El Jassem v AAI Limited t/as GIO
[2025] NSWPICMP 500
•10 July 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | El Jassem v AAI Limited t/as GIO [2025] NSWPICMP 500 |
CLAIMANT: | Houda El Jassem |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | Ian Cameron |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 10 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for review of Medical Assessment Certificate (MAC) under section 7.26; whole person impairment (WPI) dispute; physical injuries (head, spine, left shoulder, right shoulder, chest and pelvis) assessed at 10% WPI; issues of causation of some of injuries; nature of injuries and inconsistency of shoulder motion; detailed consideration of shoulder impairment; Held – Review Panel satisfied injuries were sustained to the head, cervical and lumbar (but not thoracic) spine, chest, pelvis and left (but not right) shoulder; most injuries had resolved leaving no impairment; WPI of neck (5%), left shoulder (2%) total 7%; MAC revoked as original certificate included finding of 10% WPI; chapter 3 section 3.1 of American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th edition (AMA 5) and clauses 6.31, 6.50, 6.51 and 6.52 of the Motor Accident Guidelines. |
DETERMINATIONS MADE: | The Review Panel: 1. Revokes the combined certificate issued by Medical Assessor Home dated 4 October 2024. 2. Certifies that the degree of the claimant’s whole person impairment resulting from the injuries caused by the motor accident on 15 September 2019 is, 7% which is not greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Houda El Jassem was involved in a motor accident on 15 September 2019. A car came from the opposite directing turned right striking the front side of her vehicle (driver’s side door, front panel and driver’s side wheel and bumper).
Ms El Jassem says she injured her neck, left shoulder and chest in the accident and she made a claim for statutory benefits and then damages against GIO the third-party insurer of the vehicle that caused her accident.
A medical dispute about the degree of Ms El Jassem’s whole person impairment (WPI) has arisen in connection with the damages claim and Ms El Jassem referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 4 October 2024 Medical Assessor Home determined Ms El Jassem did not have a WPI of greater than 10% (he found 10% WPI only).
Ms El Jassem has lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 9 December 2024, Ms Baba, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 10 December 2024 the President’s delegate convened this Panel to conduct the Review.
The Panel is aware that on 15 May 2024 Medial Assessor Rikard-Bell assessed the claimant’s psychological injuries and found 5% WPI. The Panel understands an application for review has been filed and allowed and a Panel has now been convened.
LEGISLATIVE FRAMEWORK
General
Ms El Jassem’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed in accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2024 is $654,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Dispute resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to original medical assessments such as Medical Assessor Home’s and Medical Assessor Ricard-Bell’s, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges for the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.263A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.3.
Due to the nature of the injuries sustained by the claimant, chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.
ASSESSMENT UNDER REVIEW
Medical Assessor Home examined the claimant on 30 September 2024 and issued his certificate on 4 October 2024. The Medical Assessor confirms at [2][5] that he was asked to assess the following injuries:
(a) head - soft tissue injury (due to impact);
(b) cervical spine - disc bulge C5-C6 impinging on the exiting C6 and C7 nerve root/soft tissue injury with radiculopathy into the upper limbs;
(c) thoracic spine - discal/ soft tissue injury with radiculopathy;
(d) lumbar spine - discal/ soft tissue injury with radiculopathy;
(e) left shoulder - Injury to left shoulder/arm/hand – bursitis/ rotator cuff injury/ referred paid from the cervical spine;
(f) right shoulder - referred paid from the cervical spine;
(g) chest - soft tissue injury, and
(h) pelvis – soft tissue injury/symphysitis.
[5] The numbers in square brackets are a reference to the section number in the Medical Assessor’s reasons.
The claimant could not recall neck pain and imaging in 2008 or left shoulder pain and imaging in 2010. She said she had no neck or left shoulder pain leading up to the accident. She did concede chronic lower back pain before the accident managed with analgesic medication.
The claimant said she was the driver of a vehicle when a car came from the right hitting her driver’s side door. She said her airbags deployed and she was shocked and could not get out of the vehicle. She recalled neck and left shoulder pain. She was taken to hospital, discharged and she saw her doctor. She was referred to Dr Dave for her shoulder and
Dr Abraszko for her neck.
The claimant complained of neck pain on both sides with stiffness, sharp pain radiating to the upper back and to the lower back sometimes. She had a constant headache and a sensation of heaviness in the left shoulder and intermittent activity-related shoulder pain. He said she had numbness in all fingers of the left hand most prominently in the ulnar three digits. Ms El Jassem complained of back pain similar to what she had before the accident.
She complained of no symptoms in the chest, pelvis or right shoulder.
The claimant was not working at the time of the accident, was said to be independent in self-care, could do light household tasks but had not resumed gardening. She has five children.
On examination there was dysmetria but no muscle guarding and reduced sensation in three fingers. Some right shoulder movements were restricted and there was more restriction in the left. The chest was normal on examination.
There was no guarding or dysmetria in the lumbar spine and no neurological abnormalities in the lower limbs. There was no abnormality in the head.
Medical Assessor Home found a cervical spine injury and left shoulder injury but no injury to the head, thoracic spine, lumbar spine, pelvis or right shoulder. He noted the chest injury had resolved.
Medical Assessor Home assessed WPI as follows:
(a) cervical spine - DRE category II = 5%, and
(b) left shoulder - range of motion = 5%.
He made no deduction for any pre-existing impairment or to account for the contralateral uninjured joint.
ISSUES FOR DETERMINATION
Claimant’s submissions[6]
[6] The numbers in square brackets are a reference to the paragraph number in the submissions.
The claimant submits at [4] that Medical Assessor Home erred in his assessment of causation of the claimant’s lumbar spine injury and radicular pain into the lower limbs. At [5] the claimant says there is inconsistency in the Medical Assessor’s finding of chronic low back pain in the past with his report of intermittent mild low back pain after the accident similar to what was there before.
The claimant says at [7] and [8] there is no objective evidence of any thoracic, lumbar spine or lower limb impairment before the accident.
The claimant submits at [11] and [12] that the Medical Assessor’s findings on causation in respect of the thoracic, lumbar spine and lower limbs are “speculative.”
Insurer’s submissions
The insurer submits at [9] that the Medical Assessor dealt with the claimant’s back injury citing his statement “there was no evidence of a separate injury” to the upper or lower back.
The insurer says at [10] the Medical Assessor considered upper and lower back symptoms to be related to the neck based on the claimant’s history.
Procedural matters
On 16 January 2024 the Panel issued directions to the parties concerning the documents filed in this matter. The Panel received, on 3 February 2025, a list of documents but not the bundle of documents from the claimant and by 10 March 2025 the Panel had not yet received anything from the insurer. Further directions were issued, and the first preliminary conference was vacated.
The Panel received bundles from both parties in accordance with the directions on
12 March 2025 (claimant) and 21 March 2025 (insurer).
The Panel met on 8 April 2025 and reported to the parties on the same day. The Panel noted the eight injuries referred for assessment and noted that the Medical Assessor had found injuries and impairments to only two of those and found that the claimant’s chest injury had resolved. The Panel asked the claimant’s solicitors to confer with their client to see if she conceded that any of her injuries had recovered and resulted in no impairment. The claimant never responded to this.
The parties were advised of the re-examination date on 20 June 2025, and the claimant was directed to attend. A second teleconference was set after the re-examination. Medical Assessor Cameron’s re-examination findings were incorporated into these reasons, considered by all members of the Panel and the decision was finalised by email exchange before the second teleconference.
REVIEW OF THE EVIDENCE
Pre-accident records
There are handwritten notes from Dr Assad which date back to 1985.[7] These are hard to decipher. Of significance to the Panel it is noted that:
(a) the claimant’s mother died suddenly after a fall from a train five months earlier. The claimant was deeply depressed and wanted to sue the State Rail Authority. She was referred to Dr Younan, psychiatrist who saw her in 2004 and wrote several reports;[8]
(b) Dr Assaad provided a report to the claimant’s lawyers in October 2005 noting the claimant had been prescribed an antidepressant since 2002 due to depression and anxiety, the dose was increased in 2003, and her condition had worsened after the death of her mother and Tryptanol was added. A further report was written in 2007;
(c) the claimant saw a neurologist in July 2008 due to numbness in the medial three fingers of both her hands and had a CT scan showing spondylosis in particular at C4-5;
(d) she had left shoulder investigations in March 2010 with bursitis and tendonitis reported;
(e) on 31 January 2012 she saw another neurologist, Dr Ell due to episodes of dizziness, numbness in the right hand and leg and heaviness in the head. She had recently had a normal MRI but had lost the report. He requested further tests and afterwards reported to Dr Assaad that he considered her symptoms “anxiety related”, and
(f) on 13 February 2012 the claimant was referred to a physiotherapist under an existing care plan.
[7] Page 101 of the insurer’s bundle.
[8] Dr Younan was asked by the insurer for a copy of his clinical notes but said he had none in a letter dated 20 August 2020 at page 234 of the insurer’s bundle.
Records from Busby First Care Medical Centre have been provided.[9] These commenced in 2002 with limited detail. Panamax was prescribed in October 2002 and April 2004 as well as Lexapro.
[9] Page 40 of the insurer’s bundle
Panamax was prescribed again on 14 June 2012 and 16 June 2014. Lexapro continues to be prescribed. Celebrex was prescribed on 16 October 2016 for lower back pain radiating to the left hip with “normal range of motion”. Mobic and Voltaren Gel were prescribed on
22 December 2016 again for nonspecific lower back pain.
On 10 May 2017 the claimant attended Dr Gouder at Busby with pain in her left hand and left wrist with tenderness and mild swelling. The claimant was still being prescribed Lexapro at this time. There were reports of dizziness and tiredness (August 2017) and back pain (December 2017).
On 16 April 2019 there is an entry by Dr Tran of “lef sid3d neck pain” (which the Panel interprets as left sided neck pain) and 400 mg of Brufen was prescribed three times a day.
Claim form and claim documents
The claimant’s claim form was signed and dated 25 September 2019.[10] Ms El Jassem discloses a previous CTP claim about 20 years ago but gave no further details.
[10] At page 54 of the claimant’s bundle and page 1 of the insurer’s bundle.
Ms El Jassem gives a consistent history of the accident and lists her injuries as follows:
(a) discal injury to neck with radiculopathy into left upper limb;
(b) injury to left shoulder;
(c) left side of head feels heavy;
(d) discal injury to lower back with radiculopathy into right leg;
(e) injury to pelvis, and
(f) injury to chest.
The claimant also says she had some back pain and depression at the time of the accident.
The claimant and the insurer have both provided photographs of the claimant’s vehicle.[11]There is significant damage to the driver’s side door, and the front panel. The tyre is “blown”, and the front part of the bonnet and bumper is destroyed with headlights smashed. Both driver and passenger frontal airbags can be seen as deployed.
[11] Page 70 of the claimant’s bundle and page 6 of the insurer’s bundle.
Treating medical records and reports
The ambulance report notes the claimant was seated in the car when they arrived (nine minutes after the first call). The claimant was complaining of front left sided neck pain and chest pain (airbag deployment). She denied any radiating pain. The claimant was also feeling dizzy but was able to stand and transfer to stretcher. On examination the claimant had no seatbelt bruising or obvious trauma.
Vital signs were taken at 9.20am and 9.55am and all was normal. In particular the claimant’s Glasgow coma scale was 15 out of 15 and her pain levels were 3 out of 10 on both readings.
The claimant attended Liverpool Hospital on the day of the accident. She reported feeling dizzy but was said to have been walking around the department. There was no obvious external injury but chest and left shoulder pain. There was midline tenderness in the neck. While there was slight pain on deep breathing there was a good deep breath.
The claimant first attended Dr Tran on 17 September 2019. The claimant complained of “all body ache and pain”. On examination there were no neurological signs, reduced range of motion in the left shoulder, left sided neck pain and low back pain. The claimant was prescribed Norgesic and Endone.
On 18 September 2019 the claimant was seen again, and the claimant was reassured about the tests from the hospital. The claimant was said to be taking Norgesic and Endone “with good result.” On 26 September 2019 however the claimant could not sleep at night due to pain when turning, the Endone was no longer effective and she complained of left shoulder pain radiating to the left arm, left chest wall and left neck pain. There was no abnormality recorded in neck range of motion, but shoulder flexion and abduction were limited.
The claimant’s medication was adjusted on 3 October 2019 and on 3 October 2019 the claimant was concerned about her injuries.
On 28 November 2019, Dr Tran, completed a certificate of fitness. He diagnoses “soft tissue pain left shoulder: bursitis and posttraumatic stress disorder.” He says the claimant first attended on 17 September 2019. His management plan was for pain relief, referral to a psychologist, cortisone injection into the left shoulder, MRI of the left shoulder and physiotherapy. He imposed a 5kg lifting limit and said the claimant had capacity for eight hours of work a day for five days a week from 22 November 2019 to 19 December 2019. The corresponding notation records mainly left sided neck, shoulder and left arm pain and lower back pain after doing household chores for a while. Also noted was the lower back pain slowly getting more stiff and it was hard to bend down. There was a normal range of motion and no pain down the legs.
Dr Tran wrote a further certificate of capacity on 8 December 2019. In very similar terms but with this annotation “She has complained of having lower back pain now (not at the time of the accident).” An MRI of the lumbosacral spine was suggested.
On 12 December 2019 the claimant’s doctor, Dr Al-Shelh (Liverpool Healthcare Medical Centre) completed a certificate of fitness noting “soft tissue injuries – PTSD”. The management plan for the injuries were rest, analgesia and steroid injection along with physiotherapy and counselling. He certified the claimant as having no fitness for any work from the date of the accident to 15 December 2019.
Dr Al-Sheih’s notes have been provided,[12] and they show two attendances on 12 and
30 December 2019 only. A referral to Dr Carlos El-Haddad, rheumatologist was provided on 12 December 2019 for “left shoulder pain, neck pain, mid back and lower back pain”. A referral to Mr Moutasallem was given on 30 December 2019 for physiotherapy for neck and left shoulder pain only. The clinical note for 30 December 2019 refers to “still in pain, shoulders both, with numbness, neck pain discogenic derangement”.
[12] Page 78 of the insurer’s bundle.
A later bundle of notes includes attendances on 15 January 2020 with a note “stay same well controlled”. On 20 February 2020 the claimant attended for review of her pains and the claimant reported troubles sleeping with left neck, left shoulder and lower back pain “with radiation to both legs now, no sciatica”. A further referral to Dr El-Haddad was given.
Ms Boutros of Zen Psychology Solutions completed a questionnaire for the insurer on
17 February 2020[13] stating the claimant was displaying symptoms of major depressive disorder. These were said to be “severe” and she had requested a psychiatric assessment. In a letter dated 6 February 2020 addressed to Dr Al-Shelh, Ms Boutros says that the claimant’s depression and anxiety levels were high, and she was having ruminations about death, was socially withdrawn and her sleep was impacted. The claimant was taking the antidepressant Lexapro.
[13] Page 33 and 34 of the insurer’s bundle.
Ms Lama, physiotherapist wrote to Dr Al-Shelh on 24 March 2020[14] having taken a history that the claimant was not able to breathe, talk or move her arms after the accident. Ms El Jassem complained of pain and numbness in her left shoulder and three lateral fingers and had increased lumbar and cervical spine pain. There is no complaint of symptoms in the head, right shoulder, chest or pelvis.
[14] Page 37 of the insurer’s bundle.
On 20 April 2020 the claimant was reviewed by Dr Al-Shelh with “left arm pain numb and heavy” and reduced range of motion in the neck. Lyrica was provided in addition to other medication. On 12 June 2020 left shoulder and cervical pain was the subject of complaints and radiology was requested. On 26 June 2020, Dr Al-Shelh referred the claimant to
Dr Abrazsko and Dr Dave following complaints of neck and left shoulder pain.
Dr Dave wrote to Dr Al-Shelh on 28 July 2020[15] advising that the claimant’s shoulder problems appeared to be related to a C6/7 radiculopathy, and he suggested she see a spine surgeon and in the meantime have some posterior capsule and rotator cuff strengthening.
[15] Page 275 of the insurer’s bundle.
Dr Abrazsko wrote to Dr Al-Shelh on 20 August 2020.[16] Dr Abrazsko had a history of immediate neck pain and left shoulder pain and severe neck pain radiating to the left arm and left hand with swelling in the forearm. Dr Abrazsko reports “power, tone, reflexes and sensations are normal”. There was spasm of paraspinal muscles and limited left shoulder motion and an MRI and bone scan were requested. There is no complaint of symptoms in the head, thoracic spine, lower back, right shoulder, chest or pelvis. Dr Abrazsko ordered scans of the neck, shoulder and left wrist only.
[16] Page 238 of the insurer’s bundle. The referral is found at page 248 of the insurer’s bundle.
On 17 September 2020, Dr Al-Shelh records complaints of a painful left hand, mid back pain and aches and on 30 December 2020 there were further complaints of pain in the shoulder and neck “with LBP”.
Radiology
A CT scan of the cervical spine was taken on 21 July 2008[17] and it was reported there were spondylitic changes at C4-5 and C5-6 but no significant facet joint degenerative changes. There was no narrowing of exiting cervical foramen.
[17] Page 154 of the insurer’s bundle.
A left shoulder X-ray and ultrasound was done on 22 March 2010 showing degenerative changes in the acromioclavicular joint, bursitis and tendonitis.
A CT scan of the brain taken at Liverpool Hospital was reported to be normal and no acute spinal fracture or dislocation was noted in the cervical spine. There was mild spinal canal narrowing at C5-6 secondary to a disc bulge. An X-ray of the shoulder reported no fracture or dislocation seen. X-rays of the pelvis and chest were also normal.
A CT scan of the cervical spine was performed on 17 June 2020 for neck and left shoulder pain. There was a minimal central disc bulge at C5/6 not significantly narrowing the spinal canal. There were no other bulges seen although possible impingement of foramina at C5/6 and C6/7 on the left side.
A left shoulder ultrasound was done due to left neck and shoulder pain on 24 June 2020. There was bursal thickening, tendinopathy and impingement on abduction.
A bone scan was done on 27 August 2020 due to “pain in the neck, shoulder and left wrist”.
There was increased uptake at the left fifth rib suggesting a rib fracture, no abnormal uptake in the cervical spine (including facet joints), mild to moderate uptake in the left and right wrist “in keeping with arthritis” and uptake at T7/8 and T9-10 indicating degenerative disease.
An MRI of the cervical spine addressed to Dr Abrazsko was performed on
29 September 2020.[18] The report of the next day says there was no significant disc bulging at C2-3 or C4-5 or C6-7 and C7-T1 but there was a broad-based disc bulge at C3-4 and C5-6 with some left sided impingement at C6.
[18] Page 39 of the insurer’s bundle.
Medico-legal reports
The claimant was examined by Dr Vickery for the insurer on 23 November 2021. She disclosed a previous psychiatric condition in 2004 and treatment following the sudden death of her mother.
Ms El Jassem reported physical symptoms of pain in her neck, left shoulder, arm and fingers of her left hand. She said she had lower back pain since December 2019 but “I have had that for a long time before the accident”.
Dr Vickery diagnosed a somatic symptom disorder which did not attract a WPI in accordance with cl 6.215 of the Guidelines.
The insurer relies on a report from Dr Powell, orthopaedic surgeon dated 18 June 2021 following an examination on 26 March 2021.
The claimant reported to Dr Powell that she had pain in her neck and left upper limb. The neck pain radiated to the left shoulder and down to the upper limb. It was sharp and constant, and she had pins and needles in the ulnar three digits. She is aware of restriction of left shoulder motion.
The claimant denied previous injuries although acknowledged lower back pain after an earlier motor accident.
Neck movements were restricted but equally so. There was tenderness but no spasm and no guarding reported. There was some reduced left-hand sensation but no other neurological abnormalities.
There was some restriction of motion in both the left and right shoulder with no extension at all in both.
Dr Powell diagnosed a musculoligamentous injury of the cervical spine and aggravation of underlying degenerative disc disease. He also diagnosed a soft tissue injury to the left shoulder with aggravation of underlying rotator cuff tendinopathy. Dr Powell assessed WPI at 5% for the neck and 2% for restricted range of motion of the left shoulder.
Other assessments
On 21 June 2023, Medical Assessor Herald determined a dispute about treatment (nerve conduction studies, MRI of the cervical spine and a whole body bone scan) in favour of the claimant. He found evidence of radiculopathy including weakness in a C7 dermatome and altered sensation over a C6 dermatome and reduced biceps jerk on the left when compared to the right.
While he acknowledged pre-existing degenerative changes in the cervical spine, he found the claimant was asymptomatic before the accident and that therefore her radiculopathic symptoms were caused by the accident.
He found the treatment reasonable and necessary as they are investigations which “will help guide treatment”.
Medical Assessor Rikard-Bell assessed the claimant’s psychiatric injuries in a certificate dated 5 June 2024. He diagnosed the claimant with a chronic adjustment disorder secondary to chronic pain. He found no post-traumatic stress disorder. He assessed WPI at 5%.
RE-EXAMINATION FINDINGS – MEDICAL ASSESSOR CAMERON
Ms El Jassem was re-examined by Medical Assessor Cameron on 20 February 2025 with the assistance of an accredited Arabic interpreter.
Past history
The past history revealed in the records was reviewed with Ms El Jassem. She confirmed longstanding back complaints. She said that she now recalled having neck pain in 2008. She said it was a short episode only and it resolved after changing her pillow. She said she had left shoulder region pain in 2010. She said this was investigated and she saw a cardiologist who said it came from her heart.
With reference to her past medical history, Ms El Jassem said that she had a history of hypertension. She also had taken medications for nerves and stress before the accident.
History of injury
The accident occurred on 15 September 2019. Ms El Jassem was the driver of a vehicle when another vehicle hit her vehicle from the right side into the driver's door. Her airbags deployed and she could not get out of the vehicle. She was taken to hospital and subsequently had follow up with her local doctor and Dr Dave for the shoulder pain and
Dr Abraszko for her neck pain.
Current status
Ms El Jassem said that she had neck and left shoulder pain. This was significant and limited her in daily life. Ms El Jassem said she could not sleep on her left side and woke frequently.
Ms El Jassem said that there was a reduction of sensation to light touch in the third to fifth fingers in the left hand. She said this did not extend onto her forearm and was not present in her right hand and she had no symptoms in her right arm.
Ms El Jassem said that her daughter does the cooking and housework. She said she is able to drive locally.
Ms El Jassem said she had no new low back pain present that is no additional pain that was over and above the low back pain she had before the accident.
She was taken to the other parts of her body referred for assessment. She denied any ongoing symptoms in her head (in particular headaches), thoracic spine, chest and pelvis. She was asked about the right shoulder and denied any pain or ongoing symptoms in that shoulder.
She said her current medications are Nurofen, Panadol Osteo, an antihypertensive, Lexapro and tablets for diabetes, the name of which she could not remember.
Examination
Ms El Jassem is right-handed. She is 150cm tall and weighed 73kg.
Ms El Jassem was co-operative throughout the assessment.
During the re-examination, Ms El Jassem engaged with me throughout and answered all my questions put to her through the interpreter. She had no difficulty in following instructions (for range of motion assessment) or identifying the various parts of her body affected by the accident. I could detect no cognitive impairment.
At the cervical spine there was moderately reduced range of motion as follows which was consistent across three repetitions:
(a) flexion and extension – 70% of normal;
(b) lateral flexion – 70% of normal on both sides, and
(c) rotation was reduced by 70% to the left and 60% to the right.
There was no muscle spasm, no muscle guarding but the difference in rotation measurements means there is dysmetria. No non-verifiable radicular complaints were present. Ms El Jassem identified her left shoulder pain and neck pain as separate pains and she denied any radiating pain into either upper limb. However, she said that there was a reduction of sensation in the third to fifth fingers in the left hand.
In terms of the five signs of radiculopathy testing revealed:
(a) all reflexes were present and symmetrical;
(b) nerve root tension signs were negative;
(c) there was no muscle wasting and the circumferences of the upper extremities were, 23.5 cm above the elbow on the right and 22.5cm on the left. Below the elbow the right measured 31.5cm and the left 31cm. It is my clinical judgment that this is consistent with Ms El Jassem’s right limb dominance;
(d) there was no objective evidence of any loss of sensation on pin prick and light touch testing of the fingers, hands and arms or either the left or right upper limb, and
(e) there was full power and no muscle weakness in both upper limbs.
The claimant was asked to demonstrate her range of motion for each shoulder across the six units of shoulder function. The maximum range of motion of the six units of measurement for each shoulder are recorded below:[19]
[19] All measurements are in degrees. The number in brackets next to each of the units of measurement is the normal range of motion provided for in the AMA 4 Guides.
LEFT Shoulder
RIGHT Shoulder
Flexion (180)
120
Flexion (180)
120
Extension (50)
30
Extension (50)
30
Abduction (180)
130
Abduction (180)
130
Adduction (50)
30
Adduction (50)
30
Internal rotation (90)
80
Internal rotation (90)
80
External rotation (90)
80
External rotation (90)
80
There was inconsistent movement on range of motion testing in both shoulders, that is the range of motion for each unit of motion was inconsistent when repeated three times. There was also inconsistency between the formal examination and informal observation, that is when moving at other times during the interview the range of motion demonstrated was not the same or similar for the six units of motion and appeared to be greater. When these inconsistencies were put to Ms El Jassem, she said this was due to variable levels of pain.
There was a full range of motion of the fingers, hands and elbows of both left and right limbs and no complaints of pain in the right shoulder when examined.
At the thoracic spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, and therefore no dysmetria. There was no muscle spasm, no muscle guarding and Ms El Jassem did not complain, when asked, of any symptoms of radiating pain or any other symptoms that could, in my clinical judgment be considered as non-verifiable radicular complaints were present.
At the lumbar spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes and therefore no dysmetria. There was no muscle spasm or guarding present and, on questioning, no non-verifiable radicular complaints were made.
In terms of the five signs of radiculopathy:
(a) all reflexes were present, brisk and equal;
(b) nerve tension signs were negative;
(c) there was no wasting in the thigh or calf muscles;
(d) there was no loss of sensation on pin prick or light touch testing, and
(e) there was full power in both legs.
There was a full range of motion at both knees and there was no crepitus or instability. There was a full range of motion of the hip, ankle and foot joints.
Ms El Jassem was observed to walk with a normal gait.
Ms El Jassem had made no complaints of chest or pelvic pain and no other symptoms were detected on examination of these parts of her body.
CONSIDERATIONS OF ISSUES BY THE PANEL
Causation
In order for the Panel to assess the impairment resulting from the injuries caused by the accident, the Panel has first to determine what the injuries were caused by the accident.
The claimant listed in her claim form an injury to her neck (with symptoms in the left arm), left shoulder, left side of the head, lower back (with symptoms in the right leg), pelvis and chest. The claimant referred for assessment, a head injury, neck, thoracic (not mentioned in the claim form) and lumbar spine injury, left shoulder and right (not mentioned in the claim form) shoulder injuries and injuries to the chest and pelvis.
Clause 6.6 provides as follows:
“Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
The Medical Assessors note that the circumstances of the accident involved a near frontal collision with an impact to the side and that airbags deployed. The Medical Assessors have limited evidence as to the speed or forces involved but the photographs show considerable damage to the claimant’s vehicle. It is the clinical judgment of the Medical Assessors that the claimant could have sustained injury to all of the parts of her body listed in the claim form and referred for assessment.
The question remains whether the accident did in fact cause or materially contribute to the injury and any resulting impairment.
The claim form completed less than two weeks after the accident mentions injuries to all parts of the claimant’s body referred for assessment other than the thoracic spine and right shoulder.
The ambulance report records only neck and chest pain and dizziness. At hospital the claimant continued to complain of dizziness, neck and chest pain. On 17 September 2019 Ms El Jassem complained to her GP of pain all over her body (and in particular the left side of her neck and lower back) and there was reduced motion in the left shoulder.
Left arm pain was mentioned for the first time on 28 November 2019 in the context of neck and shoulder pain. Lower back pain appears to have been first mentioned in the clinical notes on 28 November 2019 and thoracic spine pain was the subject of referral to a rheumatologist on 12 December 2019.
Ms El Jassem told Medical Assessor Cameron she did not recall any injury to her chest or pelvis and the Panel cannot find a reference to the right shoulder in the clinical notes.
Ms Lama, physiotherapist in March 2020 and Dr Abrazsko, neurosurgeon in August 2020 do not record any symptoms in the head, thoracic spine, lower back, right shoulder, chest or pelvis.
In reports of Dr Powell and Dr Vickery in June and November 2021 the claimant is said to have reported symptoms in her neck, left shoulder, left arm and hand only. There are no medico-legal reports relied on by the claimant.
Having considered the totality of the medical records and the claimant’s history provided to Medical Assessor Cameron, the Panel is satisfied that the following injuries were caused by the motor accident:
(a) head;
(b) cervical and lumbar spine;
(c) chest;
(d) pelvis, and
(e) left shoulder.
It is the clinical judgment of the Medical Assessors that the diagnosis of these injuries is as follows:
(a) head – soft tissue injury from airbag deployment;
(b) cervical spine – soft tissue injury;
(c) chest – soft tissue seat belt injury;
(d) pelvis – soft tissue seat belt injury;
(e) left shoulder – soft tissue injury, and
(f) lower back – soft tissue injury causing temporary aggravation of the claimant’s pre-existing lumbar spine condition.
The Panel is not satisfied that any injury was caused by the accident to the right shoulder. There is no evidence of complaints of right shoulder symptoms to any of the claimant’s treating practitioners, no investigations such as ultrasound have been performed and the claimant denied any symptoms in that part of her body to Medical Assessor Cameron.
The absence of any contemporaneous complaints of pain in the thoracic spine and the absence of any reference to the thoracic spine in the claim form also suggests causation is not established. The claimant was however referred to a rheumatologist on
12 December 2019, about three months after the accident for neck, mid back and lower back pain. In the light of the finding concerning impairment, the Panel does not propose to engage further with the issue of causation and is prepared to accept that there was a soft tissue injury to the mid back caused by the accident.
THE PANEL’S IMPAIRMENT ASSESSMENT
No assessable impairment
The claimant reported no current symptoms in her chest or pelvis. At the re-examination by Medical Assessor Cameron, no abnormality in the chest or pelvis was detected.
Clause 6.21 requires Medical Assessors and this Panel to assess an injury as it presents at the time of the assessment and cl 6.23 acknowledges that there are some injuries which do not attract any impairment and gives the following example, “uncomplicated healed sternal and rib fractures do not result in any assessable impairment.”
The Panel is not satisfied that there is any assessable impairment of the claimant’s chest or pelvic injuries. These appear, on the medical evidence and the re-examination, to have healed leaving no impairment.
The claimant did not report to the Medical Assessor any current symptoms in her head and in particular she did not report headaches as she has done to other assessors and examiners. Clause 6.162 of the Guidelines says that there is no separate allowance for impairment associated with headaches, but that headache is assessed as part of impairment to a specific structure such as the spine if headaches are for example related to neck pain.
There is no suggestion of an injury to the claimant’s face, eyes, earns or nose. The suggestion in the claim form is of a “heavy” head.
Assessment of head (brain) injuries is undertaken using Chapter 4 of AMA 4 Guides and requires consideration of the following as set out in cl 6.160:
(a) aphasia or communication disorders – there was no evidence of this at the re-examination. The claimant was able to speak and communicate with Medical Assessor Cameron throughout;
(b) mental status and integrative functioning;
(c) emotional and behavioural disturbances, and
(d) disturbances of consciousness and awareness – there is no suggestion in the records of any loss of consciousness or awareness at the time of the accident. The claimant reported feeling dizzy to ambulance and hospital.
For assessment of mental state or emotional and behavioural impairment, cl 6.164 requires there to be evidence of a significant impact to the head, or that the car accident involved a high velocity impact, and there must be a significant post-accident medically verifiable abnormality such as a brain scan or abnormal Glasgow Coma Scale score. The MRI of the claimant’s brain performed at Liverpool Hospital reported no abnormality, there is no evidence before the Panel as to the velocity of the impact and the ambulance records record a normal GCS score of 15 out of 15 on two occasions.
While the claimant may have sustained a soft tissue injury to a part of her head in the accident, the Panel is not satisfied that this has resulted in an assessable impairment.
Spinal impairment
Assessment of the spine requires consideration of Chapter 3 of AMA 4 Guides. The Guidelines permit only the diagnostic related estimate (DRE) method of assessment is to be used (cl 6.111). The spine is divided (cl 6.131) into three regions:
(a) cervical;
(b) thoracic, and
(c) lumbar.
If injury to the spine is alleged to more than one region, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.131). If there are multiple impairments within one spinal region the impairments are not combined but the highest rating category is chosen (6.132).
Clause 6.125 provides that the starting point for spinal impairment assessment is Table 6.7 where there are five diagnostic related categories listed and the DRE descriptors from pages 102 – 107 of the AMA 4 Guides are amended.
There are neurological differentiators (for example radicular symptoms versus radicular signs) and structural inclusions (for example vertebral fractures) to be considered. There is no evidence of any structural inclusion (such as fractures) in Ms El Jassem’s case.
The first category is DRE category I which is selected if there are symptoms which may include pain.
In the absence of structural inclusions, DRE category II requires there to be:
(a) pain with guarding or
(b) non-uniform range of motion – dysmetria or
(c) non-verifiable radicular complaints defined in table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling), and
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
A finding of DRE category III on the basis of radiculopathy requires as set out in cl 6.138 two or more of the following signs to be found on a clinical examination:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
If any impairment to the claimant’s shoulders results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351 that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.[20]
[20] This is referred to as the “Nguyen Principle”.
Cervical spine
Ms El Jassem has neck pain (and satisfies DRE Category II) but none of the five signs of cervical radiculopathy (and therefore does not satisfy the requirements of DRE Category III).
Ms El Jassem has asymmetric loss of movement of one plane of movement (cervical rotation) and there were complaints of sensory disturbance in the left hand consistent with “non verifiable radicular complaints”. These did not amount to one of the signs of radiculopathy and they could not be confirmed on objective testing by Medical Assessor Cameron.
The Panel is satisfied that the claimant’s soft tissue cervical spine (neck injury) attracts a DRE Category II - 5% WPI.
Thoracic spine
The claimant did not complain of any mid back or thoracic spine pain. There was no guarding or dysmetria or non-verifiable radicular complaints made at the re-examination with Medical Assessor Cameron and no signs of radiculopathy.
The Panel is of the view that any thoracic injury the claimant may have sustained has resolved leaving no assessable impairment.
Lumbar spine
Ms El Jassem has a longstanding pre-existing lumbar spine condition. On the basis of her evidence that she has no additional pain now or no symptoms worse than those she had before the accident, the Panel has determined she sustained an exacerbation of her pre-existing condition in the motor accident. It is the Panel’s view that any impairment the claimant has now is not an impairment resulting from the accident.
If the claimant’s history is incorrect, the Panel notes that the claimant complains of lower back pain but there was no guarding, no dysmetria, no non-verifiable radicular complaints and none of the five signs of radiculopathy found at the re-examination with Medical Assessor Cameron. If the claimant’s current lower back symptoms were caused by the motor accident, the claimant’s WPI resulting from that injury would be assessed as DRE Category I which attracts a WPI of 0%.
Left shoulder
The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are several methods of assessment available to a Medical Assessor:
(a) amputation (part 3.1b);
(b) sensory loss of the digits (part 3.1c);
(c) abnormal range of motion (part 3.1d);
(d) peripheral nerve disorders (part 3.1k);
(e) vascular disorders (part 3.1l), and
(f) other disorders (part 3.1m).
The abnormal range of motion requires the measurement of six functional units of motion:
(a) flexion and extension;
(b) abduction and adduction, and
(c) internal and external rotation.
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with table 3 on page 20 of AMA 4 Guides.
The range of motion measurements taken by Medical Assessor Cameron at the re-examination produce the following impairments:
LEFT Shoulder
RIGHT Shoulder
Motion (normal)
Degrees
UEI
Motion (normal)
Degrees
UEI
Flexion (180)
120
4
Flexion (180)
120
4
Extension (50)
30
1
Extension (50)
30
1
Abduction (180)
130
2
Abduction (180)
130
2
Adduction (50)
30
1
Adduction (50)
30
1
Internal rotation (90)
80
0
Internal rotation (90)
80
0
External rotation (90)
80
0
External rotation (90)
80
0
Total 8% UEI
Total 8% UEI
Issues with impairment - pre-existing condition
Clause 6.31 of the Guidelines provides for impairment assessment where there is a pre-existing impairment as follows:
“The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.”
Clause 6.31 does not require there to be a previous impairment assessment but evidence of a pre-existing symptomatic impairment which the Medical Assessors are able to calculate.
In Ms El Jassem’s case, she had left shoulder investigations undertaken in March 2010 due to left shoulder pain for two months. This identified degenerative changes and bursitis and tendonitis was present in that shoulder. While the notes of the claimant’s GP are handwritten and hard to read, it does not appear that there are any further entries relevant to left shoulder pain.
The evidence of degenerative changes in the claimant’s left shoulder joint before the accident leads the Medical Assessors to consider there is a reasonable expectation that the degenerative changes would have been causing the claimant symptoms including restriction of movement. The Panel is however not satisfied that there is sufficient evidence to determine the degree of any permanent impairment present at the time of the accident.
The right shoulder – the contralateral uninjured joint
When assessing impairment to an injured joint, the other joint must be considered. This is on the basis that both joints are likely to have the same range of motion. The use of the contralateral (and uninjured) joint is explained in the Guidelines as extracted below:
“6.51 If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline, and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision must be explained in the impairment evaluation report.
6.52 When using clause 6.51 (above), the medical assessor must subtract the total upper extremity impairment (UEI) for the uninjured joint from the total UEI for the injured joint. The resulting percentage UEI is then converted to WPI. Where more than one joint in the upper limb is injured and clause 6.51 is used, clause 6.51 must be applied to each joint.”
If, in Ms El Jassem’s case the right uninjured shoulder impairment of 8% was deducted from the left injured shoulder impairment the claimant would be left with 0% WPI in the left shoulder resulting from the accident.
The Medical Assessors are of the view that the claimant’s right uninjured shoulder should not be used as a baseline measure because there is no “reasonable expectation” that before the car accident, Ms El Jassem’s left shoulder would have had similar findings to the right shoulder due to the documented presence of degenerative changes in the left shoulder joint radiology of 2010.
Issues with impairment – inconsistency and variation
The Guidelines state at cl 6.50 that there are potential difficulties with the range of motion method and says:
“Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed. Range of motion is assessed as follows:
(a) a goniometer should be used where clinically indicated
(b) passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements
(c) if the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions
(d) if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation (see clause 6.40 of these Guidelines)
(e) 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 available evidence to determine if an impairment is present.”
Medical Assessor Cameron noted inconsistencies in motion and asked the claimant for an explanation. She responded that any inconsistency was due to variable pain levels.
While this may be a plausible reason for a variation in movement in the injured left shoulder during the course of the medical assessment, it is the clinical judgment of the medical members of the Panel that this is not a medically plausible reason for the variation in movement in the right shoulder (which the claimant said was not injured) and which in the earlier part of the re-examination she said was not painful and had no symptoms.
The Panel also notes the variation in measurements obtained by other Medical Assessors and examiners. For example, Medical Assessor Herald recorded a full range of left shoulder motion in 2023. This variation is more plausibly explained by the claimant’s report of fluctuating pain which the Medical Assessors accept would affect the range of motion in her injured shoulder from time to time. If that is the case, then the range of motion obtained on any one day is not a reliable indication of the claimant’s true level of left shoulder impairment.
Degree of shoulder impairment
It is the clinical judgment of the Medical Assessors that the range of motion method is not an appropriate method of assessment for the following reasons:
(a) the age of the claimant (currently 64) and the presence of degenerative changes in the claimant’s left shoulder joint before the accident which, in their clinical experience could have been causing symptoms including restriction of motion before the accident as discussed at [152] – [155] above;
(b) the inability to use the right shoulder as a baseline as explained in paragraphs [156] – [158] above;
(c) issues with variation and inconsistency as set out in paragraphs [159] – [162] above, and
(d) the length of time (six years) since the accident and the likelihood that the claimant’s degenerative changes would have progressed in that time regardless of the accident caused injury.
The Panel is however satisfied that there is a degree of impairment in the left shoulder resulting from the injury caused by the accident. The claimant promptly reported a left shoulder injury, and her GP and physiotherapist recorded a restricted range of motion early on.
The Medical Assessors are of the view that the assessment can be done by considering the impairment associated with a similar or analogous condition as follows:
(a) radiology before and after the accident indicates the presence of degenerative changes in the AC joint;
(b) the AC joint is responsible for 25% of the function of the upper extremity (or 15% of the whole body) as set out in Table 18 at page 58 of AMA 4 Guides;
(c) a condition causing mild crepitations in the left AC joint would also cause the sort of diminished range of motion experienced by the claimant in her left shoulder evident at the re-examination and variable with pain;
(d) mild crepitation in accordance with Table 19 at page 59 of AMA 4 Guides attracts a 10% impairment of the joint;
(e) 10% of the AC joint’s 25% of upper extremity function results in a UEI of 2.5% which is then rounded up to 3%, and
(f) a UEI of 3% converts to a 2% WPI in accordance with Table 3 at page 20 of the AMA 4 Guides.
CONCLUSION
The Panel adopts the clinical re-examination findings of Medical Assessor Cameron.
For the reasons set out above, the Panel is satisfied that the claimant has a WPI of 7% as follows:
(a) neck (cervical spine) DRE category II = 5%
(b) thoracic spine DRE category I = 0%
(c) lower back (lumbar spine) No current impairment or DRE category I = 0%
(d) left shoulder Range of motion = 2%
(e) chest No assessable impairment
(f) pelvis No assessable impairment
(g) head No assessable impairment
(h) right shoulder Not injured and no impairment
While the Panel has arrived at the same outcome as Medical Assessor Home (no impairment greater than 10%) the Panel has arrived at a different percentage. It follows therefore that Medical Assessor Home’s certificate must be revoked, and a fresh certificate issued.
ATTACHMENT 1 – COMPARATIVE SHOULDER MOVEMENT
| LEFT Shoulder (normal in brackets) | Dr Powell Mar 2021 | MA Herald Jun 2023 | MA Home Oct 2024 | Review Panel Jun 2025 |
| Flexion (180) | 140 | full | 120 | 120 |
| Extension (50) | 0 | full | 50 | 30 |
| Abduction (180) | 140 | full | 110 | 130 |
| Adduction (50) | 50 | full | 40 | 30 |
| Internal rotation (90) | 90 | full | 50 | 80 |
| External rotation (90) | 90 | full | 80 | 80 |
| UEI | 8% UEI | 0% UEI | 9% UEI | 8% UEI |
| RIGHT Shoulder (normal in brackets) | Dr Powell Mar 2021 | MA Herald Jun 2023 | MA Home Oct 2024 | Review Panel Jun 2025 |
| Flexion (180) | 160 | N/A | 140 | 120 |
| Extension (50) | 0 | 50 | 30 | |
| Abduction (180) | 180 | 140 | 130 | |
| Adduction (50) | 50 | 50 | 30 | |
| Internal rotation (90) | 90 | 70 | 80 | |
| External rotation (90) | 90 | 90 | 80 | |
| UEI | 4% UEI | 6% UEI | 8% UEI |
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