Antonio v Insurance Australia Limited t/as NRMA Insurance

[2025] NSWPICMP 60

DETERMINATION OF REVIEW PANEL

CITATION:

Antonio v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 60

CLAIMANT:

Marco Antonio

INSURER:

Insurance Australia Limited t/as NRMA Insurance

REVIEW PANEL

MEMBER:

Cassidy

MEDICAL ASSESSOR:

Couch

MEDICAL ASSESSOR:

Lahz

DATE OF DECISION:

4 February 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; motor accident March 2019; Medical Assessor (MA) Cameron determined whole person impairment at 6%; claimant’s application for review under section 7.26; claimant riding motorcycle hit from behind and fell; claimant alleged injuries to his head (with brain injury), cervical, thoracic and lumbar spine, left ankle, right upper limb (shoulder, forearm and hand/finger) plus scarring; claimant had anaphylactic reaction to anaesthetic administered for right shoulder accident related surgery and alleged dizziness developed or worsened after this; Panel satisfied claimant may have injured his head, developed a functional neurological disorder (FND) and injured his cervical and lumbar spine; Panel satisfied claimant injured his left ankle and right shoulder due to the mechanics of the fall and that the loss of sensation at the right forearm was related to the accident; Panel not satisfied any finger or hand injury occurred; re-examination conducted by MA Lahz; Held – while claimant may have injured his head, there was no evidence that would enable the Panel to assess an impairment due to head injury; the FND did not attract an impairment under the AMA 4 Guides or Guidelines and no objective evidence of equilibrium impairment; spinal impairment 0%; right shoulder range of motion assessed at 2% and nerve damage in forearm at 1%, no assessable impairment in any other part of the body and arthroscopic portal scars assessed at 0%; while outcome the same, impairment percentage differed therefore certificate of MA Cameron revoked.

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 Cameron dated 20 April 2024 and the “combined certificate” issued by Medical Assessor Cameron dated 25 June 2024.

2.     Certifies that:

(a)    the degree of Mr Antonio’s permanent impairment resulting from the injuries the Review Panel was asked to assess is 3% which is not greater than 10%, and

1.     the degree of Mr Antonio’s permanent impairment when combined with the assessments of Medical Assessor Grainge and Medical Assessor Haber is 3% which is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

1. Marco Antonio was involved in a motor accident on 22 March 2019 at Dee Why. He was hit from behind while riding his motorbike in a roundabout.

2. Mr Antonio says he injured his spine; right shoulder, arm and hand; his left ankle and his head in the accident. He says he developed a psychological injury as a result of the accident. He also says that during the course of an operation on his injured shoulder, he had an anaphylactic reaction and sustained consequential injuries as a result. He also claims there is scarring from the surgery.

3. Mr Antonio made a claim for statutory benefits and then damages against the Nominal Defendant on the basis that the vehicle that hit his motorbike could not be identified. The Nominal Defendant allocated the claim to NRMA and NRMA is authorised on behalf of and in the name of the Nominal Defendant to deal with Mr Antonio’s claim and any proceedings relating to it.[1] The insurer understands that NRMA has admitted liability for the claims on behalf of the Nominal Defendant.

   [1] See s 2.36 of the Motor Accident Injuries Act 2017.

4. A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with Mr Antonio’s damages claim and he referred that dispute to the Personal Injury Commission (the Commission) for assessment.

5. On 20 April 2024 Medical Assessor Cameron determined Mr Antonio had a WPI of 6% which is, of course, not greater than 10%. As the claimant did not agree with the determination, he lodged an application with the Commission seeking a review of the Medical Assessor’s decision.

6. On 8 August 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and the President’s delegate convened a Review Panel to conduct the Review. The current Review Panel (the Panel) was convened on 2 October 2024 due to the unavailability of one of the original members of the Panel.

7. The claimant has been assessed by others as follows:

   (a)    Medical Assessor Grainge assessed the claimant’s collapsed lung (related to the unsuccessful surgery and the anaphylactic reaction to the anaesthetic) on 21 March 2024 and determined that the injury had resolved and there was no WPI arising from it;

   (b)    Medical Assessor Haber assessed the claimant’s cardiovascular state on 29 April 2024 and determined that any reaction from the claimant to the anaesthetic administered to him during the unsuccessful shoulder surgery had resolved leaving no impairment, and

   (c)    Medical Assessor Sidorov who assessed the claimant’s psychiatric injury on 21 February 2024 and determined a WPI of 6%.

8. The Panel understands that none of the above three assessments are the subject of an application for review.

9. The Panel notes that Medical Assessor Cameron, on 25 June 2024, issued a “combined certificate” combining his impairment (6%) with the impairments of Medical Assessors Grainge (no impairment) and Haber (no impairment).

LEGISLATIVE FRAMEWORK

General

1. Mr Antonio’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).

2. In a claim for lump sum compensation, damages are assessed in accordance with common law principles as modified by the MAI Act. However no damages may be awarded if the claimant’s only injuries are “threshold injuries” within the meaning of s 1.6 of the MAI Act.[2] That is not an issue in this case as the insurer has conceded the claimant has injuries that are not threshold injuries.

   [2] Section 4.5 of the MAI Act.

3. Under Part 4 of the MAI Act, an injured person can make a claim for damages for types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.

4. Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[3] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.

   [3] The current maximum as of October 2024 is $654,000.

5. If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[4]

[4] See s 4.12 of the MAI Act.

Dispute resolution

1. Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Cameron’s, further medical assessments and the review of medical assessments by this Panel.[5]

   [5] Sections 7.20, 7.24 and 7.26.

2. Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (s 7.26(2) and (2B)).

3. The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.26(3A)).

4. Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

Permanent impairment assessment

1. Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[6] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).

   [6] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.

2. Due to the nature of the injuries sustained by the claimant, chapter 3 (musculoskeletal), chapter 4 (the nervous system) and chapter 13 (skin) of the AMA 4 Guides are relevant.

ASSESSMENT UNDER REVIEW

1. Medical Assessor Cameron examined the claimant on 9 April 2024 and issued his certificate on 20 April 2024.

2. At [2] Medical Assessor Cameron lists the injuries he was asked to assess as follows:

   (a)    lumbar spine – soft tissue injury, intermittent radiculopathy symptoms, pain;

   (b)    left ankle – ongoing pain and stiffness;

   (c)    cervical spine – disc protrusion in the C4/5, C5/6 and mild mass effect on ventral cord at C4/5 level, non-symmetrical loss of movement;

   (d)    right shoulder – right massive rotator cuff tear involving the supraspinatus and infraspinatus tendons, capsulitis, right shoulder arthroscopy and rotator cuff repair, graft augmentation, subpectoral bicep tenodesis, bursitis;

   (e)    brain / head – neurocognitive disorder due to traumatic brain injury, post-surgical dizziness and headache, persistent postural perceptual dizziness (PPPD), post-surgical vertigo;

   (f)    skin / scarring – 7-8 surgical stab wound scars at the front and back of the right shoulder, cut lip;

   (g)    right elbow – numbness and nerve injury;

   (h)    thoracic spine – soft tissue injury, intermittent radiculopathy symptoms, pain, and

   (i)    right hand trigger (4th) finger - Right middle finger (MF) and ring finger (RF) flexor tenosynovitis with recurrence of trigger.

3. Medical Assessor Cameron takes a history of the claimant’s pre-accident medical and domestic situation (no previous medical issues other than asthma) and the history of the motor accident. The Medical Assessor takes a history of the development of symptoms and treatment noting the claimant was taken from the accident scene by ambulance to hospital but discharged later the day. The Medical Assessor has a history of the right shoulder surgeries, the first abandoned because the claimant has an anaphylactic reaction to the anaesthetic. The second has had limited success.

4. The claimant said he has marked restriction in his right shoulder and upper arm, intermittent dizziness, occasional chest and neck pain and vertigo after the first surgery.

5. After examining the claimant, Medical Assessor Cameron diagnosed:

   (a)    a rotator cuff tear at the right shoulder;

   (b)    soft tissue injuries to the spine, left ankle, head and right hand;

   (c)    no traumatic brain injury, and

   (d)    minor scarring to the skin.

6. In terms of WPI he found:

   (a)    neck – no significant clinical findings diagnostic related estimate (DRE) I – 0%;

   (b)    thoracic spine – DRE 1 – 0% again because of no clinical findings;

   (c)    lumbar spine – no significant clinical findings and DRE I = 0%;

   (d)    left ankle – normal range of motion therefore no assessable impairment;

   (e)    right shoulder – 5% on the basis of restricted motion;

   (f)    head – soft tissue injury has recovered no evidence of brain trauma – 0%;

   (g)    skin minor scarring 0%;

   (h)    right upper extremity nerve injury – 1%, and

   (i)    right hand middle finger – no restricted motion therefore 0%.

ISSUES FOR DETERMINATION

Claimant’s submissions

1. The claimant says the Medical Assessor did not consider the report of Ms Ebert dated 11 July 2021. She had determined the claimant had symptoms of a “neurocognitive disorder due to traumatic brain injury.” The claimant says the Medical Assessor determined the claimant did not have a brain injury despite there being this evidence of such an injury and that he did not engage with a clearly articulated argument.

2. The claimant says the Medical Assessor’s reasons are inconsistent in that he says the Medical Assessor says he sustained a soft tissue injury to his shoulder but then finds a rotator cuff injury with surgical treatment. The claimant points to the evidence demonstrating that the claimant had a full thickness rotator cuff tear, and this is “more than a soft tissue injury” as defined in the Act.[7]

   [7] A soft tissue injury generally is a medical term used to describe an injury to tissue in the body that is not hard tissue such as bones or teeth. A soft tissue injury (as defined in s 1.6 in the MAI Act) is a threshold injury. The insurer in this matter has conceded the claimant sustained non-threshold injuries.

Insurer’s submissions

1. The insurer notes the Medical Assessor did refer to the report and says that as a psychologist, Ms Ebert was not qualified to diagnose a brain injury. The insurer says the Medical Assessor set out his reasoning of why there is no evidence of brain trauma and says that the criteria required by the Guidelines (for an impairment) have not been met.

2. The insurer suggests the diagnosis of a soft tissue injury to the shoulder is irrelevant as impairment to the shoulder is determined by range of motion and not by way of a diagnostic related estimate methodology.

Procedural matters

1. On 12 August 2024 the previously constituted Panel issued directions to the parties seeking an indexed and paginated bundle of documents upon which they relied. The claimant’s bundle was due on 28 August 2024 and the insurer’s bundle was due on 11 September 2024. Both parties complied with the directions and provided bundles.

2. The Panel met on 21 October 2024 and reported to the parties the next day. The Panel noted that the matters in issue between the parties as identified in the application for review and the reply appear limited to:

   (a)    whether the claimant sustained a head injury in the accident and if so, what is the impairment resulting from it (noting cl 6.164 of the Guidelines in particular);

   (b)    whether the claimant sustained a right shoulder injury in the accident and if so, what is the impairment resulting from it (noting the range of motion model and whether there is any pre-existing impairment);

   (c)    the degree of impairment resulting from the cervical, thoracic and lumbar spine (noting causation of these injuries does not appear to be in issue);

   (d)    the degree of impairment resulting from the left ankle injury (noting that range of motion was normal in the left ankle when examined by Medical Assessor Cameron);

   (e)    the degree of impairment resulting from the injury to the right upper arm and hand (noting the nerve injury in the arm and the normal range of motion in the fingers when examined by Medical Assessor Cameron), and

   (f)    the degree of impairment resulting from scarring which the Panel proposed to assess on the basis of the Table for the Evaluation of Minor Skin Impairments (the TEMSKI).

3. The Panel noted that only two injuries assessed by Medical Assessor Cameron had attracted a WPI finding and said:

   “The claimant is asked to advise, considering his current state, whether there are any injuries that he agrees have resolved or that would result in no impairment. This would allow the Panel to focus on the ‘real issues in dispute’ between the parties as required by the guiding principle found in s 42 of the Personal Injury Commission Act 2020.”

4. The Panel also asked the claimant to provide a reference to the medical evidence that supported a finding of a brain injury caused in the accident and, to assist the Panel in assessing impairment, the page references for:

   “… ‘one or more significant, medically verified abnormalities such as an abnormal initial post-injury Glasgow Coma Scale score, or post traumatic amnesia, or brain imaging abnormality’ as required by cl 6.164 of the Motor Accident Guidelines.”

5. The Panel noted that the insurer’s bundle of 1,500 pages appeared to include a number of irrelevant documents and that the claimant’s bundle of 550 pages included a duplicate set of hospital notes already provided by the insurer. The Panel noted that most of the documents attached to the application and reply forms were not referred to in the parties’ submissions and queried their relevance.

6. The Panel directed the claimant to upload a revised bundle by 11 November 2024 comprising:

   (a)    revised submissions addressing matters raised in the report and the injuries in dispute, causation of injuries in dispute and the assessment of impairment resulting from those injuries, and

   (b)    a revised bundle of documents referred to in the submissions and relevant to the Review.

7. The claimant provided only a response to paragraphs 11, 12 and 13. The claimant submitted that all injuries assessed by Medical Assessor Cameron were maintained. The claimant provided the report of Ms Ebert dated 13 May 2021 requested by the Panel and provided a list of 16 documents (and multiple entries within those documents) which the claimant said supported a finding of a brain injury. The claimant did not address the clause in the Guidelines referred to by the Panel or make any further submissions about any impairment caused by any brain injury.

8. The insurer was directed to provide:

   (a)    revised submissions addressing paragraph 12 of the report, and

   (b)    a revised bundle of documents referred to in the submissions and relevant to the review.

9. The insurer provided a revised bundle of 271 pages and submissions on 28 November 2024. The insurer’s submissions address the injuries claimed as follows:

   (a)    there is no evidence of traumatic brain injury that would satisfy the Guidelines or the Guides;

   (b)    there is no evidence of significant clinical cervical, thoracic or lumbar spine findings in particular noting no signs of radiculopathy and no non-verifiable radicular symptoms;

   (c)    the insurer accepts there is some WPI in the right shoulder resulting from the accident, and refers to the range of motion method adopted by Medical Assessor Cameron and the insurer’s expert Dr Mitchell;

   (d)    the insurer appears to accept a right elbow injury but says impairment should be no more than 1%;

   (e)    the insurer says the range of motion method is appropriate for the hand and finger impairment but says there is no evidence of right-hand impairment;

   (f)    the left ankle should be assessed by way of a loss of range of motion, and

   (g)    scarring should be assessed according to the TEMSKI and at 0%.

10. The claimant did not provide the revised submissions as directed and did not provide the revised bundle of documents as directed. On 17 December 2024 the claimant lodged an application to admit six additional documents. The Panel determined that despite the short notice (before the re-examination), the documents should all be admitted into evidence and considered.

11. The parties were advised that both medical assessors would be conducting the medical re-examination on 20 December 2024 and details were given of the details for the re-examination. The parties were later advised that due to the unavailability of Medical Assessor Couch, Medical Assessor Lahz would undertake the re-examination on her own.

12. The claimant attended the re-examination with Medical Assessor Lahz. The Panel met on 29 January 2025 to discuss the Medical Assessor’s findings.

REVIEW OF THE EVIDENCE

1. The insurer’s revised bundle of documents comprised 271 pages.

2. The claimant’s bundle of documents comprises more than 550 pages. Within that bundle is the same set of hospital notes provided by the insurer and several documents the relevance of which the Panel questioned. The claimant’s additional bundle of documents filed shortly before the re-examination comprises 18 pages.

3. The Panel is mindful of the words of Justice Basten in Rahman v Insurance Australia Limited t/as NRMA Insurance [2022] NSWSC 1079 as follows:

   “The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. … Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical.As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”

1. The Panel has considered all of the documents but will refer below to those documents the Panel considers relevant to the issues in dispute.

Claim form and claim documents

1. The claimant’s application for personal injury benefits (claim form) was signed as true and correct and dated 29 March 2019.  The claimant says he was completing a turn (at a roundabout) when he felt a hit from behind and found himself on the road looking at the sky.

2. The claimant denied any previous claim but did concede he had a previous relevant condition namely tendonitis of the shoulder.

3. The claimant said he injured his right shoulder, lower back, neck, ankle and head. He says he was taken to Northern Beaches Hospital (NBH) and had only one day off work.

First responders and hospital notes

1. Ambulance received a call at 6.26am and were at the scene 13 minutes later. Their report[8] records that police were on the scene along with an off duty intensive care paramedic. The report goes on to say:

   “[On examination] nil [loss of consciousness] (helmet intact and already removed), nil sensory deficits, nil neck tenderness, chest, Abdo, upper legs all [no abnormality detected]. Pain to [right] shoulder, sacral spine and [left] ankle. The [patient] had almost completed a right turn and was about to exit the roundabout when he was hit from behind by a motor vehicle entering the roundabout. [Patient] was tipped off his bike, landing on his [right shoulder] and the bike fell onto his [left] ankle. Speed (estimated only) as slow to medium. [Patient] fully alert at all times and did not require pain relief.”

   [8] Page 15 of the insurer’s revised bundle.

2. The claimant’s Glasgow Coma Scale (GCS) was reported to be normal at 15 out of 15 and pain was recorded as 3 out of 10 at 7.00am and 2 out of 10 at 7.10am.

3. The discharge summary from NBH after the accident[9] records shoulder and ankle pain and X-rays which revealed no abnormality. The nursing notes record a low-speed accident “nil LOC, helmet intact, patient recalls event”. He was reported as alert and orientated with a GCS of 15.

   [9] Page 187 of the claimant’s bundle.

4. On 16 September 2019 the claimant was to have right shoulder arthroscopy and rotator cuff repair, graft augmentation and subpectoral biceps tenodesis at NBH however the surgery was abandoned as the claimant had an allergic reaction to the anaesthetic administered.[10]

   [10] The operation report is at page 21 of the insurer’s revised bundle.

5. The claimant had the right shoulder surgery on 11 November 2019 at NBH with the same operative team and with no post-operative problems recorded.[11]

   [11] Page 26 of the insurer’s revised bundle.

6. On 23 November 2020 the claimant returned to theatre at NBH for a right shoulder arthroscopic capsular release. The report notes 70 degrees of external rotation was obtained which was equivalent to the opposite uninjured side.

Treating medical records and reports

1. The claimant’s pre-accident records reveal gout in the left and right ankle since 2009 treated by medication (Alopurinol).

2. On 6 October 2011 there is a note by Dr Saunders of right shoulder pain worse when moving arm and the claimant had injured his back two days before. On examination the claimant was tender in the rotator cuff with a painful arc and the right shoulder had decreased internal rotation. Radiology was requested and a script for Voltaren was given.

3. On 27 February 2012 it is recorded that the claimant had right anterior chest pain, right shoulder pain and right upper back pain for two days.

4. In December 2014 the claimant had gout in his left knee and right heel and had developed shoulder pain while lifting in the gym and doing push-ups. He did however have normal range of motion.

5. Mr Antonio had an episode of gout in his right foot in November 2017.

6. The claimant first attended Dr Saunders two days after the accident on 24 March 2019 complaining of lower back pain, right shoulder pain, left ankle and leg pain, right neck and trapezius pain.

7. Headaches were noted on 28 March 2019 along with right forearm pain.

8. Dr Chia wrote to Dr Saunders on 19 May 2020 noting it was six months since the rotator cuff repair and graft. The claimant was said to have no “significant ongoing discomfort” in the shoulder and was making good progress in most areas other than external rotation.

9. Dr Puhl, neurologist and neurophysiologist wrote to Dr Saunders on 3 June 2020.[12] He says the claimant “presents with dizziness following a motorbike accident on 22 March 2019, associated with a head injury and possible brief loss of consciousness.” The history given by the claimant was that:

   “He does not remember details but thinks that he may have completely lost consciousness, although this would have been for seconds only. This was not documented by the ambulance crew who arrived sometime later. He was mildly confused initially and was reviewed at the emergency department…”

   [12] Page 243 of the insurer’s revised bundle.

10. The claimant reported vertigo after the first attempt at surgery occurring a couple of times a day but settling to twice a month.

11. On examination a number of tests were administered. Dr Puhl said there was “a possible mild closed head injury and brief loss of consciousness, dizziness and vertigo associated with the reaction to the anaesthetic and that symptoms have settled and today his neurological examination was unremarkable.” He suspected mild vestibulopathy associated with the surgery but could find no evidence of benign paroxysmal positional vertigo (BPPV).

12. Dr Puhl reviewed the claimant and wrote to Dr Saunders again on18 November 2020.[13] He noted significant improvement in terms of balance, regular exercises at home and said no further investigations or follow up were needed.

    [13] Page 242 of the insurer’s revised bundle.

13. Dr Chia updated Dr Saunders on the claimant’s progress on 4 December 2020. The claimant had full right shoulder forward elevation and internal rotation but only 10 degrees of active external rotation (compared with 30 degrees on the right). On 2 February 2021 the claimant was achieving full right shoulder forward elevation and 20 degrees of external rotation.

14. The claimant had physiotherapy from Ms Reynolds who reported to Dr Saunders and Ms Sarkissian on 11 May 2021 on the presentation, findings and treatment.

15. Dr Chia wrote to Dr Saunders on 22 March 2022 updating Mr Antonio’s progress and noting problems with restricted external rotation. A splint was recommended.

16. The claimant was referred for hand therapy by Dr Saunders on 10 April 2022 due to “right ring finger” trigger symptoms following physiotherapy.[14] The claimant had an ultrasound guided injection into the finger on 17 March 2022.

    [14] Page 67 of the insurer’s revised bundle.

17. Dr Chia wrote to Dr Saunders on 27 October 2022[15] recording, “full active right forward elevation and internal rotation, 15 degrees of active external rotation”. He advised this was due to weakness and a tendon transfer was discussed but Dr Chia advised it would not resolve the problem.

    [15] Page 27 of the claimant’s bundle.

18. Dr Holford, pain specialist wrote to Dr Saunders on 14 May 2024[16]. He has a history of the surgeries and that the claimant “continues to experience pain over the right shoulder region extending into the upper limb” and in the chest and right scapular region. He also notes that “more recently, he has developed bilateral neck pain.” The claimant said physiotherapy and exercise physiology hand been helpful but had been stopped by the insurer and he was taking various pain-relieving medications.

    [16] Claimant’s additional bundle.

19. Dr Holford advised that physiotherapy and exercise physiology should recommence, and medication was discussed.

20. Dr Chia wrote to Dr Saunders on 10 December 2024 after the recent MRI. He advised the claimant to retrain for another job that did not involve repetitive above shoulder level activities and informed him that further surgery would not result in a normal shoulder.

Ms Ebert

1. Ms Ebert, clinical psychologist reported to Dr Saunders on 13 May 2021. She notes the claimant presented with “symptoms of” the following:

   (a)    neurocognitive disorder due to traumatic brain injury;

   (b)    rotator cuff injury;

   (c)    anaphylaxis September 2019;

   (d)    report of rotator cuff 11 November 2019;

   (e)    PPPD, and

   (f)    adjustment disorder.

2. Ms Ebert had a history of the accident, the claimant being unconscious for some time and that his helmet had “drag marks on it” and his right shoulder and right side of his body were in pain. He reports being taken to hospital by ambulance, feeling cold, he could not move his arm and had pain in his foot and shoulder and his head felt numb. The claimant said he was X-rayed, discharged and he caught the bus home. He felt dizzy when he got home.

3. She records that the claimant had rotator cuff surgery in September 2019, developed a reaction to the anaesthetic and then had the rescheduled surgery in November 2019. The claimant reported more intense dizziness and vertigo following the first attempt at surgery.

4. The claimant documented his treatment including physiotherapy.

5. The claimant complained of a reduction in opportunities to work, difficulty performing, inability to drive, loss of fine motor skills and an inability to attend to personal care. She details his current physical symptoms including pain and dizziness.

6. Her assessment of his psychological symptoms was that his symptoms were “suggestive of”:

   (a)    normal depression, mild anxiety and normal stress;

   (b)    normal level of post-traumatic stress disorder;

   (c)    mild dizziness, and

   (d)    mild to moderate concussion symptoms.

7. She recommended the claimant participate in fortnightly psychology session to develop his cognitive behavioural skills and that he have driving lessons to develop his driving skills and confidence.

8. On 11 July 2021 Ms Ebert wrote again to Dr Saunders including the same list of six symptoms on presentation. She records Mr Antonio’s progress and the dizziness which is said to come on only after periods on the computer when he stands up. She also notes he says he receives most benefit from ongoing physiotherapy and exercise physiology. He also reported progress with driving, and he was feeling more confident in the workplace.

9. Ms Ebert wrote to Dr Saunders on 12 September 2023 concerned at the claimant’s development of depression. He was said to be sleeping well with Endep but noticed dizziness had returned, when he was driving.

10. On 16 November 2024, Ms Ebert lodged a sixth Allied Health Recovery Request (AHRR) with the insurer seeking a further eight monthly psychology sessions in addition to the 34 she had already conducted. In this document she diagnoses a “post-concussion amnesia, persistent postural perceptual dizziness (PPPD)” and an adjustment disorder in accordance with Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). She also mentions headaches occurring one to two times a week, social withdrawal, disappointment and frustration due to the physical injuries and he has constant and ongoing dizziness.

Radiology

1. On 13 May 2019 the claimant had an MRI of his right shoulder[17] which reported on “large full-thickness retracted tears of the full width of the supraspinatus and infraspinatus tendons.”

   [17] Page 20 of the insurer’s revised bundle.

2. On 4 October 2019 the claimant had an MRI of his cervical spine and brain.[18] The report noted:

   (a)    there was a very shallow posterior disc protrusion at C4/5 and C5/6;

   (b)    a mild effect on the central cord at C4/5 but no abnormal cord signal, and

   (c)    the brain MRI was normal and in particular there was no intracranial haemorrhage or collection of blood in the brain.

   [18] Page 24 of the insurer’s revised bundle.

3. On 4 May 2020 the claimant had a further MRI of the right shoulder[19] which reported the rotator cuff repair was intact but there was minor bursitis and capsulitis. On 8 October 2020 a further MRI was done which reported an unaltered appearance since May with less inflammation.

   [19] Page 45 of the insurer’s revised bundle.

4. On 24 November 2020 the claimant had a chest X-ray which noted a linear density and suspected atelectasis or gaseous distention of the oesophagus or a pneumomediastinum, and a follow up was suggested within 6-12 hours.

5. A lump on the right elbow was investigated with an ultrasound on 6 May 2021 and considered to be subcutaneous fat and no soft tissue mass or haematoma.

6. On 27 September 2022 the claimant had a further MRI of the right shoulder due to stiffness. The findings were an unchanged rotator cuff tear and no suggestion of adhesive capsulitis.

7. On 26 November 2024 another MRI was undertaken and compared to the previous scan. The rotator cuff tear was intact, there was some moderate tendinosis and degenerative fraying of the labrum.

Medico-legal reports

1. On 3 February 2020 Ms Sarkissian, occupational therapist and rehabilitation consultant provided a report to the insurer on the claimant rehabilitation needs.

2. The claimant was said to have reduced right shoulder movement and weakness in the right arm and shoulder with limitations on driving and difficulty riding his motor bike.

3. The claimant reported to her “he does not remember the incident however he was aware of being attended by an ambulance.” His current reported symptoms were shoulder pain (“severe”), back and neck pain, headaches, dizziness “at random” lasting second to minutes, symptoms of vertigo also “random”, anxiety with riding his motor bike, and sleep disturbance.

4. The claimant denied any pre-accident injuries or functional limitations and says he was fit and well.

5. Ms Sarkissian summarised the claimant’s treatment and undertook some testing and contacted the claimant’s employer and treatment providers. She recommended the claimant continue with his treatment and there be a workplace assessment.

6. The insurer relies on a report from Dr Mitchell, occupational physician dated 31 January 2022 (following a consultation on 28 October 2021).

7. The claimant reported head, neck, right shoulder, lower back and left ankle pain. Mr Antonio is reported to say he thinks he “may have lost consciousness for a few moments.” Dr Mitchell has a history of treatment including surgery but that the claimant has ongoing pain and limited right shoulder motion.

8. Dr Mitchell records that the claimant had specialist physiotherapy for his vestibular disturbance due to dizziness, vertigo, blurred vision and headaches which he said followed the anaphylactic reaction. He reported this had improved by 70% but not resolved.

9. He notes the claimant’s return to work with the police force on light duties and the resumption of his night filling work in December 2021.

10. The claimant reported ongoing neck and right shoulder pain with pins and needles radiating down the right arm and into the fourth finger. No pain in the left ankle was reported, dizziness with vertigo and numbness around the right elbow were also reported.

11. The examination findings included:

    (a)    a full range of cervical, thoracic and lumbar spine movements;

    (b)    normal left shoulder movements;

    (c)    restriction of internal and external rotation but normal other movements;

    (d)    elbow, wrists and hands were normal, and

    (e)    right and left leg were normal.

12. Dr Mithcell considered the right shoulder injury a direct result of the accident and the vertigo and dizziness a consequence of the anaphylactic reaction and therefore also related. WPI was assessed at 2% for the right shoulder only.

13. Dr Breit, orthopaedic surgeon provided a report to the insurer dated 28 April 2022 following a consultation a fortnight earlier.

14. Dr Breit has a consistent history of the accident and the claimant’s treatment and states that the claimant’s current complaints include neck pain, head pain and headaches and multiple sites of pain in the right shoulder. There was a complaint of right elbow numbness. Mr Antonio also complained of thoracic back pain but no lower back pain or foot or ankle symptoms.

15. On examination there was some non-symmetrical loss of neck extension and a limited range of shoulder motion in all six movements. Dr Mitchell noted some minor neurological problems associated with the ulnar nerve.

16. Dr Mitchell was of the view the original shoulder MRI indicated a large chronic retracted tear which he thought was “overwhelmingly a pre-existing condition” and that the surgery was related to that. He also thought the claimant had an “excessive amount of exercise physiology.” He diagnosed soft tissue injuries to the three regions of the spine.

17. Dr Mitchell found a 5% WPI in the cervical spine, no impairment to the lumbar or thoracic spine and a 9% upper extremity impairment (UEI) leading to a 10% WPI impairment for all injuries.

18. Dr Mitchell provided a supplementary report commenting on the MRI report of Dr Snodgrass which he says did not demonstrate any features of an acute tear or extension of a tear which he would have expected if caused by the accident eight weeks earlier.

19. Dr Poplawski, orthopaedic surgeon provided a report to the claimant’s solicitors dated 23 August 2022 following a consultation on 18 July 2022. He examined the claimant by telehealth. Dr Poplawski has a history of the claimant being “momentarily concussed” and taken to NBH. He then has a consistent history of treatment.

20. Dr Poplawski records the claimant has continued restriction of shoulder motion with pain along with pain in the cervical spine and in the right side of the neck.

21. Dr Poplawski records that the claimant’s ankle problem settled.  Dr Poplawski records Ms Ebert’s[20] “diagnosis” of a “neurocognitive disorder due to a traumatic brain injury and postural perception dizziness.”

    [20] He refers to her as Dr Ebert. The Panel notes her letterhead where she refers to herself as Ms and documents a Bachelor of Arts and a Masters in clinical psychology but it does not include any mention of a doctorate.

22. Dr Poplawski provided details of the claimant’s disabilities and limitations and difficulties with work.

23. On examination, Mr Antonio’s left shoulder motion was normal and the right significantly restricted. The cervical spine movements were said to be reduced but no measurements provided.

24. In a separate report Dr Poplawski assessed impairment at 15% as follows:

    (a)    8% WPI for the right shoulder loss of motion;

    (b)    5% for cervical spine on the basis of disc damage on the MRI scan, and

    (c)    2% for scarring.

Other assessments

1. Medical Assessor Sidorov examined the claimant on 7 February 2024 and issued his reasons on 21 February 2024. He was asked to assess a psychiatric condition namely anxiety, depression or psychological sequelae (presumably from the claimant’s physical injuries).

2. The claimant reported significant ongoing depression as a result of his physical state. He was taking an antidepressant, venlafaxine and having therapy.

3. Medical Assessor Sidorov diagnosed a Major Depressive Disorder in accordance with the DSM-5 which had developed secondary to the pain and physical difficulties sustained in the accident. He assessed WPI at 6%.

4. Medical Assessor Grainge examined the claimant on 21 March 2024 and issued his decision the same day.

5. The Medical Assessor noted the past history of asthma and had a consistent history of the accident. He noted three shoulder surgeries, the anaphylactic reaction and abandonment of the first, the development of frozen shoulder after the second and the third surgery and chest x-rays which may have shown atelectasis.

6. Medical Assessor Grainge has a history from the claimant of “no specific symptoms and in fact his asthma appears improved prior to the motor vehicle accident.” The examination was normal.

7. Medical Assessor Grainge diagnosed:

   “Post-operative atelectasis leading to minor lung collapse. This was caused as a consequence of the motor vehicle accident in March 2019 as, but for that motor vehicle accident, Mr Antonio would not have had right shoulder surgery.”

8. He found the collapsed lung had resolved and there was no impairment resulting from the surgery-related injury.

9. Medical Assessor Haber re-examined the claimant on 24 April 2024 in relation to the claimant’ anaphylactic reaction to an anaesthetic.

1. The Medical Assessor had a history of a previous anaphylactic reaction to prawns and a history of the motor accident. He noted the claimant had an anaphylactic reaction during the first shoulder surgery. The claimant made no complaint of any residual cardiac symptoms and on examination there was no abnormality detected.

2. Medical Assessor Haber found the claimant had recovered from the reaction and there was no current physical impairment resulting from that reaction.

RE-EXAMINATION FINDINGS

1. Mr Antonio attended the Commission’s medical suites on 20 December 2024 and was re-examined by Medical Assessor Lahz for a period of about 100 minutes.

2. The following paragraphs are her documented findings.

General history

1. Mr Antonio confirmed he is 53 years of age and right-handed. He was born in the Philippines and has lived in Australia since 1996. He is married, with a daughter, stepson and stepdaughter. He lives with his wife and daughter at Dee Why.

2. In the Philippines, he qualified as a “repetitive engineer” through a Trades School.[21] He spent eight years “making screws”. He also worked in the “rag trade” as a supervisor, and in a commercial kitchen as a sushi chef. For the last 12 years, he has been a member of the NSW Police Force, and for over 15 years he worked as a supermarket night filler which he said he had mainly been doing for “exercise”.

   [21] Repetition engineering uses computer programmed machining equipment to efficiently produce identical parts in large quantities. 

3. Mr Antonio reported that he lost the night fill job after the 2019 motor accident due to his right shoulder injury. He continues working in ballistics for NSW Police although his duties have become lower order administrative tasks such as photocopying since the 2019 motor accident (he is presently working 35 hours per week). He explained that working in ballistics generally involves lifting and carrying heavy equipment items such as cameras, lighting, radars for use at crime scenes and re-enactments. As he has been unable to resume the physically demanding aspects of his work and unable to participate in any “case work” he believes that he will soon face demotion.

Pre-accident medical history

1. Prior to the 2019 motor accident, Mr Antonio said he had been physically fit and well. He regularly attended the gym three to four times weekly lifting kettlebells and body weight exercises and also using the treadmill. He assisted at home with chores and yard work and also helped his elderly parents. He was a keen motorcyclist riding every day and enjoyed playing music on the guitar, ukelele and harmonica.

2. The claimant did not initially recall any pre-accident problems with the right shoulder although I drew to his attention the entries in GP records from 2011, 2012 and 2014 regarding symptoms at the right shoulder. He did not remember these episodes due, he said, to lapse of time. So far as he could recall there had been no investigations of the right shoulder before the 2019 motor accident, and he said he had a full range of motion/strength of that shoulder.

3. His general health was good aside from gout (which he said affected his big toe, but which he said was well managed on medication) and asthma.

4. Mr Antonio denied any history of psychiatric difficulties such as anxiety or else depression.

5. Mr Antonio has never smoked and consumes no alcohol.

History of the accident and treatment

1. Mr Antonio confirmed his involvement in the accident on 22 March 2019. At the time, he had been a motorcyclist exiting a roundabout. He recalls a “nudge” from behind, with his next memory being that of lying on his back on the road, looking at the sky. He had been wearing a helmet and said that there was some damage to this, scratching and a possible “crack”.

2. He reported feeling immediate pain in the right shoulder and also pain at the left ankle (on which the motorbike had fallen).

3. Ambulance attended and he was loaded onto a stretcher before being taken to Northern Beaches Hospital. He said he was lying on the road quite a long time before he was loaded to the ambulance. He recalls being unable to move his right arm. The ambulance report refers to symptomatic complaints at the right shoulder, lower back/sacral region and left leg.

4. At hospital, he thought he had X-rays of his shoulder and left ankle, reportedly not showing any fractures. He recalls being asked if he were able to stand up, and as he was able to do so, he was then told that he could be discharged. He was unhappy about this given the pain and motion restriction at the right shoulder. He was advised to see his doctor the next day.

5. Mr Antonio said he tried to resume work two to three days after the accident although he was sent home due to right shoulder problems. He saw his GP on 24 March 2019 who recorded his symptomatic complaints of pain at the right shoulder, neck and left ankle. Dr Saunders referred him for physiotherapy where treatment focused on the right shoulder. However, despite several months of treatment, there was no improvement so consequently he was referred for scans demonstrating large full thickness tears of the rotator cuff muscles and it was then arranged for him to see an orthopaedic surgeon Dr Chia.

6. Dr Chia recommended surgical repair of the rotator cuff which was initially attempted in September 2019. However, the surgery was aborted due to Mr Antonio suffering a serious adverse reaction to one of the muscle relaxation agents used in the general anaesthetic. The claimant had to spend one week in the intensive care unit.

7. In November 2019, Mr Antonio finally came to surgical repair of the right-sided rotator cuff tears which was fortunately uncomplicated (other muscle paralytic agents were used). And which Mr Antonio described as “successful”.

8. Subsequently, Mr Antonio attended physiotherapy for intensive treatment of the right shoulder for approximately 12 months. There were then gym-based exercise physiology interventions. Despite significant efforts, the right shoulder remained stiff so that by late 2020, Dr Chia performed a shoulder capsular release. There were then further physiotherapy and exercise physiology interventions. Shoulder elevation improved reasonably well (still a little less than the uninjured left shoulder) although right-sided external rotation has remained very limited, recalcitrant to treatment again despite significant exercise and frequent use of a special splint for up to three years to encourage this movement.

9. Since the accident, Mr Antonio says he has experienced right shoulder pain and restriction. He last saw Dr Chia about two weeks ago with further potential surgery (a tendon transfer) being discussed. Mr Antonio understands there are no guarantees of success. Dr Chia has suggested that he retrain for less physically demanding work than ballistics.

10. The claimant says he has also experienced significant posterior neck pain with symptomatic referral to the right trapezial/scapular region since the accident.

11. Further, Mr Antonio complains of episodic left ankle pain with a tendency to limp if he does not take regular simple painkillers.

12. The claimant says there is also very occasional non-radiating low back pain which he does not regard as significant. The only thoracic region pain experienced is that spreading from the neck and right shoulder girdle towards the interscapular region and right shoulder blade. He denies any mid back spinal pain and says he has no current right elbow or hand pain.

13. He uses only simple analgesia such as over the counter anti-inflammatories and Paracetamol for pain.

14. After the capsular release procedure in 2020, Mr Antonio says he developed reduced sensation over the ulnar border of the right forearm close to the wrist without any sensory loss, motor deficit or other neurological symptoms in the wrist, hand or fingers.

15. More recently, Mr Antonio says he developed triggering of the right ring finger (proximal interphalangeal PIP joint) although this has since improved with soft tissue massage, splintage, wax baths and a steroid injection. The triggering episodes are experienced rarely now.

16. He says he has, since the accident, suffered from low mood, bouts of anxiety and cognitive difficulties. He cited multiple medication intolerances for various antidepressants. About two months ago, he was started on Medicinal Cannabis oil which he is taking at night. The latter has been very helpful for his sleep. He is not taking any antidepressant or hypnotic medications now due to the abovementioned intolerances e.g. nausea, memory loss, vomiting and dizziness. He says his mood remains low, there has been social withdrawal and he tends to neglect his personal presentation. His wife often tells him to have a haircut and to trim his nails. He has not found hobbies to replace motorcycling, gym visits and playing various musical instruments. He does not play any sports and no longer involved in any voluntary groups (he previously helped out at charity shops).

17. He reports memory problems e.g. he forgot the digital pattern to unlock his work mobile phone and had to move the sim card to a new phone in order to access it. His wife now takes care of the household finances given his forgetfulness.

18. For the last two to three years he has been seeing Dr Ebert a psychologist once or twice monthly. She has been trying to get him to feel better. I asked him if he had undergone any cognitive assessment in light of the thinking and memory difficulties. He said he had not and asked me if I thought this were necessary. I told him that I could not provide him with any treatment advice.

19. After the “successful” right shoulder operation of November 2019, Mr Antonio says he developed frequent episodic dizziness the nature of which he found difficult to describe. He said there was initially “vertigo” which he described as a clockwise, sometimes anticlockwise spinning sensation associated with nausea but no vomiting. Duration of these episodes varied from minutes sometimes to hours or the entire day. The episodes could occur at rest and were not typically induced by head movements. He was clear that this dizziness occurred after the surgery and not immediately after the accident.

20. He consulted Dr Puhl, a neurologist who after examination and testing found no evidence of BPPV. No specific diagnosis was made for the complaints of dizziness however, Dr Puhl recommended that he receive treatment (“neck manipulations” and walking exercises) through “On Balance” physiotherapy which has been helpful. Mr Antonio says that dizziness, whilst still sometimes occurring, has become much less frequent. He is no longer having treatment at On Balance because he said there has been no recent measurable improvement in outcome measures. 

21. He also saw an “eye physiotherapist” (orthoptist) which he said also helped reduce the symptoms of dizziness. He said that it had been suggested his eyes were “lazy”.

22. However, Mr Antonio then said he still receives physiotherapy for the right shoulder and neck incorporating neck releases and dry needling which he believes reduces his neck and shoulder soreness and tightness whilst also serving to reduce his dizziness.

23. Dr Puhl, the neurologist has discharged him from follow up several years ago and he has not seen any other neurologist or had any further investigations of his dizziness.

24. He has not undergone any investigations of the left ankle beyond the plain films undertaken in the hospital. He has also not consulted an orthopaedic specialist about the left ankle.

Current complaints

1. Mr Antonio complains of:

   (a)    neck – posterior neck pain with referral to the right trapezius and right scapular regions. The neck remains sore and tight and when this occurs, he is more likely to experience occipital headaches;

   (b)    right forearm – since the surgery – numbness involving the right ulnar forearm although there are no neurological symptoms in the fingers. He does not report any loss of manual dexterity;

   (c)    right shoulder – stiffness on elevation and very stiff with respect to external rotation. He says he has difficulty lying on the right shoulder. The right arm quickly fatigues during activities such as driving and eating. He has difficulty doing activities such as extracting tickets from parking machines. He uses his left hand to wipe his bottom, and noted that this should be the case anyway, as his right hand is, in his culture, reserved for eating;

   (d)    scarring – he is aware of the minor port hole scarring at the right shoulder. Mr Antonio reports that it is occasionally itchy. He uses no creams and is not having any treatment for it;

   (e)    left shoulder – there are no problems with the left shoulder;

   (f)    right elbow – there are no problems with movement of this part of his body. There is some excess fatty tissue above the right elbow compared with the left elbow. He was unsure of how long it had been there, nor was he sure of the cause but it does not give him problems. He has a loss of sensation in part of his forearm which does not bother him greatly;

   (g)    right hand – his right ring finger only very occasionally locks up at the proximal inter-phalangeal (PIP) joint and he will then gently prise it open again;

   (h)    thoracic spine – there are only minor thoracic symptoms in the interscapular region linked to those overlying the right shoulder blade;

   (i)    lower back – he experiences occasional non-radiating low back pain about which he is not concerned, and

   (j)    left ankle – there is intermittent pain over the medial left ankle which can sometimes cause him to limp.

2. There are only occasional bouts of dizziness which are sometimes not rotary but then sometimes there is slow spinning. At other times there is fast spinning. Sometimes, he might have to grab something in order to steady himself. The duration varies from a few seconds to a few minutes whereas previously he could feel dizzy or unbalanced for an entire day. Frequency also varies from daily for three days to nil episodes for several weeks. He described episodes where he suddenly finds himself face planted to a desk. He denied any loss of consciousness and he does not even feel as though he will lose consciousness. He does not vomit although there is often nausea. The episodes are not positional. He can roll over in bed and arise from a lying position to a seated position without issue. He referred also to diplopia occurring whilst feeling dizzy. He said that he sometimes tends to veer toward the left.

3. In terms of social withdrawal, Mr Antonio reported reduced motivation for activities he once enjoyed, a low mood and reduced attention to personal presentation persist. He also reported issues around anxiety and “feeling scared”.

4. Due to physical inactivity, he says he has gained some 12kg since the motor accident.

5. At home, he no longer contributes to chores and yard work, nor does he help his parents as before. He says he often lies down during the day. He says he feels despondent and not wishing to be around others. He drives only short distances due to right shoulder fatigability.

Examination

1. On examination, Mr Antonio appeared unhappy and despondent. He only rarely smiled.

2. I observed that he is a man of solid, now overweight build with central adiposity. Weight was 95kg and height 170cm.

3. He co-operated during the interview and examination.

4. He complained at the end however that Medical Assessor Cameron had been seeing “too many cases for insurers” and he asked me if I had ever done any work for NRMA.

Head

1. On the Montreal Cognitive Assessment tool (MoCA), Mr Antonio scored 25/30, with difficulties in language (he comes from a non-English speaking background) accounting for a one point loss and short term memory responsible for a four point loss. His performance on the MoCA was very slow.

2. Mr Antonio’s gait was unremarkable. He could walk on his toes and heels. There was no gait imbalance or veering to the left (or right). Balance was normal. There was no evidence of any upper limb or truncal ataxia.

3. Cranial nerves were unremarkable (olfaction and taste were not formally assessed).

4. Mr Antonio was able to engage with me throughout the duration of the re-examination. He was able to communicate with me and I detected no abnormality of speech or hearing.

Neck

1. There was normal neck posture and there was full range of neck motion in all directions for flexion, extension, lateral flexion to either side and rotation to either side. There was no muscle spasm or guarding. There was posterior tenderness from C5/7, over the right lateral cervical pillar and trapezial region.

2. There were no upper limb non-verifiable radicular complaints such as shooting pain or radiating pain. In terms of the five signs of radiculopathy:

   (a)    there was normal upper limb sensation aside from slight reduced sensation at the right ulnar forearm. There was normal sensation over the right-sided fingers and in the upper arm. There was normal sensation over the entire left upper limb;

   (b)    upper limb reflexes were present and symmetrical;

   (c)    upper limb power was normal bilaterally;

   (d)    there was no measurable wasting of either arm with both measuring 35cm in circumference, 10cm above the elbow crease and 30cm in the forearms 5cm below the elbow crease, and

   (e)    upper limb neural tension tests were normal.

Shoulders

1. There was mild wasting of the right shoulder girdle and there was tenderness over the right scapular and subacromial region. There was also tenderness over the anterior joint line.

2. Active shoulder range of motion is shown in the following table. Measurements were made with a goniometer and repeated three times where restricted to check for consistency.

Right	Left
Abduction	160, 160, 160	180
Adduction	70	70
Flexion	140, 140, 140	170, 170, 170
Extension	60	60
Internal rotation	80	90
External rotation	20, 20, 20	90

1. He was advised to make a good effort and do his best regarding the requested movements.

2. There was uncomplicated port hole surgical scarring about the right shoulder. There was uncomplicated port hole surgical scarring about the right shoulder.

Elbows, wrists and fingers

1. There was a full active range of motion at the elbows, forearms and wrists.

2. I noted some redundant non-tender apparently fatty tissue just above the right elbow compared with the left although this was unremarkable.

3. There was, as reported above, a loss of sensation over the right ulnar forearm, cutting off at the wrist.

4. The right ring finger was clinically unremarkable and there was a full range of motion of all fingers in both hands.

Thoracic and lumbar spine

1. The clinical examination of the thoracic and lumbar spine revealed no abnormality.

2. There was full range of flexion, extension, lateral flexion to either side and rotation to either side. There was normal mild thoracic kyphosis and normal lumbar lordosis. There was no muscle guarding or spasm. There was tenderness from L4 to S1.

3. There were no lower limb non verifiable radicular complaints such as radiating or shooting pain. In respect of lumbar radiculopathy:

   (a)    there was normal lower limb sensation bilaterally;

   (b)    lower limb reflexes were present and symmetrical and plantar responses were flexor;

   (c)    there was normal lower limb power bilaterally;

   (d)    there was no measurable wasting of the thighs with each measuring 48cm in circumference 10cm above the superior patellar border 41cm at the calves, and

   (e)    lower limb neural tension tests (SLR) were bilaterally negative.

Lower limbs

1. There was normal lower limb coordination. There was a normal range of hip and knee movement.

2. At the ankles, there was normal range of dorsiflexion bilaterally 20 degrees, 50 degrees of right ankle plantarflexion, 40 degrees of left ankle plantarflexion, 40 degrees of inversion bilaterally and 20 degrees of eversion bilaterally. The left ankle was not swollen. There was mild tenderness anteroinferior to the medial malleolus and the ankle was stable in the anteroposterior and mediolateral planes.

CONSIDERATION OF THE ISSUES

Did the claimant injure his head in the accident?

1. It is the Medical Assessor’s clinical judgment that the mechanism of the accident could have caused an injury to the claimant’s head. The claimant was riding a motorcycle and fell from it onto the road. While he was wearing a helmet it is possible, from the reported damage to his helmet that he did hit his head.

2. There is no evidence to support Mr Antonio sustaining a traumatic brain injury in the motor accident. The history provided of recollections of the accident (he referred to the impact as a “nudge”), his recall of events at the scene and at the hospital indicate he can remember the accident-related events. There was no medically verifiable abnormality of Glasgow Coma Scale scores which were consistently 15 out of 15 according to the ambulance report. No post traumatic amnesia assessment was undertaken in hospital because there was no evidence of altered sensorium.

3. Whilst Mr Antonio reports cognitive problems, the Medical Assessors note that there are other causes of cognitive deficits aside from brain injury, such as poor sleep (considered by Medical Assessor Grainge), medication (the claimant is not taking any prescribed medication which might cause cognitive defects), chronic pain and psychological sequelae such as depression and anxiety which affect a person’s ability to absorb, understand and remember information.

4. If the claimant did sustain a head injury, then it is the Panel’s view that the injury was a soft tissue injury.

Does the claimant have any other neurological disorder?

1. Regarding the complaints of dizziness since the accident, these have remained subjective without any objective findings. There is some lack of clarity over when the dizziness began. The claimant has told most examiners (and his treating doctors) he became aware of it after the first (and unsuccessful) surgery and his reaction to the anaesthetic. He told Medical Assessor Lahz that the dizziness occurred after the second (successful) shoulder surgery.

2. His treating neurologist managed the symptoms as traumatic vestibulopathy although Dr Puhl’s extensive records do not indicate any objective findings such as abnormal Hallpike manoeuvre, nystagmus, Unterberger or head impulse tests which would confirm the diagnosis.

3. On 24 October 2019 (six months after the motor accident) the GP records indicate a positive test toward the right and a provision diagnosis of benign positional vertigo was made. The Medical Assessors however note that the On Balance Physiotherapy records indicate several negative Hallpike tests[22] Page 1184 on 15 March 2020 the Dix Hallpike test was negative.

   [22] Page 1,184 on 15 March 2020 the Dix Hallpike test was negative as it was on 30 December 2020 at page 1315 of the insurer’s bundles.

4. The Panel notes the reports of psychologist Ms Ebert who suggests alternative diagnoses such as PPPD, which is a subtype of functional neurological disorder (FND).

5. The Medical Assessors note that FND is a condition where the primary pathophysiological process is altered in functioning of brain networks rather than the development of abnormalities of brain structure. It denotes a clinical syndrome consisting of symptoms and signs of genuinely experienced alterations in motor, sensory and cognitive performance which are distressing and impairing that are consistent with dysfunction of the nervous system and show variability of performance within the same task and between different tasks.

6. FND disorders are often triggered by and co-exist with injury or other neurological disease. The most common presentations of FND include paresis (weakness), chronic dizziness, cognitive dysfunction, speech disorders, visual symptoms or somatosensory symptoms.

7. The claimant has reported subjective complaints of dizziness which has responded to treatment (but has not been eliminated) and for which there is limited objective evidence, cognitive dysfunction (not tested) and visual symptoms (resulting in referral to an orthoptist).

8. The Medical Assessors are of the view that the evidence supports the claimant having an FND disorder.

Did the claimant injure his cervical, thoracic and lumbar spine?

1. The mechanism of accident (a fall from a motorbike onto the road) could have caused injury to the three regions of the claimant’s spine.

2. The Panel accepts that Mr Antonio injured his lumbar spine given the sacral pain recorded in the ambulance report and the complaints of low back pain to the GP within a few days of the accident. The Medical Assessors are of the view that the claimant’s lumbar spine injury was an injury to the soft tissues of the claimant’s lower back.

3. Mr Antonio complained to the GP of neck pain within a few days of the motor accident. The Panel accepts the claimant injured his cervical spine. The Medical Assessors are of the view that he has sustained a soft tissue injury in this location with ongoing posterior and right sided neck pain with symptomatic referral to the right trapezial region.

4. There is no specific documentation highlighting occurrence of a thoracic spine injury in the subject accident though the Panel is satisfied the adjacent spinal regions (neck and lower back) were injured. Thus, it is reasonable to accept a soft tissue injury to the thoracic spine did occur. Alternatively, Mr Antonio’s neck injury could be causing thoracic symptoms which the Medical Assessors note is a common referral pattern with a neck injury. Mr Antonio’s neck symptoms are described as being referred to the interscapular and right scapular regions (between the shoulder blades in the upper part of the thoracic spine and lower part of the cervical spine)

Did the claimant injure his left ankle?

1. The Medical Assessors accept that Mr Antonio could have injured his left ankle in the motor accident. The claimant has consistently reported that the motorbike fell directly onto his ankle, and he made contemporaneous complaints of pain in the left ankle. The Panel is therefore satisfied that Mr Antonio did sustain an injury to his left ankle when his motorbike fell on it.

2. The Medical Assessors note that X-rays in hospital disclosed no fracture and there have been no specialist consultations or further investigations pursued for the ankle in the six years since the accident.

3. The Panel is satisfied on the medical evidence that the claimant sustained an injury to the soft tissues of the claimant’s left ankle.

Did the claimant injure his right shoulder?

1. The mechanism of the accident was of a fall onto the right shoulder. The Medical Assessors are of the view that as a result of that fall, and injury could have occurred. There are contemporaneous complaints of right shoulder pain which support a finding that a right shoulder injury did actually occur in this accident.

2. Mr Antonio had X-rays of the right shoulder in hospital showing no fracture or bony injury although later scans indicated an injury to the soft tissues of the shoulder namely a large tear of the right rotator cuff, likely chronic and pre-existing given the absence of acute traumatic findings such as bleeding.

3. The Panel has carefully reviewed the GP records which show occasional bouts of shoulder pain documented during 2011, 2012 and 2014 but no complaints in the weeks and months and years before the accident. Mr Antonio said he was extremely active before the accident, attending the gym, lifting weights, riding motorbikes and playing various musical instruments. He had also been able to lift heavy gear at work in the course of Police Ballistics duties. This involvement in work and other activities could have resulted in the development of tears in the rotator cuff. The Panel is satisfied on the basis of the pre-accident records that any pre-accident rotator cuff tear had been asymptomatic for some time before the subject 2019 motor accident.

Scarring

1. The only scarring complained of is the right shoulder surgical scarring. As the Panel is satisfied that the motor accident caused an injury to the claimant’s right shoulder (rendering an asymptomatic shoulder, symptomatic) the Panel is also of the view that the surgery the claimant had to his right shoulder was related to the accident and that therefore the scarring associated with that surgery must be taken into account.

Was there any other injury to the upper limb?

1. Regarding the right ring finger triggering, the Panel is unable to draw a causal connection between the accident noting the recent onset of this. Mr Antonio was vague about the onset of these symptoms, and they are infrequent.

2. Mr Antonio complained only of ring finger symptoms. He did not report any symptoms affecting the right little finger or else the middle finger. In the light of the clinical findings on re-examination there is no impairment in the right ring finger symptoms in any event.

3. Apart from the loss of sensation over part of his right forearm, Mr Antonio denied any symptoms in his upper arm or elbow or wrist and at the re-examination there was no evidence of any ongoing impairment in these areas.

IMPAIRMENT ASSESSMENT

How is the spine assessed?

1. Assessment of the spine requires consideration of Chapter 3 of the AMA 4 Guides. Only the DRE method of assessment is allowed (cl 6.111).

2. The spine is divided (cl 6.131) into three regions, the cervical, thoracic, and lumbar spines.

3. If injury to the whole spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.131). If there are multiple impairments within one spinal region the impairments are not combined but the highest rating category is chosen (6.132)

4. There are five diagnostic related categories, and a number of indicia provided to guide the assessment. Clause 6.125 provides that the starting point is Table 6.7 and the DRE descriptors from pages 102-107 of the AMA 4 Guides as amended by the clause.

5. There are neurological differentiators (for example radicular symptoms vs radicular signs) and structural inclusions (for example vertebral fractures) to be considered. In Mr Antonio’s case there are no relevant structural inclusions.

6. The first possible category is DRE category I which is selected if there are symptoms which may include pain.

7. DRE II requires there to be:

   (a)    pain with guarding or

   (b)    non-uniform range of motion – dysmetria or

   (c)    non-verifiable radicular complaints defined in table 6.8 as:

   (i)symptoms (shooting pain, burning sensation, tingling)

   (ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.

8. A DRE III finding requires radiculopathy which is defined in cl 6.138 as “the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination”:

   (a)    loss or asymmetry of reflexes;

   (b)    positive sciatic nerve root tension signs;

   (c)    muscle atrophy and/or decreased limb circumference;

   (d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and

   (e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

What is the impairment to the claimant’s lumbar spine?

1. The clinical findings of the lower back did not indicate any significant injury. There was tenderness but a full range of motion, no guarding and no non-verifiable radicular complaints. There were no signs of radiculopathy present.

2. The claimant’s soft tissue lumbar spine injury is assessed as DRE I, resulting in a 0% WPI.

What is the impairment to the claimant’s thoracic spine?

1. While there is some doubt as to whether a specific or frank thoracic spine injury occurred, the clinical findings at the thoracic spine do not indicate WPI exceeding 0%. The claimant complained of referred pain in the thoracic spine area from his neck injury, but there were no non-verifiable radicular complaints, no guarding and no dysmetria. There was no thoracic radiculopathy.

2. The findings were consistent with a DRE category I impairment leading to a 0% WPI.

What is the impairment to the claimant’s cervical spine?

1. The claimant complained of tenderness (pain) in the neck however the range of motion in the neck was full in all directions and there was no guarding. There were no complaints that would fulfill the definition of non-verifiable radicular complaints.

2. In terms of the five signs of radiculopathy, reflexes and power were normal and there was no sign of atrophy in the upper arm or forearm and no nerve root tension signs. There was reported sensory loss at the ulnar right forearm although this does not extend to the fingers and thus does not follow a complete dermatomal pattern. The Panel is not satisfied that the claimant has two of the five signs of radiculopathy. The loss of sensation is not due to any injury to a spinal nerve root and will be discussed further below.

3. The Panel is satisfied the claimant’s soft tissue neck injury should be assessed as DRE I that is 0% WPI.

How is the right upper limb assessed?

1. The assessment of UEI is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments (such as the four different impairments for the index finger are combined to determine the index finger impairment) and adding (such as the impairments for the thumb and the fingers are added to obtain a hand impairment). Regional impairments such as the hand and wrist impairments are combined to obtain a total UEI which is then converted to a WPI using Table 3 on page 20 of AMA 4 Guides.

2. There are several methods of assessment:

   (a)    amputation (Part 3.1b);

   (b)    sensory loss of the digits (Part 3.1c);

   (c)    abnormal range of motion (Part 3.1d);

   (d)    peripheral nerve disorders (Part 3.1k);

   (e)    vascular disorders (Part 3.1l), and

   (f)    other disorders (Part 3.1m).

What is the claimant’s right shoulder impairment?

1. The Medical Assessors note that recent right shoulder scans (2024) show intact repairs of the supraspinatus and infraspinatus tendons and the claimant’s right shoulder condition is therefore stable. While future surgery has been suggested, no decision has been made about it. The Panel is satisfied that the claimant’s right shoulder impairment is permanent.

2. In Mr Antonio’s case, it is the clinical judgment of the medical assessor that the most appropriate method of assessing shoulder impairment is in accordance with part 3.1d. The abnormal range of motion requires the measurement of six functional units of motion:

   (a)    flexion and extension;

   (b)    abduction and adduction, and

   (c)    internal and external rotation

3. Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with Table 3 on page 20 of AMA 4 Guides.

4. The claimant’s range of motion and impairment is recorded below:

Right	Left
Flexion	140 (normal is 180) 3% UEI (figure 38 AMA 4)	170 (normal is 180) 1% UEI (figure 38 AMA 4)
Extension	60 (normal is 50) 0% UEI (figure 38 AMA 4)	60 (normal is 50) 0% UEI (figure 38 AMA 4)
Abduction	160 (normal 180) 1% UEI (figure 41 AMA 4)	180 (normal) 0% UEI (figure 41 AMA 4)
Adduction	70 (normal is 50) 0% UEI (figure 41 AMA 4)	70 (normal is 50) 0% UEI (figure 41 AMA 4)
Internal rotation	80 (normal is 90) 0% UEI (figure 44 AMA 4)	90 (normal) 0% UEI (figure 44 AMA 4)
External rotation	20 (normal is 90) 1% UEI (figure 44 AMA 4)	90 (normal) 0% UEI (figure 44 AMA 4)

1. The claimant’s right shoulder UEI is 5%.

2. Clause 6.31 of the Guidelines states that if there is no objective evidence of symptomatic impairment at the time of injury, then its possible presence can be ignored. While there is evidence of pre-existing complaints in 2010, 2011 and 2014, there is no evidence that in the months or years immediately before the accident there was any symptomatic impairment. Therefore, the Panel is of the view there should be no deduction under this clause.

3. When assessing impairment to an injured joint, the other joint must be considered. This is on the basis that both joints are likely to have the same range of motion. The approach to the contralateral (and uninjured) joint is explained in the Guidelines as extracted below:

   “6.51 If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline, and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision must be explained in the impairment evaluation report.

   6.52 When using clause 6.51 (above), the medical assessor must subtract the total upper extremity impairment (UEI) for the uninjured joint from the total UEI for the injured joint. The resulting percentage UEI is then converted to WPI. Where more than one joint in the upper limb is injured and clause 6.51 is used, clause 6.51 must be applied to each joint.”

4. Mr Antonio’s left (uninjured) shoulder impairment is 1%. At 54 years of age with a history of employment requiring lifting and gymnasium work, it is reasonable to assume that the claimant’s shoulders would have, at the time of the accident had the same level of impairment. Therefore, the Panel considers it appropriate to reduce the UEI of 5% for the right shoulder by the UEI of 1% for the left shoulder.

5. The residual UEI is 4%.

Is there impairment to the claimant’s right elbow, wrist and hand

1. The claimant’s right elbow was asymptomatic, and Mr Antonio demonstrated a full range of motion at the re-examination. There was a full range of motion of both wrists and all fingers.

2. There was a loss of sensation over the ulnar aspect of the claimant’s right arm stopping at the wrist. The insurer has not challenged the causation finding by Medical Assessor Cameron. The claimant gave a history of the onset of this loss of sensation after the shoulder capsular release surgery. The Medical Assessors on the Panel note that in their clinical experience nerves affecting the upper arm can be damaged either by the administration of the anaesthetic, the nerve block or by the capsular release surgery itself. The patch of reduced sensation suggests an impairment of the medial antebrachial cutaneous nerve. There is no impairment of motion but a sensory deficit which, in accordance with Table 15 at page 54 of the AMA 4 Guides attracts a figure of up to 5% UEI.

3. In according with section 3.1k of the AMA 4 Guides, in determining the percentage impairment, the severity of the nerve damage is assessed using Tables 11 at page 48.[23] The Panel is of the view that, taking into account the small size of the area of the painless loss of sensation, this is consistent with a grade 2 impairment described as “decreased sensation with or without pain that is forgotten during activity” which results in a 1-25% sensory deficit.

   [23] Table 12 is not relevant as there is no loss of power or motor deficit resulting from Mr Antonio’s peripheral nerve disorder.

4. Paragraph 6.59 of the Guidelines says the maximum figure within the range (25%) must be applied to the maximum available impairment (5% UEI) which produced after rounding a 1% UEI for the sensory deficit of the forearm.

What is the total impairment of the claimant’s right upper limb?

1. The regional impairment of the right shoulder (4% UEI) is combined with the regional impairment of the forearm (1% UEI) to arrive at a 5% UEI impairment. This is converted to a WPI of 3% using Table 3 at page 20 of AMA 4 Guides.

Lower limb assessment

1. The assessment of lower extremity impairment is governed by Chapter 3, section 3.2 of the AMA 4 Guides. There are 13 methods of assessment provided for as follows:

   (a)    limb length discrepancy (3.2a);

   (b)    gait derangement (3.2b);

   (c)    muscle atrophy (3.2c);

   (d)    manual muscle-testing (3.2d);

   (e)    range of motion (3.3e);

   (f)    joint ankylosis (3.2f);

   (g)    arthritis (3.2g);

   (h)    amputations (3.2h);

   (i)    diagnosis-based estimates (3.2i);

   (j)    skin loss (3.2j);

   (k)    peripheral nerve injuries (3.2.k);

   (l)    causalgia and reflex sympathetic dystrophy (3.2l), and

   (m)     vascular disorder (3.2m).

1. Each limb is assessed and each injury (if there are multiple injuries in each limb) is assessed separately. Clause 6.70 and Table 6.5 states which of the above methods can and cannot be combined and Table 6.6 provides guidance is selecting the most appropriate method. The Guidelines at clauses 6.76 to 6.110 provides specific interpretation and guidance on the various methods of assessment.

2. It is the clinical judgment of the medical members of the Panel that the range of motion method is the most appropriate method of assessment of the claimant’s soft tissue left ankle injury. Based on the clinical findings at Medical Assessor Lahz’s re-examination as there was a normal range of motion and no instability, the WPI at the left ankle is 0%.

Head injury impairment

1. The central nervous system including the brain is assessed in accordance with Chapter 4 of AMA 4 Guides and clauses 1.160-1.176 of the Guidelines.

2. Clause 1.160 provides for the following categories of impairment resulting from head and brain injury:

   (a)    aphasia and communication disturbances (section 4.1a of AMA 4 Guides);

   (b)    disturbances of mental status and integrative functioning (section 4.1b of AMA 4 Guides);

   (c)    emotional or behavioural disturbances (section 4.1c of AMA 4 Guides), and

   (d)    permanent disturbances in level of consciousness and awareness (section 4.1d of AMA 4 Guides) such as a coma.

3. Medical Assessor Lahz records that Mr Antonio showed no difficulty with comprehension or communication throughout the 100 minute re-examination therefore section 4.1a of the AMA 4 Guides is not relevant to this assessment. Bearing in mind the nature of his injury and current complaints, sections 4.1d of AMA 4 Guides is also not relevant to the impairment assessment.

4. Clause 6.164 of the Guidelines provides that in order for there to be an assessment of mental status impairment (section 4.1b) or emotional and behavioural impairment (section 4.1c), there must be:

   (a)    evidence of a “significant impact to the head”, and

   (b)    one or more significant, medically verified abnormalities such as an abnormal GCS score, post-traumatic amnesia (PTA) or brain imaging abnormality.

5. There is no evidence of a “significant impact to the head”. There was no bruising recorded, and no laceration noted in ambulance or hospital records. Mr Antonio also does not satisfy the criteria set out in paragraph 6.164(b). There was no abnormal GCS score, no record of any PTA and no brain imaging abnormality.

6. Mr Antonio may have hit his head in the fall from his motor bike, but any head injury sustained does not attract an impairment assessment pursuant to the AMA 4 Guides and the Guidelines.

Is there an impairment for dizziness?

1. There is no WPI provided in the AMA 4 Guides or the Guidelines for functional neurological disorders.

2. Chapter 9 of the AMA 4 Guides provides for impairment to the ears, nose and throat and related structures and, at section 9.1c provides for disorders of equilibrium.

3. Paragraph 6.187 of the Guidelines directs that impairment due to disorders of equilibrium is dependent on objective findings of vestibular dysfunction being available to the Medical Assessor. In this case, the claimant’s GP recorded a positive Hallpike manoeuvre in October 2019 but a specialist balance physiotherapist and the claimant’s treating neurologist charged with investigating the claimant’s dizziness do not record any other objective findings.

4. The Panel is not satisfied on this evidence that the claimant has, at the current time, an impairment of equilibrium that would attract a finding of permanent impairment.

Scarring

1. The AMA 4 Guides provide in Chapter 13 for the assessment of injuries to the skin. Table 2 identifies five classes of impairment ranging from class 1 (minor skin impairment) which attracts a WPI of between 0-9% and class 5 which attracts a WPI of between 85 and 95%.

2. It is the Panel’s view that the claimant’s scarring falls within class 1 because of his:

   (a)    signs and symptoms;

   (b)    no limitation of activities caused by the scars, and

   (c)    no treatment or intermittent treatment is required.

3. The Guidelines include Table 6.18, TEMSKI determine where in the 0%-9% range a claimant’s minor impairment sits. This table sets out 10 criteria to be applied as set out in the following table.

TEMSKI CRITERIA	Relevant evidence from the claimant and the re-examination	Panel rating
Consciousness	The claimant is not conscious of the scar	0
Colour Match	There is a good colour match with the surrounding skin with some slight brown discoloration	1
Ability to locate	When asked to point out the scar the claimant could easily locate it	1
Trophic changes	There are minimal trophic changes	0
Visibility of staple or suture marks	There are no visible staple or suture marks	0
Anatomical location	The scars are on the shoulder and barely noticeable and would be covered by normal sleeved clothing	0
Contour defect	There were no contour defects	0
Effect on any activities of daily living	The scarring has no effect on the claimant’s activities of daily living	0
Treatment	There is no treatment needed for the scars	0
Adherence	There is no adherence to underlying structures	0

1. The Panel is of the view that the best fit in accordance with TEMKSI is 0% WPI.

CONCLUSION

1. In summary the Panel assesses the claimant’s WPI as follows:

   (a)    head   no assessable impairment;

   (b)    cervical spine  DRE I – 0%;

   (c)    thoracic spine  DRE I – 0%;

   (d)    lumbar spine  DRE I – 0%;

   (e)    right upper limb                  total of 3% made up of:

   (i)shoulder loss of motion 2%

   (ii)forearm nerve damage 1%

   (iii)elbow, wrist fingers no assessable impairment;

   (f)    left ankle  no assessable impairment, and

   (g)    skin (scarring)  0%.

2. While the Panel has come to the same overall outcome as Medical Assessor Cameron (WPI of not greater than 10%), we have found a different percentage (3% and not 6%). Therefore, it follows that Medical Assessor Cameron’s certificate must be revoked and a fresh certificate (including a combined certificate) must be issued.