AAI Ltd t/as Suncorp Insurance v Jannings

[2025] NSWPICMP 403

DETERMINATION OF REVIEW PANEL

CITATION:

AAI Ltd t/as Suncorp Insurance v Jannings [2025] NSWPICMP 403

CLAIMANT:

Jannings

INSURER:

AAI Limited t/as Suncorp (QLD)

REVIEW PANEL

MEMBER:

Member Gary Victor Patterson

MEDICAL ASSESSOR:

Dr Margaret Gibson

MEDICAL ASSESSOR:

Dr Ian Cameron

DATE OF DECISION:

6 June 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); degree of permanent impairment disputes; claimant was a pillion passenger on a motorcycle; claimant was wearing a helmet; insured vehicle collided with the motorcycle; claimant was thrown off the motorcycle and may have lost consciousness briefly; insurer’s IME found 0% whole person impairment (WPI); Medical Assessor certified 15% WPI for injuries to the cervical spine, lumbar spine, left shoulder and scarring; Review Panel made different findings in relation to the cervical and lumbar spine; Review Panel certified 6% WPI; no issues to principle; Held – MAC revoked; new certificate issued.

DETERMINATIONS MADE:  

1.     The Review Panel revokes the certificate dated 22 July 2024 and issues a new certificate determining that:

(a)    The following injuries caused by the motor accident give rise to a permanent impairment of 6% and IS NOT GREATER THAN 10%:

·         cervicothoracic spine – whiplash injury;

·         lumbosacral spine – soft tissue injury;

·         left shoulder – soft tissue injury;

·         right knee – soft tissue injury;

·         right wrist – soft tissue injury;

·         left lower limb – soft tissue injury, and

·         scarring (left shoulder, both hands and left knee).

(b)    The following injuries caused by the motor accident have resolved and give rise to no assessable permanent impairment:

·         left and right hands.

STATEMENT OF REASONS

INTRODUCTION

1. On 23 January 2022, Regan Jannings (the claimant) was a pillion passenger on a motorcycle being driven along Bentley Road, Bentley, from The Channon Hotel to Woodhill in Queensland. The claimant was wearing a helmet and believes that the motorcycle was travelling about 97kmph. The insured Toyota Yaris sedan was approaching in the claimant’s lane from the opposite direction. The insured vehicle collided with the motorcycle. The claimant was thrown off the motorcycle and may have lost consciousness briefly. The claimant remembers seeing the car approaching but does not remember the collision. The claimant remembers sliding across the road surface. The claimant was taken to Lismore Base Hospital where she was evaluated and discharged the same day.

2. Suncorp (QLD) (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay the claimant any damages under the Motor Accident Injuries Act2017 (the Act). The insurer conceded liability to pay damages to the claimant subject to a reduction of 10% for the claimant’s alleged contributory negligence for failure to wear protective gloves at the time of accident.

Bundles of documents

1. The parties have each presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.

2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned.[1] The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”.[2] The Panel has come to its own conclusions and has taken its own history.

   [1] WAEE v Minister for Immigration and Citizenship [2003] 75 ALO 630 at (46).

   [2] Farr v Insurance Australia Limited t/as NRMA Insurance Limited [2014] NSWSC 1435 at (46).

ASSESSMENT UNDER REVIEW

1. As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, the dispute was referred to Medical Bernard Tamba-Lebbie for assessment of the following injuries:

   ·        cervical spine – whiplash injury with disc bulge at C5/C6 with posterior annulus tear at C5/C6;

   ·        lumbar spine – musculotendinous injury;

   ·        left shoulder – soft tissue injury;

   ·        scarring – left shoulder/scarring on the bolar aspect of the right wrist/scarring on each of the medial aspects of the left indexed finger and little finger PIP joints;

   ·        left and right hands – musculotendinous injury;

   ·        right wrist – soft tissue injury;

   ·        fingers on left hand – soft tissue injury;

   ·        left leg – soft tissue injury with muscle contusion, and

   ·        left and right knee – aggravation of chondromalacia patellae in both knees, left knee articular cartilage impaction injury of the trochlear of the femur and subtle tear of the medial meniscus posterior horn.

2. Medical Assessor Tamba-Lebbie certified on 22 July 2024 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 15% and IS GREATER THAN 10%:

·     Cervical spine – whiplash injury with disc bulge at C5/C6 with posterior annulus tear at C5/C6

·     Lumbar spine – musculotendinous injury

·     Left shoulder – soft tissue injury

·     Scarring – left shoulder/scarring - volar aspect right wrist/scarring - medial aspects left indexed finger and little finger PIP joints

The following injuries caused by the motor accident have resolved and give rise to no assessable permanent impairment:

·     Left and right hands – musculotendinous injury

·     Right hand – musculotendinous injury

·     Right wrist – soft tissue injury

·     Fingers left hand – soft tissue injury

·     Left leg – soft tissue injury

·     Right knee – aggravation of chondromalacia patellae

·     Left knee – aggravation of chondromalacia patellae and articular cartilage impaction injury of the trochlear of the femur

An assessment of the degree of permanent impairment of these injuries is therefore not required.

The following injuries referred to me for assessment have been assessed and determined to be not caused by the motor accident:

·     Left knee subtle tear of the medial meniscus posterior horn

An assessment of the degree of permanent impairment of these injuries is therefore not required.

Medical Assessor Tamba-Lebbie assessed 5% whole person impairment (WPI) for each of the cervical and lumbar spine, 4% WPI for the left shoulder and 1% WPI for scarring, giving a combined 15% WPI.

1. Medical Assessor Tamba-Lebbie made no adjustment for pre-existing/subsequent impairment, apportionment or treatment effects.

THE REVIEW

1. The insurer sought a review of Medical Assessor Tamba-Lebbie’s certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the Act, in a material respect. The insurer brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).

2. The insurer submitted that Medical Assessor Tamba-Lebbie erred on the following grounds:

   ·        in determining that the lumbar spine impairment was DRE category II, and

   ·        failed to apply, or failed to make sufficiently clear, that the Medical Assessor considered cl 6.51 of the Motor Accident Guidelines (Guidelines) (version 9.1) when assessing left shoulder impairment.

3. In relation to the lumbar spine, the insurer noted that the Medical Assessor recorded a normal examination, finding no dysmetria, no muscle guarding and no non-verifiable radicular complaints. Neurological examination of the lower limb was normal.

4. The insurer submitted that the Medical Assessor did not make any findings that were consistent with DRE category II, and should have found DRE category I for the lumbar spine, with 0% WPI.

5. In relation to the left upper extremity, the insurer noted that Medical Assessor Tamba-Lebbie made no finding of any injury or impairment to the right shoulder. It is clear from the Medical Assessor’s tabulated measurements of active range of movement in the shoulders that the contralateral uninjured joint, being the right shoulder, had less than average mobility. Nevertheless, the Medical Assessor made no reference to cl 6.51 of the Guidelines in his Certificate.

6. The insurer submitted that, were the Medical Assessor to find that cl 6.51 applied, the right shoulder impairment would have been assessed at 6% upper extremity impairment or 4% WPI, which should have been subtracted from the left shoulder impairment, also 4%. Therefore, the insurer submitted, the claimant’s left shoulder impairment should have been assessed at 0% WPI.

7. The insurer finally submitted that both alleged errors are material in that, if the lumbar spine and the left shoulder had been assessed correctly, the claimant’s overall permanent impairment would be less than 10% WPI.

8. The insurer’s review application was opposed by the claimant on various grounds. It is not necessary to repeat those submissions in detail as they were not accepted by the President’s delegate. Briefly, those submissions can be summarised as follows:

   (a)    in relation to the lumbar spine, given the history taken by the Medical Assessor and his findings on examination, an assessment of 5% WPI was appropriate, and

   (b)    in relation to the left upper extremity assessment, the slightly reduced range of motion found by the Medical Assessor in the right uninjured shoulder on some (not all) movements did not equate to a “less than average mobility”. Further, there was no reasonable expectation that the injured joint would have had similar findings to the uninjured joint before the injury. Therefore, the Medical Assessor did not err in his assessment of the left upper extremity.

9. President’s delegate Tajan Baba issued a Determination of an Application for Review of a Medical Assessment on 22 October 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated to be the grounds for review and particulars set out in the insurer’s review application in respect to the Medical Assessor’s examination of the lumbar spine injury.

10. Accordingly, the review application was accepted and was referred to the Panel, which is to re-assess all of the injuries referred to Medical Assessor Tamba-Lebbie, as previously identified.

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with s 63 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).

2. Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[3]

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

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[4]

   [4] Rule 128 of the PIC Rules.

4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[5]

   [5] Section 7.26(6) of the Act.

5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

CAUSATION OF INJURY

1. Causation of injury is addressed in the Guidelines as follows:

   “6.5   An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 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 AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

   6.6    Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:

   Causation means that a physical, chemical or biological 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 contributed to the worsening of the impairment, which is a non-medical determination.

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

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

2. See Briggs v IAG Limited t/as NRMA Limited.[6]  See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[7] where 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 principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”

   [6] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.

   [7] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.

3. Wright J then described the Panel’s role in a medical review which is to:

   “Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:

   (1)a comprehensive, accurate history, including pre-accident history and pre-existing conditions;

   (2)a review of all relevant records available at the assessment;

   (3)a comprehensive description of the injured person’s current symptoms;

   (4)a careful and thorough physical examination;

   (5)diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

MATERIAL BEFORE THE REVIEW PANEL

1. The claimant relied upon the following material which the Panel has considered:

No.	Document Name	Pages
1	Claimant’s submissions made to the President’s delegate dated 4 October 2024	5

Previously summarised.

2 Claimant’s submissions made to Medical Assessor Bernard Tamba-Lebbie dated 19 December 2023 6 – 9

The claimant refers to a severe motorbike accident and relies on the report of
Dr Danielle Wadley, orthopaedic surgeon, as regards her complaints of impairments (see below) and the medical treatment records, including those of the treating orthopaedic surgeon, Dr Sanjay Joshi.

3 Certificate and Reasons of Medical Assessor Bernard Tamba-Lebbie dated 22 July 2024 10 - 27

See previously.

4 Report dated 4 April 2023 by Dr Danielle Wadley, consultant orthopaedic surgeon, to the claimant’s lawyers 13 - 30

Dr Wadley makes the following diagnosis:

(a)    cervical spine whiplash injury, disc bulge C5/C6 with posterior annulus tear at C5/C6 without neurological sequelae;

(b)    left shoulder and hand abrasions;

(c)    musculotenderness injury to left hand;

(d)left knee aggravation of chondromalacia patellae, and

(e)lower back musculotenderness injury without neurological sequalae

Dr Wadley says that those injuries are expected to resolve after approximately 18 months from the date of the accident. Dr Wadley considers that the injuries have stabilised and assesses WPI as follows:

Cervico thoracic spine	5%
Thoracolumbar spine	5%
Left knee	2%
Right knee	2%
TEMSKI scarring	3%

Dr Wadley found no impairment rating available for the left shoulder, left hand or right hand.

Using the Combined Values Chart, Dr Wadley calculated 12% WPI for the spine, combined with 4% WPI for the knees = 16% WPI + 3% WPI for the skin = 19% WPI.

5 Dr Sanjay Joshi – answers dated 22-05-2022 to Suncorp questions 168 - 169

Dr Joshi provided the following diagnosis:

(a)    left knee – soft tissue injury – no internal derangement;

(b)    left leg – soft tissue injury – muscle strain, and

(c)    articular cartilage injury in left knee trochlear femur.

Dr Joshi says the MRI pictures show some cartilage loss on trochlear femur (not reported) nor ? findings matched with MRI findings.

1. There are some additional 800 pages of material which the Panel has noted. There is little utility in summarising that material.

2. The insurer relied upon the following material which the Panel has considered:

No.	Document	Date	Pages
1	Respondence review submissions	17.09.2024	1

Previously summarised.

2 Suncorp’s Submissions in Reply to an Application for Medical Assessment (WPI) 18.01.2024 4

(a)    The insurer relies upon the report of Dr Peter Sharwood who found the claimant had a full range of motion in the shoulders, wrists and hands, upon examination. There was no evidence of dysmetria or muscle wasting in the back. Reflexes were symmetrical. The knees revealed some tenderness over the medial joint line on the left side. There was no effusion with either knee joint or dysfunction. Dr Sharwood assessed 0% whole person impairment.

(b)    The insurer relies upon Dr John Korber who found there was no fracture or breakage in the cartilage shown in the MRI taken on 10 February 2022.
Dr Korber opined the appearance of the patellar cartilage was degenerative and there was no marrow oedema in the fibula nor in the other structures.

(c)    The insurer relied upon Dr Ventzi Bonev who found the claimant had a normal upper and lower limb neurological and electrophysiological examination.
Dr Bonev opined the upper and lower limb symptoms are musculoskeletal and the claimant would benefit from NSAIDS.

Based upon those medical opinions, the insurer submitted the claimant’s WPI is not over the 10% threshold.

3 Report of Dr John Korber, radiologist, to the insurer 12.12.2022 5

Under the heading SUMMARY, Dr Korber says as follows:

“The appearance in the patellar cartilage is degenerative. This is not post-traumatic on a MRI in a previously normal knee. The reason for this is that there is no evidence of marrow oedema in the patella, in an MRI that is performed in a timely manner being less than six weeks after the injury. Marrow oedema tends to resolve after six to eight weeks. The origin of tibialis posterior from the fibular is normal with a small collection of vessels in this region. There is no marrow oedema in the fibular, and no surrounding oedema in the other structures so isolated injury is unlikely without accompanying surrounding oedema. The claimant has clearly had a significant injury to the anterior aspect of the tibia with subcutaneous oedema anterior to most of the other tibia.”

Dr Korber confirms the MRI taken on 10 February 2022 shows no fracture/break in the cartilage. He confirms the radiology alone shows a “non-minor” injury.

4 Report of Dr Peter Sharwood, consultant orthopaedic surgeon, to the insurer 28.10.2023 10

Dr Sharwood records that the claimant reports constant pain in her neck which she rates at 5/10 an visual analogue scale; pain extending into her head with headaches and pain radiating to the top of both shoulders; some discomfort in the medial aspect of both left and right arms; pain on the palmar surface of the left hand with some nocturnal paraesthesia; pain in the left knee; constant pain in the lower back which rates at 5/10 on an visual analogue scale.

Under the heading PHYSICAL EXAMINATION, Dr Sharwood reports as follows:

“Examination of her neck revealed 60° of flexion, 60° of extension, 40° of lateral flexion and 90° of lateral rotation, symmetrical on both left and right sides without any evidence of muscle spasm or wasting. There was no dysmetria.

Examination of her shoulders, elbows, wrists and hands revealed a normal range of motion in all joints. There was no evidence of any muscle wasting or muscle weakness.

Examination of her back revealed 90° of flexion, 20° of extension, 45° of lateral flexion and lateral rotation, symmetrical on both left and right sides without any evidence of muscle wasting, muscle spasm or dysmetria. Power, tone, reflexes and sensation of the lower limbs were all within normal limits. All her reflexes were symmetrical. She did complain of some pain in her thighs with straight leg raising, suggesting hamstring tightness. There was no evidence of any neurological deficit and no evidence of nerve root entrapment.

Examination of her hips revealed a normal range of motion with flexion to well over 100, normal internal and external rotation and normal abduction and adduction.

Examination of her knees revealed there was no effusion within either knee joint. There was no evidence of any dysfunction within the joint. Provocative tests for internal derangement were negative. There was no fixed flexion deformity and there was no instability.

Examination of the ankles and subtalar joints revealed no abnormality. She was observed to have a normal gait and was able to walk on heels and toes and do a full squat.

Under the heading SUMMARY, Dr Sharwood opines the claimant suffered a soft tissue injury to her neck, left shoulder and left knee, as a result of the subject accident. He finds there is no necessity for any further treatment. He assesses 0%% WPI.

EXAMINATION REPORT

1. Ms Jannings attended Medical Assessor Gibson’s rooms on 4 April 2025. She was accompanied by her partner Paul. The report of Medical Assessor Margaret Gibson is as follows:

   “PRE-ACCIDENT MEDICAL HISTORY

   Ms Jannings said that she had suffered with headaches prior to the subject accident, but that these had resolved by the time of the accident. However, since the accident she has developed severe migraine-type headaches.

   She had noticed some occasional tightness in her neck/shoulder region after spending a lot of time on the computer before the subject accident. And she may have visited her general practitioner regarding this issue, Dr Devendra Kawol at the Jimboomba Pharmacy Medical Centre.

   She denied having any history of any significant injuries or accidents or any ongoing symptoms leading up to the subject accident nor was any regular medication being taken.

   RELEVANT PERSONAL DETAILS

   Ms Jannings lives with her partner, her two adult children and her 7-year-old daughter in a single-story house. The dwelling is on level ground so there are no steps to climb. She said she had been living in the same location prior to the subject accident.

   She was working in a full-time marketing position prior to the accident. This was a customer facing role and involved making presentations and carrying equipment, thus there was a fair amount of physical work involved in this occupation.

   She had taken about a month off work after the accident, and then she made a graded return to work starting at one hour per day. She is currently working in a part-time administrative role for a marketing company and driving school, 6 hours a day, with some flexibility around this depending upon her symptoms.

   At home, they have a cleaner come in to do the bathrooms, vacuum and mop.
   Ms Jannings said that vacuuming and mopping was aggravating her headache. She was also finding high cleaning was a problem for her and that lifting any weights above shoulder level.

   She said she tries to keep fit, walking up to 2.5km, but avoids any running because this flares up the knee pain.

   HISTORY OF THE SUBJECT ACCIDENT

   Ms Jannings had been pillion passenger on a motorbike being driven by her partner. They were heading home from the Channon Hotel near Lismore after having some lunch. She was wearing a helmet and full protective clothing. She estimated their bike was travelling at 97km/hr. They were coming around a bend when a Toyota Yaris travelling at about 46km/hr had crossed to their side of the road and so causing the collision.

   The claimant was thrown off her bike. She had patchy memory of events following the impact and couldn’t remember hitting the ground, but did recall sliding and then once she came to a stop, jumping up to find her partner.

   Police and ambulance arrived and she and her partner were transported to Lismore Hospital. Their motorbike was left at the scene and later totally written off.

   The ambulance report from the day of the accident noted Ms Jannings had been sitting on the road with her partner following this high-speed, head-on collision. There had been major deformation to the motorcycle and passenger vehicle. Ms Jannings had denied having had any loss of consciousness. She had abrasions over her left shoulder, hand and slight bruising of her left shin. There were no neck pains. There was some pain in the right lower abdomen en route to the hospital.

   The claimant said she was experiencing severe panic attacks after the accident and she was also very worried about her partner, therefore she had limited recollection of any of her immediate symptoms.

   At the hospital she was noted to be alert and orientated with a GCS of 15. She was mobile. Her medical history had included appendicectomy and fractured scaphoid side. She was noted to have normal range of movement of both upper and lower limbs. There was a small bruise over her proximal left tibia. There was mild occipital tenderness. A plain x-ray of left tibia and fibula showed no fracture. CT scan head, cervical spine, chest, abdomen and pelvis showed no acute intracranial haemorrhage, skull fracture or cervical spine fracture and no acute thoracic or abdominopelvic trauma.

   She said that she was discharged home and one of her older children had arrived and drove her home. She said she had not had time to visit her own doctor by the time Lismore Hospital contacted her to advise they were planning to discharge her partner. At that stage her partner's friends had driven her back to Lismore and she had then stayed there for the next week waiting for him to be discharged.

   Ms Jannings said it was not until about two weeks after the subject accident that she visited her general practitioner, Dr Kawol. The certificate of capacity was completed 6 April 2022 by Dr Kawol, noting multiple injuries, musculoskeletal back pain, left hand soft tissue injury, left knee bone bruising.

   She was referred for imaging of both hands and thumbs which was performed on 2 February 2022 and demonstrated no abnormalities.

   She was referred for physiotherapy treatment of her back and right knee. She had later had an MRI scan of her left knee and upper leg, which showed minor degeneration of the posterior horn of the medial meniscus, Hoffa's fat pad impingement due to patellar maltracking and grade 1 chondromalacia patella. There was also mild oedema at the origin of the tibialis posterior muscle on the upper fibula strain or contusion, but no definite muscle tear or any cortical fracture was identified.

   On 27 February 2023, Dr Kawol referred her to neurologist, Dr Ventzi Bonev. After neurophysiological testing, he had concluded that her upper and lower limb symptoms were mainly musculoskeletal and did not represent any form of peripheral neurological pathology.

   She was also referred to Dr Dharmesh Sonigra, Neurologist, and had first seen the doctor on 20 July 2023. This was in relation to her chronic daily headaches. She was prescribed amitriptyline tablets, however, as the dose was increased, she began to experience side effects and so Inderal tablets were tried with Rizatriptan for acute migraine and then topiramate as migraine prophylaxis. Eventually the doctor had recommended she have some Botox injections.

   She had visited Dr Sanjay Joshi, orthopaedic surgeon on 15 February 2022.

   Dr Joshi had performed an arthroscopy left knee 12 February 2024. This had shown grade 2 medial femoral condyle changes, subtle tear of medial meniscus and lateral meniscus, grade 1-2 changes in lateral tibial plateau. He had trimmed the medial meniscus and debrided the inferior surface of lateral meniscus.

   She had also seen Dr Damian Amato, Neurosurgeon, who had noted on 24 May 2022 that she had a well-preserved range of motion of the neck and normal upper limb neurology. He did however note that she had an annular tear at C5/6 without significant disc protrusion or nerve compression. He recommended conservative measures be adopted.

   CURRENT TREATMENT

   Ms Jannings continues to visit Dr Sonigra for Botox injections every 12 weeks. She takes Rizatriptan as required for migraine. She finds that her headaches tend to accelerate when it is getting close to the end of the 12-weeks between Botox injections. She takes 10mg amitriptyline at night.

   There was no other medication apart from occasional ibuprofen.

   She has physiotherapy for her neck and has also seen a podiatrist for orthosis, which she finds is now assisting with the low back pain.

   CURRENT COMPLAINTS

   Cervical spine

   Ms Jannings indicated pain over their lateral neck extending towards both trapezius regions and also into the back of her head. The neck pain is constant and rated between 4/10 to 6/10 severity (0 being no pain, 10 being severe pain).

   She also notices some sharp pains spreading from the right cubital fossa down over the ventral aspect of her right forearm. She said at times there are no numbness and tingling involving both hands. Sometimes this sensation is more prominent in the three lateral fingers. She feels her upper limbs are not as strong as before and she finds her handwriting has been affected.

   Lumbar spine

   There is mild intermittent pain felt across the low back which has improved since she started wearing the orthosis. There were no radicular symptoms or referred pain into the lower limbs.

   Knees

   Ms Jannings said that both knees give way at times and she finds they swell towards the end of the day.

   Right wrist

   There is still some discomfort felt deep in the right wrist joint.

   Left leg

   There is still slight tenderness over the left shin where there had been significant bruising.

   PHYSICAL EXAMINATION

   Ms Jannings was 164 cm tall and weighed 60kg. She had a normal gait and could walk on heels and toes.

   On examination of the cervical spine, there was full normal range of movement. There was no asymmetry, muscle spasm or guarding.

   On examination of the upper limbs, circumferential measurements of the arms were 29cm (10cm above the olecranon process) and right forearm measured 25cm and left forearm 24cm (10cm below the olecranon process). There was normal sensation bilaterally, apart from mild slight dysaesthesia over the palmar aspect of all fingers and also a small patch over the left thumb. There was no peripheral nerve or radicular distribution to these symptoms. There was normal power and reflexes bilaterally.

   On examination of both shoulders, there was no localising tenderness and no impingement. There were some pale barely discernible scarring over the superior/anterior aspect of the left shoulder, from grazing sustained in the subject accident. Active movements were as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	160 °	140 °
Extension	60 °	60 °
Internal Rotation	80 °	80 °
External Rotation	90 °	90 °
Abduction	170 °	150 °
Adduction	70 °	60 °

On examination of both wrists there was no deformity, swelling or scarring. Active movement of the wrists were as follows:

Wrist Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	60 °	60 °
Extension	60 °	60 °
Radial Deviation	20 °	20 °
Ulnar Deviation	30 °	30 °

On examination of both hands, there was some minor pale scars over the dorsum of her hands and fingers, these were pale and well healed and barely visible. Movements of both fingers and hands were normal.

On examination of the back, there was no specific tenderness of thoracic or lumbar spine. There was three-quarters normal flexion and extension, normal lateral flexion and rotation. There was no asymmetry, muscle spasm or guarding.

On examination of the lower limbs. Thighs measured 42cm (10cm above the upper pole of the patella) and 34cm maximum girth at the calf bilaterally. There was normal power and reflexes bilaterally.

On examination of both knees, there was 130° flexion bilaterally. There was full extension. There was no instability. There was no swelling. There was no crepitus.

Scarring

The scarring over the left shoulder, both hands and arthroscopy ports left knee showed minor colour contrast with the surrounding skin. There were no staple or suture marks, there was no contour defects, no adherence and no treatment for the scars was required.

SUMMARY

Ms Jannings is a 44-year-old right-handed woman who was involved in the subject accident on 23 January 2022 when she was a pillion passenger on a motorbike being driven by her partner, which was involved in a head-on collision with a Toyota Yaris sedan. As a consequence of this accident, she had sustained soft tissue injuries to her cervical and lumbar spines, grazing and soft tissue injury to her left shoulder, soft tissue injury, grazing and lacerations to both dorsum of both hands and bruising over the left shin. There had also been injury to both knees and she had undergone arthroscopy of her left knee with partial medial and lateral meniscectomy.

IMPAIRMENT

Cervical [Cervicothoracic] spine

There were complaints of pain or symptoms, but there were no clinical findings as detailed in Table 6.8, SIRA Motor Accident Guidelines. There was no radiculopathy or vertebral body compression or vertebral fracture. Therefore, the cervical spine injury would be assessed at DRE Impairment Category I.

Thus, 0% WPI.

Lumbar [Lumbosacral] spine

There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were no clinical findings as detailed in Table 6.8, SIRA Motor Accident Guidelines. Therefore, the lumbar spine injury would be assessed at DRE Impairment Category I.

Thus, 0% WPI.

Right knee

There was no gait derangement [Chapter 3 AMA 4, Table 36, p76]. No muscle atrophy [Chapter 3 AMA 4, Table 37, p77]. No unilateral muscle weakness [Chapter 3 AMA 4, Table 38 & 39, p77]. Knee movements were assessed with reference to Table 41 [Chapter 3, AMA 4, p78] resulting in 0% WPI.  There was no patellofemoral crepitus [Table 62, Chapter 3, AMA 4, p83] giving rise to 0% WPI. There were no diagnosis-based estimates applicable [Chapter 3, AMA 4, Table 64, p85].

Thus, 0% WPI.

Left lower limb

There was no gait derangement [Chapter 3 AMA 4, Table 36, p76]. No muscle atrophy [Chapter 3 AMA 4, Table 37, p77]. No unilateral muscle weakness [Chapter 3 AMA 4, Table 38 & 39, p77]. Knee movements were assessed with reference to Table 41 [Chapter 3, AMA 4, p78] resulting in 0% WPI.  There was no patellofemoral crepitus [Table 62, Chapter 3, AMA 4, p83] giving rise to 0% WPI. There were diagnosis-based estimates applicable [Chapter 3, AMA 4, Table 64, p85]. She had had a medial and lateral partial meniscectomy.

Thus, 4% WPI.

Left shoulder

Movements were measured. Total upper extremity impairment (4%) was calculated with reference to Chapter 3, Fig 38, 41, 44, AMA 4 and then converted to 2% Whole Person Impairment using Table 3, p 20, AMA 4.

Thus, 2% WPI.

Right wrist

Movements were measured. Total upper extremity impairment (0%) was calculated with reference to Chapter 3, Fig 26,27,29 and then converted to 0% Whole Person Impairment using Table 3, p 20, AMA 4.

Thus, 0% WPI.

Hands

There was normal range of movement of both hands and no sensory or motor loss. The soft tissue injuries have resolved.

Scarring

The impairment due the scarring was assessed with reference to the TEMSKI scale for the evaluation of minor skin impairment. The most appropriate assessment, applying the "best fit" principle, is 0% whole person impairment. This conclusion is based on the following criteria:

·The scars have no effect on any activity of daily living.

·The scars are visible with usual clothing.

·There is minor colour contrast with the surrounding skin.

·Staple and suture marks were not present.

·There was no contour defects.

·No treatment for the scars is required.

·Adherence of the scars was not a factor.

Combining 4% with 2% WPI gives 6% WPI.

The Panel noted the mild reduction in range of movement at the right shoulder. It determined not to apportion for that because it was not satisfied that the left shoulder had similar findings to the uninjured right shoulder before injury.”

FINDINGS

1. The Panel reconvened on 11 April 2025. The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.[8] The Panel adopts the examination findings and reasons of Medical Assessor Gibson with which Medical Assessor Cameron concurs.

   [8] Section 7.26(6) of the Act.

1. The Panel is not required to choose between competing medical opinions and is required to form its own opinion.[9]

   [9] Allianz Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.

2. The Panel finds, as a matter of medical determination and as a matter of factual non-medical determination, that the motor accident caused injuries to the claimant’s cervical spine, lumbar spine, left shoulder, both knees and both hands. The soft tissue injuries in both hands have resolved.

3. The Medical Assessors have explained the basis for their assessments and diagnosis which are different to those of Medical Assessor Tamba-Lebbie and Dr Sharwood. In relation to Medical Assessor Tamba-Lebbie, the main difference is in relation to their assessments of the cervical and lumbar spine, for the reasons stated.

4. The medical assessment of permanent impairment is made at the time of the examination. In that respect, the previous assessments are somewhat outdated, and do not reflect current symptomology, in the Medical Assessors’ opinion.

CONCLUSION

1. For the above reasons, the Panel concludes the certificate issued by Medical Assessor Tamba-Lebbie on 22 July 2024 should be revoked. The new certificate appears at the beginning of these reasons.