Bchai v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 340
•15 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Bchai v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 340 |
CLAIMANT: | Magdi Bchai |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Les Barnsley |
MEDICAL ASSESSOR: | David Gorman |
DATE OF DECISION: | 15 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant assessed as having 7% whole person impairment (WPI) for physical injuries; claimant’s vehicle was stationary and hit from behind by another vehicle; claimant sustained neck and lower back injuries; claimant had previous motor accident in 2015 and pre-existing cervical stenosis, cervical myelopathy, and lumbar stenosis; Held – Review Panel found motor accident worsened pre-existing pathology; cervical spine assessed at 15% WPI for decompression surgery and radiculopathy with 5% due to pre-existing non-verifiable radicular complaints; lumbar spine assessed at 5% WPI for non-verifiable radicular complaints and dysmetria; no lumbar spine apportionment required due to insufficient detail in clinical notes for any deduction; MAC revoked; new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Robert Kuru dated 6 September 2024 and issues a new certificate as follows: (a) the Review Panel certifies the following injuries were caused by the motor accident: (i) cervical spine – cervical laminoforaminotomy. Aggravation of pre-existing degenerative disease, cervical stenosis and myelopathy, and (ii) lumbar spine – decompression. Aggravation of pre-existing L4/5 degenerative stenosis, ultimately requiring decompression. (b) The Review Panel finds that the above injuries result in a whole person impairment of 15% which is greater than 10%. |
STATEMENT OF REASONS
BACKGROUND
Magdi Bchai (the claimant) was involved in a motor accident on 4 January 2019. He was stationary in his car and about to turn right when he was hit from behind. No airbags deployed and no ambulance or police attended. The claimant was able to exchange details with the other driver and drive himself home. His car was later “written off”.
The claimant made a claim for personal injury benefits with NRMA (the insurer), the third-party insurer of the vehicle that he says caused the accident.
A medical dispute arose about whether the degree of the claimant’s whole person impairment (WPI) is greater than 10% WPI. If there is a dispute about the degree of a claimant’s WPI, damages for non-economic loss[1] cannot be awarded and disputes must be referred to a Medical Assessor/s for determination.
[1] See Division 4.3 of the Motor Accident Injuries Act 2017 (MAI Act).
On 6 September 2024, Medical Assessor Robert Kuru assessed the claimant’s injuries as having a WPI of 7% which results in a WPI of not greater than 10%.
The claimant lodged an application with the Personal Injury Commission (Commission) seeking a review of Medical Assessor Kuru’s assessment.
On 4 November 2024, a delegate of the President (Ms Tajan Baba) accepted the application for review and referred the matter to this Review Panel (the Panel) to conduct the Review proceedings.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Kuru was referred the following injuries for medical assessment:
· lumbar spine – decompression;
· cervical spine – cervical laminoforaminotomy;
· left shoulder – Nguyen principle[2], and
· right shoulder – Nguyen principle.
[2] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance [2011] NSWSC351.
Medical Assessor Kuru noted that the claimant had a pre-existing history of symptoms to his neck, shoulder and lower back as a result of a previous motor accident on 8 December 2015. An MRI dated 24 November 2016 revealed multilevel degenerative disease, central and foraminal stenosis and spinal cord myelomalacia. A consultation on 14 February 2017 noted lower back pain, right sciatic pain and weakness. There was a letter from the claimant’s neurologist, Dr Hassan dated 5 October 2017 which described Dr Hassan’s surprise at the claimant not proceeding with cervical cord decompression surgery, given the progressing of the cervical myelopathy. It was noted that the claimant wished to defer surgical treatment at that time.
The Medical Assessor noted that following the subject motor accident of 4 January 2019, the claimant had decompressive surgery to his neck and, 12 months later, had decompressive surgery to his lumbar spine.
The Medical Assessor made the following findings:
· lumbar spine – pre-existing L4/5 degenerate spinal stenosis was aggravated in the motor accident. The clinical records detail pre-existing radiculopathy attributable to the lumbar stenosis prior to the subject accident. Total impairment is 10% WPI. Three quarters was pre-existing. Therefore, 3% WPI related to the motor accident.
· Cervical spine – cervical laminoforaminotomy, pre-existing cervical stenosis and myelopathy was not caused by the motor accident and was a pre-existing condition.
· Left shoulder – the Nguyen principle is considered an impairment of shoulder motion relatable to injury of the cervical spine, with the impairment to be combined with the cervical spine impairment. Restriction in the left shoulder movement is likely attributable to the cervical spine. 4% WPI.
· Right shoulder – restricted range of motion is due to a primary pathology in the right shoulder (glenohumeral arthritis) evidenced by restricted passive movement in the shoulder. The Nguyen principle does not apply. Glenohumeral osteoarthritis was not caused by the motor accident.
The Medical Assessor concluded that the WPI caused by the motor accident was 7%.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant’s bundle contains numerous previous submissions[3] due to the complex history of medical disputes lodged at the Commission and its predecessor, the Dispute Resolution Service (DRS). The Panel has read these submissions however will focus on the original submissions dated 7 May 2024, which relate to Medical Assessor Kuru’s assessment, and the subsequent review submissions dated 4 October 2024.
[3] 21 October 2024, 3 August 2022, 29 November 2022 and 7 February 2024.
The claimant submits that there is no objective evidence of pre-existing impairment at the time of the subject motor accident. As such, no deduction should be made to the impairment now assessed.
The claimant asserts that the Medical Assessor was incorrect to find the right shoulder injury not causally related to the motor accident. The claimant says the suggestion that there was pre-existing pathology in the right shoulder (osteoarthritis), ignores the evidence that the restricted movement in the right shoulder did not pre-exist the motor accident. In other words, the right shoulder was asymptomatic before the motor accident. It is further submitted that there was no pre-existing medical history or in any of the radiological findings to indicate pre-existing osteoarthritis in the right shoulder joint.
In addition, it is submitted that it is incongruous that the right shoulder would be subject to such significant osteoarthritic change that did not affect the left shoulder. Yet, it is submitted that the Assessor found the left shoulder restrictions to be likely attributable to the cervical spine. This finding, it is asserted, is unexplained by the Medical Assessor.
In any event, the claimant says the Medical Assessor did not consider that any osteoarthritic change affecting range of motion before the accident was aggravated by the subject motor accident.
Similarly, in relation to the cervical spine, the claimant says the Medical Assessor gave no reasons as to why the motor accident did not aggravate the underlying cervical spine disease and what apportionment should be made. It is further asserted that the Medical Assessor misinterpreted the findings of Medical Assessor Faithful and the Review Panel in relation to the previous minor injury dispute. The claimant says, “in actual fact, Assessor Faithfull found that the accident caused a cervical spine injury in the form of a soft tissue injury aggravating previous cervical myelopathy. The review panel certificate confirmed those findings”.
The claimant lastly says the Medical Assessor was incorrect to limit his consideration of the “injury referred for assessment” to the cervical laminoforaminotomy. It is submitted the dispute related to an injury to the cervical spine, not the medical procedure of a cervical laminoforaminotomy and whether this was caused by the motor accident. This misconception by the Medical Assessor led him into error in dealing with the question of causation of cervical spine injury.
Insurer’s submissions
From the outset, the insurer notes that before the subject motor accident of 4 January 2019, the claimant was involved in a prior motor accident in 2015 for which he sustained injuries to his cervical spine, lower back and shoulders.
The insurer refers to the pre-accident radiology, clinical record entries, treating specialists and previous Commission certificates in support of its submission that the claimant’s current symptoms and limitations are due to degenerative changes as well as previous injuries as opposed to the subject motor accident.
It is further submitted that any injuries from the subject motor accident have resolved.
REVIEW OF THE EVIDENCE
General observations
On 6 November 2024, the Panel issued a direction to the parties requesting indexed and paginated bundles of the information they relied upon. The Panel advised that unless documents are uploaded to the Review file, the Panel would not be able to read and consider those documents. The parties responded with the claimant and insurer lodging their bundles comprising of pages 1-1,448 and 1-311 respectively.
The documentation before the Panel was voluminous. Only the material relevant to the determination of the permanent impairment dispute and the issues in dispute are summarised and referred to in the Panel re-examination report below.
Claim documents and treating reports
Application for personal injury benefits dated 15 January 2019 – completed by the claimant and outlined injuries to his bilateral shoulders, cervical spine (aggravation), thoracic spine and head. There was a note of “prior neck pain”.
Statement of claimant dated 5 August 2019 – notes previous motor vehicle accident on 8 December 2015 and neck and bilateral shoulder pain. Had MRI of cervical spine on 21 November 2016. Dr Damodaran suggested surgery which was declined as claimant was fit to perform normal work duties as carer at the time of subject motor accident on 4 January 2019. Another work incident on 2 July 2018 where claimant slipped and fell causing an aggravation of neck pain. There was also some lower back pain. Subject accident on 4 January 2019 where claimant was rear-ended at speed (60-70kmph) causing further neck pain as well as pain in lower back. Neck was stiffer with pain in shoulders going down right arm. There was also pain going down legs. MRIs of both cervical and lumbar spines. Consulted Dr Damodaran who advised condition had deteriorated significantly and recommended more significant surgical intervention – a cervical laminectomy and fusion. Lumbar spine surgery was also likely. Claimant required time to consider (around six months). Motor accident and workers compensation claim forms lodged and accepted by the respective insurers.
Statement of claimant dated 7 February 2024 – claimant has not returned to work since motor accident of 4 January 2019. Condition continues to deteriorate. Has undergone decompression surgery to both cervical spine (on 6 February 2020) and lumbar spine (on 29 April 2021) performed by Dr Damodaran. Because of pain in neck, has pain and restricted movement in both shoulders.
Report of Dr Damodaran dated 1 October 2019 – originally saw claimant in December 2016 with bilateral lower limb numbness and intermittent paraesthesias. Unsteady gait a longstanding issue. Examination revealed increased right sided biceps, triceps and brachioradialis reflexes suggesting spinal cord pathology. Review in March 2018. Further worsening of gait and some upper limb subtle weakness and incoordination. Claimant able to work full-time as symptoms were mild and manageable. Claimant wanted to discuss surgery but will monitor symptoms for now. Fall at work noted in December 2018. Also second car accident on 4 January 2019. Following car accident, gait and mobility worsened. Worsening of bilateral lower limb numbness and intermittent radicular pain, particularly on the right side. Claimant no longer able to work full time. Now requires walking stick. Dr Damodaran diagnosed cervical myelopathy, cervical canal stenosis and lumbar canal stenosis. These were exacerbated by the subject motor accident and have brought forward the need for surgery.
Certificate of capacity/fitness – various from March 2020. Diagnosis of cervical spine injury, lumbar spine injury, thoracic spine injury, bilateral shoulder injury, depression. Pre-existing factors listed as “yes – cervical, shoulder and lumbar injury”.
Previous DRS and Commission medical assessment certificates
Medical Assessor Donald Faithful – assessment of minor Injury dated 10 December 2019 – found soft tissue injury to cervical spine which has aggravated a pre-existing lumbar spondylosis and cervical myelopathy. No accident-related injury to the bilateral shoulders. Any symptoms are as a result of degenerative change. Aching is related to the cervical spine. Claimant had full range of movement in both shoulders at time of examination. Cervical spine injury found to be a minor injury.
Panel – review of assessment of minor injury dated 5 May 2020 – Panel review of Medical Assessor Faithful’s assessment of minor injury. Panel did not re-examine the claimant. Panel accepted an accident-related soft tissue injury to the cervical spine. Panel noted pre-existing cervical spine condition and did not accept that a neurological condition had developed due to the subject motor accident. Panel accepted the Medical Assessor’s clinical findings of no evidence of radiculopathy. Panel confirmed the certificate of Medical Assessor Faithful.
Medical Assessor David McGrath – assessment of minor Injury dated 5 July 2022 – found an aggravation to pre-existing cervical and lumbar spinal pathology. Noted decompressive surgery to both regions with good results. The surgery to the lumbar spine was for spinal stenosis which pre-existed the subject motor accident. Symptoms may have become worse following the accident but the surgery was not a reasonable and necessary consequence of the accident. No evidence of lumbar spine radiculopathy and therefore the lumbar spine injury is a minor injury.
Panel – review of assessment of minor injury dated 7 September 2023 – Panel review of Medical Assessor McGrath’s assessment of minor injury. Panel agreed that the degenerative lumbar spine condition, namely lumbar spine spondylosis with spinal canal stenosis and radicular symptoms, was established before the 2019 subject motor accident. The Panel however found that the subject accident had accelerated the deterioration of the lumbar spine condition leading to permanent changes requiring operative treatment. The Panel concluded from the general practitioner (GP) notes that radiculopathy was present during 2018 but the 2019 subject accident made the symptoms more intense. Hence, the Panel concluded that the lumbar spine injury was not a threshold (minor) injury.
Medico-legal reports
Report of Dr James Bodel, orthopaedic surgeon, dated 27 September 2019 – investigations confirm severe cervical myelopathy and severe vertebral canal stenosis to the lumbosacral region. This is largely a longstanding constitutional ailment made worse by the motor accident. Claimant awaiting surgery therefore impairment evaluation not appropriate.
Report of Dr James Bodel, orthopaedic surgeon, 18 February 2022 – assessed WPI as cervical spine 22%, lumbar spine 11% and scarring 1% for the workers compensation claim under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition.
Report of Dr James Bodel, orthopaedic surgeon, 31 January 2023 – investigations showed significant pre-existing degenerative change in the neck and back but motor accident caused the aggravation, acceleration, exacerbation and deterioration to this, leading to the need for surgery in both the neck and back. Assessed WPI as cervical spine 15%, lumbar spine 10%, bilateral shoulders 10% for the motor accidents claim under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4th edition Guides). No deductions were made for any pre-existing impairment.
Report of Dr James Powell, orthopaedic surgeon, dated 23 May 2018 – impairment evaluation for December 2015 motor accident only. Cervical spine 5% WPI for asymmetrical loss of range of motion with 50% deducted due to pre-existing disease – WPI related to December 2015 motor accident is 3%. Neurological dysfunction both radicular and myelopathic relates to underlying disease process and the deterioration is principally a reflection of this disease process and not the effect of the motor accident. Cervical spine injury therefore not related to the December 2015 motor accident. Right shoulder not caused.
Report of Dr John Bosanquet, orthopaedic surgeon, dated 22 February 2024 and supplementary report dated 13 March 2024 – diagnosed aggravation of severe cervical spine and lumbar spine spondylosis. There was pre-existing cervical myelomalacia and nerve root involvement. Assessed WPI as cervical spine 15%, lumbar spine 10% with 100% deducted for pre-existing impairment. Therefore, 0% WPI related to the subject motor accident.
Radiology
A summary of relevant radiological reports is contained in the below Panel re-examination report.
PANEL RE-EXAMINATION REPORT
At the preliminary conference on 6 February 2025, the Panel determined that the claimant be re-examined. This occurred on 16 April 2025 and the report of Medical Assessor Gorman is as follows:
“PIC Examination
Medical Review Panel
Assessor David Gorman
Seen on 16 April 2025
PIC Rooms, 1 Oxford St, Darlinghurst.
Who attended the assessment?
Mr Bchai attended the assessment with Samya, his wife.
HISTORY
Pre-accident medical history and relevant personal details
Mr Bchai is 68 years old. He is right-handed.
He was born in Egypt and came to Australia in 1992.
He is married with 2 sons aged 32 and 35.
He is a non-smoker and does not drink alcohol.
He had worked in Home Care for 25 years. He has not worked since.
Past medical history included diabetes and hypertension. Medications included diaformin, Ozempic, Crestor, Jardiance, Flowmaxtra, Atacand and glicazide.
Mr Bchai previously had been involved in a motor vehicle accident on 8 December 2015 in which his head hit. A clinical note in the general practitioner’s records dated 12 January 2016, note is made of the motor vehicle accident and presentation with neck pain, headache, shoulder pain and low back pain. It was noted at the time there was decreased range of motion in the shoulders. Investigations on 25 February 2016 recorded cervical canal stenosis and shoulder bursitis for investigation.
He was referred to Dr Hassan, Neurologist who diagnosed Mr Bchai with spinal cord stenosis and myelopathy and recommending MRI under sedation. On 24 November 2016, the MRI report demonstrating multilevel degenerative disease, central and foraminal stenosis and spinal cord myelomalacia.
On 19 October 2017 Dr Hassan recommended surgery. It is noted that Mr Bchai wished to defer surgical treatment. Dr Hassan advised having surgery with Dr Damodaron.
Mr Bchai reported that before the accident the cervical spinal symptoms did not affect his work and that he could put up with the symptoms.
History of the motor accident
On the 4 January 2029 Mr Bchai was working in home care. He was going to his second client. Whilst he was waiting to do a U-turn, he was rear-ended. He was wearing a seat belt. The airbags did not deploy. He was thrown forwards and backwards in the car. He reported that he lost consciousness for around 30 seconds he estimated.
The other driver opened the door and helped him extricate from the vehicle. He was then able to drive onto a side street and drive home.
History of symptoms and treatment following the motor accident
He rang his GP and presented the following day with pain in his neck and pain extending into his shoulders. He could hardly sit up.
He had an MRI on 7 January 2019, 3 days after the accident.
Mr Bchai said his GP referred him back to the Neurosurgeon, Dr Damodaran around three months after the accident. By then developed increasing pain in his lower back and difficulty walking.
I note a clinical letter from Dr Damodaran, Neurosurgeon detailing clinical review on 14 March 2019. He stated – “He is well known to me from his previous visits for his cervical myelopathy. I have known him since 2017 and initially offered him surgical treatment”.
He recommended proceeding with a C3 to C7 cervical laminectomy and fusion.
Mr Bchai stated that before the accident that rest would resolve his symptoms. He said that the reason he agreed to surgery after the accident was that rest was no longer resolving his symptoms.
He went on to have a decompressive procedure on his neck on 8 February 2020 (one year after the accident). He noted improvement in the functioning of his hands. In particular, he noted improvement in his fine motor function and he was able to do up buttons.
On 29 April 2021, he had a decompression surgery on his lumbar spine. He said that Dr Damodaran wanted to wait at least one year after the neck surgery to do the lumbar surgery.
Both cervical and lumbar decompression surgery were covered by the Workers Compensation insurer.
Details of any relevant injuries or conditions sustained since the motor accident
Nil relevant.
Current symptoms
He said that he is now ‘OK’. He still has numbness in both hands, right worse than left.
His left leg feels different – it is ‘cold’.
He has difficulty elevating both shoulders – the right is worse than the left.
He has limited neck movement he reports – he is stiffer on turning to the right.
He gets low back pain if he sits for more than one hour.
He has a tremor in his left hand.
He still feels ‘weak’ all over.
He uses a stick in his right hand for short distances and a walking frame for longer distances.
He remains depressed he reported.
Current and proposed treatment
He sees a physiotherapist once per week.
He sees a Psychiatrist but not a Psychologist now.
He continues on Paroxetine 20mg daily, Propranolol 40mg bd, gabapentin 600mg bd and Naproxen 550mg bd in addition to his medications for hypertension and diabetes mentioned above.
CLINICAL EXAMINATION
General presentation
On examination he was a well looking man in no obvious distress. He walks with a stick in his right hand.
His height was 174cm and his weight 103.1kg.
He was somewhat unsteady walking heel-toe but could just do it.
There was an obvious varus deformity of the right knee – but he did not report pain in the knee.
Cervical spine
There was a long scar over the cervical spine posteriorly.
Flexion was to 2/3 normal and extension to ½ normal. Rotation was 1/3 normal to the right and 2/3 normal to the left.
Power in all groups in the right upper limb was 4/5 and in the left upper limb 4.5/5.
Reflexes were brisk on the right and normal on the left.
Both hands feel ‘numb’ he reported. There was loss of sensation particularly over the thumb and index fingers on the right.
Lumbar spine
There was a scar over the lumbar spine posteriorly.
He could not flex forward as this caused dizziness.
Extension was reduced to ½ normal. Lateral flexion to the right was 1/3 normal and to the left ½ normal.
Lower limb power was 4/5 on the right and 4.5/5 on the left in all groups.
Sensation was decreased over the L4 and L5 dermatomes on the right side.
Lower limb reflexes were brisk, more so on the right than on the left.
Shoulders
The active ranges of motion of the shoulders are outlined below.
There was no tenderness or wasting around the shoulders.
SHOULDER MOVEMENTS
RIGHT (Degrees)
LEFT (Degrees)
Flexion
70
110
Extension
30
40
Adduction
40
50
Abduction
70
110
Internal rotation (at side)
90
90
External rotation (at side)
80
80
Passive movement of the shoulders was pain free and they could be moved through a full range equally on the right and left side.
Comments on consistency
Mr Bchai was cooperative and consistent throughout the assessment.
Summary of relevant radiological and medical imaging and other investigations
The following radiological and medical imaging reports were reviewed at the assessment:
Pre-accident:
MRI cervical spine dated 16 November 2017 showing C4/5, C5/6 central canal stenosis with a space available for the cord, documented at 3.6mm; multiple level foraminal stenoses reported.
Post accident:
• 27 March 2019, X-ray cervical spine. generalised degenerative disease particularly C3 to C6.
• 7 January 2019, MRI cervical spine. Generalised degenerative changes C3/4, C5/6 stenosis, C3/4 myelomalacia.
• 30 August 2019, MRI cervical spine. C3 to C7 stenosis. C3/4 myelomalacia.
• 11 February 2021, MRI cervical spine. Post decompression reasonable central canal patency.
• 11 February 2021, MRI lumbar spine. L4/5 spinal stenosis.”
RELEVANT PROVISIONS
Assessment of permanent impairment
The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Guidelines (Guidelines).[4]
[4] See section 7.21 of the MAI Act.
Version 9.3 of the Guidelines applies to the Review. Part 6 deals with the assessment of permanent impairment.
Causation
Causation is dealt with at clauses 6.5-6.7 of the Guidelines. An abridged form of the requirements is contained in clause 6.7 which states:
“6.7 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.”
Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and 5E.
Pre-existing or subsequent impairment
The Panel noted the provisions for apportionment of current WPI due to pre-existing injuries or conditions are contained in cls 6.31 and 6.32 of the Guidelines:
“6.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): ‘For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.’”
DETERMINATIONS
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[5]
[5] Section 7.26(6) of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[6]
[6] Section 7.26(7) of the MAI Act.
The Panel refers to the above re-examination report of Medical Assessor Gorman and adopts his findings in their entirety. The Panel reconvened on 24 April 2025 and discussed the re-examination report findings before collectively making the below determinations.
Diagnosis, causation and reasons
The Panel will look at each injury in turn:
Lumbar spine decompression – pre-existing L4/5 degenerate spinal stenosis was aggravated in the motor vehicle accident. The claimant had pain in his lumbar spine which developed over the three months after the subject accident.
Cervical spine – cervical laminoforaminotomy – the claimant had pre-existing cervical stenosis and myelopathy (myelomalacia). He however had a definite worsening of neck and upper extremity symptoms after the subject accident. While decompression surgery had been suggested prior to the accident, he had coped with his neck and upper limb symptoms. The neck movements in the accident in the presence of cervical stenosis caused aggravation of the myelomalacia symptoms which were ongoing and necessitated decompression surgery. The presence of cervical stenosis made it more likely that the flexion/extension in the accident would cause spinal injury. The Panel believes that the motor accident did cause the spinal injury exacerbating the symptoms and signs associated with the myelomalacia and that the effect of the accident was more than negligible.
Left shoulder – the Nguyen principle does not apply as the restriction in active left shoulder movement is related to upper limb weakness secondary to the cervical myelomalacia. The impairment is fully captured by diagnostic related estimate (DRE) III as discussed below. Passive movements were full and pain free. There was no direct injury to the shoulder.
Right shoulder – the Nguyen principle does not apply as the restriction in active right shoulder movement is related to upper limb weakness secondary to the cervical myelomalacia. The impairment is fully captured by DRE III as discussed below. Passive movements were full and pain free. There was no direct injury to the shoulder.
The following injuries WERE caused by the motor accident:
• lumbar spine decompression. The motor vehicle accident aggravated pre-existing L4/5 degenerative stenosis, ultimately requiring decompression. He had pain developing soon after the accident caused by the accident.
• Cervical spine – cervical laminoforaminotomy. The cervical spine degenerative disease, cervical stenosis and myelopathy were pre-existing conditions and were aggravated by the subject accident. His pain and upper limb symptoms were much worse after the accident.
The following injuries WERE NOT caused by the motor accident:
• right shoulder – Nguyen principle. Restricted range of motion in the left shoulder subject to the Nguyen principle.
• Left shoulder – Nguyen principle. Restricted range of motion in the left shoulder subject to the Nguyen principle.
Permanency of impairment
It is now more than five years since the accident. The claimant’s symptoms have remained stable for more than 12 months. No specific treatment is planned or possible. His impairment is permanent.
Permanent impairment
The Panel will look at each injury in turn:
Cervical spine – the claimant has had decompression surgery but is left with definite radiculopathy on the right side. He has reflex changes, decreased sensation and reduced motor power. He has a DRE III impairment which equates to a 15% WPI based on Table 73 on page 110 of the AMA 4th Edition Guides.
Prior to the accident he had cervical spinal pain and upper limb symptoms. These were non-verifiable radicular symptoms. There was not radiculopathy meeting the definition in the Guidelines. He definitely had a DRE II impairment and therefore 5% needs to be deducted for the pre-existing impairment.
Lumbar spine – there was an aggravation of lumbar spinal pain caused by the accident. The claimant continues to have some referred lower limb symptoms which are non-verifiable radicular symptoms. He also has dysmetria. The weakness, brisk reflexes and sensory loss is due to the cervical myelomalacia affecting the lower limb pyramidal tracts causing weakness and increased reflexes – it is not due to a lumbar radiculopathy which would have decreased reflexes.
For these reasons, the Panel disagrees with the previous Panel’s[7] finding that there was radiculopathy. At the time of the present Panel’s assessment, the claimant has a DRE II impairment giving him a WPI of 5% based on Table 72 on page 110 of the AMA 4th Edition Guides.
[7] Panel Certificate and Reasons dated 7 September 2023.
Before the motor accident, the claimant had degenerative change in his lumbar spine as seen on investigations but there was no diagnosable impairment.
The Panel noted the previous motor accident in December 2015 and the subsequent fall at work in July 2018. From the history and review of the clinical notes, the Panel understood the claimant to have sustained soft tissue injuries to his cervical spine, lower back and shoulders from the December 2015 accident. There was also a subsequent fall at work in July 2018 where the claimant injured his neck and lumbar spine.
The Panel notes from the insurer’s original submissions that the claimant attended Restwell Street Medical Centre on numerous occasions in 2017 and from July to October 2018 complaining of lumbar spine pain. The Panel considered the entries from the claimant’s GP (Dr Assad Malek) and the physiotherapist (Ms Rebecca Malek) and were of the view that while the claimant had pain and symptoms, the clinical findings are not sufficiently detailed enough to attribute a pre-accident impairment rating. The Panel noted that while there was worsening neck and lower back pain in July 2018, his GP Dr Malek recorded no change from before the 2015 accident and that the claimant was performing his normal work duties, with no restriction.[8]
[8] Clinical note entry by Dr Assad Malek dated 3 July 2018 from Restwell Street Medical Centre.
Therefore, and after consideration of the apportionment provisions (cls 6.31 and 6.32 of the Guidelines), there is no deduction for the claimant’s pre-existing lumbar spine disease.
Permanent Impairment Table
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
Cervical spine
Table 73 on page 110 of AMA 4th Edition
Yes
15%
5%
10%
Lumbar spine
Table 72 on page 110 of AMA 4th Edition
Yes
5%
0%
5%
* %WPI = percentage whole person impairment
Pre-existing/subsequent impairment
As discussed above, there was cervical DRE II prior to the accident, and this needed to be deducted.
In the lumbar spine, while there was degenerative disease and some pain there was not a diagnosable impairment.
Apportionment
There is apportionment for the cervical spine impairment. This is reflected in the above table.
Effects of treatment
No adjustment for effects of treatment is required.
CONCLUSION – PERMANENT IMPAIRMENT
The claimant’s WPI as a result of the motor accident is 15% which is greater than 10%. The Panel therefore revokes the certificate of Medical Assessor Robert Kuru dated 6 September 2024.
A new certificate is issued at the front of this statement of reasons.
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