Cho v Allianz Australia Insurance Ltd
[2025] NSWPICMP 480
•2 July 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Cho v Allianz Australia Insurance Ltd [2025] NSWPICMP 480 |
CLAIMANT: | Yoo Jung Cho |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Bianca Montgomery-Hribar |
MEDICAL ASSESSOR: | Dr Margaret Gibson |
MEDICAL ASSESSOR: | Dr Alan Home |
DATE OF DECISION: | 2 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; review of Medical Assessment Certificate (MAC) under section 7.26; whether degree of permanent impairment that has resulted from physical injuries caused by accident is greater than 10%; Medical Assessor (MA) certified that physical injuries gave rise to a permanent impairment of 9% which was not greater than 10%; claimant rear ended by truck; soft tissue injuries alleged to cervical spine, lumbar spine, right shoulder and left shoulder; issue of causation; Held – Review Panel satisfied claimant’s physical injuries were caused by the accident; degree of permanent impairment resulting from claimant’s physical injuries caused by the accident is 8%, which is not greater than 10%; MA included specific percentage in certificate, therefore MAC revoked. |
DETERMINATIONS MADE: | 1. The Review Panel: (a) revokes the certificate of Medical Assessor Mohammed Assem dated (B) certifies that the claimant’s degree of permanent impairment resulting from the injuries caused by the motor accident on 3 June 2021 is 8%, which is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
On 3 June 2021, Yoo Jung Cho (claimant) was driving on James Ruse Drive in Oatlands when her vehicle was rear ended by a truck (accident).
The claimant made claims for statutory benefits and damages under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer).
A dispute has arisen between the claimant and the insurer as to whether the claimant’s physical injuries give rise to a degree of permanent impairment which is greater than 10% for the purposes of the MAI Act. This dispute has been referred to the Personal Injury Commission (Commission) for assessment.
On 22 January 2025, Medical Assessor Mohammed Assem issued a certificate certifying that the claimant’s injuries caused by the motor accident, being cervical spine – soft tissue injury, lumbar spine – soft tissue injury, right shoulder – soft tissue injury and left shoulder – soft tissue injury, give rise to a permanent impairment of 9% for the purposes of the MAI Act.
The claimant lodged an application with the Commission seeking review of Medical Assessor Assem’s decision. On 19 March 2025, a delegate of the President of the Commission was satisfied there was reasonable cause to suspect the medical assessment is incorrect in a material respect and referred the application to a review panel.
This review panel (Panel) has been constituted to conduct a review of Medical Assessor Assem’s certificate dated 22 January 2025 (Review).
LEGISLATIVE FRAMEWORK
The claimant’s claim and corresponding entitlements are governed by the MAI Act.
Relevantly, the claimant’s entitlement to damages for non-economic loss is governed by Division 4.3. Sections 4.11 and 4.12 provide:
“4.11 No damages for non-economic loss unless permanent impairment greater than impairment threshold
No damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
4.12 Assessment of permanent impairment required if dispute over impairment threshold
(1) If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a medical assessor under Division 7.5.
Note—
The assessment of the medical assessor is conclusive in proceedings before a court or the Commission—see section 7.23. Section 7.20 authorises a court, the Commission or party to a dispute, to refer the dispute about the degree of permanent impairment to the Commission for assessment by a medical assessor.
(2) This section does not prevent—
(a) the degree of impairment from being re-assessed under Division 7.5, or
(b) a claim from being settled at any time.
Division 1.2 of the MAI Act regards interpretation and relevantly provides, in s 1.7:
“1.7 Determination of threshold degree of permanent impairment of injured person who suffers both physical and psychological/psychiatric injuries
(1) This section applies for the purposes of a determination under this Act of whether the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident is greater than 10% (the impairment threshold).
(2) If an injured person receives both a physical injury and a psychological or psychiatric injury arising out of the same motor accident—
(a) the degree of permanent impairment that results from the physical injury is to be assessed separately from the degree of permanent impairment that results from the psychological or psychiatric injury (and accordingly those separate degrees of injury are not to be added together for the purposes of the impairment threshold), and
(b) the injured person is taken to have a degree of permanent impairment greater than the impairment threshold if either the degree of impairment caused by physical injuries or the degree of impairment caused by psychological or psychiatric injuries is greater than 10%.
Note—
If there is more than one physical injury those injuries will still be assessed together as one injury, but separately from any psychological or psychiatric injury. Similarly, if there is more than one psychological or psychiatric injury those psychological or psychiatric injuries will be assessed together as one injury, but separately from any physical injury.”
Permanent impairment
Section 7.21 of the MAI Act provides for the assessment of degree of permanent impairment for the purposes of the MAI Act. It states:
“7.21 Assessment of degree of permanent impairment
(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2) Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
Accordingly, while the claimant is alleged to also have psychological injuries resulting from accident, these injuries will not be considered by the Panel in determining the claimant’s degree of permanent impairment regarding her physical injuries.
The Motor Accident Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. Version 9.3 of the Guidelines is effective from 6 December 2024 and replaced version 9.2, except for claims arising from motor accidents before 1 April 2023.[1] For such accidents, such as the current accident, certain clauses do not apply, and specific clauses from version 9 of the Guidelines continue to apply.
[1] The current version of the Guidelines, v9.3, applies to policies that come into effect immediately after midnight 14 January 2025. For policies that come into effect from 15 January 2024 to 14 January 2025, Part 1 of the Motor Accident Guidelines v9.2 continues to apply: see clause 1.2.
Part 6 of the Guidelines is based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides). However, cl 6.2 of the Guidelines note that Part 6 has some very significant departures from the AMA4 Guides and that Part 6 is definitive regarding the matters it addresses. Where it is silent on an issue, the AMA4 Guides should be followed.
Clause 6.8 notes that it is critically important to clearly define the term impairment and distinguish it from the disability that may result. Clause 6.9 provides that impairment is defined as an alteration to a person's health status. It is a deviation from normality in a body part or organ system and its functioning. Hence, impairment is a medical issue and is assessed by medical means.
The evaluation should only consider the impairment as it is at the time of the assessment: cl 6.21 of the Guidelines.
Due to the nature of injuries sustained by the claimant, the “Upper extremity” and “Spine” paragraphs of the Guidelines, as well as cl 6.45 regarding “Combining values” are relevant to this assessment.
Causation of injury
Causation is addressed in Part 6 of the Guidelines. Clauses 6.5 to 6.7 set out how causation of injury is to be assessed:
“…
6.6 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.
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.”
The provisions of the Civil Liability Act 2002 (NSW) (CL Act) apply in determining the issues of negligence and causation.[2] It is therefore necessary for the Panel to consider whether the accident caused or contributed to the injuries. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.[3]
[2] Sections 5D and 5E CL Act.
[3] Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50].
Review procedure
Part 7 of the MAI Act regards dispute resolution. Division 7.5 regards medical assessment disputes, such as the current matter.
Section 7.26(5A) of the MAI Act provides that the review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The review of the medical assessment is not limited to a review of only that aspect that is alleged to be incorrect and is to be by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. The function of the Medical Assessor is to form his or her own opinion on the medical question in dispute by reflecting on the panel members’ professional judgment and medical expertise; it is not to choose between competing opinions, nor to assess the correctness of such opinions.[4]
[4] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2012] HCA 43 at [47]; Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 and Insurance Australia Ltd v Marsh [2022] NSWCA 31.
Part 5 of the Personal Injury Commission Act 2020 (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 Medical Assessor: s 41(2) PIC Act. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5. A review panel determines how it conducts and determines the proceedings.
PROCEDURAL MATTERS
On 26 March 2025, the Panel made directions for provision of a bundle of documents and written submissions from each of the parties for the purposes of the Review.
On 19 May 2025, the Panel met to discuss the proceedings and determined that a medical examination of the claimant was required. The claimant was advised of the arrangements. The Panel also made directions for the production of several documents from the claimant, which it considered to be potentially relevant to the Review.
On 23 May 2025, a supplementary bundle of documents was produced by the claimant in response to the Panel’s direction.
On 30 June 2025, the Panel convened for a second time to discuss the medical examination undertaken by Medical Assessor Home and to make its determination.
ASSESSMENT UNDER REVIEW
On 21 January 2025, Medical Assessor Mohammed Assem examined the claimant and issued a certificate dated 22 January 2025. Medical Assessor Assem certified that the claimant’s injuries caused by the accident, being cervical spine – soft tissue injury, lumbar spine – soft tissue injury, right shoulder – soft tissue injury and left shoulder – soft tissue injury give rise to a permanent impairment of 9%, which is not greater than 10% for the purposes of the MAI Act.
The Medical Assessor noted the claimant’s current symptoms and that, while they have not markedly worsened, they have shown minimal improvement over the nearly four years since the accident.
The Medical Assessor undertook a clinical examination of the claimant. His physical observations were noted, as well as comments on the claimant’s physical limitations which were inconsistent with the Medical Assessor’s observations during casual interactions and, in his opinion, disproportionate to the underlying pathology.
In respect of her cervical spine, the Medical Assessor noted that, although her cervical movements were inconsistent, there was some muscle guarding present. He found that she therefore satisfied the diagnostic criteria for a DRE Cervicothoracic Category II or 5% WPI (AMA4, 3/104). Despite the presence of pre-existing degenerative changes, there is no evidence of a preexisting symptomatic impairment.
In respect of her lumbar spine, the Medical Assessor found there was no muscle guarding or spasm, asymmetry of motion, spinal dysmetria or radicular complaints. He opined that her condition is consistent with a DRE Lumbosacral Category I or 0% WPI as per AMA4 Guides, Table 72, p 110.
In respect of her shoulders, the Medical Assessor noted her observed restrictions in her shoulder motion were inconsistent with the findings of other medical examiners and appeared disproportionate to the underlying pathology, as outlined in the Guidelines,[5] cl 6.41, p. 90. He noted that, while there is no direct evidence of significant injury to the shoulders, the possibility of secondary restrictions in shoulder motion due to pain referred from the cervical spine cannot be excluded. Her shoulder impairments were therefore assessed by analogy, as described in the Guidelines, paragraph 6.24, p. 88. The analogous condition would be mild crepitations of the right acromioclavicular (AC) joint, which corresponds to a 10% joint impairment (AMA4 Guides, Table 19, p. 59) multiplied by 15% WPI (AMA4 Guides, Table 18, p. 58) to derive a 1.5% WPI, rounded to 2% WPI. A similar restriction in left shoulder motion would be expected, resulting in an additional 2% WPI.
[5] It is noted that the Medical Assessor referred to version 9.1 of the Motor Accident Guidelines. The referenced paragraphs are in the same form as version 9.3.
The Medical Assessor determined that the injuries of cervical spine – soft tissue injury with secondary restriction in shoulder motion and lumbar spine – soft tissue injury were caused by the accident.
Medical Assessor Assem determined that the degree of permanent impairment caused by the accident was 9%, being not greater than 10%.
SUBMISSIONS
Claimant’s submissions
The claimant relies on written submissions dated 17 April 2025. She submits that her permanent impairment arising from her injuries resulting from the accident is greater than 10%.
It is submitted that the claimant had full work capacity before the subject accident and that the accident caused injury to neck – radiculopathy, injury to both shoulders – radiculopathy, injury to back – radiculopathy, and post-traumatic stress disorder and major depressive disorder. She is submitted to now suffer from a list of “continuing and permanent disabilities”.
The submissions do not refer to any specific medical records, radiological reports, or clinical notes in support, save for the general reference referred to in paragraph 38 below.
The claimant’s submissions also state “We submit that the Claimant has suffered from a not-a-threshold injury to each of the below bodily locations listed caused by the subject accident, according to the notes of the PIC Assessors, treating GP, Physiotherapist, Psychologist, Radiological Scan reports and Specialists”. It is noted by the Panel that whether the claimant has suffered a threshold injury for the purposes of the MAI Act is not an issue before it. The claimant’s submissions also note that the insurer has conceded that the claimant’s injuries are non-threshold.
The claimant’s written submissions dated 13 February 2025 in respect of the application for review of Medical Assessor Assem’s assessment have also been considered.
Insurer’s submissions
The insurer relies on written submissions dated 5 May 2025. The insurer’s submissions dated 10 March 2025 in response to the claimant’s application for review have also been considered.
The insurer submits that it relies on the opinion of A/Prof Courtenay who diagnosed cervical spondylosis inflamed by a relatively minor motor vehicle accident that should have settled after a few weeks with appropriate treatment. The insurer submits that A/Prof Courtenay noted there was no evidence to explain symptoms to the left shoulder as a separate entity other than possibly some referred symptoms, although that did not correlate with the neurological examination which was normal. Further, the insurer submits that A/Prof Courtenay found there was no accident-related pathology or problems associated with the right shoulder or lumbar spine.
In respect of A/Professor Courtenay’s assessment of DRE category II impairment of the cervical spine, with a 50% reduction for pre-existing impairment (3%), the insurer submits this assessment of impairment is inconsistent with the Guidelines which requires pre-existing impairment to be assessed separately. The insurer submits that, had that assessment been conducted, the pre-existing impairment to the cervical spine would eliminate any accident-related impairment.
The insurer submits that the claimant’s permanent impairment should be assessed at 0%, if any impairment is found attributable to the accident.
The insurer notes that emergency services did not attend the scene of the accident and that photographs of the damage to the rear of the claimant’s vehicle show indentation but not significant damage.
The insurer refers to the claimant’s attendance on Dr Lam of Alliance Medical Healthcare Centre. The insurer notes that this practice is located approximately 25 to 30km (approximately 40-minute drive one way) from the claimant’s residence.
The insurer notes that, pre-accident, the claimant attended Our Medical Home Marsden Park for general medical conditions and did not attend the practice following the accident until 2 September 2021, at which time she reported red, painful swelling in the right axillary region but did not reference the accident or any injuries.
The insurer refers to the claimant’s job offers in 2021.
It is noted that the claimant’s physiotherapy treatment ceased in January 2022 and resumed in November 2023. At her attendance on 10 November 2023 there was a VAS pain rating of 3-4/10 and no major pain symptoms other than following prolonged lying and sitting. It was noted that the claimant’s left shoulder was in more pain than her right when performing exercise and the claimant was in a “bad condition” due to a COVID-19 infection.
The insurer notes that the claimant’s treatment continued throughout 2024 and submits that the clinical records are replicated each attendance with nominal reference to the claimant’s capacity.
The insurer refers to the report of Dr Potter dated 23 July 2024, which opined no psychiatric diagnosis directly related to the accident.
The insurer submits, in relation to the claimant’s “alleged physical injuries”, the following:
(a) Cervical spine:
(i)the insurer relies on the opinion of A/Prof Courtenay who ascribed DRE Category II impairment to the cervical spine. The insurer submits that the significant underlying cervical spondylosis warrants DRE Category II impairment and therefore, pursuant to the Guidelines, any permanent impairment related to the accident is extinguished;
(i)underlying degenerative changes are supported in the MRI cervical spine dated 27 July 2021 which reveals “cervical spine degenerative changes”, and
(i)Dr Herald’s report is silent on the radiological evidence which reflects degenerative change in the cervical spine and accordingly fails to opine or make any relevant deductions.
(b) Lumbar spine:
(i)the insurer relies on the report of A/Prof Courtenay who opined there was no reason for any trauma to the claimant’s lumbar spine given the nature of the vehicle and the type of accident, and that some underlying spondylosis of the lumbar spine may have been inflamed at the time of the accident, and
(i)the insurer submits the opinion of A/Prof Courtenay is consistent with the contemporaneous clinical evidence and the hospital records from Blacktown Hospital.
(c) Bilateral shoulders:
(i)the insurer relies upon the opinion of A/Prof Brett Courtenay who found no evidence to explain symptoms in the left shoulder as a separate entity other than possibly referred symptoms, which did not correlate with the neurological examination.
The insurer refers to the certificate of Medical Assessor Leaver dated 29 November 2024, noting that the claimant’s presentation was consistent with chronic whiplash associated disorder Grade 2 with mild soft tissue injuries to the cervical and lumbar spine. There were no signs of neurological compromise and mild persisting musculoskeletal signs as a consequence of the soft tissue injury. There were no clinical signs of discrete injury to either shoulder. Regional shoulder pain was consistent with chronic whiplash, which had a characteristically defuse presentation.
The insurer’s submissions regarding Medical Assessor Assem’s certificate have been considered. The insurer submits that Medical Assessor Assem clearly provides adequate reasoning as to how he reached his conclusions with respect to shoulder impairment. The insurer also submits that it is clear the claimant had an opportunity to respond to inconsistencies identified by the Medical Assessor and that he appropriately applied the test of consistency as set out in the Guidelines.
REVIEW OF THE EVIDENCE
The claimant and insurer have each provided a bundle of documents consisting of the evidence and submissions they rely upon for the purposes of the Review. The claimant has also provided a supplementary bundle in response to the Panel’s Direction.
Both bundles of documents contain documents relevant to both the claimant’s physical injuries as well as her psychological injuries.
In conducting this medical review, the Panel has sought to follow and implement the words of Justice Basten in Rahman v Insurance Australia Ltd (t/as NRMA Insurance) [2022] NSWSC 1079, where his Honour noted, at [63], that the Court of Appeal has remarked on the volume of material routinely provided to medical assessors, and noted there is no general law principle requiring an assessor to refer to all the documentation to they have access.
Accordingly, and in endeavouring to carry out its statutory function and promote the objects of the legislation under which it operates and guiding principles, the Panel has not referenced or summarised all records relating to the claimant’s symptoms or injuries: see ss 3 and 42 of the PIC Act. If some of those medical records or reports are not referred to in the Panel’s review, it should not be assumed that the Panel was unaware of that medical material or that the Panel failed to take the material into account.
Application for personal injury benefits and damages form
The claimant’s application for personal injury benefits dated 21 June 2021 describes the accident as follows:
“On 3 June 2021 at approximately 9:30am, I was driving from Kellyvidge [sic] Ridge to Eastwood in vehicle with registration […] along James Ruse Drive in Oatlands. I had put the brakes on due to traffic conditiosn in front of me and the truck behind me failed to keep a safe distance and collided into the rear of my vehicle….”
Her injuries are reported to be “injury to neck; injury to both shoulders; injury to back; injury to chest; psychological injuries”.
In respect of whether she was suffering from any illness or injuries affecting the same or similar body part at the time of the accident, the claimant has ticked “No”.
The form notes that she received treatment at Bankstown Hospital on the day of the accident, but did not attend by ambulance.
Certificates of capacity / certificates of fitness
The claimant’s certificates of capacity / certificates of fitness have been considered. The bundles contain over 60 certificates, dated from 19 June 2021 to 13 March 2025, and all diagnose “cervical spine - ?radiculopathy (C6/7), bilateral shoulder pain, lumbar spine - ?radiculopathy (L5/S1), shock / psych trauma”. They provide that the claimant has no capacity for any work.
Clinical notes
Blacktown Hospital Discharge Report
The discharge summary of Blacktown Hospital Emergency Department dated 3 June 2021 has been considered. This notes the pain medication administered to the claimant. It also includes a “Discharge against medical advice (adult with capacity)” form signed by the claimant.
The claimant’s admission time is listed as 1.19pm, and her discharge time is listed as 2.44pm.
Her presenting information is noted as:
“OE walked in. Nil SOB. Complaining of some dizziness. Tender to c-spine on palpation. Complaining of bilateral shoulder pain. Nil other pain. Abdomen not tender. Triage Presenting Information: Presenting with bilateral shoulder pain and c-spine tenderness post car vs truck this morning at 0930hrs. Patients 4wd was at stand still and large truck travelling at 50km/hr. Hx nil”.
The notes of the Medical Officer at 1.54pm record:
“HPC; 0930am breaking at a slow-down in SUV when struck from behind by semi-truck; seatbelt in situ; airbags didn't deply [sic]; denies headstirke [sic]; has headache, dizzy and neck pain; denies N&V; d/o chest pain in pattern of seatbelt; denies blood thinners; denies other injuries; otherwise has been healthy”. The claimant was examined and it was noted “c-spine tender to palpation, rest of spine nontender; precordium tender to palpation in pattern of seatbelt, nil flail chest, lungs are clear; ASNT; nontender pelvis/knees/feet; warm and well perfused”.
The notes of the Registered Nurse at 2.41pm record:
“pt moving around with Cspine collar on; told pt risks with moving; pt wanting to DAMA to "pick up her kids"; told her it was unsafe to DAMA and asked if her husband could pick up her kids; pt said no and laughed; pt wanting to DAMA; went to go get DAMA form and upon return pt walking around department with Cspine collar on; told pt to go back to bedspace; DAMA form explained to pt; risks told; pt signed and left”.
Kang Nam Surgery
The notes of Kang Nam Surgery printed on 12 April 2024 have been considered. These consist of one entry from 2020 regarding a consultation in respect of the claimant’s weight.
Royale Eastwood Medical Centre
The clinical notes of Royale Eastwood Medical Centre printed 6 February 2024 have been considered.
The claimant became a patient of this practice in 2010. There are no entries involving injuries or symptoms to the bodily areas said to be impacted by the accident prior to the accident.
Post-accident, on 21 May 2022 and 2 June 2022, the claimant attended Dr Leah Park. There is no reference in the clinical notes to the claimant’s accident symptoms or the accident.
On 7 June 2022, 24 July 2023 and 7 August 2023 the claimant attended upon Dr June Lee. There is no reference in the clinical notes to the claimant’s accident symptoms or the accident.
Alliance Medical Healthcare Centre
The clinical notes of Alliance Medical Healthcare Centre printed on 14 April 2023, 28 July 2023, 28 July 2023 and 10 May 2024 have been considered.
On 19 June 2021, the claimant attended Dr Angela Lam. This was noted as a “CTP consult”. It records “Rear ended by a large semi-trailer whilst slowed in traffic. Developed immediate neck, shoulder pains, and low back pain”. The claimant is recorded to still have neck pain and low back pain which is worsening. The notes of the physical examination of the claimant have been considered.
On 1 July 2021, the claimant attended Dr Lam for a “CTP consult”. In respect of her current pain it is noted “pain has climbed – now rating about 6 – 7 out of 10; neck pain worse with rotation and flexion movements”.
On 6 July 2021, the claimant attended Dr Lam for a “CTP consult”. A referral was sent to the insurer for an imaging request.
On 13 July 2021, the claimant attended Dr Lam for a “CTP consult”. It was noted “shoulder pain worsening; Noted that pain is worse when taking off T shirts and worse also with driving”. On examination it was noted the claimant had pain with internal rotation in bilateral shoulders.
On 16 July 2021, the claimant attended Dr Lam for a “CTP consult”. It was noted that she has started physio and had an initial assessment. The claimant is using simple analgesia at home and is not eager for stronger medications.
The claimant attended a “CTP consult” with Dr Lam on the below dates, where the following was noted at the commencement of all records:
“Investigations: MRI C spine; broadbased posterior disc bulging and posterocentral annular tear at C4/5 indenting the thecal sac & extending into the foramina, abutting the exiting C5 nerve roots. Posterior disc bulging at C5/6 indenting the thecal sac, with the disk extending into the neural exit foramina bilaterally, abutting the exiting C6 nerve roots, left more than right; MRI L spine: Facet joint synovial thickening at L4/5 and L5/S1; USS/XR shoulders: bilateral bursal edema.
Treatments & consultations: Physiotherapy twice weekly; [from 21 October 2021, the following is included]: Dr Andrew Kam: dx'd left shoulder, left upper limb pain as due to disk bulges at C4/5, C5/6, and left buttock/low back pain probably due to left L5/S1 facet jt pathology -> had left C4/5, left C5/6 foraminal block, left L5/S1 facet jt injection; [from April 2022, the following is included:] Left C5/6 foraminal injection repeated April 2022.
Capacity: None for work.”
Relevantly, in respect of the claimant’s current symptoms, it is recorded:
(a) on 29 July 2021, the claimant’s MRI and ultrasound investigations were examined. It was noted “Had imaging -> correlated clinically; Pt's main Sx at present is paraesthesia in the L wrist -> which corresponds to C5/6 region; L spine showed only facet joint changes; Is having regular physiotherapy- and has had about 10 sessions or so thus far”;
(b) on 12 August 2021, it was recorded “Has had more physio since last review- but only short term relief; Noted that pain gets better after each session, but would recur after a few days; Upper body predominant- neck, bilat traps, shoulders all v stiff, and constantly sore/painful; Low back pain is particularly exacerbated by prolonged sitting”;
(c) on 17 August 2021, it was recorded “Was stopped by police for being outdoors! Physio has advised Pt to do short walks, exercise; Now reluctant to go out …”;
(d) on 26 August 2021, it was noted “Dr Kam consultation approved -> booked for 22 September; Is currently doing physio twice a week but has ongoing pain; But at least now is doing some outdoor recreation”
(e) on 21 August 2021, a medical certificate for Centrelink was prepared;
(f) on 9 September 2021, it was noted that an AHRR was approved for physio and the claimant was to see Dr Kam on 22 September;
(g) on 23 September 2021, it is recorded “- Saw Dr Kam yesterday -> Dr Kam confirmed that sx are radiculopathic in nature; Referred Pt to have C & L spine injections; Having physio weekly; Booked in for psychotherapy on 8 October”;
(h) on 7 October 2021, it was noted that Dr Kam’s letter and referral had been reviewed. It was noted that the claimant states her left sided upper body symptoms are worse than right, which correlates well with imaging and specialist findings. It was noted that the claimant had an employment offer but doesn’t feel ready for work and is unsure if she’s able to work given her pain;
(i) on 14 October 2021, it was noted that the claimant had been offered employment and had book an injection for October;
(j) on 21 October 2021, the consultation with Dr Kam was recoded. It was noted that the claimant felt her pain in the low back improved after the injection;
(k) on 26 October 2021, the recovery plan was reviewed and approved for Dr Kam;
(l) on 28 October 2021, it was noted “Has first of 2 neck injections booked for next week; Back pain improved after last injection so ended up over stretching!; Now has pain behind L knee; Worse with knee movements e.g. walking; But minimal pain if standing still; Exacerbates with ascent of steps of stairs”;
(m) on 11 November 2021, it was noted that her neck pain had dropped from an 8 out of 10 to a 5 out of 10;
(n) on 25 November 2021, it was noted the claimant had had all three injections and her pain had reduced following each injection;
(o) on 30 November 2021, documentation for Centrelink was requested. It was noted that the claimant had a job offer but does not feel ready to return to work;
(p) on 10 December 2021, it was noted that the claimant’s pain had improved post-injection but housework remains a struggle;
(q) on 23 December 2021, the claimant’s reporting of pain following the injections was noted. It is recorded that she remains quite impaired by pain;
(r) on 6 January 2022, it was noted that her pain was stagnant around 6-7 out of 10. She had not been able to attend physiotherapy over the holiday season;
(s) on 20 January 2022, it was recorded that she will be commencing her initial session of physio next week. She does not feel ready for work due to ongoing pain and weakness;
(t) on 3 February 2022, it was noted “Still has a lot of restriction- flexion extension of L spine still reduced, to only about 60% normal; L shoulder range also restricted- flexion to horizontal only, and abduction to just above horizontal”;
(u) on 17 February 2022, it was noted that the claimant has commenced EP. Her pain remains unchanged and had flared post-injection. It is recorded she has had difficultly sleeping, “partly due to anxiety, tension and pain also contributing”;
(v) on 3 March 2022, it was recorded “Saw Dr Kam again- noted that first injection was extremely effective, so from diagnostic perspective Pt is confirmed to have a left C5/6 radiculopathy; Advised another injection; But ultimately if injection doesn't control pain long term -> may need decompressive surgery”;
(w) on 17 March 2022, it was recorded that the repeat left C5/6 foraminal injection had been approved and was booked for April. In respect of the Allied Health import, it is noted “Some improvement in shoulder movements”;
(x) on 31 March 2022, it is recorded that the left C5/6 foraminal injection has been booked for April;
(y) on 14 April 2022, it is recorded that the claimant had the left C5/6 foraminal injection last week, “pain dropped to about 4 to 5 out of 10 (down from 7)”;
(z) on 28 April 2022, it was noted that the claimant’s pain remains quite steady post-injection and “progressing slightly with EP -> some improvements in ROM, but Pt states that although EP seems to improve strength, pain levels are about the same after Rx”;
(aa) on 12 May 2022, it was noted “Pain did improve post-injection but now improvement has plateaued out”;
(bb) on 26 May 2022, it was recorded that the claimant’s paraesthesia in her upper limbs and her neck pain has have recurred, her range of motion of her cervical spine has deteriorated. She had a break from EP but has resumed “Reports that Sx not related to flare post-EP, Sx worse overnight”;
(cc) on 9 May 2022, it is recorded that the clamant had been on meloxicam 15mg and paracetamol for two weeks, and reported some improvement in pain;
(dd) on 23 June 2022, it is recorded that the claimant was continuing with meloxicam and paracetamol, and her pain levels are down to 5 out of 10;
(ee) on 7 July 2022, it is recorded that the claimant is actively engaged with EP, with 4-5 sessions left. Her pain has remained steady, even with exercise;
(ff) on 21 July 2022, it was recorded that the claimant’s pain and stiffness had escalated with the recent cold, wet weather. She reported her pain at 7 out of 10 (6 before the wet weather). She is doing EP weekly;
(gg) on 4 August 2022, it is recorded that the claimant is doing weekly EP and has stopped meloxicam, which has resulted in more pain;
(hh) on 18 August 2022, it is noted the claimant is up to her third month of EP, and has persistent neck and low back pain;
(ii) on 1 September 2022, it is recorded that the claimant had a viral illness so has missed some EP sessions;
(jj) on 15 September 2022, it is recorded that that the claimant’s cough is limiting her capacity to exercise;
(kk) on 29 September 2022, it is recorded that the claimant has been unwell so she has not returned to EP. Her pain levels are persistent but have not flared;
(ll) on 13 October 2022, it is recorded that the claimant has recovered from her viral illness and will be resuming EP next week. Her work capacity was discussed, and the claimant notes she does not feel ready until further progress is made regarding her strength;
(mm) on 27 October 2022, it is recorded that the claimant has resumed EP and is attending weekly. She feels stronger with her exercise confidence improving;
(nn) on 10 November 2022, it is recorded “ROM has improved, and so has tolerance for repetitions but actual capacity for weights has not improved; Pt states that main barrier is prolonged maintenance of postures -> a lot of pain, stiffness, heaviness”;
(oo) on 24 November 2022, it is noted that the claimant is doing EP once a fortnight and self directed exercises in between, she feels her strength has improved but “has v little confidence for work”;
(pp) on 3 December 2022, it is recorded that she is attending EP fortnightly and improvements are small;
(qq) on 22 December 2022, the claimant is noted to be taking celecoxib regularly and believes there has been some improvement;
(rr) on 5 January 2023, it is recorded that she is continuing with regular celecoxib and attending EP, but feels progress is slow;
(ss) on 19 January 2023, it is recorded that the claimant is attending EP fortnightly due to childcare commitments and will return to weekly after school holidays;
(tt) on 2 February 2023 and 16 February 2023, the notes only record discussion regarding the claimant’s psychological condition;
(uu) on 2 March 2023, it is recorded that the clamant is doing EP and “unsure if she’s improved in terms of pain, but confidence in movement is better; pain fluctuates up and down”;
(vv) on 16 March 2023, it is noted she is attending weekly EP, and “Feels that strength and confidence has improved but pain levels about the same; Not sure if "tolerability" has improved either”;
(ww) on 30 March 2023, it is recorded “Is continuing with EP and feels that there has been some improvement; Strength improved, and confidence in movements also improved; But still has pain”;
(xx) on 13 April 2023, it is noted that the claimant missed some EP sessions over Easter. “Finds EP is helpful but can exacerbate pain”;
(yy) on 27 April 2023, the claimant reported that her pain continues to fluctuate and she did miss a couple of EP sessions. Remains off work;
(zz) on 11 May 2023 and 25 May 2023, the notes regard the claimant’s psychological treatment;
(aaa) on 8 June 2023, it is recorded that the claimant is attending fortnightly EP and reports her condition remains stable;
(bbb) on 22 June 2023, it is recorded that another 8 sessions of EP had been approved; “doesn’t feel ready for work”;
(ccc) on 20 July 2023, it is recorded that the claimant is continuing with EP and is “Is gaining some strategies but struggling to apply these in everyday use -> pain still affecting function and Pt tends to be avoidant when pain flares”;
(ddd) on 17 August 2023, it was noted she is continuing with the EP program and “feels ‘fitter’, but pain stayed the same!”;
(eee) on 31 August 2023, it was noted she remains “v v anxious and pain focused”. She was attending EP and states she is doing exercises but stops if there is pain. She is recorded to have difficulties to “breach pain barriers as pain would then lead to a ‘bad night’”;
(fff) on 14 September 2023, it was noted she is attending psychotherapy and EP on a fortnightly basis, feels more “fit” but pain has stayed stagnant, her sleep has been poor lately and she was prescribed temazepam which she uses “v infrequently (only if insomnia severe)”;
(ggg) on 28 September 2023, it is recorded she is attending treatment fortnightly and still has a lot of pain after doing housework;
(hhh) on 13 October 2023, the clinical notes appear to regard her psychological symptoms. It is recorded that she “was a bit unwell so lapsed in Rx; still has some approved sessions; Did see an IME but no advice given; States remains the same -> difficult to lift mood despite trying to get distracted with chores and activities”;
(iii) on 26 October 2023, the clinical notes appear to regard her psychological symptoms. It is recorded that her motivation and energy levels are worse than before. She was advised to resume graded exercise;
(jjj) on 9 November 2023, the clinical notes appear to regard her psychological symptoms;
(kkk) on 23 November 2023, the clinical notes appear to regard her psychological symptoms. She was encouraged to do graded activity, and to “start low go slow” rather than avoid “as this would risk deconditioning”;
(lll) on 7 December 2023, it is recorded “Finished EP but doesn't feel that pain has improved; But Pt is afflicted by a lot of fear avoidance and so has not been that active; Is trying to get back into general household duties but states that this actually flares up pain”;
(mmm) on 21 December 2023, the clinical notes appear to regard her psychological symptoms and pain;
(nnn) on 19 January 2024, the clinical notes appear to regard her psychological symptoms and pain;
(ooo) on 15 February 2024, the clinical notes appear to regard her psychological symptoms;
(ppp) on 14 March 2024, the clinical notes appear to regard her psychological symptoms, and
(qqq) on 24 April 2024, it is noted that the claimant continues to self-fund treatments, mostly of a passive nature, and has a lot of pain fear avoidance. It is recoded “does try to do some exercise but would stop due to pain”.
On 6 September 2021, the claimant attended Dr Lam for a “CTP case conference” with “NTD”, “Rehab – Kingsley” and a Korean interpreter also in attendance. It was noted that the claimant was struggling with domestic chores especially lifting and heavier work, and she was willing to trial psychotherapy.
On 11 November 2021, the claimant attended Dr Lam for a “CTP case conference” with “NTD”, “Rehab – Kingsley” and a Korean interpreter also in attendance. It was noted that the claimant was undertaking physiotherapy and the status of her injections was noted.
Our Medical Home Marsden Park
The clinical notes of Our Medical Home Marsden Park printed on 29 April 2024 have been considered. These record attendances for vaccinations in 2022.
Complete Allied Health Care
The Physiotherapy Initial Report dated 6 July 2021 has been considered.
The Physiotherapy Progress Report dated 1 November 2021 has been considered. This notes the claimant is attending weekly physiotherapy treatment. The assessment findings and functional capacity documented in the report have been considered.
The Exercise Physiology Progress Summary of Complete Allied Health Care dated 4 March 2022 has been considered. It was noted that the claimant had attended four sessions to date and that, while she had reported feeling an increase in symptoms recently due to rain, her shoulder flexion and abduction had demonstrated significant improvement.
The Exercise Physiology Progress Summary of Complete Allied Health Care dated 29 March 2022 has been considered. It was noted that the claimant had attended eight sessions to date and that she reports an overall improvement in symptoms. It was noted that her shoulder flexion and abduction had demonstrated significant improvements.
The Exercise Physiology Progress Summary of Complete Allied Health Care dated 14 April 2022 has been considered. It was noted that the claimant had attended nine sessions to date and that she reports an overall improvement in her Cx symptoms following a Cx cortisone injection. She has managed to improve her shoulder range as demonstrated in the assessment findings.
The Exercise Physiology Progress Summary of Complete Allied Health Care dated 3 May 2022 has been considered. It was noted that the claimant had attended 12 sessions to date and that she reported similar symptoms in her neck to before the injection but has noticed there are less radiculopathy symptoms and improved range. She is reported to continue to improve her shoulder range and symptoms.
The Exercise Physiology Progress Summary of Complete Allied Health Care dated 4 November 2022 has been considered. It was noted that the claimant had attended 30 sessions to date and had “demonstrated slightly improved Cx, Lx and Shoulder mobility, strength, demonstrating improved strength within sessions and reporting slightly improved overall tolerance to daily activities. She has also reported improved radiculopathy symptoms along demonstrations of improved range. She mostly complains of soreness post exercise sessions”.
The clinical notes of Complete Allied Health Care prepared by Loan Nguyen and Vivian Liu for the claimant’s sessions between 22 June 2021 and 25 January 2022, inclusive, have been considered.
The clinical notes of Complete Allied Health Care prepared by Christian Lee and James Yoo, for the claimant’s sessions between 14 February 2022 and 10 November 2023, inclusive, have been considered.
The email between Vivian Liu, Senior Physiotherapist, and the insurer dated 1 October 2021 has been considered.
Radiology reports
The report of the Cervical Spine MRI, Lumbar Spine MRI, Bilateral Shoulder X-ray and Ultrasound dated 27 July 2021 has been considered.
The report of the CT Guided L5/6 Facet Joint Cortisone Injection dated 19 October 2021 has been considered.
The report dated 20 October 2021 of the CT Cervical Spine Angiogram undertaken on 19 October 2021 has been considered.
The report of the CT Guided Left C4/5 Foraminal Nerve Block / Perineural CSI dated 2 November 2021 has been considered.
The report of the CT Guided Left C5/6 Foraminal Block dated 16 November 2021 has been considered.
The report of the CT Injection Cervical Spine, CT Guided Left C5/6 Foraminal Injection dated 5 April 2022 has been considered.
Medicolegal reports
Dr Jonathan Herald
The independent medico-legal report of Dr Jonathan Herald, orthopaedic specialist, dated 7 September 2023 has been considered. Dr Herald examined the claimant on 7 September 2023.
Dr Herald described the accident and noted the claimant’s car had “significant damage”. He notes the claimant’s treatment post-accident. It is noted that the claimant was in excellent health prior to the accident and had no significant medical problems.
Dr Herald undertook a physical examination of the claimant. He also reviewed the radiological investigations undertaken by the claimant in October and November 2021, and April 2022. Dr Herald opined that, if the claimant does not proceed with any surgical intervention, then her injuries can be considered stabilised.
Dr Herald opined 19% whole person impairment, being 5% whole person impairment in respect of her cervical spine with neck pain and intermittent radiculopathic symptoms to both shoulder blades, 5% whole person impairment in respect of her lumbar spine with back pain and radiculopathic symptoms to both lower limbs, left worse than right, and 10% whole person impairment in respect of her bilateral shoulder assessment.
Associate Professor Brett Courtenay
The independent medico-legal report of A/Prof Brett Courtenay, orthopaedic surgeon, dated 3 April 2024 has been considered. A/Prof Courtenay examined the claimant on 21 March 2024.
A/Prof Courtenay describes the accident and notes the claimant’s treatment post-accident, including at Blacktown Hospital. It was noted that the claimant said she initially began having problems with her neck but started to get problems with her low back about six days later. She then started getting more and more problems in both arms. A/Prof Courtenay noted the claimant’s treatment and employment history.
A/Prof Courtenay undertook an examination of the claimant. He also reviewed the radiological investigations undertaken by the claimant in July 2021. A/Prof Courtenay opined that the accident described “was very minor”, and could not correlate why she would have symptoms in her left shoulder or lumbar spine as a result of the accident.
He noted that the claimant had significant underlying cervical spondylosis, and that type of injury can cause a jarring of the cervical spine. However, in his opinion, that should have settled early on. A/Prof Courtenay further opined that there was a significant exaggeration of her symptoms which made her examination of her cervical spine not indicative of the real impairment she has in her neck. In respect of her lumbar spine, he considered there was no clinical evidence of restricted movement to correlate with the symptoms of which she is complaining.
A/Prof Courtenay diagnosed cervical spondylosis inflamed by relatively minor motor vehicle accident that should have settled after a matter of a few weeks with appropriate treatment. He considered there may have been some referred symptoms regarding her left shoulder, but opined that this does not correlate with the neurological examination which was normal.
A/Prof Courteney opined 3% whole person impairment, being 5% WPI in respect of her cervical spine with a 50% deduction due to significant pre-existing pathology. He opined that the left shoulder did not constitute additional pathology and any restriction is related to pain from the cervical spine. He did not make any assessment regarding her lumbar spine, right shoulder or left shoulder.
Dr Brian Potter
The report of Dr Brian Potter, psychiatrist, dated 18 June 2024 has been considered.
Dr Andrew Kam
The letter of Dr Andrew Kam, neurosurgeon, dated 22 September 2021 has been considered. Dr Kam opines that the accident has substantially contributed to the ongoing pain the claimant had been experiencing in her cervical and lumbar regions for the prior three months, and that the disc bulges seen at the C4/5 and C5/6 levels are not age related and are not degenerative in nature as she had no prior symptoms involving her neck. He opined that the narrowing of the exit foramen at the left C4/5 and C5/6 levels can contribute to the collection of symptoms she is experiencing involving her left shoulder and left upper extremity.
He recommended a left sided C4/5 and C5/6 foraminal block and a left sided L5/S1 facet joint injection to relieve her pain, noting he would reserve a surgical solution as the last option.
The letter of Dr Kam dated 28 September 2021 has been considered. Dr Kam noted that, due to COVID restrictions, he had examined the claimant via Telehealth rather than undertaking a full physical examination. He diagnosed that the claimant:
“…has is one of minor disc bulges involving the C4/5 and C5/6 levels which is not age related and not degenerative in nature but potentially related to the accident. This has resulted in some degree of narrowing of the exit foramen at the left C4/5 and C5/6 levels which can contribute to the symptoms involving her left shoulder and left upper extremity. With regards to her lumbar spine, she also has early signs of dehydration of the L5/S1 disc space which may be preexisting but can also contribute to the symptoms of pain that she describes”.
The letter of Dr Kam dated 1 March 2022 has been considered. This noted that he had a telehealth consultation with the claimant. Dr Kam noted that the claimant’s symptoms have fluctuated following three steroid injections and that, if the injections fail to give her a long term solution, she may require a decompressive operation.
Other post-accident documents
Centrelink records
The Services Australia Centrelink records requested on 23 August 2023 have been considered.
The Department of Human Services Centrelink Medical Certificates dated between 31 August 2021 and 26 April 2023, inclusive, diagnosing “cervical radiculopathy” and “PTSD” have been considered. These note the condition as “Temporary” and the prognosis as “3-12 months”.
Assessment of Treatment and Care – Reasonable and Necessary certificate
The Certificate of Medical Assessor Andrew Leaver dated 29 November 2024 regarding the assessment of treatment and care – reasonable and necessary under the MAI Act has been considered. Medical Assessor Leaver found the treatment and care referred for consideration, being the four sessions of physiotherapy for the cervical spine, four sessions of physiotherapy for the chest, four sessions of physiotherapy for the lumbar spine and four sessions of physiotherapy for the shoulders, all requested on 4 January 2022 by Complete Allied Health Care, was not reasonable and necessary in the circumstances.
Allied health recovery request
The allied health recovery requests dated 20 July 2021, 24 December 2021, 21 January 2022, 30 August 2023 have been considered. These regard the diagnosis of “1. Cervical spine musculo-ligamentous strains with possible discogenic/neurogenic pathologies; 2. Lumbar spine musculo-ligamentous strains with possible discogenic/neurogenic pathologies; 3. Left/Right shoulder impingement signs”.
The allied health recovery request dated 22 March 2023 has also been considered. This regards the claimant’s psychological injuries said to be caused by the accident.
Photographs
The Panel has viewed the photographs of the claimant’s vehicle and insured driver’s vehicle post-accident.
The Panel is cognisant of the need to exercise caution when viewing photographs, particularly in the absence of expert evidence: Taitoko v R [2020] NSWCCA 43.
MEDICAL EXAMINATION
Ms Cho attended Dr Home’s Pitt Street Sydney rooms on 23 June 2025 for the medical assessment.
A Korean language interpreter, Ms Isabel Thomas, NAATI number CPN4FD09U assisted.
Past Medical History
There was no prior history of neck, back or shoulder complaints. There was no other relevant medical or family history.
Details of subject accident
On 3 June 2021, she was the seat-belted driver of a Toyota Landcruiser on James Ruse Drive in Oatlands, slowing down behind slowing traffic when her vehicle was struck from behind by a semi-trailer truck and pushed forward. There was no secondary forward collision.
She confirms that her vehicle sustained denting and deformity of the rear bumper.
Following the accident, she was able to alight from the vehicle herself. She exchanged details with the driver to the best of her recollection. Police and ambulance did not attend. She telephoned her husband who collected her from the scene of the accident.
She recalls early symptoms of pain in her neck extending to both shoulders and in her lower back.
Treatment
Later that day, she was driven by her husband to Blacktown Hospital Emergency Department, where she was provided with analgesia. She left the Emergency Department against medical advice prior to undergoing imaging. This was because it was necessary for her to collect her children from school.
Thereafter, she self-managed her symptoms with medication before seeking medical attention from Dr Angela Lam on 19 June 2021, approximately two weeks post-accident.
She recalls that at that stage, she continued to experience neck, bilateral shoulder pain and lower back pain in additional to psychological symptoms.
She was referred for a period of physiotherapy, which she received from Mr Tim Kwan, with treatment primarily directed toward her complaints of neck and back pain. She was provided with spinal exercises.
In mid-2022, physiotherapy treatment ceased. She then commenced a period of supervised exercise under the guidance of an exercise physiologist.
She confirms that she attended Dr Kam, neurosurgeon, who arranged for her to undergo spinal injections.
In November 2021, she underwent injections into the left sided C4/5 and C5/6 joints. On
5 April 2022, she underwent a further left sided C5/6 injection.
She recalls that on each occasion, symptoms improved for a period of up to four weeks post-accident.
She confirms that she underwent a left lumbosacral facet joint injection in October 2021. She recalls three to four weeks of symptom improvement following the injection.
She continues to attend a counsellor for psychological symptoms.
She takes Loxalate, an antidepressant medication. She also reports the regular use of Voltaren anti-inflammatory medication at a dose of 25mg daily.
There has been no other medical treatment.
Current symptoms
Ms Cho states that she experiences constant neck pain, average intensity 5/10 with increased symptoms during cold weather or on some occasions in the morning after a poor sleep. The pain is predominantly left sided. There is pain extending to the left shoulder. She describes difficulty turning her neck to the left more so than the right side.
She reports activity-related pain in both shoulders associated with restricted motion. She describes difficulty lifting weight in excess of 3kg to 4kg on either side.
In the lower back, she describes pain associated with prolonged sitting, which is worse on the left side. There is radiation of pain down the left leg as far as the left ankle that occurs for several minutes once or twice weekly.
She describes intermittent paraesthesia in the entire left leg from the hip to all of the toes of the left foot.
There is sometimes localised pain at the lateral aspect of her left hip.
When asked directly, the claimant denies any symptoms at either the right or left knees.
Functional capacity and reported tolerances
She is right hand dominant.
She describes a sitting tolerance of 30 minutes, a similar tolerance for driving and a walking tolerance of 30 minutes. The latter is limited by back pain. She tends to avoid deep crouching due to back pain. She performs stairclimbing with normal cadence but avoids long flights of stairs.
Her sleep pattern is sometimes disrupted.
She denies difficulty with activities of self-care. She wears loose fitting clothes.
Social history
Ms Cho states that she arrived in Australia in 2009.
She is married with four children, now aged between 7 and 12. She lives with her husband and four children in a house in Kellyville Ridge. Prior to the subject accident, she was a stay-at-home mum.
She is a non-smoker.
At her home, she helps with light domestic chores such as cooking, loading the dishwasher and bench height cleaning, however, her husband has taken over the vacuuming, mopping and other heavy chores. Her husband performs the grocery shopping.
She has not resumed previous activities of gymnasium based exercise and Pilates.
Vocational history
She had previously completed qualifications toward work in childcare. She intended to complete the course and pursue a career in childcare thereafter.
Examination findings
Ms Cho is a 40-year-old woman, standing 164cm and weighing 63kg. She sat throughout the history.
Examination of the cervical spine reveals normal spinal curvature. There is no muscle spasm. Cervical flexion and extension are equally performed to 1/2 normal range, right and left rotation performed to 1/2 normal range, right lateral flexion 3/4 normal range, left lateral flexion 1/2 normal range with dysmetria. There is no muscle guarding.
The neurological examination of the upper extremities reveals normal upper limb power in all muscle groups. There is normal sensibility throughout the upper extremities. The deep tendon reflexes are symmetrically preserved. There is no muscle wasting. The circumference of the forearms are symmetrical at 25cm.
At the right shoulder, there is initial hesitancy of motion, with elevation to no more than 70°.
At this point I explained to the claimant that the range of motion that she was demonstrating was much less than that set out by the exercise physiologist or indeed, by the previous independent examiners.
With reinforcement, the claimant then demonstrated the following range of motion, measured by goniometer methods as follows:
| Shoulder Movements | Active ROM Measured RIGHT ° |
| Flexion | 170 |
| Extension | 50 |
| Adduction | 50 |
| Abduction | 170 |
| Internal Rotation | 90 |
| External Rotation | 90 |
At the left shoulder, active motion is measured by goniometer methods as follows:
| Shoulder Movements | Active ROM Measured LEFT ° |
| Flexion | 150 |
| Extension | 50 |
| Adduction | 50 |
| Abduction | 140 |
| Internal Rotation | 90 |
| External Rotation | 90 |
The claimant reported local pain at the left shoulder, limiting motion further.
I found that the motion was consistent when examined in a supine position and in an upright position. The motion was also reliable with repeated testing.
Examination of the lumbosacral spine reveals normal spinal curvature. There is no muscle spasm. Flexion performed to 3/4 normal range, extension 3/4 normal range, right rotation 2/3 normal range, left rotation 2/3 normal range, right lateral flexion 3/4 normal range and left lateral flexion was performed to 3/4 normal range. There is no muscle guarding. Straight leg raise is performed to 50° bilaterally. Lasegue’s sign is negative. There is a negative slump test.
The neurological examination of the lower extremities reveals normal lower limb power in all muscle groups. There is no muscle wasting. The deep tendon reflexes are symmetrically preserved. The calves are measured symmetrically at 37.5cm on each side.
Although the claimant was initially hesitant in demonstrating shoulder motion, with encouragement and explanation, she demonstrated the range of motion that is measured above.
After explanation of the importance of demonstrating maximum range of motion, the claimant was able to demonstrate a satisfactory and reliable range of active motion at both shoulders.
PANEL’S DETERMINATION
Causation
The claimant was involved in a motor vehicle accident in which her vehicle was struck from behind. While it can be accepted that the accident was relatively minor, it is the clinical judgment of the Medical Assessors on the Panel that even minor rear impacts can, in a vulnerable person, cause injuries.
The claimant was hit from behind by a relatively large vehicle. She immediately complained of symptoms and went to hospital that day. There is early documentation of neck, back and bilateral shoulder pain. The focus of early treatment was towards the neck and back complaints.
Ultrasound examination of both shoulders demonstrated mild subacromial bursal oedema, consistent with the clinical findings of mild restriction of shoulder elevation on each side.
On balance, the Panel is satisfied that the accident could have caused, and did cause, soft tissue injuries to the claimant’s neck and lower back. The resulting shoulder pain in part arose due to direct injury and in part from restrictions due to her neck condition.
The Panel notes that the accident does not need to be the sole cause, so long as it is a contributing cause. The Panel finds the claimant’s injuries as assessed were caused by the accident.
Impairment assessment
As noted above, impairment is determined using the methodology set out in the AMA4 Guides and Part 6 of the Guidelines. Clause 6.19 of the Guidelines provides:
“The AMA4 Guides (page 315) state that permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially (i.e. by more than 3% whole person impairment (WPI) in the next year with or without medical treatment.”
The claimant’s condition does satisfy the criteria for permanency.
Cervical spine
The clinical presentation is consistent with a DRE Cervicothoracic Category II impairment rating. There are complaints of neck pain. There is spinal dysmetria.
The clinical findings required for a diagnosis of radiculopathy in accordance with cl 6.138 of the Guidelines are not met. There were no clinical signs of radiculopathy.
A 5% Whole Person Impairment rating arises in accordance with the methodology set out in AMA 4 Guides, Chapter 3, Page 104.
Lumbosacral spine
The clinical presentation is consistent with a DRE Lumbosacral Category I impairment rating. There are complaints of intermittent low back pain. There is no muscle spasm. There is symmetrical spinal motion. There are no verifiable or non-verifiable radicular complaints. There is no muscle guarding.
A 0% Whole Person Impairment rating arises in accordance with the methodology set out in AMA 4 Guides, Chapter 3, Page 102.
Right shoulder
Impairment is determined using range of motion methods, using figures 38, 41 and 44 AMA 4 Guides, pages 43, 44 and 45 respectively, as set out in the Table below.
| Shoulder Movements | Active ROM Measured RIGHT ° | Upper Extremity Impairment AMA Guides (4th Ed) |
| Flexion | 170 | 1% (Fig 38, pg 43) |
| Extension | 50 | 0% (Fig 38, pg 43) |
| Adduction | 50 | 0% (Fig 41, pg 44) |
| Abduction | 170 | 0% (Fig 41, pg 44) |
| Internal Rotation | 90 | 0% (Fig 44, pg 45) |
| External Rotation | 90 | 0% (Fig 44, pg 45) |
| Total UE Impairment | 1% UEI |
Using Table 3, AMA4 Guides, page 20, a 1% upper extremity impairment rating converts to a whole person impairment rating of 1%.
Left shoulder
Impairment is determined using range of motion methods, using figures 38, 41 and 44 AMA 4 Guides, pages 43, 44 and 45 respectively, as set out in the Table below.
| Shoulder Movements | Active ROM Measured LEFT ° | Upper Extremity Impairment AMA Guides (4th Ed) |
| Flexion | 150 | 2% (Fig 38, pg 43) |
| Extension | 50 | 0% (Fig 38, pg 43) |
| Adduction | 50 | 0% (Fig 41, pg 44) |
| Abduction | 140 | 2% (Fig 41, pg 44) |
| Internal Rotation | 90 | 0% (Fig 44, pg 45) |
| External Rotation | 90 | 0% (Fig 44, pg 45) |
| Total UE Impairment | 4% UEI |
Using Table 3, AMA4 Guides, page 20, a 4% upper extremity impairment rating converts to a whole person impairment rating of 2%.
The Panel notes clause 6.50(d) of the Guidelines and the guidance in Allianz Australia Insurance Limited v Yangzom [2025] NSWCA 104. The Panel notes the range of shoulder motion demonstrated at the medical examination is similar to that documented by Dr Courtenay at his assessment on 21 March 2024. Medical Assessor Home was satisfied that his measurements were reliable and appropriate to be used as a valid parameter of impairment evaluation.
| Body Part or System | AMA Guides/ MAA Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1. | Cervical spine | AMA4, Chapter 3, Page 103 | YES | 5% | 0% | 5% |
| 2. | Lumbar spine | AMA4, Chapter 3, page 102 | YES | 0% | 0% | 0% |
| 3. | Right shoulder | AMA4, Figures 38, 41, 44, pages 43, 44, 45 | YES | 1% | 0% | 1% |
| 4. | Left shoulder | AMA4, Figures 38, 41, 44, pages 43, 44, 45 | YES | 2% | 0% | 2% |
| Total | 8% |
CONCLUSION
Ms Cho has the following injuries caused by the accident:
(a) cervical spine, DRE category II impairment, 5%
(b) lumbosacral spine, DRE category I impairment, 0%
(c) right shoulder, 1%
(d) left shoulder, 2%.
Injuries to different parts of the body are combined in accordance with the combined values chart on page 322 of the AMA4 Guides. Here, 5% combined with 2% and 1% equates to 8%.
While the Panel has come to the same conclusion as Medical Assessor Assem that the claimant has a permanent impairment of not greater than 10%, the Panel has arrived at a different percentage (8% and not 9%). As Medical Assessor Assem included the specific percentage in his certificate, it follows that his certificate must be revoked.
The Panel revokes the certificate of Medical Assessor Assem and issues a new certificate that the claimant’s degree of permanent impairment resulting from the physical injuries caused by the accident is 8%, which is not greater than 10%.
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9
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