaneous with the accident, the recorded complaints in relation to the lumbar spine and the consideration of these issues by the other medical professional we did not accept that the lumbar spine injury was caused or materially contributed to by the accident.

14. We did not accepted, on the balance of probabilities, that the motor accident did cause the lumbar spine injury.

Whether the right hip injury (was) caused by the motor accident?

1. In the certificate dated 12 December 2023 Medical Assessor Anil Nair concluded that the right hip injury was not caused by the motor accident.

2. Medical Assessor Anil Nair diagnosed the injury as right hip slipped capital femoral epiphysis.

3. The insurer accepted the conclusion that the claimant had not sustained an injury to the right hip as a result of the motor accident.

4. The claimant maintained that the claimant had sustained an injury to the right hip as a result of the motor accident..

5. The claimant’s submission of 30 January 2024 noted that in relation to both hips the claimant sustained persistent bilateral hip pain and occasional stiffness following the rear end motor accident. As noted by the claimant and the medical experts to date, “his past health includes a screw in his left hip at the age of 11 and at the age of 12 a screw in his right hip for slip capital epiphysis. His hip settled down and the screws remain in situ”. The claimant’s pre-accident clinical records show no evidence of pre-existing symptomatic condition or complaints relevant at the time of the injury.

6. Associate Professor Shatwell noted no investigation or description of hip pain in the records, but it was unlikely that the hips were injured in the accident, as they were “well supported” by the car seat.

7. We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and it’s immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.

8. We reviewed the various medical opinions provided.

9. Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the right hip injury.

10. We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the right hip injury.

11. Medical Assessor Kenna considered that there was no contemporaneous information to support any injury to the right hip.

12. Having considered the dynamics of the accident, the reported symptoms of pain contemporaneous with the accident, the onset of complaints in relation to the right hip and the consideration of these issues by the other medical professional we did not accept that the right hip injury was caused or materially contributed to by the accident.

1. We did not accept, on the balance of probabilities, that the motor accident did cause the right hip injury.

Whether the left hip injury (was) caused by the motor accident?

1. the certificate dated 12 December 2023 Medical Assessor Anil Nair concluded that the left hip injury was not caused by the motor accident.

2. Medical Assessor Anil Nair diagnosed the injury as left hip slipped capital femoral epiphysis.

3. The insurer accepted the conclusion that the claimant had not sustained an injury to the left hip as a result of the motor accident.

4. The claimant maintained that the claimant sustained had an injury to the left hip as a result of the motor accident.

5. The claimant’s submission of 30 January 2024 noted in relation to both hips that the claimant sustained persistent bilateral hip pain and occasional stiffness following the rear end motor accident. As noted by the claimant and the medical experts to date, “his past health includes a screw in his left hip at the age of 11 and at the age of 12 a screw in his right hip for slip capital epiphysis. His hip settled down and the screws remain in situ”. The claimant’s pre-accident clinical records show no evidence of pre-existing symptomatic condition or complaints relevant at the time of the injury.

6. We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and it’s immediate aftermath, including the claimant’s account of the accident and the claimants account of the injuries.

7. We reviewed the various medical opinions provided.

8. Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the left hip injury.

9. We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the left hip injury.

10. Medical Assessor Kenna considered that there was no contemporaneous information to support any injury to the left hip.

11. Having considered the dynamics of the accident, the reported symptoms of pain contemporaneous with the accident, the onset of complaints in relation to the left hip and the consideration of these issues by the other medical professional, we did not accept that the left hip injury was caused or materially contributed to by the accident.

12. We did not accept, on the balance of probabilities, that the motor accident did cause the left hip injury.

Whether the right knee injury (was) caused by the motor accident?

1. In the certificate dated 12 December 2023 Medical Assessor Anil Nair concluded that the right knee injury was caused by the motor accident.

2. Medical Assessor Anil Nair diagnosed the injury as right knee retropatellar injury.

3. The insurer disputed the conclusion that the claimant sustained an injury to the right knee, specifically a right knee retropatellar injury as a result of the motor accident.

4. The claimant accepted the conclusion that the claimant sustained an injury to the right knee, specifically a right knee retropatellar injury as a result of the motor accident.

5. The claimant’s submission of 30 January 2024 identify the right knee injury as ongoing post traumatic retropatellar injury, necessitating surgical release of the iliotibial band (ITB) and arthroscopy.

6. The claimant’s submission provided that the claimant suffered a work-related knee injury in 2010, 10 years prior to the subject accident. The claimant states the right knee injury ultimately resolved and in the years prior to the motor accident it did not cause him any difficulties.

7. The claimant’s submission maintained that prior to the accident and most relevantly at the time of the subject motor accident the claimant was symptom free.

8. The insurer’s submissions of 12 April 2024 note that the claimant had provided conflicting reports as to how the right knee was allegedly injured. He reported to Dr Rastogi that he experienced right knee pain the day after the accident. No mechanism of injury was provided. In contrast, he told Dr Ting that he did not develop right knee pain until late August or early September 2020. Again, he offered no mechanism of injury.

9. The insurer contends the claimant did not provide a history of injury to the right knee to Dr Dixon and did not offer a mechanism of injury. Dr Dixon simply accepted the condition was related to the accident and diagnosed a contusion to the right knee with post-traumatic chondromalacia patella with retro-patellar crepitus and lateral patellofemoral pain. Dr Dixon provided no explanation for his findings of causation. Nevertheless, the diagnosis of a “contusion” suggests a direct injury.

10. The insurer concludes that none of the claimant’s experts have taken a history of injury that satisfactorily explains how the right knee injury was allegedly sustained

11. Associate Professor Michael Shatwell confirmed that there was no evidence of injury to the right knee caused by the accident. He commented that the symptoms could be related to a dislocation of the kneecap in 2010 and failure of the knee to recover.

12. We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and it’s immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.

13. We reviewed the various medical opinions provided.

14. The history of the onset of symptoms provided by Dr Rastogi is not supported by the available documents.

15. The available documents are more consistent with the account from Dr Ting.

16. Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the right knee injury.

17. We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the right knee injury.

18. The Review Panel accepts the evidence was to the effect that:

    (a)    the claimant had right knee symptoms in or about 2010;

    (b)    the claimant had no significant right knee symptoms prior to the accident;

    (c)    the circumstances of the accident as described did not suggest any direct trauma to the right knee (although this was possible);

    (d)    at the time of the accident the claimant did not assert that there was any direct impact to the right knee (although this was possible);

    (e)    at the time of the accident the claimant did assert that he felt immediate pain in the right knee;

    (f)    shortly after the accident the claimant sought medical treatment but not specifically in relation to the right knee;

    (g)    the medical opinion includes differing accounts as to the onset of right knee symptom, and

    (h)    the medical opinion includes differing opinions in relation to whether the right knee injury was caused by the motor accident.

19. Whilst Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the right knee injury he did not accept that the right knee injury was caused by the motor accident.

20. Medical Assessor Kenna concluded that there was no evidence that the right knee was injured in the motor vehicle accident and taking into account his prior history pre-motor vehicle accident, the Review Panel considered that the right knee onset of symptoms was not related to the motor vehicle accident.

21. Having considered the dynamics of the accident, the reported symptoms contemporaneous with the accident, the reported onset of complaints in relation to the right knee and the consideration of these issues by the other medical professional we did not accept that the right knee injury was caused or materially contributed to by the accident.

22. We did not accept, on the balance of probabilities, that the right knee injury was caused by the motor accident.

Whether the right shoulder injury (was) caused by the motor accident?

1. In the certificate dated 12 December 2023 Medical Assessor Anil Nair concluded that the right shoulder injury was caused by the motor accident.

2. Medical Assessor Anil Nair diagnosed the injury as right shoulder tendonitis.

3. The insurer disputed the conclusion that the claimant sustained an injury to the right shoulder, specifically a right shoulder tendonitis as a result of the motor accident.

4. The claimant accepted the conclusion that the claimant sustained an injury to the right shoulder, specifically a right shoulder tendonitis as a result of the motor accident.

5. The claimant’s submission of 30 January 2024 note that in relation to the right shoulder the claimant was restrained by a seat belt and he sustained a direct injury to his right shoulder including- brachialgia with mild stiffness, reduced range of motion with associated pain on movement. For ease of reference and avoidance of any doubt, the right shoulder complaint has been recorded on the initial Certificate of Capacity dated 22 June 2020.

6. Associate Professor Michael Shatwell expressed the view that there was no injury to the right shoulder and that the pain in the arm was attributable to the neck. In any event he found no limitation in range of motion at the shoulder.

7. We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and it’s immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.

8. We reviewed the various medical opinions provided.

9. Medical Assessor Kenna made a medical determination that the motor accident could have caused or contributed to the right shoulder injury.

10. We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the right shoulder injury.

11. Medical Assessor Kenna considered that there was no contemporaneous information to support any injury to the right shoulder.

12. Having considered the dynamics of the accident, the reported symptoms of pain contemporaneous with the accident, the onset of complaints in relation to the right shoulder and the consideration of these issues by the other medical professional we did not accept that the right shoulder injury was caused or materially contributed to by the accident.

13. We did not accept, on the balance of probabilities, that the motor accident did cause the right shoulder injury.

Causation conclusions

1. The Review Panel found that the following injury was caused by the motor accident:

   (a)    cervical spine being cervical discogenic injury.

2. The Review Panel found that the following injuries were NOT caused by the motor accident:

   (a)    thoracic spine;

   (b)    lumbar spine being degenerative disc disease in the lumbar spine;

   (c)    right hip being right hip slipped capital femoral epiphysis;

   (d)    left hip being left hip slipped capital femoral epiphysis;

   (e)    right knee being right knee retropatellar injury, and

   (f)    right shoulder being right shoulder tendonitis.

Permanent impairment

1. As noted earlier, permanent impairment is to be assessed in accordance with Chapter 6 of the Guidelines which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).

Assessment of the spine generally

1. Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate method of assessment is allowed (cl 6.111).

2. The spine is divided (cl 6.131) into three regions:

   (a)     cervicothoracic;

   (b)     thoracolumbar, and

   (c)     lumbosacral.

3. If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).

4. There are five diagnostic related categories (DRE), and a number of indicia provided (see Table 7).

5. The first is DRE category I which is selected if there are symptoms which may include pain. 

6. DRE II requires:

   (a)     pain with guarding, or

   (b)     non-uniform range of motion – dysmetria, or

   (c)     non-verifiable radicular complaints defined in Table 6.8 as:

   (i) symptoms (shooting pain, burning sensation, tingling), and

   (ii) which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.

7. DRE III requires radiculopathy which is defined in cl 6.138 as:

   “…dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ... 

   (a) loss or asymmetry of reflexes;

   (b) positive sciatic nerve root tension signs;

   (c) muscle atrophy and/or decreased limb circumference; 

   (d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and

   (e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”

The degree of permanent impairment of the injured person that has resulted from the cervical spine injury?

1. In the certificate dated 12 December 2023 Medical Assessor Anil Nair diagnosed the injury as cervical discogenic injury.

2. Medical Assessor Anil Nair concluded that the permanent impairment resulting from the cervical spine injury was 10%.

3. The insurer disputed the conclusion that the permanent impairment resulting from the cervical spine injury was 10%.

4. The claimant disputed the conclusion that the permanent impairment resulting from the cervical spine injury was 10%. The claimant maintained that the permanent impairment resulting from the cervical spine injury was 15%.

5. The claimant’s submissions note that clinical assessment of the claimant’s cervical spine revealed symptoms and complaints are consistent with those reported by the claimant’s treating specialist. The claimant’s cervical spine ongoing pain and radicular symptoms requires further treatment including the proposed surgical intervention as proposed by Dr McKechnie.

6. The claimant’s ongoing pain and radicular symptoms have necessitated the claimant’s presentation at Westmead Hospital Emergency Department on 14 August 2023. The claimant presented with chronic right cervical pain with acute radicular component complaints and was referred for further treatment and management of symptoms to his GP and his specialist Dr McKechnie.

7. On assessment of the claimant on 24 November 2023, Medical Assessor Nair found cervical spine impairment and assessment consistent with the criterions of DRE category III under Table 6.7 of the Guidelines. It was submitted the claimant’s cervical spine impairment was DRE category III (i.e. neck pain with radiculopathy) and converts into 15% WPI (and not 10% WPI) based on the AMA 4 Guides, Table 73 on page 110.

8. The claimant maintained that Medical Assessor Nair reported the claimant had “pain in the subaxial cervical spine, radiating into the right upper extremity. He has occipital headaches.” The claimant’s verified radicular signs, as reported by Medical Assessor Nair are based on more than just the non-uniform loss of spinal motion (dysmetria) which was also present at the clinical assessment and recorded by the Medical Assessor.

9. The claimant submitted that the evidence of the verifiable radicular complaints were evident in the assessment and the Medical Assessor Nair’s findings concerning the claimant’s cervical spine. The Medical Assessor reported and diagnosed evidence of reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution, which Medical Assessor Nair confirmed by finding evidence of paraesthesia in a C6 dermatomal pattern on the right” at the examination, dysmetria with movement of the cervical spine and evidence of positive sciatic nerve root tension sign, including findings of positive Hoffman’s sign on clinical assessment.

10. The claimant relies on the report of Dr Dixon, orthopeadic surgeon, who assessed a 15% being DRE III.

11. Dr Ian Cameron assessed 5% WPI due to accident-related injuries as follows 5% WPI of the cervical spine due to asymmetric loss of range of movement.

12. Associate Professor Michael Shatwell assessed 5% WPI of the cervical spine (DRE II). There was slight restriction of rotation and lateral flexion but this was symmetrical

13. The insurer noted that the more recent Medical Assessor Nair and Dr McKechnie’s examinations of the claimant did not satisfy the Guidelines in relation to findings of radiculopathy: Clause 6.138 and Table 6.8 of the Guidelines.

14. The insurer asserted that while Medical Assessor Nair noted “paraesthesia in a C6 dermatomal pattern on the right”, he did not assess stipulate the two or more signs of radiculopathy to satisfy the Guidelines. Notably, a review of his examination findings are not concordant with the Guidelines and accordingly the Medical Assessor did not in fact find radiculopathy on his examination of the claimant.

15. Further, Dr McKechnie did not identify any diagnostic criteria other than the MRI findings to support his diagnosis of radiculopathy. The MRI demonstrates degenerative structural changes.

16. The insurer submitted that Dr McKechnie seemed to solely rely on the MRI findings as he states that “over 95% of patients suffering radiculopathy which requires surgery do not have any motor or sensory defects on clinical examination”. The insurer assered this was not correct and non-sensical.

17. The insurer contends that Dr Dixon’s assessment of permanent impairment of the cervical spine contains errors. The insurer contends that it is not possible to assess the conditions considered via Zoom because an examination of range of motion and neurological function is essential. The doctor attributed 10% WPI to the cervical spine when there is no possible finding of that nature (DRE II is 5%, DRE III (radiculopathy) is 15%). A finding of DRE II (5%) is not persuasive because the doctor was not able to directly assess dysmetria or guarding. He cannot assess DRE III (15%) because he has not identified two or more of the requisite radiculopathy criteria.

18. As noted ear;ier, Medical Assessor Kenna considered that the evidence supported injury to the cervical spine with onset of non-verifiable radicular symptoms involving the right upper extremity.

19. Having determine dtha the injury included the onset of non-verifiable radicular symptoms involving the right upper extremity, Medical Assessor Kenna assessed DRE II being 5% WPI due to asymmetric range of movement, altered muscle tone (i.e. muscle spasm) but no evidence of formal radiculopathy involving two or more signs. There was evidence of referral of symptoms involving the C6 dermatome but reflexes and power were intact.

20. The Panel accepted that the emaination results of Medical Assessor Kenna satisfied the criteria for DRE II being 5% WPI.

The degree of permanent impairment of the injured person that has resulted from the lumbar spine injury

1. Having concluded that the lumbar spine injury was not caused by the motor accident we did not need to determine any permanent impairment.

The degree of permanent impairment of the injured person that has resulted from the thoracic spine injury

1. Having concluded that the thoracic spine injury was not caused by the motor accident we did not need to determine any permanent impairment.

The degree of permanent impairment of the injured person that has resulted from the right hip injury

1. Having concluded that the right hip injury was not caused by the motor accident we did not need to determine any permanent impairment.

The degree of permanent impairment of the injured person that has resulted from the left hip injury

1. Having concluded that the left hip injury was not caused by the motor accident we did not need to determine any permanent impairment.

The degree of permanent impairment of the injured person that has resulted from the right knee injury

1. In the certificate dated 12 December 2023 Medical Assessor Anil Nair diagnosed the injury as right knee retropatellar injury.

2. Medical Assessor Anil Nair concluded that the permanent impairment resulting from the right knee injury was 2%.

3. Having concluded that the right knee injury was not caused by the motor accident we did not need to determine any permanent impairment.

The degree of permanent impairment of the injured person that has resulted from the right shoulder injury

1. In the certificate dated 12 December 2023 Medical Assessor Anil Nair diagnosed the injury as right shoulder tendonitis.

1. Medical Assessor Anil Nair concluded that the permanent impairment resulting from the right shoulder injury was 2%.

2. Having concluded that the right shoulder injury was not caused by the motor accident we did not need to determine any permanent impairment.

Conclusion on permanent impairment

1. The Review Panel determined the degree of permanent impairment as follows:

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 II	ch3,pgs102-107,AMA4 Tables 7 & 8 The Guidelines	Yes	5	0	5

*5 %WPI = percentage WPI.

Conclusions

1. The Review Panel revokes the certificate of Medical Assessor Anil Nair dated 12 December 2023.

2. The following injuries caused by the motor accident give rise to a permanent impairment of 5% and is NOT greater than 10%:

   (a)    cervical spine, soft tissue injury to the cervical spine.