Allianz Australia Insurance Limited v Hamidi
[2025] NSWPICMP 668
•3 September 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Hamidi [2025] NSWPICMP 668 |
CLAIMANT: | Bashir Yusef Hamidi |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Shane Moloney |
DATE OF DECISION: | 3 September 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment dispute; review of Medical Assessment Certificate (MAC); original Medical Assessor (MA) assessed 11% whole person impairment (WPI) comprising of 5% neck, 2% left shoulder, and 4% left knee; MA accepted claimant’s given history that he may have hit his left knee on the dashboard at the time of the accident; Review Panel noted first complaints to left knee was three years after the motor accident; absence of any other evidence to support injury to the left knee as a result of the motor accident; Held – left knee injury not causally related to the motor accident; cervical spine 0% WPI and left shoulder 2% WPI; MAC revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Kenna dated 25 March 2025. 2. Issues a new certificate determining that the following injuries caused by the motor accident give rise to a permanent impairment of 2% and is not greater than 10%: · cervical spine – soft tissue injury, and · left shoulder – soft tissue injury. |
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STATEMENT OF REASONS
BACKGROUND
Bashir Yusef Hamidi (the claimant) was involved in a motor accident on 26 July 2021. He was the driver of a Toyota Yaris and was proceeding straight through a roundabout when he was hit by a car on the left.
He says he was injured following the accident and made a claim for personal injury benefits with Allianz Australia Insurance Limited the third-party insurer of the vehicle that he says caused the accident.
A medical dispute arose about whether the degree of the claimant’s whole person impairment (WPI) is greater than 10% WPI. This is important because if there is a dispute about the degree of a claimant’s WPI, damages for non-economic loss[1] cannot be awarded and disputes must be referred to a Medical Assessor/s for determination.
[1] See Division 4.3 of the MAI Act.
On 25 March 2025, Medical Assessor Clive Kenna found the claimant had a WPI of 11% which was greater than 10%.
The insurer lodged an application with the Personal Injury Commission (Commission) seeking a review of Medical Assessor Kenna’s medical assessment.
On 21 May 2025, a delegate of the President (Ms Ashley Payne), accepted the application for review and referred the matter to this Review Panel (the Panel) to conduct the Review proceedings.[2]
[2] Section 7.26(5) of the MAI Act.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Kenna was asked to assess alleged injuries to the claimant’s cervical spine, left shoulder and left knee, framed in the following terminology:
· cervical spine – musculoligamentous strain and musculoskeletal injury with dysmetria;
· left shoulder – torn rotator cuff and restriction of movement, and
· left knee – aggravation of pre-existing condition including medial meniscal tear and need for partial meniscectomy with no visible scarring.
The Medical Assessor accepted that the claimant sustained soft tissue injuries to the cervical spine, left shoulder with the left knee injury described as a medial meniscal tear and patellofemoral crepitus. All injuries were found to be caused by the motor accident.
Examination of the cervical spine revealed a slight decrease of rotation to the left when compared with the right (90% range) and therefore dysmetria was present. This was assessed as DRE category II or 5% WPI.
The left shoulder had a decreased range of motion in flexion, abduction and internal rotation which equated to a 3% upper extremity impairment or 2% WPI. The right shoulder was normal.
The left knee partial meniscectomy and the presence of patellofemoral crepitus equated to a 3% WPI however there was also mild thigh and calf atrophy (2% WPI for each equalling 4% WPI total). The 4% WPI was chosen because it was the greater figure of the two.
The total combined impairment was therefore 11% WPI (5%, 4% and 2%).
SUBMISSIONS
Insurer
Generally, the insurer says the claimant’s accident-related neck and left shoulder injuries do not collectively give rise to a permanent impairment of greater than 10%.
The insurer says the Medical Assessor’s finding that the left knee was injured in the motor accident was based solely on the claimant’s self-reporting to the Medical Assessor that his left knee hit the dashboard at the time of the accident. It is contended that the documentation before the Medical Assessor does not support an accident-related left knee injury.
In relation to the neck, the insurer says the Medical Assessor did not reference the relevant differentiators in support of a DRE category II assessment. The insurer also refers to inconsistencies in the comments on the claimant’s range of motion during examination, namely that there was asymmetry on rotation despite stating that there was full range of movement on formal examination.
Claimant
The claimant relies on an expert report from Dr James Bodel dated 16 July 2024. Dr Bodel opined that as a result of the motor accident, the claimant sustained a combined WPI of 12% which is comprised of:
·cervical spine 5%;
·left shoulder 6%, and
·left knee 1%.
The claimant’s review reply submissions dispute any error in the Medical Assessor’s findings. The claimant says the absence of contemporaneous evidence of a left knee injury is not determinative when considering causation. It is submitted that the Medical Assessor was open to accept the claimant’s history that he hit his left knee on the dashboard at the time of the motor accident. The claimant says his left knee was commented upon by treating doctors which led to the subsequent surgery, a partial meniscectomy.
In relation to the cervical spine, the claimant says the Medical Assessor has referred to the relevant documentation including the radiological investigations and was open to find a WPI of 5%.
REVIEW OF THE EVIDENCE
As directed, the parties lodged bundles of the material they relied upon in the review, with the insurer’s bundle comprising of pages 1-402 and the claimant’s bundle comprising of
pages 1-445.
The Panel has read the documentation however will not refer to and summarise every document that are contained in the bundles. The Panel will only refer to the material that are relevant to the issues in dispute and matters to be determined with respect to the review of Medical Assessor Kenna’s WPI assessment.
Reports of Dr Vijay Maniam dated 7 December 2021, 28 February 2022, 25 May 2022 and 27 September 2023 – accident-related injuries to the cervical spine and left shoulder pain. MRI investigations to the cervical spine and left shoulder reviewed. Left knee previous meniscal operation due to soccer injury noted – full recovery. Nil mention of accident-related left knee injury.
Report of Dr Tej Dugal dated 16 March 2023 – reviewed MRIs of the cervical spine and left shoulder before concluding that the imaging supports accident-related injuries to both areas.
Report of Professor Munjed Al Muderis dated 14 March 2022 – ongoing left knee pain. Past history of knee arthroscopy back in 2006 after a soccer injury. Since then, knee initially returned to normal but the pain has returned within the last 24 months without trauma. No mention of motor accident.
Dr Mohammad Aymal, Auburn Medical Centre – referral letter to Professor Al Muderis dated 13 March 2022 for left knee. Past history 2020 knee – meniscus tear – medial.
Report of Dr Wagdy Ashaia dated 15 September 2022 – noted complaints of left anterior knee pain for the last year. Playing soccer at a high level until last year when he was advised to stop and preserve his knee joint. Nil instability of the patellofemoral joint. No mention of motor accident.
Operation report of Professor Munjed Al Muderis dated 16 August 2023 – noted left knee arthroscopy, tibial tubercle osteotomy, internal fixation and lateral released performed on 16 August 2023.
Discharge summary Westmead Hospital dated 8 October 2023 – alleged assault. Punched in head L side of neck falling onto left knee. Recent surgery repair of L meniscus seven weeks ago. Bony tenderness to left knee and ankle. X-ray showed tibial plateau fracture.
PANEL REPORT
The Panel determined that the claimant be re-examined by Medical Assessor Moloney on
6 August 2025. The re-examination report is as follows:
“Mr Hamidi attended the medical suites of PIC on 6 August 2025. He was unaccompanied.
Pre-accident history
Mr Hamidi stated that he was in good health prior to the accident and was working
full-term as a NDIS support worker. This involved cleaning, feeding clients and driving them to appointments. He lives with his wife and 4 children.
There was a previous injury to his left knee in a soccer accident in 2006 which resulted in a surgical repair of a torn cartilage. There was a previous car accident in about 2012 when he was a passenger and stated that he sustained a whiplash injury to his neck which recovered with physiotherapy.
History of motor accident
Mr Hamidi was the driver of his car on 26 July 2021. He was slowing down in a roundabout when a truck failed to give way and hit the passenger side – front of his car. He was able to pull the car over to the side and exchanged details with the other driver. His car was towed away and later repaired. He states his parents collected him and took him home and that no ambulance officers or police attended the scene of the accident.
History of symptoms and treatment following the motor accident
Mr Hamidi states that during the night after the accident he had neck pain which radiated into the left shoulder region. He consulted his GP the next day who organised radiological studies of the cervical spine and left shoulder. He was referred for physiotherapy, prescribed analgesics and put on light duties.
His GP referred him to Dr Maniam and he states that he had 2 cortisone injections to the cervical spine and one or 2 to the left shoulder. He was also referred to a neurosurgeon, Prof Eftekhar who advised him that surgical treatment was not recommended.
His GP referred him to a previous orthopaedic surgeon, Prof Al Muderis who had treated the previous meniscal tear in the left knee. Another partial meniscectomy was undertaken with some improvement in the left knee symptoms after this procedure. He states that this operation was self-funded. Mr Hamidi felt that he was limping after the motor vehicle accident but this was not recorded in the clinical notes. He states that he was dropping a client to Prof Al Muderis’ when he asked him why was limping prior to the 2nd arthroscopic procedure.
His GP is also referred to a pain specialist, Dr Mir who has undertaken four nerve blocks to the cervical spine with no benefit. The last procedure was one month ago under light anaesthetic.
There was a further injury on 8 October 2023. Mr Hamidi stated there was walking down the street using crutches when he was assaulted by a drunk guy. He went to Westmead Hospital with a sore neck where an x-ray was clear and he went home.
Current symptoms
Mr Hamidi has constant neck pain which increases with flexion and rotation. He states that his neck feels hot at that time and pain radiates into the left trapezius muscle. This pain wakes him frequently at night. There is pain in the left shoulder with abduction greater than shoulder height. He also gets pain down the medial side of his left arm and left little finger which goes numb and spasms particularly at night time. He states that this started soon after the accident but is slowly getting worse and occasionally occurs during the day but settles with a few minutes. This pain down the left arm increases with stress or eating.
Current treatment
Present medication is Nurofen or Panadol when needed especially at night. He also takes magnesium supplement. No manual therapy is being undertaken at present but he does home exercises in his home gym. He consults his GP when necessary and has a follow up booked with Dr Mir in a month’s time. No surgical procedures had been planned.
Clinical examination
Mr Hamidi walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is right-handed. His height was measured at 167 cm and weight of 79 kg.
Cervical spine
On inspection of the cervical spine there was a normal contour and on palpation tenderness over the lower cervical spines but no guarding or spasm was noted in the cervical musculature. On testing range of movement, flexion/extension was 80% of expected range with side bending and rotation 90% of expected range with no asymmetry.
On neurological examination of the upper limbs, reflexes were of low amplitude but equal with no sensory changes noted and normal power. No muscle wasting was apparent with the circumference of the upper arms 35 cm bilaterally (10 cm above the olecranon process) and in the upper forearm 29 cm bilaterally (5 cm below the olecranon process).
Shoulders
On inspection of the shoulders, no muscle wasting was apparent and on passive movement no crepitus was detected. Active movements were measured using a goniometer and repeated.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 180° | 150°= 2% UEI |
| Extension | 50° | 50° |
| Adduction | 50° | 50° |
| Abduction | 180° | 150° = 1% UEI |
| Internal Rotation | 90° | 70° = 1% UEI |
| External Rotation | 90° | 90° |
Knees
On inspection of the knees no effusions were noted and no ligament laxity noted on testing. On passive movement no crepitus was detected. Active measurements were made using a goniometer.
| Knee Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 130° | 120° |
| Extension | 0° | 0° |
There was slight muscle atrophy of the left lower limb. The circumference the upper thighs was 40 cm on the left and 41 cm on the right (10 cm above the superior patella pole) and at the maximum circumference of the calves 35 cm on the right and 34 cm on the left. There are very fine portal scars from the previous meniscectomy.
There is no significant scarring from this arthroscopic surgery of the left knee.
Consistency of presentation
There were no inconsistencies in the re-examination findings. While some of the Panel clinical findings differ from other medical reports (see below), the Panel relies on its own findings made on the day of the assessment.”
RELEVANT PROVISIONS
Permanent impairment
Section 7.21 of the Motor Accident Injuries Act 2017 (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).[3]
[3] See section 7.21 of the MAI Act.
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Version 9.3 of the Guidelines applies to the Review. Part 6 deals with the assessment of permanent impairment.
Causation of injury
It is necessary for the Panel to consider whether the accident caused or contributed to the claimant’s physical injuries.
The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines.
The provisions state:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (the Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following;
(a)the alleged factor could have caused or contributed to the worsening of the impairment, which is a medical determination, and
(b)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.”
Further, the provisions of the Civil Liability Act 2002 apply, in particular ss 5D and 5E.
FINDINGS
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.[4]
[4] Section 7.26(6) of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[5]
[5] Section 7.26(7) of the MAI Act.
The Panel notes the above re-examination report of Medical Assessor Moloney. The Panel reconvened on 29 August 2025 and discussed the re-examination report findings before collectively making the below determinations.
Causation and diagnosis
Cervical spine – soft tissue injury
There is documentation that Mr Hamidi sustained a soft tissue injury to his cervical spine in the subject accident. It was recorded by the treating general practitioner (GP) and investigated radiologically. This was also noted by the treating orthopaedic surgeon
Dr Maniam and pain specialist Dr Mir. The Panel accepts that Mr Hamidi sustained a soft tissue injury to his cervical spine in the subject accident. At the time of the examination by the Panel, there was no dysmetria on testing range of movement, no guarding on palpation and no signs of radiculopathy or non-verifiable radicular complaints that conformed to a dermatomal pattern in the upper limbs. Assessor Kenna recorded slight dysmetria and
Dr Bodel found dysmetria but this was not apparent at the time of the Panel’s examination.
The Panel’s findings give a classification DRE category l which is 0% WPI.
Left shoulder – soft tissue injury
It was also recorded in the clinical notes by the treating GP that Mr Hamidi had left shoulder pain immediately after the accident and also noted by the treating specialist. The Panel has determined that there was a soft tissue injury to the left shoulder sustained in the subject accident. Impairment is best measured by range of movement. Medical Assessor Kenna came to a similar conclusion. Dr Bodel used the same range of motion methodology but his findings resulted in a higher impairment value.
At the time of the examination by the Panel, there was 4% upper extremity impairment (UEI). Using table 3 of AMA 4 Guides, 4% UEI becomes 2% WPI.
Left knee
The first recording of the left knee injury due to a bump on the dashboard was by Dr Bodel in a medico-legal report followed by a similar history by Medical Assessor Kenna. In his history given to the Panel’s Medical Assessor, Mr Hamidi states that he was limping after the accident and this was noted some time afterwards by Professor Al Muderis on a casual observation.
The Panel does not accept that the claimant sustained an accident-related aggravation of pre-existing condition including medial meniscal tear and need for partial meniscectomy.
Had the claimant suffered a medial meniscal tear or an aggravation of his previous condition, the Panel would have expected complaints or symptoms in the clinical notes of the treating GP or by Dr Maniam, the treating orthopaedic surgeon who examined Mr Hamidi five months after the accident.
Professor Al Muderis and his colleagues who saw Mr Hamidi on numerous occasions in 2022 and 2023 do not make any reference to the motor accident as being the cause or a contributing factor to the claimant’s knee symptoms.
While Dr Bodel and Medical Assessor Kenna were either given a history or believed that the claimant’s left knee may have impacted the dashboard at the time of the motor accident, this documentation is dated some three years after the motor accident.
On balance, the Panel cannot accept that the motor accident caused or contributed to the claimant’s left knee symptoms. The symptoms may have returned without trauma as noted by Professor Al Muderis or may have been aggravated in the unfortunate fall in the seven or so weeks following his self-funded meniscus repair.
Summary of injuries referred by the parties
The following injuries were caused by the motor accident:
· cervical spine – soft tissue injury, and
· left shoulder – soft tissue injury.
The following injuries were not caused by the motor accident:
· left knee – aggravation of pre-existing condition including medial meniscal tear and need for partial meniscectomy with no visible scarring.
CONCLUSION
Mr Hamidi’s degree of permanent impairment as a result of the motor accident is assessed at 2% WPI, which is not greater than 10%. The Panel therefore revokes the certificate of Medical Assessor Kenna.
The new certificate is located at the front page of this decision.
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