Allianz Australia Insurance Limited v El-Awadly
[2025] NSWPICMP 857
•5 November 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v El-Awadly [2025] NSWPICMP 857 |
CLAIMANT: | Hesham El-Awadly |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Mohammed Assem |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 5 November 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment of single Medical Assessor; dispute as to whole person impairment (WPI) arising from physical injuries caused by the motor accident; pain behaviours, and range of motion not a reliable method of assessment of shoulder impairment; discretion exercised in applying analogy to assess impairment; Huni v Allianz Insurance Ltd, and Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd considered; issues of causation reliance on report of biomechanical engineer; DRE category II impairments found in respect of lumbar and cervical spine, consistent with other examiners; 2% WPI of right shoulder based on analogy assessment; Held – original certificate certifying a 12% WPI confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF WHOLE PERSON IMPAIRMENT Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate of Medical Assessor Alan Home dated 4 December 2024. |
STATEMENT OF REASONS
Hesham El-Awadly, (the claimant) is a 42-year-old male who suffered injury on
30 August 2022 as a result of a motor vehicle accident.
A claim was lodged upon Allianz Australia Insurance Limited (the insurer) who is the compulsory third party insurer of the vehicle considered at fault. The insurer has a liability to pay statutory benefits and/or damages under the Motor Accident Injuries Act2017 (MAI Act).
The issue in dispute between the parties is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%.”[1]
[1] Section 4.11 of the MAI Act.
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 Alan Home. He issued a certificate dated 4 December 2024. The Medical Assessor certified that injuries caused by the motor accident give rise to a permanent impairment of 12% which is greater than 10%.
The Medical Assessor also issued a combined certificate dated 8 April 2025 which certified a 12% whole person impairment (WPI) with reference to his own certificate of
4 December 2024, a certificate of Medical Assessor Garvy (0% irritable bowel syndrome) and Medical Assessor Grainge (0% sleep apnoea).
THE REVIEW
The insurer sought a review of the medical assessment in accordance with s 7.26 of the MAI Act (review). On 26 June 2025, the President’s delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
A review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).[2]
[2] Section 7.26(5A) of the MAI Act.
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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: Rule 128 of the Rules.
The Panel issued interim directions dated 30 June 2025 requiring the parties to lodge paginated and indexed bundles of all documents relied upon. The parties lodged bundles in compliance with those directions.
Following an initial preliminary conference, the Panel issued directions dated
27 August 2025 advising that it required the claimant to attend a re-examination with Medical Assessor Assem on 21 October 2025 at the Commission’s medical suites in Darlinghurst. The examination took place as scheduled.
The Panel reconvened via teleconference on 3 November 2025 to discuss the clinical examination findings of Medical Assessor Assem, and the material relied upon by the parties. These reasons have been prepared by all three Panel members as a collective adopting the clinical examination findings of Medical Assessor Assem.
LEGISLATIVE FRAMEWORK
Permanent impairment assessment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed 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 Guides). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
Causation
Causation of injury is addressed from cl 6.5 of the Guidelines. Whilst the clauses are set out in respect of permanent impairment they are relevant to a dispute as to threshold injury.[4] Clause 6.6 to 6.7 provide:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
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.”
[4] See Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 at [35].
In determining the issue of causation, the Panel is to also have regard to s 5D of the Civil Liability Act 2002 (CL Act):[5]
[5] See s 3B(2) of the CL Act.
“5D General principles
(1) A determination that negligence caused particular harm comprises the following elements;
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
MEDICAL ASSESSMENT THE SUBJECT OF REVIEW
Medical Assessor Home examined the claimant on 29 November 2024 and in a certificate dated 4 December 2024 found a 12% WPI.
The Medical Assessor remarked the examination of the claimant was marked by pain behaviour.
Examination of the cervical spine revealed normal spinal curvature without muscle spasm loss of range of motion was noted with evident dysmetria. The Medical Assessor noted mild muscle guarding in left-sided motion.
In respect of the lumbar spine, examination is recorded as showing loss of range of motion. Neurological examination of the lower extremities revealed normal lower limb power in all muscle groups. There was no muscle wasting and normal sensibility throughout.
Left and right shoulder examination revealed inconsistency with the Medical Assessor remarking that range of motion of the right shoulder was not internally consistent with a wide variance between the range of motion demonstrated at separate attempts. The Medical Assessor found the claimant to be consistent other than the right shoulder movements.
The Medical Assessor noted a report of Dr MacIntosh relied upon by the insurer. The Medical Assessor found that the mechanism of the accident could “well cause” an injury to the cervical spine, lumbar spine and right shoulder. He noted disagreement as to the aetiology of the right shoulder condition and he found that the claimant’s right shoulder condition is primarily restricted by neck pain and related guarding behaviour. He found:
“the identified right shoulder pathology which would be expected to cause only mild restriction of motion. Whilst there is a behavioural component to the presentation of disability, there is restriction of shoulder motion secondary to neck pain that I have assessed by analogy in this case…”
In respect of WPI, the Medical Assessor found a DRE category II impairment of the cervical spine due to asymmetrical spinal motion (dysmetria) giving rise to a 5% WPI. In respect of the lumbar spine, a DRE category II was found also giving rise to a 5% WPI.
The right shoulder injury was assessed by analogy, with reference to cl 6.50 of the Guidelines, due to the inconsistent range of motion of the right shoulder. He found:
“due to symptom referral from the neck, there could reasonably be a small impairment of the right shoulders skin to the presence of mild AC joint synovial hypertrophy.
Table 20, page 59, AMA4 provides 10% joint impairment for mild joint swelling. Table 18, page 56, AMA4, provides a maximum whole person impairment of 15% for the AC joint. 10% of 15% is 1.5% or 2% whole person impairment after rounding.”
SUBMISSIONS
Insurer’s review submissions dated 6 May 2025
The insurer submits that the assessment of the lumbar spine by Medical Assessor Home did not comply with the Guidelines. With reference to the Guidelines, specifically Table 6.8 that provides that non-verifiable radicular symptoms that follow the distribution of a specific nerve root without objective findings.
The insurer submits that the Medical Assessor has not complied with the definition of non-verifiable radicular complaints and are not substantiated by his reported examination.
The insurer also submits that the Medical Assessor’s assessment of the right shoulder includes multiple errors. The insurer notes that the incorrect Guidelines are referred to at some points within the reasons.
It is submitted that cl 6.24 of the Guidelines has not been complied with because the analogy approach requires an objective clinical finding and it is submitted that in this instance there were none. It is submitted that the only findings were subjective loss of range of movement. The insurer then submits:
“secondly, he did not identify a condition that is not covered by the guidelines or the AMA 4 guide. Instead, he diagnosed a soft tissue injury and restriction of movement due to an injury to the cervical spine (via application of the Nguyen principle). This condition is covered by the Guidelines and AMA4, which mandate assessment by ranges of movement, and there is no reason to adopt an analogy method.
Instead, as per Clause 6.50(e) he should have determined if an impairment was present. The Assessor determined the restricted motion displayed could not be attributed to discomfort from the neck or scapular area. He therefore should have used assessed (sic) 0% WPI.
The Assessor also found the observed restriction could not be considered permanent. He therefore should have assessed a 0% WPI noting he found no permanent impairment.”
It is further submitted that the Medical Assessor failed to provide a clear path of reasoning in support of the finding that the claimant’s condition had stabilised and the claimant had reached maximum medical improvement.
In this regard, the insurer points out that the Medical Assessor remarked in respect of the variable shoulder movements that it could not be considered a permanent impairment.
Claimant’s review submissions in reply dated 23 May 2025
The claimant’s submissions refer to the insurer’s assertion that the Medical Assessor did not comply with the definition of non verifiable radicular complaints. The claimant submits that there is no requirement to specify with dermatomal distribution is in issue and that it is well established that a Medical Assessor is only required to provide brief reasons. It is submitted that if the Medical Assessor “…was unable to find a medical explanation for symptoms complained of in the claimant’s right leg he would have said so.”
In respect of the right shoulder, the claimant submits that the “insurer’s submission proceeds on the incorrect assumption that assessment by analogy can only be applied in the context of Clause 6.24 of the Guidelines. There is no basis for this submission”.
The claimant refers to cl 6.50 of the Guidelines which provides that if range of motion cannot be used as a valid parameter of impairment evaluation then the Medical Assessor should then use discretion “…in considering what weight to give other available evidence to determine if an impairment is present.”
The submissions refer to cl 6.40 of the Guidelines and assert that the Medical Assessor complied with same which confers a wide discretion to him as a clinician.
In respect of the Medical Assessor stating that the restriction of movements could not be considered permanent the claimant submits:
“read fairly, Assessor Home’s remarks were in the context of discounting the observed higher levels of restrictions which he was unable to explain from a medical basis. The claimant indicated that pain was the reason for the variability, but given its subjective nature, pain alone does not give rise to whole person impairment.”
In respect of the insurer’s failure to provide a path of reasoning ground, the claimant submits there is no reason for the Medical Assessor to delay the assessment on account of pain behaviours.
Claimant’s submissions in support of original application dated 18 June 2024
The following physical injuries were listed for assessment:
(a) injury to right shoulder – right shoulder rotator cuff tear;
(b) injury to left shoulder – left shoulder impingement syndrome;
(c) injury to cervical spine – C5/6 disc prolapse and radiculopathic symptoms to the left upper limb;
(d) injury to lower back – L4/5 disc prolapse and annular tear with radiculopathic symptoms to the right lower limb;
(e) sleep disorder, and
(f) gastrointestinal pain and discomfort.
The claimant relies on the opinion of Dr Herald. He assessed a 17% WPI.
The submissions refer to the insurer’s reliance on the opinion of Dr McIntosh, biomechanical engineer. The claimant relies on Dr Herald’s observations in this regard, and notes that
Dr McIntosh does not appear to have been privy to relevant medical material. The claimant submits:“…that little weight can be afforded to Dr McIntosh’s report, and it certainly cannot supplant the opinion of several qualified medical practitioners on the question of causation of injury. The claimant contends that the insurer’s sole reliance upon Dr McIntosh, and what is effectively a statistical analysis of the chance of injury, to deny causation and dispute that the claimant’s injuries give rise to a WPI of greater than 10, is misconceived.”
Insurer’s submissions dated 31 July 2024
The insurer notes the claimant complaining of prior right shoulder issues in the past with an entry of his general practitioner (GP) Dr Hwai on 12 November 2013 noting right neck pain for one month, having woken up with it. There was no injury or fall. There was complaint of it radiating to the right shoulder with constant pain, worse when still.
The insurer notes that an ultrasound of the right shoulder of 8 September 2022 did not reveal a rotator cuff tear. There was a note of mild supraspinatus tendinosis and mild subacromial bursitis.
The insurer relies on the opinion of Dr McIntosh that the claimant could not have sustained a right rotator cuff injury as a result of the accident.
In respect of the left shoulder, the insurer notes that the ultrasound revealed the same pathology as the right suggesting a degenerative aetiology.
The GP entry of 12 November 2013 is again mentioned in reference to the alleged cervical spine injury. Also relied upon is the opinion of Dr McIntosh who found that the accident could not have given rise to a structural injury to the spine as a result of the accident.
In respect of the lumbar spine, the insurer notes the claimant making complaint of back pain to his GP on 5 July 2018. The insurer relies upon the opinion of Dr McIntosh in respect of causation.
DOCUMENTATION
The Panel has considered all material provided by the parties in their respective bundles of documents lodged in compliance with Panel’s directions. This includes a bundle lodged by the insurer on 31 July 2025 comprising of 126 pages – “PIC – El-Awadly – Insurer’s Review Bundle (103366541)” and a bundle lodged by the claimant on 18 August 2025 comprising of 562 pages – “Claimant’s index of Documents for Review Panel – as Review Application on the Certificate of Assessor Alan Home – dated 18 August 2025 – Paginated.” The Panel has also considered the documents included in an application to lodge additional documents lodged by the claimant on 1 October 2025 comprising of 33 pages – “Combined PDF – Letter to PIC encl. clinical records of Dr Kuljic & Dr McKechnie”.
Whilst not every document has been referenced within these reasons, some documents have been referred to where directly relevant to findings, and the certificate and reasons have been issued in the context of all documentation having been considered by the Panel.
Application for personal injury benefits dated 13 September 2022
In this claim form the claimant details injuries to the shoulders, back “from top to bottom”, neck, head hitting steering wheel, headaches and upper leg pain.
General practitioner records
The records indicate that the claimant has been a patient of Greenoaks Medical Centre, since at least March 2010.
As noted by the insurer, the claimant attended upon the practice on 12 November 2013 complaining of neck pain. No injury or fall is noted. The claimant is recorded as working as a security guard. The pain was radiating to his right shoulder with constant pain, worse when sitting still. There had been no prior episodes. A limited range of motion is noted, especially to the left, with pain noted on palpation of the trapezius muscle on the right side. The claimant was prescribed Diazepam.
There are no further attendances at the practice until August 2016 when the claimant complained of poor energy, with aches and pains and difficulty sleeping.
The claimant attended on 5 July 2018 complaining of back pain.
There are no other complaints of neck, shoulder or back pain until the claimant attends the practice on 1 September 2022 giving a history of the motor accident. The notes record complaints of lower back, mid back, both shoulders, neck and legs cramps/pain. Complaints in the shoulders is noted to be especially to the right.
In addition, the claimant is noted to have impacted his head in the accident and he was feeling dizzy/lightheaded with headaches. The claimant was given imaging referrals for the shoulders, thoracolumbar spine and the brain.
It is noted the consultations around the time of the accident occurred during the COVID-19 pandemic and notes are made in this regard. The claimant attended on 24 September 2022 and notes of chronic pain are made.
On 7 October 2022 the claimant attended the practice with a record of it being five weeks post accident and the neck pain was still severe with right upper limb neuropathic features. He complained of pain, weakness and numbness intermittently. The claimant was referred to Dr McKechnie and given referrals for MRI scans of the cervical spine and right shoulder.
Dr McKechnie
The report of Dr McKechnie notes the claimant was first reviewed on 19 December 2022. A record of neck pain radiating across the right shoulder, intermittently through the arm towards the hand, intermittent left sided neck pain and lower back pain with radiation intermittently into the right leg is noted.
The doctor noted the MRI results and recommended the claimant continue with physiotherapy and commenced the claimant on a trial of Lyrica for neuropathic pain.
Medico-legal reports
The claimant relies on the opinion of Dr Herald. He assessed a DRE category II impairment in both the lumbar spine and cervical spine, equating to a 5% WPI each. In respect of the shoulders, utilising the range of motion method he found a 7% WPI – 12% upper extremity impairment for the right shoulder and 0% to the left.
The insurer relies on the opinion of Dr Gothelf as set out in his report of 26 August 2024. On examination the doctor noted the claimant complained of neck pain being constant which radiates down to the right shoulder and to the hand and gets pins and needles. The lumbar spine was noted to be painful radiating to the right leg and foot and toes with pins and needles. Right shoulder pain was noted to go with the neck pain and does not occur separately. The claimant is said to have indicated that he did not have left shoulder pain at the examination.
The doctor found no inconsistencies at the examination.
He diagnosed a soft tissue injury in respect of the cervical and lumbar spine. At the cervical spine the doctor noted the examination revealed positive asymmetrical loss of motion with no radiculopathy as defined by the Guidelines, and positive non-verifiable radicular complaints.
Dr Gothelf recorded the lumbar spine examination to reveal no guarding, no asymmetrical loss of motion, and non-verifiable radicular complaints.
The doctor did not consider the right rotator cuff tendinosis and partial rotator cuff tear to be caused by the accident. In so doing, the doctor noted the were complaints of right shoulder pain with the symptoms being along the right shoulder which seemed to be caused by the cervical spine pain with radicular symptoms down the arm.
The doctor also found the left shoulder rotator cuff tendinosis to not be related to the accident.
He found a DRE category II impairment in respect of both the cervical spine and lumbar spine, giving a 5% WPI for each. A total of 10% WPI was assessed.
RE-EXAMINATION
Mr Hesham El-Awadly was examined by Medical Assessor Assem at the Commission’s medical suites on 21 October 2025, with his wife present throughout the consultation for support and assistance.
History
Pre-accident medical history and relevant personal details
Mr El-Awadly is a 42-year-old, right-hand-dominant man, born in Egypt and migrated to Australia in 1986 at approximately three years of age. He lives with his wife and three children in a property at Yagoona. From 2017 he was employed by ACES Group as a security officer and concierge at Customs House, a position he states he held continuously and full-time through to 2023.
Past medical history
On 12 November 2013, when he presented with right-sided neck pain of one month’s duration radiating to the right shoulder, with limited abduction, trapezius tenderness, and reduced cervical range of motion. He recalls that, at that time, he often slept with the air-conditioner on and would wake with stiff muscles.
On 5 July 2018 he re-attended for back pain, was prescribed Panadeine Forte, and by
13 December 2018 was documented as “progressing well.” He states there was minor aches that did not interfere with his work. He did not undergo any radiological imaging or receive physiotherapy treatment.
There were no other relevant medical or surgical conditions reported.
History of the accident
On 30 August 2022 at approximately 5.00pm, Mr El-Awadly was driving his grey 2017 Toyota Camry north-west along the Hume Highway, Yagoona (NSW), approaching the bus stop near Yagoona Station. The weather was fine and the road dry. He was the sole occupant and wearing a seatbelt. Ahead of him, a white Yutong bus operated by a private charter company was stopped in the bus zone. As he pulled in and stopped behind the bus to allow traffic to merge, the bus suddenly reversed.
He describes the bus driver as having briefly left the bus to buy water, returning to the vehicle and accelerating in reverse—mistakenly believing the transmission was in “Drive.” He estimates the sequence unfolded within about five seconds. He states his stationary Camry was struck from the front, pushed backwards approximately 5m, up over the kerb and onto the footpath/garden bed, where the rear of his vehicle contacted a roadside tree. He therefore reports two impacts: the initial frontal impact from the reversing bus and a secondary rear impact against the kerb/tree. He is clear that this was not a “roll-back”; he maintains the bus accelerated in reverse.
Bystanders pushed his car back onto the road. Police and ambulance did not attend. The vehicle was drivable; he drove to work at Customs House and completed the shift. He did not perceive pain immediately at the scene; however, during the shift he developed back and neck pain and noted difficulty sitting for prolonged periods. He also believes the seatbelt load across the right chest/shoulder may have initiated right shoulder pain, which he noticed later that evening.
History of symptoms and treatment following the accident
On 1 September 2022, the day after the collision, he attended his GP, Dr Ahmed Youssef (Green Oaks Medical Centre). He reported neck, mid- and lower-back pain; bilateral shoulder pain (right worse than left); leg cramps; headache with dizziness and nausea after a head strike. Dr Youssef arranged immediate investigations (CT brain, MRI thoraco-lumbar spine, and bilateral shoulder ultrasound) and certified him unfit to work.
On 8 September 2022, ultrasound of both shoulders demonstrated mild supraspinatus tendinosis and subacromial bursitis bilaterally, without a tear. On 4 October 2022, MRI thoracic and lumbar spine showed a right paracentral L4/5 disc bulge with annular tear, causing foraminal narrowing and minimal contact of the right L4 nerve root; the thoracic study was otherwise unremarkable. On 20 October 2022, MRI cervical spine showed a broad-based left paracentral C5/6 disc-osteophyte complex with left C6 root compression; MRI right shoulder recorded a partial-thickness infraspinatus tear (~5.3 mm) with diffuse supraspinatus/subscapularis tendinosis and mild subdeltoid bursitis.
On 4 November 2022 the GP documented “right L4 nerve-root impingement”, prescribed temazepam, melatonin, tramadol and ibuprofen, and referred him to orthopaedic surgeon
Dr John Trantalis. He received physiotherapy treatment for approximately six months without any significant benefit.
He was seen by Dr McKechnie on 19 December 2022. He recalls being told that a steroid injection might help for several months, whereas surgery was an alternative; he did not proceed, citing cost and a desire to continue conservative care.
Current symptoms
He describes constant neck pain, typically 8/10 in intensity even after taking Tramadol on the morning of review. Neck pain is exacerbated by movement and sustained postures, with short-lived relief in a supine position. He notes morning stiffness and the need for a prolonged hot shower (20 minutes, seated) to reduce stiffness before taking medication. There are intermittent ‘pins and needles’ involving his right first and second digits.
He also reports constant low-back pain, also rated about 8/10 after medication. Pain increases with sitting or walking for more than 10-15 minutes. He describes episodic muscle cramps/spasms in the back and legs. The pain radiates down his right leg to involve the right first and second toes.
His right shoulder is only painful on movement. He continues to guard the right upper limb during activities of daily living. He reports overuse of the left shoulder for compensatory tasks has produced intermittent discomfort on that side.
He reports poor sleep and states he “sleeps on the couch” most nights because the backrest allows a more comfortable, supported position and reduces nocturnal pain. He estimates that he can stand/ walk for approximately 10–15 minutes. He relies on his wife for assistance with some aspects of his personal care and all of his domestic activities of daily living.
Current treatment
He currently takes CBD oil, Tramadol and Lyrica.
Findings on examination
Mr El-Awadly ambulated with a slow, stooped and cautious gait. He appeared uncomfortable while sitting. There was prominent pain behaviour throughout—breath-holding, grimacing and occasional vocalisation—necessitating frequent pauses. Height was recorded as 172cm and weight 81kg. He was advised at the outset not to perform any manoeuvre beyond tolerance and to avoid actions that might exacerbate symptoms. The examination was prolonged as he requiring regular rest breaks.
Cervical spine
There was tenderness to palpation over the cervical spinous processes. No paracervical muscle guarding or spasm was detected. Flexion, extension, lateral flexion and rotation were each reduced to approximately one-quarter of normal. There was no asymmetry of movement or spinal dysmetria observed.
Deep tendon reflexes were brisk and symmetrical bilaterally. Power was globally reduced in both upper limbs, more pronounced on the right. Light-touch sensation was reduced over the right first and second digits. Mid-arm girth showed the right upper arm approximately 1cm greater than the left (inconsistent with marked restriction in right shoulder motion), with no difference at the forearms. Neural tension signs were negative.
Lumbar spine
There was reported tenderness to palpation over the lumbar region. No paraspinal guarding or spasm was detected. Lumbar movements were restricted to about one-half of normal in flexion. Extension was absent. Lateral flexion was symmetrically reduced to about one-quarter of normal bilaterally. Axial rotation was reduced to about one-half of normal. He had difficulty getting on and off the examination couch, requiring physical assistance from his wife. Active straight-leg raise in supine was 40° bilaterally. Neural tension signs (SLR/Slump) were negative. Knee and ankle reflexes were brisk and symmetrical. Power and tone were normal throughout both lower limbs. Sensation was reduced over the right great toe. Calf girth showed the right calf larger than the left by approximately 3cm (he reported that it was due to a congenital deformity involving his left leg).
Upper extremities
He had marked difficulty removing his shirt before and after the assessment and required assistance from his wife, including unbuttoning. He grimaced and vocalised with several movements and required a rest break before formal right-shoulder range testing. He repeatedly stated that pain “coming from the neck” prevented right shoulder movement.
Right and left shoulder active range of motion (goniometer), repeated measures. Testing was performed multiple times due to inconsistent effort and pain-limited stops. Values below are active ROM in degrees.
Movement
Right #1
Right #2
Right #3
Left #1
Left #2
Left #3
Flexion
30°
30°
30°
90°
60°
70°
Extension
30°
30°
30°
30°
30°
30°
Abduction
40°
30°
40°
80°
70°
80°
Adduction
0°
0°
0°
10°
20°
20°
Internal rotation
40°
40°
40°
60°
60°
60°
External rotation
10°
0°
0°
30°
30°
30°
After recording the above values, I explained that other medical examiners had documented substantially greater shoulder ranges on prior assessments. In response, he stated he has not been moving his right shoulder at all since the accident and that his left shoulder has deteriorated from compensatory overuse.
Consistency of presentation
Mr El-Awadly entered the room with a slow, stooped, and guarded gait, appearing uncomfortable even while seated. There was pronounced pain behaviour throughout—frequent grimacing, breath-holding, and audible expressions of discomfort. His limitations were disproportionate to the underlying pathology and inconsistent with the range observed by other medical examiners. The inconsistencies have been brought to his attention and his response noted.
DISCUSSION AND FINDINGS
The above clinical examination findings of Medical Assessor Assem were discussed by the Panel at the teleconference of 3 November 2025. It was agreed by all Panel members that the findings would be adopted as part of these reasons, forming the basis for the Panel reasons and certificate, in conjunction with consideration of the documentation provided by the parties.
The claimant was involved in a motor accident on 30 August 2022. He was seat-belt restrained in a stationary 2017 Toyota Camry when a reversing Yutong bus struck the front of his vehicle and pushed it rearwards up the kerb and into a tree, i.e., two impacts in rapid sequence. Although he was able to drive to work, his vehicle was subsequently repaired at a cost of $12,152.
Within two days (1 September 2022) his GP documented the same two-impact mechanism and new multi-region symptoms—neck, mid-/low-back and bilateral shoulders—with head-impact symptoms and lower-limb neuropathic features. Imaging soon afterwards showed a right L4/5 annular tear with foraminal narrowing and minimal contact of the exiting right L4 root. On 20 October 2022 MRI cervical spine showed a broad-based left paracentral C5/6 disc–osteophyte complex compressing the left C6 root and an MRI of the right shoulder showed a small (≈5.3 mm) partial-thickness articular-sided infraspinatus tear with tendinopathy and mild bursitis.
The Panel has considered the report of Dr McIntosh, biomechanical engineer dated
30 December 2022. He concluded that the motor accident could not have given rise to the alleged injuries, as set out in his report of 30 December 2022. He concludes that the mechanics of the collision could have reasonably led to general soreness and a soft tissue injury of the cervical spine with symptoms of a closed period.
The Panel notes that it would appear that Dr McIntosh was not privy to all relevant medical documentation. Further, the Panel agrees with the opinion of Dr Herald that,
“positioning of arms and the back can cause varying degrees of injuries depending on whether he was prepared for the impact and provided muscular support to stop that from happening or whether he was unprepared and whether he was in a position to be susceptible.”
The Panel gives greater weight to contemporaneous medical records and imaging within the first six weeks after the accident, over the biomechanical report of Dr McIntosh which was seemingly provided without full access to all of the clinical materials. It is further noted that both Dr Herald and Dr Gothelf are in agreement that the accident has given rise to a cervical spine and lumbar spine injury, with it at least accepted that the cervical spine injury has given rise to right sided shoulder symptoms.
Having regard to the mechanism of the accident, and in the clinical judgement of the two Medical Assessors, the Panel accepts that the motor accident could have given rise to an injury to the cervical spine and lumbar spine, including the pathology noted on MRI scan.
The contemporaneous complaint of pain to the neck, back and shoulders, in the absence of any evidence of ongoing significant pre-existing complaint is such that the Panel is persuaded that the motor accident, on the balance of probabilities, did in fact cause the injuries to the cervical spine and lumbar spine.
In respect of the right shoulder, the Panel is not persuaded that the claimant has suffered pathology to the shoulders caused by the motor accident. In this regard, the pathology seen bilaterally would suggest a degenerative condition rather than a cause of traumatic origin.
The Panel is satisfied, however, that on the balance of probabilities the claimant is suffering a restriction of movement related to the cervical spine pursuant to the Nguyen[6] principle. This is consistent with the clinical findings of Medical Assessor Assem and follow the complaints to, and findings of Dr Gothelf. Dr Gothelf, whilst making a finding that the accident did not cause shoulder pathology, does seem to accept symptoms in the right shoulder arising from the cervical spine injury.
[6] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
In respect of the left shoulder, it is noted the claimant suggested to Medical Assessor Assem that he did not injure the shoulder in the accident and instead his symptoms are related to an overuse syndrome. The Panel notes, however, that the claimant made complaints of bilateral shoulder pain in the days after the motor accident, albeit more pronounced on the right. The Panel accepts that the claimant is likely to have suffered referred pain from his cervical spine to the left shoulder in the months after the motor accident, however, such symptoms caused by the motor accident are more than likely to have resolved. Consistent with this finding, is the record of Dr Gothelf that the claimant did not have any left shoulder symptoms at the time of his examination.
The Panel has had regard to the fact that the claimant presents with pain behaviours and inconsistencies at the assessment conducted by Medical Assessor Assem and at the assessment with Medical Assessor Home. The Panel observes that pain behaviours complicate the assessment of impairment and makes the task more challenging, however, that does not mean that the occurrence of a genuine injury is to be dismissed.
Assessment of whole person impairment
Cervical spine
The claimant has a symmetrical restriction of cervical motion with non-verifiable radicular complaint involving his right hand. This is a DRE Cervicothoracic Category II or 5% WPI (AMA4, 3/104). This is consistent with the findings of Medical Assessor Home, Dr Herald and Dr Gothelf.
Lumbar spine
He demonstrated asymmetry of lumbar movements with non-verifiable radicular complaints giving a DRE Lumbosacral Category II or 5% WPI (AMA4, Table 72, p 110). This is consistent with the findings of Medical Assessor Home, Dr Herald and Dr Gothelf.
Right shoulder
As discussed above, the Panel accepts, on the balance of probabilities, that the claimant suffers from a secondary restriction of shoulder motion arising from the cervical spine injury (Nguyen principle). Impairment is therefore assessed under cl 6.50 of the Guidelines. Given that repeated measurements were inconsistent with the ranges observed by other examiners, range of motion was not a valid and reliable method of assessing his level of impairment (cl 6.50(d) of the Guidelines). Accordingly, exercising the discretion in cl 6.50(e), the impairment is assessed by analogy. The Panel further observes that, consistent with the findings of Garling J in Huni v Allianz Australia Insurance Ltd [2014] NSWSC 1584, a Medical Assessor is obliged to make an assessment of impairment with reasons.
Having regard to the consistent contemporaneous complaints and the conclusion that the motor accident has given rise to right shoulder symptoms, the Panel accepts the claimant suffers a genuine restriction of movement owing to the referred cervical spine symptoms, albeit being a case that the restriction of movement method of assessment cannot be utilised in the circumstances. An analogous condition would be mild crepitations of the right AC joint giving 10% joint impairment (AMA4, Table 19, p 59) which is multiplied by 15% WPI (AMA4, Table 18, p 58) to obtain 1.5% WPI rounded to 2% WPI.
Left shoulder
The claimant indicated that the left shoulder was not injured in the accident. He indicated that he has developed pain secondary to compensatory overuse. As noted above, the Panel accepts that the claimant more than likely suffered referred left sided shoulder symptoms after the motor accident which would have resolved in the months after the accident. This is in the context of normal movements and nil complaints recorded by other medical examiners. Accordingly, a secondary impairment due to pain arising from the cervical spine was also not applicable.
CONCLUSION
On the basis of the above findings, the certificate of Medical Assessor Home dated
4 December 2024 is confirmed.
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