Allouche v QBE Insurance (Australia) Limited
[2025] NSWPICMP 438
•19 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allouche v QBE Insurance (Australia) Limited [2025] NSWPICMP 438 |
CLAIMANT: | Allouche |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 19 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); whether injuries from motor accident caused permanent impairment greater than 10%; alleged injuries to cervical spine, lumbar spine, left shoulder; pre-existing cervical condition with prior motor accident and surgical recommendation in 2016; subject accident occurred during employment involving forklift collision; clinical evidence indicated increased cervical symptoms; fusion surgery performed; issue of material contribution to surgery; Medical Assessor found surgery unrelated and applied 100% deduction; Held – Review Panel found motor accident materially contributed to need for fusion, resulting in DRE IV (25%) cervical spine impairment; no deduction applied due to absence of symptoms at time of accident; shoulder impairment assessed at 2% by analogy due to inconsistent findings; lumbar spine 0%; total whole person impairment (WPI) from motor accident assessed at 27%; MAC revoked; new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Robin Mitchell dated 26 July 2024. 2. Certifies that the following injuries caused by the motor accident give rise to a permanent impairment of 27% which IS GREATER THAN 10%: · cervical spine – aggravation of cervical spondylosis; · left shoulder – aggravation, and · lumbar spine – aggravation of lumbar spondylosis. |
PERSONAL INJURY COMMISSION
MOTOR ACCIDENTS DIVISION
REVIEW OF MEDICAL ASSESSMENT
Matter number: | M20637/24 | |
Claimant: | Mustapha Allouche | |
Insurer: | QBE Insurance (Australia) Limited | |
Review Panel: | Member Elizabeth Medland Medical Assessor Shane Moloney Medical Assessor Margaret Gibson | |
Date of determination: | 19 June 2025 | |
Representation | claimant: | AJB Stevens Lawyers |
| insurer: | Sparke Helmore Lawyers | |
CERTIFICATE OF DETERMINATION
Issued under Division 7.5 of the Motor Accident Injuries Act 2017
The Review Panel:
Revokes the certificate of Medical Assessor Robin Mitchell dated 26 July 2024.
Certifies that the following injuries caused by the motor accident give rise to a permanent impairment of 27% which IS GREATER THAN 10%:
· cervical spine – aggravation of cervical spondylosis;
· left shoulder – aggravation, and
· lumbar spine – aggravation of lumbar spondylosis.
STATEMENT OF REASONS
INTRODUCTION
Mr Mustapha Allouche, (the claimant) is a 61-year-old male who suffered injury on
11 October 2019. The claimant was in the course of his employment when he was involved in a motor vehicle accident with a forklift.
A claim was lodged upon QBE Insurance Australia Limited (the insurer) who is the insurer of the vehicle involved in the motor accident. The insurer has a liability to pay statutory benefits and/or damages under the Motor Accident Injuries Act2017 (MAI Act).
The issue in dispute is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”.[1]
[1] Section 4.11 of the MAI Act.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Robin Mitchell. He issued a certificate dated 10 July 2024. The Medical Assessor certified that injuries to the cervical spine, lumbar spine, caused by the motor accident give rise to a 0% whole person impairment which is not greater than 10%.
THE REVIEW
The claimant sought a review of the medical assessment in accordance with s 7.26 of the MAI Act (review). On 14 October 2024, the President’s delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
A review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[2]
[2] Section 7.26(5A) of the MAI Act.
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 and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the Rules.
Interim directions were issued on 15 October 2024 requesting paginated and indexed bundles of all documents relied upon by the parties. The parties lodged bundles in compliance with those directions.
The Panel met via teleconference on 14 January 2025 and it was determined that a re-examination occur with Medical Assessor Shane Maloney on 9 April 2025.
The Panel reconvened via teleconference on 29 April 2024.
LEGISLATIVE FRAMEWORK
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 are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
Guidelines
Causation of injury is addressed from cl 1.5 of the Guidelines. Whilst the clauses are set out in respect of permanent impairment they are relevant to a dispute as to threshold injury.[4] Clauses 1.6 and 1.7 provide:
“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.”
[4] See Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 at [35].
In determining the issue of causation, the Panel is to also have regard to s 5D of the Civil Liability Act 2002 (CL Act):[5]
[5] See s 3B(2) of the CL Act.
“5D General principles
(1) A determination that negligence caused particular harm comprises the following elements;
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
ASSESSMENT UNDER REVIEW
Medical Assessor Mitchell provided a certificate dated 26 July 2024 following an examination of 10 July 2024. He certified a 0% whole person impairment in respect of injuries caused by the motor accident, to the cervical spine, left shoulder and lumbar spine.
The Medical Assessor noted a history of a prior motor vehicle accident of 15 January 2015 which apparently resulted in left shoulder and neck issues. The claimant was treated with physiotherapy for 12 months and the related claim was settled.
On examination of the claimant’s shoulders the Medical Assessor noted significant inconsistency on repeated testing without any objective clinical evidence of muscle wasting or other abnormality. Accordingly, the range of movement method was not used to assess impairment. The Medical Assessor states that in his opinion there is no rateable permanent impairment with respect of the current shoulder complaint.
In respect of diagnosis the Medical Assessor found an aggravation of significant degenerative changes in the cervical spine and lower lumbosacral spine. No radiological evidence of any significant change in the pre-existing degenerative findings of the cervical spine from before the accident was noted.
The Medical Assessor found no objective clinical or radiological evidence of shoulder injury.
In respect of assessment of impairment of the cervical spine, the Medical Assessor referred to the medical report of Dr Fearnside of 7 September 2015 where a DRE category II was found giving rise to a 5% impairment. The Medical Assessor states:
“the symptoms were apparently sufficiently severe to result in Dr Kam, the treating neurosurgeon to recommended (sic) an anterior cervical discectomy and fusion in March 2016. This procedure has more recently been undertaken and results in a DRE 4 impairment.”
The Medical Assessor concludes that the spinal fusion surgery was proposed many years prior to the subject accident and therefore subtracted the entire assessment of 25% impairment on account of pre-existing impairment. Therefore, assessing a 0% impairment in respect of the subject accident. A 0% impairment was found in respect of the lumbar spine and shoulder.
SUBMISSIONS
Claimant’s review submissions dated 6 September 2024
The claimant submits that the Medical Assessor erred by failing to apply cls 6.31 and 6.34 of the Guidelines, which provides that before deducting for pre-existing impairment objective evidence of symptomatic impairment must be identified or else its presence must be ignored.
It is noted the claimant did not undergo fusion surgery until after the accident and it is this surgery results in a DRE category IV of the cervical spine. The claimant submits that the accident caused further injury to the cervical spine which resulted in him having to commit to the surgery.
It is further submitted that the Medical Assessor was in error by not applying the test of causation correctly. Specifically, the accident need not be the sole cause of the injury and symptoms. It is conceded the surgery was recommended prior to the accident, however, the surgery did not come to fruition noting that the clinical records demonstrate a marked improvement in the cervical symptoms with no indication that he was likely to have to submit to surgery. The claimant notes that Dr Kam was not seen prior to the accident since
29 March 2016, which is three years prior to the accident and was not consulted again until 23 March 2021 following the subject accident due to a “major flare up” following the subject accident.
The submissions also raise an issue of procedural fairness in that the claimant was not afforded a reasonable opportunity to answer any alleged inconsistencies, in compliance with cl 6.41 of the Guidelines.
Insurer’s review submissions dated 27 September 2024
The insurer denies the Medical Assessor was in error in respect of the cervical spine and notes the Medical Assessor had regard to the radiology that dates prior to and after the accident. The insurer submits that the Medical Assessor concluded that there had been no significant pathology caused by the accident and is supported by the clinical evidence. The insurer refers to the Medical Assessor’s reliance on the report of Dr Kam dated
23 March 2021 that notes that the claimant had ongoing symptoms for the previous five years.
The insurer submits that the radiological findings and the history recorded by Dr Kam are consistent with the assessment of the Medical Assessor, and he appropriately conducted an assessment in compliance with cl 6.31 of the Guidelines.
The insurer submits that simply because the claimant agreed to have the surgery that was previously recommended to him in 2016 does not mean that the need for surgery was caused by the subject accident.
DOCUMENTATION
The Panel has considered all documents that were provided by the parties in their respective bundles.
Application for personal injury benefits (claim form) dated 15 January 2020
The claimant lists injuries caused by the accident as: aggravation of neck pain; lower back, right side; and, left shoulder (injury of muscles and tenons of the rotator cuff).
Personal injury claim form dated 23 November 2014
This claim form relates to a CTP claim in respect of an earlier motor accident of
15 October 2014. The claimant details being seated in his car when a forklift reversed into the passenger side of his car shunted the vehicle sideways, causing a further collision with another vehicle. The claimant lists injuries to his neck, shoulder, mid and lower back and abdomen.
General practitioner (GP) records – Wentworthville Medical & Dental Centre
The claimant is a long term patient of the practice with the notes going back to at least 2006. Some entries in 2012 note the claimant suffering tenderness of the muscles of the lower neck, with complaints continuing on an intermittent basis, including an entry on
14 October 2014 just prior to the October 2014 motor accident.
The claimant attended his GP on 20 October 2014 and reported the forklift accident and made a complaint of neck pain and tenderness at the upper shoulders was noted. He was sent for radiological investigation and by January 2015 was referred for orthopaedic review.
At least until February 2016 the claimant complained of neck pain.
The neck symptoms are not mentioned in the consultation notes leading up to the motor accident. There is, however, complaint of tenderness of the lower back in November 2018.
The claimant attends upon Dr Ali on 13 October 2019 after the subject accident and a note of tenderness over the left arm, with a bruise, and left posterior shoulder. The reason for contact is listed as “shoulder injury”.
He was seen again by Dr Ali on 12 November 2019 when it is noted the claimant was not able to work properly and could not drive for more than a couple of hours without pain. Pain in the arms and hands with numbness is noted. Also noted is a mention of left shoulder and neck. The claimant had tried massage which did not “work”. On examination he was noted as tender diffusely over the neck and left upper arm with pain on abduction.
In further consultations ongoing shoulder pain is noted, as well as lower back pain, together with complaints of neck symptoms.
Dr Kam
Dr Kam is a neurosurgeon and spinal surgeon that the claimant was referred to at first instance in 2015 following the earlier motor accident. Several reports are provided. In summary, the claimant was initially recommended to adopt a conservative non-surgical approach for as long as possible, including an aggressive physiotherapy exercise regime. It was suggested in the report of 11 June 2015 that failing such approach there may be a role for surgery for the spondylotic changes.
On 30 March 2016 Dr Kam noted the claimant was still in a lot of pain involving the neck and interscapular region and the claimant “…is now coming to a point where he is potentially going to proceed with surgery as an option.” The doctor noted the CT scan of
December 2015 demonstrated foraminal stenosis at the C4/5 and C5/6 level being consistent with the MRI findings of 2016. The doctor noted that surgery would involve cervical discectomy and fusion at the C4/5 and C5/6 levels. However, the claimant was noted to be unsure as to whether “…it is bad enough for him to want to have surgery.”
The next report is 23 March 2021, and Dr Kam noted that the claimant over the past five years had ongoing symptoms but more recently a “flare-up” after the subject accident. The doctor reviewed an MRI scan undertaken in 2020 which demonstrated degenerative changes involving the C4/5, C5/6 and C6/7 levels with loss of disc height, endplate changes and some degree of foraminal stenosis. The doctor stated that “because his symptoms have significantly worsened since the accident, he was keen to consider surgery as an option as the severe pain that he now has is harder for him to. Put up with than what he had 5 years ago.”
Dr Kam reported to the worker’s compensation insurer, Employers Mutual Limited (EML), on 12 July 2021. Dr Kam noted that the primary problems involved the neck rather than the shoulder, and if there were substantial issues with the shoulder then the claimant should be referred to an orthopaedic shoulder specialist.
By 21 April 2022 Dr Kam noted that there had been no approval obtained for the suggested neck surgery. It was noted that there was mention of a facet joint injection. The doctor states that “if we are realistic in helping Mr Allouche deal with his neck pain, shoulder pain and arm pain, an operation would be the only thing that will give him the maximum benefit for all 3 of his symptoms sites.”
Dr Kam in a report dated 13 June 2024 confirms that he operated on the claimant at Westmead Hospital in July 2023. It was noted the claimant had a further motor accident involving a forklift on 24 May 2024. The claimant was reportedly reassured that no significant skeletal injury had occurred following this further accident, although he did have a lot of soft tissue spasms.
Medico-legal reports
Included in the material is a report of Dr Fearnside dated 7 September 2015, provided in respect of the earlier motor accident. The doctor noted the claimant to have constant neck pain. A diagnosis of aggravation of cervical spondylosis at C4/5 and C5/6 was given. No objective signs of radiculopathy were noted. An assessment of whole person impairment of 5% is given owing to a DRE Category II of the cervical spine. Tenderness in the neck muscles, paraspinal muscle guarding and asymmetrical loss of range of motion (dysmetria) is noted.
A report of Dr Stephen dated 30 November 2015 is also provided. The doctor diagnosed the claimant as suffering non-specific mechanical cervical pain with some radiation into the interscapular region. There was no evidence of radiculopathy.
The claimant relies on the opinion of occupational physician, Dr Dryson. In a report dated
30 May 2024, Dr Dryson noted the claimant to have obtained relief for his pain in the arms following the surgery, but he still had significant pain in his neck. A diagnosis of aggravation to pre-existing degenerative changes to the neck, lumbar spine and left shoulder was given. The doctor gave an assessment of whole person impairment of 29% (25% cervical spine, and 5% to the lumbar spine).
The insurer relies on a report of neurosurgeon, Dr Casikar dated 9 June 2021. He concluded that the claimant was suffering an incapacity due to a soft tissue injury to the shoulder. He was not able to identify “definitely a compensable injury to the cervical spine.” He did however, comment that it was possible that the claimant had an aggravation to a pre-existing degenerative disease of the cervical spine. He did not believe surgery to the neck was a priority at the time.
Whilst not attached to the insurer’s bundle of documents lodged in compliance with the Panel’s direction to provide copies of all documents relied upon, the insurer does refer to a report of Dr Keller dated 30 October 2023. That document is located in the claimant’s original bundle of documents that were before Medical Assessor Mitchell. Whilst not included in the bundle of documents of the insurer, noting the reference to same in submissions, the Panel has nonetheless considered the report.
Dr Keller is an occupational physician. He took a history of the previous 2015 motor accident that resulted in a compensation payout. The doctor found inconsistent restriction of motion in the cervical spine without evidence of asymmetry or radiculopathy. Unexplained and inconsistent restriction of motion in both shoulders was noted, in addition to inconsistencies in examination of the lumbar spine.
Dr Keller states that it is “plausible” that the motor accident could have temporarily exacerbated the longstanding cervical spine condition. He found a mild whiplash disorder. The doctor found a 25% whole person impairment of the cervical spine, noting the multilevel fusion resulting in a DRE Category IV. He, however, based on the information that Dr Kam had found such surgery to be an option in March 2016, a 100% deduction was applied.
RE-EXAMINATION
Mr Allouche attended the medical suites of the Commission on 9 April 2025. He was unaccompanied and an interpreter, Hafez Assoum, NAATi no. CPN5KR53J was in attendance for the interview and examination. He arrived by taxi.
Pre-accident history
Mr Allouche stated that he had been in good health prior to the accident and had been working as a forklift driver full-time for 20 years. Prior to the accident he occasionally played football and has four children and lives alone as he is divorced from his wife.
There was a previous motor vehicle accident on 15 January 2015 when he injured his neck and left shoulder and was consulted by Dr Kam, neurosurgeon. Dr Kam diagnosed cervical spine and left shoulder injury which was discogenic in origin. Mr Allouche stated that despite this accident, he was asymptomatic in 2019. His treating GP had recorded low back pain in November 2018 and persistent neck pain in 2016 and recorded that he wasn’t working at that stage. Mr Allouche states that he was working at that time.
History of motor vehicle accident
Mr Allouche was driving a forklift at work when hit in the rear by another forklift driver. He was able to complete his day at work but states that he developed pain in the left shoulder region at night.
Subsequent history and treatment
Mr Allouche consulted his GP two days after the accident when low back pain developed and his GP referred him for an MRI and cervical spine X-ray. A cortisone injection was organised for the lumbar spine which was beneficial but not for the cervical spine. Since the accident, he has continued to work five hours per day. He states that he developed initial numbness in the left hand but the rest of the arm was asymptomatic.
He was again referred to Dr Kam who reviewed the MRI and noted multilevel disc degeneration with some left C6/7 foraminal stenosis. He also noted some degenerative changes in the lumbar spine with no neural impingement. Initially he had determined there was no good surgical options. Dr Kam also documented that Mr Allouche had ongoing symptoms involving his neck and shoulder over the five years since his last consultation in 2016. He noted a flareup of the symptoms after the motor vehicle accident in October 2019. At the time of his examination, he recorded no signs of radiculopathy but due to increase in symptoms surgery was undertaken on 21 July 2023 with an anterior cervical fusion at C4 – C7 levels. Mr Allouche stated that there was not much improvement after the surgery.
Further injuries or accidents
There was a further accident at work on 24 April 2024 when he was walking and hit by another forklift. He was knocked over and landed on his left shoulder but states that there was no consultation with any doctors and since then has pain in the right posterior thigh region when sitting.
Current symptoms
There is persistent pain in the left lateral side of his neck radiating into the left trapezius muscle, left axilla and radiating also below the left scapula. The arms are asymptomatic, and he gets pain in the right posterior thigh region with prolonged sitting but no radiation of this pain.
Mr Allouche lives alone and states that his daughter or cousin often bring him meals and his son does gardening. He has a cleaner on a regular basis to the house. He is able to drive for 10 minutes before getting thigh pain and walk for 5 to 10 minutes but this is tiring. At present, he continues to work five hours a day for four days per week for a total of 20 hours weekly.
Present medication
At present Mr Allouche takes Voltaren 25 mg three times a day, Lyrica 75 mg one or two at night and occasionally Panadeine Forte. He consults a physiotherapist on a weekly basis which gives brief relief of pain.
He consulted Dr Kam a year ago and has another appointment next week. He also states that he had a recent MRI study.
No radiological forms were available for inspection.
Clinical examination
Mr Allouche sat comfortably during the interview and stated that he is right-handed. His weight was 79 kg and height 169 cm.
Cervical spine
On testing range of movement, there was a symmetrical reduce range of movement in all directions of 10% of expected range with no asymmetry. On palpation there was tenderness and guarding in the left paravertebral muscles, left trapezius muscle and sternocleidomastoid muscle. There was a surgical scar on the anterior neck. This was 6 cm in length with no colour contrast, no sutures were visible, and the scar was barely visible. Mr Allouche can locate the scar but is not worried about it.
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 28 cm in the left and 29 cm on the right (10 cm above the olecranon process) and in the upper forearms 26 cm on the left and 26.5 cm on the right (5 cm below the olecranon process). This is within normal limits for a right-handed man.
Lumbar spine
Mr Allouche walked with a slow, shuffling gait and was unsteady when attempting to walk on his heels and toes. Squatting also made him feel unbalanced.
On testing range of movement, flexion/extension side bending and rotation were all 50% of expected range with no asymmetry. On palpation no guarding or spasm was noted in the lumbar musculature. Straight leg raise was 60° right and left with limitation due to hamstring tightness and a negative sciatic nerve root tension test.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the lower thighs 37 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 32 cm bilaterally.
Shoulders
On inspection of the shoulders no muscle wasting was apparent and on passive movement no crepitus was detected. Active movements were measured using a goniometer and repeated three times. Passive movement was limited due to voluntary muscular restriction and pain in the left trapezius muscle. He stated that active movement also caused pain in the left trapezius muscle.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 120°/140° | 70°/50°/70° |
| Extension | 40° | 20° |
| Adduction | 40° | 30° |
| Abduction | 130°/150° | 80°/70° |
| Internal Rotation | 80° | 70° |
| External Rotation | 80° | 80° |
Inconsistency
Medical Assessor Moloney discussed with Mr Allouche what was causing inconsistency with testing range of movement of the shoulders. He stated that there were variations in pain at the time of our examination and when examined by previous medical doctors. He also gave the opinion that his left shoulder pain was getting much worse recently. Assessor Moloney explained to Mr Allouche via the interpreter, that due to inconsistency in shoulder movement it was not appropriate to use range of movement to assess impairment and Mr Allouche confirmed he understood this.
DETERMINATIONS
Cervical spine
At the time of the subject examination of the cervical spine, guarding was present with no dysmetria and no signs of radiculopathy in the upper limbs. This would give a classification DRE category ll which is 5% whole person impairment. However, there has been a fusion of C4 – 7 which is DRE category IV which is 25% whole person impairment undertaken in 2023.
The treating neurosurgeon, Dr Kam had assessed Mr Allouche in 2015 and 2016. In March, 2016 he recorded foraminal stenosis at the C4/5 and C5/6 and stated that surgery was an option, and he would need anterior cervical discectomy and fusion of the C4/5 and C5/6 level. Mr Allouche stated that he was unsure whether to have the surgery at that time. The next consultation was on 26 March 2020. At that time, Dr Kam recorded globally reduced range of movement in the neck and a normal neurological examination of the upper limbs. His initial treatment was CT guided cervical spine injections and stated that there was no good surgical option at that time. Another consultation on 23 March 2021, Dr Kam recorded ongoing symptoms involving his neck and shoulder over the five years since his initial consultation in 2016 with the recent flareup from the motor vehicle accident. He again noted slightly reduced range of movement and normal neurological examination of the upper limbs. Mr Allouche told him that the symptoms had significantly worsened since the accident, and he was now keen for surgery.
The MRI dated 4 March 2020 of the cervical spine reported no dramatic changes since 2015. There were fairly advanced degenerative changes in narrowing the cervical disc spaces especially C4 – 5, C5 – 6 and C6 – 7 with slight narrowing of the exit foramina.
It is necessary for the Panel to determine whether the subject motor accident has caused a material contribution to the cervical spine injury that has given rise to a need for cervical spine surgery undertaken in 2023.
The claimant has suffered a clear pre-accident injury to his cervical spine. Radiological evidence from at least October 2014 demonstrates prominent C4/5 and C5/6 degenerative disc disease with severe left foraminal narrowing at C4/5 and bilaterally at C5/6 (MRI
19 February 2015). The Panel also acknowledges the post-accident MRI of 4 March 2020 that concludes there being no dramatic changes since the 2015 scan, with note of narrowing of the cervical disc spaces especially C4/5, C5/6 and C6/7.
The Panel further finds that based upon the history recorded in his report of 23 March 2021 of the claimant having ongoing symptoms for the prior five years, the claimant was more likely than not symptomatic in respect of his neck at the time of the subject accident. This finding is made despite the lack of recorded complaints leading up to the accident in the clinical record of the claimant’s GP. This is to be contrasted with the consistent and frequent complaints of neck symptoms following the subject accident.
Whilst the cervical spine fusion was recommended as an option by Dr Kam in March 2016, the claimant did not proceed at the time with the surgery and reports that his symptoms improved, which is consistent with the clinical evidence. It is not until after the subject accident that the claimant underwent the surgery due to his reported increased symptomatology. The clinical file of the claimant’s GP and that of Dr Kam is consistent with the claimant’s report that cervical spine symptoms significantly increased following the accident.
Accordingly, the Panel accepts that whilst the radiology does not establish any significant change in pathology, the motor accident did cause an aggravation of the pre-existing condition, and the resultant increase in symptomatology materially contributed to the claimant undergoing the cervical spine fusion.
The Panel concludes that the motor accident demonstrates a significant aggravation of the pre-existing cervical spine condition and therefore the motor accident made a material contribution to the need for surgery (see: AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710).
The Panel is satisfied that the claimant, in all likelihood, had ongoing symptoms since the earlier motor accident, as noted by Dr Kam. However, in terms of assessment of whole person impairment, the available medical evidence does not establish a situation where the Panel can be sufficiently satisfied that the claimant was suffering symptoms such as dysmetria and guarding at the time of the motor accident, that would give rise to rateable assessment of pre-existing whole person impairment. Accordingly, no deduction for pre-existing impairment is made.
Lumbar spine
There was a soft tissue injury to the lumbar spine in the stated accident and at the time of the Review examination, no dysmetria was noted on testing range of movement with no guarding or spasm on palpation and no signs of radiculopathy in the lower limbs. This gives a classification DRE category l which is 0% WPI. Medical Assessor Mitchell came to the same conclusion.
Shoulders
There is no documentation of an injury to the left shoulder joint in the subject accident. There was documentation of pain by the treating GP which was mainly related to spasm in the left trapezius muscle. An MRI dated 29 November 2020 which is over one year after the accident reported intact tendons with chondral fissure and mild thickening of the subacromial – subdeltoid bursa. An ultrasound in November 2019 reported bursitis of the left shoulder. There was also a past history of left shoulder pain after the original accident in 2015.
However, noting the clinical records of the GP the Panel accepts that the claimant has suffered a soft tissue injury of the left shoulder as a result of the motor accident. The claimant made complaint of shoulder symptoms to Dr Ali on 13 October 2019 with a note of tenderness over left arm with a bruise and left posterior shoulder. He again attended on
12 November 2019 with ongoing left shoulder symptoms and was referred for the ultrasound. The claimant also had an injection to the left shoulder in November 2019 and consistently complains of symptoms after the accident. The Panel accepts that the mechanism of motor accident could give rise to a left shoulder injury.
At the time of the examination by the Panel, there was inconsistency on testing range of movement of both shoulders which was also documented by Medical Assessor Mitchell at the time of his examination in July 2024. Due to this inconsistency range of movement could not be used to assess permanent impairment. This is in consideration of cls 6.40 and 6.41 of the Guidelines.
Left shoulder is assessed by analogy. Using table 18 of AMA4 , the Panel assesses the left acromioclavicular joint as 15 % WPI and with reference to Table 19 as a mild level of crepitation which is 10% of the joint impairment. 10% of 15% is 1.5% and rounded up to 2 % whole person impairment for the left shoulder.
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical spine | AMA table 73 DRE 4 | yes | 25% | 0% | 25% |
| 2 | Lumbar spine | Table 72 | yes | 0 % | 0 % | 0% |
| 3 | Left shoulder | Ama table18,19 MAA guidelines 6.40/6.41 | yes | 2 % | 0 % | 2 % |
* %WPI = percentage whole person impairment
CONCLUSION
Accordingly, the Panel finds the claimant to have suffered, as a result of the motor accident, an aggravation to pre-existing degenerative changes to the claimant’s, cervical spine, lumbar spine and left shoulder giving rise to a total whole person impairment of 27%.
The medical certificate of Medical Assessor Mitchell dated 26 July 2024 is revoked. A new certificate is provided at the beginning of these reasons.
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