CIC Allianz Insurance Limited v Al-Zu'bi

DETERMINATION OF REVIEW PANEL
CITATION:	CIC Allianz Insurance Limited v Al-Zu'bi [2024] NSWPICMP 473
CLAIMANT:	Muhammed Al-Zu'bi
INSURER:	CIC Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Anthony Scarcella
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Ian Cameron
DATE OF DECISION:	12 July 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); medical assessment of whole person impairment (WPI) by Medical Assessor who determined that claimant had a WPI of greater than 10%; review sought by insurer under section 7.26; claimant allegedly suffered a moderately displaced and impacted bicondylar tibial plateau fracture requiring open reduction and internal fixation, a mild to moderately displaced fracture of the left fibular head and neck, an injury to the left knee, an injury to the left shoulder including a mildly displaced comminuted fracture of the left scapula, an injury to the left ankle and left hindfoot and a psychiatric condition in a motor accident on 22 June 2019; clauses 6.5 to 6.7 of the Motor Accident Guidelines (the Guidelines) in respect of causation considered and applied, clauses 6.19 to 6.22 of the Guidelines in respect of permanent impairment. Held – Medical Assessment Certificate revoked; the claimant sustained injuries caused by the motor accident; the claimant’s injuries caused by the motor accident gave rise to a whole person impairment which was not greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel 1. Revokes the certificate issued by Medical Assessor Jonathan Herald dated 14 December 2023. 2. Certifies that the claimant sustained a fracture of the left tibial plateau, a fracture of the left fibula head and neck, a soft tissue injury to the left knee, a soft tissue injury to the left ankle, a soft tissue injury to the left foot, a soft tissue injury to the left shoulder and a left scapula fracture caused by the motor accident on 22 June 2019 that give rise to a whole person impairment which is not greater than 10%, that is, 9%. A statement setting out the Review Panel’s reasons for the assessment is attached to this certificate.

STATEMENT OF REASONS

BACKGROUND

The claimant, Mr Muhammed Al-Zu’bi, is a 36-year-old man who was involved in a motor accident on 22 June 2019. At the time, he was standing on a footpath exchanging particulars with another driver following a minor motor vehicle accident. The vehicle Mr Al-Zu’bi was driving and the vehicle of the other driver were parked in the kerb-side lane of the roadway whilst they were exchanging particulars. Another vehicle travelling in the kerbside lane collided with the rear of one of the parked vehicles causing it to mount the footpath, impact Mr Al-Zu’bi and knock him to the ground (the motor accident).
Mr Al-Zu’bi made a claim for personal injury benefits. The relevant compulsory third party insurer was CIC Allianz Australia Insurance Limited (the insurer).
Mr Al-Zu’bi claims that, as a result of the motor accident, he suffered a moderately displaced and impacted bicondylar tibial plateau fracture requiring open reduction and internal fixation; a mild to moderately displaced fracture of the left fibular head and neck; an injury to the left knee; an injury to the left shoulder including a mildly displaced comminuted fracture of the left scapula; an injury to the left ankle and left hindfoot; and a psychiatric condition.
Mr Al-Zu’bi’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (MAI Act). This legislation provides a scheme for the compulsory third party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
A medical dispute about the degree of Mr Al-Zu’bi’s whole person impairment (WPI) has arisen in connection with his claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Jonathan Herald for assessment.
On 14 December 2023, Medical Assessor Herald determined that Mr Al-Zu’bi suffered a left shoulder scapula fracture and secondary impingement syndrome; a left knee tibial plateau fracture; a left fibula fracture; and a left leg and left ankle soft tissue injury and swelling caused by the motor accident and assessed him as having a WPI greater than 10%, that is, 11% (the Medical Assessment).

REVIEW PROCEDURE

The insurer sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (the Review).
On 5 February 2024, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision-maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act.
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. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the motor accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
On 8 February 2024, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle of documents on which they relied in the Review.
On 25 March 2024, the Panel informed the parties that it considered a re-examination of Mr Al-Zu’bi was required. Arrangements were made for Mr Al-Zu’bi to be re-examined by Senior Medical Assessor Cameron on 17 May 2024. The Panel also directed Mr Al-Zu’bi to provide the Panel with access to electronic copies of all medical imaging studies of the claimant’s injured parts of the body or ensure that the original imaging studies were made available at or before the time of the re-examination.

LEGISLATIVE FRAMEWORK

General provisions

Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Sections 5D (duty of care – general principles) and 5E (onus of proof) of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Mr Al-Zu’bi’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that 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 the motor accident is greater than 10%.

Permanent impairment assessment

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines version 9.2 effective from 10 November 2023 (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“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.”

Clause 6.7 of the Guidelines states:
“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.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.
Subsequent injury is addressed in cl 6.34 of the Guidelines which states:
“The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of a subsequent impairment, its possible presence should be ignored.”
Clause 6.19 of the Guidelines states:
“Before an evaluation of permanent impairment is undertaken, it must be shown that the impairment has been present for a period of time, and is static, well stabilised and unlikely to change substantially regardless of treatment. The AMA 4 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). If an impairment is not permanent, it is inappropriate to characterise it as such and evaluate it according to these Guidelines.”
The evaluation of permanent impairment should only consider the impairment as it is at the time of the assessment: cl 6.21 of the Guidelines.
The evaluation of permanent impairment must not include any allowance for a predicted deterioration. However, it may be appropriate to comment on this possibility in the impairment valuation report: cl 6.22 of the Guidelines.

EVIDENCE BEFORE THE PANEL

The evidence before the Panel consisted of the following:
(a) the insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 5 March 2024 (insurer’s documents), and
(b) Mr Al-Zu’bi’s indexed and paginated bundle of documents lodged on the Commission’s portal on 18 March 2024 (claimant’s documents).

ASSESSMENT UNDER REVIEW

Medical Assessor Herald examined Mr Al-Zu’bi on 7 December 2023 and issued a certificate under s 7.23(1) of the MAI Act on 14 December 2023.[1]
[1] Insurer's documents at pages 17-24.
Medical Assessor Herald was asked to assess the dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the MAI Act in respect of the following:
(a)    left shoulder – injury to the left shoulder including mildly displaced comminuted fracture of the left scapula;
(b)    left knee – injury to the left knee;
(c)    left leg – moderately displaced and impacted bicondylar tibial plateau fracture requiring open reduction and internal fixation;
(d)    left leg – mild to moderately displaced fracture of the left fibular head and neck, and
(e)    left foot – injury to the left ankle and hind foot.
Medical Assessor Herald took the following history of the motor accident:
“On 22 June 2019 at approximately 6:15 am, he was driving his BMW on Marsh Street near Sydney International Airport. He was in the middle lane when the vehicle that was in the left lane tried to merge which resulted in his car colliding with the back left corner of his vehicle. Both cars pulled over and he was standing on the footpath by the side of the road as they were exchanging details with their hazards on when a taxi driver at a high speed collided with the back of the vehicle hitting the car at speed and pushing the car onto the footpath colliding with Mr Al-Zu’Bi's [sic] left leg causing him to fall backwards onto his shoulder. He had a loss of consciousness and remembers waking up in an ambulance.”[2]
[2] Insurer's documents at page 19 at [9].
Medical Assessor Herald took the following post motor accident history of symptoms and treatment:
“He was taken by ambulance to St George Hospital where he ended up being admitted for three weeks. He lives alone and on discharge, he had to have his brother, from Tasmania come to help him. At St George Hospital, he came under the care of Dr Michael Symes with a comminuted left proximal tibia and fibula fracture. He underwent internal fixation of the fracture on 23 June 2019 over the next day for which a bone graft was applied and plates and screws were inserted into the tibial plateau fracture. He also had a left scapular fracture but that was treated conservatively and following that he was discharged from the hospital. Initially, his left foot was in a backslab [sic] and then he was changed into a Zimmer-type splint. He had to be in a wheelchair for an extended period of time and his brother from Hobart came to look after him on discharge. Following that, he suffered with also some psychiatric problems coming under the care of a psychiatrist and also an extended period of rehabilitation including physiotherapy, which then progressed to exercise physiology. He has not done any exercise physiology gym programmes for a year. He is now only on painkiller medications. In regards to his mental health, he did see a psychologist and a psychiatrist, but now is on Pristiq managed by his GP.”[3]
[3] Insurer's documents at page 19 at [10].
In respect of post motor accident injuries or conditions, Medical Assessor Herald noted that, on 13 July 2023, Mr Al-Zu’bi awoke from a nightmare with a dislocated right shoulder. He was taken by ambulance to Concord Hospital, where the fracture was reduced. He did not experience any subsequent instability episodes.
In respect of current symptoms, Mr Al-Zu’bi complained of continuing left shoulder pain and restricted motion. He had left knee pain and weakness. He had swelling affecting his left ankle.
In respect of current and proposed treatment, Mr Al-Zu’bi managed his symptoms with Pristiq and took Nurofen to relieve pain.
In respect of general presentation on clinical examination, Medical Assessor Herald noted that Mr Al-Zu’bi was 178cm in height and 92kg in weight.
On examination of Mr Al-Zu’bi’s left shoulder, Medical Assessor Herald observed some tenderness over the scapular region as well as some scapular low thoracic dyskinesia. There were positive impingement signs with a grade 5 power in rotator cuff muscles. The left shoulder had a restricted active range of motion, namely, 130° on flexion; 50° on extension; 40° on adduction; 130° on adduction; 80° on internal rotation; and 80° on external rotation.
On examination of Mr Al-Zu’bi’s left lower extremity, Medical Assessor Herald observed a restricted range of motion in the left knee with well-healed surgical scars in the medial aspect of the knee. There was irritability in the left knee and Mr Al-Zu’bi had difficulty putting weight on it without his knee brace. There was swelling from the left knee down to the left ankle. Swelling in his left ankle made movement difficult even though the range of motion was the same on both sides on examination. He had a pitting oedema and no calf tenderness. There was a negative Simmonds test.
Active range of motion in the left knee on flexion measured 70° and 130° in the right knee. Active range of motion in both knees on extension was 0°.
Active range of motion in both ankles on dorsiflexion was 20° and 30° on plantarflexion.
Active range of motion in both hindfeet on inversion was 30° and 20° on eversion.
In respect of consistency, Medical Assessor Herald stated as follows:
“The condition appears consistent, but his pain is out of proportion to his injury. He had a depressed affect which may be part of his mental health. He had features of chronic pain but did not fulfil the criteria of a chronic pain syndrome.”[4]
[4] Insurer's documents at page 22 at [17].

Medical Assessor Herald provided a summary of the relevant documentation and relevant radiological, medical imaging and other investigations provided to him.
Medical Assessor Herald’s diagnosis was one of a tibial plateau fracture with excellent fixation; left leg and ankle swelling, possibly related to a popliteal artery injury and fracture; a healed left scapular fracture; secondary impingement syndrome of the left shoulder; and chronic pain. He opined that all injuries were caused by the motor accident.
In respect of Mr Al-Zu’bi’s left shoulder, Medical Assessor Herald assessed a WPI of 3%.
In respect of Mr Al-Zu’bi’s left knee, Medical Assessor Herald assessed a WPI of 8%.
In respect of Mr Al-Zu’bi’s left ankle and left foot, Medical Assessor Herald assessed a WPI of 0%.
Medical Assessor Herald assessed Mr Al-Zu’bi as having a final WPI of 11%.

REVIEW OF EVIDENCE

Mr Muhammed Al-Zu’bi’s evidence

In evidence, there is a statement by Mr Al-Zu’bi dated 17 June 2022. The relevant parts of that statement are referred to below.
Mr Al-Zu’bi provided a general personal background, his educational history and employment history.
Mr Al-Zu’bi stated that, at about 6.15am on 22 June 2019, he was driving home from work when another vehicle collided with the vehicle he was driving. He and the other driver pulled over into the kerbside lane of the roadway, turned on their hazard lights and got out of their respective vehicles to exchange details on the footpath.
Mr Al-Zu’bi stated that, whilst he and the other driver were exchanging details, a taxi came speeding down the kerbside lane where both vehicles were parked. The taxi did not have its headlights on and it collided with the parked vehicles, causing one of them to mount the footpath and collide with him. The impact caused him to fly through the air and land heavily on the ground.
Mr Al-Zu’bi stated that an ambulance attended the scene and he was transported to St George Hospital where he was assessed and underwent a number of X-rays. He underwent an open reduction and internal fixation of his left tibial plateau on 23 June 2019.
Mr Al-Zu’bi stated that he was discharged from St George Hospital into the care of his brother on 11 July 2019. On discharge, he was in a range of motion brace, using crutches and had his left arm in a sling.
Mr Al-Zu’bi provided some details about what he perceived was poor treatment he experienced during the period of his stay at St George Hospital.
Mr Al-Zu’bi stated that, following his discharge from St George Hospital, he travelled to Hobart so that his brother could care for him. He remained in Hobart until October 2019.
Mr Al-Zu’bi stated that, following the motor accident, he was severely psychologically traumatised and suffered from suicidal thoughts until about 2020.
Mr Al-Zu’bi stated that, following the motor accident, he had gained about 15kg due to his lack of mobility. His normal week usually involved going to the park to do his exercise physiology, attending on his general practitioner and doing some light grocery shopping.
Mr Al-Zu’bi stated that, since the motor accident, he has been deprived from enjoying his life, playing soccer, swimming, going to the gym, hiking and hanging out with friends because of his injuries. Since the motor accident, he feels that he can no longer do many things and that he is at the point where he does not care about the future. He has completely no motivation to do many things. Before the motor accident, he was a person who was full of optimism, energy and vitality. He was highly motivated and his life was vibrant and full of events and activities.

Treating medical records and reports

In evidence, was Mr Al-Zu’bi’s St George Hospital discharge referral dated 11 July 2019.[5] The discharge referral noted that Mr Al-Zu’bi was admitted to St George Hospital on 22 June 2019 and was discharged on 11 July 2019.
[5] Insurer's documents at pages 25-28.
The discharge referral reported that Mr Al-Zu’bi presented to the emergency department at St George Hospital following a motor vehicle accident where he was hit by another car, which had hit his car, whilst he was exchanging information. He was hit in the left leg and was unable to weight bear thereafter. X-rays showed a moderately displaced and impacted comminuted fracture of the proximal tibia and fibula, which was treated operatively with open reduction and internal fixation. Mr Al-Zu’bi also suffered a scapular fracture and was treated conservatively and advised to left arm weight bear as tolerated. An ankle X-ray showed no fracture but a soft tissue injury was likely. He slowly improved with physiotherapy and was cleared for discharge on crutches and non-weight-bearing through his left leg.[6]
[6] Insurer's documents at page 26.
On 22 June 2019, Mr Al-Zu’bi underwent X-rays of his left tibia and fibula at St George Hospital. The X-rays demonstrated a moderately displaced and impacted comminuted fracture of the left proximal tibia and fibula with possible intra-articular extension of the fracture line.[7]
[7] Insurer's documents at page 27.
On 22 June 2019, Mr Al-Zu’bi underwent a CT spiral angiography with contrast at St George Hospital. The angiography demonstrated 60% short segment intraluminal narrowing of the left popliteal artery. There was normal opacification of the distal three run-off vessels. There was a moderately displaced comminuted and impacted fracture of the proximal tibia and fibula.[8]
[8] Insurer's documents at pages 27-28.
On 22 June 2019, Mr Al-Zu’bi underwent X-rays of his left shoulder and left scapula at St George Hospital. The X-rays demonstrated a mildly displaced fracture of the acromion process. The fracture of the scapular affected the superior border without displacement. No other bony injury was identified and there was no joint dislocation.[9]
[9] Insurer's documents at page 28.
On 23 June 2019, Mr Al-Zu’bi underwent an open reduction and internal fixation with bone grafting of his left bicondylar tibial plateau fracture by Dr Michael Symes, orthopaedic surgeon, at St George Hospital.[10]
[10] Insurer's documents at page 26.
Following his discharge from St George Hospital, Mr Al-Zu’bi went to stay with his brother in Hobart until about October 2019. He did return to Sydney from Hobart for consultations with Dr Symes.
On 29 August 2019, Dr Symes reported to the insurer that Mr Al-Zu’bi had made slow and steady progress following his surgery on 23 June 2019. There were improvements in respect of his pain, swelling and mobility. On examination, Dr Symes removed Mr Al-Zu’bi’s range of motion brace and observed that he had well-healed surgical wounds and a well aligned limb. There was some stiffness in the left knee with loss of terminal extension. Calves were soft and non-tender and he was neurovascularly intact. X-rays performed on that day reflected his clinical progress and showed that the fracture appeared to be healing in excellent alignment. Mr Al-Zu’bi complained of left shoulder discomfort with some anterior pain and periscapular pain.[11]
[11] Insurer's documents at page 29.
In evidence, are Mr Al-Zu’bi’s Isra Medical Centre clinical records.[12] The first entry in the clinical records is dated 23 November 2019. The last entry in the clinical records is dated 16 January 2022.
[12] Insurer's documents at pages 32-139.
On 23 November 2019, Mr Al-Zu’bi consulted Dr Youssef Ghonemi, general practitioner, of Isra Medical Centre. Dr Ghonemi recorded the reason for the consultation as being a WorkCover matter in respect of a left comminuted tibia and fibula fracture, left scapula fracture, a left ankle soft tissue injury, a neck condition, a back condition and post-traumatic stress disorder. He referred Mr Al-Zu’bi to Mr Medhat Metry, psychologist. Dr Ghonemi also referred him for physiotherapy.[13]
[13] Insurer's documents at page 138.
On 30 November 2019, Mr Al-Zu’bi consulted Dr Ghonemi complaining of tenderness and restriction in the left knee; tenderness and restriction in the left shoulder; tenderness and restriction in the left ankle; tenderness in the neck; and depression. The consultation focused on the management of Mr Al-Zu’bi’s depression. Dr Ghonemi prescribed Pristiq 50mg tablets and Brufen 400mg tablets.[14]
[14] Insurer's documents at pages 137-138.
On 6 December 2019, Dr Aiman Alsayed, general practitioner, of A2Z Medical Centre reported to the insurer that Mr Al-Zu’bi was suffering from chronic pain restricting his mobility. He recommended four sessions of PRP injections into the back and left shoulder at two to three week intervals. Dr Alsayed opined that the PRP injections would assist in restoring Mr Al-Zu’bi’s functional activities.[15]
[15] Claimant's documents at pages 373-374.
On 12 December 2019, Mr Al-Zu’bi consulted Dr Ghonemi complaining of low mood and poor appetite. He also complained of tenderness and restriction in his back, neck, left knee and left ankle. Dr Ghonemi provided reassurance and advised him to access the Black Dog website and undergo regular physiotherapy as well as stretching and exercises at home.[16]
[16] Insurer's documents at pages 134-135.
On 16 December 2019, Mr Al-Zu’bi consulted Dr Ghonemi complaining of tenderness and restriction in the left knee, left shoulder and left ankle. He also complained of tenderness in the neck and ongoing depression. Dr Ghonemi provided counselling in respect of the psychological condition.[17]
[17] Insurer's documents at pages 132-134.
On 29 December 2019, Mr Al-Zu’bi consulted Dr Ghonemi complaining of tenderness and restriction in the left knee, left shoulder, left ankle and neck. He also complained of depression with related insomnia. Dr Ghonemi provided reassurance.[18]
[18] Insurer's documents at pages 131-132.
On 10 January 2020, Mr Radwan Dannawi, physiotherapist, of Fit By Physio completed an allied health recovery request. Mr Dannawi diagnosed fractures to the tibia, fibula and shoulder. In respect of factors that have impacted the progress of treatment, he referred to Mr Al-Zu’bi’s depression and opined that he needed psychological help. Mr Dannawi requested approval for ongoing physiotherapy to the left shoulder and the left knee and a specialised hinged knee brace.[19]
[19] Insurer's documents at pages 140-143.
On 16 January 2020, Mr Al-Zu’bi consulted Dr Ghonemi complaining of tenderness and restriction in his back, neck, left knee and left ankle. He also complained of depression. Dr Ghonemi provided reassurance and advised him to proceed with a PRP injection into his left shoulder.[20]
[20] Insurer's documents at pages 130-131.
On 25 January 2020, Mr Al-Zu’bi consulted Dr Ghonemi complaining of tenderness and restriction in his back, neck, left knee and left ankle. He also complained of depression and insomnia. Dr Ghonemi provided reassurance and again advised him that a PRP injection into his left shoulder could improve the pain. Dr Ghonemi prescribed Pristiq 50mg tablets and Brufen Plus 200mg tablets.[21]
[21] Insurer's documents at pages 129-130.
Thereafter, there were very similar, almost template like entries, as those referred to above in the Isra Medical Centre clinical records from 2 February 2020 to 16 January 2022. There were 95 such entries during the latter mentioned period.
On 23 April 2020, Mr Dannawi completed an allied health recovery request and sought approval for further treatment by way of physiotherapy to the left shoulder and the left knee and approval for an exercise ball.[22]
[22] Insurer's documents at pages 146-149.
On 28 May 2020, Mr Dannawi completed an allied health recovery request and sought approval for further treatment by way of physiotherapy to the left shoulder and the left knee and approval for an exercise ball.[23]
[23] Insurer's documents at pages 151-155.
On 1 July 2020, Dr Ghonemi referred Mr Al-Zu’bi to Mr Zeinab Allaw, forensic psychologist, of Life Guidance Psychology Practice.[24]
[24] Insurer's documents at page 178.
On 10 July 2020, Mr Dannawi completed an allied health recovery request and sought approval for further treatment by way of physiotherapy to the left shoulder and the left knee and approval for a shoulder pulley.[25]
[25] Insurer's documents at pages 156-160.
On 4 September 2020, Mr Dannawi completed an allied health recovery request and sought approval for further treatment by way of physiotherapy to the left shoulder and the left knee and approval for a shoulder pulley.[26]
[26] Insurer's documents at pages 162-166.
On 15 September 2020, Mr Allaw reported to the insurer. Mr Allaw noted that Mr Al-Zu’bi had been referred to him by Dr Ghonemi for the assessment and treatment of his psychological difficulties following the motor accident. Mr Allaw provided a diagnosis of major depressive disorder with features of anxiety. He noted that Mr Al-Zu’bi treatment program had involved the use of cognitive therapeutic intervention in the form of cognitive behavioural therapy and that the overall goals of his treatment were to improve mood, daily functioning and to establish positive thought processes and behaviours with a view to returning to his pre-injury functionality by overcoming barriers such as pain, anxiety and depression. He should continue with his current treatment program and attend his sessions on a frequent basis.[27]
[27] Insurer's documents at pages 189-193.
On 21 September 2020, Dr Ghonemi referred Mr Al-Zu’bi to Dr Tanveer Ahmed, psychiatrist.[28]
[28] Insurer's documents at page 214.
On 19 October 2020, Mr Dannawi completed an allied health recovery request and sought approval for further treatment by way of physiotherapy to the left shoulder and left knee.[29]
[29] Insurer's documents at pages 167-171.
On 11 November 2020, Mr Dannawi completed an allied health recovery request and sought approval for further treatment by way of physiotherapy to the left shoulder and left knee.[30]
[30] Insurer's documents at pages 172-176.
On 17 December 2020, Dr Ahmed reported to Dr Ghonemi that Mr Al-Zu’bi had consulted him. Dr Ahmed opined that Mr Al-Zu’bi had clear symptoms of post-traumatic stress disorder including nightmares, flashbacks and marked avoidance behaviours as well as emotional numbing as a result of the motor accident. He noted that Mr Al-Zu’bi was consulting a psychologist with only mild improvement but that he had made some recovery in respect of his physical injuries. Dr Ahmed increased the dosage of Pristiq to 150mg tablets and added the tranquiliser, Rexulti 1mg nightly. He suggested that Mr Al-Zu’bi undergo hydrotherapy to improve his mobility and that he would benefit from some kind of exercise physiologist or rehabilitation provider coordinator more generally. Dr Ahmed opined that Mr Al-Zu’bi required intensive urgent input.[31]
[31] Insurer's documents at page 215.
During 2021 and 2022, Mr Al-Zu’bi underwent numerous sessions with exercise physiologists at Ace Rehab Solutions. The sessions were initially bi-weekly and subsequently transitioned to weekly sessions.[32]
[32] Insurer's documents at pages 195-213.
On 12 August 2021, Dr Ahmed provided a progress report confirming that Mr Al-Zu’bi had

re-presented to him. He opined that Mr Al-Zu’bi was suffering from a severe traumatic syndrome and major depression following the motor accident and was showing a limited recovery. He was very avoidant and did not present to appointments easily. He was getting worse and also had some occasional thoughts of harm. Dr Ahmed suggested that Mr Al Zu’bi be admitted to The Hills Clinic as a matter of urgency.[33]
[33] Insurer's documents at page 216.
On 7 September 2022, Mr Al-Zu’bi consulted Dr Alan Nazha, pain physician and interventional pain specialist, of Sydney Pain Specialists on the referral of Dr Ghonemi. Dr Nazha took a history of the motor accident that was consistent with the evidence. Dr Nazha reported that Mr Al-Zu’bi presented with a rather flat affect and was unable to provide significant details and information. He opined that there appeared to be maladaptive cognitive and behavioural responses to his persistent pain and evidence of post-traumatic stress disorder symptoms. He would benefit from an independent assessment by a chronic pain psychologist. He required an orthopaedic opinion and up-to-date imaging in respect of his musculoskeletal injuries.[34]
[34] Insurer's documents at pages 219-220.
On 19 December 2022, Mr Al-Zu’bi underwent MRI scans of his lumbosacral spine, left knee, left tibia and left fibula by Dr Pascal Bou-Haidar, radiologist, on the referral of Dr Nazha. In respect of the lumbosacral spine, the MRI scan demonstrated no evidence of neural impingement; multilevel low-grade disc bulges; no disc protrusions; no canal or foraminal stenosis; multilevel mild facet arthrosis; and unremarkable appearance of the sacrum in the sacroiliac joints. In respect of the left knee, the MRI scan demonstrated mild non-specific joint effusion; no loose bodies; intact articular surfaces, menisci and cruciate ligaments; intact extensor mechanism and collateral ligaments; some deformity of the fibula head from the previous fracture extending to its inferior articular surface; no subarticular marrow oedema; no cystic change or proximal tibiofibular joint effusion observed. In respect of the left tibia and left fibula, the MRI scan demonstrated an uncomplicated appearance of the tibia and fibula and surrounding soft tissues, except for a slight reduction of volume in the posterior muscular compartment in the left calf musculature when compared to the right. No denervation changes were seen.[35]
[35] Insurer's documents at pages 222-224.
On 17 January 2023, Mr Al-Zu’bi consulted Dr Nazha via telehealth. Dr Nazha reported to Dr Ghonemi that approval had been given for psychological assessment but that Mr Al-Zu’bi had declined. Dr Nazha felt that it was imperative that Mr Al-Zu’bi undergo psychological assessment.[36]

Medico-legal reports

[36] Insurer's documents at page 221.

Dr Thomas Newlyn: 22 August 2022

On 22 August 2022, Mr Al-Zu’bi consulted Dr Thomas Newlyn, consultant family and child psychiatrist, at the request of the insurer’s lawyers. Dr Newlyn prepared a report dated 22 August 2022.[37]
[37] Insurer's documents at pages 225-240.
Dr Newlyn took a history from Mr Al-Zu’bi including a history of the motor accident, a history of the treatment thereafter, a past psychiatric history, an academic history and an employment history that were consistent with the evidence.
Dr Newlyn opined that Mr Al-Zu’bi met the diagnostic criteria for the principal diagnosis of persistent depressive disorder with major depressive episode and anxious distress caused by the motor accident.
Dr Newlyn opined that the long-term prognosis was for persistent depressive symptoms that wax and wane.
Dr Newlyn opined that Mr Al-Zu’bi’s distress was embellished.

Dr Drew Dixon: 14 November 2022 and 15 November 2022

On 14 November 2022, Mr Al-Zu’bi consulted Dr Drew Dixon, consultant orthopaedic surgeon, at the request of his lawyers. Dr Dixon prepared two reports, one dated 14 November 2022 and the other dated 15 November 2022.[38] The latter report provided a WPI assessment in respect of Mr Al-Zu’bi’s physical injuries caused by the motor accident.
[38] Claimant's documents at pages 48-54.
Dr Dixon took a detailed history of the motor accident and Mr Al-Zu’bi’s treatment thereafter, which was consistent with the evidence. He also noted a brief social history, work history and medical history.
In respect of Mr Al-Zu’bi’s present symptoms, Dr Dixon recorded the following:
(a)    persisting pain, stiffness and residual swelling in the left knee with moderate instability and great difficulty using steps and stairs, squatting, kneeling, jogging and running;
(b)    residual swelling and stiffness around the left ankle;
(c)    pain and stiffness in the left shoulder referred into the scapular region and the deltoid muscle as far as its insertion;
(d)    difficulty elevating the left arm;
(e)    difficulty with heavy lifting and carrying with the left arm due to shoulder brachalgia and mid thoracic back pain;
(f)    aggravation of pain by recurrent bending, stooping and twisting of the trunk;
(g)    a walking and standing tolerance of 10 to 15 minutes;
(h)    sleep disturbance caused by the left knee and left scapular pain;
(i)    inability to return to recreations such as football, gym, swimming, tennis and hiking;
(j)    difficulty lifting heavy groceries and laundry causing aggravations of his back and left shoulder pain, and
(k)    anxiety about returning to driving and residual traffic phobia.

On examination, Dr Dixon observed that Mr Al-Zu’bi was 178cm in height and weighed 90kg. There was a significant limp on the left and he was unable to toe or heel walk. Squat test was restricted by two thirds due to pain.
On examination of Mr Al-Zu’bi’s left knee, Dr Dixon observed that range of motion was 10° through to 90° and he was unable to reproduce recurvatum of the left knee. There was popliteal fullness and moderate laxity of the lateral collateral ligament but the knee was otherwise stable. There was some tenderness of the antero-medial and antero-lateral joint lines. The two longitudinal scars medially and laterally at the left knee had healed well. There was a full range of motion of the right knee.
On examination of Mr Al-Zu’bi’s left ankle, Dr Dixon observed that there was stiffness with dorsi flexion 10°, plantar flexion 20° and stiffness of the hindfoot with inversion 25° and eversion 10°. There was residual swelling of the left ankle with some tenderness adjacent to the antero-lateral ankle joint mortise and anterior lateral ligament. On standing, he had pes planus and made a modest arch on assisted toes standing. The wear on his joggers was satisfactory. There was a full range of motion of the right ankle.
On examination of Mr Al-Zu’bi’s left shoulder, Dr Dixon observed stiffness on elevation with forward flexion 140°; active abduction 100°; external rotation 80°; internal rotation 50°; extension 40°; and internal rotation 30° associated with pain. There was tenderness of the deltoid muscle as far as its insertion and trapezius muscle overlying the left scapular. There was no winging of the left scapular on resisted protraction. Shoulder girdle power on the left was grade 4/5. Right shoulder girdle power was grade 5/5. There was a full range of motion of the right shoulder.
On examination of Mr Al-Zu’bi’s thoracic spine, Dr Dixon noted a tender area in the

inter-scapular region and pain on rotation which was decreased by one quarter bilaterally as was lateral flexion and extension.
Dr Dixon opined that Mr Al-Zu’bi had suffered the following injuries caused by the motor accident:
(a)    a healed fracture of the medial and lateral plateaus of the left knee with hardware remaining in situ with residual post-traumatic stiffness and moderate laxity of the lateral collateral ligament;
(b)    post-traumatic stiffness of the left ankle with residual ankle swelling;
(c)    post-traumatic stiffness of the left shoulder with a healed fracture of the acromial process of the scapular and of the upper scapular with weakness to the shoulder girdle, and
(d)    thoracic back strain with inter-scapular pain with symmetrical stiffness on trunk rotation.
Dr Dixon opined that Mr Al-Zu’bi’s presentation was consistent.
Dr Dixon opined that Mr Al-Zu’bi’s prognosis for returning to the workforce was guarded as he had a significant painful limp on the left as well as pain and stiffness in his left shoulder and upper back.
Dr Dixon opined that Mr Al-Zu’bi’s condition had stabilised and assessed his WPI at 21% (the left knee at 12%; the left ankle and left hind foot at 4%; the left shoulder at 7%; and the thoracic spine at 0%).

Dr Tania Rogers: 24 November 2022

On 22 November 2022, Mr Al-Zu’bi consulted Dr Tania Rogers, consultant physician in occupational and environmental medicine, at the request of the insurer’s lawyers. Dr Rogers prepared two reports dated 24 November 2022.[39] The shorter of the two reports provided a WPI assessment.
[39] Insurer's documents at pages 244-262.
Dr Rogers took a detailed history of the motor accident and Mr Al-Zu’bi’s treatment thereafter, which was consistent with the evidence. She also noted Mr Al-Zu’bi’s educational and occupational histories.
Dr Rogers listed and summarised the documentation provided to her and the medical imaging reports. She also listed the imaging studies brought by Mr Al-Zu’bi to the assessment.
Dr Rogers stated that Mr Al-Zu’bi reported the following symptoms:
(a)    constant pain in the left shoulder and on the back of the shoulder over the fracture site, radiating into the entire shoulder and the upper arm, which is present most of the time and exacerbated if he abducts the left arm (demonstrated to 90°) for more than 30 seconds, or if he lies on the left arm;
(b)    constant pain in the left leg over the left knee and extending to the area below the knee, extending about halfway down the shin, which is worse with standing more than 10 minutes, or when he walks for more than 5 to 10 minutes;
(c)    intermittent pain in the front of the left ankle, particularly when walking;
(d)    constant pain in the middle of the back, exacerbated with prolonged sitting, prolonged standing or sleeping on his back;
(e)    pins and needles in the left knee extending down to the front of the leg and sometimes extending to the ankle and toes;
(f)    decreased appetite, and
(g)    inability to walk on the side of the road due to the fear of being hit by a car.
Dr Rogers noted Mr Al-Zu’bi’s reported functional inabilities and restrictions.
On clinical examination, Dr Rogers observed that Mr Al-Zu’bi was a polite gentleman of stated age and medium build. He got up after about 15 minutes, then sat down. He sat with the left knee partially extended. He walked with a limp, wore a brace on the left knee and stated that he could only walk with the brace. When he took the brace off, he leaned on the furniture and walls to walk around. He reported that he could not get onto the examination couch with his brace and so, the examination was conducted in a chair. Examination was limited due to reported high baseline levels of pain.
On examination of Mr Al-Zu’bi’s thoracolumbar spine, Dr Rogers observed no deformity and normal spinal curvatures. Pain was reported in the left upper back when requested to do resisted wrist extension, which was not anatomically consistent. Active range of movement was 100% normal range on the right lateral flexion; 100% normal range on left lateral flexion; 75% normal range on rotation to the right; and 75% normal range on rotation to the left.
On examination of Mr Al-Zu’bi’s lower limbs, Dr Rogers observed mild give-way weakness in the left leg that was not anatomically localised. Sensation to light touch was normal in the lower limbs, as was tone. Due to the reported hyperalgesia and allodynia, reflexes of the lower limbs were not tested. There was a pale, well-healed and barely visible scar measuring 14cm on the lateral side of the left knee extending below the knee. Thigh circumferences, measured 8cm proximal to the superior pole of the patella, were 46cm on the right and 43cm on the left. Left quadriceps wasting was evident. Calf circumference, measured 10cm distal to the tibial tubercle, was 40cm on the right and 39 cm on the left. Range of motion of the knees was assessed with a goniometer and demonstrated 130° on the right and 90° on the left on flexion; and 0° on the right and +5° on the left on extension.
On examination of Mr Al-Zu’bi’s ankles and hind feet, Dr Rogers observed no swelling or deformity. She reported that Mr Al-Zu’bi gave the impression of giving suboptimal effort whilst displaying high levels of pain behaviour.
Range of motion of the ankles was assessed with a goniometer and demonstrated 20° on the right and 10° on the left on dorsi flexion; and 20° on the right and 20° on the left on plantar flexion.
Range of motion of the hind feet was assessed with a goniometer and demonstrated 40° on the right and 30° on the left on inversion; and 40° on the right and 15° on the left on eversion.
On examination of Mr Al-Zu’bi’s upper limbs, Dr Rogers observed no deformity or asymmetry of shoulders and no muscle wasting. Range of motion of the shoulders was assessed with a goniometer and demonstrated the following:

Shoulder movement

Active range of motion - right

Active range of motion - left

Normal

Flexion

180°

120°

180°

Extension

50°

50°

50°

Abduction

170°

110°

170°

Adduction

40°

40°

40°

Internal rotation

80°

80°

80°

External rotation

70°

50°

60°

Dr Rogers opined that Mr Al-Zu’bi had suffered the following injuries caused by the motor accident:
(a)    a moderately displaced comminuted fracture of the proximal tibia and fibula with intra-articular extension of fracture line and mild depression of the lateral tibial plateau;
(b)    a minimally displaced comminuted fracture of the scapula spine with extension of the fracture line into the body of the scapula inferior to the spine and mildly displaced comminuted fracture of the superior border of the scapula;
(c)    a soft tissue injury to the left shoulder;
(d)    a soft tissue injury to the left ankle, and
(e)    a soft tissue injury to the thoracic spine.
Dr Rogers opined that the left quadriceps wasting suggested ongoing left knee pathology.
Dr Rogers assessed Mr Al-Zu’bi’s WPI at 6% (the left knee at 5%; scarring at 1%; and the thoracic spine at 0%).
Dr Rogers opined that, due to a lack of diagnosis regarding the left ankle and the left shoulder complaints and the lack of objective signs, apart from reduced range of motion, these impairments should be considered temporary as they may change by more than 3% in the next 12 months.

Dr Andrew Porteous: 6 December 2022

On 23 November 2022, Mr Al-Zu’bi consulted Dr Andrew Porteous, occupational physician, at the request of his lawyers. Dr Porteous prepared a report dated 6 December 2022.[40]
[40] Claimant's documents at pages 55-61.
Dr Porteous took a detailed history of the motor accident and Mr Al-Zu’bi’s treatment thereafter, which was consistent with the evidence.
In respect of Mr Al-Zu’bi’s current condition, Dr Porteous noted that he reported chronic left knee pain, which increased after 10 to 15 minutes of walking. He could not really crouch, kneel, go up and down stairs or slopes. There was left shoulder pain in the arm when raised above shoulder height. There was left ankle pain when stepping up or off things or when walking for more than 10 minutes. The left ankle also ached at night. There was chronic thoracic pain after standing still for about 10 minutes. There was disturbed sleep. Nurofen is taken twice a day for pain relief. There is an inability to play pre-injury tennis, soccer, attend the gym, swim or go to the beach. He takes one Pristiq tablet in the morning for his psychological condition.
On examination, Dr Porteous observed that Mr Al-Zu’bi weighed 88.9kg and was

right-handed. He had a brace on his left leg.
Examination of Mr Al-Zu’bi’s cervical spine was normal.
Examination of Mr Al-Zu’bi’s right shoulder demonstrated a full range of motion. The range of motion of the left shoulder was 130° on flexion; 60° on extension; 130° on abduction; 60° on adduction; 90° on internal rotation; and 50° on external rotation.
Examination of Mr Al-Zu’bi’s thoracic spine demonstrated a range of motion of 40° on left rotation and 40° on right rotation with no spasm, guarding or dysmetria.
Examination of the right knee demonstrated a full range of motion with no instability.
Examination of the left knee demonstrated a range of motion of 0° to 95° flexion on the left. There was no patellofemoral compression pain. The left knee was stable.
Dr Porteous reported that there was altered sensation and allodynia to light touch on the anterior medial forelegs and on the dorsal aspect of the foot through into the big toe in the distal one third of the femoral nerve distribution, most likely from the accident trauma.
On examination of Mr Al-Zu’bi’s left ankle, Dr Porteous observed a mildly restricted range of motion with 30° of plantar flexion; 10° of dorsi flexion; 30° of inversion; and 10° of eversion.
Dr Porteous opined that Mr Al-Zu’bi had suffered the following injuries caused by the motor accident:
(a)    comminuted, moderately displaced, fractures of the proximal tibia and fibula;
(b)    a mildly displaced fracture of the left scapula spine;
(c)    old loose bodies in the left ankle with swelling, consistent with a soft tissue injury;
(d)    a soft tissue sprain in the left shoulder, and
(e)    consequential thoracic pain from the altered posture of limping and favouring the left leg with altered forces through the thoracic spine that onset in early 2020.
Dr Porteous opined that Mr Al-Zu’bi’s prognosis was very guarded.
Dr Porteous’s assessment of WPI was difficult to follow and appeared to be incomplete. In respect of the left shoulder, he assessed a 6% upper extremity impairment (UEI). In respect of the left ankle and left hindfoot, he assessed WPI at 4%.

Dr Jeff Bertucen: 7 December 2022

On 6 December 2022, Mr Al-Zu’bi consulted Dr Jeff Burtucen, consultant psychiatrist, at the request of his lawyers. Dr Burtucen prepared two reports dated 7 December 2022.[41] The shorter of the two reports provided a WPI assessment.
[41] Claimant's documents at pages 62-71.
Dr Burtucen took a detailed history of the motor accident and Mr Al-Zu’bi’s treatment thereafter, which was consistent with the evidence.
Dr Burtucen opined that Mr Al-Zu’bi had suffered a chronic adjustment disorder that had evolved into a major depressive disorder and chronic post-traumatic stress disorder (currently in partial remission) caused by the motor accident.
Dr Burtucen provided an assessment of Mr Al-Zu’bi’s WPI in respect of the diagnosed psychiatric injury caused by the motor accident.
Dr Burtucen assessed Mr Al-Zu’bi as having a WPI of 17%.

Mr John Raue: 8 December 2022

On 30 November 2022, Mr Al-Zu’bi was assessed by Mr John Raue, vocational psychologist, of Vocational Capacity Centre at the request of the insurer’s lawyers. Mr Raue prepared a vocational assessment report dated 8 December 2022.[42]
[42] Insurer's documents at pages 263-277.
Mr Raue took a history of the motor accident that was consistent with the evidence. He also took detailed personal, educational and employment histories.
Mr Raue stated that a test with validity indicators indicated that Mr Al-Zu’bi was exaggerating the impact of his injuries and psychological condition. His presentation and test performance strongly suggested that he may be exaggerating the impact of his injuries.
Mr Raue concluded that some of Mr Al-Zu’bi’s claims of physical and psychological disintegration seemed extreme. He was prone to exaggerate the impact of any difficulties, which made self-reporting difficult to rely on. He also seemed inconsistent in some of his history.
Mr Raue provided a job skills analysis and a job match report for Mr Al-Zu’bi.
Mr Raue opined that appropriate vocational possibilities for Mr Al-Zu’bi were security guard; alarm, video or surveillance monitor; security consultant; electrical engineer; enquiry clerk; and sales assistant.

Dr Thomas Newlyn: 26 January 2023

On 26 January 2023, Dr Newlyn provided a supplementary report at the request of the insurer’s lawyers.[43]
[43] Insurer's documents at pages 241-243.
Dr Newlyn provided an assessment of Mr Al-Zu’bi’s WPI in respect of the diagnosed psychiatric injury caused by the motor accident.
Dr Newlyn assessed Mr Al-Zu’bi as having a WPI of 7%.

SUBMISSIONS

Insurer’s submissions

The insurer provided written submissions in respect of the Medical Assessment dated 28 July 2023. It also provided written submissions in respect of the Review dated 10 January 2024.
The insurer relied on the evidence of Dr Rogers and Mr Raue.
The insurer sought a review of the Medical Assessment on the following basis:
(a)    Medical Assessor Herald accepted that Mr Al-Zu’bi was consistent in his presentation albeit, with disproportionate pain to his injury and went on to accept his self-reports without referencing any other medical records;
(b)    Dr Rogers and Mr Raue opined that Mr Al-Zu’bi exhibited pain-focused behaviours and did not exhibit full effort when being assessed for range of motion purposes and despite this, Medical Assessor Herald relied on Mr Al-Zu‘bi’s presentation;
(c)    Medical Assessor Herald failed to provide an adequate path of reasoning concerning causation of Mr Al-Zu’bi’s left knee symptoms;
(d)
Medical Assessor Herald had a duty to determine the inconsistencies in

Mr Al-Zu’bi’s self-reports by considering his complete medical picture and it was necessary for him to utilise his medical expertise in these circumstances;
(e)    Medical Assessor Herald failed to provide a path of reasoning in respect of the diverging ranges of motion on examination or give Mr Al-Zu’bi the opportunity to respond to the inconsistent observations compared to the medical evidence, and
(f)    Medical Assessor Herald failed to provide evidence that a goniometer was used for range of motion measurements and, if it was not used, he failed to provide repeated active measurements to alleviate any concerns surrounding divergent ranges of motion and Mr Al-Zu’bi’s potential for pain-focused behaviours such as sub-optimal effort during examinations.
There is no attributable impairment to the left tibia fracture.
There is no attributable impairment to the left fibula fracture.
Mr Al-Zu’bi’s left lower extremity impairment does not exceed 5% WPI. There was muscle atrophy present that gave rise to a 5% WPI under Table 6.1 of the Guidelines, with no additional factors to give rise to any additional lower extremity impairment, such as peripheral vascular disease. There was no left knee ligamentous strain, no marrow oedema, cystic change or proximal tibiofibular joint effusion.
Any shoulder fracture had healed by the time Dr Rogers assessed Mr Al-Zu’bi on 24 November 2022. Dr Rogers diagnosed the left shoulder injury as soft tissue in nature and therefore, it gave rise to no impairment.
There was no evidence to support Mr Al-Zu’bi having sustained anything beyond a soft tissue injury to the left foot and left ankle as a result of the motor accident and as such, gave rise to no impairment.
Accordingly, the injuries caused by the motor accident did not give rise to a permanent impairment of greater than 10% WPI.

Mr Al-Zu’bi’s submissions

Mr Al-Zu’bi’s lawyers provided written submissions dated 12 July 2023 in respect of the Medical Assessment. They also provided written submissions dated 31 January 2024 in respect of the Review.
Mr Al-Zu’bi rejected the insurer’s stated grounds for the Review and provided reasons for so doing.
Mr Al-Zu’bi relied on the evidence of Dr Porteous and Dr Dixon.
Accordingly, the injuries caused by the motor accident give rise to a permanent impairment of greater than 10% WPI.

THE RE-EXAMINATION

Preamble

The Panel re-examination and assessment of Mr Al-Zu’bi was undertaken on 17 May 2024 by Senior Medical Assessor Cameron in his Hornsby rooms.
Mr Al-Zu’bi attended unaccompanied.

Background

Mr Al-Zu'bi is living at Homebush West. He is living with his partner. He said this was a recent development.
At the time of the motor accident, Mr Al-Zu'bi was an electrical engineering student at Wollongong University. He had had his earlier education in Jordan.
At the time of the motor accident, Mr Al-Zu'bi was also working as a security guard for up to 20 hours per week.
Mr Al-Zu'bi reported that his past health was good and that he is a non-smoker.

History of injury

On 22 June 2019, Mr Al-Zu'bi was standing on a footpath exchanging details with another driver following a minor motor vehicle crash. He was hit on the left leg by a vehicle which in turn had been hit by another vehicle. He was thrown to the ground and sustained significant injuries to his left leg and other body parts.
An ambulance attended and he was taken to St George Hospital. He had fractures around the left knee. On 23 June 2019, he underwent an open reduction and internal fixation with bone grafting.
Mr Al-Zu'bi reported that there was continuing pain from the left leg and from the left shoulder region.
Mr Al-Zu'bi said that, on 13 July 2023, he woke up from sleep with a dislocated right shoulder. He had severe pain and was taken to Concord Hospital where he had a closed reduction.
Mr Al-Zu'bi has had continuing physical and psychological symptoms.

Current status

Mr Al-Zu'bi said he has pain from his left shoulder. He said there is also pain from his right shoulder. At the left knee there is pain and weakness. He uses a brace on the left knee and said his mobility was limited.
Mr Al-Zu'bi said that he also had psychological symptoms.
Mr Al-Zu'bi said that he is driving short distances.
Mr Al-Zu'bi said his income is from insurer payments. He was uncertain about the future, and this unsettled him.
Current medications are one or two Nurofen Plus tablets a day and Pristiq.
Mr Al-Zu'bi’s general practitioner is Dr Nabeghah at Lakemba.

Examination

Mr Al-Zu'bi is right-handed, about 179cm in height and weighs about 95kg.
Mr Al-Zu'bi was co-operative. No cognitive impairment was present.
At the cervical spine, there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria and no
non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at the right shoulder.
At the left shoulder, there was inconsistent movement that Mr Al-Zu’bi said was due to variable pain. The maximum observed movements at this shoulder were abduction 120°; adduction 30°; flexion 120°; extension 30°; external rotation 50°; and internal rotation 80°. Mr Al-Zu'bi said that pain from both shoulders prevented him moving them further.
There was a full range of motion at other upper extremity joints. There were no neurological abnormalities in the upper extremities. No difference in the circumferences of the upper extremities was detected.
At the thoracic spine, there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, and no
non-verifiable radicular complaints present.
At the lumbar spine, there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, and no non-verifiable radicular complaints present. Nerve tension signs were negative.
In the lower extremities, there were difficult to see medial and lateral surgical scars adjacent to the left knee.
At the left knee, there was inconsistent movement that Mr Al-Zu’bi said was due to pain from this knee. The maximum observed movements at this joint were from 10° to 100°.
At the left ankle and hindfoot, movements were dorsiflexion 0°; plantar flexion 50°; inversion 30°; and eversion 20°.
There were no neurological abnormalities in the lower extremities. Circumferences of the lower extremities were, above knee right 46cm, left 44cm and below knee, right 40cm and left 40cm.
Mr Al-Zu'bi walked with a limp. There was a soft ankle orthosis on the left ankle as well as a hinged elasticised left knee orthosis.
The ranges of movement were assessed with a goniometer.

Review of medical imaging

Following the re-examination of Mr Al-Zu’bi, Senior Medical Assessor Cameron received and reviewed imaging studies provided to the Commission. The imaging studies were the MRI scans of Mr Al-Zu’bi’s left knee, left tibia and left fibula and MRI scans of his lumbosacral spine performed on 19 December 2022.
The MRI scan of the left knee, left tibia and left fibula showed previous internal fixation of the proximal tibia, evidence of a previous fracture of the fibular head, no internal derangement of the left knee and mild muscle atrophy of the left calf.
The MRI scan of the lumbosacral spine showed no abnormalities.
Senior Medical Assessor Cameron’s review of these medical imaging studies did not cause him to alter his findings and conclusions in respect of diagnosis, causation and the assessment of permanent impairment following the re-examination of Mr Al-Zu’bi.

DIAGNOSIS, CAUSATION AND REASONS

Considering the mechanism of the motor accident, the Panel is satisfied that the motor accident could have caused and did cause Mr Al-Zu’bi to suffer a fracture of the left tibial plateau.
Considering the mechanism of the motor accident, the Panel is satisfied that the motor accident could have caused and did cause Mr Al-Zu’bi to suffer a fracture of the left fibula head and neck.
Considering the mechanism of the motor accident, the Panel is satisfied that the motor accident could have caused and did cause Mr Al-Zu’bi to suffer a soft tissue injury to the left knee. The absence of symptoms prior to the motor accident and the prompt development and persistence of symptoms indicates, on the balance of probabilities, that the motor accident did cause a soft tissue injury to Mr Al-Zu’bi’s left knee.
Considering the mechanism of the motor accident, the Panel is satisfied that the motor accident could have caused and did cause Mr Al-Zu’bi to suffer a soft tissue injury to the left ankle. The absence of symptoms prior to the motor accident and the prompt development and persistence of symptoms indicates, on the balance of probabilities, that the motor accident did cause a soft tissue injury to Mr Al-Zu’bi’s left ankle.
Considering the mechanism of the motor accident, the Panel is satisfied that the motor accident could have caused and did cause Mr Al-Zu’bi to suffer a soft tissue injury to the left foot. The absence of symptoms prior to the motor accident and the prompt development and persistence of symptoms indicates, on the balance of probabilities, that the motor accident did cause a soft tissue injury to Mr Al-Zu’bi’s left foot.
Considering the mechanism of the motor accident, the Panel is satisfied that the motor accident could have caused and did cause Mr Al-Zu’bi to suffer a soft tissue injury to the left shoulder and a left scapula fracture. The absence of symptoms prior to the motor accident and the prompt development and persistence of symptoms indicates, on the balance of probabilities, that the motor accident did cause a soft tissue injury to Mr Al-Zu’bi’s left shoulder and a left scapular fracture.
In respect of Mr Al-Zu’bi’s right shoulder dislocation after waking from his sleep on 13 July 2023, it is difficult to relate it to the motor accident.
Mr Al-Zu'bi does exhibit some pain behaviours and there is some inconsistency. This was discussed with him, and he acknowledged that pain limited his movements. The ranges of movement were assessed with a goniometer.

PERMANENCY OF IMPAIRMENT

Permanent impairment is defined by the AMA 4 Guides as 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, that is, by more than 3% WPI in the next year with or without medical treatment.[44]
[44] AMA 4 Guides at page 315 and cl 6.19 of the Guidelines.
The Panel considered the question of permanency of impairment and is satisfied that

Mr Al-Zu’bi’s injuries caused by the motor accident have stabilised and are permanent within the meaning of the above definition.

DEGREE OF PERMANENT IMPAIRMENT

Left knee – soft tissue injury, fibular head and neck fracture and tibial plateau fracture

The three listed injuries to the left knee region have been redefined to one injury because it is not possible to separately assess the injuries using available methods.
The tibial plateau fracture has been fixed in good position. Range of movement at the left knee is inconsistent and therefore, cannot be used for impairment evaluation. Of the remaining methods, muscle atrophy of the left thigh gives the highest impairment percentage. With reference to Table 6.1(a) of the Guidelines, the 2cm atrophy is assessed at 4% WPI.

Left ankle and left hindfoot – soft tissue injury

With reference to Table 42, page 78 of the AMA 4 Guides, there is a “mild” ankle impairment (due to dorsiflexion to 0°), which is assessed at 3% WPI.

Left shoulder – soft tissue injury and scapula fracture

Due to pain, movements of this shoulder were inconsistent. In this regard, cl 6.40 of the Guidelines states:
“The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report.”
It is, in the judgment of the assessor, not appropriate to rely on the measured range of motion in this case.
The clinical information does not show that there are major significant pathological changes present in this shoulder. Therefore, the assessment of permanent impairment is made by analogy. It is determined that the impairment would be equivalent to mild crepitation (cl 6.24 of the Guidelines) and see Table 19, page 59 of the AMA 4 Guides) at the acromioclavicular joints (see Table 18, page 58 of the AMA 4 Guides) and therefore, would be 10% of 25% UEI, which rounds to 3% UEI and converts to 2% WPI. There is no other available method of measurement by analogy applicable in this situation.
Therefore, the total assessed permanent impairment is 9% WPI.

Pre-existing or subsequent impairment

The Panel finds that there was no history of relevant preceding symptoms prior to the motor accident to suggest any prior impairment.
There was no evidence of any relevant subsequent impairment.

Assessment of permanent impairment

The Panel assesses Mr Al-Zu’bi’s permanent impairment as follows:
(a)    current WPI: 9%;
(b)    pre-existing WPI: 0%, and
(c)    subsequent WPI: 0%.
Accordingly, the Panel assesses Mr Al-Zu’bi’s final WPI as 9%.

FINDINGS

The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[45] and Insurance Australia Ltd v Marsh.[46]
[45] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[46] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts Senior Medical Assessor Cameron’s re-examination findings and conclusions based on his examination and specific findings pertaining to diagnosis, causation and assessment of permanent impairment.
The Panel determines that Mr Al-Zu’bi sustained the following injuries caused by the motor accident:
(a)    a fracture of the left tibial plateau;
(b)    a fracture of the left fibula head and neck;
(c)    a soft tissue injury to the left knee;
(d)    a soft tissue injury to the left ankle;
(e)    a soft tissue injury to the left foot, and
(f)    a soft tissue injury to the left shoulder and a left scapula fracture.
The Panel determines that the injuries caused by the motor accident give rise to a WPI which is not greater than 10%, that is, 9%.
The certificate of Medical Assessor Herald dated 14 December 2023 is revoked.

CONCLUSION

The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.

Shoulder movement	Active range of motion - right	Active range of motion - left	Normal
Flexion	180°	120°	180°
Extension	50°	50°	50°
Abduction	170°	110°	170°
Adduction	40°	40°	40°
Internal rotation	80°	80°	80°
External rotation	70°	50°	60°

[2024] NSWPICMP 473

12 July 2024