Aylward v AAI Limited t/as GIO

[2022] NSWPICMP 4

DETERMINATION OF REVIEW PANEL
CITATION:	Aylward v AAI Limited t/as GIO [2022] NSWPICMP 4
CLAIMANT:	Jeshua Aylward
INSURER:	AAI Limited t/as GIO
REVIEW PANEL:	Principal Member John Harris Dr Michael Crouch Dr David McGrath
DATE OF DECISION:	13 January 2022
CATCHWORDS:	MOTOR ACCIDENTS-  The claimant suffered injuries in a motor vehicle accident in 2016; the dispute related to the assessment of permanent impairment; Held- the claimant suffered injury to the lumbar spine which required discectomy; this impairment was assessed at 5% as there was no objective signs of radiculopathy within the meaning of clause 1.138 of the Guidelines; the claimant also suffered soft tissue injuries to the thoracic spine and right forearm with no assessable impairment; the claimant suffered two subsequent motor vehicle accidents; the second motor vehicle accident was minor and only caused a short-term aggravation; there was no objective evidence that the third motor vehicle accident resulted in the permanent impairment within the meaning of clause 1.34 of the Guidelines noting that the claimant had undergone lumbar spine surgery prior to that accident; original medical assessment revoked in part.

Review Panel Certificate

issued under Part 3.4 of the Motor Accidents Compensation Act 1999

following a review under section 63 as to

WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER SECTION 63(4) IS AS FOLLOWS:

The Panel revokes the certificate dated 10 March 2021 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, IS NOT GREATER THAN 10%:

·        lumbar spine – disc injury at L4/5;

·        surgical scar;

·        thoracic spine injury – soft tissue; and

·        right forearm – soft tissue.

BACKGROUND

1. Mr Jeshua Aylward (the claimant) suffered injury in a motor accident on 30 June 2016 whilst travelling at 80 km per hour when the other vehicle failed to give way and t-boned the right side of the claimant’s vehicle (the motor accident).

1. AAI Limited (the insurer) insured the owner and/or driver of the other motor vehicle for liability to pay Mr Aylward any damages under the Motor Accidents Compensation 1999 (the MAC Act).

1. The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]

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

1. Mr Aylward was involved in subsequent motor accidents on 3 August 2016 (the second motor accident) and on 28 February 2019 (the third motor accident). One of the issues in dispute is the consequences of the second and third motor accidents to the level of impairment.

1. The second accident occurred when Mr Aylward was stationary in traffic on the Pacific Highway and a car travelling from behind failed to stop.[2]

   [2] Claim form dated 11 August 2016.

1. The third accident occurred when Mr Aylward was struck by another vehicle whilst riding a motor bike resulting in multiple orthopaedic injuries which including multiple surgical procedures to the left knee, right forearm, left shoulder, and also injury to the liver.

1. Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.

1. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]

[3] Clause 1.2 of the Guidelines.

1. The present application is a review of a medical assessment pursuant to s 63 the
   MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Nel Wijetunga and dated 8 March 2021. The details of that assessment are set out later in these Reasons.

1. The application for referral of a medical assessment to a Review Panel was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]

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

1. On 14 July 2021, the delegate of the President referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]

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

1. Pursuant to s 63(3) of the MAC Act and Sch 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act) a review panel consists of two medical assessors and a member of the Motor Accidents Division of the Personal Injury Commission (the Commission).

CONDUCT OF THE REVIEW

1. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a merit reviewer or a medical assessor.[6]

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

1. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]

   [7] Rule 128 of the PIC Rules.

1. All members of the Panel had no previous involvement with this matter. The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]

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

1. The Panel issued a Direction to the parties which required respective bundles of documents to be filed.

MEDICAL ASSESSMENT UNDER REVIEW

1. Medical Assessor Wijetunga provided a medical certificate dated 8 March 2021. The doctor noted that Mr Aylward underwent a left L4/5 laminectomy and microdiscectomy on 25 August 2018 which eased the sciatic pain. Examination revealed dysmetria of the thoracic spine with clear reduction of left rotation and dermatomal loss of sensation which correlated with the L5 nerve root. 

2. The Medical Assessor assessed Mr Aylward’s impairment at 11% comprising 5% for the lumbar spine, 5% for the thoracic spine and 1% for scarring.

MATERIAL BEFORE THE REVIEW PANEL

1. The following is a summary of the material before the Panel.

Hospital records

1. Following the motor accident, Mr Aylward attended the emergency department of Wyong Hospital on 30 June 2016 complaining of right forearm pain and swelling. An x-ray of the left forearm identified no fracture.

Clinical records

1. Mr Aylward attended his general practitioner on 4 July 2016. The doctor’s clinical notes referred to the motor accident and “low back pain and stiffness”. The clinical notes for July 2016 refer to low back pain.

1. A referral from the general practitioner dated 12 July 2016 for physiotherapy referred to a painful low back. The physiotherapy plan dated 13 July 2016 referred to the thoracic and lumbo-sacral spines as the specific anatomical site of accident injury and presenting complaints.

1. A treatment plan dated 16 July 2016 referred to the motor accident causing low to mid back pain. On 6 August 2016 the notes refer to the second motor accident causing “more discomfort” and neck pain. On 20 August 2016 the therapist noted some improvement although the lower back was still sore.

1. Mr Aylward was seen on 1 August 2016. The general practitioner then prescribed Endone and noted:

“Low back pain
On lyrica and occasional Valium
Feels very tight
Trying with physiotherapy”.

1. On 4 August 2016 Mr Aylward attended his general practitioner following the second motor accident complaining of back pain.

1. A physiotherapy review dated 12 August 2016 referred to the cervical spine, thoracic spine and lumbo-sacral spine as the presenting complaints.

1. On 3 September 2016 the therapist recorded some benefits and assessed “some mild irritation to lower mid back”,

1. A report by the physiotherapist dated 9 December 2016 referred to the motor accident and the second motor accident and opined that the second motor accident delayed recovery. On 6 December 2016 Mr Aylward had full range of movement in the cervical spine, some restriction in the mid-low thoracic spine extending into the lumbar spine. 

1. In mid-2017 Mr Aylward attended his general practitioner complaining of chronic back pain. He was then referred for CT scans of the entire spine.

1. A CT scan of the cervical and lumbar spines dated 6 June 2017 showed no abnormality in the cervical spine and moderate size posterocentral broad based disc protrusion indenting the anterior thecal scan at L4/5. The radiologist noted that the requested thoracic spine CT study “was inadvertently not performed”.

1. A CT scan of the thoracic spine dated 8 June 2017 did not identify any cause for thoracic spinal pain apart from minor degree of degenerative disc disease.[9]

   [9] See Medical Assessment of Assessor Wijetunga dated 8 March 2021, p 8. Dr Pierides described the scan as “within normal limits”.

1. An MRI scan of the lumbar spine dated 25 September 2017 showed a central disc protrusion at L4/5 of similar appearance to that shown in the recent CT scan.

1. A referral from the general practitioner to Dr Ghabrial dated 26 February 2018 referred to low back pain following motor accident and that “conservative approach wasn’t successful to relive [sic relieve] his pain”.

1. Mr Aylward attended Dr Ghabrial, Orthopaedic Surgeon on 22 March 2018. The doctor recorded a development of low back pain radiating to the legs, worse of the left following the motor vehicle accident. The doctor recommended a left L4/5 discectomy,

1. The operation report dated 21 August 2018 identified a herniated disc. A left L4/5 partial laminectomy and decompression was performed. 

1. Dr Ghabrial’s report of 27 August 2018 noted surgery on 21 August 2018 with resolution of radicular symptoms. The report of 4 October 2018 expressed similar findings with a recommendation for ongoing hydrotherapy.

1. In November 2018, Dr Ghabrial noted moderate loss of movement with no radicular signs.

Qualified opinions

1. Dr Giblin was qualified by the claimant’s legal practitioners and provided a report dated 28 June 2017. Dr Giblin recorded a main complaint of low back pain with leg symptoms and opined that there had been soft tissue injuries to the neck and low back.

2. Dr Dias was qualified by the claimant’s legal practitioners and provided a report dated 8 July 2019. The doctor noted that Mr Aylward was pain free in the thoracic and lumbar spines prior to the first accident. The motor accident occurred when the claimant’s vehicle was t-boned at substantial speed which was described in the following circumstances:

“As a consequence, the Holden utility T-boned the right driver’s side of Mr Aylward’s Holden sedan at considerable speed. The impact of the collision pushed Mr Aylward’s Holden sedan leftwards, off the road and onto a side embankment, lifting the car up, before it fell down the embankment, almost rolling over. Mr Aylward recalled all of the airbag facilities in his Holden sedan were deployed.”

1. Dr Dias described the second motor accident as causing a mild aggravation of injury to the lumbar spine.

1. The third accident occurred when Mr Aylward was riding a motor bike and he was t-boned by a motor vehicle that ran a red-light causing him to be dragged a distance of 15 metres and then “run over again”. Mr Aylward suffered a number of serious injuries in the third accident. He informed Dr Dias that the pre-existing thoracic and lumbar spine symptoms were “not significantly aggravated or exacerbated as a result of the most recent motor bike accident of 28 February 2019.”

1. Dr Dias referred to the third motor accident which caused significant injuries to the chest wall, abdomen, pelvic injuries, a minor spinal injury (fracture at L4) right forearm fractures and left leg fractures.

1. Dr Dias opined that the conditions in the lumbar and thoracic spines were mainly attributable to the first accident and to a lesser extent to the second accident.  He opined that the third accident has not made a material contribution to the injuries and disabilities. The doctor attributed one-tenth of the symptomatology of the lumbar spine to the second accident and nine-tenths of the lumbar symptomatology and the entire thoracic spine symptoms to the first accident.

1. Dr Peter Bentivoglio, Neurosurgeon, was qualified by the insurer and provided a series of reports.

1. In his first report dated 9 May 2018, Dr Bentivoglio noted that Mr Aylward had low back radiating into both legs, worse on the left in the L5 distribution. The findings on examination were discogenic axial back pain from an acute L4/5 disc injury due to the motor accident. The doctor opined that the second accident was not contributing to the condition.

1. Dr Bentivoglio recommended a cortisone injection then a L4/5 microdiscectomy if the symptoms did not stabilise.

1. In a further report dated 3 July 2018, Dr Bentivoglio reaffirmed his earlier view and noted the disc injury runs a “relapsing and remitting curse”.

1. In a further report dated 29 October 2019 Dr Bentivoglio noted the back surgery and the further accident on 28 February 2019. The doctor opined that the third accident “has not really affected his low back at all”. He noted the transverse fracture at L1 in the third accident “will just heal itself”.

1. Dr Bentivoglio opined that there was no evidence of radiculopathy affecting the L5 nerve root. The absent knee reflex was attributed to the left injury sustained in the third motor accident. The doctor assessed Mr Aylward’s impairment at 5% resulting from the motor accident.

1. Dr Lew Pierides, Occupational Physician, was qualified by the insurer and provided a report dated 20 February 2019. The doctor noted that immediately prior to the second motor accident Mr Aylward was taking Lyrica, occasional Valium, having physiotherapy and prescribed Endone on 1 August 2016. The doctor stated that “this suggests significant ongoing back pain” (at that time).

1. On examination Dr Pierides observed no embellishment, a midline surgical scar with normal neurological signs. The doctor accident that the disc lesion and surgical procedure was related to the motor accident.

1. Dr Pierides observed that the forces involved in the second motor accident were quite minor compared to the motor accident.

Claim form

1. The claim form completed after the second accident described a rear end collision and referred to pain in the thoracic and lumbar spine. It was stated that Mr Aylward was having treatment “for back pain from previous injury”.

SUBMISSIONS

1. The insurer submitted that the Medical Assessor did not comply with Table 6.8 of the Guidelines when assessing dysmetria, specifically failing to record the range of motion as a percentage and otherwise not including the two plains of motion.

2. The insurer referred to the third motor accident and the requirement under par 3.63 of the Guidelines to consider in the evaluation of permanent impairment events subsequent to the motor accident.

1. The insurer noted that Mr Aylward was seen by Dr Pierides eight days prior to the third motor accident and “the claimant did not even report symptoms in his thoracic spine at that time” and that the doctor “documented only [that] his low back pain had continued”.[10]

   [10] Insurer’s submissions, [21].

1. It was submitted that the Medical Assessor “ought to have assessed the claimant’s whole person impairment to his thoracic spine immediately prior to this third accident” and there was evidence that this injury was 0% whole person impairment based on Dr Pierides assessment.[11] It was submitted that the “third accident was a more than a negligible factor to the claimant’s impairment”.[12]

   [11] Insurer’s submissions, [22].

   [12] Insurer’s submissions, [27].

1. The claimant submitted that the Medical Assessor found dysmetria in the thoracic spine which attracted a 5% whole person impairment.

1. The claimant otherwise submitted that the second accident was of a minor nature which involved only a temporary aggravation. The Medical Assessor otherwise stated that he could not apportion for the other accidents. It was submitted:[13]

“The Assessor’s approach to the second and third accidents was consistent with and as required by s 3.63 of the Motor Accident Guidelines, which requires assessors to ignore impairment from prior [or] subsequent factors unless there is objective evidence of its presence.”

[13] Claimant’s submissions, [26].

RE-EXAMINATION

1. Mr Seymour was interviewed by the Medical Assessors on the Panel on 6 December 2021. The joint report is as follows:

Mr Aylward confirmed that he was involved in three motor vehicle accidents. These are:

1.3 June 2016

2.3 August 2016

3.28 February 2019

Mr Aylward further reports that injuries arising from the first accident were:

1.Bruising to the right forearm

2.Low back pain

3.Lacerations to the back of the right leg from broken glass

Mr Aylward confirmed that he has muscular spasm which affected higher regions of the spine. This consistent with the known facts and pain physiology.
Mr Aylward confirmed that in his opinion the second motor vehicle accident was minor compared to the first and did not lead to any new injuries. He received surgery to the lumbar spine on 25 August 2018, prior to the third accident. The surgery has been accepted as causally related to the first accident.

The third accident by comparison was a major event as he was hit from his motorbike sustaining internal and multiple joint injuries. He has since had an extensive laparotomy with repair of internal organs, a left shoulder reconstruction and multiple surgeries to his left knee. His recent surgery to the left knee was a total knee replacement.

1.     Symptoms and Disability

Mr Aylward currently ranks his symptoms in the following order:

1.Left knee

2.Back

3.Left shoulder

4.Right forearm

2.     Current Treatments

He takes Endone tablets at night for his multiple aches. He takes a number of vitamins and is reattending the gymnasium with an altered exercise pattern. He also attends rehabilitation three times per week where further exercises are prescribed.

3.     Examination

Mr Aylward was a well-built young man consistent with frequent attendance at a gymnasium and body building routines. He records that prior to his accidents he was a daily attender.

He walks with an altered gait pattern arising from a minor fixed flexion deformity of the left knee and discomfort with weightbearing on the left. There are multiple scars about the left knee, abdomen and left shoulder. 

Regional areas pertaining to injuries in the first accident were carefully examined.

Lumbar Spine
The range of motion of the lumbar spine was mildly asymmetric with a one-fifth loss of right lateral flexion.  Flexion and extension were full. Axial rotation in a seated position across the pelvis and lumbar spine was symmetrical and full. No muscle guarding or spasm was noted during his spinal movements.

Mr Aylward does have some symptoms in the left leg which are in the distribution of the S1 nerve root. He qualifies for non-verifiable radicular complaints.

Upper and lower leg circumference was measured at 49cm left and right; and 40cm, 38cm for right and left. This was previously reported by Dr Giblin in his report of 28 June 2017.

A thorough neurological examination was conducted. He has normal deep tendon reflexes in both the left and right legs. He has active Babinski plantar reflexes on both sides. He has normal straight leg raising on both sides. He does not satisfy sufficient criteria for radiculopathy.

Thoracic Spine
Mr Aylward has a completely normal and full range of movements of the thoracic spine. He had full axial rotation and flexion/extension. There is no muscle guarding or spasm observed. He had no non-verifiable or neurological symptoms pertaining to this area of the spine.

Right Forearm

Mr Aylward has a completely normal and full range of movements of the right forearm. There were no local observable signs. There was no rateable impairment.

Scarring
Mr Aylward has a 7cm mid-sagittal scar in the lower lumbar spine area. There is some widening of the scar with discoloration and some visible suture marks. Mr Aylward recalls that the scar can become itchy and he tends to place cream on all of his scars to prevent itching. Medical examiners determined that his scar would correspond to a 1% WPI under the principle of best fit. There are no scars resulting from lacerations to the back of the right leg from broken glass.
With respect to TEMSKI criteria:

1.     He is barely conscious of scarring

2.     There is poor colour matching

3.     There are no trophic changes

4.     Suture marks are barely visible

5.     Location is not clearly visible (by others) with usual clothing

6.     He is unable to easily locate the scars (visibility by self-looking)

7.     No contour effects

8.     No effect on any ADL

9.     Minor self-treatment is required

10.    No adherence

4.     Consistency

There were no examination inconsistencies. History taking and examination were straightforward.

5.     Investigations

No investigations were available for direct viewing.

6.    General Assessment and Causation

Mr Aylward is a 32-year-old gentleman who was involved in an MVA on 30 June 2016. In this accident he sustained permanent soft tissue injuries to his lumbar spine and right forearm. Over time, he developed left leg sciatica and received decompressive surgery on 25 August 2018. Current examination indicates that he does not have residual radiculopathy into the left leg. He does have some symptoms which can be interpreted as non-verifiable radicular complaints in the S1 distribution. There was also some residual asymmetry in the lumbar spinal movements. 

The examination of the thoracic spine is normal. Early physiotherapy records of altered rotation movement are explained by muscle reaction arising from his lumbar spine injury. The physiotherapist records para vertebral spasm.

There may have sustained a soft tissue to the neck, which has since resolved.

7.     Impairment Assessment

His current impairment is 6% based upon an impairment of the lumbar spine and some widening of his surgical scar. There is no rateable impairment arising from the right forearm soft tissue injury, but he has continuing symptoms. There is no rateable impairment of the thoracic spine.

The rest of his current impairment relates to a more serious later accident on 28 February 2019 which has resulted in a left knee replacement and reconstruction surgery to the left shoulder and abdominal surgery.

Body Part or System	AMA Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	%WPI* from pre-existing OR subsequent causes	%WPI* due to motor accident
Lumbar spine	MAPIG p26-36 T7 p27 AMA4 T72 p102-103	YES	5%	0%	5%
Thoracic spine	MAPIG p26-36 T7 p27 AMA4 T72 p102-103	No	0%	N/A	0%
Upper Extremity	MA PIG p13-16 AMA4 Chap3.1	YES	0%	0%	0%
Skin	MAPIG p 57-59 T18 TEMSKI AMA4 T2 p280	YES	1%	0%	1%

FINDINGS

1. The RP conducts a new assessment of all the matters with which the medical assessment is concerned.[14] The Panel adopts the findings of the Medical Assessors and add the following further reasons.

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

Causation - legal principles

1. Clauses 1.5 – 1.7 of the Guidelines provide:

“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’

This, therefore, involves a medical decision and a non-medical informed judgement.

1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

1. In Peet v NRMAInsurance Ltd[15] the Court reviewed a number of Supreme Court authorities including the observations in Owen v Motor Accidents Authority of NSW[16] when Campbell J stated that it was “well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D.”[17]

   [15] [2015] NSWSC 558 (Peet).

   [16] [2012] NSWSC 560 (Owen).

   [17] Owen at [27].

2. There were clear recorded complaints of low back and thoracic spine pain following the motor accident and prior to the second motor accident. The complaints of pain are suggestive of injury to those parts.

1. The various medical opinions attribute the low back pathology at L4/5 and resulting surgery to the motor accident. We agree with these opinions. Mr Aylward was asymptomatic prior to the motor accident and complained of intense lumbar spine symptoms following the motor accident which would have caused serious insult to the lower back.

1. The second motor accident was minor and only caused a short term aggravation. We reach  this conclusion from the nature of the accident and Mr Alyward’s contemporanous description of the events. That conclusion is consistent with the opinions expressed by Dr Bentivoglio and Dr Pieridis that there was no contribution to any impairment from the second motor accident.

1. The third motor  accident was extremely serious and caused substantial orthopaedic injures  and resulted in multiple operations.

1. Clause 1.34 of the Guidelines is headed “Subsequent injuries” and provides:

“The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”

1. The insurer did not refer to any objective evidence that the third motor accident contributed to impairment in circumstances where Mr Aylward had already undergone low back surgery. There is an absence of objective evidence that the third motor accident contributed to the impairment of the lumbar spine at the level of the surgical procedure.

1. We note that whilst Mr Aylward exhibits radicular symptoms, he did not have objective signs of radiculopathy as defined by cl 1.138 of the Guidelines. The joint report of the Medical Assessors specifically details the recent examination findings of Mr Aylward.

1. For these reasons the lumbar spine is assessed as 5% permanent impairment based on DRE II for the lumbar spine. That conclusion is consistent with the medical opinion in this matter.

1. The surgery performed by Professor Ghabrial was to the disc injured in the motor accident. Accordingly, the surgical scar is causatively related to the motor accident. This is assessed at 1% in accordance with the reasons of the joint report of the Medical Assessors on a best fit basis, principally because of the length and discolouration of the scar.

1. There is no basis to find that any portion of the permanent impairment is due to prior or subject injury. Mr Aylward provided a credible historical account and was consistent in his examination. There is no evidence of prior symptoms to the low back.

1. The impairment is otherwise permanent because of the duration of symptoms and the fact that the surgical procedure related to the motor accident.

1. The findings of the Medical Assessors establish that the impairment assessment of the thoracic spine is 0% by reason of Table 74 of AMA 4 and Table 8 of the Guidelines.[18] Whilst that assessment is different from some, but not all, of the earlier opinions[19], the Panel is required to assess at the time of the examination. Accordingly, the examination findings conducted by the Medical Assessors did not justify anything other than a 0% assessment for the thoracic spine. We otherwise observe that Mr Aylward underwent a CT scan of the thoracic spine in 2017. The CT radiological findings were essentially normal.

   [18] The insurer incorrectly referred to Table 6.8 of the Guidelines.

   [19] Such as Dr Giblin who was qualified by the claimant and did not assess the thoracic spine.

1. Based on that conclusion, there is no requirement to consider the insurer’s submission of lack of thoracic spine complaint to Dr Pierides immediately prior to the third motor accident.

CONCLUSIONS

1. Mr Aylward  suffered injuries in the motor accident which resulted in permanent impairment not greater than 10%. The replacement certificate is set out at the commencement of these Reasons.