Allianz Australia Insurance Limited v Nassar
[2024] NSWPICMP 495
•22 July 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Nassar [2024] NSWPICMP 495 |
CLAIMANT: | Ceceilia Nassar |
INSURER: | Allianz Australia Insurance Ltd |
REVIEW PANEL | |
PRINCIPAL MEMBER: | John Harris |
MEDICAL ASSESSOR: | Sophia Lahz |
MEDICAL ASSESSOR: | Leslie Barnsley |
DATE OF DECISION: | 22 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); whole person impairment (WPI); significant T-bone collision causing T2 fracture and vertebral artery dissections; claimant’s qualified doctor not authorised under section 7.52 of the MAI Act and the Motor Accident Guidelines to provide evidence; no claim made for assessment of shoulders based on either direct injury; Nguyen v Motor Accidents Authority of New South Wales & Anor; Mandoukos v Allianz Australia Insurance Ltd; shoulders not assessed; Held – T2 fracture assessed as DRE Category II; Cervical spine assessed at DRE Category II; Lumbar spine condition not caused by motor accident; Medical Review Panel satisfied of shoulder impairment but not assessed as part of medical dispute; 10% WPI; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: The Panel revokes the Medical Assessment Certificate dated 6 January 2024 and certifies that the following injuries caused by the motor accident gives rise to a permanent impairment not greater than 10%: · Head – soft tissue resolved · Cervical spine · Thoracic spine |
REASONS
BACKGROUND
On 1 October 2020 Ms Ceceilia Nassar (the claimant) was injured in a motor accident. The claimant proceeded through a green light when the insured vehicle entered the intersection colliding with the right side of the claimant’s vehicle.
Allianz Australia Insurance Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Nassar any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Ms Nassar’s “degree of permanent impairment 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 MAI Act.[1]
[1] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA4). Where there is any difference between AMA4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Fitzsimons and dated 6 January 2024 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for which the review is sought.[3]
[3] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
Prior to the examination the parties were advised as follows:
· The report of Dr Guirgis is ruled inadmissible pursuant to s 7.52 of the Motor Accident Injuries Act, 2017. Reasons will be provided in the decision.
· No assessment of impairment will be made of any permanent loss of range of movement of the shoulders unless the insurer consents. The insurer is to advise whether it consents to the Panel including a permanent impairment assessment of the shoulders.
The insurer subsequently advised that it objected to the Panel assessing any impairment of the shoulders.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[8] In Raina v CIC Allianz Insurance Ltd[9] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[8] See s 3B(2) of the CL Act.
[9] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor noted the following:[10]
“There was no obvious material inconsistency. However the reason why her neck pain and headaches have been deteriorating is not entirely clear, given that she informed her treating physician (Dr Burrell) that she was well in early 2021. That said, it is evident that there was very forceful trauma around the cervical and thoracic spine and related musculature, and I note the radiologist’s comments on the initial CT cervical angiogram. The apparent anterior spondylolisthesis at C4/5, in the same area as vertebral artery narrowing, was considered to be of possible significance in the context of trauma. That being the case, it may be the source of ongoing or even worsening neck pain and referred headache.”
[10] Insurer’s bundle, p 89.
The Medical Assessor found that the vertebral artery dissections can occur in the context of forceful whiplash type injury and was consistent with a history of nausea/vomiting developing after the motor accident. A finding is also made of severe soft tissue trauma to the cervical spine and probable mild traumatic spondylolisthesis at C4/5.
The Medical Assessor found shoulder movement impairment secondary to severe cervical soft tissue injury and assessed that impairment pursuant to the Nguyen principle. The right upper extremity was assessed at 5%, the left upper extremity at 1% and the fracture in the thoracic spine at 5%. This resulted in a combined whole person impairment of 11%.
MATERIAL BEFORE THE PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing conditions
On 17 July 2019 the claimant was referred by Dr Mankarious (GP) to Dr Magdic for recurrent left blurred eye and migraines.[11]
[11] Insurer’s bundle, p 66.
Dr Magdic, optometrist, provided a report dated 24 July 2019 noting visual changes in the left eye over the past year followed by a mild headache. The doctor noted that the claimant was a long-term headache sufferer, and these were managed with analgesics.
Medical records post-accident
The ambulance record included the following history:[12]
“Pt stated was taking off @ intersection when bus ran red from L) hand side and car collided nose to nose at approximately 10 KPH. Pt doesn’t recall head knock, NIL LOC. Pt extricated from car with assistance. O/A pt standing upright, walked to ambulance … O/E pt GCS 15, c-spine clear, c/o 6/10 “muscular: like pain across all aspects of R) and L) chest, bilateral, lateral aspects of neck, and mid back pain. Pt has small haematoma on R) side forehead, bruising to R) side clavicle. Pt c/o headache and mild nausea. Pt denies SOB, dizziness, visual disturbances, abdo pain…. No neurological deficits.”
[12] Claimant’s bundle, p 122.
The hospital discharge plan noted concerns of soft tissue injuries following a motor vehicle accident with normal x-rays and blood results.[13] There were complaints of pain and tenderness over the right shoulder, both clavicles, lateral neck over left-hand side and epigastric pain.
[13] Claimant’s bundle, p 128.
The claimant returned to hospital on 5 October 2020 complaining of headaches and nausea with generalised neck pain.[14] The claimant was discharged on 7 October 2020 with diagnosis of bilateral vertebral artery dissections and T2 fracture.[15]
[14] Claimant’s bundle, p 155.
[15] Claimant’s bundle, p 161.
The CT scan of the brain dated 5 October 2020 showed no acute intracranial haemorrhage or lesion and was otherwise normal.[16]
[16] Claimant’s bundle, p 70.
The CT scan of the cervical spine dated 5 October 2020 showed moderate facet joint arthropathy of the right C4/5 facet with subchondral cyst formation and mild anterior anterolisthesis of C4 on C5 by 2 mm.
The CT aortic arch showed focal narrowing of the right vertebral artery and left vertebral artery within the C4 foramen.[17]
[17] Claimant’s bundle, p 70.
The MRI scan dated 6 October 2020 showed a minimally displaced fracture through the anterior superior corner of T2 vertebral body with associated some subtle superior endplate wedging and marrow oedema involving the superior half of the T2 vertebral body. The fracture did not extend to the posterior cortex.[18] The scan also showed a grade 1 anterolisthesis of C4/5 with moderate right C4/5 facet arthrosis. The scan also confirmed several regions of short segment eccentric narrowing of both vertebral arteries.
[18] Claimant’s bundle, p 72.
A certificate of capacity dated 7 October 2020 referred to the motor vehicle accident causing a T2 fracture and bilateral vertebral artery dissection.[19]
[19] Claimant’s bundle, p 317.
The clinical note of the GP dated 8 October 2020 noted the motor accident. On 15 October 2020 the GP noted a tender left chest wall and soft abdomen.[20]
[20] Insurer’s bundle, p 44.
The claimant completed a claim form on 9 October 2020 noting the motor accident caused a T2 fracture and bilateral vertebral artery dissection.[21]
[21] Insurer’s bundle, p 101.
The thoracic X-ray dated 25 November 2020 showed the T2 vertebral body obscured by shadows of overlying structures with no definite height loss.[22]
[22] Claimant’s bundle, p 74.
Associate Professor Burrell, neurologist, provided a report dated 26 November 2020.[23] The doctor noted that the claimant was found to have a T2 fracture and imaging suggesting the presence of bilateral vertebral artery dissection. Since discharge the claimant had been reasonably well with some pain in the upper back and shoulder triggered by twisting movements. Antiplatelet therapy was commenced at hospital given the possibility of traumatic vertebral artery dissection and recommended to cease after six months.
[23] Claimant’s bundle, p 100.
Associate Professor Burrell provided a further report dated 9 February 2021 noting the technical quality of the recent CT angiogram was inadequate.[24] The claimant continued with neck pain and headache.
[24] Claimant’s bundle, p 109.
Various certificates of capacity provided by the GP referred to a T2 fracture and bilateral vertebral artery dissection.[25]
[25] Claimant’s bundle, pp 321-338.
A CT Carotid angiogram dated 12 May 2021 showed the vertebral arteries enhancing normally with no evidence of dissection.[26] The scan showed the chronic fracture of the anterior superior corner of the T2 vertebral body associated with minor reduction in vertebral body height.
[26] Claimant’s bundle, p 110.
On 20 May 2021 Associate Professor Burrell noted recent CT angiogram showed the dissection had healed in the vessel returned to normal appearance.[27]
[27] Claimant’s bundle, p 115.
In a report dated 16 June 2022 Dr Mankarious noted that progressive x-rays of the thoracic spine showed no height loss and suggested healing. The doctor also noted that the claimant is suffering from neck pain headaches with ongoing psychological issues.[28]
[28] Insurer’s bundle, p 29.
In a report dated 7 September 2022 Associate Professor Burrell noted the most recent CT angiogram reviewed in May 2021 revealed no evidence of residual dissection.[29] The doctor noted the claimant had variable neck and head pain and describe diffuse tenderness in the right side of the neck and shoulder.
[29] Insurer’s bundle, p 26.
On examination the doctor noted that the right shoulder and neck musculature were diffusely tender with reduced movement.
An Allied Health Recovery Request dated 14 April 2023 noted ongoing cervical spine pain and thoracic spine pain with referred pain into the shoulder blades.[30]
[30] Claimant’s bundle, p 310.
Qualified opinions
Dr Andrew Keller, occupational physician, was qualified by the insurer and provided a report dated 3 February 2023.[31]
[31] Insurer’s bundle, p 20.
Dr Keller noted examination of the cervical spine demonstrated a full symmetrical range of motion with no spasm. Examination of thoracic, lumbar spine and lower limbs were normal.
Dr Keller assessed impairment of the thoracic spine due to the T2 fracture at 5% whole person impairment.
Dr Guirgis provided a report dated 25 October 2023.[32] We have not summarised the report as it is inadmissible pursuant to s 7.52 of the MAI Act.
[32] Claimant’s bundle, p 61.
Other medical assessments
Medical Assessor Roberts diagnosed the claimant with somatic symptom disorder.[33]
[33] Insurer’s bundle, p 115.
SUBMISSIONS
Claimant’s submissions dated 12 May 2023[34]
[34] Claimant’s bundle, p 10.
The claimant submitted that the physical injuries caused by the motor accident were a T2 fracture, bilateral vertebral artery dissection, injury to the head, cervical, lumbar and thoracic spines and scratches and bruises. Various submissions were made about psychological conditions caused by the motor accident. We do not intend to summarise that portion of the submissions.
The claimant referred to the reports from the ambulance service and the emergency Department discharge referral from Concord Hospital. It was noted that the claimant had received treatment from Associate Professor Burrell and Dr Mankarious as well as various psychological treatment.
The claimant referred to the report of Dr Guirgis dated 25 October 2022 which assessed impairment at 15% based on injuries to the cervical and lumbar spines and a T2 fracture.
Claimant’s submissions dated 13 March 2024[35]
[35] Claimant’s bundle, p 3.
These submissions were filed opposing the review of the medical assessment.
The claimant referred to the detailed reasons in the medical assessment certificate. She submitted that the Medical Assessor did not misapply the Nguyen principle.
Insurer’s submissions 2 June 2023[36]
[36] Insurer’s bundle, p 2.
The insurer noted that Dr Guirgis is not a SIRA authorised health practitioner and, pursuant to s 7.52 of the MAI Act, the report is inadmissible.
The insurer referred to s 7.20(3) of the MAI Act and clause 14 of PIC 6 and submitted that the claimant did not provide any admissible evidence support the assertion that the referred physical injuries were greater than 10% impairment.
The insurer noted that the claimant sought an assessment of the head, bilateral vertebral artery dissection, cervical spine, thoracic spine, lumbar spine, and psychiatric condition.
The insurer noted that the claimant only relied on the report of Dr Guirgis and that was inadmissible.
The insurer referred to the certificates of capacity diagnosing the claimant with bilateral vertebral artery section and the Allied Health Recovery Request dated 14 April 2023. The CT Carotid angiogram dated 5 October 2020 noted several regions of vertebral artery focal narrowing bilaterally. On 20 May 2021, Associate Professor Burrell commented that the dissection had healed, and the artery was normal.
The insurer noted that Associate Professor Burrell, in a report dated 7 September 2022, reported chronic shoulder and neck pain and opined that the T2 fracture and right vertebral artery dissection had healed.
The insurer accepted that the claimant had sustained a bilateral vertebral artery dissection which had healed which did not give rise to any permanent impairment. These submissions also applied to any injury to the cervical spine.
In respect of the thoracic spine injury the insurer noted:
· various certificates diagnosed a T2 fracture;
· MRI scan dated 6 October 2020 noted an acute fracture of the T2 vertebral body;
· X-ray the thoracic spine dated 25 November 2020 which did not identify height loss at the T2 vertebral body;
· Report of Dr Mankarious 16 June 2022 which noted the thoracic fracture was healing and progressive x-rays showed no height loss of the relevant vertebrae;
· the comments by Associate Professor Burrell in a report dated 7 September 2022 which noted the healed T2 vertebral body fracture, and
· the opinion of Dr Keller that the T2 fracture had healed and gave rise to a 5% whole person impairment.
In respect of the alleged injury to the lumbar spine, the insurer noted:
· the absence in the various certificates of capacity completed by Dr Mankarious and the Allied health recovery request dated 14 April 2023;
· Dr Keller opined there was no injury to the lumbar spine, and
· the absence of treating evidence or radiological investigations to the lumbar spine.
The insurer noted the only reference to a lumbar spine injury is found in the report of Dr Guirgis dated 25 October 2022 which is inadmissible in the proceedings pursuant to section 7.52 of the MAI Act.
Insurer’s submissions dated 7 November 2023[37]
[37] Insurer’s bundle, p 33.
The insurer noted that the records of Concord family doctors and a clinical entry on 17 July 2019 and a report of Dr William Magdic dated 24 July 2019 referred to left eye issues with headaches and referenced the claimant as a “long term headache sufferer”.
Insurer’s submissions dated 21 February 2024[38]
[38] Insurer’s bundle, p 72.
These submissions were filed in support of the application to review the medical assessment.
The insurer submitted that the Medical Assessor assessed the shoulders pursuant to the Nguyen decision. It was noted, pursuant to the reasoning in Dominice v Allianz Australia Ltd[39] that it was necessary to show that the “the secondary injury is caused by or related to the primary injury”.
[39] [2017] NSWCA 171 at [56].
The insurer noted that the claimant did not allege a shoulder injury caused directly or indirectly by the accident and did not refer the body part for assessment. Furthermore, there was no evidence submitted by either party suggest a shoulder injury.
The insurer submitted:[40]
“In summary, the insurer submits that Assessor Fitzsimons has misinterpreted relevant common law principles and gone beyond the parameters of the assessment by making a decision on issues that were not referred for her to assess. As such, the Assessor has misunderstood the statutory task and acted ultra vires, and her assessment is accordingly, erroneous.”
[40] Insurer’s bundle, p 75.
The insurer otherwise noted that the Medical Assessor only noted symptoms in the right upper extremity and there was no mention of any symptoms or impairment involving the claimant’s left shoulder.
The insurer otherwise referred to cl 6.51 of the Guidelines and submitted that there should have been a deduction in respect of any loss of range of motion of the left shoulder.
The insurer noted that Dr Keller found no loss of range of motion of either shoulder and there was no discussion by the Medical Assessor explaining the deterioration in the condition and how it was caused by the motor accident.
The insurer otherwise submitted that there was no discussion by the Medical Assessor of the issue of permanency as required by cl 6.19 of the Guidelines.
The insurer submitted that the Medical Assessor failed to consider inconsistencies pursuant to clause 6.41 of the Guidelines. It noted the apparent deterioration in the claimant’s condition and the possibility that this was related to pathology at C4/5.
RE-EXAMINATION
Ms Nassar was examined by Medical Assessor Lahz on 4 July 2023. The examination report is as follows:
“I saw Ms Nassar at the PIC Suites on 4/7/24 at 3,30pm, the duration of the medical assessment being 90 minutes.
I obtained the following history from Ms Nassar who is aged 39 and right-handed. She was born in Australia and comes from an Italian family although she does not speak Italian. Her husband is of Palestinian descent.
She reported excellent general health aside from propensity for perimenstrual headaches. She denied any neck, back or else shoulder pain before the motor accident. Ms Nassar is a non-smoker and non-drinker.
She has been married to Phillip Nassar for 16 years and they have two children, a daughter aged 10 and son 13. The family lives in a house at Concord where Ms Nassar has a home office, enabling her to work in her husband’s biomedical systems business. She has worked in the family business for at least 10 years. She explained that she obtained year 10, and then attended TAFE to obtain qualifications in tourism. However, she could then not obtain work in that field, and then spent about 10 years working in the retail sector until she married. Subsequently, she was employed in the family business as an office manager. She has no formal skills or qualifications besides bookkeeping skills acquired whilst working in the family business and the TAFE travel arrangements course, mentioned above.
Prior to the subject motor accident 1/10/20, Ms Nassar worked full time as an office manager in her husband’s business. However, since the motor accident, neck and right shoulder girdle pain precludes office work beyond 2-3 hours daily, three days per week. She now works only casually, depending on prevailing symptoms.
Ms Nassar confirmed her involvement in the subject motor accident 1/10/20. At the time, it was the first day of the school holidays and she was taking her children to an appointment in a Toyota Corolla. She was restrained by a seatbelt whilst proceeding through an intersection on a green light when a bus suddenly emerged from the right, with resultant collision with driver’s front side of her vehicle. The airbags deployed and her car was written off. The force of the accident was such that her vehicle finished reportedly pointing in the opposite direction.
She remembers the accident although it happened very quickly. She did not recall hitting her head although the hospital notes refer to bruising on her forehead. Straight afterwards, she checked upon her children who were fortunately uninjured besides some complaints of neck pain and visible bruising.
Her immediate major symptoms were chest wall pain due to impact from the airbags.
There was a lot of “dust” coming from the airbag. Bystanders were concerned about potential for fire so she and the children were quickly assisted from the car. She remembers walking around at the scene and speaking with police. There was very severe chest pain which took precedence over any other symptoms at the outset.
The ambulance arrived and she was placed in a neck brace before being conveyed to nearby Concord Hospital. She only remained there for a few hours and remembers undergoing a chest x-ray showing no abnormalities. The hospital records do refer to complaints of neck and shoulder pain R>L. After a few hours, she was permitted home.
However, over the next four days, there was increasing neck pain with symptom spread toward the right trapezius/shoulder. There were also nausea and dizziness. She was feeling very unwell and spending much time lying in bed. She recalls taking Nurofen and Panadol for symptomatic relief. By 3-4 days post-accident, she still felt very unwell and moreover could not keep still due to pain severity in the neck and right trapezial region.
Her husband decided that he should take her back to hospital for further evaluation.
At hospital, further scans were undertaken, showing a T2 body fracture as well as bilateral vertebral artery dissection i.e. a “tearing” of the artery. Fortunately, brain scan showed no evidence of any stroke.
She was advised to take dual antiplatelet therapy i.e. Aspirin and Plavix for three months, pending further investigations (repeat angiography to assess if the arterial dissection had resolved).
She was in hospital on the second occasion for approximately one week before being discharged home.
A further scan was done at the three-month mark, showing little change. Consequently, she was advised to stay on the dual antiplatelet drugs. Fortunately, by early 2022, progress scan showed resolution of concerning arterial findings and she was permitted to cease the Plavix whilst remaining on long-term low dose Aspirin (100 mg).
She saw Dr Burrell, neurologist a few times in follow up and he prescribed/advised her regarding the antiplatelet treatment. She also made him aware of the persistent neck, head and upper back pain, for which he suggested that she attend physiotherapy.
Ms Nassar reports that she was off work for several months after the motor accident. She did resume work although she struggled with office-based tasks due to head and neck pain, finding it hard to concentrate.
At home, her husband noticed too that she was irritable with the children and often expressing anger. She also felt more anxious and somewhat forgetful.
The first “therapy” she received were psychological interventions which she received for around eight months. Treatment included relaxation strategies, positive self-talk and cognitive behavioural interventions such as e.g. “think before you speak”.
She reported that whilst the psychological interventions were helpful, they did not resolve all of her issues.
For a short period after the motor accident, she took Escitalopram although she has firm views against taking medication for mood and spirits and soon stopped taking this. She said that she was not anxious person before the motor accident although since, her anxiety is heightened, and she can be easily overwhelmed if there is too much happening. Her husband is very helpful around the house, gets her out walking and generally reassuring.
In late 2022, she commenced physiotherapy for the first time, attending until mid 2023 when the Insurer stopped funding it. She said too that the treatment was not making a great difference to her condition/wellbeing. Whilst having physiotherapy, there had been widespread pins and needles in the right upper limb although these have long since resolved without recurrence.
She reported that exercise interventions improved neck range of motion although they did nothing to relieve the pain in the neck and right trapezial region, her biggest problem, ongoing. She explained that she was not referred for any physiotherapy earlier because the GP wanted to ensure that the T2 fracture had fully healed.
For the first two years after the accident, the main pain was confined to the neck and right trapezial region. The latter has persisted although in the last 18 months, she has also developed pain in the upper back/interscapular region. She is perplexed about the reasons for ongoing pain when progress scans six months after the accident had all been reportedly satisfactory. The treating doctors have not provided any reason for ongoing pain.
Nearly four years after the accident, she laments that due to head, neck and upper back pain, she remains unable to do “regular things” with her family and to work full time as she had been able to do before the motor accident. Essentially, her progress has stalled. She takes Panadol (but not every day) for both headache and neck pain. On average, she takes two tablets twice, sometimes thrice weekly. She is not taking any prescription painkillers.
She also continues to take long-term low dose Aspirin (due to the vertebral dissection) per the treating neurologist Dr Burrell. She remains in follow up with Dr Burrell although when she last saw him, he suggested physiotherapy for ongoing pain, but no other specific treatment was mentioned.
Current Symptoms
There are frequent right-sided headaches of moderately severe intensity 7/10, not associated with visual symptoms, nausea or else vomiting. She usually takes Panadol when these occur. Headaches may only last a few hours although sometimes they can persist for up to two days. Sometimes, she wakes up with a headache. Generally, she finds the occurrence of headaches inconsistent and unpredictable.
She complains of constant pain in the right-sided neck and trapezius, not an ache, not like a “bruise” but instead a “deep” pain. There is occasionally some pain in the left trapezius. Her neck tends to “crack’ frequently.
More significantly, there is pain in the upper back and between the shoulder blades (6-7/10) which often parallels the symptoms in the right side of the neck and trapezial region.
There are no longer any neurological symptoms in the upper limbs.
She experiences occasional low backache on bending although otherwise there are no symptoms in the lower back.
The right-sided neck and trapezial pain is generally made worse by activity and tends to increase as the day goes on. Shopping is an activity that is guaranteed to worsen the right-sided neck and trapezial pain. She rated the pain at 3/10 at best, and then 10/10 at worst, mostly likely late in the day after activities with children and shopping trips.
She reported some difficulty day to day turning her head towards the right also with tipping her head backwards to use the washbasin as whilst washing her long hair.
She does not complete heavy chores such as vacuuming nor any chores requiring overhead/forward reach due to attendant discomfort.
Her husband generally accompanies her on supermarket trips because it is difficult to push the trolley and to complete any heavy lifting/carrying. She tends not to carry a handbag now for similar reasons. She also now avoids watching her son play basketball due to reduced sitting tolerance and some noise sensitivity.
She has difficulties with any overhead/reaching tasks due to activity related pain in the trapezial regions R>>L.
She completes as many chores as possible although family is of great assistance.
There are reduced tolerances for sitting, standing and walking due to neck and right trapezial pain.
She avoids driving due to the combined effects of neck pain and anxiety. Her husband does most of the family driving necessary. The accident occurred just around the corner from home, an area she avoids now.
She is working 2-3 hours at a time, several days per week in the office for the family business. She still does some bookkeeping. Her husband often works from home so they can take breaks, go walking or else have a coffee.
Ms Nassar’s sleep is disturbed by pain. She cannot tolerate lying on the right side and prefers sleeping on the left. She can generally fall asleep readily although she cannot stay asleep.
She does not have any particular hobbies aside from spending time with and being able to organise her children as well as help her husband in the business.
Examination
Ms Nassar was pleasant and cooperative. She was of very small, slim build with height 159 cm and weight just 47.5 kg.
She scored 24/30 on the MOCA although there was considerable hesitancy and complaints of being unable to complete simple cognitive tasks, well within the range of someone who is still doing some bookkeeping activities in a family business. There were some deficits in calculation, short term memory and verbal fluency, which were not consistent with reported abilities for limited bookkeeping, taking care of children and ongoing part time casual employment.
Gait was unremarkable and she was able to walk on toes and heels. Tandem gait was normal and sharpened Romberg was negative.
There was generalised symmetrical hyperreflexia affecting the upper and lower limbs. There was normal upper and lower limb strength. There was normal sensation over the upper and lower limbs. Plantar responses were bilaterally flexor. There was no measurable wasting of the arms 21 cm 10 cm above the elbow crease and 20 cm 5 cm below the crease. Hoffman’s tests were bilaterally negative.
Finger nose testing, rapid alternating hand movements and heel shin tests were performed normally.
There was normal facial motor strength and sensation. Eye movements were normal, and no visual deficits reported.
There was normal neck lordotic posture.
Neck movements were as follows and found to be consistent: full flexion, 2/3 normal extension, lateral flexion/rotation 2/3 normal range toward the left and ½ normal range toward the right. There was dysmetria with flexion relatively greater than extension and left-sided movements greater than rightward movements.
She indicated tenderness over the R>>L trapezial region and right lateral cervical pillar.
There was no muscle guarding or else spasm.
There were no non-verifiable radicular complaints.
Upper limb neural tension tests were negative.
There were no objective signs of cervical (upper limb) radiculopathy.
Active range of shoulder motion is shown in the following table: measured with goniometer and checked three times for consistency. Movements were found consistent and provided in the table. At the commencement of the shoulder exam (and also above for the neck) I asked her to do the best with all requested movements or else it would be difficult to draw any valid conclusions.
Right Left
Abduction
160 1% UEI Fig 41 p44 AMA4
170 0% UEI
Adduction
70 0% UEI
70 0% UEI
Flexion
150 2% UEI Fig 38 p43
160 1% UEI
Extension
50 0% UEI
50 0% UEI
Internal rotation
80 0% UEI Fig 44 p45
80 0% UEI
External rotation
80 0% UEI
80 0% UEI
I put to Ms Nassar that other assessors had found a lesser range of shoulder elevation whereas Dr Keller had found more (full shoulder movement). She noted that shoulder movements do depend on prevailing symptoms and activities recently undertaken. Ms Nassar was somewhat critical of the Dr Keller’s examination, noting that it was much briefer than the one I had just undertaken of her. Of note, I also gave her strong encouragement to move as much as possible.
On further discussion, she reported that on a daily basis there was consistently less movement available in the right shoulder compared with the left due to trapezial pain. With shoulder movements, there was bilateral trapezial pain noted during my examination although the discomfort was greater on the right. She also noted that day to day, the neck typically is more restricted on extension as well as on rightward turn. The latter causes her some concern when driving.
At the thoracic spine, there was mild normal kyphosis with tenderness of the upper and mid thoracic region between the shoulder blades. There was no muscle spasm or guarding and there were no non verifiable radicular complaints. There was satisfactory flexion and extension, performed slowly but symmetrical and three-quarter normal range. Rotation was full to either side. There was no dysmetria. There were no signs of thoracic radiculopathy.
At the lumbar spine, there was ¾ normal flexion and extension and full lateral flexion to either side. There was no tenderness and no muscle spasm or muscle guarding. There was no dysmetria. She could sit with each leg extended and SLR in supine was at least 70 degrees bilaterally without sciatic complaint. There were normal reflexes, power, sensation in the lower limbs and the plantar responses were flexor (normal). There was no lower limb wasting at either thighs or else calves. There were no non-verifiable lower limb radicular complaints.
Conclusions
Ms Nassar presented in a straightforward manner, and I accept the above clinical findings as valid. The subject accident was significant given that a bus hit her relatively small Corolla. She is a woman of slight build who is poorly muscled. It is not surprising that there was significant force applied to the neck to cause vertebral artery dissection and mechanical injury with ongoing right neck/trapezial pain associated with restricted movement as described above.
Since the accident (to the ambulance officers, to the hospital staff and beyond) there were complaints initially of bilateral shoulder pain and later of mostly right shoulder pain.
For the neck, there is dysmetria in sagittal plane with flexion disproportionately more than extension and also L>R neck movement i.e. cervicothoracic DRE II or else 5% WPI (Table 6.7 MAG, page 103).
For the thoracic spine, there is 5% WPI (DRE II thoracolumbar) for fracture involving the anterosuperior corner of the T2 vertebral body (Table 6.7 MAG, page 107’ “vertebral body fracture without radiculopathy”).
For the lumbar spine there are minimal symptomatic complaints aside from when bending over, and the clinical findings are consistent with DRE I or else 0% WPI (Table 6.7 MAG page 103).
Bot shoulders (trapezial regions) are symptomatic due to symptoms referred from the cervical spine (Nguyen), there is 3% UEI or else 2% WPI (Table 3, page 20 AMA4) for the right shoulder and 1% UEI or else 1% WPI (Table 3, page 20) for the left shoulder. (There is right-sided trapezial pain with right shoulder movement and there are similar albeit lesser left-sided findings.)
Following combination of the WPI values, there is 5% WPI for the cervical spine and 5% WPI for the thoracic spine giving 10% WPI.
Ms Nassar does not meet MAG criteria for assessment of traumatic brain injury/cerebral impairment set out in paragraph 6.164, page 113. GCS was consistently 15/15 and there was no medically verified PTA duration. She reports continuous memory from the time of the accident. Despite the vertebral artery dissection, there is no evidence that the clinical course was complicated by CVA (stroke). I note her complaints of poor memory and reduced concentration although there are other causes of cognitive complaints/symptoms besides brain trauma, inclusive of chronic pain, anxiety, low mood and sleep disturbance from all of which, she continues to suffer since the motor accident.
In summary, there is 10% WPI for the cervical spine and thoracic spine due to the subject motor accident.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[41]
[41] Section 7.26(6) of the MAI Act.
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[42] and Insurance Australia Ltd v Marsh.[43]
[42] [2021] NSWCA 287 at [40], [41] and [45].
[43] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination report provided by the Medical Assessor supplemented by the following further reasons.
The claimant purported to rely on the report of Dr Guirgis dated 25 October 2022.
Section 7.52(1) of the MAI Act provides:
“(1) In any proceedings before a court for damages or in connection with a merit review under Division 7.4, a medical assessment under Division 7.5 or the assessment of a claim under Division 7.6, evidence given by a health practitioner in relation to a medical matter concerning an injured person is not admissible unless-
(a) the practitioner is a treating health practitioner of the injured person, or
(b) the practitioner is authorised by the Motor Accident Guidelines to give evidence in the proceedings.”
Part 8 of the Guidelines provides for the appointment of health practitioners for the purposes of authorisation to give evidence under Division 7.7 of the MAI Act.
Clause 8.6 requires that the health practitioner must be authorised at the time of the examination and at the time of writing the report.
Dr Guirguis was not authorised at the time of the examination and when writing the report. We note that Dr Guirgis was authorised as and from 5 May 2024. The report dated 25 October 2022 is inadmissible.
There is common medical opinion that the claimant sustained a T2 fracture caused by the motor accident. There are contemporaneous complaints of pain, no other relevant cause and the motor accident was of sufficient severity to cause the fracture. The fracture has healed to the extent that it is only assessed as DRE Category II.
There are contemporaneous complaints of cervical spine pain, no other relevant cause and the motor accident was of sufficient severity to cause the fracture. We accept the claimant’s history of an absence of prior symptoms.
The motor accident was of sufficient force in circumstances where the claimant is light and poorly muscled. The forces imposed on the cervical spine at the time of the impact were serious causing bilateral vertebral artery dissection and a T2 fracture. The anterior spondylolisthesis at C4/5 is in the same area as the bilateral artery dissection strongly supporting the reason of Medical Assessor Fitzsimons that the pathology at that level was caused by the motor accident. We agree with that conclusion.
Based on the clinical findings of Medical Assessor Lahz, the cervical spine is assessed as DRE Category II.
The was no contemporaneous complaint of lumbar spine injury. We agree with the insurer’s submission set out at paragraph 63 and 64 of these Reasons.
The absence of complaint is relevant but not determinative of the issue of causation: Norrington v QBE Insurance (Australia) Ltd,[44] and AAI Ltd v McGiffen.[45]
[44] [2021] NSWSC 548 (Norrington).
[45] [2016] NSWCA 229 at [64]-[66].
An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[46] Similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue. The claimant did not record any lumbar spine injury on the claim form.
[46] [2014] NSWSC 888 at [31]-[32].
We do not accept that the motor accident caused any injury to the lumbar spine. In any event, the findings of Medical Assessor Lahz did not support any assessable impairment.
For the reasons provided by Medical Assessor Lahz, there is not assessable impairment for the minor head injury. The Panel endorses the reasons that the ongoing symptoms of loss of concentration have other more plausible medical explanation.
As we indicated in our direction, the claimant made no claim for impairment based on restricted range of the shoulders. The medical report of Dr Guirguis, whilst inadmissible, did not place the insurer on notice that any claim was made based on injury caused by the motor accident or due to the principles set out in Nguyen v Motor Accidents Authority.[47]
[47] [2011] NSWSC 351.
Whilst the referral does not restrict the claim between the parties, the absence of any particularised claim meant that the insurer was unfairly prejudiced by any assessment of that body part.[48] Given the insurer’s objection, the Panel could not assess the shoulders. This may unfortunately result in a further application.
[48] See Mandoukos v Allianz Australia Insurance Ltd [2024] NSWCA 71 (at [78]-[79]) which applied the observations of the Court of Appeal in Skates v Hills Industries Pty Ltd [2021] NSWCA 142 at [46]-[48].
We note that shoulder movement have been examined and the assessments included in the examination report. Given our conclusion on the scope of the medical dispute, we have not included those assessments in the assessment of overall permanent impairment.
CONCLUSION
The impairment of 10% is different from that undertaken by Medical Assessor Fitzsimons. Accordingly, the medical assessment certificate is revoked, and a new medical assessment certificate is issued.
0
10
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