Allianz Australia Insurance Limited v Shareen

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Shareen [2023] NSWPICMP 173
CLAIMANT:	Salma Shareen
INSURER:	Allianz Australia Insurance Limited
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	1 May 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury on 24 May 2017 when her vehicle landed upside down in a ditch; the dispute related to the assessment of permanent impairment of physical injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; Panel satisfied that serious motor accident aggravated underlying cervical spine pathology and caused right shoulder injury; subsequent left shoulder symptoms explained by initial disc injury which, once injured, can gradually deteriorate and cause symptomatology in the upper limb; Nguyen v Motor Accidents Authority of NSW referred to; Held – claimant assessed at 16% permanent impairment; original assessment 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 63(4) IS AS FOLLOWS: The Panel confirms the certificate of Medical Assessor Berry dated 30 August 2022.

REASONS

BACKGROUND

Ms Shareen (the claimant) was injured in a motor accident on 24 May 2017 when the insured vehicle collided with the side of the claimant’s vehicle causing it to veer off the road and landing upside down in a ditch.[1]
[1] Insured bundle, p 17.
The insurer insured the owner and driver of the vehicle for liability to pay Ms Shareen any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
Ms Shareen claims that she suffered impairment of his cervical spine, right and left shoulder.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) 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 (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[4] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[4] Section 60 of the MAC Act.

PREVIOUS ASSESSMENTS

Medical Assessor Lahz provided a certificate dated 18 September 2019.[5] The Medical Assessor found that the claimant injured her cervical spine with referred pain to the shoulders.
[5] Insurer’s bundle, p 30.
On examination the Medical Assessor noted one-half range of movement without dysmetria and generalised tenderness of the right trapezius and base of the neck. Shoulder movements were bilaterally associated with complaint of trapezius discomfort. Range of movement reduced with repetition.
Medical Assessor Lahz noted variable range of neck and bilateral shoulder motion depending on prevailing pain levels and noted that the claimant “demonstrated considerable variability in range of motion within and between medical examinations”.
The Medical Assessor concluded that the claimant sustained a cervical soft tissue injury with symptom spread towards the trapezius and concluded there was no direct shoulder injury based on the clinical presentation. Shoulder movement was inconsistent, and range of movement was not accepted as an appropriate measure of impairment. There were “no objective signs of neck injury” and any soft tissue injury should have resolved within “4 – 6 weeks of injury”.
Medical Assessor Home provided an assessment dated 21 September 2020 on the extent of domestic assistance.[6] The Medical Assessor concluded:[7]
“In relation to the treatment disputes, I am satisfied that there is sufficient evidence that the claimant suffered from symptoms of a sufficient nature so as to cause a degree of difficulty with at least heavy domestic chores over the first three to four months post accident and it is probable that there was some subsequent difficulty performing certain tasks such as overhead cleaning (spring cleaning).
Her physical complaints are not of sufficient severity to warrant assistance with light domestic chores such as food preparation, bench height cleaning, placing dishes in a dishwasher, laundry tasks, folding clothes and light house cleaning.
She would also, based upon the clinical presentation, now be able to undertake heavier chores such as vacuuming and mopping.”
[6] Insurer’s bundle, p 43.
[7] Insurer’s bundle, p 55.
That medical dispute was referred back to an occupational therapist to determine the extent of the need.

ASSESSMENT SUBJECT TO REVIEW

Medical Assessor Berry provided a certificate dated 30 August 2022.[8] He noted a prior history of neck and right shoulder pain in 2015 where she underwent a cortisone injection and resolution of symptoms.
[8] Insurer’s bundle, p 4.
The Medical Assessor found that the claimant injured her cervical spine and sustained suffers from subacromial bursitis in both shoulders. The impairment of the cervical spine and shoulders was assessed at 16%.
The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[9]
[9] Section 63(7) of the MAC Act.
The President’s delegate referred the medical assessment to the Review Panel (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.[10]
[10] Section 63(2B) of the MAC Act.
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 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 provisions provide[11] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[11] Section 63(3) of the MAC Act.
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.[12]
[12] 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 matter solely based on the written application.[13]
[13] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[14]
[14] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective bundles.

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.
Section 58 of the MAC Act provides that 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 that 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 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 AMA4 Guides, 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 the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
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.[15] In Raina v CIC Allianz Insurance Ltd[16] 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.”
[15] See s 3B(2) of the Civil Liability Act 2002.
[16] [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.

EVIDENCE

The parties filed bundles of documents in accordance with the initial Direction.

Pre-accident material

The clinical notes of the general practitioner prior to but proximate to the motor accident do not refer to neck or shoulder problems.[17] Left shoulder pain was noted by the general practitioner in March 2014.[18]
[17] Insurer’s bundle, pp 510-518.
[18] Insurer’s bundle, p 720.
In a report dated 26 July 2011, Dr Denise Tong, rheumatologist noted left sided neck pain radiating down the left arm and some residual shoulder pain. The doctor diagnosed Crest syndrome which is a serological diagnosis and associated with polyarthralgia.[19]
[19] Insurer’s bundle, p 98.
In February 2014 Dr El-Haddad noted that the shoulder pain had resolved, and that the hydroxychloroquine had assisted the claimant with her polyarthralgia.[20]
[20] Insurer’s bundle, p 100.

Ambulance/hospital records

The ambulance record provided:[21]
“CT high speed rollover, OA Pt self extricated sitting on side of road with bystanders, Pt states she was travelling approx. 90km when a truck allegedly came over into her lane then continued travelling and wiped out two metres of barriers down into a direct car was upside down. Pt states she was wearing a seatbelt, airbags deployed with significant deformity to front side and roof of car, OE Pt teary denies LO, CO L lateral neck pain, seat belt abrasion to right side of chest minor and Abdo soft non tender, Pt able to move all limbs with equal limb strength, nil facial trauma, nil diampersis, nil chest pain, nil SOB, Pt cannulated and spinal repercussions insitu.”
[21] Insurer’s bundle, p 90.
Hospital admission referred to abrasions over chest and left leg. Mild tenderness was noted at C7/T1. Neurological examination was reported as normal.[22]
[22] Insurer’s bundle, p 200.
A brain CT scan on hospital admission showed no acute intracranial pathology.[23] The CT scan of the cervical spine showed no acute fracture. Joint degeneration at C5/6 and C6/7 and facet joint arthritis was shown at C2/3 and C7/T1.[24]
[23] Insurer’s bundle, p 190.
[24] Insurer’s bundle, p 196.

General practitioner

The medical certificate dated 3 June 2017 referred to moderately severe whiplash, tenderness at right upper sternum, swelling of forehead and soft tissue pains. The doctor marked an “x” bilaterally on the side of the neck.[25]
[25] Insurer’s bundle, p 21.
The clinical notes of the general practitioner on 23 June 2017 refer to a phone call and reference to whiplash caused by a motor accident.[26]
[26] Insurer’s bundle, p 510.
Dr Ali noted in January 2018 that the neck was tender, and the right shoulder blade and right trapezius was painful and tense.[27] In February 2018 the general practitioner noted right sided neck pain with radiculopathy.[28] In March 2018 the neck pain was reported as radiating to the left arm.[29]
[27] Insurer’s bundle, p 126.
[28] Insurer’s bundle, p 125.
[29] Insurer’s bundle, p 124.
Dr Ali provided a report dated 25 November 2018.[30] The doctor noted the attendance after the accident was on 1 June 2017 and that there were eleven consultations in 2017 and twelve in 2018. The claimant sustained a moderately severe whiplash and right shoulder injury with bruising to the forehead. Initially symptoms were also noted in the left shoulder.
[30] Claimant’s bundle, p 61.
Ongoing symptoms at the date of the report were to the neck, right shoulder and right upper arm.

Physiotherapy records

A physiotherapist report dated 22 June 2017 noted neck pain radiating down the right arm.[31] A further report dated 23 August 2017 noted poor posture and decreased range of movement.[32]
[31] Insurer’s bundle, p 499.
[32] Insurer’s bundle, p 500.

Treating specialist reports

The claimant initially saw Dr Matthew Giblin, orthopaedic surgeon, on 13 June 2018.[33] The doctor noted a history of neck and bilateral shoulder pain, right worse than left, since the motor accident. Examination of the neck showed restricted range of movement with significant muscle spasm. There was no evidence of radiculopathy or radiation down the arms.
[33] Insurer’s bundle, p 942.
Shoulder movements were restricted, right more than left with tenderness over the AC joint. Left shoulder tender to produce more pain in the trapezius and some in the deltoid. Right shoulder pain was more in the AC joint and around the deltoid area. Dr Giblin opined:[34]
“Clinically, this lady's symptoms are consistent with an aggravation or underlying degenerative change of the cervical spine. The pattern of her pain in the neck is high and goes down to the jaw, suggesting it may be a high disc or facet that is a problem. The pain in her right shoulder may be related to the A.C. joint or the rotator cuff. The pain in the left shoulder I think is a combination of rotator cuff and pain referred from the neck.”
[34] Insurer’s bundle, p 943.
On 5 September 2018 Dr Giblin noted the bone scan and recommended as an initial step a block into the right C2/3 joint and right AC joint.[35] An injection into the right AC joint was undertaken on 14 September 2018.[36] A cervical spine injection into the right C2/3 facet joint was undertaken on 21 September 2018.[37]
[35] Insurer’s bundle, p 939.
[36] Insurer’s bundle, p 938.
[37] Insurer’s bundle, p 937.
On 17 October 2018 Dr Matthew Giblin noted an initial good response from a right shoulder injection but “due to constant use of her arm her symptoms have returned”. The doctor noted a positive response to the neck injection and that the “neck pain is such that she feels she can manage it for the time being”.[38]
[38] Insurer’s bundle, p 936.
In a further report dated 13 July 2020, Dr Giblin noted, following a further examination, that the claimant continued with complaints of neck and bilateral shoulder pain.[39] The doctor opined that the injuries were consistent with aggravation of underlying degenerative changes in the cervical spine, injury to the right AC joint and restriction of left shoulder movement by reason of the cervical spine injury.
[39] Claimant’s bundle, p 19.
Dr Giblin expressed the same opinion in a further report dated 21 September 2020.[40]
[40] Claimant’s bundle, p 30.

Radiology

An MRI scan of the cervical spine dated 2 June 2018 showed a left paraforaminal C6/7 disc protrusion with potential left C7 root compression.[41]
[41] Insurer’s bundle, p 95.
An MRI scan of the right shoulder dated 1 July 2018 showed AC joint arthropathy with effusion and synovitis, subacromial bursal inflammation and low grade intrasubstance tear of the supraspinatus.[42]
[42] Insurer’s bundle, p 96.
Bone scan with SPECT/CT of the cervical spine dated 3 August 2018 showed arthritis in the right facet joint at C2/3 and discovertebral degenerative arthritis at C6/7. The increased uptake in the acromioclavicular joints and right sternoclavicular joint was described as being “due to arthritis or injury”.[43]
[43] Insurer’s bundle, p 97.

Statement evidence

Ms Shareen provided a statement dated 12 November 2019.[44] The claimant stated that she suffered from left shoulder pain in 2012, had an MRI scan and underwent an injection. She regarded herself as “fit and well when the accident occurred”.[45]
[44] Claimant’s bundle, p 38.
[45] Claimant’s bundle, p 40.
The claimant described the motor accident and realised she was “upside down in my car”. The seatbelt was tight and hurting her right shoulder. It was stated that Medical Assessor Lahz was told of this, but it was not recorded in that certificate.
The claimant described post-accident symptoms particularly affecting the neck and right shoulder with pain radiating down the right arm.

Claim form

The claim form was completed by the claimant on 7 November 2017 and listed injuries to the neck, chest, both shoulders, stomach, head, shoulder blades and upper back.[46]
[46] Insurer’s bundle, p 18.

Qualified opinions

Dr Thomson provided a report dated 13 February 2018.[47] On examination the doctor noted asymmetric reduction in neck movement and bilateral reduced range of movement in the shoulders, greater on the right. A diagnosis was made of neck strain and bilateral strain of the trapezius.
[47] Claimant’s bundle, p 45.

Dr Andrew Keller, occupational physician, was qualified by the insurer and provided a report dated 13 April 2018.[48] Shoulder movements were reported by the doctor as representing “voluntary exaggeration of incapacity”. Dr Keller diagnosed a cervical spine soft tissue strain.
[48] Insurer’s bundle, p 67.
In a supplementary report[49] Dr Keller noted there was full range of motion of the neck without spasm or signs of radiculopathy. The doctor noted inconsistent range of shoulder movement that appeared to be voluntarily restricted with no objective signs of traumatic injuries to the shoulders.
[49] Insurer’s bundle, p 65.
Dr Keller provided a further report dated 29 April 2019[50] again noting voluntary self-limitation of shoulder movements. Range of movement of the neck was full with no spasm. Tenderness was reported over both trapezius muscles.
[50] Insurer’s bundle, p 77.
Dr Conrad was qualified by the claimant and provided a report dated 5 June 2019.[51] The doctor noted complaints of pain in the neck and both shoulders, right worse than left. Dr Conrad opined that the motor accident caused a whiplash injury to the neck, right shoulder injury by way of rotator cuff pathology and aggravation of a previously asymptomatic left shoulder condition.
[51] Claimant’s bundle, p 63.
Dr Anthony Smith, orthopaedic surgeon, was qualified by the insurer and provided a report dated 22 October 2020.[52] Dr Smith diagnosed an exacerbation of degenerative disease caused by the motor accident. The effects of the motor accident ceased by the end of August/September 2017 and the ongoing symptoms were due to the underlying disease with exacerbations from the effects of daily living.
[52] Insurer’s bundle, p 57.
Dr Arash Nabavi, orthopaedic surgeon, was qualified by the claimant and provided a report dated 27 July 2020.[53] The doctor opined that the claimant had sustained an injury to the right sternoclavicular joint and right AC joint. The injury to the cervical spine was most likely by way of disc protrusion at C6/7 causing C7 nerve root compression.
[53] Claimant’s bundle, p 26.
Dr Nabavi otherwise opined that the restricted range of movement of the left shoulder was suggestive of nerve root impingement with dysrhythmia of the glenohumeral and the scapular thoracic movement.
Kate Glancey, psychologist, provided a report dated 7 May 2018[54] opining that the claimant suffered post-traumatic stress disorder and depressive symptoms caused by the motor accident and its sequelae.
[54] Claimant’s bundle, p 52.

SUBMISSIONS

Insurer’s submissions undated[55]

[55] Insurer’s bundle, p 1.

These submissions were filed seeking a review of the assessment provided by Medical Assessor Berry.
The insurer submitted that Medical Assessor failed to provide a path of reasoning in arriving at a finding that the claimant injured her shoulders in the motor accident. It referred to the reasons provided by Medical Assessor Lahz that the claimant injured her cervical spine with referred pain to the shoulders and did not sustain direct injury to the shoulders.
The insurer submitted that Medical Assessor Lahz’ causation findings were consistent with the opinions expressed by Dr Keller and Dr Smith.
The insurer noted that there was an MRI scan of the right shoulder taken on 30 June 2018 and there was no left shoulder scan relied on by the Medical Assessor.

Insurer’s submissions undated[56]

[56] Insurer’s bundle, p 22.

These submissions were filed opposing the application for a further assessment. It noted that the claimant relied on additional reports from Dr Mathew Giblin and the report from Dr Nabavi.
The insurer noted that the claimant had relied on previous reports of Dr Giblin as well as qualified reports from Dr Thompson and Dr Conrad. It submitted that the further reports from Dr Giblin did not constitute additional information or show deterioration.
The insurer noted Dr Nabavi’s opinion that the injury to the cervical spine was likely a disc injury at C6/7 and the pain in the left shoulder may be caused by C7 root compression. It submitted that this report was not additional information.
The insurer referred to an updated opinion from Dr Smith dated 22 October 2020 which asserted that the pathology in the cervical spine was pre-existing and degenerative, and the effects of the accident would have resolved after a number of weeks or three months at most.
The insurer submitted that the claimant’s injuries “have long resolved and do not give rise to any permanent impairment”.

Claimant’s submissions dated 12 October 2020[57]

[57] Claimant’s bundle, p 10.

These submissions were filed by the claimant seeking a further assessment. The claimant referred to new material being the reports of Dr Giblin dated 13 July 2020 and 21 September 2020 and the report of Dr Nabavi dated 27 July 2020.
The opinions expressed by these doctors was that the claimant aggravated degenerative changes in the neck, suffered injury to the AC joint in the right shoulder and restriction of movement in the left shoulder from the injured neck, possibly from the C7 nerve root compression.

Claimant’s submissions dated 14 October 2022[58]

[58] Claimant’s bundle, p 1.

These submissions were filed opposing a review of the Medical Assessment. The claimant referred to the “several rounds of submissions in the proceedings”. It noted in these proceedings that the insurer did not challenge the assessment of the cervical spine.
The claimant noted that there had been further evidence filed since the assessment provided by Assessor Lahz and that it was not the role of Medical Assessor Berry to “consider the determinations of Assessor Lahz to the degree asserted by the insurer”.
The claimant referred to the various findings of Medical Assessor Berry who had taken an appropriate history and carried out a physical examination.
The claimant otherwise referred to the opinions of Dr Giblin, Dr Nabavi, Dr Conrad and Dr Thomson. Those doctors have “reached the same conclusions” as Medical Assessor Berry.

RE-EXAMINATION

Ms Shareen was examined by Medical Assessor Dixon. The examination report is as follows:
“This 52-year-old claimant attended for examination on 20 April 2023.
She had sustained an injury to her neck and shoulders in a serious MVA when a semi-trailer swerved into her lane. She took evasive action to avoid a collision and her car flipped over and finished upside down and she was left hanging by the seat belt. While there was no head injury, she did have amnesia for the accident details and when she came to, she undid the seat belt, but she needed others to help her out of the vehicle.
Her vehicle was a Toyota Rav 4 and the semi-trailer came into her lane and in trying to avoid the truck, she went through the side barriers and crashed into a ditch and the air bags deployed.
Police attended the scene and the Paramedic took her to Liverpool Hospital. Her vehicle was severely damaged and written off.
When she was at Liverpool Hospital, there was no evidence of acute brain injury on CT scan, but she subsequently complained of pain in her neck and right chest. In the next few days, she developed pain in the shoulders, more marked on the right. She attended her GP who prescribed analgesia and subsequently had review by
Dr M Giblin, orthopaedic surgeon, who arranged for steroid injections into the claimant’s neck and right shoulder and referred the claimant for physiotherapy treatment.
There were no subsequent injuries.
Current Symptoms
She complained of persisting pain and stiffness in her neck and to a lesser extent, her right shoulder and some pain in the left shoulder. The pain in the right shoulder radiated from the trapezius muscle down to the scapula region and in the left shoulder from the trapezius muscle down to the posterior deltoid area. She reported difficulty elevating her arms above shoulder height and difficulty sleeping on her right shoulder. She had difficulty turning her head due to neck pain, particularly when driving and her neck pain and stiffness impacts on her ability to reverse park, change lanes and check the blind spots.
She needed to continue with anti-inflammatories and Endep to sleep but was still waking at night and was taking a further Endep in the early hours of the morning. She was able to localise her neck pain to both trapezius muscles more marked on the right.
Current and Proposed Treatment
She takes Nurofen Plus and Feldene as anti-inflammatories and Tramal for pain relief and Endep as an anti-depressant and for night sedation.
Operative intervention is not proposed.
On examination at my rooms on 20 April 2023 she was 168cm tall and weighed 85kg. She presented in a straightforward manner and there was no inconsistency on shoulder movement and no embellishment.
The movements were measured by a goniometer and repeated to test for consistency in accordance with the Guidelines.
There was stiffness of her cervical spine with flexion decreased by one third and pain on neck extension which was decreased by one quarter. Lateral rotation to the left was decreased by one third and that to the right by one quarter. Lateral flexion was decreased by one half bilaterally. There was tenderness and spasm of both trapezius muscles more marked on the right. There was tenderness of the mid cervical facet joints. There was no neurological deficit or wasting of either upper extremity with symmetrical reflexes and sensation was normal and power was grade 4 out of 5. There was no muscle wasting.
There was stiffness on elevation of her shoulders with active abduction on the right 110 degrees with forward flexion 130 degrees, extension 30 degrees, adduction 30 degrees, external rotation 70 degrees and internal rotation 50 degrees. Shoulder girdle power on the right was grade 4 out of 5. There was tenderness of the trapezius muscles extending over to the scapula region. There was no winging of the scapula on resisted protraction. Her cervical foraminal compression test was positive, and her brachial plexus stretch test was equivocal on the right.
There was stiffness on elevation of her left shoulder with forward flexion 140 degrees, active abduction 120 degrees, extension 40 degrees, adduction 40 degrees, external rotation 80 degrees and internal rotation 70 degrees and shoulder girdle power was grade 4 out of 5 on the left.
Investigations
CT scan dated 24 May 2017 reported multilevel degenerative changes but no fractures.
MRI of the cervical spine on 2 June 2018 showed degenerative changes at multiple levels.
MRI of the right shoulder on 30 June 2018 showed synovitis and subacromial bursitis but no apparent rotator cuff tear.
In summary this claimant was involved in a severe MVA when a semi-trailer forced her car off the road through barricades and it flipped and landed upside down. She had temporary loss of consciousness and the airbags deployed. She required ambulance attention. She sustained whiplash injury to her neck and a seat belt injury to her right shoulder. She has ongoing referred symptoms to the left shoulder.
She now has persisting spasm of her trapezius muscles, more marked on the right as well as dysmetria in the cervical spine and she has post traumatic stiffness in her right shoulder with difficulty elevating the arms more marked on the right.
Whole Person Impairment
That for the cervical spine where she has a known whiplash injury with post-traumatic stiffness with dysmetria, trapezial muscle spasm and cervical facet arthralgia clinically with aggravation of previous asymptomatic degenerative changes which is ongoing, is from Table 73, Page 110, AMA IV, DRE II, 5% WPI.
That for the post-traumatic stiffness of the right shoulder is from Pie Charts 38, 41 and 44, Pages 43-45, 12% UEI which equates to 7% WPI.
That for her left shoulder as per Nguyen is from the same Pie Charts, 8% UEI which equates to 5% WPI.
This gives a total from the Combined Values Chart of 16% WPI.
Given my examination findings and being clinically satisfied that the claimant was consistent in her presentation before me, I am satisfied that it was appropriate to use loss of range of movement to assess her impairment for both shoulders.
The assessment is consistent with that found by the Medical Assessor in his Certificate dated 30 August 2022.”

FINDINGS

The review is a new assessment of all matters with 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[59] and Insurance Australia Ltd v Marsh.[60] This is of particular relevance in the present matter where there are conflicting opinions provided by the various doctors qualified by the parties.
[59] [2021] NSWCA 287 at [40], [41] and [45].
[60] [2022] NSWCA 31 at [11], [21], [64].
We are not required to agree with a particular doctor qualified by the parties. In part, the difference is explained by the examination findings accepted by the Panel, in this matter undertaken by Medical Assessor Dixon.
The parties have referenced the opinions supporting their respective contentions and added very little by way of analysis of why the opposing view is in error. The insurer reference to the opinion of a previous Medical Assessor and suggested that that this be accepted. Such a position would be inconsistent with the requirement that we are required to form our own opinion.
The claimant’s complaint of neck injury is supported by her contemporaneous complaint of neck pain recorded by various medical practitioners and recorded in the claim form.
This was a significant and serious motor accident and accept that it is medically plausible that the claimant would have either severe whiplash injury or an aggravation of disc pathology at C6/7. It is equally plausible that the motor accident caused right shoulder injury as the claimant was hanging upside down restrained by the seatbelt against her right shoulder.
The claimant’s case of direct injury to the right shoulder is supported by the observations of the general practitioner, Dr Ali, who has seen the claimant on several occasions including within days of the motor accident.
We also observe that the insurer has clearly raised the issue of the claimant’s lack of consistency. Whilst we are unable to comment on how the claimant presented to various doctors, that submission is considered in the context of the Panel’s examination of the claimant.
We otherwise do not agree with the generalisation expressed by some doctors that the effects of the injury should have ceased within a specific time such as weeks or months when there was an absence of pre-existing symptoms, consistent ongoing symptoms, and the nature of the motor accident was serious. There are also the MRI scans of both the right shoulder and cervical spine taken in 2018 which show relevant pathology explaining the ongoing symptomatology. We find the opinions expressed by both Dr Smith and the previous Medical Assessor that the effects of the motor accident should have resolved within a certain period as unpersuasive. These opinions ignore a consistency of complaint, particularly regarding the cervical spine in circumstances where there was an absence of cervical symptoms immediately prior to the motor accident. No attempt was made by either doctor to explain how, why or when the effects of the accident would have ceased in the context of consistent ongoing complaints to the cervical spine.
We otherwise note that there are references of a pain complex in some of the medical reports which may explain a view taken by some medical practitioners that there was inconsistency in presentation before that doctor. The claimant otherwise previously presented with psychological symptoms as noted by Ms Glancey. The associated psychological condition is an explanation for the claimant’s pain presentation perceived by some doctors as less than straight forward.
We do not agree that there is an inconsistency between the findings of Medical Assessor Dixon and other doctors such that cl 1.41 of the Guidelines was engaged. The differences in findings are in part explained above and otherwise explained by the effluxion of time.[61]
[61] See Flanagan v Allianz Australia Insurance Ltd [2022] NSWSC 1374.
Medical Assessor Dixon repeatedly tested and observed the claimant and found no inconsistency during the recent examination. In that respect the Panel relies, in part, on the clinical expertise of the Medical Assessor who examined the claimant on its behalf.
The claimant’s consistent history was that she was asymptomatic at the time of the motor accident. That version is corroborated by the absence of reference of complaints in the three years prior to the motor accident. We accept the claimant’s evidence.
The claimant has presented with ongoing cervical complaints since the motor accident. The motor accident was serious involving air bag deployment and leaving the claimant hanging upside down. The biomechanical forces involved the deceleration and restraint on the cervical spine would have been considerable and exacerbated by the airbag deployment impacting into the claimant.[62]
[62] See for example the discussion in QBE Insurance (Australia) Ltd v Shah [2021] NSWSC 288.
The fact that the claimant probably had underlying cervical spine pathology made her more susceptible to injury to the cervical spine as the forces involved in the accident were imposed on a weakened disc.
In these circumstances we agree with the opinion of Dr Nabavi that it is likely that the serious motor accident probably aggravated underlying degenerative pathology, particularly at C6/7. This conclusion is consistent with the seriousness of the incident, the underlying pathology and otherwise explains the ongoing nature of cervical spine complaints and referred radicular symptoms into the upper limbs. That conclusion is supported by early reference to radicular type symptoms.
There is reasonable contemporaneous evidence of complaints of right shoulder symptoms evidenced by the report of the general practitioner dated 25 November 2018. That report referenced consultations after the motor accident. The claimant otherwise listed injuries to both shoulders in her claim form dated 7 November 2017.
The mechanism of the motor accident involved the claimant hanging upside down and restrained by the seatbelt over her right shoulder. The nature of the motor accident clearly involving the motor vehicle being overturned explains the right shoulder pathology shown in the MRI scan as the seatbelt restrained the shoulder in a wrenching motion. It is medically plausible that the motor accident either caused or significantly aggravated the AC joint arthropathy with effusion and synovitis, subacromial bursal inflammation and low grade intrasubstance tear of the supraspinatus.
Given the contemporaneous complaints, absence of prior symptoms and nature of the motor accident, we are satisfied that the claimant injured her right shoulder in the motor accident.
There is some reference to left shoulder symptoms following the motor accident such as in the claim form. However, as the insurer noted, there is an absence of scanning. The general practitioner in his November 2018 report noted that the were initial complaints of left shoulder symptoms which subsequently resolved.
In these circumstances it is unlikely that there was a significant traumatic injury to the left shoulder.
There are subsequent reports of left shoulder symptoms. Dr Giblin, who treated the claimant, provided opinions in July and September 2020 that the restriction in the left shoulder movement was caused by the cervical spine injury. That comment is consistent with the observations in Nguyen v Motor Accidents Authority of New South Wales,[63] a decision referenced in the examination findings of Medical Assessor Dixon.
[63] [2011] NSWSC 351
It is medically plausible that the left radicular symptoms evolved over time due to the initial disc injury at C6/7 which, once injured, can gradually deteriorate and cause subsequent symptomatology into the upper limb.

The Panel is satisfied that based on the clinical findings of Medical Assessor Dixon, the cervical spine pathology aggravated by the motor accident and the cervical spine symptomatology caused by the motor accident caused loss of movement of the left shoulder as a result of the cervical spine injury. The extent of that impairment is contained in the examination report provided by Medical Assessor Dixon.

Pre-existing or subsequent injuries causing impairment

Clause 1.31 of the Guidelines requires a deduction for “pre-existing impairment”. There is no basis to make any deduction for any pre-existing condition[64] as there is no evidence of “objective evidence of a pre-existing symptomatic permanent impairment” in the shoulders.
[64] Clauses 1.31 of the Guidelines.
We adopt the reasoning in QBE Insurance (Australia) Ltd v Kumar[65] concerning the issue of onus in establishing a deduction for any pre-existing condition.
[65] [2022] NSWPICMP 66 at [118]-[120].
The claimant had previously complained of neck and shoulder problems. In 2014 there is a record of resolution of symptoms.[66] Relevantly there is an absence of clinical notes after March 2014 of shoulder and/or cervical spine problems.
[66] See [33] above.

Permanent impairment

We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.

CONCLUSION

Whilst our reasons differ from those provided by Medical Assessor Berry, we have arrived at the same conclusion that the degree of impairment caused by the motor accident is greater than 10%. Accordingly, the medical assessment is confirmed.

[2023] NSWPICMP 173

1 May 2023