Allianz Australia Insurance Limited v Zlatanovic

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Zlatanovic [2024] NSWPICMP 836
CLAIMANT:	Andrea Zlatanovic
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	9 December 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by medical assessor and review under section 7.23; claimant injured in motor vehicle accident of April 2019; issue of degree of WPI; review of Medical Assessment; Held – Panel revoked certificate of Medical Assessor; substituted determination of 5% WPI.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Panel revokes the certificate of Medical Assessor Farhan Shahzad, dated 27 February 2024, and substitutes the determination to certify that the injuries referred to the Panel and caused by the accident, gave rise to a WPI of 5%.

STATEMENT OF REASONS

INTRODUCTION

Andrea Zlatanovic (Ms Zlatanovic), the claimant, was born in March 1983.
On 4 April 2019, Ms Zlatanovic was injured in a motor vehicle accident (the accident).
Ms Zlatanovic has brought a claim for common law damages for the injuries she sustained under the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz Australia Insurance Limited (Allianz) is the relevant insurer.
A medical dispute about the degree of Ms Zlatanovic’s whole person impairment (WPI) has arisen. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The dispute was referred to the Personal Injury Commission (Commission) and assigned to Medical Assessor Shahzad for assessment.
On 27 February 2024, Medical Assessor Shahzad issued a certificate under s 7.23(1) of the MAI Act certifying 11% WPI.

REVIEW PROCEDURE

The insurer sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review).
A delegate of the President of the Commission determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the matter to the Review Panel (the Panel).
The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. The President’s delegate has convened this Panel to conduct the review of the medical assessment.
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. Section 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.

LEGISLATIVE FRAMEWORK

General provisions

14.Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.

Ms Zlatanovic’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

Permanent impairment assessment

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 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:
(a)The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b)The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines states:
“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.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.

ASSESSMENT UNDER REVIEW

Medical Assessor Farhan Shahzad examined Ms Zlatanovic on 24 January 2024 and issued a certificate under s 7.23 of the MAI Act.
The following injuries were referred by the Commission for assessment:
(a)   Cervical Spine, Cervical Spine Injury
(b)   Lumbar Spine, Lumbar Spine Injury
(c)   Skin Scarring, Skin Scarring Injury
Medical Assessor Shahzad took a detailed pre-accident history at [8].
He took a history of the accident at [9]:
“Ms Zlatanovic was involved in a motor vehicle accident on 4 April 2019 while driving along Canley Vale Road in a 50 or 60 zone. She was wearing a seatbelt, with her son and daughter in the car. Despite clear driving conditions, an oncoming car struck her head-on, causing her car to spin, she tried to hold on. She reports that she was unconscious or “blacked out” and woke up to the smell of smoke. Upon turning around, she found her son with significant injuries, including bleeding from his nose and ears. She suffered burns to her chin, abdominal pain from the seatbelt, and felt her neck and chin were on fire. Airbags were deployed and the car was written off.
Ms Zlatanovic managed to get her children out of the car. Due to her difficulty walking, she placed her son in her parent's car to prevent him from running away. Her son experienced swelling around his eyes, while her daughter remained uninjured in the accident.”
He took a detailed history of symptoms and treatment following the motor accident at [10]:
“Following the accident, Ms Zlatanovic took her injured child to Westmead Children's Hospital via ambulance, where she stayed with him because of his autism as she knew he would be very agitated. He had an orbital fracture and surgery was undertaken for a fracture to his eye socket. She said that he nearly lost his eye. He was in hospital for at least three weeks.
During this time, she separated from her son, so her own injuries could be investigated and treated. The next day, she presented to Westmead Adult Hospital with complaints of headache, neck pain, abdominal pain, and a facial burn. She underwent investigation including a CT scan of the abdomen and pelvis which showed soft tissue contusion of the anterior lower abdominal wall and a probable contusion on the small intestine. She received treatment for burns and bruising in the emergency ward, including burns cream for her skin. She was discharged from the hospital on the same day. She spent the following month living with her son at the Children's Hospital during his treatment, as she felt that she needed to put her son's needs before her own. Ms Zlatanovic managed her own chin burns dressing. After a month, they both returned home.
She saw her general practitioner, Dr Sandra Moe on 2 June 2019 who noted neck pain, and PTSD. She was referred to physiotherapy and psychotherapy.
In 2019, she received physiotherapy for her neck and shoulders for one or two months concurrently, she saw a psychologist for one or two months.
Due to bruising of her intestines, she had trouble opening her bowels and stated that she was not treated properly.
She mentions that managing specialist appointments is challenging for her due to her responsibilities in caring for her children. She recently consulted a doctor regarding her persistent bowel problems.
She experiences constant neck and back pain, describing it as a "grabbing" sensation in her neck. She has been prescribed painkillers but discontinued physiotherapy due to her primary role as a caregiver for her son.
She was giving 24-hour care for her son. Her son is out of control now, so NDIS has got involved in his care and they provided a carer for him which she finds helpful.”
At ‘Details of any relevant injuries or conditions sustained since the motor accident’ [11], Medical Assessor Shahzad opined that “Ms Zlatanovic suffered from PTSD following the subject motor accident”.
He continued at ‘Current symptoms’ [12]:
Ms Zlatanovic states she has constant pain in her neck and back and describes the pain as “grabbing” pain in her neck radiating upward. She has more right-sided neck pain and low back pain.
In regard to her scars, she states that she uses makeup to cover her scars. Her mental health was affected, and she attended a counsellor by phone. She states that whenever she talked about the accident, it made her condition worse, so she tried to forget about it, but she had reminders of the accident. She was not on any medications for her mental health.”
He stated in ‘Current and proposed treatment’ [13] that “Ms Zlatanovic utilises analgesic medication.
Medical Assessor Shahzad completed a clinical examination, the findings being set out at [14] in his Certificate.
In ‘General presentation’, he opined:
“All movements performed in today’s examination were active and voluntary. No movements were undertaken to the point that they would have caused or inflicted any further injury or pain.
All measurements done with a goniometer or inclinometer. All measurements were repeated three times for consistency, if required. A tape measure was used. The active range of motion, ROM, was measured with the passive range of motion reserved for clinical and diagnostic verification. The claimant was advised that examination would be with all measured movements within a pain-free range and that there might be some discomfort at the upper limit of movement which should be
reported immediately, and the movement will be discontinued.
Ms Zlatanovic presented as a 40-year-old lady.”
Continuing in ‘Cervical spine (cervicothoracic)’:
“On examination, she had pain present on the base of the neck, occiput and right side of the neck. There was no midline tenderness. She had a constant tingling sensation in the palm of her right hand.
There was no asymmetry of spinal motion. There was no joint crepitation during active range of movement.”
Medical Assessor Shahzad completed a neurological examination of the upper limbs, the findings set out at [16] in his Certificate.
In ‘Lumbar spine (lumbosacral)’, he opined:
“On examination, there was tenderness and tightness of the muscle present in the lumbar region.
Forward flexion and extension of the lumbar spine are painful. Pain is present with straight leg raise testing on the right side. She has pins, needles, and numbness in her feet.”
Medical Assessor Shahzad completed a neurological examination of the lower limbs, finding that:
“Motor examination of L2 to S1 revealed normal muscle strength. Sensory examination was normal at all levels. Reflex examination of L4, L5 and S1 revealed nil deficits.
Scarring - there is no significant scarring, and they are well covered with makeup. She cried continuously during physical examination because of her mental health.”
He commented that Ms Zlatanovic was consistent in her clinical presentation at [17].
At ‘Causation and Diagnosis’ at [20], Medical Assessor Shahzad opined:
“Ms Zlatanovic was involved in a motor vehicle accident on 4 April 2019 while driving along Canley Vale Road in a 50 or 60 zone. She was wearing a seatbelt, with her son and daughter in the car. Despite clear driving conditions, an oncoming car struck her head-on, causing her car to spin, she tried to hold on. She reports that she was unconscious or “blacked out” and woke up to the smell of smoke. Upon turning around, she found her son with significant injuries, including bleeding from his
nose and ears. She suffered burns to her chin, abdominal pain from the seatbelt, and felt her neck and chin were on fire. Airbags were deployed and the car was written off.
Ms Zlatanovic managed to get her children out of the car. Due to her difficulty walking, she placed her son in her parent's car to prevent him from running away. Her son experienced swelling around his eyes, while her daughter remained uninjured in the accident.
The next day, she presented to Westmead Adult Hospital with complaints of headache, neck pain, abdominal pain, and a facial burn. She underwent investigation including a CT scan of the abdomen and pelvis which showed soft tissue contusion of the anterior lower abdominal wall and a probable contusion on the small intestine. She received treatment for burns and bruising in the emergency ward, including burns cream for her skin. She was discharged from the hospital on the same day. She spent the following month living with her son at the Children's Hospital during his treatment, as she felt that she needed to put her son's needs before her own. Ms Zlatanovic managed her own chin burns dressing. After a month, they both returned home.”
He concluded that the injuries referred to him were caused by the motor accident.
In relation to the lumbosacral (lumbar) spine, Medical Assessor Shahzad opined that:
“The history and findings are compatible with a specific injury and clinical signs of a lumbar spine injury are present with injury without radiculopathy or loss of motion segment integrity. There was non-verifiable radiculopathy present on clinical examination. She has a 5% whole person impairment.”
In relation to scarring, he opined that:
“Ms Zlatanovic has a 1% impairment for facial scarring that is visible, she is aware of but is not usually visible with makeup and negligible effects on ADLs with no treatment required.”
He concluded that the injuries referred to him and caused by the accident gave rise to a WPI of 11%.
Permanent impairment table:

Medical Assessor Shahzad considered that the degree of permanent impairment caused by the motor accident was 11% at [24]:
“Permanent impairment ratings take symptoms into account, however the percentage permanent impairment is not a direct measure of disability. A finding of zero percent permanent impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides and Guidelines rate the associated impairment at 0%.”

SUBMISSIONS
Claimant’s submissions, dated 16 April 2024

Ms Zlatanovic submits that the insurer misconceived the Medical Assessor’s findings and medical guidelines regarding dysmetria and non-verifiable radicular complaints and thus made irrelevant submissions.
The claimant submits that the insurer’s submissions on the lumbar spine fail for the same reasons.
The claimant submits that the insurer also misconceived the Medical Assessor’s proper assessment of the claimant’s scarring and incorrectly alleged that the Medical Assessor did not comply with some form of “checklist” of the criteria which the guidelines do not require.
The claimant submits that a finding of 0% WPI requires the claimant be “not conscious” of the scar, yet the claimant is aware of it and uses makeup to cover it. The claimant thus submits that there are sufficient findings that easily satisfy the criteria of 1% WPI.
The claimant submits that there is no error, and the Application should be dismissed.

Allianz’s submissions, dated 26 June 2024

Allianz submits that even if the claimant’s cervical spine was injured in the subject accident, there is no assessable whole person impairment to the cervical spine as a result of the subject accident.
Allianz submits that even if the claimant’s thoracic spine was injured in the subject accident, there is no assessable whole person impairment to the thoracic spine as a result of the subject accident.
Allianz submits that even if the claimant’s lumbar spine was injured in the subject accident, there is no assessable whole person impairment to the lumbar spine as a result of the subject accident.
Allianz submits that the claimant’s injury to the face has resolved and has not resulted in any permanent impairment.
Allianz submits the claimant’s constipation is unrelated to the subject accident and therefore does not warrant assessment.
Allianz submits that any permanent impairment for psychiatric injuries resulting from the accident does not exceed 10%, with a significant component of the claimant’s psychological symptoms attributable to pre-existing complaints.
Allianz refers to several entries of the Fairfield Women’s Health Service, St Johns Park Medical Centre, and Complete Allied Healthcare as relevant in determining the claimant’s pre-accident psychological impairment.
Allianz also seeks to rely on the reports of Dr Katie Dimarco and Dr Graham Vickery regarding the claimant’s history with domestic violence and post-traumatic stress disorder.

Allianz submits that the claimant’s WPI does not exceed 10% for the alleged physical or psychiatric injuries sustained in the subject motor vehicle accident.

THE PANEL’S EXAMINATION

At the first Panel meeting on 2 July 2024, it was agreed that a re-examination would be necessary to address the parties’ submissions.
The claimant was instructed to present herself for medical examination at the Commission’s medical suites, Level 8 1 Oxford St Darlinghurst 2010 on 14 August 2024 at 3:30pm but did not attend due to her obligations to look after an autistic child.
In the Panel’s subsequent meeting the Panel agreed that medical examination was required and suggested that the claimant make herself available for a re-examination on 16 October 2024 at 2pm and that the insurer cover the costs of child minding for three hours so that the claimant can attend the medical examination.

Background

Ms Zlatanovic attended the medical suites at the Commission on

13 November 2024. She was unaccompanied. Medical Assessors Couch and Moloney conducted the interview and examination.

Pre-accident history

Ms Zlatanovic was a single mother living with 3 children aged 10, 7 and 13. The 13-year-old boy is severely autistic and is non-verbal.
Her initial employment had been as an information record officer for 15 years at Fairfield Council. Work ceased in 2016 due to domestic violence which terminated her marriage. Since then, she had been at home looking after the children. She stated that there had been no injuries prior to the accident to those assessed on 13 November 2024.

History of the accident

Mrs Zlatanovic was driving her car when another oncoming vehicle struck her front on at the right side. She was wearing a seatbelt at the time and airbags were deployed. There was a brief loss of consciousness, and she woke smelling smoke. Her son was more severely injured in the back seat with facial lacerations. The car was written off.
Her son was taken to Westmead Children’s Hospital by ambulance and required surgery to an orbital fracture. She was eventually assessed at Westmead Hospital and was noted to have a facial burn under the chin due to the airbag with neck pain and abdominal pain associated with bruising due to the seatbelt. She stated at that time there were generalised aches and the onset of constipation.

History of symptoms and treatment following the accident

Ms Zlatanovic remained at the hospital to help her son for three weeks and on discharge consulted her GP, Dr Moe. At that time, she had neck pain which radiated into the intrascapular region and back pain. Her GP referred her for physiotherapy but there were no specialist consultations. Physiotherapy gave short-term relief.
There were no further injuries or conditions sustained since the motor accident.

Subsequent injury

Nil identified.

Current symptoms

At the time of the examination, there was, she had tingling in both legs, there was constant low back pain, there were persistent psychological symptoms, Ms Zlatanovic was not employed at the time of the examination and was on a Carer’s pension and Single Parent allowance. You can see that this was consistent with a right-handed person. There was no documentation of any shoulder injury. Due to the presence of guarding at the time of the examination, the classification of DRE II was determined giving 5% WPI. In assessing the WPI for the lumbar and the spine, the classification of DRE I was 0% WPI.
At present, there is a constant neck pain more so on the right which radiates up into the occipital region. She gets tingling in both hands below the level of the elbows. There is a constant low back pain with no radiation into the legs but in the last year has developed sporadic tingling in both feet and calves. There are persistent psychological problems.
Ms Zlatanovic is a single mother living in her own home. She is able to drive but does not have a car at present. Walking is not a problem and she does her own house work.

Current and proposed treatment

Present medication is Nurofen or Panadol as needed, and no manual therapy is being undertaken. She consulted her GP when necessary.

Clinical examination

Mrs Zlatanovic walked into the rooms with a normal gait and sat comfortably during the interview. She states that she is right-handed and height was measured at 155 cm and weight 99 kg.

Cervical spine

On testing range of movement flexion/extension were two thirds of expected range with side bending and rotation 80% of expected range bilaterally. On palpation there was tenderness over the mid-cervical spines and guarding over the right trapezius muscle.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the upper arms 37 cm on the right and 36 cm on the left (10 cm above the olecranon process) and in the upper forearms 28 cm in the right and 27 cm on the left (5 cm below the olecranon process). This is consistent with a right-handed person.

Lumbar spine

Ms Zlatanovic walked with a normal gait and was able to walk on her heels and toes. She could squat normally.
On testing range of movement flexion/extension was 50% of expected range and side bending was two thirds of expected range bilaterally with no asymmetry. On palpation, there was tenderness over the upper lumbar spines and lower thoracic spines but no guarding or spasm was noted in the lumbar musculature. Straight leg raise was 20° on the right and 30° on the left and was limited by thoracic spine pain but sciatic nerve root tension tests were negative. When seated, the straight leg angle was 80° bilaterally.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal sensation and power. No muscle wasting was apparent with the circumference of the upper thighs 65 cm on the right and 64 cm on the left (10 cm above the superior patella pole) and at the maximum circumference of the calves 50 cm in the right 49.5 cm on the left.

Shoulders

On passive movement no crepitus was detected and there was a slight loss of range of movement in both shoulders on active movement when measured by goniometer. She stated that this discomfort was due to stiffness in the trapezius muscle region bilaterally. However, shoulder movement did not precipitate any neck pain. There is no documentation of any shoulder injury sustained in the subject accident.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	150°	170°
Extension	40°	50°
Adduction	50°	50°
Abduction	170°	170°
Internal Rotation	90°	90°
External Rotation	80°	90°

No radiological studies were available for inspection.

Causation and WPI

There was documentation from Westmead Hospital that Ms Zlatanovic sustained a soft tissue injury to cervical spine at the time of the accident. This was also recorded in the personal injury claim form and her treating GP referred her for physiotherapy of her cervical spine soon after the accident. This was also investigated with a CT of the cervical spine the day after the accident. The Panel has determined that she had sustained a soft tissue injury in the subject accident.
Due to the presence of guarding at the time of examination of the cervical spine, a classification of DRE lI is determined which is 5% WPI. There were no signs of radiculopathy or non-verifiable radicular complaints at the time of our examination.

Lumbar spine

There was no direct documentation of the lumbar spine injury immediately after the accident but Mrs Zlatanovic states that she developed back pain soon after the event and was investigated by CT of the abdomen and pelvis the day after the accident. It was reported that there had been some soft tissue contusion to her abdomen and mild thickening of the small bowel loops which probably resulted in her persistent abdominal pain and constipation soon after the accident. The Panel has determined that she sustained a soft tissue injury to the lumbar spine due to the motor vehicle accident.
On assessing the WPI for the lumbar spine a classification DRE l has been determined which is 0% WPI. This was because there was no dysmetria on testing range of movement, no guarding or spasm on palpation and no signs of radiculopathy or non-verifiable radicular complaints in the lower limbs.

Scarring

There is documentation that Ms Zlatanovic sustained a burn to the lower face due to the airbags at the time of the accident. She stated that this caused a burn underneath her chin which was treated with various creams.
On inspection by the Panel, there was no scarring apparent with no colour change, no contour or trophic effects and no sutured marks. There is no effect on any ADLs and no treatment is required. Classification of best fit is 0% WPI using the TEMSKI chart.

Determination

The Panel revokes the Certificate of Medical Assessor Farhan Shahzad and substitutes the determination to certify that the injuries referred to the Panel and caused by the accident gave rise to a WPI of 5%.

[2024] NSWPICMP 836

9 December 2024