Allianz Australia Insurance Ltd v Smith

[2022] NSWPICMP 246

DETERMINATION OF REVIEW PANEL

CITATION:

Allianz Australia Insurance Ltd v Smith [2022] NSWPICMP 246

CLAIMANT:

Joanna Denise Smith

INSURER:

Allianz Australia Insurance Ltd

REVIEW PANEL:

Principal Member John Harris

Medical Assessor Clive Kenna

Medical Assessor Mohammed Assem

DATE OF DECISION

29 April 2022

DATE OF AMENDMENT:

13 May 2022

CATCHWORDS:

MOTOR ACCIDENTS –  The Claimant was involved in a motor accident on 31 May 2016 when she sustained various soft tissue injuries; Held- the Claimant was examined by a Medical Assessor who found nil impairment of the lumbar and cervical spines; the other issue body part was the right shoulder where the claimant displayed limited movement before various doctors; the nature of a rear end collision would only cause a jarring sensation through the steering wheel column and would not cause any pathology to the right shoulder; there was significant variation in range of shoulder movements measured by the Medical Assessor and the goniometer measurements could not be utilised; this inconsistency of shoulder movement was consistent with the surveillance which showed active right shoulder movement; the motor accident may have exacerbated the underlying pre-existing degenerative condition although it was medically doubtful that the underlying pathology would cause severe restriction of movement as displayed by the claimant; Panel was not prepared to accept that there was any restriction of movement caused by the motor accident; claimant assessed at 0% whole person impairment (WPI); 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 SECTION 63(4) IS AS FOLLOWS: 

The Panel revokes the certificate of Medical Assessor Bodel dated 24 June 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is NOT GREATER THAN 10%:

·        cervical spine soft tissue injury;

·        right shoulder soft tissue injury, and

·        lumbar spine soft tissue injury.

REASONS

Background

1. Ms Joanna Denise Smith (the claimant) was injured in a motor accident on 31 May 2016 when another vehicle collided with the rear of the claimant’s vehicle.

2. The insurer insured the owner and driver of the other motor vehicle for liability to pay Ms Smith any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).

3. 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.[1]

   [1] See ss 57 and 58 of the MAC Act.

4. 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.

5. 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.[2]

   [2] Clause 1.2 of the Guidelines.

6. 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[3] and, pursuant to s 63 of the MAC Act, on review by a review panel.

   [3] Section 60 of the MAC Act.

The review

1. Medical Assessor Bodel issued a medical assessment dated 24 June 2021 determining that the claimant suffered soft tissue injuries to the lumbar spine, cervical spine, right and left shoulders, right leg and right ankle. The Medical Assessor assessed impairment at 20%.

2. 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.[4]

   [4] Section 63(7) of the MAC Act.

3. On 16 September 2021, 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.[5]

   [5] Section 63(2B) of the MAC Act.

4. 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 clause 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.

5. The new review provisions provide[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).

   [6] Section 63(3) of the MAC Act.

6. 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.[7]

   [7] Section 41(2) of the PIC Act.

7. 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.[8]

   [8] Rule 128 of the PIC Rules.

8. The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[9] 

   [9] Section 63(3A) of the MAC Act.

9. The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective and comprehensive bundles.

10. The claimant filed a further report of Dr Uthum Dias dated 23 November 2021. The insurer consented to the report being forwarded to the Panel and made some submissions concerning the probative value of the report.

11. Given the insurer’s consent, the Panel admits the further report.

Statutory provisions/Guidelines

1. 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.

2. 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%”.

3. 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.

4. 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.”

5. 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[10]. In Raina v CIC Allianz Insurance Ltd[11] 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 
   

   [10] See s 3B(2) of the Civil Liability Act 2002.

   [11] [2021] NSWSC 13 (Raina) at [65].

   s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”

6. 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.

Material before the review panel

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

Hawkesbury Hospital

1. It is convenient to shortly summarise the various attendances at Hawkesbury Hospital:

   ·13 December 2002 – neck pain – soft tissue injury.[12] Reference to prior neck injury in tractor incident;

   ·30 April 2003 – Neck and back pain last week[13];

   ·18 November 2010 – lacerated right little finger[14];

   ·15 March 2011 – fall – left ankle injury[15];

   ·5 December 2016 – chest pain last two weeks[16];

   ·3 February 2017 – headache, constant pain in frontal and parietal regions[17];

   ·14 June 2017 – endoscopy and colonoscopy[18];

   ·3 November 2017 – chest pain[19], and

   ·10 January 2019 – colonoscopy and endoscopy.[20]

   [12] Claimant’s bundle, page 176.

   [13] Claimant’s bundle, page 173.

   [14] Claimant’s bundle, page 130.

   [15] Claimant’s bundle, page 112.

   [16] Claimant’s bundle, page 88.

   [17] Claimant’s bundle, page 80.

   [18] Claimant’s bundle, page 257.

   [19] Claimant’s bundle, page 56.

   [20] Claimant’s bundle, page 180.

General practitioner

1. The clinical notes of the general practitioner record on 2 June 2016 Ms Smith attended and was prescribed Noten, Pristiq and Orudis. There is no mention of injury in a motor vehicle accident[21] although the general practitioner requested scans of the left shoulder.

   [21] Insurer’s bundle, page 55.

2. On 15 June 2016 Dr Sharrad noted complaints of left de Quervains tenosynovitis and neck pain with radiculopathy. Diagnostic imaging was requested.[22] On the next attendance on 7 July 2016 the general practitioner prescribed Nexium.[23]

   [22] Insurer’s bundle, page 54.

   [23] Insurer’s bundle, page 54.

3. On 3 August 2016 the claimant was prescribed Celebrex, Orudis and Nexium.[24]

   [24] Insurer’s bundle, page 54.

4. On 15 August 2016 Dr Sharrad noted that back pain was “acute on chronic”, lower back exercises were recommended, and a CT scan of the lumbar spine was arranged.[25]

   [25] Insurer’s bundle, page 54.

5. On 14 September 2016 Dr Islam noted right shoulder injury following the motor accident and worsening lower back pain. Ms Smith was referred for physiotherapy.[26]

   [26] Insurer’s bundle, page 53.

6. On 7 October 2016 Dr Islam reviewed the claimant for right shoulder pain and noted “no back pain no neck pain”.[27]

   [27] Insurer’s bundle, page 52.

7. Dr Muna Amin answered a questionnaire dated 25 October 2019 when he opined that Ms Smith had anxiety and depression due to work site bullying.[28] The doctor opined that Ms Smith had no capacity for work and required ongoing psychological treatment.

   [28] Claimant’s bundle, page 413.

8. Dr Muna Amin provided a short report dated 22 May 2020 noting worsening low back pain with pain down the right leg.[29]

   [29] Claimant’s bundle, page 42.

Treating specialist reports

1. Dr Desmond Bokor and Dr Raniga, surgeons, provided a report dated 16 December 2016 when they diagnosed right shoulder pain secondary to whiplash injury from the motor accident.[30] The doctors did not have access to any scans and opined that the shoulder pain was not related to any partial thickness tear. They described the shoulder examination as “essentially” normal and suggested ongoing monitoring of neck symptoms and further investigations.

   [30] Insurer’s bundle, page 105.

2. Dr Seamus Dalton provided a report dated 28 July 2017.[31] The doctor noted a history of a motor accident being hit from behind and attending Hawkesbury Hospital late that day. There was no neck pain although paraesthesia and numbness in the right arm over the following period. On examination there was no neck pain, paraesthesia or numbness. Following some initial restrictions, the doctor noted only mild loss of movement with good power, no distal weakness and normal neurological examination.

   [31] Claimant’s bundle, page 294.

3. Dr Dalton opined that there was probably some transient brachialgia with subsequent pain inhibition and the development of “a lot of compensatory strategies”.

4. Dr David Duckworth, orthopaedic surgeon provided a comprehensive report dated 8 April 2020 noting that the claimant was first seen on 5 July 2017.[32] At that time the claimant presented with right shoulder problems since the motor accident. The doctor noted scan evidence which showed AC joint arthritis.

   [32] Claimant’s bundle, page 44.

5. Dr Duckworth noted “ongoing pain ever since the motor accident and her ongoing discomfort is directly related to this”.

6. Arthroscopic excision of the distal clavicle was undertaken on 26 June 2019. The surgical report confirmed osteoarthritis of the right AC joint.[33]

   [33] Claimant’s bundle, page 274.

7. Dr Khatib provided a report dated 3 October 2019 noted right knee pain causing a limp. Review of x-rays did not show any significant abnormality. A referral for an MRI scan was organised.[34]

   [34] Claimant’s bundle, page 406.

8. On 9 November 2019, Professor Steve Vucic, neurologist, opined that the constant and severe headaches were most likely related to stress.

Claim form

1. Ms Smith completed a claim form dated 22 September 2016.[35]  The claimant stated that the accident occurred when the insured vehicle “hit with a bang from behind” causing injuries to the shoulder and back.

   [35] Insurer’s bundle, page 12.

2. The medical certificate dated 28 November 2016 diagnosed right supraspinatus tenonitis and also highlights injuries to the low back and neck.[36]

   [36] Insurer’s bundle, page 24.

3. The claimant provided a short statement dated 10 May 2021 referring to the surveillance. Ms Smith stated:[37]

   “Since my operation in June 2019, under the direction of my treating Specialist and Physiotherapist, as part of my rehabilitation, I am to conduct activities, tasks within my restrictions and tolerance. Gaging my abilities to complete these tasks, activities. Noting any pain and discomfort experienced.

   The surveillance footage and report details me moving some light furniture, boxes and other activities with the assistance of my partner. What the report and surveillance footage does not detail is the pain and discomfort experienced later.”

   [37] Claimant’s bundle, page 461.

Radiology

1. An MRI scan of the cervical spine dated 14 September 2016 referred to left radiculopathy post motor accident with minimal degeneration and mild/moderate facet joint degeneration at C2/3 and C3/4.[38] A right forearm/hand ultrasound at the same time showed no evidence of de Quervains tenosynovitis.[39]

   [38] Insurer’s bundle, page 169.

   [39] Insurer’s bundle, page 170.

2. A right shoulder x-ray dated 14 September 2016 noted moderate osteoarthritis of the AC joint. The ultrasound showed mild tendinosis. On 28 September 2016 the claimant underwent a subacromial/subdeltoid bursal injection.[40] An injection into the glenohumeral joint was performed on 13 October 2016.[41]

   [40] Claimant’s bundle, page 286.

   [41] Claimant’s bundle, page 287.

3. A lumbar spine CT scan dated 14 September 2016 referred to lower back pain with history of direct fall and bruising seven years previously. Mild degeneration was noted in the lower lumbar region with moderate facet degeneration at L4/5 and L5/S1.

4. An MRI scan of the right shoulder dated 3 May 2019 showed marked degenerative change of the AC joint.[42]

   [42] Claimant’s bundle, page 279.

Qualified opinions

1. Dr Dias provided a report dated 2 August 2019.[43] The doctor recorded a history of a rear end motor accident pushing the claimant’s vehicle forward by a metre and a half. The doctor noted that the circumstances of the motor accident gave rise to a whiplash injury to the neck and a jarring of the low back. The claimant was holding the steering wheel executing a right hand turn into the roundabout prior to the point of impact and sustained a jarring sensation into the right shoulder and her right knee hit the dashboard.

   [43] Claimant’s bundle, page 13.

2. The claimant drove to work and left early attending Hawkesbury Hospital. Over the next few days, the pain increased over the right side of the body and consulted her general practitioner on 2 June 2016.

3. The doctor observed that Ms Smith was then five weeks post shoulder surgery.  He diagnosed whiplash injury to the cervical spine, right shoulder impingement syndrome, aggravation of degenerative changes and chronic right knee patellofemoral dysfunction. Assessment of permanent impairment was deemed premature at that stage given the recency of the surgery.

4. Dr Dias provided a further report dated 23 November 2021 when he noted the claimant’s condition had deteriorated since his previous report.[44]  In addition to the findings of injury made on the previous occasion, the doctor noted that Ms Smith suffered from a chronic non-specific regional pain syndrome affecting the right arm which did not satisfy the diagnostic criteria for complex regional pain syndrome type 1.

   [44] Claimant’s bundle, page 462.

5. Dr Dias also noted that there were soft tissue injuries to the right ankle and left shoulder as a result of the motor accident that had resolved. The doctor assessed permanent impairment at 27%.

6. Dr Brian Stephenson provided a report dated 31 December 2018.[45]The doctor assessed impairment based on loss of motion of the right shoulder (7%) and asymmetric loss of range of motion the cervical spine (5%).  In a supplementary report dated 19 February 2019 Dr Stephenson confirmed that the left shoulder had normal range of motion.[46]

   [45] Insurer’s bundle, page 259.

   [46] Claimant’s bundle, page, 268.

7. Dr Tania Rogers provided a report dated 20 March 2020.[47] After a comprehensive summary of the materials, Dr Rogers noted high levels of pain behaviour and emotional lability. The doctor noted an absence of contemporaneous reports of injury and as far as could be ascertained, the claimant was probably treated for a cervical spine injury.

   [47] Insurer’s bundle, page 289.

1. Dr Rogers noted the first report of lumbar spine injury three months after the motor accident and then no further reports for a few years. There was also no complaint of lower limb symptoms until 2019 at which time hip arthritis and mechanical knee pain was diagnosed.

2. Dr Rogers opined that impingement of the right shoulder and AC joint arthritis were conditions associated with repetitive lifting and neither Dr Dalton nor Dr  Bokor diagnosed an intrinsic shoulder injury. Based on these matters the doctor did not accept a right shoulder injury. The doctor could not explain the deterioration in cervical spine symptoms based on an organic injury.

3. In a further report dated 2 June 2020, Dr Rogers referred to the allegation that she “pulled” Ms Smith’s arm.[48] The doctor noted the limited movement displayed by
   Ms Smith during the examination and the complaints of severe pain to slight touch.
   

   [48] Insurer’s bundle, page 364.

   Dr Rogers stated that she tailored the examination with the intention of avoiding any testing given the pain symptoms displayed by the claimant.

4. A functional assessment report by Ms Stewart dated 17 April 2020[49] noted self-limiting of performance in most tests and no objective signs of restriction of movement. The report is also noted that Ms Smith went off work in 2019 due to work related bullying claims unrelated to the motor accident.

   [49] Insurer’s bundle, page 308.

5. A vocational assessment report by Mr John Raue dated 6 April 2020 also noted cessation of work following surgery in 2019 due to work related bullying.[50]  In a subsequent report Mr Raue note that his assessment was conducted by telephone.[51]

   [50] Insurer’s bundle, page 332.

   [51] Insurer’s bundle, page 366.

6. Ms Carolyn Grinter, occupational therapist provided a report dated 27 January 2020 assessing domestic requirements.[52] Ms Grinter noted that Ms Smith suffered injuries to her neck, right shoulder, right arm, low back and right leg in the motor accident.

   [52] Claimant’s bundle, page 33.

7. Dr Inglis Synott, psychiatrist provided a report dated 18 November 2019.[53] The doctor opined that Ms Smith suffered an adjustment disorder with prominent anxiety attributable to the workplace situation.

Business documentation

[53] Claimant’s bundle, page 418.

1. Company searches for “Jo’s Irrigation & Maintenance Services” shows the claimant as the registered holder. A site known as “hipages” provided recommendations from eight persons in late 2020 and early 2021.[54]

   [54] Insurer’s bundle, page 374.

Surveillance investigation

1. A surveillance report dated 22 March 2021 related to investigations of the claimant’s activities over four days in March 2021.[55] The surveillance is discussed elsewhere although it is observed that the film shows the claimant performing various activities showing right arm movement greater than that displayed to various health practitioners.[56] The vehicle driven by the claimant included a sign “Jo’s Lawn & Garden Maintenance; Irrigation System Installer and Repairs”.[57]

   [55] Insurer’s bundle, page 353.

   [56] See for example, Insurer’s bundle, page 358.

   [57] Insurer’s bundle, page 358.

Medical assessments

1. Medical Assessor Friend provided a certificate dated 19 May 2021 when he diagnosed an adjustment disorder with depressed mood caused by the motor accident. After a thorough review of the clinical records and medical reports, the Medical Assessor concluded that the claimant sustained an adjustment disorder and depressed mood caused by the motor accident. He assessed impairment at 1%.

2. Medical Assessor Bodel assessed the impairment of the lumbar spine at 16% and the cervical spine at 5% resulting in a combined impairment of 20%. The Medical Assessor diagnosed soft tissue whiplash associated disorder in the cervical spine and rotator cuff pathology in the region of the right shoulder. The Medical Assessor described the other injuries as “no clinical sign of significant pathology”.

Submissions

Insurer’s undated submissions[58]

[58] Insurer’s bundle, page 349.

1. These submissions were filed following the withdrawal of a concession that Ms Smith had a greater than 10% permanent impairment.

2. The insurer noted that the Hawkesbury Hospital notes were not available and the first attendance at the general practitioner on 2 June 2016 did not refer to the motor accident although there is a reference to scans for the left shoulder.

3. After referring to various clinical entries and the treating reports of various specialists, the insurer stated that it relied on the opinions expressed by Dr Rogers (20 March 2020) and the VCC assessments of Ms Stewart and Mr Raue (17 April 2020). It was submitted that:[59]

   “[T]he claimant [displayed] self limited range [of] movement of the injured areas during the course of those examinations.”

   [59] Insurer’s bundle, page 350.

4. The insurer submitted that the claimant’s presentation of cervical spine movement was inconsistent and there may have been a soft-tissue injury which resolved within a short period.

5. There were no complaints of lumbar spine injury in the clinical notes for a period of three months. Accordingly, there was no injury, and if there was, it resulted in no assessable impairment.

6. The insurer noted the variability between recorded complaints of the contemporaneous notes of the left and right shoulders and that the right shoulder was not mentioned for some three and a half months after the motor accident. Dr Dalton and Dr Bokor did not identify any intrinsic shoulder injury. Any reduced range of movement is due to underlying degenerative changes unaffected by any sequalae of the motor accident.

7. The insurer submitted that there was no left shoulder injury and no assessable impairment of either shoulder from the motor accident.

8. The insurer submitted that there was no evidence that supported injury to either knee right leg or right ankle.

Insurer’s undated submissions[60]

[60] Insurer’s bundle, page 381.

1. These submissions relate to the admissibility of various reports and the surveillance before Medical Assessor Friend.

Insurer’s undated submissions[61]

[61] Insurer’s bundle, page 431.

1. These submissions were filed seeking a review of the certificate issued by Medical Assessor Bodel.

2. The insurer referred to the surveillance footage uploaded on 26 April 2021 and the ABN and social media searches of the claimant’s business. It was submitted that the surveillance indicated that Ms Smith continued to run her business. Later in the submissions the insurer referred to the range of movement of the right shoulder evident in the surveillance.

3. The insurer noted that the claimant reactivated her business, Jo’s irrigation and Maintenance Services of 16 April 2018 and it was renewed in 2021 and remains active. Reviews on the HiPages sites shows ongoing recommendations for the business.

4. The insurer referred to the clinical notes of the general practitioner and the inconsistency between these records and the history provided to
   Medical Assessor Bodel. The inconsistencies include that the motor accident was not mentioned until 14 September 2016, the right shoulder was first mentioned at that time and back and neck pain was denied on 7 October 2016. The history given to Medical Assessor Bodel of immediate right sided pain is not portrayed in the clinic notes.

5. The insurer referred to Dr Bokor’s opinion that the lack of movement was not related to any partial thickness tear and essentially had a normal shoulder examination. Similarly, Dr Dalton did not find any right shoulder injury. In July 2018 Dr Dalton noted that
   

   [62] Insurer’s bundle, page 434.

   Ms Smith had commenced pole dancing and had increased the strength in her arms. During this period up until May 2019 the claimant “was reportedly pole dancing and working”.[62]

6. The insurer noted that the records from Hawkesbury Hospital do not show an attendance following the motor accident. Records in December 2002 and April 2003 show complaints of neck pain whilst in numerous presentations to hospital after the motor accident “the claimant’s alleged significant pain and restriction was not reported”.[63]

   [63] Insurer’s bundle, page 434.

7. The insurer referred to the opinion of Dr Rogers that there was no medically verifiable physical diagnosis and that there were inconsistencies and irregularities noted on examination.

8. The insurer referred to the report by VCC which found no objective signs of restriction. Further, the opinion of Medical Assessor Friend was that the claimant’s account was inconsistent at times.

Insurer’s submissions dated 16 December 2021

1. The insurer submitted that the recent report of Dr Dias be given no weight and is of no probative value given the absence of consideration of relevant material.

Claimant’s submissions dated 14 August 2020[64]

[64] Claimant’s bundle, page 10.

1. Ms Smith alleged that she suffered injury to the cervical spine, lumbar spine, left and right shoulders, left and right knees, right leg, right ankle and psychological sequelae.

2. Mr Smith noted that the insurer initially conceded that the threshold had been attained due to the opinion expressed by Dr Stephenson. That concession was withdrawn giving rise to this medical dispute.

3. The claimant submitted that she experienced pain and discomfort in the right shoulder since the date of the motor accident. That history was recorded by Dr Rogers.

4. The claimant noted that a person may be assessed under DRE Category II which is not dependent upon radicular symptoms or radiculopathy.

Claimant’s submissions dated 20 August 2021[65]

[65] Claimant’s bundle, page 454.

1. These submissions opposed the insurer’s application to review the certificate issued by Medical Assessor Bodel. It was submitted that the Medical Assessor is not bound by other opinions but merely to review and evaluate the other evidence.

2. The claimant provided a detailed chronology of the clinical notes of Hawkesbury Hospital. It was noted that the reference to neck pain was to only soft tissue injuries some 15 years prior to the motor accident.

3. The claimant accepted that her attendances at hospital after the motor accident “were for completely unrelated reasons, and therefore these complaints were not required”.[66]  However, it was possible that the claimant did complain of these injuries, but they were not recorded as they were “unrelated to the complaint at hand”.

   [66] Claimant’s bundle, page 455.

4. The claimant noted that the Medical Assessor did not accept the surveillance at face value and considered the psychosocial factors.

5. The claimant referred to her letter dated 10 May 2021 which referred to her treating specialist and physiotherapist which allowed her to undertake task beyond her abilities and noted that the video footage “does not show the pain and discomfort experienced afterwards”.[67] In that regard the Medical Assessor accepted the “pathological and clinical documentation over the surveillance footage”.

   [67] Claimant’s bundle, page 456.

6. The claimant otherwise noted that past behaviours, such as pole dancing, were not relevant to the determination of impairment which is undertaken on the day of the assessment.

Re-examination

1. Ms Smith was examined by Medical Assessor Kenna of the Panel. The examination report is as follows:

   “Ms Smith was examined by Medical Assessor Kenna of the Panel. The examination occurred on 5 April 2022 at 4.00pm in my medical rooms (Siemans Tower, Market Street, Sydney). She attended the examination alone. No interpreter was required.

   The examination commenced by means of an introduction and explanation, in that it was explained to Ms Smith that the examination by Dr James Bodel on 24 June 2021 had been appealed and that this therefore was subsequently reviewed.

   With regards to that, this referred to a surveillance report dated 22 March 2021 relating to an investigation of the claimant’s activities over four days in March 2021. The surveillance observed that the claimant was performing various activities, i.e. lifting boxes etc into a van or car or 4WD and she was showing persistent right arm movement well above shoulder height, with no apparent level of discomfort. This level of movement was in marked contrast to that demonstrated in earlier examinations and treater’s notes.

   I offered to show the video but Mrs Smith acknowledged that she was aware of the video and had actually seen it and therefore we didn’t need to go over that. She acknowledged that it was her in the video and that she was observed with right shoulder movement elevated well above shoulder height but that she had taken strong analgesics on the day.

   Prior to the examination, I requested that with regards to range of movement, that she make her best effort.

   The findings therefore are as follows.

   Current Complaints

   Her current complaints in relation to the examination is that she experiences no pain whatsoever on the left side of her body. She states she did not at any stage injure the left side of the body. In that respect, I note the left shoulder is listed as one of the injuries, as a soft tissue injury, but she denies any history of injury pertaining to the left shoulder. It would therefore appear that the left shoulder is non-causal.

   In relation to her back, her complaint is one of pain stretching from the cervical to the lumbar spine but no referral into the left upper extremity.

   Pertaining to the right shoulder, her complaint is pain over the right shoulder and into the right arm, with paraesthesia involving the palm of the right hand, with the most intense pain distal to the elbow.

   Similarly, pertaining to the back, she experiences pain over the right iliac crest but no referral distally into either lower extremity posteriorly but she states she has discomfort over the right hip with pain down the lateral aspect of the right leg into the anterior aspect of the foot.

   Indeed, with regards to her symptoms pertaining to the cervical spine, she states the cervical spine now is not nearly as severe and isn’t really an issue now.

   That pertaining to the right shoulder, most of the pain is anterior but she does acknowledge it is not as severe as previously. She is able to walk for 5-10 minutes, stand, and neither her left and right foot are problematic and she is able to sit for about 20 minutes.

   Clinical Examination

   History

   As noted when seen on 5 April 2022, pre-accident medical history is as follows.

   She confirmed that pre-accident she was an active person in many regards but post-accident she is now limited with regards to driving a car in view of her ongoing symptoms from the motor vehicle accident.

   She was independent previously with regards to activities of daily living, household duties etc, but her partner now does most of those activities.

   With regards to the details of the accident, she stated that it occurred on 31 May 2016 in the morning. She was on her way to work at Dural Irrigation Centre where she was employed in a sales role, working casually but full-time hours. At the time, she was driving a small manual Toyota Echo. The car was fitted with a head restraint, she was wearing a seatbelt and the road was dry.

   She was on Old Northern Road in the West Pennant Hills area in the morning. Her car was stationary behind traffic, but it was set back from the car in front. She was waiting to enter a roundabout. She was intending to do a right-hand turn but subsequently her car was hit from behind and while she was pushed forward, she didn’t strike any vehicle in front.

   Neither ambulance nor police attended. Her vehicle was towed and assessed as being beyond repair. Following that, she did go to work and her symptoms became worse during the course of that day.

   Subsequently, she started to experience right-sided body pain, left side unaffected. She saw her GP and was advised to rest and did so over the next few weeks, but her condition failed to improve and she was struggling with the work.

   As a result of seeing her GP, she underwent an MRI of the right shoulder in June 2019. Arthroscopy was recommended with an excision of the outer end of the clavicle involving a part subacromial decompression. She acknowledged that post-surgery this improved her range of movement, but progress was slow and she did not regain normal function or range. The operative procedure was performed by Dr Duckworth.

   She has had no further surgery but she states she finished up work in July 2019, as she was only fit for light duties which weren’t available. When asked about the time sequence between the motor vehicle accident in 2016 and the operation of 2019, she states she simply put up with it over time.

   With regards to the operative effect or impact, this did decrease pain from 10/10 to 7/10 but she states she still has symptoms, although acknowledges it can fluctuate considerably.

   With regards to treatment now, she was having physio and that stopped four months ago. She continues to do exercises at home. No longer takes Panadeine Forte as this resulted in persisting issues with constipation. She continues to find hot showers helpful and relaxing.

   She was referred through to Dr Nazha, a pain specialist, but all pain specialist treatment, including also Dr Ramachandra, has since ceased some eight months ago.

   In that respect, she states that is when her problems began, particularly pertaining to the right shoulder. She states that while she returned to work, she had increasing difficulty coping and was terminated in 2019. She had been employed by Dural Irrigation Centre for some five years but she considered the job was physical.

   In that respect, she had her own company. My understanding it was called Jo’s Irrigation. She was a bit reluctant to discuss these details but she states that she employs other people now and her job activities are purely sedentary.

   General presentation

   Findings on clinical examination including specific measurements of ROM (where applicable) of each of the injuries assessed.

   Her gait was normal.

   Cervical spine (cervicothoracic)

   On inspection of the neck:

   No muscle guarding or muscle spasm present, full range of motion and no asymmetry present.

   No neurological deficit evident in either upper limb.

   Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint. 

   On formal examination of range of movement there was full range of movement as follows:

MOVEMENTS	RANGE EXHIBITED
Flexion	100% full
Extension	100% full
Rotation to the right	100% full
Rotation to the left	100% full
Lateral bending to the right	100% full
Lateral bending to the left	100% full

NEUROLOGICAL TESTS:

REFLEXES:

REFLEX	LEFT	RIGHT
TRICEPS JERK	Normal	Normal
BICEPS JERK	Normal	Normal
BRACHIORADIALIS	Normal	Normal

SENSATION:  No obvious alteration in normal sensation.

MUSCLE POWER

LEVEL	MOTOR POWER	LEFT	RIGHT
C4	5/5	NORMAL	NORMAL
C5	5/5	NORMAL	NORMAL
C6	5/5	NORMAL	NORMAL
C7	5/5	NORMAL	NORMAL
C8	5/5	NORMAL	NORMAL
TA	5/5	NORMAL	NORMAL

5 is active movement against gravity with full resistance

4 is active movement against gravity with some resistance

3 is active movement against gravity only, without resistance

DURAL TENSION TESTS:

TEST	RIGHT	LEFT
PASSIVE NECK FLEXION	Normal	Normal
BRACHIAL PLEXUS STRETCH	Normal	Normal

Lumbar spine (lumbosacral)

No muscle guarding or spasm present, symmetrically reduced uniform range of motion(stiffness)but no asymmetry present.

No neurological deficit in either lower limb.

Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.

Thigh measurements 60cm bilaterally measured 10cm above the superior pole of the patella.

Calf measurements 37cm bilaterally measured at maximum circumference.

No neurological deficit involving either lower extremity.

MOVEMENTS	RANGE EXHIBITED
Flexion	30% restriction
Extension	30% restriction
Rotation to the right	30% restriction
Rotation to the left	30% restriction
Lateral bending to the right	30% restriction
Lateral bending to the left	30% restriction

NEUROLOGICAL TESTS

REFLEXES

REFLEX	LEFT	RIGHT
KNEE JERK	Normal	Normal
ANKLE JERK	Normal	Normal

SENSATION:  No alteration of sensation.

MUSCLE POWER

LEVEL	MOTOR POWER	LEFT	RIGHT
L3	5/5	NORMAL	NORMAL
L4	5/5	NORMAL	NORMAL
L5	5/5	NORMAL	NORMAL
S1	5/5	NORMAL	NORMAL

5 is active movement against gravity with full resistance

4 is active movement against gravity with some resistance

3 is active movement against gravity only, without resistance

MUSCLE ATROPHY:

THIGH	LEFT = RIGHT
CALF	LEFT = RIGHT

No unilateral muscle atrophy present.

DURAL TENSION TESTS

TEST	RIGHT	LEFT
PRONE KNEE BEND	Normal	Normal
STRAIGHT LEG RAISE	Normal	Normal
SLUMP	Normal	Normal

Upper extremity

Upper arm measurements were 39cm bilaterally.

Forearm measurements were 29cm bilaterally.

Normal reflexes both right and left upper extremity.

A small arthroscopic scar over the anterior lateral aspect of the right shoulder (she is right-handed).

Initial assessment, when asked for maximum effort, she lifted the right shoulder immediately to 60° and then stopped. I noted there was no muscle spasm over the shoulder and no soft tissue reaction.

Subsequently on further repetition and some distraction, flexion varied up to 80° and 90° respectively. In abduction there was fluctuation of movement, initially demonstrating 70°, then 60° and then subsequently 40°.

In contrast to this, there was no alteration in soft tissue reaction. Extension was full range and external rotation was 70° respectively, 80° and then 70°. Internal rotation was 70°, 70° and 80°. Adduction however was effectively 0°.

When asked to explain the significant ranges of movement, she acknowledged that range could vary on the day, that she hadn’t taken any medications on the day of my assessment and she does acknowledge that her body seems to vary day to day and acknowledges that sometimes she has good movement, as she explained in the surveillance report.

Right Shoulder

Measurement	Reference (4th ed.)	Normal	Upper Extremity Impairment
Flexion	xx°	Figure 38 (43)	180°	0
Extension	xx°	Figure 38 (43)	50°	0
Adduction	xx°	Figure 41 (44)	50°	0
Abduction	xx°	Figure 41 (44)	180°	0
Internal Rotation	xx°	Figure 44 (45)	90°	0
External Rotation	xx°	Figure 44 (45)	90°	0
Total	0

Goniometer measured

Inspection of the right shoulder was normal. Arc, resisted motions, and passive motions were pain free on the right. There was no abnormal tenderness. Impingement tests were negative. There was no crepitus on examination.

Left Shoulder

Measurement	Reference (4th ed.)	Normal	Upper Extremity Impairment
Flexion	180°	Figure 38 (43)	180°	0
Extension	50°	Figure 38 (43)	50°	0
Adduction	50°	Figure 41 (44)	50°	0
Abduction	180°	Figure 41 (44)	180°	0
Internal Rotation	90°	Figure 44 (45)	90°	0
External Rotation	90°	Figure 44 (45)	90°	0
Total	0

Goniometer measured

Inspection of the left shoulder was normal. Arc, resisted motions, and passive motions were pain free on the left. There was no abnormal tenderness. Impingement tests were negative.

Lower extremity

Normal examination findings of right ankle and right leg.

HIPS

Right Hip

Her complaint is one of right hip pain. Clinical examination of the right hip is as follows.

Full range of mobility. Gait was unaffected. The patient was able to walk on toes and heels.

MOVEMENT	RETAINED	LOST
Flexion	110° (full)	0
Backward Extension	30° (full)	0
Abduction	50° (full)	0
Adduction	30° (full)	0
Internal rotation	45° (full)	0
External rotation	45° (full)	0

·No short leg

·Normal gait

·No atrophy of right lower extremity as compared to left

·No evidence of muscle weakness right hip/thigh

·Normal range of movement of right hip (see chart)

·No evidence of arthritis or degenerative joint disease

·Amputation - not relevant

·Diagnosis based assessment – not relevant

·No evidence of neurological disability right lower extremity or right hip

·No evidence of reflex sympathetic dystrophy right hip, right lower extremity

·No evidence of peripheral vascular condition right lower extremity

Chapter 3, Page 75-89, 3.2a to 3.2m

Left Hip

Full range of mobility. Gait was unaffected. The patient was able to walk on toes and heels.

MOVEMENT	RETAINED	LOST
Flexion	110° (full)	0
Backward Extension	30° (full)	0
Abduction	50° (full)	0
Adduction	30° (full)	0
Internal rotation	45° (full)	0
External rotation	45° (full)	0

·No short leg

·Normal gait

·No atrophy of left lower extremity as compared to right

·No evidence of muscle weakness left hip/thigh

·Normal range of movement of left hip (see chart)

·No evidence of arthritis or degenerative joint disease

·Amputation - not relevant

·Diagnosis based assessment – not relevant

·No evidence of neurological disability left lower extremity or left hip

·No evidence of reflex sympathetic dystrophy left hip, left lower extremity

·No evidence of peripheral vascular condition left lower extremity

Chapter 3, Page 75-89, 3.2a to 3.2m

Key points

Of the six areas listed, it is quite apparent that any initial soft tissue injury of the right leg, ankle and left shoulder have since fully dissipated. The main residual complaint pertains to the right shoulder and further with regards to this, it is to be noted there was no muscle wasting of the right upper arm in comparison to the left, i.e. one would expect some disuse muscle atrophy in view of the range that she was prepared to voluntarily demonstrate on the day of my assessment. That wasn’t in evidence and is a contradiction to her overall level of function.

Similarly, there was no wasting of the forearm, which also one would similarly expect.

Soft tissues of the right upper extremity appeared normal compatible with the left, which was uninjured.

Similarly posteriorly, one would expect with disuse of the right arm there is dropping of the right shoulder, however there was no dropping of the right shoulder and there was muscle wasting in the scapulothoracic musculature. All of this is in contradiction to her stated level of disuse.

Clinical voluntary range of movement is inconsistent by presentation and an independently observed assessment, i.e. surveillance report. Clinical findings are consistent with the independent surveillance report, in that there is no restriction pertaining to right shoulder mobility.”

Findings

1. The review is a new assessment of all matters with which the medical assessment is concerned.

2. 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[68] and Insurance Australia Ltd v Marsh.[69]

   [68] [2021] NSWCA 287 at [40], [41] and [45].

   [69] [2022] NSWCA 31 at [11], [21], [64].

3. We adopt the through and precise examination findings of Medical Assessor Keena supplemented by the following further reasons.

4. We observe that the clinical notes from Hawkesbury Hospital do not record an attendance by Ms Smith on the day of the motor accident. The claimant did not provide this history to Medical Assessor Kenna although previous histories provided by
   Ms Smith record an attendance at hospital on the day of the motor accident.

5. The initial contemporaneous notes of the general practitioner do not refer to the motor accident and are generally lacking in detail of the specific injuries. However, the presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”: AAI Ltd v McGiffen.[70]

   [70] [2016] NSWCA 229 at [64]-[66].

Cervical spine injury

1. There is a suggestion in the clinical notes shortly after the motor accident of cervical spine symptoms. The nature of the motor accident could cause a whiplash type injury to the cervical spine.

2. The Panel accepts that there was a soft tissue injury of the cervical spine.

3. The clinical observations of Medical Assessor Kenna are otherwise consistent with the history provided to him by Ms Smith of an improved cervical spine condition.

4. The Panel concludes that Mrs Smith has a DRE Cervicothoracic Category I or 0% WPI (AMA4, 3/104) as there was no muscle guarding, spasm or spinal dysmetria. There are otherwise no radicular features or radiculopathy in accordance with any dermatome.

Lumbar spine injury

1. The lumbar spine is first mentioned in a clinical note on 15 August 2016. In September 2016 the lumbar CT scan refers to a history of a direct fall and bruising seven years previously.

2. It is medically plausible that Ms Smith may have suffered a soft tissue injury to the lumbar spine in the context of what was obvious pre-existing degenerative changes shown by the September 2016 lumbar spine scan. The motor accident could explain the back pain suffered by Ms Smith in August 2016.

3. We note that in October 2016 Dr Amin recorded that there was no back pain.

4. We are prepared to accept that there was a soft tissue injury to the lumbar spine caused by the motor accident which probably resolved by October 2016. Subsequent complaints of low back pain are explicable on the basis of a degenerative condition which fluctuates over time. The type of pathology could be aggravated by activity which included lifting.

5. We also note that the claimant filed updated radiology shortly before the examination of the right hip and lumbar spine. We are of the view that the material is consistent with degenerative age-related changes. 

6. We find that the soft tissue injury to the lumbar spine resolved over a three-month period. Furthermore, based on Medical Assessor Kenna’s examination findings, the present condition is otherwise assessed at Category DRE I with no assessable impairment.

Right shoulder injury

1. The scan evidence of the right shoulder showed marked degeneration and arthritis in the acromioclavicular joint which is pre-existing and unrelated to the motor accident. The causes of this type of pathology are longstanding and probably due to heavy lifting over a lengthy period. That conclusion is consistent with the type of lifting undertaken by Ms Smith in the surveillance.

2. There is no proper medical basis to conclude that a jarring sensation from a rear end collision through the steering wheel column would cause any pathology in the right shoulder.

3. Ms Smith was recorded as complaining of left shoulder symptoms on 2 June 2016 even though she advised Medical Assessor Kenna that she did not injure her left shoulder. It is plausible, consistent with subsequent complaints, that the reference to the left shoulder on 2 June 2016 may be a mistake and intended to be the right shoulder. That conclusion is consistent with the histories from mid-September 2016 of right shoulder symptoms since the motor vehicle accident and the fact that the right shoulder was scanned at that time.

4. Due to the significant variability in range of right shoulder movements measured by Medical Assessor Kenna, the goniometer measurements could not be utilised as a valid and reliable method of assessing shoulder impairment. Any two measurements of shoulder motion made by the same examiner and involving the same patient should be expected to lie within 10% of each other (AMA 4, 2/9).

5. We accept that there was a gross inconsistency of displayed right shoulder movement before Medical Assessor Kenna. That conclusion is consistent with the surveillance which shows active right shoulder movement.

6. The degenerative pathology in the right shoulder does not explain the significant (and variable) loss of movement both before Medical Assessor Kenna and at other times.

7. Ms Smith has marked degeneration in the AC joint causally unrelated to the motor accident. The mechanism of injury does not suggest anything other than a minor sprain by way of jarring through the rear end collision. This may have exacerbated an underlying pre-existing degenerative condition although it is medically doubtful that it would cause severe restriction of movement.

8. The early specialist treating evidence from Dr Bokor, Dr Raniga and then Dr Dalton observed essentially normal range of right shoulder movement.[71] Subsequent clinical examination showing gross restrictions is inconsistent with the initial range, the surveillance, the absence of rotator cuff pathology and the inconsistencies on presentation before Medical Assessor Kenna. Those inconsistencies are contained under the heading of “key points” in the examination report. 

   [71] See paragraphs [34] and [35].

9. In these circumstances we are not prepared to accept that there is any restriction of range of movement and do not accept that there is any assessable impairment of the right upper extremity resulting from the motor accident.

Right knee injury

1. There is no mention in the claim form of injury to the right knee. The body part is not referenced in any contemporaneous evidence.

2. A bump on the steering wheel column would have caused a transient soft tissue injury with no resulting pathology and resolved within a very short period. There is no mention of any right knee problems until some three years after the motor accident.

3. Ms Smith is reported to show gross problems with the right leg and knee from 2019. The reports of disability do not accord with any organic cause. In any event there was no loss of movement identified by Medical Assessor Kenna. There is no basis to attribute any impairment of the right lower extremity to the motor vehicle accident.

4. The Panel accepts that there may have been a very minor soft tissue injury to the right knee which resolved within a very short period. The nature of that bump is extremely unlikely to cause any pathology which is in keeping with the lack of complaint and the absence of reporting in the claim form.

Right leg injury/ankle

1. There is no mention in the claim form of injury to the right ankle/leg. In Bugat v Fox[72] the Court observed that the existence of complaint in the claim form was relevant to whether that body part was injured. Logically, the absence of reference to a specific injury in the claim form is also relevant.

   [72] [2014] NSWSC 888.

2. There is no reference in any medical reports for an extensive period of any right leg symptoms. There is no explained medical basis how the right leg/ankle was injured in the motor accident other than to the knee striking the steering wheel column.

3. This type of injury is not mentioned in the report of Dr Dias dated 2 August 2019.

4. For these reasons the Panel does not accept that Ms Smith injured her right leg/ankle other than a minor soft tissue injury to the right knee.

Left knee

1. The claimant’s solicitors alleged in its submissions dated 14 August 2020 that there was an injury to the left knee. That submission was made in the absence of any relevant evidence including the lack of any history that the left knee struck anything during the motor accident.

2. We do not accept that the left knee was injured in the motor accident. Further, there is no assessable impairment of the left knee.

Left shoulder

1. The claimant’s solicitors alleged injury to the left shoulder in her submissions dated 14 August 2020.

2. The left shoulder is not referenced in the claim form as being injured.

3. There is an absence of problems with the left shoulder in the various medical reports which refer to right shoulder problems. The only exception is that the general practitioner suggested a scan of the left shoulder on 2 June 2016.

4. Ms Smith advised Medical Assessor Kenna that she did not injure her left shoulder. In light of that history, which is consistent with an absence of left shoulder injury in the medical evidence, it is plausible that on 2 June 2016 the general practitioner referenced the wrong shoulder.

5. There is otherwise no explained medical basis why the left shoulder would have been injured in the motor accident.

6. The Panel does not accept that there was injury to the left shoulder. In any event, there is no assessable impairment of the left shoulder.

Conclusion

1. For these reasons we have concluded that the assessment dated 24 June 2021 is revoked. We do not accept that there is any assessable impairment caused by the motor accident. The replacement certificate is set out at the commencement of these Reasons.

Correction for Obvious Error

1. Subsequent to the issuing of the reasons, the insurer sought a correction for obvious errors. Those errors were described as:

   (a)  At paragraph 95, “Mr Vella” should be replaced with the name of the claimant; and

   (b)  The table that spans across pages 24 and 25 has left out the measurements.

2. The claimant advised the Commission that she agreed with the corrections.

3. The Panel accepts the joint submission that “Ms Smith” be replaced for “Mr Vella” at [95] as an obvious error.

4. The Panel does not accept that the “xx” in the table are an obvious error. The various measurements made by the Medical Assessors are set out above the table. The Panel found inconsistency on examination. Accordingly, the “xx” represent the Panel’s conclusion that no reliable measurement could be made.