Allianz Australia Insurance Limited v Akkaoui
[2025] NSWPICMP 152
•11 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Akkaoui [2025] NSWPICMP 152 |
CLAIMANT: | Wisam Akkaoui |
INSURER: | Allianz Australia Insurance Ltd |
REVIEW PANEL | |
PRINCIPAL MEMBER: | John Harris |
MEDICAL ASSESSOR: | Christopher Oates |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 11 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; motor accident on 5 February 2022; high speed collision; the dispute related to whether the degree of permanent impairment was greater than 10% and a treatment dispute concerning proposed surgery to the cervical spine; claimant re-examined; claimant suffered multiple rib fractures, lacerations, right thumb fracture, and other soft tissue injuries; clamant had further right thumb surgery two days prior to examination with Review Panel; impairment not stabilised; all body parts should be assessed together (section 3.21); grounds of review raised issues only with permanent impairment; review not limited and includes treatment dispute; Allianz Australia Ltd v Ellul applied; surgery for cervical spine not necessary due to absence of relevant neurological signs; signs consistent with recent examinations by other Medical Assessors; treatment dispute determined; Held – claimant’s degree of permanent impairment not stabilised due to recent surgery; Medical Assessment Certificate of permanent impairment revoked; assessment of treatment dispute confirmed. |
DETERMINATIONS MADE: | Medical Assessment – Permanent impairment Certificate WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel revokes the medical assessment certificate dated 29 June 2024 and decline to assess the degree of permanent impairment because it is not static, well stabilised and unlikely to change substantially regardless of the treatment. Medical Assessment –Treatment and Care Review Panel Assessment of Treatment and Care Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate dated 29 June 2024 relating to the treatment dispute. |
REASONS
BACKGROUND
Mr Wisam Akkaoui (the claimant) was injured in a motor accident on 5 February 2022. The claimant was involved in a collision driven by the driver of the insured vehicle at high speed. The hospital note recorded the collision at 60 – 100 kmph, with the insured vehicle colliding with the claimant’s passenger side and causing a shattered windscreen and deployment of airbags.[1] Mr Akkaoui described the collision occurring at a much greater speed.
[1] Claimant’s bundle, p 118.
Allianz Australia Insurance Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Akkaoui any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issues in this medical dispute are whether Mr Akkaoui’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%” and “whether any treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)” within the meaning of the MAI Act.
The treatment and care disputes referred for assessment are whether the C5/6 and C6/7 discectomy and fusion are reasonable and necessary in the circumstances and related to the injury caused by the motor accident.
These constitute medical disputes within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor McGrath (Medical Assessor) and dated 29 June 2024 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration. The insurer filed a further Application enclosing radiology which was admitted.
On 11 November 2024 the Panel requested the claimant to produce the clinical records of the general practitioner (GP) from 2007 to 2015.
The claimant advised on 14 January 2025 that they were chasing up the GP records for the period from 2007 to 2015. Whilst advising that they would “notify [us] shortly”. The claimant subsequently advised that no documents were available,
The insurer subsequently filed the medical assessment certificiate issued by Medical Assessor Young dated 31 December 2024. That assessment related to a treatment and care disputes for future physiotherapy.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[9] In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[9] See s 3B(2) of the Civil Liability Act 2002.
[10] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor noted the following body parts referred for assessment were the lumbar spine, cervical spine, thoracic spine, chest (rib fractures), right shoulder, hand, (fracture of thumb), right hip, laceration to scalp, right knee and right ankle.
The Medical Assessor noted that the claimant had a mildly restricted range of movement mostly with respect to loss of extension with no objective spasm or guarding and no non-verifiable radicular complaints. Neurological examination of the upper limbs was completely normal.
There were no symptoms pertaining to the thoracic spine and there was uniform restriction of motion within the lumbar spine.
Examination of the right upper extremity showed mild restriction of right shoulder movement and reduced range of motion of the right thumb.
Examination of the right knee showed full range of motion with tenderness along the medial and lateral aspects of the joint line and no internal ligament laxity. Examination of the right ankle was normal.
The Medical Assessor noted a right occipital scalp scar which was not sensitive and covered by hair, a longitudinal posterior scar from the right thumb surgery, small punctate scars from the right knee surgery and lacerations over the aspect of the right hip. Under the principle of best fit, the Medical Assessor assessed 1% whole person impairment for scarring.
The Medical Assessor assessed whole person impairment at 11% for the cervical spine (5%), right upper extremity (shoulder - 3% and thumb – 1%), right lower extremity (1%) based on a partial meniscal tear repair and scarring (1%). There were no other assessable impairments made by the Medical Assessor.
The Medical Assessor found that the relationship between the motor accident and the need for surgery was weak because the motor accident only caused a possible soft tissue injury in the neck superimposed upon long-standing pathology. The Medical Assessor otherwise found that the claimant did not have neurological signs which would justify cervical spine surgery, and it was possible the claimant would be made worse by any proposed surgery.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-accident records
A CT scan of the right knee dated 23 December 2013 showed a large joint effusion with the anterior cruciate ligament poorly defined and recommended further evaluation by an MRI scan.[11]
[11] Insurer’s further bundle, p 3.
An MRI scan of the right knee dated 7 January 2014 showed a complete rupture of the anterior cruciate ligament and undisplaced fracture of the lateral tibial plateau.[12]
[12] Insurer’s further bundle, p 4.
X-rays of the spine dated 7 July 2016 showed mild loss of height of the L1 vertebral body which may indicate an anterior wedge compression fracture.[13]
[13] Claimant’s bundle, p 228.
On 7 July 2016 the GP noted a recent accident causing left neck pain/lower back pain and pain from the thigh to the left foot.[14] The doctor noted a history of back pain at the age of 18 that had resolved.
[14] Claimant’s bundle, p 208.
On 11 July 2016 the GP noted the X-ray showed an L1 compression fracture with ongoing complaints of neck and back pain.[15] The GP referred the claimant for physiotherapy for the neck, bilateral shoulder and lumbar spine pain.[16]
[15] Claimant’s bundle, p 209.
[16] Claimant’s bundle, p 238.
In April 2017 the GP noted ongoing neck pain.[17] A CT scan of the cervical spine dated
3 April 2017 noted a clinical history of occipital headaches and showed a right posterior disc protrusion causing mild canal stenosis and probably causing C7 nerve root impingement.[18][17] Claimant’s bundle, p 216.
[18] Claimant’s bundle, p 229.
In October 2020 the GP noted ongoing pain in the neck, upper back and lower back.[19]
[19] Claimant’s bundle, p 219.
On 19 February 2021 the GP noted a history of chronic back pain for many years with occasionally referred radiculopathy.[20] The dosage of Targin was increased at that time.
[20] Claimant’s bundle, p 234.
On 12 March 2021 the claimant presented to Bankstown Hospital with left-sided neck, shoulder and upper limb pain. Examination was unremarkable with no obvious paraesthesia although there was sensory deficit in the left upper limb in the distribution of C5/6.[21]
[21] Claimant’s bundle, p 265.
On 30 October 2021 the claimant was prescribed Endone for lower back pain and wating for hernia surgery.[22]
[22] Insurer’s bundle p 85.
Medical records post-accident
The ambulance report noted the motor accident and injuries to the scalp, right chest, right arm including shoulder, abdomen and questioned right rib fractures.[23] The Glascow coma score (GCS) recorded at the accident site by the ambulance officer was 15.
[23] Claimant’s bundle, p 73.
The hospital notes refer to the motor vehicle accident causing a Bennett’s fracture, concurrent right forearm injures, right hip lacerations and right rib fractures.[24] X-ray showed multiple right sided rib fractures including interior ribs 1 - 5 and a posterior right 10th buckle fracture.[25]
[24] Claimant’s bundle, p 68.
[25] Claimant’s bundle, p 110.
Clinical hospital notes refer to no cervical spine tenderness and no midline tenderness in the back. Those notes record right thumb fracture, right sided chest wall tenderness, soft non-tender abdomen and lacerations with grazes and shards of glass in the right upper limb/shoulder.[26]
[26] Claimant’s bundle, p 111.
A separate note refers to no injuries to the cervical spine and no cervical tenderness.[27]
[27] Claimant’s bundle, p 119.
The CT scan of the brain showed a large right parietal haematoma with an overlying skin laceration and tiny hyperdensities measuring up to 2 mm in size compatible with glass fragments. The scan was otherwise normal with no skull fracture or acute intracranial haemorrhage. The cervical spine scan was normal.[28]
[28] Claimant’s bundle, p 115.
The chest scan showed an irregularity of the right posterior 10th rib compatible with fracture, fractures of the anterior right 1st – 5th ribs and the possibility of a T11/12 posterior osteophyte fracture.[29]
[29] Claimant’s bundle, p 116.
The X-ray of the right wrist dated 5 February 2022 showed an acute comminuted extra articular fracture through the proximal shaft of the right thumb metacarpal with volar angulation and displacement and associated soft tissue swelling.[30]
[30] Insurer’s bundle, p 453.
The claimant first attended his GP following the motor accident on 10 February 2022 when he presented with a walking stick complaining of dizzy attacks, headache, neck pain, bilateral shoulder pain, cervical spine pain and lumbar spine pain and bilateral knee and ankle pain. The rib and thumb fractures were also noted.[31] The claimant was prescribed Endone and Targin. Subsequent certificates are similarly worded.[32]
[31] Claimant’s bundle, p 223.
[32] Claimant’s bundle, p 262.
A certificate of capacity dated 10 February 2022 referred to the motor accident causing injuries to the cervical, thoracic and lumbar spine, right shoulder, chest, multiple rib fractures on the right side, right elbow and wrist injury, bilateral knee and ankle injury.[33]
[33] Claimant’s bundle, p 257.
The claimant completed an application of the personal injury benefits on 9 February 2022 when he alleged that the motor accident caused injuries to the neck, right arm, right shoulder, right hand, left arm, left shoulder, left hand, chest, ribs, abdomen, back, right leg, right knee, right foot, left knee, left knee, left foot and nervous shock.[34]
[34] Claimant’s bundle, p 50.
On 21 February 2022 the GP referred the claimant for physiotherapy for the lumbosacral spine, cervical spine, dorsal spine, right shoulder, right thumb, bilateral knees and fractured ribs.[35]
[35] Claimant’s bundle, p 261.
A CT scan of the lumbar spine dated 23 February 2022 showed no evidence of fracture, disc protrusion or nerve root impingement. Disc bulges were noted at various levels.[36] An ultrasound of the right shoulder showed the rotator cuff was intact, there was no tendinosis or tear with a thickened subacromial bursa. The X-ray of the right hand showed displaced fracture at the base of the first metacarpal without distinct joint involvement.
[36] Claimant’s bundle, p 232.
A CT scan of the chest dated 28 February 2022 showed multiple healing right sided rib fractures.
The X-rays of the chest and right ribs dated 28 May 2022 showed no fractures.[37]
[37] Insurer’s bindle, p 146.
The X-ray of the right hand dated 30 May 2022 showed a healing fracture of the first metacarpal.[38] An ultrasound of the right elbow dated 30 May 2022 showed mild tendinosis of the common extensor tendon and a tiny surface tear if the common flexor tendon.[39]
[38] Insurer’s further bundle, p 13.
[39] Insurer’s further bundle, p 14.
The MRI scan of the cervical spine dated 30 May 2022 showed multilevel degenerative changes including broad-based disc osteophyte complexes at both C5/6 and C6/7 indicating that the changes were long-standing.[40] The MRI scan of the lumbar spine showed multilevel degenerative changes with contact/abutment of the right descending L5 nerve root.
[40] Insurer’s further bundle, p 15.
The MRI scan of the right shoulder dated 31 May 2022 showed tendinosis involving the subscapularis with changes in the anterior rotator cuff interval.[41] The MRI scan of the right knee showed a linear oblique flap tear of the medial meniscus with parameniscal cystic changes.
[41] Insurer’s further bundle, p 17.
On 13 July 2022 Dr Alan Nazha, pain specialist, noted that the main complaint following the motor accident were predominantly to the cervical, lumbar spine, right shoulder, elbow, hand, right knee and the right chest wall.[42]
[42] Claimant’s bundle, p 204.
The claimant consulted Dr Kirsh on 18 July 2022 for right shoulder and right knee pain which settled down. The doctor noted a history of a right anterior cruciate ligament repair in 2014 which settled down with no ongoing trouble. The claimant described pain in the posterior aspect and the medial aspect of the right knee and around the patella with ongoing limping.
Dr Kirsh noted anterior pain inside the joint of the right shoulder with no instability and full range of movement and a positive O’Brien’s test. The doctor diagnosed a strain of the acromioclavicular joint.
A CT scan of the right hand dated 20 October 2022 showed an old, healed fracture involving base of the first metacarpal bone with mild residual deformity.[43]
[43] Insurer’s further bundle, p 19.
A CT scan of the chest dated 25 October 2022 noted complete bone union of the previously detected right rib fractures.[44]
[44] Insurer’s further bundle, p 22.
Right knee surgery was permed by Dr Kirsh on 1 November 2022. The doctor noted a large medial plica and small meniscal tear and perfume a partial medial meniscectomy and excision of the plica. [45]
[45] Insurer’s bundle, p 435.
On 27 March 2023 Dr Baba performed a right thumb extension osteotomy and removal of volar ganglion.[46]
[46] Insurer’s bundle, p 330 and p 334.
An ultrasound of the right foot dated 18 April 2023 showed plantar fasciitis.[47]
[47] Insurer’s further bundle, p 25.
An MRI scan of the cervical spine dated 7 August 2023 showed mild bulging at C5/6 with irritation of the exiting right C6 nerve and mild right narrowing at C4/5 with no features of nerve impingement. The lumbar scheme of the same day showed a disc bulge at L4/5 with impingement of the descending right L5 nerve.[48]
[48] Claimant’s bundle, p 288.
On 14 August 2023, Dr McKechnie, neurosurgeon, noted neck pain radiating to the right arm and back pain with intermittent radiation through the right leg.[49] On 7 September 2023
Dr Pinckney recommended a partial right L4 and L5 laminectomy.[50][49] Claimant’s bundle, p 290.
[50] Claimant’s bundle, p 292.
On 16 October 2023 Dr Baba noted evidence of healing at the osteotomy site with improved thumb pain and range of motion.[51]
[51] Insurer’s bundle, p 302.
On 20 November 2023 Dr McKechnie referred to the MRI findings which showed a large right C6/7 disc protrusion and smaller protrusion at C5/6 and noted that the claimant may eventually require an anterior C6/7 discectomy and fusion and potential treatment at C5/6.[52]
[52] Claimant’s bundle, p 295.
Qualified opinions
Dr James Bodel, orthopaedic surgeon, was qualified by the claimant and provided a report dated 7 August 2023.[53]
[53] Claimant’s bundle, p 296.
Dr Bodel noted current complaints of pain in the neck, right shoulder and down the right arm, lower back and right knee. The doctor opined that the claimant suffered injuries to the cervical and lumbar spine, a rotator cuff injury to the right shoulder, direct blow to the front of the right knee and soft tissue injury to the right ankle as well as multiple rib fractures which had clinically healed with no abnormality of respiratory function.
Dr Bodel assessed the lumbar and cervical spine at 5% each based on asymmetry of movement, 6% for the right shoulder, no assessable impairment for the ribs, and a combined assessment, based on loss of movement of 7% impairment for the right knee and ankle.
Dr Ristogi, psychiatrist, was qualified by the claimant and provided a report dated
14 August 2023. The doctor diagnosed that the motor accident caused a post-traumatic stress disorder and associated major depressive disorder.[54][54] Claimant’s bundle, p 312.
Dr Muratore was qualified by the insurer and provided a report dated 31 August 2023.[55]
Dr Muratore noted inconsistencies described by the claimant in the records, specifically that at the time of the accident he complained of severe neck and back pain and that he was an inpatient for three days.[55] Insurer’s bundle, p 41.
Dr Muratore diagnosed a scout laceration without a significant head injury noting the GCS score recorded by the ambulance, laceration over the right shoulder and arm with persistent right shoulder pain consistent with traumatic rotator cuff tendinitis, Bennett’s fracture of the right thumb which required surgical correct correction, soft tissue injury to the cervical spine, tear of the right medial meniscus, right sided rib fractures, soft tissue injury to the lumbar spine and soft tissue injury to the right foot.
Dr Muratore opined that the claimant had not obtained maximum medical improvement with regards to the assessment of impairment of the thumb, right shoulder, right knee, cervical and lumbar spine.
Dr Muratore provided a further report dated 26 March 2024.[56] The doctor noted complaints of pain in the right shoulder, right thumb, neck, back, right knee and right ankle/heel.
[56] Insurer’s bundle, p 464.
Dr Muratore opined that the motor accident caused scalp laceration, right shoulder pain with no impingement and no weakness, Bennett’s fracture of the right thumb with complaints of persistent symptoms which are exaggerated, soft tissue injury to the cervical spine which had ceased complicated by a chronic pain syndrome, tear of the right medial meniscus treated surgically and complicated by a chronic pain syndrome, right sided rib fractures which have healed uneventfully, soft tissue injury to the lumbar spine with pre-existing lumbar spondylosis which may have been exacerbated by the motor accident but any exacerbation has ceased and soft tissue injury to the right foot which was not diagnosed as plantar fasciitis.
Mr Muratore opined that despite the claimant’s reported widespread symptomatology he did not believe the claimant was as debilitated as he stated.
Dr Mason, psychiatrist, was qualified by the insurer and opined that the motor accident caused a post-traumatic stress disorder and an adjustment disorder with depressed mood secondary to disability arising from ongoing pain.[57]
[57] Insurer’s bundle, p 493.
OTHER MEDICAL ASSESSMENT
Medical Assessor Young determined that further physiotherapy sessions for the cervical spine were not reasonable and necessary.
The neurological examination of the cervical spine was normal with no guarding or spasm and normal movement. The Medical Assessor concluded that the motor accident caused a soft tissue injury to the upper cervical spine with no ongoing effects. He opined that the claimant suffered a pre-existing condition to the low cervical spine and this was the cause for ongoing symptoms.
SUBMISSIONS
Claimant’s submissions dated 30 January 2024[58]
[58] Claimant’s bundle, p 19.
These submissions listed the body parts referred for assessment of permanent impairment
Claimant’s submissions dated 19 August 2024[59]
[59] Claimant’s bundle, p 1.
These submissions were filed opposing leave to review the medical assessment.
The claimant noted that there was a typographical error in the findings of the Medical Assessor in respect of the assessment of impairment of the right shoulder which should have been 3%. This could be corrected under the slip rule.
The claimant submitted that the assessment of the cervical spine was consistent with the findings on examination and that found by Dr Bodel. Whilst Dr Muratore did not make an assessment, his findings on examination were consistent with a finding of DRE category II.
The claimant submitted the insurer has not demonstrated that the medical assessment was incorrect in a material respect.
Insurer’s submissions dated 1 December 2023[60]
[60] Claimant’s bundle, p 24.
These submissions are contained in the insurer’s internal review decision.
The insurer referred to the ambulance report, hospital records, application for personal injury benefits, certificates of capacity provided by the GP and all relevant treatment request and referrals. Reference is also made to the pre-accident clinical records of the GP which showed neck and back pain in 2016 following a motor accident and ongoing complaints of neck pain.
The insurer noted the different examination findings by Dr Muratore and Dr Bodel and
Dr Muratore’s opinion that further treatment was required for the right upper extremity and right lower extremity.
Insurer’s submissions dated 14 February 2024[61]
[61] Insurer’s bundle, p 3.
The insurer sought leave to review the medical assessment.
The insurer asserted that the hospital records make no reference to the claimant sustaining a head injury. We note that this submission is difficult to accept given the obvious laceration to the scalp referenced in the notes.
In respect of the cervical spine injury the insurer noted the significant pre-accident history referenced in the clinical records in July 2016 and the referral for a CT scan which was reported to show pathology at C6/7. This is one of the areas commented upon by
Dr McKechnie.The insurer noted that there was no complaint of neck pain to the ambulance officer or in the hospital notes and there is a specific reference in the hospital records to “no cervical spine tenderness, no anterior injuries”.
The insurer noted that the range of motion recorded by the GP on 10 April 2022 was consistent with that recorded by the GP in July 2016. It submitted that the claimant did not sustain an acute injury to the cervical spine caused by the motor accident.
The insurer noted that the assessment by Dr Bodel was based on asymmetry of movement without clinical signs are radiculopathy. Those findings were inconsistent with that undertaken by Dr Muratore.
The insurer noted clinical findings which it submitted satisfied DRE category I. There was no complaint of thoracic spine injury to the ambulance officer, the hospital notes and Dr Bodel did not record any complaint associated with thoracic spine.
With respect to the lumbar spine the insurer noted the documented pre-accident history of chronic complaints in the lumbar spine and the absence of contemporaneous complaint to the ambulance officer and in the hospital notes.
The insurer referred to Dr Bodel’s assessment which was based on asymmetry of movement and guarding but no clinical signs of radiculopathy. The insurer referred to Dr Muratore’s clinical findings which would satisfy DRE category I.
With respect to the right shoulder the insurer referred to the inconsistency and the range of motion observed by Dr Bodel and Dr Muratore and noted the opinion of the latter doctor that the claimant had not attained maximum medical improvement.
The insurer accepted that the motor accident caused the fractured right thumb and referred to Dr Muratore’s opinion that the claimant had not attained maximum medical improvement.
In respect of the documented rib injuries, the insurer submitted that uncomplicated rib fractures do not result in assessable impairment.
In respect of the alleged hip injury the insurer noted that Dr Bodel did not refer to a right hip injury and symptoms in the right hip and noted the claimant demonstrated full range of movement.
In respect of the right knee, the insurer referred to the differences in the assessable range of motion undertaken by Dr Bodel and Dr Muratore.
The insurer’s submissions in respect of the right ankle were unclear noting Dr Muratore’s opinion.
Insurer’s submissions dated 5 August 2024[62]
[62] Insurer’s bundle, p 497.
These submissions were filed seeking leave to review the medical assessment. It asserted that it only sought leave to review the “assessment of whole person impairment”.
The insurer submitted that the Medical Assessor did not record his range of motion findings for the cervical spine and did not comment as to how he concluded that the cervical spine injury gave rise to impairment classified as DRE category II.
The insurer submitted that the Medical Assessor erred as he incorrectly noted the shoulder gave rise to 2% whole person impairment when it should have been 3%.
RE-EXAMINATION
Mr Akkaoui was examined by Medical Assessor Oates on 14 February 2025. The examination report is as follows:
“Details of who attended the Assessment
Mr Akkaoui attended for PIC re-examination by Medical Assessor Oates on behalf of the Panel at the PIC Medical Suites on 14/2/2025, accompanied by his wife. His wife waited in the waiting room whilst Mr Akkaoui was assessed.
HISTORY
Pre-accident medical history and relevant personal details
He is right-handed. He is married with three children. His wife does not work.
He was born in Australia and educated to Year 10. He did a TAFE carpentry course but thereafter worked as a mail sorter for Australia Post and then truck driver and butcher, and thereafter as a rigger.
He has not had any operations or serious illnesses before the subject accident. He was taking Nexium, one in the morning, as a regular medication for GORD (gastroesophageal reflux disease).
He enjoyed attending the gym up to five times a week and also did fishing, camping and shooting.
In 2013, he remembered having right knee pain but does not recall any injury. He had a CT and MRI scan and had a ruptured anterior cruciate ligament. He recalls his knee settled down with physiotherapy and he returned to his usual activities.
He was involved in a motor vehicle accident whilst driving a truck in 2016 when he was side swiped by a car changing lanes. He developed neck and shoulder girdle and low back pain. An x-ray showed an L1 anterior wedge compression. He was off work for a few days only.
He had physiotherapy and a gym and swim program and made a full recovery and returned to all his usual activities after several months.
In March 2021 there was reference to neck and left arm pain. He and his wife thought he was having a heart attack, so he went to Bankstown Hospital. He had a full cardiac check-up and everything was normal and the pain settled down.
In 2020 and 2021, he had episodes of low back pain. He didn’t have any injury to precipitate the pain. He can’t remember if he had any treatment. During this time he was locked down from work as a rigger because of the COVID pandemic.
In October 2021, there was further GP records of low back pain, but he can’t recall any cause. He took Mobic.
He had an umbilical hernia repaired but can’t recall when.
History of the motor accident
Mr Akkaoui, the claimant, stated on 5/2/2022 at 6.30am, he was driving eastbound along Parramatta Road at about 60kph. He had a seatbelt on. He had a front seat passenger who was a workmate.
Apparently, a car speeding in the opposite direction at 160kph, trying to escape from a police vehicle in pursuit of the car, veered onto his side of the road and there was a head-on collision. He doesn’t recall the impact, but he regained awareness whilst still in the vehicle. The airbags had deployed.
He recalls that on that date he was on his sixth day back at work after being released from COVID lockdown restrictions. Apparently, the accident was quite graphic, and footage of the wreckage made the television news. He was trapped and had to be cut out of the Toyota Prado 4WD he was in. He believed he would die in the accident and was very shocked.
His door was pushed in on him, catching his right knee, and he had scalp laceration and right upper arm multiple lacerations from broken glass.
History of symptoms and treatment following the motor accident
He was taken to Royal Prince Alfred Hospital where he was admitted for three days. He had a Bennett’s fracture of the base of the right thumb and multiple fractures of right ribs. The thumb fracture was treated by splinting, the lacerations on the arm and scalp were sutured, and he was referred back to his GP for follow-up.
He was then in a wheelchair resting at home, where he spent about six months off work. He had physiotherapy thereafter.
He saw the GP on 10/2/2022, Dr Malek at Bankstown, and he noted cervical, thoracic and lumbar, and bilateral shoulder, knee and ankle pain. There was also rib fractures and right thumb fracture. He was treated with Endone and Targin (opioid analgesics).
He was referred to physiotherapy, whom he saw on 21/2/2022. He had treatment to the back in the sitting position, as it was too painful because of rib pain for him to lie down at first, but eventually he was able to have more extensive treatment to the lower back, neck and right shoulder and right knee.
He had an MRI scan of the neck, back and right shoulder and right knee.
He was referred to Dr Nazha, pain management, who saw him in July 2022. He also was referred to Dr Kinsel, orthopaedic surgeon, Bankstown, whom he saw on 18/7/2022 regarding anterior shoulder pain with no instability, and he was diagnosed with a strain of the right acromioclavicular joint.
The right hand was assessed in October 2022 and an update imaging noted a healed fracture of the 1st metacarpal. He had a CT scan of the chest in October 2022 showing the right rib fractures had healed.
He saw Dr Kirsh, orthopaedic surgeon, on 1/11/2022 and he performed a right partial medial meniscectomy and removal of medial plica from the right knee.
On 27/3/2023, he saw Dr Baba who performed a right thumb extensor osteotomy and removal of volar ganglion. The right thumb felt numb thereafter. He had hand therapy but was left with tenderness and reduced range of movement of the thumb, and reduced grip strength because of pain in the thumb.
He had a lot of treatment but had ongoing problems and on 10/2/2025, Dr Baba removed the metal hardware from the base of the thumb and the next review with Dr Baba is on 24/2/2025 for removal of sutures and follow-up.
He saw Dr Kirsh for follow-up with the right shoulder and had an update MRI scan recently and also regarding the right knee for which he is doing exercise physiology.
He had a second right knee operation in early 2024 by Dr Kirsh. He noticed right ankle pain and pain under the right heel when he started mobilising after the motor vehicle accident. He had an ultrasound eventually of the right heel on 18/4/2023 showing plantar fasciitis. He was advised to have a cortisone injection in the heel but did not accept this because of lack of efficacy when he had had previous cortisone injections to the base of the thumb to try and relieve pain following fixation of the fracture. He had physiotherapy and strapping.
He was also referred to Dr McKechnie, neurosurgeon, whom he saw on 14/8/2023 complaining of neck pain radiating to the lateral and posterior right should and with intermittent numbness radiating down the right arm to the little, ring and middle fingers of the right hand.
He also complained of back pain radiating to the right buttock and mid right hamstring level, consisting of sharp pain but no numbness or paraesthesia.
On 7/9/2023, Dr McKechnie recommended partial right L4 and L5 laminectomy, but the insurance company would not cover this, and he could not afford to proceed with surgery.
On 20/11/2023, he had an MRI scan cervical spine reviewed by Dr McKechnie who then saw a large right C6/7 protrusion and smaller C5/6 protrusion. Dr McKechnie opined that the claimant will eventually need C5/6 and C6/7 discectomy and fusion.
The insurer would not accept liability for this surgery either. He is now unable to proceed with surgery because of finances. He said he is not on a waiting list for the public hospital for surgery and is scared of having a neck operation, as his cousin recently had ACDF (anterior cervical discectomy and fusion) but lost his voice after the surgery and the voice has not returned despite two further operations.
Details of any relevant injuries or conditions sustained since the motor accident
Nil.
Current symptoms
He says the main problems are his neck and back, and then the right thumb.
The neck locks up and wakes him up from sleep in pain. He then has to wait a couple of minutes for the neck to unlock itself. Neck pain radiates to the right shoulder, but there is not so much numbness down the right arm or hand nowadays.
He has difficulty with household chores now and can’t do gardening, although this was one of his great loves, and can’t go to the gym, and his driving is restricted. He has difficulty turning his head to the left.
The next problem is low back pain and he can’t sit too long. He freely acknowledges he had neck and back pain before the subject motor vehicle accident, but both are much worse since this accident. He says the neck and back condition is like “they are on steroids” now.
His right thumb is still recovering from recent surgery, so he can’t tell how that will turn out.
The right side of his chest is sore on coughing, sneezing and if he attempts heavy lifting with the right arm. He can’t pick up his seven-year-old daughter to comfort her when she is crying. Her weight is 20kg.
He still feels some tightness down the right hamstring. The right knee still gives him pain, but he just lives with this. He is more aware of problems going downstairs or down inclines than up. His right ankle is fair now. The right heel gets sore now and then.
The left knee medial and posterior aspects have been painful for the last few months but no swelling. There is no locking or giving way. He saw Dr Kirsh who advised exercise physiology, and he started this five weeks ago.
Current treatment
Lyrica 150mg twice daily. He has an anti-depressant and also a hypnotic whose names he cannot recall.
He sees a psychologist fortnightly. He did see a psychiatrist earlier, who told him to continue with medication as prescribed by the GP.
CLINICAL EXAMINATION
General presentation
He was of average muscular build with height 177cm and weigh 93.9kg.
He appeared to have discomfort in the lower back and got up from the seated position three or four times during the 45-minute interview.
His right hand was wrapped in a surgical bandage from recent surgery, which was not disturbed at this examination.
Cervical spine (cervicothoracic)
There was no guarding or muscle spasm. There was tenderness in the mid-cervical spine centrally at C4 to C6.
Flexion was three-quarters normal with complaint of central neck pain. Extension was full. Rotation to the left three-quarters and to the right full. Lateral flexion to the left two-thirds and to the right three-quarters.
There were no non-verifiable radicular complaints. Reflexes, power and sensation in the upper limbs were normal, apart from at the tip of the right thumb, which has been present since right thumb surgery.
There was no examination of the right wrist and thumb, as this part is in a bandage. There was some reported numbness over the tip of the right thumb, which was exposed out of the bandage, to light touch and pressure.
Upper arm girth; right 34.5cm, left 34cm at 10cm above the elbow crease.
Forearm girth; right equals left equals 30cm at 5cm below the elbow crease.
Thoracic spine (thoracolumbar)
There was no guarding or spasm. There was full range of movement in rotation, as well as lateral flexion and flexion extension. There were no abnormal neurological findings over the thoracic spine.
Lumbar spine (lumbosacral)
There was no guarding or spasm. There was no focal tenderness.
Flexion and extension were both full with complaint of central low back pain at the end of flexion. Lateral flexion; right equals left equals three-quarters.
He could squat two-thirds limited by right knee discomfort. He could walk on the heels and toes.
Supine straight leg raising showed tight hamstring at 70° on the right with negative stretch and normal on the left.
Reflexes in the lower limbs were normal. Plantar responses were both flexor. Power and sensation in the lower limbs were normal.
Thigh girth; right 47cm, left 48cm at 10cm above the superior patellar pole.
Calf girth; right 37.5cm, left 37cm at 14cm below the inferior patellar pole (maximal circumference).
Upper extremity
Active shoulder range of movement was measured with a goniometer.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 170° 180° Extension 50° 50° Adduction 30° 40° Abduction 150° 170° Internal Rotation 60° 80° External Rotation 70° 80° There was some mild restriction in active range of movement in the right shoulder. A genuine effort was observed; hence it was not felt necessary to repeat the movements.
As mentioned above, the right thumb was not examined because this part was in a surgical bandage, having recently been operated on.
Lower extremity
Active range of movement was measured with a goniometer.
Knee Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 130° 140° Extension 0° 0°
There was no swelling and no instability in either knee. There was cracking crepitus bilaterally but no pain on patellar compression in either knee.
There was a full range of movement in the ankles with some subjective tenderness under the right heel.
Scarring
There was a well-healed right parieto-vertical scalp scar which was non-tender and barely discernible unless carefully looked for. It was not tethered and there were no trophic changes.
Scarring over the right thumb was not observed due to the presence of a surgical bandage.
There were well-healed arthroscopic portal scars about the right knee.
There were a number of linear irregular oblique vertically running lacerations over the upper right arm, which had been sutured and showed some trophic changes. There was no adherence.
Consistency of presentation
The claimant presented consistently during the physical examination.
He recalled to the best of his ability the historical GP records when these were discussed with him.
I did not gain the impression that he was withholding information.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[63]
[63] Section 7.26(6) of the Act.
The authorities concerning the extent of the review were summarised in Allianz Australia Ltd v Ellul.[64] We adopt those reasons which have been adopted elsewhere.[65] The insurer does not limit the scope of the review in the absence of the claimant’s agreement.
[64] [2023] NSWPICMP 338 at [88] – [113].
[65] See Ruzicska v QBE Insurance (Australia) Ltd [2024] NSWPICMP 400 at [95].
The claimant otherwise failed to provide submissions on this issue.
Considering the accepted principles of the wide nature of the review, the insurer does not limit the scope by accepting findings made by the original Medical Assessor in its favour.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[66] and Insurance Australia Ltd v Marsh.[67]
[66] [2021] NSWCA 287 at [40], [41] and [45].
[67] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination report provided by the Medical Assessor supplemented by the following further reasons.
Treatment dispute
Mr Akkaoui is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[68] Grove J stated:[69]
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[68] [2003] NSWCA 52 (Clampett).
[69] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[70]
[70] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[71] They include:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[71] See Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The claimant is seeking a two-level fusion to the lower cervical spine. The findings of Medical Assessor Oates, like Medical Assessor Young in December 2024 and the original Medical Assessor in June 2024 did not show that the claimant was suffering from radiculopathy.
We are not satisfied that a two-level fusion is necessary given the absence of relevant neurological signs on three examinations conducted by Medical Assessors over the past 12 months.
We do not consider that the extensive proposed surgery is likely to provide the claimant with any benefit in a situation where the ancillary costs including significant post-operative treatment would exceed $50,000.
We confirm the findings made by the original Medical Assessor for the treatment dispute.
Impairment
The claimant has recently undergone surgery of his right thumb. The thumb (and resultant scarring) could not be assessed due to the presence of surgical bandages.
The Bennett’s fracture of the thumb has united but there have been ongoing complaints, recently treated by surgery, whose exact nature is not known, apart from removal of the internal fixation metalware.
The recent treatment would mean that the thumb is still recovering from surgery, and any loss of motion will change significantly over the following months.
The skin cannot be assessed because the scarring on the right thumb was not viewed by the Medical Assessor.
In these circumstances we are not satisfied, within the meaning of cls 6.19 and 6.20 of the Guidelines, that this condition is static and well stabilised. This conclusion means that the claimant’s impairment is currently not “permanent”.
The assessment of permanent impairment of all injuries must be stood over until the condition is stabilised. At that time, it will be necessary to assess all impairments together as required by s 7.21 of the MAI Act.
Accordingly, we have not determined, where there is a dispute, issues of causation. The assessment made by Medical Assessor Oates for the various body parts are not “final” as it will be necessary to assess all impairment together (s 7.21(2) of the MAI Act).
Noting the assessments of the degree of permanent impairment are not determined, we record the claimant’s present position based on the recent examination.
At the cervical spine, there is asymmetric loss of active range of motion, no guarding, no non-verifiable radicular complaints and no radiculopathy. The differentiators present indicate DRE Cervicothoracic Category II giving 5% whole person impairment.
At the lumbar spine, there is no asymmetric loss of range of motion, no guarding, no non-verifiable radicular complaint and no radiculopathy. This equates with a DRE Lumbosacral Category I giving 0% whole person impairment.
At the right knee, there has been partial meniscectomy giving 1% whole person impairment.
At the right shoulder, there is loss of active range of motion giving rise to assessable permanent impairment. Flexion 170° gives 1% upper extremity impairment, adduction 30° gives 1%, abduction 150° gives 1% and 60° internal rotation gives 2%. Adding these gives 5% upper extremity impairment, equivalent to 3% whole person impairment.
There is no assessable loss of range of movement of the right ankle and hindfoot. The examination findings are that both the rib fractures and any thoracic spine condition have resolved.
CONCLUSION AND ORDERS
We are not satisfied that the claimant’s degree of permanent impairment is static, well stabilised and unlikely to change substantially regardless of the treatment within the meaning of cl 6.19 of the Guidelines. A new certificate is attached at the commencement of these Reasons.
The medical assessment certificate for the treatment dispute is confirmed.
The claimant’s lawyers are to advise the Commission and the Panel when they assert the claimant is static, well stabilised and unlikely to substantially regardless of treatment. The Panel will then assess the permanent impairment of all alleged injuries and provide causation findings.
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