Djukic v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Djukic v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 213
CLAIMANT:	Ljubica Djukic
INSURER:	IAG Limited trading as NRMA Insurance
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Sophia Lahz
MEDICAL ASSESSOR:	Ian Cameron
DATE OF DECISION:	8 April 2024
CATCHWORDS:	MOTOR ACCIDENTS – Review application of claimant of certificate and reasons of Medical Assessor (MA) Shahzad of 25 June 2023 who found a 10% whole person impairment (WPI) assessment for the cervical spine at 4% and lumbar spine at 4% and left shoulder at 2%; claimant injured in an accident on 24 February 2019 when driver of car in which claimant was a passenger lost control and collided with a tree however there was limited damage to the car; insurer submitted that the claimant had been involved in other accidents and described similar symptomatology and pain behaviours; claimant demonstrated inconsistent results on examination and Panel concerned about complaints of pain disproportionate to the nature of injury examined; Panel observed different results on day of examination to medical assessor; Held – Panel revoked certificate of MA Shahzad and found assessment of 2% WPI.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the certificate of Medical Assessor Shahzad dated 25 June 2023. 2. The Panel assesses the following whole person impairment: (a) cervical spine 0%; (b) lumbar spine 0%, and (c) left shoulder 2%. 3. The claimant’s total whole person impairment arising out of the accident on 24 February 2019 is 2%.

STATEMENT OF REASONS

INTRODUCTION

This is an application by the claimant for a review of the decision of Medical Assessor Shahzad (the Medical Assessor) dated 25 June 2023.
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
(a)    cervical spine - soft tissue injury;
(b)    lumbar spine - soft tissue injury, and
(c)    left shoulder - full-thickness tear of the supraspinatus, subscapularis and posterior glenoid labrum.
The Medical Assessor assessed the following whole person impairment (WPI):
(a)    cervical spine 4% (5% less 1% for a pre-existing condition);
(b)    lumbar spine 4% (5% less 1% for a pre-existing condition), and
(c)    left shoulder 2%.
The total WPI was 10%.
The claimant has sought a review of the certificate of the Medical Assessor.

The accident

The accident occurred on 24 February 2019. The claimant was a front seat passenger in a car travelling at a speed of less than 60kmph. The driver of the car was blinded by headlights of an oncoming vehicle and lost control of his car, colliding with a tree. The claimant cannot recall if airbags were deployed. The police attended the accident. The claimant was able to walk home from the accident scene, which was only a short distance away.

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 claimant’s submissions

The claimant submits that the assessment of Medical Assessor Shahzad is incorrect in the following material respect:
(a)   the report contains no analysis of any of the medical reports provided to the Medical Assessor;
(b)   the report contains no clinical examination findings in relation to the claimant's lumbar spine, and
(c)   the report provides no analysis/reasoning as to the basis for a deduction of pre-existing WPI with respect to the cervical and lumbar spine, noting cl 6.31 of the Motor Accident Guidelines to the Evaluation of Permanent Impairment, 4^th edition (the Guidelines).
The claimant has referred in her submissions to cl 6.31 of the Guidelines which provides:
"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 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." (claimant’s emphasis)
The claimant said that Medical Assessor Shahzad made reference to the following: "There is extensive documentation of pre-existing symptomatology and degenerative pathology, and she is currently in receipt of the disability pension". The claimant says that this is not a sufficient basis to deduct 10% from the impairment of the cervical and lumbar spine.
The claimant says that the medical evidence before the Medical Assessor was of 0% WPI prior to the subject accident both in respect of the cervical and lumbar spine. The claimant says that Medical Assessor Shahzad did not take any history from the claimant that she was symptomatic in the neck and back immediately prior to the subject accident.
The claimant noted that the Medical Assessor’s report contained a verbatim finding on clinical examination of the cervical spine and of the left shoulder as provided by Dr Home in his report of 14 October 2021.
Further, the claimant says that the assessment of permanent impairment found at pages 6-8 of the Medical Assessor’s report is again a "verbatim" transcription of Dr Home's assessment found at pages 8 and 9 of his report of 14 October 2021. The only exception in that regard is a 1/10^th pre existing deduction being applied.
The claimant submits that without the deduction for pre-existing WPI, the claimant would have exceeded the 10% WPI threshold. The claimant submits the Medical Assessor’s errors materially impact whether the claimant overcomes the 10% WPI threshold.
In conclusion, the claimant submits that the failure by the Medical Assessor to comment on the medical records before him, the failure to provide clinical examination findings in relation to the lumbar spine, the failure to properly address cl 6.31 of the Guidelines with respect to pre existing symptomatic permanent impairment, the failure to consider the medical records submitted by the parties, and the verbatim use of Dr Home's report as his own report analysis, warrants a review of the certificate of the Medical Assessor.

The insurer’s submissions

The insurer referred to a prior motor vehicle accident assessment of the claimant. The insurer says that the claimant was assessed in regard to her prior motor vehicle accident on 24 January 2014.
The insurer noted that on 2 December 2014, Dr Maxwell, orthopaedic surgeon, assessed the claimant on behalf of the insurer. The claimant was assessed with 0%WPI. She was reported by Dr Maxwell as having a symmetrical range of movement in her cervical and lumbar spine and full ranges of movement in both shoulders.
The insurer referred to the certificate of the Medical Assessor who noted that before the accident assessment, the claimant was assessed in regard to her prior motor vehicle accident on 24 January 2014. The insurer said that on 26 October 2014, Medical Assessor Crocker, diagnosed the claimant with acute musculoligamentous strain injury and aggravation of degenerative changes of the cervical spine; acute musculoligamentous strain injury and aggravation of degenerative changes of the lumbar spine; aggravation of degenerative changes of the right shoulder girdle and possible soft tissue injury to the right upper limb (elbow-hand) resolved. He assessed the claimant with a 5% WPI of the cervicothoracic spine, 0% WPI for the lumbar spine and 2% WPI of the right upper extremity. This gave a total of 7% WPI.
The insurer referred to a Review Panel Certificate of Medical Assessors Assem, Moloney, and Crane. That Review Panel found that the claimant sustained injuries to her cervical spine, back, and right upper extremity. That Review Panel also assessed the claimant with 2% WPI for her soft tissue injuries to her cervical spine, back, and right upper extremity.
The insurer referred to the claimant also injuring the right side of her body which occurred on 5 August 2017.
The insurer specifically addressed the claimant’s submissions of 5 September 2023.

Ground 1 - The report contains no analysis of any of the medical reports provided to the Medical Assessor

The insurer submits that there was no obligation on the Medical Assessor to analyse, discuss and comment on every medical report provided. The insurer says that the Medical Assessor is tasked with conducting his own physical examination of the claimant and making an assessment in accordance with his own assessment of WPI from his examination of the claimant. To this extent, the insurer submits that the assessments as to WPI undertaken by other doctors are of no relevance, particularly as these examinations were conducted at a different point in time. The insurer submits that the Medical Assessor has not fallen into error.

Ground 2- The report contains no clinical examination findings in relation to the claimant’s lumbar spine

The insurer says that the Medical Assessor assessed the claimant’s lumbar spine and discusses this in his Certificate under “Lumbosacral spine” [page 7]. There, the insurer says, the Medical Assessor stated:
“The clinical presentation is consistent with a DRE Lumbosacral Category 2 impairment
rating. There is spinal dysmetria. The presentation does not meet the criteria for radiculopathy set out in Section 6.138 of the SIRA Guidelines [sic].
A 5% whole-person impairment rating arises in accordance with the methodology set
out in AMA 4, Chapter 3, page 102. 1/10^th pre-existing deduction is applied.”
The insurer submits that the Medical Assessor has also addressed the lumbar spine in his assessment of permanent impairment table at page 8. The insurer says that the Medical Assessor has examined the claimant’s lumbar spine and discusses his findings in respect to same as above. The insurer says that there is no evidence of error.

Ground 3 - The report provides no analysis/reasoning as to the basis for a deduction of pre-existing WPI with respect to the cervical and lumbar spine, noting clause 6.31 of the Guidelines

The insurer submits that the Medical Assessor has addressed how and why he applied a conservative deduction of 1/10^th for both the cervical and lumbar spine. The insurer says that the Medical Assessor makes clear that the claimant’s presentation was inconsistent. He said at section 9 with regard to comments on Consistency [page 5]:
“The physical picture is now complicated by pain behaviour. There was inconsistency of presentation with variable movements noted with superficial tenderness over the cervical spine, lumbar spine, left shoulder, left hip and left knee without any guarding or rigidity noted.”
The insurer said that the Medical Assessor went on to state [page 5]:
“On today’s assessment, there is complicated pain behaviour with chronic pain symptoms and it is difficult to establish a substantial structural injury. There is a psychological overlay in regard to objective physical examination. There is a significant substantial non-organic overlay. I find that the claimant has probably sustained soft tissue injuries, but these should have resolved by now.”
The insurer submits that the Medical Assessor also commented [page 6]:
“The physical picture is now complicated by pain behaviour. The pain was reported in several areas of the body persisting for more than 2 years after. There was evidence of chronic symptoms prior to the injury, involving multiple areas of the body. She reports widespread and constant pain symptoms reflecting a likely psychogenic pain disorder which is confounding her current presentation of physical disability. There is extensive documentation of pre-existing symptomatology and degenerative pathology, and she is currently in receipt of the Disability Pension.”
The insurer submits that the Medical Assessor also addressed the claimant’s previous radiology and considered this where he states [page 5, last paragraph]:
“MRI scans of the cervical and lumbar spines demonstrated widespread cervical and
lumbar spondylosis. There was no evidence of left-sided nerve root compression.”
The insurer submits that the Guidelines make it clear that where there are issues around consistency this impacts the way the Medical Assessor should address assessment of permanent impairment. The insurer referred to the Guidelines which state:
“Consistency
6.40 The Medical Assessor must use the entire gamut of clinical skill and judgment 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”.
The insurer says that the Medical Assessor has assessed both the cervical and lumbar spine. In this regard the insurer refers to the Medical Assessor’s comments regarding the lumbar spine and also when he assessed the claimant’s cervical spine as follows [page 7]:
“The clinical presentation is consistent with a DRE Cervico-Thoracic Category 2 impairment rating. There are complaints of neck pain. There is asymmetrical spinal motion. The presentation does not meet the criteria for radiculopathy set out in Section 6.138 of the SIRA Guidelines.
A 5% whole-person impairment rating arises in accordance with the methodology set out in AMA 4, Chapter 3, page 104.
1/10th pre-existing deduction is applied.”
The insurer says that when the Medical Assessor’s comments are read as a whole, he is clearly making a deduction for both the cervical and lumbar spine consistent with his obligations under cl 6.40 of the Guidelines to account for the claimant’s pre-existing degenerative changes noted on radiology.
The insurer submits that the Medical Assessor has applied a very conservative deduction for pre-existing impairment and his explanation for this is explained on the basis of the claimant’s inconsistency on presentation.
The insurer highlights the photographs of the car in which the claimant was travelling at the time of the accident. The insurer says that the damage shown is consistent with a minor motor vehicle accident primarily to the front passenger side. The insurer annexed two photographs of the damaged car as follows;
[IMAGES UNABLE TO RENDER]
The Panel is not aware that the authenticity of these photographs has been challenged.
The insurer submits that the Medical Assessor has not erred and that the review application should be dismissed.
The insurer submits that the claimant has been involved in previous motor vehicle accidents and described similar symptomology and pain behaviours.
The insurer submits there is no evidence of new pathology following the subject accident.
The insurer submits the mechanism of accident could not and did not cause any new pathology.
The insurer submits that the treating medical evidence and the joint medical report of

Dr Machart, confirms that the claimant’s physical injuries will not result in an assessment of permanent impairment in excess of 10% WPI.
In particular, the insurer submits that the pre-accident and post-accident treating records evidence chronic pain and significant pain behaviours compounded with psychiatric comorbidities.
Regarding the alleged left shoulder injury, the insurer submitted that Dr Machart and

Dr Home, as well as the pre-accident Medical Service Assessments, described the claimant’s condition as consistent with significant pain behaviours which rendered the claimant’s examination to be unreliable. The insurer submits that with adjustment, both

Dr Machart and Dr Home found 1-2% WPI with respect to the claimant’s left shoulder.
Going to the cervical and lumbar spine injuries, the insurer relies on Dr Machart’s opinion that the cervical and lumbar injuries had resolved and that the claimant’s current presentation with respect to these injuries, instead related to the claimant’s pre-existing pathology and symptomology particularly given the nature and mechanism of the subject accident. Therefore, the insurer submitted that there was no additional impairment from the injuries to the cervical and lumbar spine.
The insurer submits that there is no evidence that the claimant’s injuries exceed the threshold as a result of the subject accident.
The insurer submits that the evidence of the medical records, is that at most, the claimant had brief soft tissue aggravations of chronic pre-existing pathology and degenerative changes which would and did resolve over time.
The insurer submits any current issues are pre-existing issues and the subject accident was not more than a negligible factor.
The insurer submits that the claimant’s condition is now complicated by pain behaviour. She claimed to be sensitive to touch on examination.
The insurer submits that the treating medical evidence and the qualified joint medical report of Dr Machart, confirms that the claimant’s physical injuries will not result in an assessment of permanent impairment in excess of 10% WPI.
The insurer submits that the pre-accident and post-accident treating records evidence of chronic pain and significant pain behaviours compounded with psychiatric comorbidities.
With the alleged left shoulder injury, the insurer said that Dr Machart and Dr Home, as well as the pre-accident Medical Service assessments, described the claimant as consistent with presenting significant pain behaviours which rendered the claimant’s examination to be unreliable. With adjustment, both Dr Machart and Dr Home found 1-2% WPI with respect to the claimant’s left shoulder.
With the alleged cervical and lumbar spine injuries, the insurer relies on Dr Machart’s opinion that the cervical and lumbar injuries had resolved and that the claimant’s presentation with these injuries, instead relate to the claimant’s pre-existing pathology and symptomology particularly given, the claimant submits, the nature and mechanism of the subject accident. On this basis, the insurer submits that there is no additional impairment from the injuries to the cervical and lumbar spine.
Finally, it is the insurer’s submission that there is no evidence that the claimant’s injuries exceed the threshold as a result of the subject accident.

Medical evidence

Pre-accident history

The claimant had pre-existing head injury in 2001. She sustained an injury to her neck, lower back, right shoulder in 2001 and for which she made a WorkCover claim. She had a history of migraines.
The claimant was involved in a motor vehicle accident on 24 January 2014. Medical Assessor Crocker on 26 October 2014 assessed 7% WPI (5% for cervical spine and 2% for right shoulder) for the prior accident. The Medical Service Review Panel Certificate on

29 May 2016 assessed the claimant with 2% WPI to her right shoulder.
Dr Maxwell, orthopaedic surgeon, assessed the claimant on behalf of the insurer on

2 December 2014. He assessed the claimant with 0% WPI. She had a symmetrical range of movement in her cervical and lumbar spine and full ranges of movement in both shoulders.
On 29 May 2016, a Review Panel of Medical Assessors Assem, Moloney, and Crane, found that the claimant sustained injuries to her cervical spine, lumbar spine, and right upper extremity. They assessed the claimant with 2% WPI for her soft tissue injuries to her cervical spine, back, and right upper extremity. The examination of the claimant revealed complaints in this subject accident with respect to the cervical spine, lumbar spine and bilateral shoulders.

The claimant also injured the right side of her body on 5 August 2017.

Post-accident history

A certificate of fitness dated 15 March 2019 noted that the claimant was diagnosed with soft tissue injuries to her neck, back, left hip, left knee, and left shoulder. Her treatment plan included analgesics and physiotherapy. She was certified with no capacity for work from

25 February 2019 to 24 March 2019.
Mr Colovic, of Holistic Physiotherapy, completed an initial allied health recovery request (AHRR) for physiotherapy on 25 March 2019. He recorded that the claimant had mid-line and bilateral sub-occipital pain radiating into the temporomandibular jaw (TMJ) bilaterally, pain over the base of her neck, and orbital and frontal headaches. Her neck pain radiated into her upper trapezius and interscapular region. The claimant also had mid back pain with limited range of movement, and lower back pain with muscle spasms. The claimant had constant burning pain over her left hip with tenderness on palpation, and constant anterior left knee pain. She had anterior glenohumeral joint pain. All ranges of movement were restricted. She was able to walk and sit up to 20 minutes, stand for up to 5 minutes, and carry 2kg.
The second AHRR form dated 14 May 2019 noted that the claimant had 25% improvement in her neck. She had intermittent neck pain radiating into her upper trapezius and interscapular region, and orbital and frontal headaches. There was tenderness on palpation over the cervical spine midline at C5/6 and C6/7. She had 20% improvement in her mid back, with ongoing persistent pain over the right thoracic region with tenderness on palpation. Her lower back had 20% improvement with lower lumbar pain and left lateral lower limb numbness. Her left hip also had 20% improvement with intermittent burning pain and tenderness on palpation over the trochanter major. Her left knee had 15% improvement with intermittent anterior knee pain. There was 15% improvement of her left shoulder. All her ranges of movement were restricted. She had capacity to walk and sit up to 30 minutes, stand up to 15 minutes, and lifting and carrying up to 4kg.
A third AHRR form dated 22 May 2019 noted a 40% improvement in her neck, mid back, low back, and left hip, and 30% improvement of her left knee and left shoulder. She could walk up to 45 minutes, sit up to 50 minutes, stand up to 30 minutes, and carry up to 5kg.
A fourth AHRR dated 11 June 2019 noted 50% improvement in her neck, left hip, left knee, and lower back, 60% improvement in her mid-back, and 40% improvement for left shoulder.
An MRI of the claimant’s cervical and lumbosacral spine dated 26 June 2019 showed mild cervical spondylosis within the upper cervical spine with potential irritation of the exiting right C4 nerve root, and spondylosis in the lower lumbosacral spine particularly at L3/L4 and L4/5. An MRI of the claimant’s left hip showed moderate bilateral hip joint osteoarthritis, a longitudinal tear of the acetabular labrum and juxta-insertional and insertional gluteus minimus tendinosis.
An AHRR on 24 September 2019 noted that the claimant could walk and sit for 60-70 minutes and stand for up to 45 minutes.
Dr Home provided a report of 14 October 2021. He concluded an assessment of WPI as follows:
(a)    cervical spine - 5% WPI;
(b)    lumbar spine - 5% WPI, and
(c)    left shoulder - 2% WPI.
Dr Home made no deduction for any pre-existing impairment.
On 3 September 2020, Dr Guirgis noted that the claimant had sustained a non-minor injury of a torn rotator cuff and glenoid labrum of her left shoulder. The claimant was diagnosed as being totally unfit for work and the prognosis was poor. Her diagnosis was of further post-traumatic mechanical derangement of the cervical area of the spine caused by musculo-ligamentous sprain with further intervertebral disc involvement. She had post-traumatic symptoms in her left shoulder joint caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures. He said that there was ultrasound scan evidence of intra-substance tearing of the supraspinatus tendon associated with subacromial and subdeltoid bursitis with bursal bunching on abduction.
Dr Guirgis noted that the claimant had further post-traumatic mechanical derangement of the lumbar spine and in the left hip joint and left knee joint.
A report of Professor Murrell, dated 28 September 2020, noted that the claimant had ongoing severe pain with overhead activities and severe pain at night. She had a very painful, moderately restricted range of shoulder motion with positive impingement signs and mechanical impingement. He assessed her with a probable rotator cuff tear in her left shoulder.
On 21 October 2020, Professor Murrell completed a form with return to work guidelines following rotator cuff surgery. The claimant would not be able to work for 2-4 weeks post-surgery. He certified that from 4 weeks to 3 months post-surgery she should not do overhead work or lifting over 1 kg. From 4-6 months post-surgery she would be able to do limited overhead work and lift up to 5 kg. She would be able to undertake her pre-injury duties from 6 months post-surgery.

Joint medical assessment

The parties obtained a joint report of Dr Machart, orthopaedic surgeon dated 20 May 2021.
Dr Machart noted the claimant’s prior complaints and previous motor vehicle accident in 2012. He reported that the claimant was a disability pensioner at the time of the accident which she described as chronic neck pain and migraines that required Botox injections. He considered that there was evidence of chronic symptoms pre accident and considered that the claimant’s condition was complicated by pain behaviour. She claimed to be sensitive to touch on examination.
Dr Machart diagnosed the claimant with potentially an exacerbation of pre-existing problems for the cervical spine, left shoulder and back. Regarding the left knee, he said this was possibly new pathology. He found no evidence of injury to her left arm and could not identify any new pathology in her back.
Regarding treatment, Dr Machart allowed for physiotherapy for the first six weeks only and then conservative management and over the counter medication.
Dr Machart’s prognosis was for resolution of symptoms within several weeks from the time of the subject accident. He attributed ongoing symptoms to non-organic causes.
Dr Machart assessed the claimant below the WPI threshold. He allowed 2% for the left knee, 1% for the left shoulder and 0% for the cervical and lumbar spines and left hip. This gave a total of 3% WPI.
Dr Machart and Dr Home as well as the pre accident MAS Assessments evidenced significant pain behaviours of the claimant which rendered her examination to be unreliable.

Investigations

Ultrasound left shoulder, 15 May 2019. The supraspinatus tendon was patchy and swollen, measuring 5mm. All the other tendons were intact. The subacromial subdeltoid bursa was slightly thickened. It appeared to be bunching on abduction but no blockage. The acromio-clavicular (AC) joint capsule was bulging but not tender. No tendon tear. Biceps tendon was intact.
MRI cervical spine, 26 June 2019. Mild cervical spondylosis predominantly within the upper cervical spine with potential irritation of the exiting right C4 nerve root.
MRI lumbosacral spine, 26 June 2019: spondylosis in the lower lumbosacral spine, particularly at L3/4 and L4/5 without clear canal stenosis or exit foraminal impingement.
MRI left shoulder, 13 May 2020. Minimal AC joint osteoarthrosis. Gadolinium imbibes into the subacromial subdeltoid bursa. Broad segment of confluent tendinosis associated with full thickness interstitial tearing/maceration of the infraspinatus greater than the supraspinatus tendons. Non retracted tuberosity avulsion of most of the subscapularis tendon. Rotator interval intra-articular segment longheaded biceps tendinosis. Focal partial detachment of the posterior glenoid labrum. Glenohumeral osteoarthrosis with up to Grade 4 involvement, possibly with a secondary component on the background of an apparent old healed posterior glenoid rim fracture.
X-ray left shoulder, 21 October 2020. Moderate glenohumeral joint arthritis.
Ultrasound left shoulder, 21 October 2020. Partial thickness under-surface tear with intrasubstance components in the supraspinatus tendon. Impingement on 90° abduction. Full thickness tear of the subscapularis.

Medical examination

The claimant was examined by Medical Assessor Sophia Lahz on 15 February 2024. Her report follows:
“Medical Examination of Ms Ljubica Djukic PIC Suites 15/2/24 (Assessor Sophia Lahz)
Mrs Djukic who is aged 62 and right-handed attended the medical assessment unaccompanied. She had taken the train from her unit in Sutherland and arrived early. She has recently moved from Jannali to Sutherland where she lives with a friend, and explained that her x-rays were still in storage, and thus not available for review.
By way of background, she was born in Croatia and has lived in Australia since 1993. She was married and divorced many years ago and has two sons, both of whom live in Sydney and with whom she is in regular contact.
She was generally reluctant to discuss her past history, assuring me that she was fit and well before 24/2/19, being asymptomatic of any pain in the neck, lower back and left shoulder. On specific enquiry, she maintained that she could complete chores such as hanging clothing on a washing line with her arms fully overhead before the 2019 motor accident.
I explained that in order to assess the residual problems from the 2019 motor accident, it was necessary to obtain information about her condition beforehand. She then agreed to discuss this although she still did not provide much information.
At age 19, Mrs Djukic was involved in a motor accident in Croatia with resultant right femoral fracture. She underwent surgical fixation although the fixation was later removed. She still has some symptoms in that location although she did not elaborate.
Mrs Djukic has not worked for over 20 years since a work fall whilst cleaning, with attendant injuries of the head and neck. She added ‘but I got no points for this accident’ and ‘it has nothing to do with the 2019 (subject) accident’.
She explained that the main problems stemming from the 2001 work injury were ‘psychological’ and also ‘migraines’ for which she received a lengthy course of Botulinum Toxin from a neurologist. Eventually, the migraines resolved. She also had sessions with a psychologist for ‘life problems’ and ‘stress’. She did not recall if either the neck or lower back were affected by the work fall although I pointed out that the documents indicate there had been symptoms in the neck, lower back and right shoulder.
After the work injury, Mrs Djukic never returned to any form of paid work.
I then asked her about the 2014 motor accident in which she reportedly sustained injuries to the neck, lower back and right shoulder. She agreed there had been some problems with the neck, which she said fully settled by the time of the 2019 accident. She denied that the lower back had been affected although the documents indicate this was a listed injury from the 2014 motor accident. She said the right shoulder ‘improved’ but not fully, before adding ‘I am not claiming the right shoulder because the Insurer rejected it’. Later, she added that she was no longer claiming the right knee or also the right hip for similar reasons.
Mrs Djukic was somewhat reluctant to answer questions about symptoms in the right arm and legs, not viewing these as related to the referred injuries from the 2019 accident. However, I explained that neck problems may refer to both upper limbs and also lower back issues to bilateral lower limbs. Therefore, it was necessary to make a full record of her symptomatic complaints.
The Panel received the GP records of Dr Todorovic two days before the examination. These were relatively brief/handwritten and exclusively dealing with Mrs Djukic’s consultations post-injury (2019). Mrs Djukic informed me that she has been seeing

Dr Todorovic for 22 years although occasionally she would consult other doctors at the Kareela Medical Centre. She said that if the Panel were to view GP records in the few months leading up to the 2019 accident, they would not find any reports of painful symptoms, that is to say that all of her present symptoms in the neck, left shoulder and lower back stem exclusively from the 2019 motor accident.
When I enquired about her general health, Mrs Djukic reported a history of hypertension and elevated cholesterol although she takes no prescribed medication for these conditions, preferring ‘natural remedies’ such as garlic. Mrs Djukic neither smokes nor drinks.
Mrs Djukic confirmed her involvement in the subject motor accident. At the time, she was a restrained front seat passenger when the driver (a friend) was blinded by oncoming headlights on high beam. The vehicle left the road, hitting a tree at low speed. She said that her body was jerked around, and the left shoulder and hip struck the car door and the left knee the dashboard. There was no loss of consciousness and she has full recollections of all events. She explained that the car was written off in the accident.
She does not think the airbags were deployed.
Her friend assisted her from the vehicle and she could walk around at the scene. The ambulance did not attend. The accident occurred close to home and despite pain in the neck, lower back and left shoulder, she could walk home with her friend accompanying.
Mrs Djukic saw her GP Dr Todorovic the next day, who recommended physiotherapy which she attended for a ‘long time’ at Kogarah. The treatment comprised modalities and exercise although there were only transient benefits after each session. Subsequently, she also attended a facility where there were a pool and gym at Hurstville for a few weeks although she said the visits were mostly for exercise. She reported that she dislikes water-based treatment.
The insurer eventually stopped paying for physiotherapy approximately two years ago.
After the subject accident, Mrs Djukic did undergo scans of the neck, lower back and left shoulder although aside from some ‘tears’ at the left shoulder, she could not describe any other investigation findings.
Not long after the accident, Mrs Djukic was referred to shoulder specialist Dr George Murrell who recommended surgery for the left shoulder. She declined the option although she is considering whether to proceed when she is ‘older’. At the moment, there are no plans for Mrs Djukic to undergo any left shoulder surgery.
She also saw Dr Guirgis (orthopaedic surgeon) multiple times who recommended Paracetamol.
She is presently not receiving any specific treatment for the injuries. She does use Paracetamol for symptomatic relief.
Current Symptoms
She complains of constant diffuse posterior neck pain with symptom radiation to the left trapezius and shoulder convexity. She described ‘numbing’, ‘burning’ pain at the neck and trapezius/shoulder with average 7-8/10 intensity. The left shoulder, she said is very hard to move. Symptoms can sometimes travel all of the way down the left arm (generalised pattern) into the hand, involving all fingers. She reported too that the left hand feels ‘swollen’.
She is unable to lie directly on the left shoulder due to pain.
Mrs Djukic does not report any particular symptoms in the right arm aside from loss of movement at the right shoulder, to which she is not referring much because the Insurer already rejected these symptoms and signs as being due to the 2019 motor accident.
Mrs Djukic complains of middle back pain associated with generalised discomfort over the lateral aspects of the rib cage.
Her biggest complaint is one of low back pain 9/10 of burning character covering a wide area with spread to both lower limbs in a generalised pattern, also 9/10 intensity. She reported that both lower limbs feel swollen. There is intermittent bilateral numbness of the toes which can sometimes get ‘stuck’. Symptoms in the left leg are worse than those on the right.
She is not reporting any bowel or bladder dysfunction.
Current Function
She can walk for up to 20 minutes on level ground. Prolonged sitting stirs up back and neck pain although she appeared to sit comfortably for the interview lasting 45 minutes.
She has been using a walking stick carried in the right hand for about 12 months now. This was brought to the medical assessment.
She reported to avoid bending over in case of low back pain and said that her friend helps her with the cleaning or if any items need retrieval from the floor.
She does few chores and her friend does most tasks such as cooking. She can complete the lighter tasks and she uses the robot vacuum. There are only two people at home, so there is not much to do in terms of laundry or else rubbish removal, she suggested. She sometimes goes to the local pub for fish and chips.
She does drive but only for short distances.
She has no hobbies aside from reading.
She occasionally sees friends although not very often because they live a good distance from her home.
Examination
On examination, Mrs Djukic walked slowly whilst carrying a stick in the right hand.
There was mildly overweight body habitus with weight 64 kg and height 165 cm.
At the commencement of the examination, I explained that she needed to exert best efforts during the examination, otherwise it would be difficult to use the clinical findings to determine WPI. She indicated that she understood these instructions.
When asked to balance on tiptoe, she did so very briefly before stating: ‘I can’t’. Similarly, when asked to balance on heels, she stated that she could but only on the right. She did so briefly on both before ceasing and stating that she could not continue.
Throughout the examination, there were frequent pain complaints when asked to move the neck, lower back and shoulders. Typically she moved to a certain point but not beyond before complaining that the pain was excessive and she could not move the body part “beyond” that demonstrated. The appearance was that of voluntary self-limitation of movement.
There was normal lordotic neck posture. Neck movements were very restricted in all planes of motion being 1/3 normal range for flexion, extension, lateral flexion to either side and rotation to either side. She complained of diffuse pain at the back of the neck whilst attempting to move it and said that she could not move her head any further. The neck movements did not improve with repetition. There was no asymmetry of motion i.e. no dysmetria.
She indicated diffuse tenderness over the cervical spine, not well localised. There was no muscle spasm or else guarding present. There was L>R trapezial tenderness.
There were no non-verifiable radicular complaints because generalised pain and paraesthesia involving all left-sided fingers are not within the distribution of a single nerve root.
There was a global loss of sensation at the left upper limb, not in the distribution of a specific nerve root. She also reported subjective reduction of sensation as well (generally) in the right upper limb although this was less marked compared with the left. A generalised reduction of sensation is not a non-verifiable radicular complaint because it is not in the distribution of a single dermatome.
There was generalised weakness of the upper limbs, worse on the left associated with profuse complaint of neck pain. Again, this is not a non-verifiable radicular complaint because generalised weakness is not consistent with injury to a single nerve root. Upper limb strength testing was confounded by fear avoidance of pain with generalised giving way weakness in all muscle groups, worst at the shoulders but present globally.
Deep tendon reflexes in the upper limbs were present and symmetrical.
There was no measurable wasting of the arms (10 cm above the elbow crease) 29 cm nor of the forearms 5 cm below the elbow crease 25 cm.
The upper limbs could not be elevated (due to pain) sufficiently for assessment of upper limb neural tension tests.
There were not the two necessary signs present to confirm the presence of an upper limb radiculopathy.
At the left shoulder girdle (and right shoulder girdle) there was no muscle wasting.
There was diffuse tenderness around both shoulders L>>R.
Impingement was not testable due to lack of sufficient upper limb elevation.
Active range of shoulder motion measured with a goniometer is shown in the following table: Only two repetitions were completed due to pain complaint and diminishing range of motion. It was clear that further repetitions were not going to inform the assessment any further.
Right Left

Abduction	60, 50	30, 20
Adduction	30, 30	30, 20
Flexion	80, 70	60, 50
Extension	30, 20	30, 20
External rotation	60 (at side)	50 (at side)
Internal rotation	60 (at side)	50 (at side)

Whilst moving the shoulders, she indicated diffuse pain about the upper arms. On the left, she also pointed to some pain at the trapezial region referred from the neck although the main reason for the bilateral shoulder restriction was presence of symptoms in the upper arms being of unclear origin.
She reached behind with both hands to the buttocks, a little further with the right. She could put the right hand behind her head but not the left.
I pointed out that she had moved the shoulders much better when seen by Dr Machart in 2021. She responded that her condition had significantly worsened since then.
I also asked her about the decreasing range of movement with repetition. She responded that the pain was increasing and therefore she was moving less.
I also noticed that she moved the right arm much more easily in the unguarded moment e.g. when asked to place the right hand behind her head. She said this was because she was using the right hand rather than the left and it was thus easier.
During formal testing of the elbows, wrists and hands, there was full movement observed on the right whereas on the left, she stopped short with most movements due to pain. However, in the unguarded moment whilst picking up her handbag, shopping bag etc she demonstrated much better movement of the left upper limb than during the formal component examination. I did comment to her about the discrepancy to which she made no response to account for the difference.
Examination of the thoracic spine was unremarkable aside from mid thoracic tenderness without guarding or spasm. There was mild kyphosis present. There were no non-verifiable radicular complaints and no signs of radiculopathy. Thoracic movements were very limited with 1/5 normal flexion, extension and rotation to either side.
On examination of the lumbar spine, there was flattening of the lumbar lordosis. There was diffuse lumbar spine tenderness, worse inferiorly. There was no muscle spasm or else guarding present.
Lower back movements were minimal, 1/5 normal range for flexion, extension, lateral flexion to either side.
There were no non-verifiable radicular complaints given that global lower limb pain and paraesthesia in all toes are not within the distribution of a single dermatome.
Lower limb strength testing was confounded by pain behaviour with ‘giving way’ weakness in generalised pattern.
There was a global loss of sensation in the left leg compared with the right, and with the ‘normal’ forehead. Again, this is not a non-verifiable radicular complaint because it is not within the distribution of a single dermatome.
There was no measurable wasting of the thighs (41 cm) 10 cm above the superior patellar border nor at the maximum mid-calf girth 34 cm.
SLR was 45 degrees bilaterally associated with complaints of low back pain. However, in sitting, there was full (80 degrees of SLR) on the right and 60 degrees on the left (with complaint of low back pain but no leg pain). Lower limb neural tension tests were thus negative bilaterally.
There were not the two necessary signs present to confirm the presence of a lower limb radiculopathy.
Conclusions
The contemporaneous records (medical certificate and GP records of Dr Todorovic 25/2/19) indicate symptoms in the neck, lower back and left shoulder very soon after the motor accident, so the Panel accepts that the claimant incurred soft tissue injuries in all of these areas from the subject motor accident.
There is no evidence provided of contemporaneous right shoulder complaints or else restriction of right shoulder motion. The claimant said that she has withdrawn the right shoulder from the claim and now only claiming the left. The Panel notes that assessment of the right shoulder has not been placed before it.
The medical assessment was made somewhat difficult by Mrs Djukic’s reluctance to move too far in case of inducing pain.
She was highly pain focused during the interview and clinical examination.
There were no objective clinical signs at the clinical examination of the neck, shoulders or lower back. There were no neurological abnormalities to confirm the presence of either cervical or else lumbar radiculopathy.
The predominant feature of the clinical examination was fear avoidance of normal movement associated with voluntary self-limitation and vociferous pain complaint. I encouraged the claimant to demonstrate the best range of motion possible although she maintained the abovementioned observed movements were the best she could muster in the presence of severe pain.
At the cervical spine, the clinical findings were consistent with DRE I or else 0% WPI. There were none of the features such as dysmetria, muscle spasm/guarding, and changes in reflexes, dermatomal sensory loss, focal loss of power, or muscle atrophy to indicate a DRE category exceeding DREI.
The claimant demonstrated restriction of both shoulders L>R although this was variable and not consistent, as noted, with decreasing range of motion associated with increased pain complaint. A variable, unreliable range of movement cannot be used to determine permanent WPI. I refer to paragraph 6.84 d, page 96 of the PIG.
If range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other evidence available to determine if an impairment is present (paragraph 6.84 e).
The observed, reduced range of motion at the left shoulder at my examination was disproportionate to the pathology present i.e. rotator cuff tearing noted on MRI. Of note, such a (radiological) finding may often (but not always) be asymptomatic.
There were no signs on physical examination of muscle spasm/guarding, peripheral nerve injury, spinal cord injury nor radiculopathy to account for the observed bilateral shoulder restriction which was occurring due to pain in the upper arms and on the left to lesser degree pain referred from the neck (trapezial region).
Paragraph 6.24, page 88 PIG says that a condition may present that is not covered in the Guidelines or the AMA4 Guides. If objective clinical findings of such a condition are present, indicating the presence of an impairment, then assessment by analogy to a similar condition is appropriate. The medical assessor must include the rationale for the methodology chosen in the impairment evaluation report.
The Panel accepts that the MRI finding of left-sided rotator cuff tearing is an objective (imaging) finding, although there were no objective signs on examination. The Panel accepts that the cuff tearing is contributing to pain complaints although the latter are disproportionate to the underlying pathology.
The Panel then refers to paragraph 6.4 page 90 of Motor Accident Guidelines:
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.
As per paragraph 6.4 in MAG, the Panel has raised concerns regarding consistency and reliability of active range of left shoulder motion and decided to assess impairment present at the left shoulder by analogy using AC (acromioclavicular) crepitus, a condition conferring a small WPI but not to the extent as would be the case if measured range of motion were used, which as noted is unreliable and not accurately reflective of true underlying impairment.
Table 18 on page 58 of AMA4 provides a maximal assessment of 15% WPI or else 25% UEI for the AC joint. For mild crepitus, Table 19 page 59 AMA4 gives an assessment of 10% joint impairment. 10% of 25% UEI is 2.5% UEI or else 3% UEI post rounding, equating with 2% WPI for the left shoulder (Table 3, page 20 AMA4). Notwithstanding the claimant’s complaints of pain, the Panel determined that an impairment based on active shoulder motion observed at clinical examination was disproportionate to the nature of injury examined. For this reason, an assessment based on mild AC joint crepitus was adopted.
The Panel has determined there is no impairment at the right shoulder due to the subject accident given the lack of contemporaneous complaint in this location. There is also no evidence of any structural right shoulder injury occurring due to the motor accident. There was no impact to the right shoulder in the accident and the mechanism of the subject accident would not have caused any structural injury of the right shoulder. The claimant also localised the discomfort to the upper arm whilst moving the right shoulder which is not the usual pattern for symptom referral from a neck injury (noting the Nguyen principle that would typically involve the trapezial region). The Panel cannot find any plausible medical reason due to the motor accident for the observed reduction in right shoulder range of motion and finds that the observed reduction of right shoulder movement is not causally related to the 2019 motor accident.
At the thoracic spine (not referred) the clinical findings were consistent with DRE I or else 0% WPI. There were no signs or symptoms to indicate a DRE categorisation exceeding DREI.
At the lumbar spine, the clinical findings were consistent with DRE I or else 0% WPI. There were no signs or symptoms to indicate a DRE categorisation exceeding DRE I.
The Medical Assessor had found an assessment of DRE II for both the cervical and lumbar spines of the claimant. The Panel observes that on the day of examination, the clinical findings were DRE I (0% WPI) for both these areas of injury.
In summary, the Panel concludes on available information there is 2% WPI by analogy for the left shoulder soft tissue due to the motor accident with underlying symptomatic rotator cuff tearing.

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 – soft tissue injury	Chapter 3, page 103 (AMA4) Table 6.7 page 103 Motor Accidents Guidelines	Yes	0	0	0
2	Lumbar spine – soft tissue injury	Chapter 3, page 102 (AMA4) Table 6.7 page 103 Motor Accidents Guidelines	Yes	0	0	0
3	Left shoulder – soft tissue injury	Chapter 3, Table 18 page 58, Table 19 page 59 AMA AMA4 Guides Paragraph 6.4, page 90 Motor Assessment Guidelines	Yes	2	0	2

* %WPI = percentage whole person impairment
The Panel notes that there are no notes available detailing the claimant’s condition in the weeks/months immediately preceding the subject motor accident. No deduction can therefore be considered for any pre-existing condition of the claimant.”

The Review Panel adopts the findings of Medical Assessor Sophia Lahz.

Causation

The accident occurred on 24 February 2019.
The impact would have been unexpected and sudden given that the driver was blinded by oncoming headlights, lost control of his car, and collided with a tree, coming to an immediate stop. It is not understood by the Panel however, that there was a high-speed impact.
The photographs of the post-accident damaged car do not indicate a forceful impact as the bodywork of the front of the car appears intact. After the accident, the claimant was able to walk from the scene of the accident to her home, which was nearby.
The Review Panel accepts that in the described circumstances, the claimant could have suffered the injuries claimed. As the Panel has explained, it cannot consider what effect, if any, the claimant’s pre-accident disabilities at the time of the accident have had on her current condition, particularly affecting her left shoulder, as there is a gap in the medical evidence of the claimant’s general practitioner, pre-accident.
The Panel must ask itself whether the accident contributed to the claimant’s physical injuries as referred to it by the Commission. The Panel is satisfied that it has.
The Panel is also satisfied that the accident and impact has had a more than negligible effect on the injuries suffered by the claimant. The claimant made complaints to her doctor about the injuries considered by the Panel and which were contemporaneous to the accident and which were treated thereafter.

Conclusion

The Panel is satisfied that the claimant was injured in a motor vehicle accident on

24 February 2019.
As a result of this low speed accident, the claimant suffered the following injuries;
(a)    cervical spine;
(b)    lumbar spine, and
(c)    left shoulder.
The Panel assesses the claimant’s total WPI as 2%.

Determination

The Panel revokes the certificate of Medical Assessor Shahzad dated 25 June 2023.
The Panel assesses the following WPI;
(a)    cervical spine 0%;
(b)    lumbar spine 0%, and
(c)    left shoulder 2%.
The claimants total WPI arising out of the accident on 24 February 2019 is 2%.

[2024] NSWPICMP 213

8 April 2024