Deeb v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Deeb v Allianz Australia Insurance Limited [2024] NSWPICMP 71
CLAIMANT:	Siham Deeb
INSURER:	Allianz Insurance Australia Limited
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Shane Moloney
MEDICAL ASSESSOR:	Paul Curtin
DATE OF DECISION:	13 February 2024
CATCHWORDS:	MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) Home dated 20 March 2023; claimant involved in motor vehicle accident on 17 February 2019 with a rear end collision and suffering amongst other things a whiplash type injury and also injuries to her jaw were claimed; Review Panel considered whole person impairment (WPI) of the claimant’s physical injuries and whether claims for various treatment are reasonable and necessary; claimant had already been assessed by MA Nichols with respect to her temporomandibular injuries who found that such injuries were not causally related to the accident; claimant was separately assessed by MA Curtin with respect to her claim for treatment and by MA Moloney with respect to her WPI of physical injuries; claimant did not complain of symptoms of teeth grinding and pain in her jaw until 15 months post-accident when she thereafter sought treatment; Review Panel considered that the relationship between whiplash injuries and TMJ disorders/facial pain was controversial and not resolved in medical studies; Review Panel satisfied that splint therapy and Botox injections are reasonable and necessary but not as a result of any injury caused by the accident; claimant’s WPI assessed at 4% for each shoulder; Held – certificate of MA Home affirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The certificate of Medical Assessor Home is affirmed. 2. As a result of the accident on 17 February 2019 the claimant suffered the following injuries; (a) cervical spine; (b) left and right shoulders; (c) left and right elbows and wrists; (d) lumbar spine; (e) left and right knees, and (f) thoracic spine. 3. The claimant has a whole person impairment of 4%. 4. The Panel is not satisfied that on the balance of probabilities, the motor accident caused injury to the claimant’s temporomandibular jaw such that she needs Botox injections and splint therapy.

STATEMENT OF REASONS

INTRODUCTION

The claimant's physical injuries and impairments were assessed by the following Medical Assessors:
(a)   Medical Assessor Home, report dated 20 March 2023;
(b)   Medical Assessor Nichols, report dated 10 February 2023, and
(c)   Medical Assessor Home, Combined Certificate dated 23 March 2023.
It is only the assessment of Medical Assessor Home (the Medical Assessor) to which the claimant has sought a review.

The accident

On 17 February 2019, the claimant was involved in a motor vehicle accident. The claimant was the front seat passenger in a vehicle being driven by her partner. The vehicle the claimant was in came to a standstill on Wattle Street in Punchbowl NSW, when the insured vehicle collided into the rear of the car the in which the claimant was travelling. The impact of the collision caused the claimant’s vehicle to hit the car in front of her and then bounce back. As a consequence of the collision, the airbags in the vehicle deployed, and there was smoke in the car. The door of the car was wedged, and had to be forced opened.

The original Medical Assessor’s decision

The dispute between the claimant and the insurer is about;
(a) the degree of permanent impairment under Schedule 2, s 2(a) of the Motor Accident Injuries Act 2017 (the Act);
(b) whether any treatment and care is causally related to the motor vehicle accident, and
(c) whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2, s 2(b) of the Act.
The following injuries were referred by the Personal Injury Commission (Commission) for assessment of permanent impairment:
(a)   Left knee: soft tissue injury.
(b)   Right knee: patellofemoral pain syndrome, soft tissue injury.
(c)   Pelvis: right and left anterior superior iliac sprain syndrome.
(d)   Right wrist: post-traumatic symptoms in the right wrist joints caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures.
(e)   Left wrist: post-traumatic symptoms in the right wrist joints caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures.
(f)    Right shoulder: rotator cuff injury/post-traumatic symptoms in right shoulder caused by caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures/subacromial/subdeltoid bursitis with burs.
(g)   Left shoulder: rotator cuff injury/post-traumatic symptoms in right shoulder caused by caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures/subacromial/subdeltoid bursitis.
(h)   Left elbow: soft tissue injury.
(i)    Lumbar spine: musculoligamentous sprain/strain with L4/5 intervertebral disc involvement.
(j)    Desiccation at L3/4 and L4/5 levels. Broad based posterior disc protrusion. Facet joint effusions.
(k)   Thoracic spine: Musculoligamentous sprain/strain with L4/5 intervertebral disc involvement.
(l)    Cervical spine: Musculoligamentous sprain/strain with L4/5 intervertebral disc involvement. Right and left C6/7 radiation down both arms.
The following treatment and/or care disputes were referred by the Commission for assessment:
(a)   whether Botox injections to the masticatory muscles is caused by the motor accident for the purposes of the Act;
(b)   whether splint therapy to correct the temporomandibular joint disorder is caused by the motor accident for the purpose of the Act;
(c)   whether splint therapy to correct the temporomandibular joint disorder is reasonable and necessary for the purpose of the Act, and
(d)   whether Botox injections to the masticatory muscles is reasonable and necessary for the purposes of the Act.
The Medical Assessor found the claimant had a 4% whole person impairment (WPI) for the following injuries;
(a)   cervical spine- soft tissue injury;
(b)   thoracic spine – soft tissue injury;
(c)   lumbar spine – soft tissue injury;
(d)   right shoulder – soft tissue injury, and
(e)   left shoulder - soft tissue injury.
The Medical Assessor also found that splint therapy to correct the claimant’s temporo mandibular joint disorder and Botox injections to the masticatory muscles did not relate to any injury caused by the accident. The Medical Assessor also found that treatment by way of splint therapy and Botox injections was not reasonable and necessary.

Claimant’s submissions

It is submitted that the Medical Assessor’s position is untenable, as he has failed to take into account, or adequately take into account, all of the available subjective and objective evidence which demonstrates that the mechanisms and forces involved in the subject accident were capable of causing the injuries and impairments that the claimant, her ongoing complaints of neck and low back pain with radicular features of same radiating into her upper and lower limbs respectively.
With particular reference to the claimant's cervical spine impairments, it is submitted that the Medical Assessor has made contradictory findings within his assessment report and findings which are wholly inconsistent with the claimant's treating evidence and the medico-legal evidence.
The claimant says that this is exemplified at page 7 of the Medical Assessor’s certificate under the heading ‘current symptoms’ where the claimant provided the following report of ongoing symptoms:
“There is pain radiating from the base of the neck to the top of both shoulders. This causes her some difficulty with arm elevation."
The claimant says that despite the above complaints of neck pain with radicular features which result in a reduced range of upper limb motion, which are complaints that are consistent with the claimant’s contemporaneous complaints of same from the date of the subject accident to date, being complaints of cervical pain radiating to the claimant’s shoulders causing a restriction of movement in her upper limbs, on page 13 of the subject medical assessment report, the claimant says that the Medical Assessor inexplicably records the following erroneous and contradictory findings which ultimately resulted in an erroneous DRE (diagnosis related estimate) Category I assessment of the claimant’s cervical spine impairment in circumstances where, on any plain analysis, a DRE II Category finding was satisfied:
“The clinical presentation is consistent with a DRE Cervico-thoracic Category I Impairment rating. There are no verifiable or non-verifiable radicular complaints”
Consequently, the claimant submits that the Medical Assessor has erred in his finding of an absence of any verifiable or non-verifiable radicular complaints which is a finding that it was not open to him to make as the claimant says it contradicted her histories and ongoing complaints and, most significantly, the complaints and symptoms that the claimant continued to suffer from which are laid out and recorded at page 7 of the medical assessment report.
The claimant further submits that the Medical Assessor’s findings wholly contradict the claimant’s medical histories and records of complaint from the date of the accident to date, noting, the claimant says, that she has made complaints of ongoing neck and lower back pain with consistent reports of pain radiating into both upper limbs and both lower limbs since the accident for which she submits that she has demonstrable examples and provided by way of illustration:
(a)   Application For Personal Injury Benefits dated 25 February 2019:
(i)discal injury to neck, radiculopathy into upper limbs and shoulders.
(b)   Report of Dr Andrew Kam,neurosurgeon dated 13 June 2019:
(i)she has been complaining of ongoing neck pain, shoulder pain and arm pain. Her shoulder pain is bilateral, and her arm pain is on the left-hand side. Her neck pain is described as a mixture of sharp stabbing and deep aching. Her arm pain is more pins and needles. Concurrently she has also been having issues with lower back pain. She describes this as a combination of a deep pain and sharp pain.
(c)   Report of Associate Professor Tillman Wolf Boesal dated 30 June 2020:
(i)neck pain, radiating arm pain with sensory alteration in the C6 distribution, back pain, shoulder pain, radiating pain down both legs, particularly on the right with sensory alteration in the lateral foot.
(d)   Green Light Rehabilitation Assessment Report dated 8 July 2020:
(i) she reported to experience most of the symptoms in her lower back and a tight pressure in her shoulders and neck ... she also experienced some radiating pain symptoms down her upper limbs and down the right side of her lower back and limb (*emphasis added).
(e)   Report of Dr Pearl Sirachi dated 28 August 2020:
(ii)Siham suffers from bilateral temporal headaches... musculoskeletal injuries involves her neck shoulder and back... Also has radiating numbness down her left arm osteopath weekly for her neck shoulder and back injuries.
(f)    Report of Associate Professor Tillman Wolf Boesal dated 24 February 2021:
(i)her pain has been very challenging for her. She reports clenching low back pain with associated sensory disturbance, worse when lying flat.
(g)   Allied Health Recovery Request dated 4 May 2021
(i) cervical spine - limited ROM globally 50% (limited by pain)...Bilateral upper limb neural tension test positive - constant pins and needles and numbness in fingers... Rounded posture and forward head.... Joint stiffness on palpation - limited by muscle guarding and pain.
(h)   Report of Dr Medhat Guirgis dated 30 September 2021:
(i)an injury to the cervical area of the spine in the form of muscular ligamentous sprain strain with possible intervertebral disc involvement. She described right and left C6/7 radiation down her arms
The claimant says that on any plain reading of the above evidence, it is submitted that despite the contemporaneous ongoing symptoms, the Medical Assessor has failed to consider, or adequately consider, the above material which contradicts his findings particularly with respect to the claimant’s ongoing neck pain and associated radiating pain into her upper limbs and low back pain with radicular symptoms radiating into her lower limbs, which the claimant has consistently complained of from the date of the accident to date.
The claimant says that the Medical Assessor has also demonstrably failed to consider, or to adequately consider, the large range of radiological investigations that were available to him and has only made reference to scans of the lumbar and cervical spine dated 20 March 2019 and 25 July 2019 respectively and has had no regard to any of the updated radiological material that was provided to him resulting in a failure to properly diagnose the claimant’s cervical pathology, particularly at the C3, C4, C5 and C6 regions, and the claimant’s lumbar spine pathology at the L4/5 and L5/6 regions of the lumbar spine, resulting in a material error.
Further, and very significantly, the claimant says that the Medical Assessor failed to put any of the above ‘contradictory’ histories to the claimant and the claimant has been afforded no opportunity to respond to the Medical Assessor’s ultimate negative findings with respect to her cervical spine symptoms and reports of radicular pain and the claimant’s lumbar spine symptoms and reports of radicular pain, resulting in a denial of procedural fairness.
Additionally, the claimant says that the Medical Assessor has not provided adequate reasons and has not adequately demonstrated the basis for his findings which are contrary to those in the evidence summarised above, in breach of the obligations prescribed by the New South Wales Court of Appeal authority of Rodger v De Gelder [2015] NSWCA 211 (23 July 2015).
The claimant says that the Medical Assessor has made findings on causation which are speculative, and which contradict the claimant’s evidence, and that speculation has been relied upon in breach of the principles enunciated in the authority of Insurance Australia Limited trading as NRMA Insurance v Brown [2019] NSWSC 1236.
The claimant says that the Medical Assessor blindsided the claimant with a conclusion that is contrary to the histories and opinions relied upon and without providing any opportunity for a claimant to be informed of this and to respond to any such inconsistencies. The claimant says that this is a fundamental denial of procedural fairness, which is what occurred in this dispute, resulting in a material error.
The claimant says that the flow-on effect of the Medical Assessor’s inappropriate approaches in relation to the assessment of the claimant's impairments and treatment requirements has resulted in an uncredible and non-compliant assessment which has resulted in findings which were not open to the Medical Assessor on the evidence.
Further, the claimant submits that the Medical Assessor has not provided adequate reasons for making findings that are substantially inconsistent with the claimant’s contemporaneous records in relation to the totality of the injuries that were referred to him for assessment, nor for making findings that are substantially inconsistent with the findings of the claimant’s treating medical and related service providers in breach of the principles prescribed by Bugat v Fox [2014] NSWSC 888.
The claimant submits that these substantial material errors have resulted in the overall assessment of the claimant’s injuries and treatment requirements as being incorrect in a material respect.
The claimant says that it is also significant that her treating records contain no evidence of any pre-accident symptomatic complaints of pain or impairment in relation to the claimant’s neck, shoulders, low back or lower limbs, in the period immediately prior to the accident.
The claimant submits that in the absence of any pre-accident symptomatic pathology in relation to the abovementioned body parts, it was not open to the Medical Assessor to find negatively on causation or in relation to the claimant’s proposed treatments.
The claimant submits that in light of the above, as she had no demonstrable symptoms of impairment in the jaw, teeth, neck, shoulders, back, or lower limbs in the period immediately prior to the subject accident, the findings of the Medical Assessor were not open for him to make on the evidence and was demonstrably in breach of the Permanent Impairment Guidelines (Guidelines), resulting in a demonstrable material error, which is especially compounded by the ‘dismissal’ of the claimant’s expert treating evidence.
It is submitted that the Medical Assessor has fallen into error by merely ‘speculating’ as to causation without reference to any objective evidence to support his hypotheses regarding the ‘causes’ of the claimant’s post-accident temporomandibular jaw (TMJ) and dental impairments and need for treatment which is a methodology that is strictly forbidden as laid out in the authority of Insurance Australia Limited trading asNRMA Insurance v Brown [2019] NSWSC 1236.
It is submitted that the Medical Assessor has engaged a methodology that has ignored the claimant’s pre-accident treating medical evidence and has also come to a speculative conclusion in relation to the causes of the claimant’s post-accident dental and TMJ complaints and need for treatment without any, or any adequate, reference to and consideration of the claimant’s pre- and post-accident clinical material, which is a path that is strictly forbidden.
The claimant says that based on the above, it is submitted that the Medical Assessor’s findings on the issues of causation, impairment and treatment in relation to the claimant’s dental and TMJ injuries are demonstrably materially erroneous, and as such, their respective findings on the claimant’s need for post-accident dental and Botox and related TMJ and dental treatments have been poisoned by those materially erroneous causation findings and must be properly reviewed and re-assessed.
The claimant draws the attention of the Panel that the test of causation – cls 6.6 and 6.7 of the Guidelines.
The claimant says that in addition to the Medical Assessor’s failure to refer to and/or correctly diagnose the claimant’s demonstrable pre and post symptomatic medical history in relation to her post-accident TMJ and dental complaints and to dismiss the claimant’s qualified treating dental surgeon’s findings and to substitute his own ‘speculative’ findings, it is submitted that he has additionally fallen into error by failing to refer to and apply the ‘material contribution’ test in relation to causation and has failed to apply this to the very history relied upon by him and provided by the claimant which satisfies the above test of causation.
On the issue of materiality, it is submitted by the claimant that if the above material errors were remedied by the claimant undergoing a medical assessment in the forum of a Review Panel according to law, her impairments would be assessed at greater than 10%.
It is thus submitted that the claimant has discharged her evidentiary onus with regard to demonstrating that the subject medical assessment is incorrect in a, or many, material respects.
The claimant says that as a result of the motor vehicle accident, she has sustained the following injuries:
(a)   Cervical spine – musculo-ligamentous sprain/ strain with intervertebral disc
involvement. Right and left C6/7 radiation down both arms.
(b)   Thoracic spine – musculo-ligamentous sprain/ strain with intervertebral disc
involvement.
(c)   Lumbar spine - musculo-ligamentous sprain/ strain with L4/5 intervertebral disco
involvement. Desiccation at the L3-4 and L4-5 levels. Broad-based posterior disc
protrusion. Facet joint effusions.
(d)   Left shoulder - rotator cuff injury/ post-traumatic symptoms in the left shoulder
joint cause by contusion of the articular surfaces and spraining of the supporting
capsular and ligamentous structures/ subacromial/ subdeltoid bursitis with the
bursal bunching on the shoulder abduction.
(e)   Left elbow – soft tissue injury.
(f)    Left wrist – post-traumatic symptoms in the left wrist joints caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures.
(g)   Right shoulder – rotator cuff injury/ post-traumatic symptoms in the right shoulder joint cause by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures/ subacromial/ subdeltoid bursitis with the bursal bunching on the shoulder abduction.
(h)   Right wrist - post-traumatic symptoms in the right wrist joints caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures.
(i)    Pelvis – right and left anterior superior iliac spine sprain syndrome.
(j)    Right knee – patella-femoral pain syndrome, soft tissue injury.
(k)   Left knee – soft tissue injury.
(l)    Jaw/ dental – left TMJ arthralgia, masticator myalgia, masticator hypertrophy secondary to masticator hyperactivity, bilateral TMJ internal derangement/ anterior disc displacement with reduction.
(m)     Psychological injury – post-traumatic stress disorder, depression, and anxiety.

Regarding paragraph (l) above, the Panel notes that this was not part of the area of review and had been dealt with in a separate certificate dated 10 February 2023 by Medical Assessor Nicholls and will form part of a combined certificate. The Panel is though, concerned with the question of whether certain treatment is reasonable and necessary to the claimant’s jaw.
Regarding paragraph (m) above, this is not for the Panel to determine.

Insurer’s submissions

The insurer noted that numerous disputes were referred to the Medical Assessor for assessment, including:
(a) whole person impairment (APP-M10469695/21), and
(b) whether treatment is reasonable and necessary and related to the subject accident:
(i)the splint therapy to correct the TMJ disorder
(APP10387767), and
(ii)Botox injections to the masticatory muscles (APP10387767).
The insurer noted that the Medical Assessor determined that physical injuries caused by the accident gave rise to 4% WPI comprising 2% at the right shoulder and 2% at the left shoulder.
The insurer says that the Medical Assessor concluded that the claimant’s complaints of clenching and facial pain for which the treatment was proposed was not causally related to the accident. As the treatment was not related to the subject accident, it was not reasonable and necessary.
The insurer opposes the claimant’s application for review.
Regarding the cervical spine assessment, the insurer noted that the Medical Assessor diagnosed soft tissue injury to the cervical spine and assessed 0% WPI given assessment of Diagnosis Related Estimate (DRE) category I. The insurer says that the Medical Assessor expressly identified symmetrical spinal motion and found there was no muscle spasm or muscle guarding. He also found there was no radiculopathy or signs of non-verifiable radicular complaints.
The insurer says that based on these findings, it was appropriate for the Medical Assessor to determine that DRE category I was the best fit with his findings during examination.
The insurer submits that the claimant’s submissions suggest that the Medical Assessor failed to properly assess the claimant’s alleged injury to her cervical spine. The insurer says that the claimant appears to argue that the Medical Assessor should have assessed DRE category II because at page 7 of his certificate, he recorded, “There is pain radiating from the base of the neck to the top of both shoulders. This causes her some difficulty with arm elevation”.
The insurer noted that the claimant also argued that the Medical Assessor’s findings contradict the claimant’s complaints of ongoing neck and lower back pain with “consistent reports of pain radiating into both upper limbs and both lower limbs since the accident for which she has demonstrably been treated for, as demonstrated throughout her treatment records”. The insurer noted that the claimant lists various treatment material and reports which note complaints of neck pain.
The insurer says that the claimant attempts to submit that these reports and records note neck symptoms including radiating pain. She argues that it was therefore appropriate for the Medical Assessor to assess DRE category II instead of DRE category I. The insurer says that this is completely inconsistent with cl 6.21 of the Motor Accident Guidelines (the Guidelines) that required the Medical Assessor to assess WPI on the day of his examination.
The insurer says that there was no failure to consider the material listed in the claimant’s submissions. The insurer says that the Medical Assessor expressly noted the material at pages 10, 11 and 12 of his certificate.
With regard to the Medical Assessor’s reasons for concluding 0% WPI, the insurer noted page 8 of his certificate where the Medical Assessor stated:
(a) examination reveals normal spinal curvature without muscle spasm. Cervical spine flexion and extension are performed to full range. Right and left rotation are performed to fix [sic] sixths normal range on each side. Active cervical spine lateral flexion is performed to three quarters normal range on each side. There is no dysmetria or evidence of muscle guarding. Spurling’s test is negative. Neurological examination of the upper extremities reveals normal upper limb power in all muscle groups. There is no muscle wasting. There is normal sensibility throughout. The deep tendon reflexes are symmetrically preserved.
The insurer submits that this is supported by further comments on page 13 detailing the normal results and reasons for assessing DRE category I;
(a) the clinical presentation is consistent with a DRE Cervico-thoracic category I impairment rating. There are complaints of intermittent neck 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.
The insurer says that the claimant states that the Medical Assessor “failed to refer to and/or correctly diagnose the claimant’s demonstrable pre and post symptomatic medical history in relation to her post accident TMJ and dental complaints and to dismiss the claimant’s qualified treating dental surgeon’s findings and to substitute their own ‘speculative findings’, it is submitted that they had additionally fallen into error by failing to refer to and apply the ‘material contribution’ test in relation to causation set out above and has failed to apply same to the very history relied upon them provided by the claimant which satisfies the above test of causation”. In response, the insurer says that the alleged error is incomprehensible.
The insurer says that the Medical Assessor determined the complaints of clenching and facial pain were not causally related to the subject accident. The insurer says that in coming to this conclusion, the Medical Assessor specifically referenced the claimant’s oral surgeon, Dr Kim at page 15 of his certificate. The insurer says that whilst Dr Kim reported symptoms of TMJ dysfunction, there was no indication that the symptoms related to the accident.
Regarding the claimant’s dental injuries, the insurer relies on the initial certificates of fitness dated 19 February 2019 and 25 February 2019 signed by the claimant's general practitioner (GP) Dr Antwan Barich. The insurer says that Dr Barich failed to report a dental injury causally related to the accident which would give rise to such a treatment request. Dr Barich diagnosed the claimant with "neck pain and stiffness, back pain, sternum tenderness?Bony injury, abdominal pain, insomnia, nightmares, anxiety attacks”.
The insurer relies on a further certificate of fitness dated 23 March 2021 signed by Dr Barich. The insurer submits that Dr Barich did not report a dental injury causally related to the accident and as such give rise to such a treatment request. The insurer says that Dr Barich diagnosed the applicant with "neck pain and stiffness, back pain, sternum tenderness? bony Injury, abdominal pain, PTSD, Adjustment disorder with depressed mood”.
The insurer submits that the claimant did not report symptoms of "teeth grinding” and pain in jaw until 15 May 2020, 15 months post-accident, further evidencing the request for wisdom teeth extraction is not directly related to the injuries arising out of the accident.
The insurer relies on a report by Greenlight Rehabilitation dated 20 May 2020. The claimant’s rehabilitation providers stated:
"Pain in jaw upon awakening every morning that gets better throughout the day and worse again at night - her husband advised that Ms Deeb grinds her teeth relentlessly while sleeping on most nights.”
The insurer refers to a report from TMJ Clinic dated 28 August 2020. The following was said:
“Siham's main issues are bilateral jaw pain. Siham was involved in a motor vehicle accident in 2019 where she was in a stationary car that was hit from behind thus moving forward into another stationary car in front. No fractures were identified, However Siham believes she suffered from whiplash injury to her neck. Since the accident Siham has been clenching during the day and experiencing tension in both jaws. Siham also noted clicking of the TMJ bilaterally. Siham suffers from bilateral temporal headaches. Siham’s other musculoskeletal injuries involves her neck, shoulder and back. Siham also has radiating numbness down her left arm. Siham sees an osteopath weekly for her neck, shoulder and back injuries.”
Regarding the splint therapy and botox therapy, the claimant relies upon a report by treating oral and maxillofacial surgeon Dr Kim, dated 28 August 2020. Dr Kim stated the following;
“Siham's main issues are bilateral jaw pain. Slham was involved in a motor vehicle accident in 2019 where she was in a stationary car that was hit from behind thus moving forward into another stationary car in front No fractures were identified.
However, Siham believes she suffered from whiplash injury to her neck. Since the accident Siham has been clenching during the day and experiencing tension in both jaws. Siham also noted clicking of the TMJ bilaterally. Siham suffers from bilateral temporal headaches. Siham's other musculoskeletal injuries involves hernneck, shoulder and back. Siham also has radiating numbness down her left arm.nSiham sees an osteopath weekly for her neck, shoulder and back injuries.”
The insurer further submits that the claimant had wisdom teeth impaction and eruption which can cause symptoms of bruxism, TMJ disorders, pain and swelling in the jaw and gums. The insurer says that noting the wisdom teeth are likely erupting, then there is evidence to support that the request for splint therapy and Botox injections arise from the complications of the wisdom teeth which is not causally related to the accident.
The insurer submits that there is no research-based evidence to support that splint therapy and Botox therapy is effective in treating psychological injuries pursuant to cl 4.77(e) of the Guidelines.
The insurer relies upon the reports by treating psychiatrist Dr Naaz dated 3 June 2019,

18 February 2020, 8 April 2020, 14 September 2020 and 16 March 2021. Dr Naaz did not recommend splint therapy and Botox therapy to treat the claimant’s psychological injuries.
The insurer also relies upon the clinical notes of treating psychologist Mr Onuoha from Penrith Mall Medical Centre. Mr Onuoha did not recommend the splint therapy and Botox therapy to treat the claimant’s psychological injuries.

Bundles of documents

The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The Panel comments that there are nearly 2,500 pages of documentation, many copies in triplicate, many records and hospital notes having no relevance to the claim and predating the accident or for completely unrelated treatment. Many records forming the bundles are also illegible.

Medical evidence

Dr Barich notes 15 May 2020:
“Pt grinding teeth for a while post MVA put [sic] never thought related to anxiety talking to Dr Naaz suggested needed dental review under insurance.
22 September 2020 pt clinishing [sic – clenching] on teeth strongly affected dental condition need to have denture at night to prevent more injury the problem is wisdom tooth need to be removed advised.”
AHHR 21 February 2021 no reference to teeth/jaw. Same as at 5 May 2020, 2 June 2020,

23 June 2020, 21 July 2020, 21 August 2020, 15 September 2020, 23 October 2020, and

24 November 2020.
Dr Boesel report dated 30 June 2020. He said the pain occurs in the context of very severe mental health difficulties.
Dr Boesel report dated 30 June 2020 to Dr Barich;
“Siham has widespread pain:
Back pain
shoulder pain
neck pain. ',
radiating arm pain with sensory alteration In the C6 distribution .
radiating pain down both legs, particularly on the (R) with sensory alteration In the lateral foot
(R) knee pain and heaviness
intermittent anterior chest pain
dental grinding and oral pain.”
Dr Boesel report dated 20 October 2020. He said the MRI demonstrated dehydrated discs at L3/4 and L4/5 as well as a minor disc bulge at L45 with associated facet joint effusions - these are concordant with the reported mechanism of injury and represent post traumatic change (in particular the facet joint changes).
Report of Leroy Onueha dated 4 June 2019. Ms Deeb presents with a history of various physical and mental health complaints secondary to a motor vehicle accident, on 1 February 2019.
Dr Guirgis report dated 30 September 2021. He said the claimant had an injury to the cervical area of the spine in the form of musculo-ligamentous sprain/strain with possible intervertebral disc involvement. The claimant described right and left C6 radiation down her arms.
She had post-traumatic symptoms in the right shoulder joint caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structure. There was ultrasound scan evidence of suhacromial/subdeltoid bursitis with bursa/ bunching on shoulder abduction.
Dr Guirgis reported post-traumatic symptoms in the left shoulder joint caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structure. There was ultrasound scan evidence of suhacromial/subdeltoid bursitis with bursa/ hunching on shoulder abduction.
Post-traumatic symptoms in the right and left wrist joints caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures. There was post-traumatic symptoms and signs of right and left carpal tunnel syndrome.
The claimant also had an injury to the thoracic area of the spine in the form of musculo-ligamentous sprain/strain with possible intervertebral disc involvement.
He reported post-traumatic onset of symptoms and signs of right and left anterior superior iliac spine sprain syndrome and patello-femoral pain syndrome in her right knee probably caused by a direct hit of her knee against the dashboard.
Report of Dr Suman, psychiatrist, dated 29 November 2021. He said it was evident the claimant was experiencing classical symptoms of post-traumatic stress disorder.
Dr Naaz, consultant psychiatrist, in her report, dated 18 February 2020, has provided details of the claimant being involved in the road traffic accident and its effect on her mental health. She stated, “Today I would like to revise her diagnosis to post traumatic stress disorder, which clearly is in the context of the motor vehicle accident that she was involved in”.
Dr Naaz’s consultation notes refer to a subsequent motor vehicle accident in a consultation entry dated 13 July 2021 which says, “Was driving-had a mva a month ago-” , suggesting June 2021.
The claimant did not report this subsequent accident to Dr Gibson in her assessment on

7 December 2021. Dr Guirgis’s recent reports recommending further treatment did not also address this subsequent accident.
The claimant’s submissions make no reference to a subsequent accident.
Report of Dr Cassimatis, consultant psychiatrist, dated 21 May 2021, said the claimant presented with classical symptoms of post-traumatic stress disorder as a result of being involved in an accident in February 2019.
Dr Cassimatis provided a psychiatric impairment rating scale (PIRS) assessment as follows;

PIRS Category	Class	Reason for Decision
Self-Care and Personal Hygiene	3 Moderate impairment	Ms Deeb continues to struggle in terms of managing her personal hygiene secondary to low motivation & poor energy. She told me “I don’t care anymore. I have put on 20kg since 2019. I am not the same person anymore”. She told me that her partner and her family prompt her to attend to her personal hygiene. Ms Deeb told me that she has given up cooking. She told me “I rely on takeaways quite often”.
Social and Recreational activities	3 Moderate impairment	Ms Deeb told me that she does not leave her house. She does not interact with her friends anymore. She told me “I feel anxious and don’t want to interact with anyone apart from my parents and partner”.
Travel	3 Moderate impairment	Ms Deeb told me that she does not leave her place alone. She told me that her partner or parents have to accompany her even if she went to local shops. She told me that she has given up driving since 2019.
Social Functioning	3 Moderate impairment	Ms Deeb told me that she has lost contact with most of her friends. She told me that her relationship with her partner is quite strained.
Concentration, Persistence and Pace	4 Severe impairment	Ms Deeb struggled with her concentration from the very start. I had to repeat my questions and provide clarification even of some of the simple questions as she struggled with her concentration. She was exhausted by the end of interview. She told me that she does not take on tasks requiring sustained concentration or problem solving or organisation.
Adaptation	5 Totally impaired	Ms Deeb is unfit for any job considering her ongoing complex mental health stressors

Dr Dias provided a report of 7 March 2022. He diagnosed the claimant had symptoms and signs consistent with the following conditions:
(a)     Ms Deeb suffers from chronic discogenic cervical spine pain, stiffness and discomfort, secondary to an acute musculoligamentous strain with associated disc protrusions at C3-4 and C4-5 levels (Whiplash Associated Disorder Level II);
(b)     Ms Deeb suffers from chronic non-specific thoracic spine pain, stiffness and discomfort, secondary to an acute musculoligamentous strain;
(c)     Ms Deeb suffers from chronic discogenic lumbar spine pain, stiffness and discomfort, secondary to an acute musculoligamentous strain with an associated L4-5 disc protrusions, and associated chronic bilateral sacroiliac joint dysfunction;
(d)     Ms Deeb suffers from chronic sacrococcygeal joint pain and discomfort, secondary to an acute musculoligamentous strain;
(e)     Ms Deeb suffers from chronic right shoulder pain, stiffness and discomfort, with associated chronic subacromial bursitis, secondary to an acute rotator cuff tendon strain;
(f)      Ms Deeb suffers from chronic left shoulder pain, stiffness and discomfort with associated chronic subacromial bursitis, secondary to an acute rotator cuff tendon strain, and
(g)     Ms Deeb suffers from chronic bilateral temporomandibular joint dysfunction, secondary to chronic bruxism, as a consequence of her psychological injuries.
Dr Dias said that in his opinion there remained a direct causal relationship between the accident of 17 February 2019 and the claimant’s current conditions affecting her neck, thoracic spine, lumbar spine, sacrococcygeal spine, right and left shoulders, and bilateral temporomandibular joints. He said that the claimant did not have any documented significant pre-existing existing conditions affecting these regions prior to the subject accident, and based on the available evidence, was largely pain free and asymptomatic in all of these regions prior to the subject accident.
Dr Dias assessed WPI at 27%.
There is a report from Dr Gibson dated 7 December 2021. Dr Gibson provided a diagnosis of soft tissue injury to the chest, neck and lower back. She said that the extent of the claimant’s symptoms was difficult to assess in the context of her psychological condition. However, there was no compelling evidence to suggest there were any physical injuries beyond soft tissue. Therefore, based only on physical considerations, the claimant’s injuries had stabilised, and she should be fit to resume normal domestic and work life.
Dr Gibson said that she concurred with Dr Kam’s earlier opinion, as conservative measures and over the counter medication was appropriate treatment for the subject accident-related physical injuries.

Dr Gibson assessed 0% WPI.
The claimant provided a further supplementary report from Dr Dias by way of a commentary on the report of Dr Gibson. This is dated 7 March 2022. He said;
“In my opinion it is clear that Ms Deeb has suffered from ongoing debilitating symptomatology relating to her physical injuries since the date of the subject accident on 17^th February 2019, which has required constant medical attention, and ongoing treatment requirements over the course of the past 35 months. In my opinion Ms Deeb sustained physical injuries to her neck, chest wall, thoracic spine, lumbar spine and right and left shoulders. Her symptoms have persisted and evolved and have been associated with central sensitisation, over the course of the past three years. It should be noted that Ms Deeb was essentially pain free and asymptomatic in these regions, prior to the subject accident and did have a documented history of injuries in these regions.
… I disagree with Dr Gibson’s opinions, regarding Ms Deeb’s neck, thoracic spine, lumbar spine and shoulders as in my opinion Ms Deeb sustained injuries to these regions as a result of her involvement in the subject accident which remains symptomatic through to the present day.”
Report of Greenlight dated 16 November 2020. It was noted that the claimant had been attending all scheduled consultations with psychiatrist Dr Naaz and osteopath Ms Khalaf. The claimant reported that she had not been attending consistent sessions with psychologist, Mr Onouha due to the COVID-19 pandemic with changes between face-to-face appointments to telehealth appointments, with the needs to use a mask during face-to-face sessions that she has not been comfortable with.
She has attended at dentist. Dr Aziz on 26 June 2020 where she was referred to TMJ Clinic with Bankstown Oral Surgery. She attended a consultation with Dr Sirichai, TMJ specialist, on 28 August 2020 where she was recommended an occlusal splint and Botox, with a referral for an X-Ray. The TMJ Clinic advised that the request was declined by the insurer. The claimant had not attended to have an X-ray of her jaw undertaken to date and had been encouraged to do this to enable the TMJ specialist to gain a clearer perspective on her jaw. Having said this, Ms Deeb has been reporting a decrease in pain symptoms in her jaw upon awakening in the morning, with reports of ongoing tension in her jaw.
Some of the reports of Dr Sirichai are illegible.
Dr Roldan, neuropsychologist provided a very detailed report dated 28 May 2023. In his mental health summary, he noted several complaints and treatment of anxiety and panic disorders variously in 2010, 2011, 2012 and 2013.
Dr Roldan said;
“Aside from the unreliability of Ms Deeb's description of her medical/injury background history, her performance on an objective psychometric test designed to assess for potential symptom over-report, strongly points to the over-report of symptoms, including somatic ones. Furthermore, her performance on objective psychometric tests designed to assess for potential underperformance was consistently indicative of this.
In my opinion, the abovementioned state of affairs indicate that diagnoses and estimates of residual impairment, including physical diagnoses and estimates of residual physical impairment, heavily reliant on face value acceptance of Ms Deeb's symptom report and symptom attribution may be invalid/unreliable.”
There is a gap in pre-accident medical records that runs from 2016 to the date
of the accident in 2019.
Several reports have been obtained from Dr Kam, the claimant’s treating neurosurgeon. He made no mention of any complaint of any pain or symptoms to the claimant’s jaw.
A report of Dr Boesel noted widespread pain in the claimant’s neck, back, shoulder, radiating pain with a C6 sensory pattern, radiating pain down both legs, particularly on the right. There was also right knee pain and heaviness, intermittent anterior chest pain down to a grinding sensation and oral pain. It was discussed that the pain occurred in the context of severe mental health difficulties.
The Medical Assessor provided his certificate of 20 March 2023. He assessed WPI at 4% as follows;
Permanent Impairment Table

Body Part or System	AMA4 Guides/ 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	0%	0%	0%
2	Thoracic spine	AMA4, Chapter 3, Page 106	YES	0%	0%	0%
3	Lumbar spine	AMA4, Chapter 3, Page 102	YES	0%	0%	0%
4	Right shoulder	AMA4, Figures 38, 41 & 44, Pages 43, 44 & 45	YES	2%	0%	2%
5	Left shoulder	AMA4, Figures 38, 41 & 44, Pages 43, 44 & 45	YES	2%	0%	2%
TOTAL	4%

The claimant has been examined by Medical Assessor Moloney and also Medical Assessor Curtin. Their respective reports follow. Each Medical Assessor has examined the claimant for different physical areas.
A report of Medical Assessor Curtin follows;
“Medical history.
The history is largely unchanged. Ms Deeb was a front seat passenger in a car which was stationary when struck from behind by another vehicle on the 17/02/2019. The impact pushed her car into the vehicle in front. The vehicle, driven by her husband, was subsequently written off, so it would appear that the impact was substantial. Airbags were deployed. Ms Deeb did not have a clear recollection of the accident but said that she was bruised everywhere.. An ambulance attended but Ms Deeb declined to be transferred to Liverpool hospital with her husband.
Two days later she attended her GP, Dr Barich. His records of that date report only her request for a sleeping tablet for insomnia. Three days later she attended again with complaints of neck and chest pain following a motor vehicle accident. The GP records over the ensuing several months report complaints of similar symptoms, together with symptoms of headache and anxiety. There were no reports of any jaw symptoms, and when asked about this, Ms Deeb said that immediately following the accident she started to develop symptoms of repeated and frequent jaw clenching, which would wake her at night, and which could also occur during the day. These symptoms were associated with stiffness of jaw opening when she tried to eat. She was unable to say why these symptoms were not recorded by her GP.
Ms Deeb embarked on a prolonged rehabilitation program with physiotherapy which extended intermittently until the end of 2021. Her recovery was complicated by the development of severe PTSD symptoms with anxiety, panic episodes visual hallucinations and a range of unusual somatic experiences (MAC Assessor Barrett 31/07/2023). On the 03/06/2019 she had her initial consultation with her current psychiatrist, Dr Lubna Naaz, whom she has been seeing regularly ever since. In the 13/06/2019 she consulted Dr Andrew Kam, neurosurgeon, with regard to her symptoms of persistent neck, shoulder and arm pain, and a subsequent letter dated 22/08/2019 stated that she was “most likely suffering from a whiplash type injury following her accident six months ago”. He did not feel that any neurosurgical intervention was warranted.
In November 2019 she suffered a small spontaneous left pneumothorax which was treated conservatively at Blacktown Hospital. On the 30/06/2020 she was reviewed by A/Prof Tilman, Pain Management specialist who also noted her complaints of neck, shoulder and back pain, and he also mentioned her symptoms of “dental grinding and oral pain”.
On the 28/08/2020 she attended Dr Pearl Sirichai, Dentist, (TMJ Clinics) for an assessment of her bilateral jaw pain. Dr Sirichai’s letter of that date records her symptoms of jaw clenching, TM joint clicking and bilateral temporal headaches, in association with her other symptoms involving her neck, shoulder and back. The letter also records examination findings of bilateral TM joint clicking and mildly restricted jaw opening. A diagnosis was made of left TM joint arthralgia and bilateral TM joint internal derangement due to anterior desk displacement with spontaneous reduction.
Dr Sirichai suggested treatment with an occlusal splint and Botox injections to the masticatory muscles. Neither of these options were pursued.
Current symptoms
Ms Deeb was asked about previous dental treatment that she might have had prior to the accident. She was not able to say whether or not she had ever been to a dentist. She was certain however that until the accident had occurred, she had never experienced any problems with her jaw or with her teeth. She said that she still experiences jaw clenching which wakes her at night and that these symptoms will also occur during the day, particularly if she becomes anxious or is suddenly startled. She said that she was still aware of clicking in her TM joints from time to time and that she had difficulty opening her mouth widely. Because of this, she was unable to eat an apple or manage a steak, and found it easier to eat softer foods. She said that she preferred to eat takeaway food because it was soft, and that she avoided anything that was firm and required chewing. In addition to this she described intermittent episodes of sharp shooting pain affecting one or other side of the lower jaw, and that sometimes she has a sensation that her teeth are loose.
She continues to have symptoms of neck stiffness and headaches towards the back of her head and upper neck. She said that she continues to take a number of different medications prescribed by her psychiatrist, but was unable to say exactly what they were.
Findings on clinical examination.
Ms Deeb was a Caucasian lady of 26 years . She was of Lebanese extraction with a light olive complexion and dark hair. She was extremely overweight with a BMI of 38.2 (104 kg and 165 cm). She had a pleasant manner, but a flattened affect, and her responses were slow and hesitant. She clearly had difficulty remembering events in her medical history.
Examination of her mouth revealed an edge-to-edge anterior bite and probable Class III occlusion. Her maximal jaw opening was 33 mm (12 mm short of normal for this lady), with no evidence of jaw deviation and no evidence of TM joint crepitus or click. Masticatory muscles were not especially tender to palpation. She had a full dentition which appeared to be in good condition. None of the teeth appeared to be mobile or appeared to be a source of discomfort.
Neck movements appeared to be mildly restricted in all planes.
Results of any additional investigations since the original Medical Assessment Certificate
There have been no additional investigations.
Comments on TMJ causation
The relationship between whiplash and TMJ disorder/facial pain has been controversial and was the subject of a literature review in 2009¹ which examined the results of 32 studies on this subject. The controversy was not resolved.
In this case, the relationship of whiplash to TM joint disorder is further confused by a probable contribution from her psychiatric disorder which developed after the accident, and which has given rise to some odd somatic manifestations.
Comments on the treatments.
Both the splint therapy and Botox injections are reasonably necessary but it cannot be definitively said that the need for such treatment is caused by the motor accident. The claimant made no complaint about any TMJ disorder for 15 months after the accident.
References:
1. Fernandez C E et al. The relationship of whiplash injury and temporomandibular disorders: a narrative literature review. J Chiropr Med. 2009 Dec; 8(4): 171–186
A report of Medical Assessor Moloney follows;
Mrs Deeb attended the medical suites at PIC on 25 October 2023. She was unaccompanied.
Pre-accident history
Mrs Deeb stated that she had been in good health prior to the accident and is now married and lives with her husband at present with no children. She was unsure of a procedure on the left ankle when she was younger and can’t remember any incidents of neck pain in 2016. Prior to the accident, Mrs Deeb was working as a disability support worker on a full-time basis.
History of motor accident
Mrs Deeb was a front seat passenger in a car driven by her fiancé at that time. They were stationary and hit from the rear which caused their Ford Ranger to impact the car in front. She was wearing a seatbelt at the time and airbags were deployed. She was able to kick the passenger side door open and the ambulance and police attended the accident scene. Her parents came and collected her, but her fiancé had lost consciousness in the accident and was transferred Liverpool Hospital.
Subsequent history and treatment
Mrs Deeb consulted her GP the next day and stated that she had pain everywhere including the back, neck, abdomen, knees, hands. The GP organised scans of the chest, a bone scan and later an MRI. She was referred to physiotherapy and hydrotherapy and consulted an osteopath. She states that these treatments gave temporary relief.
Mrs Deeb was referred to Dr Kam, neurosurgeon but she has no recollection of this visit. She was also referred to Dr Boesal, pain specialist who organised a lumbar spine injection which gave no benefit and she continues to see the specialist. The last visit was 3 weeks prior to the assessment.
Current symptoms
There is persistent tightness in the neck which feels swollen with daily headaches in the occipital region which are a sharp pain. Pain radiates down the left arm with numbness in both hands which is constant but not present at the time of the interview. There was also numbness in the right hand which varies and wakes her occasionally. There is constant ache under each scapulae. There is an ongoing lower back pain particularly over the central lumbar spine which she states is very sensitive to touch. This pain increases with cold weather. The legs are asymptomatic.
Mrs Deeb has been unemployed since the accident and she briefly returned to work but could not continue due to increased pain. She does no cooking and states that her husband and her eat mainly canned food and takeaways. Her husband has also been unemployed since the accident. She does minimum easy cleaning but cannot mop or sweep the floor. At present they live in a townhouse. Mrs Deeb drives occasionally and walks only short distances. She states this was limited by pain and anxiety and she has been very stressed since the accident.
History of subsequent injury
There was a 2^nd car accident in June 2021. Mrs Deeb states that they were in a car park when another driver reversed into them with minimal damage. She stated no injuries were sustained and no treatment was needed.
Clinical examination
Mrs Diep walked into the room with a normal gait and stated that she is right-handed. The height was measured at 162 cm and weight 103 kg.
Cervical spine
On testing range of movement, flexion/extension was 80% of expected range and side bending and rotation were 50% of expected range bilaterally with no asymmetry. On palpation there was tenderness over both trapezius muscles more so on the left and the left sternocleidomastoid muscle. However, no guarding or spasm was noted in the cervical musculature.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power. No muscle wasting was apparent with the circumference of the upper arms 36 cm on the right and 35 cm on the left (10 cm above the olecranon process) and in the upper forearms 28 cm bilaterally. This is consistent with a right-handed person. On inspection of the hands, no muscle wasting was apparent that there was decreased sensation to light touch over all fingers but not the thumb. There was also decree sensation in the left upper outer arm in the right lateral forearm which were not in a dermatomal pattern.
Shoulders
On inspection of the shoulders, no muscle wasting was apparent and there was generalised tenderness over the entire shoulder region bilaterally. With passive movement, there was resistant 100° abduction due to pain behind the scapular bilaterally. No crepitus was noted in the shoulder joints on passive movement. Active movements are measured using a goniometer and repeated 3 times. There was no referral of pain from the cervical spine to the shoulders on testing. Impingement tests were negative. I discussed with Mrs Deeb her shoulder range of movement was significantly better when tested by Assessor Home in March this year. She was unable to explain why there was a recent deterioration in range of movement. I explained to her that due to this inconsistency in range of movement ,at the time of my examination and in comparison to previous medical assessments , it could not be able to be used to assess the shoulder impairment and she states that she understood this. I also stated that an alternative method would have to be used.
The most appropriate analogy for both shoulders is to use the AC joint , table 18 is 15 % WPI and then table 19 mild joint impairment which is 10 % of joint = 1.5 % WPI rounded up to 2 % WPI

Shoulder Movements
Active ROM Measured

RIGHT
Active ROM Measured
LEFT

Flexion 80°/90°/70° 80°/100°

Extension 30° 20°

Adduction 20° 20°

Abduction 90°/80° 90°/100°

Internal Rotation 80° 30°

External Rotation 80° 30°

Elbows and wrists
There was a full pain free range of movement of the wrist and elbows.
Lumbar spine
Mrs Deeb walked with a normal gait but had difficulty standing on heels and toes. Squatting was also difficult due to poor balance. On testing range of movement flexion/extension was 50% of expected range and side bending was 60% of expected range bilaterally with no asymmetry. Straight leg raise when lying was 80° bilaterally with negative sciatic nerve root tension signs. On palpation there was marked tenderness over the lumbosacral spine but no guarding or spasm was noted in the lumbar musculature.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the lower thighs 56 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 46 cm bilaterally.
Knees
There was a full pain free range of movement of both knees with no crepitus and no ligament laxity.
Thoracic spine
On inspection of the spine there was normal contour and on palpation there was slight tenderness over all the thoracic spines. On testing range of movement, flexion/extension, side bending and rotation were all 80% of expected range with no asymmetry. No guarding or spasm was noted in the thoracic musculature and there were no signs of radiculopathy or non-verifiable radicular complaints.
Current treatment
Mrs Deeb consults her GP on a regular basis and has an appointment with the pain specialist in December. No manual therapy is being undertaken at present. Present medication is Norflex 100 mg One-A-Day which are pain specialist started recently, Panadeine Forte to a day, Panadol for ibuprofen, Valdoxin, duloxetine, aripiprazole and Inderal.

Body part or system	AMA4 Guides/Guidelines References (chapter/page/table	Permanent (yes/no)	Current % WPI	% WPI from pre-existing OR subsequent causes	% WPI due to motor accident
6	Right shoulder	AMA4 table 18 ,19	yes	2%	0 %	2%
7	Left shoulder	AMA4 table 18, 19	yes	2 %	0 %	2 %
9	Lumbar spine	AMA4 table 72	Yes	0 %	0%	0 %
10	Thoracic spine	AMA4 table 74	Yes	0 %	0%	0%
11	Cervical spine	AMA4 table 73	Yes	0 %	0 %	0%

The Panel adopts the reports of Medical Assessor Moloney and Medical Assessor Curtin.

Causation

The Guidelines

The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides). It is in the same terms as Clause 6.6 of the Guidelines.

The authorities

In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5-6.7 of the Motor Accident Guidelines, being clauses 1.7-1.9 of the Permanent Impairment Guidelines.
Campbell J in Owen v Motor Accidents Authority (NSW),[4] adopted Justice Johnson's approach with a caution touching upon the CLA:
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2)) of the Civil Liability Act (the CLA)."[5]
[4] [2012] 61 MVR 245; [2012] NSWSC 650.
[5] At [27].
As said by Justice Campbell in Owen, s 5D of the Civil Liability Act 2002 (CLA) also needs to be considered when assessing causation.

103.Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."

There are two elements to address when assessing causation under s 5D(1):
"factual causation";[6] and
"scope of liability".[7]
[6] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[7] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing "factual causation" and "scope of liability" involves making value judgments.[8]
[8] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes”..
In the accident involving the claimant, her car was collided into from behind. It was sudden, and with some degree of force which would have thrown her neck and head in a whiplash action.
The discussion in Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804 concerning the correct principles to apply relating to causation is instructive and are set out below:
“[38] The second defendant’s task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW(2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox(2014) 67 MVR 150; [2014] NSWSC 888 (‘Bugat’); AAI Ltd t/as GIO v McGiffen(2016) 77 MVR 348; [2016] NSWCA 229 (‘McGiffen’). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Associate Justice Harrison cited the decision in Bugat with approval in Briggs. Her Honour said at [64]-[65]:
[64] In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
‘[31] One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders’.
[32] While I accept that, as an administrative decision-maker, the panel’s reasons should not be subjected to ‘minute and detailed textual criticism in the hope of finding something on which to base an argument’ [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.’
[65] In McGiffen, the Court of Appeal held at [64] – [65]:
‘[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason, the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error’.”
[40] The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372, Wright J, regarding causation and the issues to be addressed, said;
“67 The second ground of review concerned the second review panel’s approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.
68 As to whether the motor vehicle accident trauma was a cause of a “left posterolateral annular tear” with “mild disc desiccation” shown on Mr Brigg’s MRI test results, the second review panel concluded that causation had not been established because:
(1) ‘[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period’, and Mr Briggs only had post-accident MRI results;
(2) ‘a delamination may not fall within the definition of a tear’; and
(3) ‘the defect may not be the source of his pain and disability’.
69 The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg’s pain and disability, causation had not been established.
70 This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
138 Whether’ the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.’’
71 The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes[1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72 Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73 The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74 The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg’s relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg’s L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:
‘the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma.’
75 This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for “all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain”, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76 In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77 In light of all that material and in accordance with clauses 6.6 and 6.7 of the Guidelines, the panel should then have made “a non-medical informed judgment” as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
The claimant was involved in a collision involving force. She was a passenger in a Ford Ranger car which is large by comparison to most sedans. There was an initial rear impact and again, another impact when the claimant’s car was pushed into the car in front. Air bags were deployed and one of the doors to the car had to be wedged open. It is understood by the Panel that the car in which the claimant was travelling was written off for insurance purposes.
The Panel must consider, in the case of the claimant’s TMJ complaints, whether the disability is causally related when there was little or no complaint about this area of disability for 15 months post-accident and there is controversy regarding the relationship between whiplash and TMJ disorder/facial pain. Medical Assessor Nichols said that the claimant’s dental condition which he was assessing, “was caused by a long history of clenching on a locked occlusion (malocclusion) that caused trauma to her TMJ’s”.
Medical Assessor Nichols also said:
“I have determined that the listed dental injuries were not caused by the MVA. There is no scientific evidence in the literature proving bruxing (grinding of the teeth) can be caused by PTSD, depression or any other type of psychological condition. There were no pre MVA dental records to help determine if she was a bruxer before the MVA (likely).”
Dr Gibson, in her jointly obtained report, did not comment on or identify any jaw/dental pain.
Medical Assessor Home considered a WPI assessment of the claimant’s physical injuries to her;
(a)   Left knee: soft tissue injury.
(b)   Right knee: patellofemoral pain syndrome, soft tissue injury.
(c)   Pelvis: right and left anterior superior iliac sprain syndrome.
(d)   Right wrist: post-traumatic symptoms in the right wrist joints caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures.
(e)   Left wrist: post-traumatic symptoms in the right wrist joints caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures.
(f)    Right shoulder: rotator cuff injury/post-traumatic symptoms in right shoulder caused by caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures/subacromial/subdeltoid bursitis with burs.
(g)   Left shoulder: rotator cuff injury/post-traumatic symptoms in right shoulder caused by caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures/subacromial/subdeltoid bursitis.
(h)   Left elbow: soft tissue injury.
(i)    Lumbar spine: musculoligamentous sprain/strain with L4/5 intervertebral disc involvement.
(j)    Desiccation at L3/4 and L4/5 levels. Broad based posterior disc protrusion. Facet joint effusions.
(k)   Thoracic spine: musculoligamentous sprain/strain with L4/5 intervertebral disc involvement.
(l)    Cervical spine: musculoligamentous sprain/strain with L4/5 intervertebral disc involvement.
(m)     Right and left C6/7 radiation down both arms.
He found that these physical injuries were causally related to the accident.
The Medical Assessor also considered whether the following was causally related to the accident and if so, whether certain treatment was reasonable and necessary;
(a)   whether Botox injections to the masticatory muscles is caused by the motor accident for the purposes of the Act;
(b)   whether splint therapy to correct the temporomandibular joint disorder is caused by the motor accident for the purpose of the Act;
(c)   whether splint therapy to correct the temporomandibular joint disorder is reasonable and necessary for the purpose of the Act, and
(d)   whether Botox injections to the masticatory muscles is reasonable and necessary for the purposes of the Act.
The Medical Assessor did not find that the claimant’s complaints of clenching and facial pain for which treatment had been recommended was causally related to the accident. Having reached this conclusion, he did not need to decide the question of whether the treatment was reasonable and necessary.
The Panel must ask itself whether the accident contributed to the claimant’s physical injuries as referred to it by the Commission, and whether the treatment sought is reasonable and necessary and if it arises because of contribution by the accident. Following on from this, the Panel must decide whether the accident materially contributed to those injuries and need for treatment.
There are no pre-accident dental records which assist the Panel. The claimant said that her TMJ symptoms arose only after the accident and yet she made no complaint or sought no treatment until 15 months post-accident. This gap in time cannot be explained by the claimant.
The Panel cannot be satisfied that any need for treatment claimed by the claimant arises because of the accident.

Conclusion

As a result of the accident on 17 February 2019 the Panel finds that the claimant suffered the following injuries;
(a)   cervical spine;
(b)   left and right shoulders;
(c)   left and right elbows and wrists;
(d)   lumbar spine;
(e)   left and right knees, and
(f)    thoracic spine.
The injuries to the claimant’s left and right knees, left and right wrists, left and right elbows have resolved.
The claimant has a WPI of 4%.
The Panel is not satisfied that on the balance of probabilities, the motor accident caused injury to the claimant’s TMJ such that she needs Botox injections and splint therapy.

Determination

The certificate of Medical Assessor Home is affirmed.
As a result of the accident on 17 February 2019 the claimant suffered the following injuries;
(a)   cervical spine;
(b)   left and right shoulders;
(c)   left and right elbows and wrists;
(d)   lumbar spine;
(e)   left and right knees, and
(f)    thoracic spine.
The claimant has a WPI of 4%.
The Panel is not satisfied that on the balance of probabilities, the motor accident caused injury to the claimant’s TMJ such that she needs Botox injections and splint therapy.

Clause 6.6 provides:
“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:

(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“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.”

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	80°/90°/70°	80°/100°
Extension	30°	20°
Adduction	20°	20°
Abduction	90°/80°	90°/100°
Internal Rotation	80°	30°
External Rotation	80°	30°

[2024] NSWPICMP 71

13 February 2024