Allianz Australia Insurance Limited v Hamze
[2025] NSWPICMP 134
•3 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Hamze [2025] NSWPICMP 134 |
CLAIMANT: | Mahmoud Hamze |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Sophia Lahz |
MEDICAL ASSESSOR: | David McGrath |
DATE OF DECISION: | 3 March 2025 |
DATE OF AMENDMENT: | 17 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; assessment of degree of permanent impairment; multiple soft tissue injuries; reasonable cause to suspect medical assessment was incorrect in a material respect; claimant working 3-4 days a week as a panel beater; Held – Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | REPLACEMENT CERTIFICATE OF DETERMINATION ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Replacement Certificate issued under s 7.23(1) of the Motor Accident injuries Act 2017 1. The Panel revokes the certificate of Medical Assessor Mohammed Assem dated · right shoulder – 2% whole person impairment – soft tissue injury; · right wrist – 1% whole person impairment - soft tissue injury, and · right knee – 2% whole person impairment – knee cap trauma with patello-femoral pain and crepitus. |
STATEMENT OF REASONS
INTRODUCTION
The claimant is a 54-year-old man who was injured in a motor vehicle accident which occurred on 30 April 2021. The claimant lodged an application for personal injury benefits and thereafter it was noted that the claimant had sustained a non-threshold injury.
The claimant sought a concession from the insurer that he sustained injuries which exceed 10% whole person impairment (WPI). The insurer, after a review, declined to make this assessment and thereafter the claimant was referred to Medical Assessor Mohammed Assem for an assessment of WPI.
In an original assessment dated 14 November 2023 Medical Assessor Assem certified that the claimant’s injuries were not stable to the point where an assessment of WPI could be made. Thereafter the claimant was again examined by Medical Assessor Mohammed Assem and, in a certificate dated 21 August 2024, determined that the claimant sustained an 11% WPI as a consequence of the subject motor vehicle accident.
The insurer sought a review of this determination. In a certificate dated 16 October 2024, the President’s delegate Tajan Baba, determined that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect and accordingly, the matter was referred to this Medical Review Panel.
Directions were issued by the Panel on 22 October 2024 to ensure that all material which was before Medical Assessor Assem was before the Panel. This material has now been uploaded to the portal. The Panel met on Monday 13 January 2025 at 4.00pm to further consider the matter. It was determined that there would be a need for both medical examiners to examine the claimant and thereafter to review the findings on examination at a further conference.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/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.
Sections 58 and 60 of the MAC Act together with cls 1.5-1.7 of the Guidelines set out the procedures for referral to one or more Medical Assessors and the principles to be applied at such assessments.
The claimant attended the Commission’s Suites on 13 February 2025 punctually for medical examination which took two hours. Mr Ali Hammoud CPN5JP55K (Arabic interpreter) assisted throughout the interview and examination. Mr Hamze is now aged 54/left-handed and was born in Lebanon. He has lived in Australia for 24 years and currently residing at Granville with his wife and family. He has not worked in any capacity since the subject 2021 motor accident.
Pre-accident medical history
At the time of the 2021 motor accident, he said he had been working 3-4 days per week as a panel beater (4WD vehicles) for an employer (duration of employment a few months at least). He had been doing so well in the role that he said the employer had recently offered him full-time work which he intended to take, until the subject motor accident intervened. He said he had been doing all of the usual physically demanding jobs required of panel beating such as heavy lifting and crouching. He said there were no ongoing physical effects from any injuries sustained in the 2014 motor accident.
He reported to have been physically fit and well before the motor accident, and denied any physical symptoms at the neck, back, shoulders or knees before the subject motor accident of 2021.
He denied history of diabetes, heart disease, hypertension, elevated cholesterol or else heart disease. He said he had never smoked and did not consume any alcohol.
On specific enquiry, he confirmed his involvement in an earlier (2014) motor accident. At the time, he had been a driver stationary at a red light when his car was rear ended by a “fast” travelling vehicle. Police and ambulance did not attend. He said he and the other driver could exit the vehicles and exchange details. Both vehicles were drivable. He said that after details were exchanged the other driver promptly left the scene.
He said he had trouble recollecting now all details of events inclusive of whether he attended hospital. He did see his general practitioner (GP), received painkillers and attended physiotherapy and was then “able to get on with his life”. He was off work for a period although he said he could not recall the duration of work incapacity. He said that he had been a self-employed panel beater before the initial motor vehicle accident of 2014.
History of the motor vehicle accident
Mr Hamze confirmed his involvement in the 2021 subject accident. At the time, he had been the restrained driver proceeding along a highway in Sydney at the speed limit when a vehicle unexpectedly emerged from the right causing a front end collision with his Toyota Yaris vehicle. (The Medical Assessors noted photographs depicting significant front end damage to the front end of the Yaris vehicle.) It was also noted that the driver and passenger airbags had deployed at impact. He said there had been a front seat passenger as well as another passenger travelling in the rear.
After the accident, he said he felt a “big shock”. The airbags had deployed to his face and he said that both the right wrist and right shoulder hit something inside the cabin, likely the pillar. He said his forehead struck the windscreen. There was however no loss of consciousness though he felt shocked. The right knee struck the dashboard according to the claimant.
Immediately after the accident, he said there was pain in the right face, neck, shoulder and knee. On specific enquiry, he added that the lower back had also been painful.
Police officers “passing by” were able to remove the doors from the vehicle and pull him from the wreckage. He felt dizzy and he recalled being physically supported by the emergency workers.
An ambulance was then called and he was checked over. His uncle then arrived at the scene and he was conveyed home. Due to widespread pain affecting his body, he later attended the Auburn Hospital where he said that he remained for about six hours. At the time, he said there was pain in the right wrist, right shoulder and head and “so much pain”. At hospital, he was vague about events although he recalled lying in bed, receiving analgesia and there had also been some discussions about possible concussion. Some scans were undertaken although he could not recall of which body parts due to presence, he said of “too much pain”.
History of symptoms and treatment
Mr Hamze told the Medical Assessors that he consulted his GP a few days later, receiving painkillers whilst also being referred to a “specialist”. Dr Maniam’s name was mentioned although he said he consulted multiple doctors, the names of whom he can no longer recall. He was also referred to physiotherapy where he received treatment of painful neck, right shoulder, right wrist and knees R>L. He said he attended physiotherapy paid for by insurer for (possibly) up to two years. It was hard to remember. He is still attending physiotherapy which he self-funds. He said he only receives a “little bit” of “short term” effect from physiotherapy.
He said the right shoulder was his biggest problem with scans of this region revealing ruptured tendons. He recalled receiving approximately three injections to the right shoulder with transient benefits on pain. Dr Maniam recommended surgery on the right shoulder although at the same time it was “too complicated” and there were no guarantees given that the right shoulder could be fixed by the proposed surgery. Consequently, Mr Hamze was not overly keen to proceed with the surgery on the right shoulder.
Dr Maniam advised him that he needed surgery on the knees although he could not elaborate on the nature of the proposed surgery, other than to say it was the kind of surgery that would generally be done in older people. The right knee is the main problem. Scans have shown patellar maltracking and the history of symptoms is suggestive of patellofemoral symptoms.
Unfortunately, symptoms have persisted in all injured areas since the motor accident. The right shoulder is the most affected with the right knee following in terms of symptom intensity. He said he was unable to sleep due to right shoulder pain and he cannot walk properly due to right knee pain.
He is presently seeing a naturopath or similar complementary practitioner who provides massage and herbal creams with transient benefits on the right knee and right shoulder. He also regularly sees his GP. His current medications are Panadeine Forte, Mirtazapine, Voltaren and Nexium.
The Medical Assessors noted mention of right non-healed capitate fracture in radiology reports (bone scan and right wrist MRI 2023) and also acute right supraspinatus tear on 2023 shoulder MRI although the claimant could not shed any light on this. The Medical Assessors noted that a right-sided supraspinatus tear (chronic) had already been present on MRI performed in 2021. On 4 May 2021, an X-ray and ultrasound of the right wrist showed only some fluid around the extensor tendons. On 26 August 2021, an MRI of the right wrist showed only some degenerative change of the TFCC and mild synovitis of the wrist extensor tendons. There was no reference to any capitate fracture non-healed or otherwise (or else avascular necrosis of this bone) at the time.
He denied any acute injury to either the wrist or shoulder in 2023. In fact, aside from the subject 2021 motor accident, he could not recall any specific injuries/re-injuries affecting either right shoulder or else the right wrist although the Panel assessors are aware that after the motor accident of 2014 there was reduced range of bilateral shoulder motion which a Review Panel in 2017 deemed unrelated to the 2014 motor accident. However, the claimant was steadfast in stating that at the time of the 2021 motor accident, he was not experiencing any physical problems or else pain anywhere in the body.
Review of documentation
The Panel considered the documents provided in the Application and Reply as well as the additional late documents.
Current symptoms
Neck
He complains of right-sided neck pain, facial and periocular pain present since the accident but worse for the last two months. Neck pain radiates to the right shoulder girdle and he complains of right hand weakness and episodic numbness over the right thenar eminence as well as involving the index and middle fingers.
Further there can be shooting pain in the right shoulder and pain involving both the trapezius and deltoid. He tends to sleep on the left side due to the right shoulder discomfort. He is unable to easily lift the right arm beyond the horizontal and despite medical records stating to the contrary, he said he could not remember being able to lift the right arm overhead since the motor accident.
He denied any problems at the left shoulder.
There is right dorsal wrist pain worse on making a fist and with rotating the forearm. He said that the right wrist is generally “hard to move”.
He experiences non-radiating low back pain though this is mainly an issue at night whilst he is in bed. He said though that he is generally reluctant to move his lower back due to exacerbation of right shoulder pain with grabbing sensation in the right side of the neck and shoulder.
There is frequent throbbing anterior right knee pain as well as pain over the medial and lateral joint lines. He reported inability to kneel and also that walking was very painful. The knee does not collapse although there is reliably pain on movement, especially severe with walking and standing.
He does not report any particular pain at the left knee.
He said he was unable to work as a panel beater (on specific enquiry) because he cannot kneel nor hold items easily in the right hand.
He said he does nothing much at home aside from watch TV, lie on the couch, visit the local café or else walk to the local park.
He plays no sport and expressed some concern about > 20 kg weight gain since the accident.
Clinical examination
The Medical Assessors observed that he is a tall, overweight man with central adiposity. At the commencement, he was asked to do his best with all requested movements or else the Panel would be unable to make a valid assessment of WPI.
However, there were frequent pain behaviours, pain complaints and protective postures during the physical examination with the claimant requiring significant encouragement to move. He was reluctant to move due to potential induction of pain especially in the right upper limb/shoulder.
There was restricted range of neck motion with ½ normal flexion/extension and ½ normal lateral flexion to either side and rotation to either side. There was no dysmetria. There was no well localised tenderness and no guarding/spasm. There were no non-verifiable radicular complaints in the upper limbs. The right arm measured 34 cm whereas the left arm 10 cm above the epicondyles measured 33 cm despite left-handedness and the right side being the most symptomatic. The right forearm measured 27.5 cm 5 cm below the elbow whereas the left forearm measured 28 cm.
Upper limb reflexes were present symmetrical. There was normal left upper limb sensation whereas there was L>R forearm sensation and L=R sensation in the arms and hands i.e. non-anatomical, non-dermatomal distribution. Power in the upper limbs was unremarkable aside from pain-related giving way of the right upper limb.
There was mild disuse wasting around the right shoulder girdle. The left shoulder was well muscled. There was a full range of pain free left shoulder motion. He was reluctant to move the right arm generally in case of shoulder/trapezial pain, requiring much encouragement to do so. There was some tenderness in the right supraspinous fossa whereas the anterior shoulder/bicipital region was non-tender.
At the right shoulder, there were actively (at best) 70 degrees of abduction, 60 degrees of flexion, 30 degrees of extension, 40 degrees of IR, 20 degrees of adduction and 60 degrees of ER. There was variability of active right shoulder motion which the claimant was said due to high pain levels. When pain was intense, he told the examiners that he tried not to move the right shoulder in case of pain. There were positive impingement signs at the right shoulder with painful internal rotation.
It was put to the claimant that the documents indicated marked variability of right shoulder motion. He said this was due to pain, and as noted, he could not remember any instance where he had been able to lift the right arm beyond shoulder level, despite records suggesting otherwise at various stages.
There was FROM (active) of the right/left elbow and forearm i.e. flexion/extension with full pronation/supination on the left, full pronation on the right and ½ normal range of right supination. There was full range of active motion at the left elbow, wrist and hand.
He was reluctant to move the right wrist in case of local dorsal pain as well as more proximal pain at the shoulder. With considerable encouragement, he could eventually actively flex the wrist to 40 degrees and extend to 60 degrees with 20 degrees of radial deviation and 30 degrees of ulnar deviation. Initially, he was reluctant to flex the wrist although latterly, he was more concerned to avoid wrist extension. He could not explain reasons for the change beyond the fact that with the examination the right wrist pain/discomfort was steadily increasing.
He was initially very reluctant to move the lower back at all in any direction in case of inducing right shoulder pain. Eventually with encouragement, he demonstrated ½ active flexion/extension and 1/3 active lateral flexion to either side. There was no dysmetria and there were no lower limb non-verifiable radicular complaints. There was no well localised tenderness at the lumbar spine and no guarding/spasm.
SLR was 70 degrees bilaterally and negative for sciatic symptoms i.e. negative neural tension tests. There was no measurable wasting at the thighs 10 cm above the patellae 54 cm and no measurable calf wasting at maximal mid girth 41 cm. Knee and ankle jerks were present and symmetrical. Plantar responses were negative bilaterally. There was generalised R>L lower limb sensation which was not anatomical. There was mild pain related weakness in both legs. The knees moved through 0-130 degrees actively. There was bilateral crepitus, painful PF manoeuvres on the right though painless on the left. The knees were stable.
Conclusions – whole person impairment
The contemporaneous evidence (COC) May 2021 indicates symptoms in all areas aside from the lower back. Given the nature of the accident, the Panel accepted there were soft tissue injuries of the neck, lower back, right shoulder, right wrist and right knee.
The Panel noted a photograph of the claimant taken soon after the accident with a hot pack applied to the right shoulder and visible bruising/swelling at the right knee.
The clinical findings at the cervical spine were consistent with DRE category I or else 0% WPI (Table 6.7 MAG).
The clinical findings at the lumbar spine were consistent with DRE category I or else 0% WPI (Table 6.7 MAG).
The Panel was unable to use to right shoulder motion to assess WPI due to high levels of variability ranging reportedly from full/nearly full to severely restricted ever since the motor accident. The Panel noted the presence of supraspinatus tear on imaging although the level of restriction was nonetheless felt disproportionate and there were significant pain behaviours consistent with functional overlay.
The Panel decided to deem right shoulder WPI by analogy referring to mild AC joint crepitus (Table, page AMA 4) i.e. 10% joint impairment, AC joint (maximum of 25% UEI) Table, page AMA 4 i.e. 10% of 25% gives 3% UEI or else 2% WPI post rounding for the right shoulder.
The panel noted that although there had been a right wrist soft tissue injury from the motor accident, matters by 2023 had become complicated due to the development of unhealed fracture at capitate or else avascular necrosis. The claimant denied any further/additional injury of the right wrist to cause a fracture described on 2023 imaging but not reference on 2021 imaging. The Panel found the latter condition not due to the 2021 motor accident given that the MRI of the right wrist on 26 August 2021 showed no acute bony trauma of the right wrist, thus this condition is unrelated and developed later on. In deference to the original right wrist injury, the Panel deemed 1% WPI whilst noting that similar to the right shoulder, there was difficulty in persuading the claimant to move the right wrist in case of pain. At the wrist, the Panel was unable to use range of motion to determine WPI due to marked pain-related variability in movement. Accordingly, the Panel decided to assess the wrist WPI by analogy with reference to Table 20 page 59 AMA 4 “Impairment due to Synovial Hypertrophy” deeming the “mild” category i.e. 10% joint impairment and then referring to the distal radioulnar joint with maximum of 20% UEI (Table 18 page 58). 10% of 20% UEI is 2% UEI or else 1% WPI (Table 3, page 20 AMA 4).
At the right knee there was full range of motion, not attracting WPI although there were painful PF manoeuvres providing 2% WPI per foot note of the Arthritis table on page 83 of AMA 4.
There was only painless crepitus of the uninjured left knee so no deduction was made.
Conclusion
The claimant has suffered an injury to the right shoulder, right wrist and right knee. He sustained a 2% WPI consequent on the injury to the right shoulder, 1% WPI consequent on the injury to the right wrist and a 2% WPI consequent on the injury to the right knee giving rise to a WPI of 5%.
The Panel finds that the claimant did not sustain a WPI consequent on the injury to the neck, lower back, left shoulder and right wrist.
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