Allianz Australia Insurance Limited v Garcia

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Garcia [2024] NSWPICMP 526
CLAIMANT:	Antoun Garcia
INSURER:	Allianz
REVIEW PANEL
MEMBER:	Cameron Thompson
MEDICAL ASSESSOR:	Ian Cameron
MEDICAL ASSESSOR:	Christopher Oates
DATE OF DECISION:	31 July 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant was injured in a motor accident on 21 September 2017 when he was driving a vehicle through an intersection and a vehicle which was turning right across the path of the claimant’s vehicle collided with the front driver’s side of it; dispute as to whether the degree of permanent impairment of the claimant as a result of the injury caused by the motor accident is greater than 10%; Medical Assessor (MA) found that the injury to the lumbar spine, abdomen – shrapnel injury, and abdominal wall injury – incisional hernia were caused by the motor accident and assessed that these injuries give rise to a combined whole person impairment (WPI) of 18% and that the injuries to the cervical spine, left arm and left wrist caused by the motor accident have resolved with no assessable impairment; claimant re-examined; Held – the motor accident caused a soft tissue injury to the lumbar spine, a shrapnel injury to the abdomen, a soft tissue injury to the cervical spine and friction burns to the left forearm/wrist; the motor accident did not cause an abdominal wall injury and an injury to the right forearm and wrist; the soft tissue injury to the cervical spine and friction burns to the left forearm/wrist have resolved; Medical Review Panel assessed WPI at 5% for the lumbar spine and 0% for the abdomen-shrapnel injury; degree of permanent impairment as a result of the injuries caused by the motor accident is not greater than 10%; certificate of MA revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel assessment of permanent impairment Replacement certificate issued under Part 3.4 of the Motor Accidents Compensation Act 1999 1. The Review Panel revokes the certificate of Medical Assessor Neil Berry dated 2 May 2022. 2. The Review Panel certifies that the degree of permanent impairment of the claimant as a result of the following injuries caused by the motor accident on 21 September 2017 is not greater than 10%: (a) lumbar spine – soft tissue injury; (b) abdomen – shrapnel injury; (c) cervical spine – soft tissue injury (resolved), and (d) left forearm / wrist – friction burns (resolved).

STATEMENT OF REASONS

BACKGROUND

The claimant, Antoun Garcia, suffered injuries in a motor accident on 21 September 2017. He was driving a Toyota Aurion Sedan through an intersection at Rhodes in Sydney with a vehicle which was turning right across the path of the claimant and collided with the front driver’s side of the claimant’s vehicle.
The claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
Allianz (the insurer) is liable for the driver of the vehicle which struck the claimant’s vehicle for liability to pay the claimant any damages under the MAC Act.
The present dispute between the parties is whether the degree of permanent impairment of the claimant as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s.44(1)(c) of the MAC Act for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Neil Berry and is dated 2 May 2022. Medical Assessor Berry certified that:
(a) The following injuries caused by the motor accident give rise to a permanent impairment of 18% and is greater than 10%:
(i)lumbar spine;
(ii)abdomen – shrapnel injury, and
(iii)abdominal wall injury – incisional hernia.
(b) The following injuries caused by the motor accident have resolved and give rise to no assessable and permanent impairment:
(i)cervical spine;
(ii)left arm, and
(iii)left wrist.

THE REVIEW

The application for review of the medical assessment to a Review Panel (the Panel) was made by the insurer on 20 June 2022.
On 18 August 2022, the President’s Delegate referred the medical assessment to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.[3]
[3] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14(F)(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accident’s Division of the Personal Injury Commission (the 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 medical assessor.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters in which the medical assessment is concerned.[6]
[6] Section 63(3A) of the MAC Act
On 14 April 2023, the claimant was examined by Medical Assessor Oates.

THE ASSESSMENT UNDER REVIEW

The following injuries were referred to Medical Assessor Berry for assessment:
(a)    cervical spine – soft tissue injury;
(b)    left arm – soft tissue injury;
(c)    left wrist – soft tissue injury;
(d)    lumbar spine – soft tissue injury;
(e)    abdomen – shrapnel injury;
(f)    abdominal wall injury, and
(g)    scarring.
Medical Assessor Berry obtained a pre-accident medical history from the claimant and relevant personal details. He records that the claimant was 75 years of age at the time of his assessment and dominantly right-handed. He was born in Lebanon, where he completed his trade as a boiler maker/welder and on coming to Australia in 1971 became self-employed running a number of businesses and that whilst he was very fit the claimant indicated that he did not do heavy physical work. The claimant indicated to Medical Assessor Berry that he was very fit and the only problem he had was a gallbladder issue treated by a midline laparotomy in 2008 by Dr Sanki. He developed an incisional hernia and his second operation in the form of a mesh hernioplasty, but that at the time of the motor accident he had no physical problem.
With regards to the history of the motor accident, the claimant told Medical Assessor Berry that he was the driver of the Toyota Aurion vehicle where he was the sole occupant. He was going to ride to visit a friend when he went through a set of lights with a green light and a vehicle coming in the opposite direction attempted to right-hand turn in front of him resulting in a head-on collision. He said that his airbag exploded and there was smoke in the vehicle and he was terrified that the car was on fire but managed to get out. He was aware of minor prickling in his abdomen and he had abdominal pain and he also had neck and back pain and a painful left arm and left wrist. A tow truck driver attended the scene of the accident and the claimant’s vehicle was taken to a holding yard and was subsequently written-off. He was given a hire car and he managed to drive himself home slowly.
The claimant told Medical Assessor Berry that following the motor accident he was experiencing headaches as he had hit his head on the steering wheel. He had neck and back pain and his left arm and wrist were painful and he was aware of a prickling sensation in his abdomen as well as pain. He said that he attended his general practitioner, Dr Eric Lim, the following day, who organised for him to have imaging and was then referred to physiotherapy and prescribed medication and rest. He was subsequently referred to Dr Bhisham Singh, orthopaedic surgeon, who advised him to continue with the conservative treatment.
Medical Assessor Berry records that it was found on imaging that the claimant had multiple foreign bodies and he was subsequently referred to Dr Kumar, plastic surgeon, who removed one fragment and this was shown not to be a clip from his gallbladder operation. Medical Assessor Berry notes that in Dr Sethi’s report that one foreign body was removed and that the claimant had to have some fragments removed at a later stage.
The claimant advised that there had been no relevant injuries or conditions sustained by him since the motor accident.
When asked in relation to his current symptoms, the claimant complained that he continues to get headaches and has a painful feeling in the forehead. He has occasional discomfort in the neck which is provoked by twisting movements of his neck but it is not stiff. He said that his back is his worst area and he is unable to sit or stand for any length of time and he has difficulty walking and he unable to bend, lift or twist. He said that his left arm has gradually improved and that at one stage he had pain in the wrist and in the forearm but that this has settled. He said that he is aware that he has a bulging swelling in his abdomen and experiences occasional prickling where the foreign bodies are on the left and right.
Medical Assessor Berry records that currently the claimant takes Nurofen, Panadol and Aspirin and his not having any other treatment, and further that surgery has been advised for his abdomen, but this has been declined.
The claimant was clinically examined by Medical Assessor Berry.
In the opinion of Medical Assessor Berry, the claimant suffered soft tissue injuries to his neck, left arm, back and as a result of the explosion of the airbag he has suffered multiple foreign bodies in his abdominal wall, and he has had a blow to his abdomen which has resulted in an incisional hernia. In terms of causation, Medical Assessor Berry determined the claimant had a head-on collision which caused him to be thrown forward and backwards, hitting his head on the steering wheel and he also had shrapnel injury to his abdomen as a result of his airbag exploding, and further that he has suffered flexion extension injuries to his neck and back and he has also suffered a direct impact injury to his left hand where he was gripping the steering wheel.
Medical Assessor Berry determined that the following injuries were caused by the motor accident:
(a)    abdomen – shrapnel injury;
(b)    abdominal wall injury;
(c)    cervical spine – soft tissue injury;
(d)    left arm – soft tissue injury;
(e)    left wrist – soft tissue injury, and
(f)    lumbar spine – soft tissue injury.
Medical Assessor Berry determined that the following injury was not caused by the motor accident:
(a) scarring.
Further, Medical Assessor Berry determined that the following injuries caused by the motor accident had resolved:
(a)    cervical spine;
(b)    left arm, and
(c)    left wrist.
Medical Assessor Berry determined that the following injuries caused by the motor accident give rise to a combined whole person impairment of 18% as follows:
(a)    lumbar spine – 5%;
(b)    abdominal (incisional hernia) – 9%, and
(c)    abdominal wall injury – 5%.
Medical Assessor Berry determined that there was no deduction for pre-existing or subsequent impairment in the assessment of these injuries.

STATUTORY PROVISIONS AND GUIDELINES

Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “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%”.
Section 60 of the MAC Act provides either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the (MAC) Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is implied in all such assessments. Medical assessors must be aware of the relevant provisions of AMA 4, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of AMA 4 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 involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act.[7] In Raina v CIC Allianz Insurance Ltd[8] 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), ss 5D 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.”
[7] See s 3B(2) of the CL Act.
[8] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.

MATERIAL BEFORE THE PANEL

The Panel issued directions requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in the review of Medical Assessor Berry’s certificate.
In response to these directions, the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 119 (IB). The claimant uploaded to the portal a bundle of documents paginated from pages 1 to 144 (CB).
The Panel subsequently issued a further direction requiring the claimant to serve on the insurer and upload to the portal the following:
(a)    clinical records and treatment of the claimant by Dr Eric Lim for the period from 27 October 2017 to date;
(b)    a clear copy of the Operation Report Discharge Summary dated 11 January 2019 in relation to the surgery performed by Dr Kumar,[9] and
(c)    imaging/film of X-rays of the claimant’s abdomen referred to in the report by Dr Liu dated 29 March 2018.[10]
[9] CB p 99.
[10] CB p 81.
In response to this further direction, the claimant uploaded to the portal at AD2 images of the abdomen X-ray dated 29 March 2018, and at AD4, clinical notes of Dr Eric Lim.
The Panel has read and considered the documents relied upon by the parties on this review as identified in paragraph 34 to 37 in making its findings and determination.

SUBMISSIONS

Insurer’s submissions on the application for review[11]

[11] IB p 1.

The insurer submits on its application for review that Medical Assessor Berry made the following material errors:
(a)    failed to adequately respond to a substantial, clearly articulated argument;
(b)    failed to evaluate evidence;
(c)    failed to provide adequate reasons;
(d)    incorrectly applied the Guidelines and AMA 4, and
(e)    used incorrect methodology evaluating impairment.
The insurer submits that the President’s Delegate would be satisfied that there is a reasonable cause to suspect the medical assessment of Medical Assessor Berry is incorrect in a material respect for the following reasons.
With regards to the shrapnel injury to the claimant’s abdominal wall, the insurer submits that there was a failure by Medical Assessor Berry to adequately responds to the Insurer’s substantial, clearly articulated argument, failed to evaluate the evidence in accordance with the Guidelines and failed to provide adequate reasons.
The insurer refers to its Medical Assessment Service (MAS) 2R submissions dated April 2021 in which the insurer denied entirely that the claimant sustained an injury to his abdomen in the accident and, in support of this position, raised the following issues concerning the allegation of injury to the abdomen:
(a)    had the claimant observed blood on his chest as alleged, he would have received urgent medical treatment and would not have driven home independently following the accident;
(b)    the absence of any complaints of symptoms to the abdomen, and the absence of complaints of significant abrasions (which would have been present) had the airbag fragments entered the claimant’s body as alleged (one day post-accident);
(c)    the absence of any allegation of injury to the abdomen in the claimant’s Compulsory Third Party (CTP) claim form date 22 September 2017;
(d)    the significant delay in the claimant’s allegation of foreign bodies following an airbag rupture and the insurer’s understanding that this allegation was first suggested whilst the claimant was overseas;
(e)    the notations of Dr Kumar on 18 April 2018 where the claimant reportedly advised that following the accident he was “not bleeding too much and didn’t really (have) puncture marks” and that it was not until the claimant was in Lebanon that he felt unwell and had imaging which demonstrated an injury; as well as Dr Kumar’s observations of no evidence of entry;
(f)    the insurer’s argument that the foreign bodies in the claimant’s abdomen were related to a prior surgery based on the notations in Dr Kumar’s operation report of 11 January 2019 that the foreign body was consistent with surgical clips (coiled) likely during surgery (assumed to be gallbladder surgery), was unlikely airbag related and where the location was not superficial but actually in the abdominal wall, and
(g)    the limitation of Dr Sethi’s opinion with respect to causation of the claimant’s injury.

The insurer submits that Medical Assessor Berry has failed to adequately respond to the insurer’s substantial clearly articulated argument that the foreign bodies in the claimant’s abdominal walls were not caused by the accident and instead are likely related to a prior surgery and that this may constitute a denial of natural justice.
The insurer notes that Medical Assessor Berry determined the claimant suffered shrapnel injuries to his abdomen as a result of his airbag exploding and provided reasons for this conclusion at paragraphs 24 and 25 of his Certificate and Reasons.
The insurer submits that Medical Assessor Berry made a material error in his assessment as his statement of reasons did not expose the path of reasoning undertaken by him in order to arrive at the conclusion that the claimant sustained shrapnel injuries in the accident as a result of the airbags exploding, particularly in light of the causation issues raised by the insurer.
In this regard the insurer refers to the clinical notes of Dr Kumar which were attached to the insurer’s MAS 2R Form, but notes that Medical Assessor Berry made no reference at all to Dr Kumar’s clinical notes and opinion on causation in the cause of his document review and in fact only mentioned Dr Kumar twice in his entire certificate, but only to say that the claimant was referred to Dr Kumar who removed one fragment of a foreign body.
The insurer submits that Medical Assessor Berry did not address Dr Kumar’s crucial opinion that the foreign body was unlikely to be airbag related, which Dr Kumar justified by reference to the presence of a mesh to the claimant’s abdominal wall and the location of the foreign body not being superficial but actually being in the abdominal wall. The insurer submits that Medical Assessor Berry’s failure to engage with Dr Kumar’s notes, to engage with the substance of the claimant’s case or to give adequate reasons to explain why he rejected that amounts to a failure to intellectually engage with and evaluate all evidence as required by the Guidelines and a failure to provide adequate reasons.
The insurer submits that it is not clear from Medical Assessor Berry’s reasons, or from any part of his certificate, how he came to conclude that the fragment removed was shown not to be a clip from the claimant’s gallbladder operation, and submits that, if Medical Assessor Berry arrived at his conclusion based on the pathology report of the foreign body dated 11 January 2019, he should have made this clear in his reasons by simply referring to this evidence, but he did not do so.
The insurer submits that the comment in this pathology report that the foreign body, “is a steel coil and does not have the appearance of a surgical clip” of its own does not necessarily establish firstly that the steel coil is not related to the claimant’s prior surgery, and secondly, that the presence of the steel coil in the claimant’s abdomen was a result of an airbag explosion from the accident. The insurer further submits that Dr Kumar’s opinion that the foreign body is not related to the accident was re-affirmed in Dr Kumar’s report to the claimant’s solicitor dated 13 May 2019 where, in response to a question about removal of “mesh pieces”, found in the claimant’s abdominal area, Dr Kumar advised that “there was a coil taken for sample. I have not treated Mr Garcia for his original problem (emphasis added).”
The insurer also submits that Medical Assessor Berry erred in his application of AMA 4 and the Guidelines and in his methodology evaluating impairment. The insurer submits that the foreign body in the claimant’s abdominal wall is a condition that is not covered by the Guidelines or AMA 4. It notes that the only complaint from the claimant relating to this condition is that “he experiences occasional prickling blur [sic] the foreign bodies are on the left and right” and submits that having regard to this, Medical Assessor Berry has made an error in assessing impairment as his own clinical findings does not support the presence of an impairment.
The insurer further submits that Medical Assessor Berry’s decision to assess “foreign body” impairment using a method of skin disorders is not appropriate and is an error as it is not clear how occasional prickling in the abdominal wall is similar to a skin disorder and he has not included a rationale for the methodology he chose as required by clause 1.24 of the Guidelines.
Overall, the insurer submits that a correct application of AMA 4 and the Guidelines would result in the determination of the foreign body in the claimant’s abdominal wall does not result in any assessable impairment.
In the even that it was appropriate for Medical Assessor Berry to assess impairment by analogy to a skin disorder, the insurer submits that Medical Assessor Berry made an error by not assessing impairment in accordance with the Table for the Evaluation of Minor Skin Impairment (TEMSKI) in the Guidelines as Medical Assessor Berry determined that the claimant’s condition falls into a Class 1 skin disorder impairment.
The insurer submits that given Medical Assessor Berry concedes that the claimant’s foreign body condition causes no limitation in the claimant’s performance of activities of daily living and requires no specific treatment, the assessment of a 5% whole person impairment (WPI) is excessive and accordingly incorrect and that a correct application of the TEMSKI would result in an assessment of 0% WPI.
With regards to Medical Assessor Berry’s assessment of 9% WPI in respect of the claimant’s incisional hernia in the abdomen, the insurer submits that Medical Assessor Berry failed to evaluate the evidence and failed to provide adequate reasons for a clear path of reasons to explain how he arrived at the conclusion of the accident caused a direct blow to the abdomen which caused the recurrence of the incisional hernia, particularly given the absence of any contemporaneous complaints of symptoms to the abdomen referred to in the insurer’s MAS 2R submissions and the fact that the claimant’s own qualified expert, Dr Sethi did not find any recurrence injury to the claimant’s incisional hernia resulting from the accident and did not record any symptoms relating to the incisional hernia. The insurer also submits that Medical Assessor Berry incorrectly says that Dr Sethi advised that the claimant’s “mesh has been dislodged” because reference to this cannot be located in Dr Sethi’s 2021 report.
Further, given that the claimant’s incisional hernia was pre-existing, the Medical Assessor erred in failing to acquire and explain the nature of the alleged “recurrence” to the incisional hernia and how such recurrence changed the claimant’s impairment. The insurer submits that it is likely that the bulge caused by the hernia pre-existed the accident and that the medical assessor made an error by not obtaining information regarding the claimant’s pre-existing incisional hernia and by not calculating the value of any pre-existing impairment and subtracting it from the current impairment.
The insurer further submits that the assessment at 9% WPI is an error as it is excessive noting the claimant’s reported symptoms are limited to mild discomfort “at times” and embarrassment about the bulge and submits that a more accurate assessment would be 0% WPI or at most 1% WPI.
With regards to the insurer’s assessment of the claimant’s lumbar spine, the insurer submits that Medical Assessor Berry appears to have assessed the claimant in diagnosis-related estimate (DRE) II category on the basis of his finding that the claimant has an asymmetrical range of movement but submits that the medical assessor’s clinical examination does not establish that the claimant has a true non-uniform loss of motion (or asymmetrical range of movement) as he failed to include an assessment of the claimant’s lateral flexion range of movement as required by the guidelines.
The insurer further submits that Medical Assessor Berry’s finding of no muscle guarding and no muscle spasm makes it more probable that the claimant does not have a true non-uniform loss of motion in his lumbar spine and submits that a correct application of the Guidelines at AMA 4 would have resulted in a DRE I category assessment which equates to 0% WPI.
Finally, for all of the reasons set out above the insurer submits that the President’s Delegate would be satisfied that there is a reasonable cause to suspect that the medical assessment of Medical Assessor Berry is incorrect in a material respect and capable of reducing the claimant’s permanent impairment assessment from 18% WPI to not “greater than 10% WPI” and submits that the President’s Delegate ought to accept the insurer’s application to refer the matter to a Review Panel in accordance with the Court of Appeal’s decision in Meeuwissen v Boden and s 63 of the Act.

Insurer’s submissions dated 21 September 2017[12]

[12] IB p12.

In relation to the claimant’s alleged injuries that it is significant that at the time of completing the claim form in November 2017 the claimant made no complaint at all of abdominal or chest pain and says that had there been puncture wounds to the claimant’s chest as alleged, these would have been recorded at the time of completing the claim form. The insurer denies the claimant sustained an injury in abdomen in the accident and denies that the fragments identified in the claimant’s chest are accident related.
Consistent with the opinion of Dr Keller, the insurer submits that the claimant’s accident related injuries were soft tissue injuries in nature which have resolved with any residual symptoms referable to age-related, degenerative changes.
The insurer submits that it is evident that on attending Workers Doctors the day after the accident, the claimant complained that pain in his wrist, lower back and neck with associated headaches and made no complaints of significant abrasions which must have been present had the airbag fragments entered his body the day prior the accident, and submits that it is not evident that the claimant reported these symptoms at all until a doctor in Lebanon suggested that his symptoms might have been related to the airbags deploying.
The insurer refers to the report in relation to an xray of the claimant’s abdomen dated 29 March 2020 [sic 2018][13] which demonstrated that there were metallic densities in the claimant’s right hemi-abdomen and the note from the plastic surgeon, Dr Kumar, on 18 April 2018 that following the accident the claimant was “not bleeding too much and didn’t really (have) puncture marks” and that it was not until the claimant was in Lebanon that he felt unwell and had imaging which demonstrated an injury and the fact that Dr Kumar noted that there was no clear evidence of what the masses were and no clear evidence of entry.
[13] IB p117.
The insurer refers to the report of Dr Kumar after his surgery on 11 January 2019 that there was foreign body consistent with surgical clips and his comment that this was “unlikely” airbag related laceration not superficial but actually in an abdominal wall” and submits that absent any compelling evidence to the contrary it would be accepted that the foreign bodies in the claimant’s abdomen were related to a prior surgery and not the accident.
In addition to the above submissions the claimant makes submissions in relation to past and future out of pocket and treatment expenses and past and future domestic assistance.

Insurer’s further submissions dated 21 September 2017[14]

[14] IB p 38.

The insurer accepts that the claimant sustained a minor soft tissue injury to the lumbar spine, which has now fully resolved, and submits that the claimant’s assessable WPI would be 0%.
The insurer notes that the claimant was involved in a motor accident in 1997 as a result of which he sustained an injury to his cervical spine but that there is no evidence from the claimant’s pre-accident treatment providers to enable the insurer to appreciate whether the claimant recovered from this injury.
The insurer notes that the first post-accident treatment of the claimant was with a physiotherapist employed by Workers Doctors and that the claimant had not consulted this practice prior to the accident, and thereafter consulted Dr Eric Lim in the same practice who recorded that the claimant had a cervical spine sprain, lumbar sprain and left forearm injury.
The insurer also notes that the claimant consulted Dr Soon Kwan Kim of Workers Doctors on 25 October 2017 and reportedly had a cervical and lumbar spine pain but that soon thereafter he travelled to Lebanon where he received treatment and there is a report from a Lebanese based neurosurgeon suggesting that the claimant required 24 sessions of physiotherapy for neck and back pain and records from a Lebanese based physiotherapist indicating that the claimant received 20 sessions of physiotherapy thereafter.
The insurer refers to an MRI scan of the lumbar spine on 21 March 2018 which showed various disc protrusions but does not accept that any observed pathology was accident related.
The insurer also refers to an MRI of the cervical spine on 27 June 2018 which revealed multi-level osteophytes and foraminal stenosis and does not accept that this MRI demonstrated accident-related injuries as with the observed pathology to the lumbar spine.
Consistent with the opinion of Dr Keller, the insurer disputes that the claimant’s continuing consultations with practitioners through Workers Doctors is accident related.
The insurer relies upon the reports of Dr Andrew Keller, occupational physician, dated 4 April 2018 and 2 April 2019. Dr Keller diagnoses soft tissue sprain to the lumbar spine and minor soft tissue injuries to the wrist, forehead and chest which had all resolved prior to his examination, and in his opinion the claimant’s radiology revealed degenerative changes in the cervical and lumbar spines but no accident-related pathology. In his opinion the claimant’s age-related changes were the dominant cause of his symptoms and he assessed the claimant’s WPI at 0%. The insurer relies upon the reports of Dr Keller and submits that the claimant’s WPI would not exceed 10%.
In summary, the insure accepts that the claimant sustained minor soft tissue injuries to his lumbar spine as a result of the subject accident and submits that any soft tissue injury has since resolved and asserts that any WPI from the claimant’s accident-related injuries would not exceed 10%.

Claimant’s submissions in reply[15]

[15] CB p 4.

The claimant submits that none of the five errors by Medical Assessor Berry asserted by the Insurer have been made out and the application for review ought to be rejected.
The claimant submits that Medical Assessor Berry clearly provided reasons for his assessment of the WPI in relation to the injuries he determined were caused by the accident:
(a)    lumbar spine;
(b)    abdomen (incisional hernia), and
(c)    foreign body (abdominal wall).
The claimant submits that Medical Assessor Berry clearly provided the reasoning and the details as to why each of the three injuries assessed fell within the relevant category selected.
The claimant notes that despite finding that the injuries to the left wrist, left arm and cervical spine were caused by the accident, Medical Assessor Berry did not conduct an assessment of whole person impairment arising from these injuries. The claimant submits that no withstanding the findings of Medical Assessor Berry that there was a full range of movement for the upper limbs which would not have given rise to a WPI assessment, physical assessment did not occur. The claimant submits that this is an error and that should the matter be referred to a Review Panel all injuries should be reassessed with a new assessment.
With regards to the insurer’s submissions in relation to Medical Assessor Berry’s findings in relation to the shrapnel injury to the abdominal wall, the claimant submits that the medical assessor clearly made a finding on causation, he had before him the insurer’s submissions, and there is no requirement that each and every submission and document relied upon by either party needs to be considered, reviewed and resolved. The fact that the insurer is not happy with the determination of Medical Assessor Berry in relation to the causation of this injury, which it was open for the medical assessor to find, is not an error.
The claimant refers to the insurer’s submission that the metal particle found on imaging was consistent with that of a surgical clip and submits that although it may have similarities to a surgical clip, its origin was speculative at best. The claimant refers to the pathology report noted by Medical Assessor Berry at page 7 of his Certificate and Reasons which shows that histology on the foreign body dated 11 January 2019 shows that the specimen is surrounded by fibrocollagenous scar tissue and the foreign body was found to be a steel coil not a surgical clip.
The claimant submits that Medical Assessor Berry considered the argument of the insurer with respect to causation and has found against the insurer and that this finding was open to the medical assessor to make on the evidence and is not an error.
The claimant refers to the insurer’s submission that the medical assessor did not address Dr Kumar’s crucial opinion that the foreign body was unlikely to be airbag related, which Dr Kumar justified by reference to the presence of mesh to the claimant’s abdominal wall in the location of the foreign body not being superficial but actually being in the abdominal wall.
The claimant submits that Dr Kumar was the treating doctor who provided a handwritten note following the initial consultation. Even though the operation report makes comment regarding the coils, the pathology report clearly notes that this was not a surgical clip. The claimant further submits that Dr Kumar is not requested to provide a medical opinion on causation, nor has any follow up opinion been requested or provided following the pathology report and submits that the findings during the surgery were required to be confirmed from pathology.
With regards to the assessment of the lumbar spine by Medical Assessor Berry at DRE II as compared to Dr Keller’s assessment at DRE I the claimant submits that this was consistent with the examination by the medical assessor at the time of the assessment and in line with the claimant’s own evidence and there is no error.
With regards to the hernia injury, the claimant submits that Medical Assessor Berry clearly provided his opinion regarding the “re-aggravation” of the incisional hernia and that this finding was open for him to make and there is no error. The claimant submits that the determination of the class of rating is within the ambit of the medical assessor at the time and is based upon the assessor’s skill and experience and it is not for the insurer to submit (after the fact) its preferred finding.

RE-EXAMINATION

The claimant was examined by Medical Assessor Oates on 14 April 2023. The examination report is as follows:
“Mr Garcia attended for Panel re-examination on 14 April 2023 with Medical Assessor Oates at his rooms in Market Street, Sydney.
HISTORY
Pre-accident medical history and relevant personal details
Mr Garcia said that he had no previous problems with the neck, back or arms, apart from minor cuts and scratches at work.
His general health has been good, and he was on no regular medications. He was always fit and healthy, and did gym work with body building, martial arts, swimming and running.
In 2008, he had a cholecystectomy at the hands of Dr Sanki. A small right upper quadrant incision was made initially but the operation was technically difficult, so a longer mid-line longitudinal upper abdominal incision was made. He subsequently developed an incisional hernia and had a mesh repair of the hernia by Dr Sanki about two months after the cholecystectomy.
Mr Garcia is 76 years of age, is divorced and has two adult sons and one adult daughter, all of whom are married with children. He lives in a house with his daughter, son-in-law and four grandchildren. He does not smoke or drink alcohol.
He came from Lebanon in 1972. His father was Mexican, and his mother was Lebanese. He was a boilermaker/welder by trade in Lebanon and Australia, and then started doing building projects work, being self-employed for 25 to 30 years. He had retired at the age of 66. He feels this was premature, in retrospect.
History of the motor accident
Mr Garcia said that on 21 September 2017, he was a seat belted driver of a 2008 Toyota Aurion sedan with no passengers. He was driving along Victoria Road to Ryde to visit an architect whom he had previously worked with, in the hope of returning to the workforce, by being placed on his list of referrers. He passed through an intersection on a green light in the left hand of three lanes in his direction of travel, when a vehicle coming the other way turned right in front of him, missing two vehicles in the other two lanes and then collided with his vehicle. The front of his car hit the front passenger door of the other vehicle. He was very concerned, as there were three small children in the other car.
. Both the driver and passenger airbag deployed and exploded, sending smoke through the cabin, and he was afraid the car was on fire, so he quickly extricated himself through the driver’s door. He was aware of minor prickling in the upper abdomen with small blood spots visible on his clothing and he said he had burns to the right and left forearm/wrist area, but particularly on the right forearm. He also was aware of neck pain and low back pain.
The police and ambulance were not called, as he thought he was okay. The tow truck driver took him and the vehicle to a holding yard where his car was subsequently written off. He drove himself slowly home in a rental car.
History of symptoms and treatment following the motor accident
Mr Garcia had neck and back pain and stiffness, prickling sensation in the abdomen with abdominal pain, and also pain from the abrasion burns to the forearms.
On the advice of his solicitor, he went to a general practitioner (GP), Dr Eric Lim, on 22 September 2017 who organised imaging and referred him to physiotherapy at the same clinic and gave him analgesic medication. The physiotherapy only gave relief for one or two hours.
He had to return to Lebanon in December 2018 because his father died, and he did consult doctors whilst he was away.
On returning to Australia, imaging of his abdomen on 29 March 2018 showed multiple foreign bodies consisting of clips from the cholecystectomy surgery and metallic densities projected over the right hemi-abdomen. He was referred to Dr Kumar, plastic surgeon, whom he first saw on 18 April 2018.
He was referred to Dr Singh, orthopaedic spine surgeon, whom he saw on 26 November 2018 regarding aggravation of lower back and neck pain. Dr Singh noted an L3/4 disc with right-sided sciatica in the lower back which has been improving with physiotherapy, and stenosis at C3/4 with foraminal stenosis as well at other levels in the cervical spine. The doctor reported that Mr Garcia did not wish to have surgery at that time, and he was asked to continue with physiotherapy, noting that he may require surgery for the neck pain should his symptoms not subside, and that he requested referral for removal of shrapnel from the right flank, which was subsequently managed by Dr Kumar.
Dr Kumar removed one metallic fragment on 11 January 2019 at Westmead Private Hospital. Mr Garcia funded the surgery. He was told that the fragments were too widely scattered to all be removed at the one time.
The histopathology report dated 14 January 2019 commented that the foreign body was a steel coil and did not have the appearance of a surgical clip. Dr Kumar recommended later removal of the fragments one-by-one under image intensifier control. He said that some of the foreign bodies appeared deep and some were shallower.
Mr Garcia said that he noticed a tennis ball sized lump appearing in the upper abdomen within a couple of weeks after the motor accident.
He was not able to explain why there was no mention of abdominal hernia by his treating GP or specialists.
At some later time, he said he went to Dr Kumar’s surgery because he had wanted Dr Kumar to advise him what to do about the lump. Dr Kumar was not there, so he spoke to his wife, who is a GP, and found out that Dr Kumar had retired. Mr Garcia was not able to tell me when this visit occurred. There is no record of this in the medical evidence.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Garcia said that he had had no subsequent injury or condition develop after the accident.
Current symptoms
He notices his neck has a cracking sensation when he turns his head to check the blind spot when driving. His most symptomatic area is the lower back, and he can only lift 15kg and has difficulty bending, and his back gets stiff and he gets cramps behind the knees when he tries to walk. He is not able to bend or twist. He can drive for less than one hour.
Mr Garcia said that his right and left forearms have healed. He is embarrassed about the bulge in the upper abdomen in the mid-line and does not like to go to the beach.
His appetite and bowels are okay, and he does not have abdominal pain.
There is no scarring remaining from the entry sites of the metallic fragments from the airbag. He has increased weight from a pre-accident weight of 80kg to about 96kg through enforced inactivity since the motor accident.
Current and proposed treatment
He takes Voltaren anti-inflammatory medication, and his daughter applies Voltaren Emulgel rub to the back in the evening, and he also takes Nurofen, Panadol and aspirin as simple analgesics as required.
He has not been able to arrange revision repair of the incisional hernia as yet.
CLINICAL EXAMINATION
General presentation
He was of average to solid build with well-defined musculature considering his years, and a height of 170cm and weight 96kg.
He has advanced bunions bilaterally and varicose veins in the left leg. He stood erect and walked without a limp. He sat comfortably but had difficulty bending to untie and retie the shoelaces of his runners but was able to transfer on and off the couch without difficulty.
Cervical spine (cervicothoracic)
There was normal contour with no guarding and no tenderness. Flexion and extension were three-quarters of normal, lateral flexion was one-half normal bilaterally, rotation two-thirds of normal bilaterally. There was no dysmetria. There were no non-verifiable radicular complaints. Reflexes, power and sensation in the upper limbs were normal. Upper arm girth was right equals left equals 37cm. Forearm girth was right equals left equals 30.5cm.
Lumbar spine (lumbosacral)
Lordosis was reduced. There was bilateral lower paralumbar muscle stiffness. Tenderness at L4/5 centrally. There were no non-verifiable radicular complaints. Flexion was two-thirds of normal range, as was extension. Lateral flexion to the right was two-thirds and to the left was one-half normal. Rotation was three-quarters bilaterally. He could squat with support and walk on the heels and toes. Axial pressure test was negative. Reflexes were symmetrical with plantar responses in both flexors. Power and sensation in the lower limbs were normal. Supine straight leg raising was 70° bilaterally with negative stretch test. Thigh girth was right equals left equals 52cm. Leg girth was right 37.5cm, left 38.5cm (noting the presence of varicose veins in the left leg).
Upper extremity
There was full range of movement in the right and left shoulders and elbows.
There was full range of movement in right and left wrists.
Grip was intact in both hands.
There was no visible scarring at the left forearm or wrist.
Abdomen
A 3cm transverse scar was observed in the right upper quadrant which was the initial attempt to remove the gall bladder, which subsequently required a larger incision to complete the removal of the organ. There was an 11cm diameter roughly circular prominence of a presumed incisional hernia in the upper abdomen underlying the previous scar, which was 16cm long running longitudinally in the mid-line from the upper abdomen xiphisternum to the umbilicus. There was also a small 2cm diameter umbilical hernia. There were no inguinal hernias.
There were no abdominal wall scars from the foreign bodies from the airbag. The abdomen was soft and non-tender. The bowel sounds were normal. There was no liver, spleen or kidney enlargement palpable.
Comments on consistency
Mr Garcia presented in a straightforward manner, and Medical Assessor Oates did not detect any embellishment of his clinical presentation.
DIAGNOSIS
Causation and Reasons
In the opinion of the Panel, the claimant sustained soft tissue injuries to the neck and low back and friction burn injuries to the left forearm and wrist in the accident. The Panel is satisfied on the basis of the history provided by the claimant on re-examination by Medical Assessor Oates and the documents relied upon by the parties, including the clinical and treating records, that the circumstances of the accident was sufficient to cause soft tissue injuries to the neck and low back and friction burn injuries to the left forearm and wrist. There is contemporaneous complaint of pain and symptoms in these parts of the claimant’s body recorded in the documents relied upon including the treating medical records. The Motor Accident Personal Injury Claim Form (the PICC), the medical certificate of Dr Eric Lim dated 22 September 2019 and Dr Lim’s Initial Consultation Assessment report also dated 22 September 2019 (the day after the accident) record that the claimant had headaches, neck pain, left forearm pain and lower back pain. The physiotherapist, Ryan Heuston, when he consulted the claimant on 29 September 2019, records a history of the motor accident on 21 September 2017 and symptoms of pain in the neck, pain in the left forearm flexors and pain in the lower back, and on examination of the claimant he records an antalgic gait, a 50% range of motion (ROM) in the cervical spine in all directions, forearm pain with extension of the left wrist, and reduced ROM in the lumbar spine.
With regards to the abdominal shrapnel injury, the Panel has considered the insurer’s and the claimant’s submissions in relation to the issue of causation of this injury which are summarised above and the documentary evidence before the Panel.
The Panel notes the following:
a)There is no contemporaneous documentary evidence at the time of the accident that blood was observed on the claimant’s chest or abdomen area indicative of the penetration of shrapnel from the exploding airbag.
b)However, there is a handwritten note from Dr Kumar when he initially examined the claimant on 18 April 2018 as follows:
‘Wearing T-shirt – felt impact but not bleeding too much.
hairy – didn’t really puncture marks’[16]
[16]CB p 92.
c)The claimant says in his statement dated 15 September 2020:
“…I suffered a burn to my left arm and hand. I took my shirt off as I felt something running on my chest and saw blood on my rib area”.[17]
[17] CB p 113.
d)There is no contemporaneous complaint in the clinical medical records at the time of the accident of symptoms in or abrasions to the abdomen and no allegation of injury to the abdomen in the PICF. The claimant says in his statement that after flying to Lebanon in December 2018 he was referred to a doctor due to ongoing pain and was referred for x-ray of his abdomen and to a specialist about his abdominal pain, who advised him to have surgery to remove the fragments[18]. Whilst there are no clinical records confirming this in the documents relied upon, there are clinical notes of Dr Nabil El-Sayed, neurosurgeon in Lebanon, in December 2017 and January 2018[19]. In a report dated 1 December 2017, Dr El-Sayed reports that the claimant is suffering cervical pain, cervical-occipital pain, severe muscle spasm in the interscapular zone and low back pain and recommends 24 sessions of physiotherapy and kinesitherapy to rehabilitate all the suffering areas but makes no reference to abdominal pain or injury.[20]
[18] CB p 117.
[19] CB p 78.
[20] CB p 79.
e)     An x-ray of the abdomen on 29 March 2018 at the referral of Dr Lim revealed metal densities projected over the right hemi-abdomen and noted cholecystectomy clips.[21]
[21] CB p 81.
f)    In his handwritten clinical notes from his first consultation with the claimant on 18 April 2018, Dr Kumar recommends a fluoroscopy guided biopsy to remove 1 or 2 of the foreign bodies to determine exactly what they are and says that he will arrange approval for the surgery from “CTP”.[22]
[22] CB p 93.
g)     After performing the surgery to remove one of the fragments, Dr Kumar in his handwritten Operation Report and Discharge Summary dated 11 January 2019 makes a notation which the Panel interprets to state that there were ‘foreign bodies consistent with surgical clips (coil) likely during gall bladder surgery – mesh to abdominal wall – unlikely airbag related’.[23]
[23] CB p 99.
h)     In his report dated 13 May 2019[24], Dr Kumar states that “there was a coil taken for sample”.
[24] CB p 90.
i)    The specimen foreign body taken from the claimant’s right abdomen by Dr Kumar was then examined by Dr Edward Chandraratnam on 11 January 2019. His report in relation to that investigation is dated 14 January 2019[25] in which he provides the following diagnostic summary:
[25] CB pp 97-98.
“Foreign body, right abdomen
-FIBROCOLLAGENOUS SCAR TISSUE AND HISTIOCYTIC REACTION TO FOREIGN MATERIAL
Comment: the metal structure is a steel coil and does not have the appearance of a surgical clip.”
j)    Then in a report dated 13 May 2019 at the request of the claimant’s solicitors, Dr Kumar notes that there was a coil taken for sample[26], but makes no comment on the diagnostic summary of Dr Chandraratnam that the metal structure which was analysed is steel coil and does not have the appearance of a surgical clip. Dr Kumar is specifically asked for his opinion as to whether, if the mesh in the claimant’s abdomen was damaged or displaced, this was caused by the accident, in response to which he says that he cannot comment on this as he did not insert the mesh. When asked whether the mesh pieces found in the abdominal area will require removal, Dr Kumar responds that there was a coil taken for sample but that he has not treated the claimant for his original problem.
[26] CB p 91.
k)   Dr Keller, occupational physician, in his medicolegal report dated 2 September 2019 prepared at the request of the insurer found that on examination of the claimant there were “small scars to the right abdomen consistent with puncture wounds that were almost invisible”[27], and later in his report observes that “there were almost invisible abdominal wall scars consistent with explosive foreign bodies from the airbag”.[28]
[27] IB p 107.
[28] IB p 108.
The Panel is persuaded by the comment in the report of Dr Chandraratnam that the metal structure removed by Dr Kumar was a steel coil and did not have the appearance of a surgical clip. The report which contained that comment after analysis of the specimen foreign body was dated 14 January 2019 and after Dr Kumar commented in his operation report dated 11 January 2019 that there were foreign bodies in the claimant’s abdomen which were consistent with surgical clips.
Whilst the handwritten clinical notes of Dr Kumar dated 18 April 2018 record the history of the accident obtained by him from the claimant and note “felt impact but not bleeding too much” and “didn’t really puncture marks”[29], the Panel does not accept the submission by the insurer that that there is an observation by Dr Kumar in his clinical records of “no evidence of entry” [of foreign bodies into the claimant’s abdomen].[30]
[29] IB p 112.
[30] IB p 3.
On the balance of the evidence referred to above, the Panel is satisfied that it is more likely than not that the claimant suffered a penetrating injury to the abdominal wall from shrapnel emitted from the exploded airbag in the accident.
However, the Panel does not accept that the accident caused or materially contributed to an abdominal wall hernia for the following reasons.
An abdominal wall hernia could conceivably be caused by blunt trauma to the abdomen from an intact air bag, which usually occurs when a seat belt has not been worn, but in this case the claimant was wearing a seatbelt. However, the exploded air bag is no longer a blunt object capable of causing such a condition.
Abdominal hernia is not mentioned in the PICF or the medical certificate of Dr Lim dated 22 September 2017, nor in the contemporaneous GP records over multiple visits at weekly intervals after the accident, nor in the records from the neurosurgeon in Lebanon, Dr El-Sayed, in December 2018 and January 2019, nor in the claimant 's medicolegal report from Dr Conrad dated 20 March 2018, nor in the referral letters dated 23 March 2018 and 17 April 2018 from the GP, Dr Lim, to the plastic surgeon, Dr Kumar, regarding multiple abdominal foreign bodies after the airbag explosion, nor in Dr Kumar's report following abdominal examination dated 18 April 2018, nor in Dr Kumar's operation report at the time of removal of one foreign body for histopathology dated 11 January 2019, nor in certificates of capacity dated 1 February 2019, 1 March 2019, 29 March 2019 and 30 April 2019.
In Dr Keller’s medicolegal report dated 2 September 2019, although there is a reference to scars to the right abdomen consistent with puncture wounds and scars to the abdominal wall consistent with explosive foreign bodies from the airbag, there is no mention of abdominal wall hernia. There is also no reference to abdominal wall hernia in the medocolegal report by Dr Sethi, gastroenterologist, dated 14 February 2021 and there is no reference to abdominal wall hernia on abdominal examination conducted and reported in the subsequent medicolegal report of Dr Conrad, general surgeon, dated 24 March 2021.
CONCLUSION
The following injuries WERE caused by the motor accident:
·lumbar spine - soft tissue injury
·abdomen – shrapnel injury
·cervical spine – soft tissue injury
·left forearm / wrist - friction burns
The following injuries WERE NOT caused by the motor accident:
·abdominal wall injury
·right forearm and wrist - it is noted that the claimant said that he suffered burns to both the left and right forearms from the exploding airbag. However, whilst there is reference to an injury to the left forearm in the accident in the PICF[31] and Dr Lim notes there is left forearm pain in his medical certificate dated 22 September 2017[32], there is no contemporaneous medical record to support a burn to the right forearm and wrist in the accident.
[31] CB p 25.
[32] CB p 28.
The following injuries caused by the motor accident have resolved:
·cervical spine – soft tissue injury – the Panel’s clinical findings on re-examination set out above support a categorisation of DRE I - 0% WPI
·left forearm and wrist – friction burns – because the burns have healed without leaving any visible scar, there is no assessable permanent impairment (0%).
PERMANENT IMPAIRMENT
Lumbar spine
There is asymmetric loss of active range of motion in lateral flexion, that is, dysmetria, which places him in DRE Lumbosacral Category II which results in 5% whole person impairment.
Foreign bodies in abdominal wall
As there is no visible scarring of the abdomen and these foreign bodies are subcutaneous and not palpable within the abdomen, being in the abdominal wall at various depths, they are not assessable under the TEMSKI table of minor skin impairment. The foreign bodies are not causing abdominal pain or digestive dysfunction or loss of movement, hence they are not assessable under any other method used for permanent impairment assessment pursuant to AMA 4 or the Guidelines.
Permanent Impairment Table

Body Part or System

AMA 4 / Guidelines References

(chapter/ page/table)

Permanent (YES/NO)

Current %WPI*

%WPI* from pre-existing OR subsequent causes

%WPI* due to motor accident

1

Lumbar spine

AMA 4, Chapter 3, Table 72, page 110

DRE II

Yes

5

0

5

2

Abdomen -shrapnel injury

Guidelines

TEMSKI Table 18

Yes

0

0

0

* %WPI = percentage whole person impairment
The combined whole person impairment is 5%.
Pre-existing/subsequent impairment
Not applicable.
Apportionment
There was no history given nor documented evidence of a pre-existing injury or condition affecting the lumbar spine. Pursuant to clauses 1.31 and 1.32 of the Guidelines, in order to make an apportionment of the assessed permanent impairment related to the accident, there would need to be accurate information and data in the medical evidence on which to base a DRE lumbosacral category of permanent impairment and also evidence that this impairment was symptomatic at the time of the accident.
As the insurer submits, there is degenerative change on imaging of the lumbar spine, however this is not a clinical differentiator for a DRE category, (see Guidelines pages 30, 31). Accordingly, there is no apportionment for pre-existing impairment of the lumbar spine.
Effects of Treatment
Not applicable.”

FINDINGS

The review is a new assessment of all matters in which the medical assessment is concerned.
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[33] and Insurance Australia Limited v Marsh.[34]
[33] [2021] NSWCA 287 at [40], [41] and [45].
[34] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the re-examination report of Medical Assessor Oates in its reasons and makes the following findings for the reasons set out above.
The Panel finds that the motor accident on 21 September 2017 caused the following injuries to the claimant:
(a)    lumbar spine – soft tissue injury;
(b)    abdomen – shrapnel injury;
(c)    cervical spine – soft tissue injury, and
(d)    left forearm/wrist – friction burns.
The Panel finds that the motor accident on 21 September 2017 did not cause the following injuries to the claimant:
(a) abdominal wall injury, and
(b) right forearm and wrist .
The Panel finds that the following injuries to the claimant caused by the motor accident on 21 September 2017 have resolved:
(a) cervical spine – soft tissue injury, and
(b) left forearm and wrist – friction burns.
The Panel has determined that the degree of permanent impairment of the claimant as a result of the following injuries caused by the motor accident on 21 September 2017 is a combined total of 5% as follows:
(a) lumbar spine – 5%, and
(b) abdomen – shrapnel injury – 0%.

CONCLUSION

For the reasons set out above the Panel revokes the certificate of Medical Assessor Berry dated 2 May 2022. A replacement certificate is attached to the commencement of these Reasons.

[2024] NSWPICMP 526

31 July 2024