Arends v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Arends v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 210
CLAIMANT:	Walied Arends
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Geoffrey Stubbs
DATE OF DECISION:	5 April 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant’s review under section 63 of medical assessment by Medical Assessor (MA) Home; original dispute concerned treatment and whole person impairment (WPI) of neck, back, knees and shoulders resulting from accident on 10 February 2016; pain medication treatment allowed by MA Home and WPI assessed at 7%; issues of causation due to pre-accident conditions (including total knee replacement) and subsequent accident (fall onto right shoulder) as well as limited complaints of injury made at hospital and to GP for first few months after the accident; claimant re-examined and issues of inconsistent history put to claimant in separate teleconference; Panel found neck and lower back now DRE I and 0%; no assessable impairment to right hip or right knee and no injury and therefore no impairment in left knee, right shoulder and left shoulder; Held – WPI not greater than 10% but as MA Home had included the percentage in his certificate and Panel found a different percentage, WPI certificate revoked; pain medication allowed and treatment certificate affirmed; no matter of principle.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Confirms the certificate of Medical Assessor Home dated 4 August 2022 in respect of the original proceedings concerning treatment numbered 1049 0690/22. 2. Revokes the certificate of Medical Assessor Home dated 4 August 2022 in respect of the original proceedings concerning whole person impairment numbered 1028 2545. 3. Certifies that the degree of Mr Arends’ permanent impairment resulting from the injuries caused by the motor accident on 10 February 2016 is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Walied Arends was involved in a motor accident on 10 February 2016.
The claimant says he injured his neck, lower back, shoulders, right hip and both knees in the accident and made a claim for damages against NRMA, the third-party insurer of the vehicle that he says caused his accident.
Two medical disputes have arisen in connection with the claim as follows:
(a) a dispute about the degree of the claimant’s whole person impairment (WPI), and
(b) a dispute about whether future right knee arthroplasty surgery, domestic assistance and physiotherapy are related to the injuries caused by the accident and if so whether that treatment is reasonable and necessary in the circumstances.
Mr Arends referred the dispute about WPI to the Medical Assessment Service (MAS) of the State Insurance Regulatory Authority (SIRA) in August 2020 (proceedings numbered 10282545). When MAS was abolished and the Personal Injury Commission (the Commission) established on 1 March 2021, the resolution of the WPI dispute fell to the Commission to determine.
NRMA referred the disputes about treatment to the Commission for assessment in

February 2022 (proceedings numbered 10490690/22).
On 30 May 2022, the two separate proceedings were referred to Medical Assessor Home and he was asked to assess both the dispute about WPI and the disputes about treatment and care.
On 4 August 2022, Medical Assessor Home determined that Mr Arends did not have a WPI of greater than 10% (the WPI found was 7%) and Medical Assessor Home also determined that some of the treatment requested (pain medication) was reasonable and necessary and relates to the injuries sustained in the accident.
The claimant lodged an application with the Commission seeking a review of all the Medical Assessor’s decisions. On 19 October 2022, Ms Wigan a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review. Soon after the President’s delegate convened a Panel to conduct the Review.
On 29 November 2023 a differently constituted Panel was convened in order to progress the Review.

LEGISLATIVE FRAMEWORK

Mr Arends’ claim and his entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).

Whole person impairment

Compensatory damages under the MAC Act are awarded for economic as well as non-economic losses resulting from the injuries, disabilities and impairments caused by the motor accident.
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act with some limitations and restrictions. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[2] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[2] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Due to the nature of the injuries sustained by the claimant, chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.

Treatment and care

Section 83 of the MAC Act imposes upon insurers a duty to provide treatment to injured persons. The treatment must be related to the injuries sustained in the accident and the insurer need only pay for treatment that is verified and is reasonable and necessary.
Damages for pecuniary or economic losses are determined in accordance with common law principles and include damages for past and future treatment and care (including gratuitous care) needs.

Dispute resolution

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 medical assessment.[3] If there is a dispute about treatment, it can be (but does not have to be) referred for assessment.
[3] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Home’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 61, 62 and 63 of the MAC Act.

ASSESSMENT UNDER REVIEW

The records available to the Panel indicated that at no stage were the earlier in time WPI proceedings consolidated with the treatment proceedings in accordance with Rule 20 of the Personal Injury Commission Rules. The separate proceedings were separately dealt with and separately referred to Medical Assessor Home.
After a medical examination of the claimant on 28 July 2022, Medical Assessor Home issued a single document bearing only one matter number, the matter number relevant to the treatment disputes. That document comprised:
(a)   certification that the claimant had a WPI of 7% (not greater than 10%);
(b)   certification that domestic assistance and right knee surgery does not relate to the injury caused by the accident;
(c)   certification that the knee surgery, domestic assistance and physiotherapy session is not reasonable and necessary in the circumstances;
(d)   certification that future pain medication relates to the injury caused by the accident and is reasonable and necessary in the circumstances, and
(e)   a statement of reasons explaining the decisions in support of the various certificates.
Medical Assessor Home noted at [2] that the following injuries were referred to him for assessment:
(a)   whiplash injury to the neck;
(b)   bilateral shoulder bursitis and rotator cuff tendinosis;
(c)   left knee sprain of the medial collateral ligament;
(d)   right knee – aggravation of previous total right knee joint replacement;
(e)   right hip trochanteric bursitis, and
(f)    lower back – aggravation of lumbar spondylosis.
Medical Assessor Home noted at [5] the submissions from the parties and the significant issue of causation in respect of the injury to the lower back, shoulders and knees.
Medical Assessor Home recorded at [9] that before the accident the claimant had:
(a)   no previous neck or shoulder complaints;
(b)   high blood pressure kidney stones and prostate surgery;
(c)   intermittent low back pain, and
(d)   a right knee injury in 2008 leading to a total knee replacement on the right in 2011, with manipulation a few months later and no further symptoms.
Medical Assessor Home has a history of the accident. The claimant was the driver of a van which was hit in the rear and pushed into a barrier on the right following which the van ricocheted back into the lane and struck a vehicle in front. The claimant thought he hit his right knee inside the van. He was helped out of the vehicle by emergency services and was taken to Canterbury Hospital where he was examined and then released.
The claimant complained of neck pain and that he hit the right side of his head inside the van. He had pain and swelling of the right knee.
Mr Arends is said to have attended his doctor (Dr Lau) on 4 April 2016 with right sided neck pain and developed pain in the right thigh. He saw Dr Lau again in September 2016 and then saw a lawyer to make his claim. He had physiotherapy during 2016 and 2018. Mr Arends said in late 2016 he developed lower back pain and at some stage shoulder pain which became more severe in February 2017. He referred to a work-related left knee injury in February 2017. The claimant reported pain in the right knee and occasional swelling and a feeling that his knee replacement was “somewhat loose”.
The claimant was 76 years old at the time of Medical Assessor Home’s examination.
On examination:
(a)   in the cervical spine, flexion and extension were normal, right and left lateral flexion were half normal range and it is unclear whether rotation was measured. There was guarding during right sided motion;
(b)   neurological examination of the upper limbs was normal with reduced sensation at the time in the right thumb and evidence of advanced arthritis at the base of the right thumb;
(c)   in the shoulders there was no muscle wasting was detected and all movements were restricted the left more so that the right;
(d)   in the lumbar spine, all movements were reduced but symmetrically so and there was no guarding. There were no neurological deficits in the lower limbs;
(e)   right hip movements were reduced compared to the left, and
(f)    the left knee was normal, and the right knee had minor restriction of movement but no joint effusion.
After reviewing the documentation at [14] and radiology at [15], Medical Assessor Home at [16] found injury to the right side of the head, neck and right knee. He noted the 2017 work related injury and therefore found no motor accident-related injury to the left knee.
He found no injury to either shoulder on the basis there was no contemporaneous or early complaint of shoulder pain, and the mechanism of the accident could not have caused an injury to either shoulder. He also considered there was no injury to the lower back (due to the absence of complaints) and no consequential injury to the lower back due to there being no substantial limp after the accident. He was of the view the cause of the lumbar pain was underlying spondylosis.
Medical Assessor Home found injury to the right lower limb including the knee and right hip based on an early complaints of right knee and thigh pain.
Medical Assessor Home determined a 5% WPI for the cervical spine injury, 2% impairment to the right hip, no impairment to the right knee (beyond the unrelated right knee replacement) and therefore a total impairment of 7%.
In terms of the treatment dispute, he found:
(a)   domestic assistance – while there was some neck pain and discomfort in the right hip and knee it is not a disability significant enough to require domestic care and assistance and therefore it is not reasonable and necessary;
(b)   pain medication – the claimant requires simple analgesia for the pain arising from his injuries;
(c)   physiotherapy – there is no need for ongoing passive physiotherapy six years after the accident and it is not reasonable and necessary, and
(d)   future revisionary right knee surgery – there was no evidence of any structural damage to the existing right knee surgery and therefore no need to have the surgery. If there is a need to replace the right knee in the future, it is not related to any injury sustained in the accident and not reasonable and necessary.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant’s review submissions take issue with both the impairment assessment and the assessment of the treatment disputes.
The claimant takes particular issue with the Medical Assessor’s findings of causation of the shoulder and low back injuries and his right knee assessment. The claimant complains that the Medical Assessor did not take into account the mechanism of accident and the fact that the claimant’s vehicle was written off. The claimant complains generally about the adequacy of the reasons and that Medical Assessor Home has made speculative findings on causation and findings inconsistent with the findings of the contemporaneous records and the opinions of his neurosurgeon, Dr Darwish.
The claimant says:
(a)   there is no evidence of previous symptomatic neck, shoulder, low back or right knee symptoms immediately before the accident;
(b)   Dr Hua’s report of 27 October 2016 links the right thigh pain with the claimant’s difficulty lifting his leg to climb stairs causing falls and that could have caused back problems;
(c)   the accident caused or materially contributed to the shoulder impairment, and
(d)   there is contemporary evidence of a right knee injury which should have been assessed. It was incorrect to find no right knee injury and impairment.

Insurer’s submissions

The insurer says:
(a)   the Medical Assessor did find the claimant injured his right knee in the accident but that it did not give rise to an assessable impairment;
(b)   the records reveal no complaint of lower back pain until over eight months after the accident and the claimant himself said that the low back pain commenced in late 2016. There is evidence of a degenerative condition. Dr Dias found in November 2016 a mild antalgic gait, but Dr Dryson found no alteration of gait or limp. All these findings explain the Medical Assessor’s decision on causation;
(c)   in relation to the shoulders the insurer says again there is no mention of injury to the shoulders before 29 October 2016 and the claimant could not recall when right shoulder symptoms commenced. Shoulders are not mentioned in the claim form or medical certificate and Dr Dias took no history of a shoulder injury. The claimant submits the Nguyen principle applies (that is that the neck injury has caused shoulder complaints) but then alleges there was a specific injury to each shoulder;
(d)
the Medical Assessor considered all of the evidence including the report of

Dr Hua, and
(e)   the Medical Assessor has applied the appropriate test of causation in relation to the shoulder and lumbar spine injury.

REVIEW OF THE EVIDENCE

The claimant’s bundle of documents in this review[5] comprises 1,127 pages. The insurer’s bundle[6] comprises 773 pages.
[5] Document AD1 in the Commission’s electronic file.
[6] Document AD2 in the Commission’s electronic file.
Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[7] said:
“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.”
[7] [2022] NSWSC 1079 at [63].
While the Panel has considered all of the documentation put before it by the parties, the Panel intends to refer only to the evidence relevant to the issues in dispute.

Claim form and claim documents

Although the claimant’s accident occurred on 10 February 2016, the claim form was not completed until 28 September 2016[8] seven months after the accident. In that form at section A, the claimant discloses a 21 March 1997 injury to the right knee and a 10 November 2005 injury to the left knee both of which involved workers compensation claims.
[8] Page 41 of the claimant’s bundle.
The claimant says he was travelling in the left of two lanes on a ramp near the M5, slowing down when his car was clipped from behind and as a result, he lost control. He collided with a vehicle in front before swerving and hitting a wall on his left then a wall on his right before colliding with a third vehicle.
The claim form says the claimant attended Canterbury Hospital and it lists the injuries as:
(a) whiplash - right neck and
(b) thigh, hip and knee - right
The body map which forms part of the claim form has shading on the right side of the neck (front and back), the right side of the knee (front and back) but no discernible shoulder, thigh and hip shading.
Mr Arends identifies his general practitioner (GP) as Dr Hua of Enfield and discloses that he had “aggravation to the right knee” before the accident.
Dr Hua completed the medical certificate in support of the claim on 15 September 2016 diagnosing a whiplash injury to the right neck, right thigh and hip injury. The body map completed by Dr Hua has the right side of the neck at the front shaded and the right thigh circled but the right knee is not either mentioned or included on the body map. Dr Hua says he has referred the claimant to a sports physician and for physiotherapy.
It appears (from the date stamp on the claim form) that while the claim form was completed in September 2018, the claim may not actually have been made until October 2018, two years later. The claimant provided a statutory declaration dated 11 March 2020 in support of his application to make a late claim[9] which includes the following details:
[9] Page 23 of the insurer’s bundle.
(a)   the claimant emigrated to Australia in 1979 and worked as a cabinet maker for “10 or so years”;
(b)   he worked as a courier for 17 years but ceased this work due to a right knee injury;
(c)   he ran a café in Tempe for about three years before having three years out of the workforce;
(d)   he obtained work as a “part time janitor” at a childcare centre working five days per week for five hours a day;
(e)   he had no plans to retire and would work until he could no longer do so;
(f)    he acknowledges the right knee replacement and occasional discomfort with it, but said he had no problems with the right knee “for the majority of the time”;
(g)
he injured his left knee and left ear when he slipped coming down a step on

12 October 2017. He said he made a full recovery and returned to work, and
(h)   he tripped and fell onto his right shoulder and hurt his lower back on 9 August 2019 running for a train and “I still have problems with my right shoulder”.

The claimant documents the multiple impacts in the car accident and says, “my body was thrown around in the cabin of my vehicle”. He remembers his right-side colliding heavily with the inside pillar and that his head and chest collided heavily with the steering wheel.
Mr Arends says he injured his head and neck, his back, right shoulder and arm, left shoulder, right upper leg, knee and hip as well as developing shock. He also alleges further injury to his right knee.
The claimant lists his treatment noting the insurer had ceased paying for physiotherapy and he was utilising the Medicare treatments. He says he works five days a week but can only work three hours a day.
The claimant says that after the accident, and before his fall onto his right shoulder he saw a Dr Annette who gave him a cortisone injection with gave temporary benefit only. He returned to Dr Annette twice after the fall at the train station.[10]
[10] No records from Dr Annette are before the Panels.
The claimant says he takes Panadeine Forte and Endone prescribed by his GP.
The claimant says before the accident he had not made a claim for compensation arising out of a motor accident and had no knowledge of the system. The claimant said while he had pain after the accident it worsened which prompted him to talk to his GP who suggested he should get legal advice and recommended Alliance Lawyers.
He said he attended his GP, got the medical certificate completed and he completed and signed the claim form on 28 September 2016 returning it to his solicitor.
In August 2019 he decided to change solicitors frustrated at the progress. He saw a pop-up stand from Brydens and after that he engaged his current firm of solicitors.

Treatment records

Dr Bruce – right and left knees before the accident

Dr Bruce, orthopaedic surgeon has been involved with care of the claimant’s knees since May 1997 seeing the claimant 40 times up until July 2012.[11] Arthroscopic surgery to the right knee was performed in October 1998 and September 1999. There was an ACL reconstruction in December 1999 with follow up until May 2002.
[11] His records are produced at page 76 of the insurer’s bundle.
On 24 July 2006 the claimant attended in respect of the other (left) knee with a new problem.
In 2009, 2010 and 2011 the claimant attended for left and right knee issues before having a total right knee replacement on 25 March 2011.
It should be noted that within the claimant’s bundle are documents suggesting workers compensation claims were made in respect of work injuries to the right knee (1999) and left knee (2005) and that the left knee was injured in a fall down railway station stairs on the claimant’s way to work.[12]
[12] Page 933 of the claimant’s bundle.

Hospital records – before and after the accident

There is a record from Canterbury Hospital[13] concerning an admission on 31 May 2010 with “sudden onset of back pain, just paravertebral area around T4-5”. The impression was of muscle spasm and there was no history of trauma. There is reference to bilateral knee pain.
[13] Page 301 of the insurer’s bundle.
The records from Canterbury Hospital from 10 February 2016[14] include an extensive admission summary with this history:
“The patient was driving a van allegedly was sideswiped by another vehicle. The van apparently spun around couple of times. Patient was wearing seatbelt during that time airbags did not deply.
States he may have jammed his right knee against the dashboard. Now complaining of neck pain and right knee pain.
No loss of consciousness no shortness of breath able to walk into the ambulance.”
[14] Page 309 of the insurer’s bundle.
It is recorded that the claimant was tender on the midline at C4-C6 and had “mild tenderness on the right hip” and “mild swelling on the right knee”. X-rays revealed no fractures, and the claimant was discharged for review by his GP.
On 29 June 2016 the claimant attended Bankstown Lidcombe Hospital[15] with the triage comment that he had attended with a history of two weeks of left upper quadrant pain after sustaining an injury walking into some handrails. There is no mention of the car accident, or any ongoing problems related to that car accident.
[15] Page 538 of the insurer’s bundle.
The claimant attended Bankstown Lidcombe Hospital again on 1 August 2016[16] following a fall on his right side with a laceration to his right ear and complaining of right lateral neck pain and cervical spine tenderness. There is no mention of the car accident, or any ongoing problems related to that car accident.
[16] Page 532 of the insurer’s bundle.
There are outpatient records from Canterbury Hospital concerning trauma to the claimant’s right thumb said to have occurred six weeks earlier with the referral dated

26 September 2016. The claimant was seen in the hand clinic on 18 October and

1 November with the impression of a sprain to the right thumb.
On 20 September 2019 the claimant attended Bankstown Lidcombe Hospital[17] with an injury to his right shoulder following a fall when he was running to catch a train and he had developed increasing pain in the past 48 hours. The pain is referred to as “chronic” and there is the history of the claimant having been injured in 2016.
[17] Page 557 of the insurer’s bundle.

Ambulance records – after the accident

The ambulance report[18] records an impact of the right knee under the dash and the claimant’s head hitting the right window. There was mild swelling of the knee and no pain in the cervical spine with no numbness or tingling.
[18] Page 280 of the insurer’s bundle.

General Practitioner records

The claimant’s post-accident GP has been primarily Dr Hua of Enfield. The claimant’s pre-accident GP was Dr Sue. Dr Hua records that Dr Sue had faxed a medical summary to the claimant but in late 2015 had given him his previous records as her surgery was closing. A medical summary[19] notes carpal tunnel syndrome on the right in 2003, degenerative lumbo-sacral disc at L4/5 in 2005 as well as knee problems also in 2005.
[19] Page 79 of the claimant’s bundle.
The claimant first attended on Dr Mary Lau at MyHealth Enfield on 4 April 2016. The claimant reported a car accident in February with ongoing right sided neck pain but no radiculopathy. Dr Lau has a past history and recommended physiotherapy for neck pain.
Documents were uploaded by the practice but there were no further attendances recorded until 1 September 2016 when the claimant saw Dr Danny Hua. At this appointment the claimant complained of feeling pain in the anterior mid right thigh and he had difficulty walking uphill or up steps. The claimant referred to a “fall four weeks ago [and] stitches to right ear”.
X-rays were done showing minor degenerative disease in the hip and pelvis and the knee replacement was in a good position although there was an osteoma present, and the claimant was referred to Dr Annette. The date of the referral is 3 September 2016,[20] and it refers to “further assessment and management of anterior right thigh pain”. Dr Hua includes in the referral details of his examination saying there was no tenderness, but the claimant had an antalgic gait on the right and restricted range of motion in the right hip with pain on internal rotation and no tenderness. The range of motion in the right knee was said to be normal.
[20] Page 813 of the claimant’s bundle.
On 8 September 2016 there is a further reference in the records to a right ear injury after falling requiring stitches and the claimant was getting pain.
On 15 September 2016 the claimant said he was considering making a work cover claim for right knee surgery and on 27 October 2016 his right leg was said to be getting worse and there was more pain in the right hip.
On 4 February 2017 is a note that the claimant was still having pain in the right leg and was seeing Dr Annette and he had “left shoulder pain, constant pain for years on [and] off, past injection with relief, uses Panadeine Forte”.
On 9 August 2019, Dr Nguyen at Enfield saw the claimant for right shoulder pain with this history:
(a)   “was at the train station and caught something with his right shoulder and felt pain in his right shoulder.”
(b)   Dr Hua referred him for a scan;
(c)   “on the same [day] that he went for the scan and tripped and fell onto his right shoulder”, and
(d)   “afterwards couldn’t move his right shoulder anymore”.
Records from Haldon Street Medical Centre have been provided dating back to 2003.[21] In 2016 there were attendances for rib pain after a fall (10 June and the Panel notes this marries up with the hospital records), infected cyst or boil (28 June and 7 July), unrelated conditions (19 July and 31 August) and a right thumb injury and osteoarthritis (2 and

26 September). In November 2016 there is reference to a nail injury.
[21] Page 737 of the claimant’s bundle
At no stage during 2016 is there mention in these records of the car accident or any accident related injuries or symptoms.
On Friday 20 September 2019 the claimant attended on Dr Ahmed for “a right shoulder chronic pain” and an ultrasound and steroid injection was advised. On 3 March 2020 a further attendance occurred for right sub-acromial bursitis and again on 15 May 2020. There is no mention in these records of trauma or the motor accident.
Dr Hua provided a report to the claimant’s solicitors dated 23 June 2020.[22] He refers to the list of attendances and noted that the claimant first attended on his colleague Dr Lau after Mr Arends’ previous GP retired. He notes Dr Lau had a history of right sided neck pain only.
[22] Page 474 of the claimant’s bundle.
Dr Hua says he first saw the claimant on 1 September 2016 with mild neck tenderness and pain in the right side of the neck with a normal range of motion. The claimant reported to

Dr Hua on 27 October 2016 he had pain in the mid right thigh since the accident extending to the right hip causing difficulty with steps. On 15 June 2017 this pain was said to be continuing and the first complaint of lower back pain was recorded which the claimant said had commenced since the accident. On 22 June 2017 Dr Hua states there was ongoing thigh pain. Dr Hua says right shoulder pain, pain in the right neck and lower back was reported on 23 July 2019 and on 9 August 2019 the claimant attended for right shoulder pian following a fall at a train station.
Dr Hua reported that the claimant was unable to return to his pre-injury employment.
He diagnoses chronic neck pain likely to persist, chronic mechanical lower back pain likely to persist and chronic anterior thigh pain – likely to persist.
The Panel notes of interest in this report, Dr Hua does not mention the right shoulder pain being caused by the accident or any ongoing complaints of right knee pain.

Physiotherapy notes

Records from Belmore physiotherapy[23] have been produced.
[23] Page 177 of the insurer’s bundle.
The claimant was referred there by Dr Lau on 4 April 2016. The referral seeks “further assessment and management of right sided paraspinal neck pain sustained after MVA in 10 February 2016”. Treatment was provided to the cervical spine only as set out in a letter or form addressed to Dr Lau and dated 7 April 2016.
The claimant also had physiotherapy at the Campsie Centre. The referral from Dr Hua to Bon Lee at the Centre is dated 27 October 2016 and refers only “for further assessment and management of right hip pain under CTP known to John Truong. Initially was right thigh pain, getting worse, difficulty lifting leg up for steps causing falls”.[24]
[24] Page 78 of the claimant’s bundle.
The notice of commencement of physiotherapy completed by Mr Zheng of Campsie is dated 29 October 2016.[25] It is recorded that the claimant had:
(a)   severe cervical neck pain on both sides with severe headaches and constant paraesthesia, radiating burning pain, tingling and numbness into right shoulder, elbow and finger tips to the lower back, neck and both shoulders. It was also indicated that a further scan of the cervical and lumbar spine would be required and an ultrasound scan for the right shoulder;
(b)   severe central and bilateral lumbar spine with constant distal paraesthesia including radiating pain into both lower limbs on the right side to the knee level and on the left side to the buttock level, and
(c)   ongoing bilateral severe shoulder pain – constant burning pain, tingling numbness into the right shoulder, elbow and fingertips. It is also reported that “patient report requires special assistant from husband for dressing”.
[25] Page 74 of the claimant’s bundle.
The Panel has read these notes and considered them in the light of Dr Hua’s notes and the report of Dr Dias and the Panel is of the view that they are quite out of keeping with the rest of the medical material. For example, the suggestion of radicular signs in the upper and lower limbs in the physio notes is not replicated in the report of Dr Dias completed less than a month later. There is also no mention of right hip pain which was the subject of the referral. The Panel gives these notes little weight as a result.
The claimant attended Belmore physiotherapy in February 2017 and April 2018 for left shoulder and upper trapezius pain and had five Medicare funded treatments during each of those periods. The handwritten note on 9 April 2018 suggests the left trapezius and posterior shoulder pain occurred after lifting a cupboard. On 14 April 2018 he had more pain and stiffness in his lower back.
There are handwritten notes suggesting the claimant attended on 25 February 2019 complaining of lower back pain after lifting bags of manure and three treatments occurred associated with this episode.
An entry on 7 August 2019 says “fell this AM while running for bus and caught fall [with] [right] hand on rail. [Pain] in right AC joint.” On 12 August 2019 it is reported the claimant was to have a cortisone injection and on 6 September 2019 he had it with no improvement and he had “lower back pain for past three weeks”. On 11 and 17 September there is a suggestion of shoulder aggravation and having another cortisone injection. The note of 30 October 2019 says “right shoulder had cortisone, doesn’t feel it helped. 1/7 ago LBP started.”

Radiology

At hospital on 10 February 2016, the following imaging studies occurred:
(a)   a chest X-ray revealed no fractures;
(b)   a right knee X-ray showed the total right knee replacement with screws and anchors, noted no fracture, alignment normal and there was no joint effusion;
(c)   pelvis and hip X-rays showed no fractures but mild arthritic changes in both hip joints, and
(d)   a CT of the cervical spine showed no fracture and normal alignment. There was a small C5/6 posterior disc protrusion not causing canal stenosis.
In the GP records is a radiology report from Campsie dated 14 February 2005[26] with a clinical note of, “long history of low backache. Occasional pain radiating to right leg”. The X-ray showed mild to moderate disc space narrowing at L4-5 with minimal degenerative changes and normal sacro-iliac joints.
[26] Page 775 of the claimant’s bundle.
On 1 April 2005 a further study was undertaken of the lumbar spine and right hip showing a “minimal joint space narrowing”.
An ultrasound guided left shoulder bursal injection occurred on 9 August 2012.[27] After a further ultrasound on 19 December 2014, an ultrasound guided injection into the left shoulder subacromial bursa was done on 22 December 2014.[28] The supraspinatus was reported to be intact without evidence of a tear and the acromioclavicular joint showed degenerative changes on X-ray.
[27] Page 924 of the claimant’s bundle.
[28] Page 920 of the claimant’s bundle.
On 14 June 2017 the CT of the lumbar spine requested by Dr Nguyen was done[29] due to “pain right lateral and anterior thigh”. This showed mild narrowing at L4-5 with a symmetrical disc bulge but no protrusions or herniations. Also at that time on 16 June 2017 an X-ray of the right hip was done with the clinical note reading “pain right anterolateral thigh on weight bearing”. The report said there was “mild degenerative joint disease of the right hip.”
[29] Page 774 of the claimant’s bundle.
Left knee imaging was done on 18 October 2017[30] with a clinical history of “twisted left knee coming off ladder – tender and pain medial knee joint”. The X-ray revealed no fracture but an ultrasound confirmed a tiny popliteal cyst and oedematous thickening of the medical collateral ligament.
[30] Page 778 of the claimant’s bundle.
A left shoulder ultrasound was undertaken on 8 August 2019[31] due to “chronic left shoulder pain and flare up” with the report indicating the presence of acromio-clavicular joint degenerative changes. On 15 August 2019 an ultrasound and X-ray of the right shoulder showed evidence of subdeltoid bursitis but no rotator cuff tear.

Medico-legal reports

[31] Page 803 of the claimant’s bundle.

Claimant

Dr Dias provided a report to the claimant’s former solicitors dated 28 November 2016. He refers on the first page to injuries to the “Cervical Spine, Lumbar Spine, Right Hip, Right Knee”. The insurer submitted, and the Panel notes, that there is no reference to shoulder pain in this list.
The claimant gave a lengthy history of his knee problems and said he was largely pain free at the time of the car accident. He denied any previous neck, lower back or hip problems.
The claimant reported pain and stiffness in his cervical and lumbar spine, his right hip, right thigh and right knee. He does not mention the right shoulder. Mr Arends reported worsening right knee pain but was only seeing his doctor, taking anti-inflammatories and he had some physiotherapy. He had not at that stage seen a specialist.
Mr Arends did not report radicular symptoms radiating down his right and left lower and upper limbs. He had difficulty standing and walking and driving for any great length of time.
There was dysmetria in the cervical spine and some guarding but no neurological signs of radiculopathy. Similar findings were made in the lumbar spine (guarding, asymmetry of movement but no sign of radiculopathy). The left hip was normal, the right hip was not. In the right knee, flexion movements were restricted but there was full extension.
Impairment was assessed at 5% (neck), 5%, (lower back), 2% (right hip) and 5% (right knee) being the difference between a good knee replacement result (20%) and a fair result (15%). Combined these produced a total of 17%.
Dr Dryson, occupational physician provided a report to the claimant’s solicitor dated

17 July 2020.[32] He documents the claimant’s accident, early treatment and radiology.

Dr Dryson then documents the claimant’s work history as a cabinet maker (kitchens and shop fit outs), process worker (sitting at a conveyer belt) and for 17 years a driver for Corporate Express (loading and unloading). At the time of the accident Mr Arends was a full-time maintenance worker at a childcare centre. He had a week off work then worked part time three hours a day five days a week.
[32] Page 49 of the claimant’s bundle.
The claimant reported:
(a)   pain in the neck radiating to the right shoulder and down the arm with pins and needles in the right hand and three fingers;
(b)   decreased right shoulder pain made worse following a fall in August 2019;
(c)   because he uses his left shoulder more, he is experiencing discomfort in that shoulder;
(d)   low back pain with some sciatic symptoms in the right leg. The claimant denied lower back problems before the car accident;
(e)   in the right hip pain in the right thigh attributed to him hitting his right hip on the inside of the car at the time of the accident, and
(f)    headaches in both temples which the claimant thought could be related to high blood pressure.
Dr Dryson has a history of the total knee replacement in 2010, a fall in October 2017 injuring the left knee and ear, and a fall while running to catch the train in August 2019 when he injured his right shoulder.
On examination there was dysmetria in rotation and flexion/extension. There was significant loss of motion in the right and in the left shoulders. There was decreased sensitivity to pinprick sensation in the right hand and the left (but less so). Reflexes were normal but there was reduced grip strength on the right.

There was dysmetria in the flexion extension plan and in lateral flexion right to left.
In the knees there was considerable restriction of right flexion. Right hip movements were also reduced.
In the lower limbs there was decreased pinprick sensation in the right foot, weakness in the right leg muscles (secondary to the right knee replacement) and normal reflexes (the right knee reflexes could not be measured due to the knee replacement).
Dr Dryson considered four hours of domestic assistance was required per week, that his work was suitable and light but that he would not be employable on the open labour market. He suggested 24 sessions of physiotherapy a year. While documenting degenerative conditions in the lower back and right hip, Dr Dryson thought the accident was causing impairment to those areas.
Dr Dryson assessed WPI at 25% on the basis of 5% for the neck and back (due to dysmetria and radicular symptoms); 6% for the right shoulder on the basis of a 50% contribution from the subsequent fall and a 4% WPI for the left shoulder, 8% for the hip and 0% for the knees.
Dr Lee, orthopaedic surgeon provided a report to the claimant’s solicitor dated

26 May 2021.[33] He too has a consistent history of the accident and notes the claimant’s airbags did not deploy. The claimant said his pain was mainly in the right knee and right shoulder and that he saw his own doctor the day after the accident and had physiotherapy.
[33] Page 1028 of the claimant’s bundle.
The claimant told Dr Lee he had a right knee replacement 10 years before with good results and that he was pain free before the accident but that he now has pain with stairs and level walking. The claimant also said his right shoulder hurt and he had injections in it every eight months. He reports having a few days off and his back started to hurt radiating to his legs.
Dr Lee examined the claimant and found he injured his right shoulder, knee and back. He gives no reasons in support. He considered the prognosis was guarded and the claimant might need revisionary knee replacement surgery in the future. He did not think shoulder surgery would be beneficial.
In a separate impairment assessment, he assessed 5% for the lower back, 10% for the right shoulder and 6% for the right knee which combined to provide a WPI of 19%.

Insurer

Dr Rogers provided a report to the insurer’s lawyers dated 25 June 2020.[34] After summarising the medical records, she took a pre-accident medical history from the claimant of high blood pressure, kidney stones and prostate surgery. She records “He had a little back pain from time to time. He stated that he attended physiotherapy frequently before the subject accident.”
[34] Page 35 of the insurer’s bundle.
The claimant denied previous neck or shoulder pain and acknowledged the previous right knee injury.
Dr Rogers has a history from the claimant of him working before the accident, three hours a day from 6am to 9am, five days a week and that “about a year following the subject accident the other employee resigned and Mr Arends then was provided with the janitor duties”.
The claimant says he still works three hours a day five days a week and received the Aged Pension.
Dr Rogers has a consistent history of the accident and of the claimant being transported to hospital. She has a history that he was placed in a brace due to right sided neck pain and he had pain down the right lateral thigh and right knee. Mr Arends said he saw Dr Hua within a week and was treated with analgesic medication and physiotherapy.
The claimant told Dr Rogers his right shoulder pain was present after the accident as minor pain but that he noticed it “at the end of 2015”. He said he had lower back pain from the date of the accident and had told the doctors at the hospital about this.
The claimant complained of right shoulder pain and intermittent right arm pain. He said he had difficulty opening a jar and dropped a kettle and is doing more with his left shoulder and arm. He reported tingling and numbness in all the fingers of his right hand.
The claimant reported intermittent low back pain and mild neck pain on the right. He also reported intermittent knee pain since the accident stating that his knee was pain free after his knee replacement surgery.
Dr Rogers takes a history of the two subsequent accidents and says Mr Arends is currently taking Panadeine Forte, Palexia, Celebrex and Endone.
Dr Rogers accepted an injury to the cervical spine but says the left shoulder was injured at work, he had a pre-existing right knee replacement, a significant delay before reports of lumbar spine pain and she requested the hospital notes and the records of Dr Sue.
She assessed WPI at 5% and considered he did require domestic assistance for six weeks after the accident.
Dr Rogers provided a supplementary report dated 8 October 2021[35] in which she summarised additional pre and post-accident records. In particular she notes, “no contemporaneous evidence of shoulder or hip injuries” but subsequent injuries following lifting incidents at work and falls. She also considered there had been a temporary exacerbation of right knee pain but no indication of any damage to the prosthesis.
[35] Page 70 of the insurer’s bundle.

RE-EXAMINATION FINDINGS

Mr Arends attended the re-examination arranged on 14 February 2024 at 2.00pm in the Commission’s medical suites.

History taken by Medical Assessor Stubbs

Social and employment history

Mr Arends was involved in a motor vehicle accident in February 2016 when he was then 69 years old.
Mr Arends is currently 77 years of age. He says he lives in a rented house with his wife and stepson.
He continues to work on a part-time basis in a childcare centre in Bondi as a general handyman. He has been working at this for about eight years. Previously he was a self-employed courier driver. He is also in receipt of the aged pension which limits the amount of work he can do (and the wages he can receive).

Previous medical history

When asked about previous accidents or injuries Mr Arends said he had no previous motor accident claims but did disclose a history of playing rugby and marathon running as a young man and a right knee injury.
The records reveal this was treated by anterior cruciate reconstruction in 2007 later converted to a right total knee replacement by Professor Bruce in 2010. Mr Arends said that generally the outcome of the operation was very successful although he had needed a manipulation under anaesthesia to obtain a full range of motion. At the time of the motor accident, Mr Arends said he did not require regular analgesics for his knee, did not need a walking aid and could satisfactorily climb steps and stairs at work.

History of the accident and early complaints

The motor accident occurred in February 2016 on a two-lane entry ramp to the M5 at Kingsgrove. The accident occurred on his daily commute from Moorebank to Bondi. His vehicle was hit from behind on the passenger side and pushed towards the right, striking the concrete retaining wall of the entry ramp with the right front.
Police and ambulance attended the scene as he was trapped in the van with the door jammed up against the entry ramp barricade. Mr Arends was extracted from the van and taken to Canterbury Hospital for assessment and allowed home on the same day. The Canterbury Hospital records listed his injuries as whiplash to the right neck and right thigh, hip and knee injury.
Mr Arends said that his initial complaints were of injuries to the right shoulder and the right knee when the van impacted retaining wall.
Following the accident, he went to his local medical officer Dr Hua of Enfield who arranged for further medical imaging and directed him to a specialist for further investigations.
Mr Arends says he has seen Professor George Murrell at St George for treatment to his right shoulder including injection. He has also seen Dr McKechnie for persistent neck pain and stiffness and underwent an MRI. Surgery was not advised[36].
[36] The Panel does not have before it any reports or records from Professor Murrell or Dr McKechnie.

Current complaints

Mr Arends main complaint is of symptoms in the right knee. He says the right knee swells with use. He thinks it is noisier than it was before the accident and the knee is more prone to get stiff causing limping and he has been told he will eventually need a revision of the knee replacement.
Mr Arends complains of a moderate degree of stiffness in the neck and the back.
Mr Arends complains that his right shoulder is still stiff and uncomfortable, but it has responded partly to the injections, and he has been told further management is not required. Both his shoulders are uncomfortable the right worse than the left and he has some difficulties with perineal care.
He continues to work as a part-time handyman at the childcare centre and has abandoned his plans to convert his van and run a mobile coffee shop.
He takes Panadeine Forte and Mobic for pain control and uses Dencorub for both his shoulder and knee.
Mr Arends denied any other significant symptoms in any other part of his body. In particular when asked about the injuries referred for assessment he said he had slight soreness in the right hip, no other symptoms in the right lower limb (other than the knee) or the left side of his body (other than the shoulder).

Clinical examination by Medical Assessor Stubbs

Mr Arends was fully cooperative in the clinical examination. He was examined in shorts and observed to struggle taking off a polo neck shirt. Other than that, he was able to dress and undress without assistance and could climb onto and off the examination table without assistance.
Mr Arends was 153 cm tall and a stocky build at 69 kg. The overall impression was of an active man.

Cervical spine examination

Mr Arends demonstrated a moderate degree of stiffness in the neck.
Mr Arends’ cervical spine movement measured three times was as follows:
(a)   flexion and extension – three quarters of normal range;
(b)   lateral flexion – three quarters of normal range both left and right sides, and
(c)   rotation – three quarters of normal range on both the left and the right side.
There was no spasm observed in the neck and no muscle guarding.
Neurological examination showed:
(a)   brisk and symmetrical reflexes in both upper limbs;
(b)   there were no cervical nerve root tension signs;
(c)   the girth of his upper limbs was also equal between the two sides;
(d)   power in both upper limbs was measured at 5 out of 5 indicating no muscle weakness, and
(e)   sensory examination was normal in the upper limbs.

Lumbar spine examination

Mr Arends demonstrated a moderate degree of stiffness in the lower back. He could tip toe and heel toe walk on both heels, but he could not hop on the right side (due to knee pain).
Mr Arends’ lumbar spine movement measured three times was as follows:
(a) flexion and extension – three quarters of what would be a normal range, and
(b) lateral flexion – three quarters of normal range on both the left and right sides.
There was no spasm observed in the lower back and no muscle guarding.
Neurological examination showed:
(a)   brisk and symmetrical reflexes in both lower limbs other than the right knee jerk reflex which was absent due to the presence of the right knee prosthesis;
(b)   there were no lumbar nerve root tension signs;
(c)   the girth of his lower limbs was also equal between the two sides both above and below the knee;
(d)   power in both lower limbs was measured at 5 out of 5 indicating no muscle weakness, and
(e)   sensory examination was normal in the lower limbs.

Shoulders and upper limbs

There was anterior deltoid tenderness on both sides to firm pressure with a positive O’Brien sign indicating signs of impingement.
There is wasting about the shoulder musculature with specific loss of bulk in the supraspinatus fossa, equally on both sides evidencing rotator cuff dysfunction.
The range of motion the table below and is the summation of three consistent goniometer measurements.

Right shoulder measurement (degrees)

Left shoulder measurement (degrees)

Flexion

120

120

Extension

30

30

Abduction

100

100

Adduction

50

50

External rotation

40

30

Internal rotation

40

40

The upper limbs were otherwise entirely normal with normal range of motion of the hands, wrists and elbows.

Right knee and lower limbs

Mr Arends reported some soreness around the right hip. The claimant’s right hip was entirely normal on examination. Active range of motion measured three times with a goniometer was normal in both hips in flexion and extension, internal and external rotation as well as abduction and adduction.
The right knee has a 13 cm midline scar from the total knee replacement with a smaller medial patella scar on the inner side of the knee with a puncture wound above the knee on the lateral side consistent with hamstring grafting for cruciate ligament reconstruction.
The range of motion in the knees was:

Right measurement (degrees)

Left measurement (degrees)

Flexion

110

120

There was no flexion contracture in either left or right knee.
There is some mild osteoarthritis in the left knee. The left knee did not reveal any effusion but there was marked retro-patella crepitus. The left knee has a normal alignment and good anterior-posterior/varus-valgus stability.
There were signs of mild effusion in the right knee, marked retro-patella crepitus and mild varus laxity. There were no residual signs of an injury to the right knee prosthesis and no present indication for further radiological examination.

Imaging

Mr Arends did not bring any of his imaging studies for review. Reports of the imaging studies are included in the evidence review.

Additional history taken by Medical Assessor Stubbs on 12 March 2024

At the re-examination on 14 February 2024 Mr Arends had said he noticed immediate pain in his right shoulder after the accident. He was asked why there is no mention of shoulder symptoms in the hospital notes or in his GP’s notes or to his expert Dr Dias. He was also asked why there is no documented complaint of shoulder pain before 19 October 2016. Mr Arends said he could not clearly recall when the shoulder pain developed.
Mr Arends was also asked why he did not mention shoulders or his lower back in his claim form and why there was no shading on the body map accompanying the initial medical certificate of these areas. Mr Arends said he had not seen the body map before and did not complete it.
He then said on further considering the earlier question that he thought he had reported the shoulder pain to the hospital and thought he had a low level of shoulder pain continuing thereafter.
He was asked about a fall on 1 August 2016 and an attendance at Bankstown Lidcombe Hospital and another attendance in September 2019 after another fall. Mr Arends said he had a fall running to catch a train and injured his right shoulder and cut his right ear and that is why he attended the Bankstown Liverpool Hospital. Mr Arends appeared to conflate the two attendances (as the records suggest he injured his ear and neck in the August 2016 fall but his shoulder and not his ear in September 2019) but he said he thought he had low-grade shoulder pain before the fall which became worse after this fall. Mr Arends could not explain why the hospital chose to use the term chronic referring to the shoulder injury. He said if he did not mention the accident to the hospital, it is because he did not think it was relevant.
Mr Arends said that after the February accident and first attending Dr Hua on

4 April 2016 he did not go to any other GP and between 4 April and 1 September 2016 he had also not attended on another GP. He said he may have had treatment at Bankstown Lidcombe hospital for other injuries and conditions. He said he did not mention the shoulders or his hip and thigh as this was not the purpose of the visit, or he may have referred to them in passing and they had not been recorded.
When asked specifically about his hip and thigh and why they were not mentioned until 2017 he said this pain become worse after a fall down some steps. He said he does not go to the doctor often or about minor things.
He was taken to the records of Mr Zheng physiotherapist which commence in October 2016 and include complaints of neck pain and headaches, central and bilateral lumbar spine pain and ongoing bilateral shoulder pain. Mr Arends said that because he was seeing Mr Zheng for the first time, he thought he should mention all of his problems.
Mr Arends was specifically asked about the impact of the fall at the railway station incident. Mr Arends said that all the pains in all of his body were present in a low-grade form, but he chose to ignore them and kept on working in the expectation that they would improve with time. He said they became noticeably worse after the fall and have remained worse since then.
He was asked about what radiology was performed on the initial hospital visit on

10 February 2016. He was sure his right knee, pelvis, hip, chest, shoulders, lumbar and cervical spines were all scanned.
Mr Arends was taken to the previous complaints of low back pain and radiology in

February 2005, with a further study done in April 2005. He was also referred to an ultrasound performed of the left shoulder in August 2012 and December 2014 was an injection given with the second ultrasound. Mr Arends did not recall the 2005 low back pain but did not deny it. He thought the left shoulder did receive ultrasound injections, but he could not recall when.
He was asked why he thought there was there no imaging performed of the lumbar spine until June 2017, the left knee until October 2017 and left shoulder ultrasound in August 2019. He that said all the symptoms were present, but he was hoping that they would resolve in time but when they worsened after the railway station fall, he sought attention from his doctors and the imaging was subsequently arranged.

CONSIDERATION OF THE ISSUES

Spinal injury assessment

Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 1.111 of the Guidelines). There are three regions in the spine, cervical, thoracic and lumbar (cl 1.115) and each is assessed separately with the WPI of each combined (cl 1.131).
There are five diagnostic related categories and a number of indicia provided to assist an examiner or assessor determining which of the categories is the correct category (see Table 7). Of relevance to Mr Arends and his injuries, the first possible category is DRE category I which is selected if there are symptoms which may include pain.
A classification of DRE category II is also possible noting the claimant’s complaints and his medico-legal reports. This category 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 /8 as:
(i)symptoms (shooting pain, burning sensation, tingling), and
(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.
A DRE category III finding would require there to be two or more of the five signs of radiculopathy provided for in cl 1.138:
(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.

Neck

The claimant alleges injury to his cervical spine. The hospital notes on the day of the accident record complaints of right sided neck pain and the first attendance at the GP two months’ later also mentions neck pain. Mr Arends complained of stiffness in his neck at the re-examination.

The Panel is satisfied on the basis of the contemporaneous records and Mr Arends’ history that he did sustain a soft tissue injury to his cervical spine in the accident.
Mr Arends complains of minimal cervical spine symptoms. He did not complain to Medical Assessor Stubbs of any radicular symptoms such as pain radiating into his arms or numbness in the digits of his hand. He had no guarding and while there was restriction of movement, it was equal and there is therefore no dysmetria. Mr Arends did not have any of the five signs of radiculopathy when examined.
Mr Arends falls within DRE category I and has a WPI of 0% in his cervical spine.
The records indicate Mr Arends fell on 1 August 2016 and injured his neck. This suggests an issue about whether Mr Arends’ current presentation and impairment is due to the injuries sustained in the accident. In the light of the WPI finding, the Panel does not propose to consider further the issue of causation of the claimant’s current cervical spine impairment.

Lower back

Mr Arends alleges an injury to his lower back.
At the examination with Medical Assessor Stubbs, Mr Arends complained of minimal lower back symptoms (stiffness). He did not complain to Medical Assessor Stubbs of any radicular symptoms such as pain radiating into his lower limbs, numbness or tingling. There was no spasm and no guarding and while there was restriction of movement, it was equal and there is therefore no dysmetria. Mr Arends does not have any of the five signs of lumbar radiculopathy.
Mr Arends falls within DRE category I and has a WPI of 0% in his lumbar spine.
There is no recorded complaint of lower back pain in the hospital notes or at the claimant’s first attendance on his GP in April 2016. While low back pain is mentioned in the Campsie physiotherapy notes, the first complaint of back pain is recorded in the GP notes in

June 2017, over a year after the accident. The claimant has conceded to other examiners a pre-accident history of lower back complaints and the records of his previous GP Dr Sue confirm this.
The Panel is doubtful that the claimant did injure his lower back in the accident however, in the light of the 0% WPI finding, the Panel does not propose to consider further the issue of causation of the claimant’s current lumbar spine impairment.

Right hip trochanteric bursitis

Mr Arends did not complain of right hip pain on questioning by Medical Assessor Stubbs but said he had some “soreness” in the right hip region.
The hospital notes[37] from the day of the accident record mild tenderness in the right hip. Radiology from the hospital revealed the presence of mild arthritis in both hips. There were no specific complaints of right hip pain in the GP notes until 27 October 2016 when the claimant was referred for physiotherapy. Lower back pain and right hip pain were investigated in February and April 2005 and again in June 2017 confirming mild degenerative joint disease.
[37] Page 308 of the claimant’s bundle.
The Panel accepts the claimant sustained a soft tissue injury to his right hip in the accident on the basis of the contemporaneous hospital notes and the inclusion of the right hip in the claim form, however it is the clinical judgment of the medical members of the Panel that in the light of the pre-existing arthritis which the radiology shows has continued to progress, it is unlikely the claimant’s current complaints are related to that soft tissue injury sustained over eight years ago.
Medical Assessor Home assessed 2% WPI for slight restriction of active range of movement in August 2022. However, the Panel’s re-examination showed a normal range of motion, leading to no assessable impairment.

Left knee sprain of medical collateral ligament

The claimant’s solicitor included a left knee injury in the list of injuries to be assessed.

Mr Arends did not complain of left knee pain to Medical Assessor Stubbs.
The Panel notes pre-accident complaints of left knee problems in Professor Bruce’s records and that left knee imaging undertaken on 18 October 2017 has a clinical history of the claimant twisting his left knee when coming off a ladder.
The Panel is not satisfied the claimant injured his left knee in the motor accident and in any event notes that with a range of motion at 120 degrees there is no restriction of motion in the left knee that would attract an assessable impairment in any event. Table 41 of the AMA4 Guides requires there to be a less than 110 degrees range of motion for there to be a mild impairment of 4%.

Right knee

The claim form identifies a right knee injury. The claimant complained to Medical Assessor Stubbs of increasing right knee pain, swelling, noise and stiffness since the accident. He had a total right knee replacement in 2011 due to significant symptoms and after lengthy treatment.
In the hospital notes on the day of the accident there is a record of some mild swelling on the right knee although no effusion reported on X-ray. The GP note of 4 April 2016 did not mention right knee pain. Dr Dias has a report in November 2016 of worsening right knee pain. Dr Hua’s report of 23 June 2020 does not mention ongoing complaints of right knee pain. Campsie physiotherapy have a record of right sided knee complaints but in the context of pain radiating from the back. There are no treating specialist reports in respect of the claimant’s right knee.
The Panel notes that on 15 September 2016 the claimant was considering reviving his Workcover claim for his right knee injury and that Dr Hua’s report of 23 June 2020 to the claimant’s solicitors does not mention right knee problems. The Panel has not been taken to any recent radiology of the claimant’s knee.
While the Panel does accept the claimant may have hit his right knee on some part of the van at the time of the accident, the Panel is not satisfied that the claimant has sustained any significant injury to his right knee or that the total right knee replacement has been damaged. The medical members of the Panel note there is no radiographic evidence to suggest any “loosening” of the right knee prosthesis and Medical Assessor Stubbs did not find any evidence on his clinical examination of the right knee indicating anything untoward with the right knee prosthesis. The Panel is not of the view that in the light of these findings an impairment assessment pursuant to the knee replacement provisions in Table 64 of the AMA4 Guides is appropriate, particularly bearing in mind the knee replacement surgery occurred in 2011.
The Medical members of the Panel in their clinical judgment are of the view that the motor accident caused a soft tissue injury to the right knee which has resolved. Any ongoing symptoms of increased pain, mild varus laxity, effusion and crepitus are, in the clinical judgment of the medical members of the Panel normal for a person of the claimant’s age with a right knee replacement that is now 13 years old.

Right shoulder

The claimant told Medical Assessor Stubbs that he experienced immediate symptoms in his right shoulder after the accident. The Panel notes the hospital does not record any complaints of right shoulder pain although right sided neck pain was mentioned. Dr Lau did not have a complaint of specific right shoulder pain although she also had a complaint of right sided neck pain which was the subject of early physiotherapy at Belmore.
Records of Bankstown Lidcombe Hospital reveal a fall on 1 August 2016 onto the right side with right ear and neck pain and on 20 September 2019 a right shoulder injury following a fall running to catch the train.
The Panel notes that Dr Hua’s records first mention right shoulder complaints in July 2019 and another fall onto the right shoulder was investigated by Dr Nguyen on 7 August 2019.
Of particular significance to the Panel is that Dr Dias, an expert retained by the claimant’s lawyers to provide a medico-legal report in support of this motor accident claim does not mention right shoulder complaints and the claim form signed by the claimant and dated

28 September 2016 does not mention the right shoulder.
Mr Arends’ explanation for the absence of recorded complaints about the right shoulder before October 2016 is implausible. If the claimant had any level of right shoulder pain, then the Panel would expect a complaint at some stage to be made and recorded by someone. He was examined at the hospital and disclosed some painful areas. His failure to include the right shoulder in his claim form was not adequately addressed. The claimant said he had not seen the body map or completed it however he has signed that claim form (containing a list of injuries) as true and correct. He could not explain why no mention was made of right shoulder problems to Dr Dias other than to remark that he was not sure when his shoulder symptoms commenced.
The Panel is not satisfied that the claimant sustained any right shoulder injury in the accident due to the absence of contemporaneous records, the absence of any mention of right shoulder in the claim form and the absence of any complaint to Dr Dias. If the claimant did sustain an injury to his right shoulder, then it was a minor soft tissue injury as indicated by the “low grade” or “low level” of pain experienced. Noting the claimant’s history given of a significant worsening of his pain levels after the fall in September 2019 which has remained at that “worse” level, the Panel is of the view that any current impairment in the claimant’s right shoulder is related to that incident and not the motor accident.
There is no assessable right shoulder impairment caused by the accident.

Left shoulder

The claimant’s solicitor has included the left shoulder in the list of the parts of Mr Arends’ body that were injured in the accident. Mr Arends did not complain to Medical Assessor Stubbs of any left shoulder complaints in terms of a frank left shoulder injury caused by the accident.
Dr Dryson in July 2020 records that the claimant was using his left shoulder more (because of problems with his right shoulder) and was therefore experiencing consequential discomfort with the left shoulder.
In the GP notes is a record on 4 February 2017 of the claimant having left shoulder pain which has been “constant pain for years on [and] off” and that he had a previous injection with relief and uses Panadeine Forte. In the notes there is reference to an ultrasound guided left shoulder injection in August 2012 and again in December 2014 which supports this.
The left shoulder does not feature in the GP notes before February 2017 and Dr Dias in November 2016 does not mention it.
The Panel is not satisfied the claimant sustained a frank left shoulder injury in the accident. It is not medically plausible that the emergence of symptoms in the left shoulder one year after the car accident could be related to a frank injury sustained to that shoulder 12 months before. The symptoms are also not explained by the claimant’s neck injury which is documented to be right not left sided. While it is possible Mr Arends could have experienced left shoulder symptoms due to overuse because of problem with his right shoulder, the Panel does not accept this on the basis of the long-standing history of left shoulder problems and the pre-accident imaging studies. In any event, noting the Panel’s findings in relation to the right shoulder above, any overuse of the left shoulder relates to the right shoulder injury caused by the fall and not the short-term, low-grade symptoms caused by the accident.
Any impairment in the left shoulder is not, in the clinical judgment of the medical members of the Panel, related to any injury caused by or resulting from the car accident.

Summary

In summary the Panel is of the view that the claimant’s WPI is:
(a)   neck  DRE I = 0%;
(b)   lower back            DRE I = 0%;
(c)   right hip                 0%;
(d)   right knee              0%;
(e)   left knee                no injury and no impairment;
(f)    right shoulder        no injury and no impairment, and
(g)   left shoulder          no injury and no impairment.

The treatment disputes

The medical members of the Panel accept that the claimant requires ongoing over-the-counter pain-relieving medication for the residual symptoms of pain from the injuries sustained in the accident, that is the soft tissue injury to his neck, lower back, right hip and right knee. Over the counter pain-relieving medication is reasonable and necessary in the circumstances of the claimant’s current pain levels.
The right knee replacement is now 13 years old, but revision is not needed in the immediate future, and it is the clinical judgment of the medical members of the Panel that the motor vehicle accident has had no effect on the longevity of the knee replacement. The Panel has expressed the view the claimant sustained a soft tissue injury only to the right knee. There was no evidence in the clinical examination conducted by Medical Assessor Stubbs of any current problem with the claimant’s right knee prosthesis. The medical members of the Panel are not of the view that the proposed future right knee arthroplasty surgery relates to the injury sustained in the accident.
It is the clinical judgment of the medical members of the Panel that the claimant’s accident-related residual mild neck, lower back symptoms, right hip symptoms and right knee symptoms do not require physical therapy and any such claimed treatment is not reasonable and necessary in the circumstances. Simple analgesia, self-directed exercises and modification of activities are, at this time, all that is required.
The claimant has continued to work at a similar level and in similar duties to those he worked before the accident. The claimant has mild ongoing accident-related symptoms although he does have symptoms and restriction of movement caused by other underlying conditions including in his shoulders, knees and lower back. It is the clinical judgment of the medical members of the Panel that any need for ongoing domestic assistance is not related to the accident but is related to those conditions not related to the accident. As any domestic assistance is not related to the accident-caused injuries, there is no need to consider whether it is reasonable and necessary in the circumstances.

CONCLUSION

The Panel has come to a similar view to Medical Assessor Home in respect of the treatment dispute and that certificate will be affirmed.
The Panel has also come to the same conclusion that the degree of the claimant’s permanent impairment is not greater than 10% however the Panel has determined a different degree of permanent impairment (0%) and Medical Assessor Home included the figure of 7% in his certificate. Therefore, the Panel has determined to revoke the certificate issued by Medical Assessor Home in relation to the WPI dispute and will issue a fresh certificate.
The Panel notes that it is now more than eight years since the claimant’s accident and that

cl 1.21 of the Guidelines requires the Panel to consider the impairment “as it is at the time of the assessment”. A finding of a 0% impairment does not mean that the claimant was not injured in the accident or that the injury is not causing some ongoing symptoms. A finding of 0% simply means that in accordance with the AMA4 Guides and the Guidelines, any injuries and ongoing symptoms do not result in an impairment that can be assessed within the legislative framework applicable to Mr Arends’ accident.

Right shoulder measurement (degrees)	Left shoulder measurement (degrees)
Flexion	120	120
Extension	30	30
Abduction	100	100
Adduction	50	50
External rotation	40	30
Internal rotation	40	40

Right measurement (degrees)	Left measurement (degrees)
Flexion	110	120

[2024] NSWPICMP 210

5 April 2024