Beveridge v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 358
•22 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Beveridge v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 358 |
CLAIMANT: | Glen Beveridge |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Les Barnsley |
MEDICAL ASSESSOR: | Clive Kenna |
DATE OF DECISION: | 22 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); permanent impairment dispute; claimant was driving a school bus when a car came from the right and hit the driver’s side at speed; injury to lumbar spine; pre-existing history of a workplace fall with symptoms persisting; subsequent incident of left leg weakness causing a fall and injuring right shoulder; assessed by Medical Assessor as 11% whole person impairment (WPI); Held – Review Panel noted pre-existing back symptoms had substantially resolved by the time of the motor accident and claimant had returned to work; motor accident aggravated claimant’s underlying lumbar spine degenerative disease; associated neurological symptoms in the left leg caused subsequent fall; consequential injury to right shoulder related to motor accident; Review Panel found impairment to lumbar spine 5% WPI and right shoulder 6% WPI; total WPI was 11%; MAC revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Alan Home dated 20 August 2024 and issues a new certificate as follows: The Review Panel certifies that: 1. The following injuries caused by the motor accident give rise to a permanent impairment of 11% and IS GREATER THAN 10%: · lumbar spine – L5/S1 exacerbation of disc lesion, and · right shoulder – rotator cuff tear with post operative pain and stiffness. 2. The following injuries referred for assessment have been assessed and determined to be not caused by the motor accident: · cervical spine – disc bulges included at C6/7, soft tissue injuries. |
STATEMENT OF REASONS
BACKGROUND
Glen Beveridge (the claimant) was involved in a motor accident on 11 April 2018. He was driving a school bus when a car came from his right side and hit the driver’s side of the bus. He says he sustained injuries to his lower back.
A claim for personal injury benefits was lodged with NRMA (the insurer), the third-party insurer of the vehicle the claimant 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 MAI Act.
On 20 August 2024, Medical Assessor Alan Home assessed the claimant’s injuries as having a WPI of 10% 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 Home’s assessment.
On 17 December 2024, a delegate of the President (Ms Stephanie Wigan) 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 Home was referred the following injuries for medical assessment:
· cervical spine- disc bulges including at C6/7, soft tissue injuries;
· lumbar spine- disc bulges including at C6/7, soft tissue injuries, and
· right shoulder- rotator cuff tear, soft tissue injuries.
The claimant confirmed a past history of a workplace fall in which he fell forward onto his knees, jarring his back in February 2018. He recalled low back pain for approximately one to two weeks after the fall. He underwent CT scans of the lumbar spine on 3 March 2018, which was some five weeks before the subject motor accident. He stated that his back pain eased by mid-March 2018. There was no leg pain following the workplace accident.
The claimant also recalled a subsequent accident on 1 April 2021. He was travelling to work to perform light duties as a COVID-19 Marshall. He stopped at a service station and as he alighted from his car, he experienced left leg weakness and fell onto his right side, landing over his right arm. He said that he experienced an immediate onset of pain at the right shoulder.
The claimant underwent a left L5/S1 microdiscectomy on 8 June 2021. He also underwent surgical repair of his right rotator cuff on 18 October 2022.
In terms of his current symptoms, the claimant gave a history of intermittent neck pain, felt at the midline. There was discomfort at the extremes of neck motion however no radicular symptoms in the upper extremities.
In the right shoulder, there was persisting activity-related pain with restricted motion. There was no pain at the left shoulder.
There was low back pain in the midline, average intensity 6 out of 10 with no pain radiating to the lower limbs. There was normal sensibility in the legs.
There is occasional pain radiating down the left leg towards the ankle. The claimant described intermittent paraesthesia along the left leg, associated with the leg pain. There was exacerbation of back pain and the onset of leg pain with prolonged walking.
Medical Assessor Home performed an examination and noted that the claimant was consistent in his presentation.
The Medical Assessor accepted that the subject “bus” accident caused an aggravation to underlying degenerative change in the lumbar spine. The claimant went on to require a left L5/S1 discectomy to manage left L5 radicular pain. The Medical Assessor found the presence of non-verifiable radicular complaints with no radiculopathy following the surgery. The assessment was DRE category II or 5% WPI.
The Medical Assessor also accepted that the claimant could not weight-bear properly through his left leg which was associated with his accident-related lumbar spine injury. This led to the consequential fall when alighting from his motor vehicle in April 2021 and resulted in a right shoulder injury. The diagnosis was tear of the right rotator cuff and was surgically repaired. The right shoulder was assessed using range of motion which resulted in a 12% upper extremity impairment. The Medical Assessor noted mild constitutional stiffness in the left shoulder, which was the contralateral “uninjured” joint. This equated to 4% upper extremity impairment. The Medical Assessor determined that there was a reasonable expectation that the injured joint (right shoulder) would have had similar findings to the uninjured joint (left shoulder) before the accident-related injury. The 4% was therefore subtracted from the 12% leaving 12% UEI for the right shoulder which converted to 5% WPI.
The claimant’s neck pain was considered to be not related to the motor accident because it arose within a month or two of the shoulder surgery. There was no history of neck pain in the post-accident period. The claimant was noted to be 60 years of age and his neck symptoms were considered related to underlying cervical spondylosis. There was also no neck pain at the time of the previous MAS assessment performed in October 2022, 4.5 years post-accident.
Medical Assessor Home therefore determined that the claimant’s accident-related permanent impairment was 10% WPI.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant’s review submissions concern the Medical Assessor’s determination with respect to the cervical spine and the right shoulder.
Cervical spine
The claimant says the Medical Assessor was incorrect to state that his neck pain complaints “…appear to have arisen within a month or two of his shoulder surgery. There is no history of neck pain in the post-accident period.”[2]
[2] Page 11 of Medical Assessment Certificate reasons.
The claimant refers to the following documentation:
· claim form dated 28 June 2018;
· general practitioner (GP) referral for CT scan of the cervical spine dated
· 1 July 2018;
· initial assessment of Hunter Rehabilitation and Health dated 19 July 2018, and
· statement of claimant dated 14 February 2024.
The claimant says the above documents are evidence of neck complaints and should have resulted in the Medical Assessor finding the cervical spine injury causally related to the motor accident and assessed at 5% WPI.
Right shoulder
The claimant says the Medical Assessor was incorrect to invoke the contralateral uninjured joint provisions[3] of the Guidelines based on the Medical Assessor’s finding that the left shoulder had mild constitutional stiffness. The claimant says he had no lack of mobility in the left shoulder before the motor accident and only came about because of his favouring the left upper limb following the accident-related injury to his right shoulder. In other words, it submitted that there is an overuse type injury to the left shoulder joint which is not a constitutional condition.
[3] Cl 6.51 of the Guidelines.
In terms of impairment assessment, the claimant says the Medical Assessor was incorrect to evaluate the left shoulder’s mobility after the subject accident, namely in October 2022[4] and again in the present assessment. It is submitted what needed to be done is for the Medical Assessor to evaluate the contralateral left shoulder joint’s mobility before the date of the motor accident (11 April 2018).
[4] Certificate of Determination of Medical Assessor Home for threshold injury dispute dated 10 October 2022.
It is further asserted the Medical Assessor should not have criticised Drs Hopcroft and Bosanquet’s failure to specify the range of motion in each plane in circumstances where both opined that the left shoulder was at normal mobility.
Insurer’s submissions
The insurer’s review reply submissions address the cervical spine and right shoulder.
Cervical spine
The insurer says the Medical Assessor explained his finding of causation based on three factors:
(a) the claimant’s age of 60 years with cervical spondylosis identified on imaging;
(b) no record of neck injury following the motor vehicle accident, and
(c)
no record of neck pain at the time of the previous medical assessment in
October 2022.
In reply to the claimant’s review submissions, the insurer repeats its submissions dated
18 March 2024 which are briefly summarised as follows:
(a)
the claimant made no reference to any cervical spine symptoms to his GP,
Dr Ahmed, in the three months post-accident, during which period 11 consultations had taken place;
(b) the first mention of neck pain in Dr Ahmed’s records was on 13 July 2018 and was characterised as osteoarthritic;
(c) Dr Bentivoglio took a history of an unrelated neck injury some months after the subject motor accident and neck pain was said to have settled three to four days later, and
(d) the claimant’s Certificates of Fitness make no mention of any neck injury.
The insurer submits that in light of the contemporaneous medical records, the Medical Assessor’s statement that there was no history of neck pain in the post-accident period is correct. In addition, the complaint of neck pain in June and July 2018 does not change the fact that there was no complaint of neck pain in the Medical Assessor’s previous assessment of the claimant in October 2022.
Lumbar spine
The insurer says the current state of the claimant’s lumbar spine represents the natural progression of the pre-existing degenerative changes which were present as evidenced by the pre-accident CT scan dated 2 March 2018 (~5 weeks before the motor accident). The insurer compares this scan with the post-accident MRI scan dated 18 April 2018 and says all the pathology in the post-accident MRI scan was already present in the pre-accident CT scan.
The insurer tabulates the findings of the radiology as follows:
Lumbar Spine Level
Pre-Accident Scan
2 March 2018
Post-Accident Scan
18 April 2018
L4/5
Disc bulges
Mild to moderate canal narrowing
Left foraminal narrowing
Likely impingement of nerve roots.
Disc degeneration
Compression of nerve root.
L5/S1
Disc bulges
Left foraminal narrowing
Likely impingement of nerve roots.
Disc degeneration
Moderate Compression of nerve root.
Pre-accident lumbar symptoms and signs
The insurer submits that the very fact that the claimant underwent a CT of his lumbar spine in March 2018 demonstrates that he was suffering from symptoms that required investigation.
According to Dr Ahmed’s notes dated 28 February 2018, the claimant experienced “acute back pain” from 22 February 2018, some six weeks before the 11 April 2018 motor accident. The relevant part of the entry note reads:
“Fell at work, acute back pain [sic] for 1 week, happened on 22/2/18. Informed supervisor.
Musculo-Skeletal
Back: L5/S1 area, tender, not hot, not swollen, not red, no laceration, no effusion, restriction present.
Reason for contact:
Back pain – acute
WorkCover Management
Rest, I discussed with the patient on the nature of the back pain. I advised this likely be muscular pain. Treatment is largely symptomatic and suggest pain relief and active rest, can do walking, but avoid bending, squatting and lifting anything heavy. And can use Voltaren gel for warm massage.”
Post-accident lumbar symptoms and signs
The insurer submits that Dr Ahmed’s clinical entry dated 13 April 2018 that the L5 area was “not hot, not swollen, not red, no laceration, no effusion, restriction present, no neurological deficit”, is identical to the pre-accident record on 28 February 2018.
It is further submitted that neurosurgeons Dr Christie and Dr Ferch who saw the claimant in May 2018 and April 2019 respectively, appeared to be unaware of the claimant’s pre-accident back symptoms and investigations.
Following the fall on 1 April 2021, the claimant ultimately underwent a left L5/S1 microdiscectomy on 8 June 2021 performed by neurosurgeon Dr Spittaler.
The insurer therefore submits that the April 2018 motor accident only caused a temporary aggravation of the claimant’s pre-existing lumbar spine impairment.
Right shoulder
The insurer says there is no mention in the claimant’s contemporaneous clinical records of any right shoulder injury in April 2021 or to any complaints of shoulder pain. The history
Dr Kumar took in March 2022 that the claimant injured his right shoulder in April 2021 was taken almost a full year after the motor accident and is not contemporaneous.
The insurer submits that the right shoulder rotator cuff tear was caused by a fall in April 2021, three years after the April 2018 motor accident, and is therefore not caused by the motor accident.
The insurer highlights the pre-existing, symptomatic lumbar spine degeneration and the claimant suffering two falls in the 12 months before the April 2018 motor accident. There was a workplace fall in [date] and a fall over an uneven footpath on [early 2018 date] which triggered the March 2018 CT scan.
In relation to the claimant’s review submissions, the insurer says the claimant is incorrect in submitting that contralateral uninjured joint provisions in cl 6.51 of the Guidelines require the uninjured join (i.e. the left shoulder) to be assessed at the time of the assessment. Rather, the provision requires consideration at the time of the motor accident – see pre-existing impairment provisions in cl 6.31-6.33 of the Guidelines.
In addition, the insurer submits that there is no evidence of any left shoulder complaints before or after the motor accident.
In any event, it is submitted that no injury to the left shoulder was referred to the Commission for medical assessment. The Medical Assessor was not required to consider any injury to the left shoulder.
REVIEW OF THE EVIDENCE
General observations
On 7 January 2025, 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’s bundle comprising of pages 1-2,856 and the insurer’s 1-256.
The documentation before the Panel is voluminous, namely due to the bundle from the claimant. Much of the material is repetitive or have no relevance to the injuries in dispute. The Panel has nevertheless read the material, however it is pointed out that critical information contained within reams of clinical notes (such as previous surgery to the left shoulder discussed below) can be missed by the Panel, particularly where there is no corresponding reference to the material in the submissions.
As such, the Panel will not summarise every document lodged by the parties. The Panel will only specifically refer to material that is relevant to the resolution of the permanent impairment dispute and the issues in dispute.
Certificate of Capacity/Fitness
Certificate of Capacity/Fitness dated 7 June 2018 – Annexed to claim form. Dr Salina Ahmed refers to the motor accident and states that the claimant returned to work with lower back pain referred to thigh. MRI showed L5/S1 disc compression with S1 nerve root entrapment. Also noted past work-related back injury which has “improved already”.
Clinical notes
Cessnock Medical – Dr Yang Wang entry dated 1 December 2011 – L shoulder injury. L shoulder was grabbed and felt severe pain in the L shoulder. Had L shoulder injury several years ago with Dr Posel. Examination revealed tender in the shoulder tip with ROM restricted in all directions. Actions: Diagnostic imaging requested: L shoulder X-ray.[5]
[5] Page 179 of claimant’s review bundle [A16].
Back in Motion – Sinead Sperrin entry dated 25 July 2023 – Left shoulder starting to get a bit sore – not sure why, previous left shoulder repair.[6]
[6] Page 2463 of claimant’s review bundle [A19].
Other relevant clinical note entries are discussed in the Panel re-examination report and determination reasons.
Claimant’s statements
Statement of claimant dated 16 June 2022
– Claimant had minor back pain due to injuries “Quite some years before April 2018” but got better. While at work on 22 February 2018, claimant tripped on a footpath and fell. Saw GP but did not have time off work. Did not have pain going down any leg. Back got better and went back to normal things in life, including full bus driving duties within a week or two. On the night following the subject motor accident on 11 April 2018, claimant had back pain going into his left leg and toes. Referral to Dr Spittaler who performed surgery in mid-2021. Several months before the surgery, claimant had weakness in left leg. He fell a couple of times at home before 1 April 2021 because left leg “just gave way”. On 1 April 2001, he got out of his car and noticed increased back pain and his left leg “just gave way”. He fell and hit the ground with his right shoulder. Shoulder got worse and claimant was sent for a scan by Dr Ahmed in February 2022. Referred to
Dr Kumar who recommended surgery to right shoulder.
Statement of claimant dated 26 September 2022 – Used a “cobra stick” to help get out of bed. Before April 2021, claimant was using this with no problems. The fall on 1 April 2021 “stirred things up” in respect of his back and right shoulder. Pain in right shoulder was getting worse and worse in the few weeks after 1 April 2021, particularly when getting out of bed. By early 2022, shoulder condition was getting worse and needed something more than just physiotherapy.
Statement of claimant dated 14 February 2024 – Providing more information about his neck injury. Noticed pain in neck at time of motor accident of 11 April 2018. Pain was quite minor compared to his back and he “didn’t really think too much of it…” He had a lot of treatment over the years to his back. His neck never came good after the accident. In mid 2018, recalls talking to his GP, physiotherapist and Hunter Rehab about problems with his neck. Had physiotherapy which continued and then had the fall in April 2021 [sic]. Dr Kumar performed surgery to repair the rotator cuff tear. Claimant still had problems with his neck including numbness and tingling going down his right arm into the fourth and fifth fingers. Believes his neck was injured in the motor accident initially but also aggravated by the fall in April 2021, that fall itself being caused by the injuries to the back in the motor accident.
Medico-legal reports
Dr Peter Bentivoglio, neurosurgeon, report dated 16 January 2020 – Back injury is causally related to the subject motor accident in April 2018. Diagnosis is back pain secondary to L4/5 and L5/S1 degenerative disc disease with left-sided sciatica secondary to left L5 and S1 nerve root impingement.
Dr Alan Hopcroft, general surgeon, report dated 3 November 2020 – Motor accident caused aggravation of a significant lumbosacral spondylitic problem at L4/5 and L5/S1 which was diagnosed before the motor accident. Sciatica has increased significantly with numbness in both legs, radicular symptoms worse on left side. Assessed at DRE Lumbar Category II (5% WPI). Half due to pre-existent changes (2.5%) which rounds to a 3% WPI.
Dr Alan Hopcroft, general surgeon, report dated 21 April 2022
– Review examination. Noted no pre-existing problems with function of right shoulder or lumbar spine. Motor accident caused significant left-sided L4/5 intervertebral disc protrusion which has come to surgical intervention with L5/S1 microdiscectomy performed by Dr Peter Spittaler on
8 June 2021. Post operatively, gradual return to left leg sciatic symptoms with paraesthesia and numbness radiating to foot. Assessed at DRE Lumbar Category III (10% WPI). Right shoulder consequential injury assessed at 7% WPI.
Dr Alan Hopcroft, general surgeon, report dated 12 July 2023 – Review examination. Noted intervention right shoulder arthroscopic rotator cuff repair on 18 October 2022. Injuries to cervical spine, lumbar spine and right shoulder have direct relationship to subject motor accident. Assessed at DRE Cervical Category II (5% WPI), DRE Lumbar Category III (10% WPI with one-tenth deducted for pre-existing changes), right shoulder 5% WPI. No pre-existing problems noted with function of cervical spine.
Dr John Bosanquet, orthopaedic surgeon, report dated 7 March 2023 – Noted a past history of low back pain and left leg giving way before the motor accident. Had a lumbar CT scan a month before the motor accident. Diagnosed aggravation of pre-existing degenerative changes lumbar spine particularly L4/5 and L5/S1. Also injury to right shoulder following fall which is not accident-related – claimant’s left leg was giving way before the motor accident. Assessed at DRE Lumbar Category II (10% WPI) with the total amount deducted as imaging after the motor accident showed no significant change from previous imaging which revealed pre-existing changes.
Dr John Bosanquet, orthopaedic surgeon, supplementary report dated 27 July 2023 –
Medical records documented low back pain 8 February 2010, disc degeneration on
9 May 2018 and lumbar spondylosis on 8 January 2021. Noted fall on 1 April 2021. Previous opinion on causation and WPI unchanged.
Dr Robin Diebold, orthopaedic surgeon, report dated 3 November 2023
– Noted no history of previous injury or symptoms in the neck, back or right shoulder. Diagnosed an aggravation of osteoarthritis of the cervical spine and lumbar spine caused by the motor accident. Also diagnosed an aggravation of rotator cuff tear of the right shoulder caused by the fall in April 2022, which was a consequential injury to the motor accident injuries of
11 April 2018. Assessment WPI percentage of injuries similar to Dr Hopcroft.
Other Commission medical assessments
Medical Assessment Certificate and Reasons for Medical Assessor Alan Home dated 10 October 2022 – Assessment of Minor Injury. Found there to be underlying discopathy in the lumbar spine which had been rendered more symptomatic as a result of the subject motor accident. Accepted the subsequent fall on 1 April 2021 was due to episodic weakness in the left leg due to the accident-related lumbar spine injury. Concluded injuries to the lumbar spine – minor injury; Right shoulder rotator cuff tear – non-minor injury.
Photograph of bus – damage to right corner, headlight area and body, driver’s side.
Radiology
MRI Lumbar spine dated 18 April 2018 – Disc degenerative changes L4 to S1 with compression of left L5 nerve root at L4/5 and moderate compression of left S1 Nerve root at L5/S1.
MRI Lumbar spine dated 4 January 2021 – Mild multilevel spondylosis. The foraminal stenoses have worsened a little since the study of 2018. There is no new focal disc herniation.
CT cervical spine dated 12 July 2018 – mild foraminal narrowing at C6/C7 due to right foraminal disc herniation and mild uncovertebral osteophytosis.
X-ray left shoulder dated 4 September 2024 – Mild to moderate osteoarthritis at the glenohumeral joint with mild reduction in the joint space and small spurring along the inferior glenoid.
Ultrasound left shoulder dated 4 September 2024 – No rotator cuff tear. Mild supraspinatus tendinosis with features of overlying SASD bursitis and impingement.
PANEL RE-EXAMINATION REPORT
At the preliminary conference on 24 February 2025, the Panel determined that the claimant be re-examined by Medical Assessors Barnsley and Kenna. Unfortunately, Medical Assessor Kenna later became unavailable and the Panel decided the re-examination could proceed with a single Medical Assessor.
The re-examination report of Medical Assessor Barnsley is below:
Background
Mr Beveridge (the claimant) attended the PIC rooms on 14 May 2025. The re-examination was performed by Medical Assessor Les Barnsley. A chaperone was present throughout the entire assessment.
It was confirmed with the claimant that they understood the reason for the reassessment. The structure and function of the Review Panel was explained.
The nontherapeutic nature of the reassessment was explained. The type of questions to be asked and the nature of the examination required was also disclosed.
Pre-accident history
The claimant had undergone surgery to the left shoulder many years ago. This followed a wrenching injury on a bus steering wheel when he was trying to avoid a collision. He was unsure of the nature of the operation. He did think it involved “grinding back cartilage”. He stated he had a good outcome from the surgery and had no pain or decreased range of movement noted in the shoulder.
On specific questioning he denied prior problems with neck back or right shoulder pain before the index motor vehicle accident.
In early 2018 he had tripped on an uneven footpath. He said he landed on his knees and had some midline low back painful. He claimed that this only lasted for a few days and he was able to return to work. He doesn't think he had any time off work. He did not have any leg symptoms at that time.
The claimant's attention was directed to a CT scan that had been ordered by his local doctor in association with this back pain. He explained that it had been to double check for any problems but that his pain had promptly settled.
History of the motor accident
The motor vehicle accident in question took place on the 11 April 2018. He was working as a bus driver. He was wearing a seat belt and was driving slowly up a hill through an intersection when a car drove from his right and struck the bus on the front driver’s side corner immediately under his driver’s seat.
He felt shocked and cannot recall his exact body movements.
The accident scene was attended by police ambulance and fire brigade. He was evaluated at the scene.
Symptoms and treatment following the motor accident
Within two hours, when he had returned to the bus depot, he became aware of increasing severe low back pain on the right lower back. He was seen by his local doctor the next day. He was prescribed ibuprofen and paracetamol. He was put off work.
He cannot recall when he first developed pins and needles in the left leg. However these did become apparent.
Approximately 2 to 3 months after the accident he developed some neck pain. This was located over the right lower neck. He did not have any pins and needles or numbness in the arms either then or at any subsequent point.
On account of the pain in his back and symptoms into his left leg he saw Dr John Christie, neurosurgeon. Doctor Christie's report of 30 May 2018 was reviewed. This confirmed that the claimant was suffering from low back pain and left leg pain as well as pain at the base of the neck. He also noted that there had been an improvement in the leg pain following a corticosteroid injection.
The claimant later started some physiotherapy as his leg pain again became problematic. He said that it would feel as if it would give way. He sought a second neurosurgical opinion from doctor Richard Ferch, who again recommended ongoing conservative treatment.
He was also reviewed by a pain management specialist, Dr Russo, who performed a series of diagnostic and therapeutic injections directed at his facet joints and cluneal nerve with little benefit.
He was eventually reviewed by Dr Spitaler, a neurosurgeon. He noted increasing leg pain and MRI evidence of a moderate sized left L5S1 disc prolapse. The claimant underwent a left L5/ S1 microdiscectomy on the 8 June 2021 by Dr Spitaler.
The claimant indicated that the surgery had not been successful. He suffered from persisting low back pain and ongoing leg symptoms after some initial improvement.
On 1 April 2021, the claimant was alighting from a car when he felt that his left leg gave way and he fell onto his right arm. He developed some right shoulder pain.
Following his spinal surgery he continued to have shoulder pain and was eventually referred to Dr Jai Kumar, orthopaedic surgeon who organised an MRI scan of the right shoulder that demonstrated a full thickness rotator cuff tear. This was repaired on the 18 October 2022 after conservative therapy had failed.
The claimant noted that his neck pain flared up following the surgery.
Since then the right shoulder pain has improved but he remains troubled by pain and loss of movement in the right shoulder.
He describes constant persistent low back pain that is made worse by prolonged sitting, standing or walking.
He experiences symptoms from the left lateral hip down the leg but he hasn't noticed any persisting weakness. He gets some intermittent pins and needles under the sole of the left foot.
He has neck pain over the right lower neck that radiates into the trapezius. He does not have any neurological symptoms in the arms such as numbness pins and needles or tingling.
He has had no further injuries but underwent triple vessel coronary artery bypass grafting in August 2023. He is not troubled by any ongoing symptoms such as shortness of breath ankle swelling or chest pain.
He is currently receiving physiotherapy twice a fortnight for his musculoskeletal symptoms.
Clinical examination findings
On examination he was 172 centimetres tall and weighed 107 kilograms.
In the cervical spine there was no guarding or spasm. Flexion was 75% of expected and extension 50%. Right and left rotation were both limited to 50% of expected and right and left lateral flexion were limited to 25% of expected.
Neurological examination of the upper limbs revealed normal power in both arms. His upper limb reflexes, specifically biceps, triceps, and supinator jerks were all present. Sensation was intact across all dermatomes in both arms.
The circumference of the upper arms measured 10 centimetres above the lateral epicondyle was 34 centimetres on both sides. The circumference of the forearms measured 10 centimetres below the lateral epicondyle was 31 centimetres on both sides.
On examination of the lumbar spine there was no guarding and no spasm. There was a midline scar from his previous surgery over the lower lumbar spine. Flexion at the lumbar spine was 25% of expected and extension 50%. Lateral flexion was 50% of normal on both sides. Rotation at the lumbar spine was limited to 50% symmetrically.
Straight leg raising was limited to 40° on the right and 30° on the left due to low back pain. Sciatic stretch tests were negative on both the left and right sides.
Power in the lower limbs was normal. Specifically, there was no weakness of plantar flexion or dorsiflexion of the ankles. Neither knee jerk could be elicited. Both ankle jerks were present. Sensation was normal across all dermatomes in the lower limb.
The circumference of the thighs was measured 10 centimetres above the superior pole of the patella. The right thigh had a circumference of 49.5 centimetres and the left thigh 49 centimetres. This is not a significant difference. The circumference of the calves measured 10 centimetres below the inferior pole of the patella and was 41 centimetres on both sides.
On examination of the shoulder girdle there was no apparent wasting. The following ranges of movement were assessed with the goniometer and were consistent on repeated measures.
Flexion
Extension
Abduction
Adduction
External Rotation
Internal Rotation
Right
110
50
90
20
80
70
Left
160
60
160
50
90
70
RELEVANT LEGISLATION
Causation
The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines and apply to both permanent impairment and threshold injury disputes.[7]
[7] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 per Wright J at [35].
Clauses 6.6 and 6.7 state:
“6.6 Causation means that a physical, chemical or biological 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 the 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.
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 ss 5D and 5E.
Assessment of permanent impairment
The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[8]
[8] See s 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.
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.[9]
[9] 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.[10]
[10] Section 7.26(7) of the MAI Act.
The Panel refers to the above re-examination report of Medical Assessor Barnsley and adopts the findings in their entirety. The Panel reconvened on 19 May 2025 and discussed the re-examination report findings before collectively making the below determinations.
Causation
The claimant had complaints of neck pain that started two to three months following the motor vehicle accident. Although the Panel considered that the accident could have caused an injury to the neck, the prolonged symptom free period would be inconsistent with an acute injury such as a sprain, strain, bruising, soft tissue injury or disc or facet joint injury. The Panel therefore considered that the current symptoms of cervical spine pain were not caused by the motor vehicle accident.
The claimant has persisting complaints of low back pain and left leg symptoms. It was noted that the claimant had some low back pain in the few weeks before the motor vehicle accident in question. However, it would appear that this had substantially resolved by the time of the motor vehicle accident. This is particularly suggested by the contemporaneous notes of the claimant’s local medical officer which indicated that he was keen to go back to work.
By contemporaneous notes, the Panel is referring to the consultation with Dr Ahmed on
28 February 2018 where the back pain was noted and the claimant was advised to “come back if getting worse”. The following consultation, on 5 March 2018, indicates that the claimant was “happy to go back to his usual working duties” and a subsequent “final WC-given” in the consultation of 3 April 2018.
Moreover, there is no clinical record that permits an impairment rating to be allocated to the claimant’s low back before the accident in question.
The Panel considered that the motor vehicle accident on the 11 April 2018 caused an aggravation of the claimant’s underlying lumbar spine degenerative disease. This was associated with neurological symptoms in the left lower leg. The Panel adjudged that on the balance of probabilities the giving way of the left leg was caused by this spinal impairment.
The Panel further notes that although he has some neurological symptoms in the lower limb, these do not meet the necessary criteria for radiculopathy, specifically he does not manifest two or more of the following clinical features:
· loss or asymmetry of reflexes;
· positive sciatic nerve root tension signs;
· muscle atrophy and/or decreased limb circumference;
· muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
· reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
There is therefore an uninterrupted sequence of events between the motor vehicle accident in 2018 and fall in 2021 that resulted in the tear of the rotator cuff in the right shoulder.
The Panel went on to consider the insurer’s submissions regarding the alleged delay in the reporting of the right shoulder injury. As detailed in the claimant’s history to the Panel, the claimant says on 1 April 2021, he was alighting from a car when his left leg gave way and he fell onto his right arm. The fall and the mechanism of the fall (leg giving way) was noted by
Dr Spittaler a few weeks later, in a report dated 22 April 2021.
In the history provided to Medical Assessor Home, the claimant said “he attended his general practitioner who put him off work for a day”. The Panel noted that there was indeed an attendance with Dr Ahmed on the afternoon of 1 April 2021 in the clinical notes. The clinical notes do not specifically mention the fall or an injury to the right arm or shoulder. However, the Panel noted that the detail in the notes repeat the same wording from consultation to consultation and may not have captured the claimant’s complaints at the time.
The physiotherapy notes however, capture the details of the fall noting that the claimant’s immediate concern was his legs with mention of right shoulder pain in the appointment on
13 May 2021 which came on “about last week”.
While the Panel acknowledges the insurer’s submission, on balance, the Panel accepted that the claimant did have a fall and that the fall could have resulted in an injury to his right shoulder as reported by the claimant to the Panel and to Medical Assessor Home. And further, that the claimant did see his GP and Dr Spittaler following the fall, with right shoulder pain detailed in the physiotherapy notes in May 2021.
The resulting right shoulder impairment is therefore caused by the motor vehicle accident.
Assessment of the degree of permanent impairment
The WPI arising from the lumbar spine is 5% on the basis of DRE category II. Table 6.7 of the Guidelines. He has had spinal surgery without residual radiculopathy. This attracts a 5% WPI.
The right shoulder is assessed on the basis of loss of movement. It was noted that one of the issues under dispute was whether the left shoulder should be used as a baseline. The re-examination confirmed that there has been prior left shoulder surgery. It would then not be expected to have the same range of motion as an uninjured right shoulder, so is not used as a baseline in this assessment. In other words, there is not a “reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury” (s 6.51 of the Guidelines). The assessment of the right shoulder therefore stands alone.
The following table details the calculation of upper extremity impairment from the observed shoulder movements.
| AMA Figure | AROM (degrees) | AROM (degrees) | |||
| Shoulder Movements | RIGHT | UEI (%) | LEFT | UEI (%) | |
| Flexion | 38 | 110 | 5 | 160 | 1 |
| Extension | 38 | 50 | 0 | 60 | 0 |
| Adduction | 41 | 20 | 1 | 50 | 0 |
| Abduction | 41 | 90 | 4 | 160 | 1 |
| Internal rotation | 44 | 80 | 0 | 90 | 0 |
| External Rotation | 44 | 70 | 0 | 70 | 0 |
| Total | 10 | Total | 2 | ||
The upper extremity impairment from the right shoulder is therefore 10%. This represents a 6% WPI (Table 3, AMA 4 Guides).
The combined WPI is therefore 11%.
CONCLUSION
The claimant’s WPI as a result of the motor accident is 11% and is greater than 10%. The Panel’s clinical findings are similar to those of Medical Assessor Home however disagreed with the latter’s use of the contralateral joint provisions. The Panel therefore revokes the certificate of Medical Assessor Alan Home dated 20 August 2024.
A new certificate is issued at the front of this statement of reasons.
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