Esen v Insurance Australia Limited t/as NRMA Insurance

[2025] NSWPICMP 276

DETERMINATION OF REVIEW PANEL

CITATION:

Esen v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 276

CLAIMANT:

Sati Esen

INSURER:

Insurance Australia Limited t/as NRMA Insurance

REVIEW PANEL

MEMBER:

Anthony Scarcella

MEDICAL ASSESSOR:

Sophia Lahz

MEDICAL ASSESSOR:

Les Barnsley

DATE OF DECISION:

22 April 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; review of Medical Assessment Certificate (MAC); assessment of whole person impairment (WPI); Medical Assessor (MA) determined 6% WPI; review sought by claimant under section 63; consideration and application of clauses 1.5 to 1.7 of the Motor Accident Permanent Impairment Guidelines in respect of causation and clauses 1.50, 1.116-1.132 in respect of the assessment of permanent impairment; Held – MAC revoked and new certificate issued; claimant sustained soft tissue injuries and aggravations of pre-existing conditions in the cervical spine, lumbar spine and left shoulder; WPI assessed at 2%; no evidence of injury to the right shoulder.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

Issued under s 61 of the Motor Accidents Compensation Act 1999

The Review Panel:

1.      Revokes the certificate issued by Medical Assessor Robin Fitzsimons dated 1 December 2023.

2.      Certifies that the claimant sustained soft tissue injuries and aggravations of pre-existing conditions in the cervical spine, lumbar spine and left shoulder caused by the motor accident on 30 August 2015 that give rise to a whole person impairment which is not greater than 10%, that is, 2%.

A statement setting out the Review Panel’s reasons for the assessment is attached to this certificate.

STATEMENT OF REASONS

BACKGROUND

1. The claimant, Ms Sati Esen, is a 79-year-old woman who was involved in a motor accident on 30 August 2015. She was a seat-belted front seat passenger in a motor vehicle driven by her husband that slowed to make a right hand turn into a driveway. Another vehicle was travelling behind them at the time and collided with the driver’s side of their car (the motor accident).

2. Ms Esen lodged a Motor Accident Personal Injury Claim Form. The relevant compulsory third party insurer is Insurance Australia Limited t/as NRMA Insurance (the insurer).

3. Ms Esen claims that the motor accident caused her to suffer injuries to her cervical spine, lumbar spine and bilateral shoulders.

4. The claim is governed by the provisions of the Motor Accidents Compensation Act 1999 (MAC Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of benefits and compensation by way of lump sum damages (under Chapter 5) for persons injured in motor accidents in New South Wales.

5. A medical dispute about the degree of Ms Esen’s whole person impairment (WPI) in respect of her claimed physical injuries has arisen in connection with her claim, namely, whether her WPI is greater than 10%. This constitutes a medical assessment matter under s 58(1)(d) of the MAC Act.

6. A medical assessment matter is determined in accordance with Chapter 3, Part 3.4 of the MAC Act.

7. The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission firstly assigned it to Medical Assessor Ian Cameron, who was asked to assess soft tissue injuries to the lumbosacral spine and bilateral shoulders only. That is, the cervical spine was not referred for assessment. On 10 February 2018, Medical Assessor Cameron determined that the symptoms in Ms Esen’s lumbosacral spine and left shoulder were caused by the motor accident but that the symptoms in the right shoulder were not. He assessed a 1% WPI.

8. The medical dispute was then referred to the Commission for further assessment and it was assigned to Medical Assessor Peter Steadman, who was asked to assess soft tissue injuries to the cervical spine, lumbosacral spine and bilateral shoulders. On 19 August 2019, Medical Assessor Steadman determined that the symptoms in Ms Esen’s cervical spine were caused by the motor accident but that the symptoms in the bilateral shoulders and lumbosacral spine were not. He assessed a 5% WPI.

9. The medical dispute was then referred to the Commission for further assessment and it was assigned to Medical Assessor Robin Fitzsimons for a further assessment of the degree of permanent impairment. On 1 December 2023, Medical Assessor Fitzsimons determined that Ms Esen had suffered soft tissue injuries and aggravations of prior degenerative diseases in the cervical spine, lumbar spine and left shoulder caused by the motor accident and assessed Ms Esen as having a WPI not greater than 10%, namely, 6% (the Medical Assessment).

REVIEW PROCEDURE

1. Ms Esen sought a review of the further Medical Assessment in accordance with s 63 of the MAC Act (the Review).

2. On 21 February 2024, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).

3. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision-maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.

4. The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 63(3) of the MAC Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.

5. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act.

6. The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 63(3A) of the MAC Act.

7. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.

8. On 22 February 2024, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle on which they relied in the Review.

9. On 15 July 2024, the Panel informed the parties that it considered a re-examination of Ms Esen was required. Arrangements were made for Ms Esen to be jointly re-examined by Medical Assessors Sophia Lahz and Les Barnsley at the Commission’s medical suites on 27 November 2024.

LEGISLATIVE FRAMEWORK

General provisions

1. Section 3 of the MAC Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.

2. Ms Esen’s claim and entitlements to compensation are governed by the provisions of the MAC Act. An injured person can make a claim for both economic losses and non-economic loss damages.

3. However, s 131 of the MAC Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

Permanent impairment assessment

1. Section 44(1)(c) of the MAC Act states Motor Accidents Medical Guidelines may be issued in respect of the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.

2. The current Motor Accident Permanent Impairment Guidelines are effective from 1 June 2018 (the Guidelines). The Guidelines were developed for the purpose of assessing the degree of permanent impairment arising from the injury caused by a motor accident, in accordance with s 133(2)(a) of the MAC Act: cl 1.1 of the Guidelines.

3. The Guidelines adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 1.2 of the Guidelines. They apply under the MAC Act to the assessment of the degree of permanent impairment that has resulted from an injury caused by a motor accident occurring between 5 October 1999 and 30 November 2017 inclusive: cl 1.3 of the Guidelines.

4. Causation of injury is addressed in cls 1.5, 1.6 and 1.7 of the Guidelines.

5. Clause 1.6 of the Guidelines notes:

   “1.6   Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

   ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

   1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

   2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

   This, therefore, involves a medical decision and a non-medical informed judgement.”

1. Clause 1.7 of the Guidelines states:

   “There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

2. Sections 5D (duty of care – general principles) and 5E (onus of proof) of the Civil Liability Act 2002 (the CLA) apply to the MAC Act: s 3B(2) of the CLA.

3. Pre-existing impairment is addressed in cls 1.31, 1.32 and 1.33 of the Guidelines.

4. The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 1.31 of the Guidelines.

5. Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 1.33 of the Guidelines.

6. Subsequent injury is addressed in cl 1.34 of the Guidelines which states:

   “The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”

EVIDENCE BEFORE THE PANEL

1. The evidence before the Panel consisted of the following:

   (a)    Ms Esen’s indexed and paginated bundle of documents lodged on the Commission’s portal on 1 May 2024 (claimant’s documents);

   (b)    The insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 2 May 2024 (insurer’s documents);

   (c)    Ms Esen’s Application to Admit Late Documents dated 26 August 2024 and attached documents (AALD 1), and

   (d)    Ms Esen’s Application to Admit Late Documents dated 9 September 2024 and attached documents (AALD 2).

ASSESSMENT UNDER REVIEW

1. Medical Assessor Fitzsimons examined Ms Esen on 27 March 2023 and on 13 July 2023 and issued a further certificate under s 61 of the MAC Act on 1 December 2023.[1]

   [1] Claimant’s documents at pages 33-55.

2. Medical Assessor Fitzsimons was asked to further assess the dispute between the parties about the degree of permanent impairment under s 58(1)(d) of the MAC Act in respect of the following claimed injuries:

   (a)    cervical spine – soft tissue injury;

   (b)    lumbar spine – soft tissue injury;

   (c)    left shoulder – soft tissue injury, and

   (d)    right shoulder – soft tissue injury.

3. Medical Assessor Fitzsimons observed that Ms Esen was extremely vague about her medical history. The following pre-motor accident medical history was recorded:

   (a)    1977/1978: motor vehicle accident wherein she suffered injuries to the back of her head, back and a fractured nose resulting in hospitalisation for about 13 days; back pain continued on and off until the subject motor accident;

   (b)    1978: pinched nerve on the left side of her neck (left trapezius muscle);

   (c)    1984: surgery on a lump to the back of the head;

   (d)    2008: diagnosed with rheumatoid arthritis;

   (e)    diabetes myelitis;

   (f)    hypothyroidism, and

   (g)    hypertension.

4. Medical Assessor Fitzsimons took a history that Ms Esen was the front seat passenger in a car driven by her husband about to turn right when it was hit at the front driver’s side door by another vehicle. Ms Esen hit her left shoulder on the door of the car. She felt a tightness in her chest. She was helped out of the car. An ambulance was called but she decided not to go to hospital. The car she was travelling in was written off. She consulted Dr Emin, general practitioner a few days later, primarily because of left shoulder pain but she also had neck pain, back pain and left hip pain but no leg pain at that time. The left arm was placed in a sling and she was referred to Dr Yalizis, shoulder surgeon. She avoided seeing doctors in the hope that symptoms would go away.

5. Medical Assessor Fitzsimons noted that Ms Esen’s back pain became significantly worse following the motor accident and she experienced more difficulties doing housework.

6. In respect of relevant injuries or conditions sustained since the motor accident, Medical Assessor Fitzsimons noted that Ms Esen underwent a left shoulder arthroscopic decompression, biceps tenotomy and distal clavicle excision by Dr Yalizis on 12 December 2020, the operative findings of which included frayed bursal surface supraspinatus tendon and partially frayed biceps tendon. Ms Esen stated that she was happy with the results of the surgery and did not notice any pain unless she used the left arm. About one year after the surgery, she noticed a sudden pain in the left shoulder as she was getting up.

7. In respect of general presentation on clinical examination, Medical Assessor Fitzsimons observed that Ms Esen was sometimes vague in relation to her history, particularly dates, but explained that she was nervous, which was accepted by the assessor. Ms Esen was also observed to have an obvious head tremor that became worse with nervousness. Medical Assessor Fitzsimons opined that the most usual explanation of the head tremor was one of benign essential tremor and not Parkinson’s disease.

8. On examination of the cervical spine, Medical Assessor Fitzsimons observed no cervical guarding; minimal tenderness; half normal movement in flexion and extension; full left cervical rotation; full bilateral lateral flexion; rotation to the right slightly restricted to about three quarters normal. There were no radicular abnormalities of power or sensation in the upper limbs and the right upper arm measured 1cm greater in circumference than the left. Forearms were equal in circumference.

9. On examination of the lumbar spine, Medical Assessor Fitzsimons observed no lumbar guarding; mild non-focal tenderness across the lower back; and lateral flexion, lateral rotation and especially, forward flexion/extension were restricted but in a symmetrical way. Straight leg raising was only permitted to about 30° bilaterally when it resulted in back pain extending down the thigh as far as the knees. Pain was made worse by either foot dorsi flexion or plantar flexion but did not have the characteristics of nerve stretch and was interpreted as a negative nerve stretch test. There were no radicular abnormalities of power or sensation in the lower limbs. Knee reflexes were very brisk but within broad normal limits. Left ankle reflex was present and normal but right ankle reflex could not be elicited. There was no muscle wasting due to lumbar disc disease. The differences in leg circumference measurements were not sufficient to qualify as signs of radiculopathy.

10. On examination of the upper extremities, Medical Assessor Fitzsimons observed no focal tenderness. The following active range of movements (ROM) were recorded with a goniometer:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	120°	100°
Extension	30°	40°
Adduction	20°	30°
Abduction	80°	70°
Internal Rotation	20°	40°
External Rotation	70°	90°

1. In respect of consistency, Medical Assessor Fitzsimons noted that the history was difficult to elicit and at times, seemed contradictory. Ms Esen could not recall some past events. Testing of straight leg raising elicited some responses which could not be readily explained on organic pathology. There had been some variation in Ms Esen’s left shoulder movements over the years.

2. Medical Assessor Fitzsimons undertook a thorough review of the relevant documentation and radiological, medical imaging and other investigations provided to him.

3. Medical Assessor Fitzsimons concluded that the following injuries were caused by the motor accident:

   (a)    cervical spine – aggravation of prior degenerative disease/soft tissue injury;

   (b)    lumbar spine – aggravation of prior degenerative disease/soft tissue injury, and

   (c)    left shoulder – aggravation of prior degenerative disease/soft tissue injury.

4. Medical Assessor Fitzsimons concluded that the claimed right shoulder injury was not caused by the motor accident.

5. In respect of the cervical spine, Medical Assessor Fitzsimons assessed Ms Esen as diagnosis-related estimate (DRE) Cervicothoracic Category II, attracting a 5% WPI on the basis that she had minor asymmetry of neck movement.

6. In respect of the lumbar spine, Medical Assessor Fitzsimons assessed Ms Esen as DRE Lumbosacral Category I, attracting a 0% WPI on the basis that it was questionable whether her legs symptoms were radicular and affected by the motor accident because she could not recall if or when she had leg symptoms after the accident. None were recorded early on. However, if such leg symptoms were considered to be radicular, there was strong evidence that they were present immediately prior to the motor accident and that any leg symptoms did not occur in the early aftermath of the accident and not until significantly later. In the alternative, if such symptoms were to be classified as radicular following the motor accident, they would be classified as DRE Lumbosacral Category II (5% WPI), with a subtraction of 5% WPI because there were leg symptoms associated with back pain immediately prior to the motor accident and in earlier years.

7. In respect of the left shoulder, Medical Assessor Fitzsimons assessed Ms Esen at 1% WPI.

8. Accordingly, Medical Assessor Fitzsimons assessed the combined WPI at 6%.

REVIEW OF THE EVIDENCE

Treating medical records and reports

Pre-accident

1. In evidence, were clinical records pertaining to Ms Esen produced by Dr Shareef Dowla, consultant in neurology and clinical neurophysiology.[2] There were also general practitioner clinical records produced by Blacktown Family Medical Centre[3] and Dr Mark Liew, rheumatologist, of Pacific Medical and Dental Centre Blacktown.[4]

   [2] Insurer's documents at pages 68-125.

   [3] Claimant's documents at pages 83-104.

   [4] AALD 2 at pages 3-294.

2. There were regular attendances by Ms Esen on Dr Liew at the Pacific Medical and Dental Centre Blacktown between 4 February 2013 and 13 November 2023 for the monitoring and management of her rheumatoid arthritis in the clinical records. Medication compliance by Ms Esen was an issue raised by Dr Liew from time to time in the clinical records.

3. On 23 October 2003, Dr Dowla reported to Dr Naeem Hanna, general practitioner, that he had conducted a nerve conduction study on Ms Esen.[5] Dr Dowla observed that there was mild bilateral median nerve slowing at the wrist, typical of carpal tunnel syndrome. Reflex conduction across the right C6/7 and C7/8 segment was within normal limits. He suspected that Ms Esen had significant inflammatory forms of arthritis that needed to be brought under control before consideration could be given for carpal tunnel decompression. He suggested the use of a splint on her right hand and that she consult Dr Liew for further review and tightening the control of her arthritis.

   [5] Insurer's documents at pages 99-100.

4. On 15 March 2007, Dr Dowla reported to Dr Hanna that he had conducted a nerve conduction study on Ms Esen.[6] Dr Dowla noted similar findings to that in his report dated 23 October 2003 and stated that he was not in favour of carpal tunnel decompression because her inflammatory forms of arthritis needed to be brought under control.

   [6] Insurer's documents at pages 101-102.

5. On 13 September 2007, Dr Dowla reported to Dr Hanna that he suspected Ms Esen to be suffering from cervical dystonia with dystonic tremor, which was likely to respond to Botox.[7] He opined that any medical treatment was likely to be unsuccessful and referred her to Dr Victor Fung to undertake Botox treatment.

   [7] Insurer's documents at page 103.

6. On 23 July 2009, Ms Esen underwent a lumbosacral CT scan by Dr Caitlin Kapoor, radiologist, on the referral of Dr Hanna. The clinical notes relating to the referral were of bilateral sciatica. Dr Kapoor concluded the presence of L5/S1 disc degenerative change with disc herniation, which may have been irritating both S1 descending nerve roots.[8]

   [8] Insurer's documents at page 88.

7. On 15 September 2009, Dr Dowla reported to Dr Hanna that he had conducted a nerve conduction study and electromyography (EMG) on Ms Esen.[9] Dr Dowla concluded that the study demonstrated minor chronic neurogenic changes suggestive of right S1 sensory radiculopathy. He reviewed the lumbar CT scan dated 23 July 2009. He suspected that some irritation to the right S1 nerve root was quite possible. He thought that it may be partially compressed but that Ms Esen may only benefit from having physiotherapy and exercise. He did not recommend surgical intervention unless the pain worsened and more definitive nerve conduction studies ensued.

   [9] Insurer's documents at pages 107-109.

8. On 12 January 2010, Dr Liew reported to Dr Hanna that Ms Esen had complained of an exacerbation of her arthropathy to the left shoulder, left elbow and both hind and mid-feet. There was some soft tissue swelling and tenderness in both ankles and mid-tarsal joints. Dr Liew opined that Ms Esen had suffered an exacerbation of her rheumatoid disease.[10]

   [10] AALD 2 at page 183.

9. On 15 March 2010, Dr Dowla reported to Dr Hanna that he had reviewed Ms Esen.[11] In the report, he noted the following diagnoses: non-insulin-dependent diabetes myelitis; hypertension; cervical dystonia with tremor; bilateral carpal tunnel syndrome; rheumatoid arthritis; and lumbar spondylosis with probable right S1 sensory radiculopathy. Dr Dowla noted that Ms Esen’s lower back pain was still troubling her and she was experiencing some difficulty sleeping. Clinically, she had no significant weakness or wasting; right ankle jerks were sluggish; knee jerks were symmetrical and present; and gait was normal. He recommended physiotherapy.

   [11] Insurer's documents at page 105.

10. On 12 October 2010, Dr Dowla reported to Dr Hanna that Ms Esen had complained that headaches from cervical dystonia were becoming worse and that her head tended to go into spasm and move to the right. A mild head tremor had also developed. Dr Dowla increased the dose of Endep from 25mg nightly to 50mg nightly to control her headache.[12]

    [12] Insurer's documents at page 106.

11. On 16 November 2010, Ms Esen presented to Dr Hemant Kumar, general practitioner, of Blacktown Family Medical Centre with a history of bilateral leg pain, low back pain, left elbow pain and neck pain.[13]

    [13] Claimant's documents at pages 96-97.

12. On 14 February 2011, Ms Esen presented to Dr Yen Tao, general practitioner, of Blacktown Family Medical Centre complaining of, amongst other things, low back pain radiating to the back of her legs (long history) and neck pain from an old car accident and surgery for a cyst at the back of her neck.[14]

    [14] Claimant's documents at page 96.

13. On 23 April 2013, a nurse at the Main Street Family Medical Centre applied gentle ultrasound treatment to Ms Esen’s neck region.[15]

    [15] Claimant's documents at page 369.

14. On 8 October 2013, Ms Esen consulted Dr Alaaddin Emin, general practitioner, of Main Street Family Medical Centre complaining of ongoing hip and lower back pain, amongst other things.[16]

    [16] Claimant's documents at page 372.

15. On 26 November 2013, Ms Esen consulted Dr Emin complaining of ongoing neck and upper back pain. He referred her for X-rays of her cervical spine and thoracic spine.[17]

    [17] Claimant's documents at page 372.

16. On 4 June 2014, Ms Esen consulted Dr Emin complaining of ongoing lower back and bilateral shoulder pain.[18]

    [18] Claimant's documents at page 377.

17. On 19 August 2015, Ms Esen consulted Dr Becky Zhang, general practitioner, of Main Street Family Medical Centre complaining of low back pain. On examination, Dr Zhang observed tenderness to the paraspinal area in the lumbar spine with limited range of movement. Dr Zhang recommended analgesia and low-grade exercise.[19]

    [19] Claimant's documents at page 384.

18. On 24 August 2015, Ms Esen consulted Dr Zhang complaining of low back pain. On examination, Dr Zhang again observed tenderness to the paraspinal area in the lumbar spine with limited range of movement. Dr Zhang again recommended analgesia and low-grade exercise.[20]

    [20] Claimant's documents at page 384.

Post accident

1. In evidence, is the NSW Ambulance electronic medical record dated 30 August 2015.[21] The electronic record confirmed that an ambulance crew attended the scene of the motor accident. Ms Esen’s personal details were recorded. The following case description was also recorded:

   “O/A [on arrival] fire rescue on scene at MVA. Pt [patient] was sitting with legs outside car on passenger side. Pt was restrained front seat passenger of small sedan that was hit on drivers [sic] side at low speed. There was minmal [sic] damage to right side of car and no airbags deployed. Pt was ambulant and complained of R lateral neck tenderness and L shoulder pain. This pain was minor and tender to touch. All limbs had good ROM, pt ventilated well and no motor/sensory deficits. All other sign/symptoms as listed and pt advised to rest, take own analgesia as required and visit own GP if required. Pt was also offered Tx [transfer] to hospital on 2 occasions but pt declined. Pt also advised strongly to call back if condition worsens. This was understood and while finishing assessment pts grandson arrived on scene. This grandson was also advised to monitor pt and call back if condition changed.”[22]

   [21] Insurer’s documents at pages 62-67.

   [22] Insurer’s documents at page 63.

2. The NSW Ambulance electronic medical record noted that, on primary survey, there was no immediate life threat. On secondary survey, right cervical spine pain was described as aching, as was left shoulder pain. Ms Esen was reassured by the ambulance paramedics and it was noted that she stated to them that she felt better.

3. On 31 August 2015, Ms Esen consulted Dr Zhang complaining of low back pain. Dr Zhang again observed tenderness to the paraspinal area in the lumbar spine with limited range of movement. Dr Zhang again recommended analgesia and low-grade exercise. The clinical records made no reference to the motor accident on 30 August 2015.[23]

   [23] Claimant's documents at page 385.

4. On 16 September 2015, Ms Esen consulted Dr Emin complaining of whole back pain and pain in the shoulders following a motor accident on 30 August 2015. On examination, Dr Emin observed tenderness at C7, around the back of both shoulders, sacroiliac joint and the L5 area. He completed an accident notification form. He prescribed Ms Esen with Panadol Osteo 665mg tablets.[24]

   [24] Claimant's documents at page 385.

5. On 28 September 2015, Ms Esen consulted Dr Emin complaining of pain in the whole of the back and pelvis and numbness under both feet. Dr Emin referred her for a CT scan of her lumbosacral spine and an MRI scan of her cervical spine. He prescribed her Endone 5mg tablets.[25]

   [25] Claimant's documents at page 385.

6. On 28 September 2015, Ms Esen underwent a CT scan of her lumbosacral spine by Dr Sonia Kariappa on the referral of Dr Emin. The clinical reasons for the referral were stated to be a recent motor vehicle accident and numbness in both feet. Dr Kariappa found a mild central type canal stenosis at L4/5 and posterior-lateral osteophytosis causing neural exit foraminal narrowing bilaterally at L5/S1.[26]

   [26] AALD 1 at page 54.

7. On 6 October 2015, Ms Esen underwent a multi-positional MRI scan of her cervical spine by Dr Matthew Lee on the referral of Dr Emin. The clinical reasons for the referral were stated to be a recent motor vehicle accident and pain in the neck with numbness in the arms, the right greater than the left. Dr Lee found multilevel degenerative discs in keeping with age; severe left C3/4 foraminal stenosis; and a broad-based disc osteophyte at C5/6 with cord contact but no signal change.[27]

   [27] AALD 1 at pages 52-53.

8. On 8 October 2015, Ms Esen consulted Dr Emin complaining of a lot of pain in her back and various body parts. Dr Emin referred her to Dr Geoffrey Needham.[28]

   [28] Claimant's documents at page 386.

9. On 28 October 2015, Ms Esen consulted Dr Geoffrey Needham, consultant in rehabilitation and pain medicine, on the referral of Dr Emin. Dr Needham noted that Ms Esen had suffered a jarring injury to her cervical spine and lumbar spine in a motor accident on 30 August 2015, when the vehicle in which she was travelling was clipped on the driver’s side by an overtaking vehicle. She was a front seat passenger. She reported persistent neck pain radiating to the left shoulder region and some difficulty walking. Dr Needham noted Ms Esen’s background of glucose intolerance and rheumatoid arthritis for which she had been on treatment for many years. He reviewed a CT scan and MRI scan of her cervical spine. He referred Ms Esen to Dr Dowla for neurological assessment and nerve conduction studies.[29]

   [29] Claimant's documents at page 175.

10. On 9 November 2015, Dr Dowla reported to Dr Needham and Dr Hanna that Ms Esen had presented with a history of the motor accident on 30 August 2015. Since the motor accident she had experienced persistent neck pain radiating to the shoulders, more particularly, the left shoulder and also had difficulty walking. He observed an antalgic gait but no weakness or wasting. All tendon reflexes were present and symmetrical. A Tinel’s sign was negative. He conducted a nerve conduction study and EMG and concluded that the study demonstrated no evidence of focal or generalised neuropathy or radiculopathy. He noted that an MRI scan of the cervical spine on 6 October 2015 showed multilevel degenerative changes but no neural compromise. He recommended that Ms Esen would benefit from intensive physiotherapy.[30]

    [30] Insurer's documents at pages 110-111.

11. On 18 November 2015, Ms Esen consulted Dr Needham, who noted that she continued to complain of neck pain and referred left arm pain together with lower back pain and bilateral lower limb pain in relation to the motor accident. He noted that recent nerve conduction studies performed by Dr Dowla demonstrated no evidence of overt neuropathy or radiculopathy. Ms Esen felt that her back pain was the current predominant symptom and Dr Needham suggested a trial of bilateral facet joint injections at L5/S1.[31]

    [31] Claimant's documents at page 173.

12. On 14 December 2015, Ms Esen underwent a CT facet joint injection into her right and left L5/S1 facet joints/capsules and periarticular regions. The clinical reasons for the referral were stated to be back pain.[32]

    [32] AALD 1 at page 51.

13. On 16 December 2015, Ms Esen consulted Dr Needham advising that she had undergone lumbar facet joint injections with no improvement to date. Dr Needham was hopeful of some back pain reduction over the next few weeks and suggested she undertake further physiotherapy in the new year.[33]

    [33] Claimant's documents at page 172.

14. On 11 May 2016, Ms Esen consulted Dr Needham complaining of continuing back pain and referred left leg pain. Due to adverse side-effects, Dr Needham ceased the prescription of Lyrica. He suggested that Ms Esen undergo a progress lumbar spine MRI due to the persistence of symptoms.[34]

    [34] Claimant's documents at page 174.

15. On 23 May 2016, Ms Esen underwent an MRI scan of her lumbar spine at Blacktown and Mount Druitt Hospital medical imaging department by Dr Brian Lam on the referral of Dr Needham. Dr Lam found no evidence of mechanical neural impingement to account for sciatica. Facet joint degeneration with high-grade synovitis was present at the right L4/5 level. There was moderate left L4/5 facet joint synovitis and mild right L3/4 and L5/S1 facet joint synovitis.[35]

    [35] AALD 2 at page 215.

16. On 25 May 2016, Ms Esen consulted Dr Needham complaining of ongoing back pain. He noted that the recent lumbar spine MRI scan demonstrated high-grade facet joint synovitis at the L4/5 level. He suggested that Ms Esen undergo facet joint injections at these sites. On examination, Dr Needham noted quite active rheumatoid arthritis affecting her proximal interphalangeal joints.[36]

    [36] Claimant's documents at page 170.

17. On 7 June 2016, Ms Esen underwent a CT facet joint injection into the right and left L4/5 facet joint/capsule and periarticular region by Dr Lee on the referral of Dr Needham. The clinical reasons for the referral were stated to be lumbar pain.[37]

    [37] AALD 1 at page 49.

18. On 22 June 2016, Ms Esen consulted Dr Needham and reported that her recent right L4/5 facet joint injection had been a definite benefit in relation to her persistent lumbar spine pain.[38]

    [38] Claimant's documents at page 171.

19. On 24 August 2016, Ms Esen consulted Dr Needham reporting that the benefits of her right L4/5 facet joint injection had not been sustained for more than two weeks. She complained of ongoing spinal pain.[39]

    [39] Claimant's documents at page 169.

20. On 13 September 2016, Ms Esen underwent a left shoulder ultrasound by Dr Kapoor on the referral of Dr Liew. The clinical reasons for the referral were stated to be rotator cuff disease. Dr Kapoor observed a partial supraspinatus tear; a partial subscapularis tear; acromioclavicular joint space synovitis and arthrosis with a small 7mm ganglion cyst; and subacromial bursitis.[40]

    [40] AALD 2 at page 216.

21. On 28 September 2016, Ms Esen underwent an ultrasound guided injection into the left subacromial bursa by Dr Shane Connolly on the referral of Dr Emin. The clinical reasons for the referral were stated to be worsening left shoulder pain.[41]

    [41] AALD 1 at page 45.

22. On 5 October 2016, Ms Esen consulted Dr Needham reporting that the recent left shoulder injection provided moderate benefit.[42]

    [42] Claimant's documents at page 168.

23. On 8 November 2016, Dr Dowla reported to Dr Emin that Ms Esen had been complaining of pain in her neck radiating to the left shoulder and also pain affecting her back, leg and feet. He observed that she had mild head tremor but no cogwheeling or any parkinsonian manifestation. There was no weakness or wasting and all tendon reflexes were sluggish. Tinel’s sign was negative. He conducted a nerve conduction study of the lower limb and concluded that it showed borderline sensory action potential, in keeping with early diabetic neuropathy. He reviewed a left shoulder ultrasound which showed evidence of subacromial bursitis, a partial supraspinatus tear, mild acromioclavicular synovitis and arthrosis. Dr Dowla recommended that Ms Esen continue medicating with Panadol Osteo and Mobic and that she undergo blood tests to ascertain how much of her problem was related to rheumatoid arthritis or neuropathy. He also recommended a course of physiotherapy.[43]

    [43] Insurer's documents at pages 112-113.

24. On 9 November 2016, Ms Esen consulted Dr Needham complaining of left shoulder and neck pain. She also complained of persistently restricted abduction to about 90° and was awaiting further physiotherapy.[44]

    [44] Claimant's documents at page 167.

25. On 25 January 2017, Ms Esen consulted Dr Needham complaining of ongoing left shoulder pain. Dr Needham observed that she appeared to have slightly improved shoulder range of movement and could now abduct beyond 100°. He recommended she undergo further left subacromial steroid injection and further physiotherapy.[45]

    [45] Claimant's documents at page 165.

26. On 27 January 2017, Dr Dowla reported to Dr Emin that Ms Esen complained of having developed a left-sided sciatica-like pain that had been gradually getting worse over the past 18 months. She experienced difficulty walking. She had an antalgic gait with absent knee and ankle jerks without weakness. He conducted a nerve conduction study and an EMG of the lower limb and concluded that the study demonstrated borderline sensory action potential, in keeping with diabetic polyneuropathy. The EMG study showed no significant neurogenic change. He recommended that she undergo a lumbar spine MRI scan and that she commence physiotherapy.[46]

    [46] Insurer's documents at pages 114-115.

27. On 31 January 2017, Ms Esen underwent a left shoulder injection by Dr Sonia Kariappa on the referral of Dr Needham. The clinical reasons for the referral were stated to be shoulder pain, tendinitis/bursitis.[47]

    [47] AALD at page 44.

28. On 27 February 2017, Ms Esen underwent an MRI scan of her spine at Blacktown and Mount Druitt Hospital medical imaging department by Dr Andrew Jones on the referral of Dr Dowla. The clinical notes relating to the referral were a history of left sciatica. Dr Jones concluded that there was advanced degenerative change at the right facet joint at L4/5 (increased when compared to the previous MRI scan) with mild posterior bony lipping and disc bulging towards the left. There was narrowing of the space for the left descending L5 nerve root as it crossed this level with moderate bilateral foraminal narrowing, similar to that previously seen.[48]

    [48] Insurer's documents at page 96.

29. On 15 March 2017, Ms Esen consulted Dr Needham complaining of ongoing neck pain and left shoulder pain. Dr Needham referred her for MRI scans of her cervical spine and left shoulder for further investigation.[49]

    [49] Claimant's documents at page 166.

30. On 17 March 2017, Dr Dowla reported to Dr Emin and Dr Needham that Ms Esen complained that her back pain was persisting. He noted the findings in the lumbar spine MRI scan dated 27 February 2017 and suggested that Ms Esen be reviewed by Dr Needham for further consideration of a spinal block, particularly, the right facet joints of L4/5 or possibly a right L5 perineural block.[50]

    [50] Insurer's documents at page 116.

1. On 2 May 2017, Ms Esen underwent an MRI scan of her cervical spine at Blacktown and Mount Druitt Hospital medical imaging department by Dr John Ly on the referral of Dr Needham. Dr Ly concluded that the imaging demonstrated mild multilevel spondylotic changes of the cervical spine.[51]

   [51] Claimant's documents at page 180.

2. On 2 May 2017, Ms Esen also underwent an MRI scan of her cervical spine at Blacktown and Mount Druitt Hospital medical imaging department by Dr Ly on the referral of Dr Needham. Dr Ly concluded that the imaging demonstrated high-grade tendinopathy of the supraspinatus and suspicion of a near full-thickness tear of the anterior to mid-insertion measuring up to 15mm.[52]

   [52] Claimant's documents at pages 182-183.

3. On 17 May 2017, Ms Esen consulted Dr Needham complaining of persistent neck and left shoulder pain. Dr Needham referred to the recent MRI studies. The left shoulder condition appeared to be the major contributor towards her pain symptoms. He advised of the importance to continue with active range of motion exercises in order to avoid a frozen shoulder.[53]

   [53] Claimant's documents at page 163.

4. On 28 June 2017, Ms Esen consulted Dr Needham complaining of ongoing left shoulder pain with restricted range of movement. Dr Needham opined that it would be reasonable to obtain a surgical opinion in respect of the left shoulder, if she wished to do so. However, he was inclined to persevere with conservative management at the present time.[54]

   [54] Claimant's documents at page 162.

5. On 11 July 2017, Ms Esen consulted Dr Matthew Yalizis, orthopaedic surgeon, on the referral of Dr Emin. Dr Yalizis noted that Ms Esen had developed quite debilitating pain in her left shoulder following a car accident in 2015. He opined that her presentation was consistent with subacromial bursitis and biceps tendonitis that would be best managed non-operatively. He suggested one further ultrasound guided injection. If the injection is not of any benefit, then he would place her on the waiting list at Mount Druitt Hospital for a subacromial decompression and biceps tenotomy.[55]

   [55] Claimant's documents at page 241.

6. On 12 July 2017, Ms Esen underwent an ultrasound guided left shoulder injection by Dr Lee on the referral of Dr Yalizis.[56]

   [56] AALD 1 at page 42.

7. On 27 July 2017, Ms Esen consulted Dr Yalizis advising that the ultrasound guided left shoulder injection provided only minimal relief. Dr Yalizis opined that Ms Esen was still experiencing significant pain and had exhausted all her non-operative options. The only option remaining was for her to undergo arthroscopic subacromial decompression and biceps tenotomy.[57]

   [57] Claimant's documents at page 247.

8. On 9 August 2017, Ms Esen consulted Dr Needham complaining of persistent left shoulder pain. She had undergone two steroid injections with limited benefit and was now under consideration of reconstructive left shoulder surgery, if approved by the insurer.[58]

   [58] Claimant's documents at page 164.

9. On 23 May 2018, Ms Esen consulted Dr Needham complaining of ongoing severe left shoulder pain with reduced range of movement. He noted that left shoulder surgical repair was suggested but had not been funded by the insurer. He referred her for a progress left shoulder MRI scan.[59]

   [59] Claimant's documents at page 161.

10. On 12 June 2018, Ms Esen underwent an MRI scan of her left shoulder at Blacktown and Mount Druitt Hospital medical imaging department by Dr Dugal on the referral of Dr Needham. Dr Dugal concluded that the imaging demonstrated persistence of high-grade tendinopathy with interstitial tearing of the anterior to mid-insertion of supraspinatus; a marginal increase in the intrasubstance tear of the subscapularis insertion; moderate grade subacromial/subdeltoid bursitis; and moderate grade osteoarthritis of the acromioclavicular joints with low-grade synovitis.[60]

    [60] Claimant's documents at pages 184-185.

11. On 20 June 2018, Ms Esen consulted Dr Needham complaining of ongoing left shoulder pain with reduced range of movement. He noted the recent left shoulder MRI scan. He observed that Ms Esen had undergone previous steroid injections without benefit and was highly disinclined to undergo any further such interventions. Dr Needham recommended

    
    

    self-directed shoulder exercises.[61]

    [61] Claimant's documents at page 160.

12. On 26 June 2018, Ms Esen underwent a right shoulder ultrasound by Dr Phillip Herald on the referral of Dr Emin. The clinical reasons for the referral were stated to be worsening right shoulder pain, query a tear and tendinitis. Dr Herald found a complete tear of the subscapularis and long head of the biceps tendon with a haemorrhagic joint effusion.[62]

    [62] AALD 1 at page 39.

13. On 8 August 2018, Ms Esen underwent a whole body scan and CT SPECT by Dr Bill Mouratidis on the referral of Dr Emin. The clinical reasons for the referral were stated to be elevated levels of “CRP, RF and anti-CCP;”[63] query malignant process; and background history of rheumatoid arthritis. Dr Mouratidis observed moderate facet joint arthritis at L4/5 on the right and low-grade facet joint arthritis at L5/S1 on the right. There were other arthritic changes involving both mid feet, elbows, small joints of hands and both acromioclavicular joints. No suspicious lesions were identified and there was no evidence of metastatic disease.

    [63] AALD 1 at page 38.

14. On 29 August 2018, Ms Esen consulted Dr Needham complaining of ongoing left shoulder pain and now reported some degree of right shoulder pain due to compensatory overuse. He referred her for an ultrasound of the right shoulder and a CT scan of her cervical spine for further investigation.[64]

    [64] Claimant's documents at page 159.

15. On 4 September 2018, Ms Esen underwent an ultrasound of her right shoulder by Dr Rohan Sabharwal on the referral of Dr Needham. The clinical reasons for the referral were stated to be painful shoulder with reduced range of movement. Dr Sabharwal reported mild cervical spondylotic change with no definite cause for the right-sided neck symptoms.[65]

    [65] AALD 1 at pages 10-11.

16. On 26 September 2018, Ms Esen consulted Dr Needham who reviewed her recent shoulder and cervical spine imaging. He suggested that she proceed with orthopaedic review to ascertain the feasibility of shoulder replacement surgery.[66]

    [66] Claimant's documents at page 158.

17. On 7 November 2018, Ms Esen consulted Dr Needham continuing to complain of severe right shoulder pain with greatly reduced range of movement. He noted that she awaited right shoulder replacement surgery due to her advanced degenerative shoulder disorder with associated tendon disruptions.[67]

    [67] Claimant's documents at page 156.

18. On 19 December 2018, Ms Esen consulted Dr Needham complaining of right shoulder pain and persistent neck pain. He noted that she was attending physiotherapy treatment with benefit and medicating with Mobic, Panadol Osteo and Palexia.[68]

    [68] Claimant's documents at page 157.

19. On 1 March 2019, Ms Esen consulted Dr Yalizis complaining of worsening left shoulder pain. He noted that she was booked for surgery to her right shoulder at Blacktown Hospital and now felt increasing pain in her left shoulder. She wanted to have the left shoulder operated on first. She told Dr Yalizis that she had perfectly normal shoulders prior to the motor accident. He recommended arthroscopic decompression and distal clavicular excision on the left.[69]

    [69] Claimant's documents at page 239.

20. On 8 March 2019, Dr Yalizis provided a report in answer to questions posed by either the insurer or Ms Esen’s lawyers. Dr Yalizis provided a diagnosis of acromioclavicular joint osteoarthritis, biceps tendinitis and subacromial bursitis in respect of the left shoulder. He opined that, given Ms Esen’s age and the chronicity of the tears, it was generally not considered best practice repairing tendon tears. He further opined that her prognosis was poor without surgery and given its chronicity, the chances of her improving significantly with surgery are also not great. In response to the question as to whether Ms Esen’s right shoulder injury arose from the motor accident, Dr Yalizis stated that the tears to the supraspinatus and subscapularis may have been a result of the motor accident. He confirmed that the proposed surgery was arthroscopic subacromial decompression, distal clavicular ostectomy and biceps tenotomy.[70]

    [70] Claimant's documents at page 216.

21. On 12 August 2019, Ms Esen underwent CT scans of her brain and cervical spine by Dr Lee on the referral of Dr Emin. The clinical reasons for the referral were stated to be neck pain and headache. In respect of the brain scan, Dr Lee concluded that it demonstrated a normal examination. In respect of the cervical spine, Dr Lee concluded that the scan demonstrated a multilevel degenerative spine with multilevel foraminal stenoses.[71]

    [71] AALD 1 at pages 31-32.

22. On 21 August 2019, Ms Esen consulted Dr Needham complaining of bilateral shoulder pain and disability following the motor accident. The insurer denied approval for shoulder surgery and she had been placed on the Blacktown Hospital public list. Dr Needham was concerned that Ms Esen appeared to have very little understanding of the nature of the proposed surgery or the extent of rehabilitation required following surgery or of the anticipated functional outcome. He advised her that it would be essential to obtain more information.[72]

    [72] Claimant's documents at page 155.

23. On 25 October 2019, Dr Ruhaida Daud, neurologist (locum to Dr Dowla), reported to Dr Emin.[73] Dr Daud listed Ms Esen’s multiple medical problems and noted that her headache and neck pain had been chronic but were exacerbated by the motor accident. At this consultation, the main other issue was pain in the leg, loss of sensation under the feet and loss of balance. He conducted a nerve conduction study in the lower limb which demonstrated no evidence of sensory neuropathy.

    [73] Insurer's documents at page 117.

24. On 7 November 2019, Ms Esen underwent an MRI scan of her spine and her brain by Dr Tej Dugal at the Blacktown and Mount Druitt Hospital medical imaging department on the referral of Dr Daud. Dr Dugal concluded that there were spondylotic changes with degenerative disc disease. The cervical spine was not associated with neurocentral compression but foraminal stenosis was observed. The L5/S1 disc was markedly degenerative. No fractures were noted. In respect of the brain, age-related change with low volume supratentorial small vessel ischaemic change was noted. No mass lesions or infarcts were evident.[74]

    [74] Insurer's documents at page 87-88.

25. On 31 January 2020, Dr Daud reported to Dr Emin that Ms Esen’s main issue was pain in the heel with the sensation of walking on a sponge. The pain was more severe at night. Neurological examination revealed sensory neuropathy in the lower limb. Dr Daud prescribed Lyrica 25mg tablets for peripheral neuropathy.[75]

    [75] Insurer's documents at page 118.

26. On 18 February 2020, Dr Daud reported to Dr Emin that Ms Esen’s main symptoms were with her lower back pain radiating into both legs, pain in both heels, worse on the right. Dr Daud opined that Ms Esen had cervical neck dystonia with head tremor and lumbar spondylosis with clinical signs of S1 radiculopathy, worse on the right. He noted that she was not tolerating Lyrica and prescribed Endep 25mg tablets nightly. He referred her for a perineural injection into the left L5 and left S1.[76]

    [76] Insurer's documents at page 119.

27. On 25 May 2020, Ms Esen underwent a selective CT guided epidural injection into the left L5/S1 by Dr Lee on the referral of Dr Daud.[77]

    [77] Insurer's documents at page 98.

28. On 10 July 2020, Dr Daud reported to Dr Emin that he had reviewed Ms Esen for management of her lower back pain and pain in the upper limb. He noted that she experienced an adverse effect from taking Endep. He injected her with Botox for the management of cervical dystonia.[78]

    [78] Insurer's documents at page 120.

29. On 30 October 2020, Dr Daud reported to Dr Emin that he had reviewed Ms Esen. Amongst other things, she had complained of right lower back pain radiating into the right leg and had also complained of cramp in the right leg. The pain had not improved with Panadeine Osteo and Mobic. He referred her for a right L4/5 facet joint injection.[79]

    [79] Insurer's documents at page 121.

30. On 11 November 2020, Ms Esen consulted Dr Yalizis to re-discuss her surgical and

    
    

    non-surgical options. Dr Yalizis noted that she still had ongoing severe pain in the left shoulder; positive impingement signs; and a very tender acromioclavicular joint. Following a long discussion, she decided to proceed with the surgical plan.[80]

    [80] Claimant's documents at page 243.

31. On 7 December 2020, Ms Esen underwent a left shoulder arthroscopic decompression, biceps tenotomy and distal clavicle excision by Dr Yalizis. Dr Yalizis noted a frayed bursal surface of the supraspinatus tendon and partially frayed biceps tendon in his operative findings.[81]

    [81] Claimant's documents at pages 176-177.

32. On 17 December 2020, Ms Esen consulted Dr Yalizis for post-operative review. Dr Yalizis opined that the surgery had been successful and that he was able to successfully excise her acromioclavicular joint and treat her fraying long head of biceps tendon. He expected a good result from the surgery and wanted her to start a range of motion program.[82]

    [82] Claimant's documents at page 245.

33. On 22 January 2021, Ms Esen underwent a right L4/5 CT facet joint injection by Dr Lee on the referral of Dr Daud.[83]

    [83] Insurer's documents at page 86.

34. On 17 June 2021, Ms Esen consulted Dr Yalizis for review of her left shoulder six months post-surgery. Ms Esen told Dr Yalizis that she was very happy with the outcome of the surgery and had experienced a significant improvement in her pain profile. She now wanted to enquire about surgery to her right shoulder. Dr Yalizis arranged for her to undergo a right shoulder CT arthrogram to make sure that there was no arthritis or significant cuff tear present.[84]

    [84] Claimant's documents at page 249.

35. On 18 June 2021, Ms Esen underwent a bone densitometry by Dr Kariappa on the referral of Dr Emin. The clinical reasons for the referral were stated to be osteoporosis. Dr Kariappa concluded that the lumbar spine bone mineral density was in the osteopaenic range and had a moderately increased risk of minimal trauma fracture and that the left femoral neck bone mineral density was in the osteopaenic range and had a mildly increased risk of minimal trauma fracture.[85]

    [85] AALD 1 at page 24.

36. On 12 April 2022, Ms Esen underwent a right shoulder ultrasound by Dr Kariappa on the referral of Dr Emin. The clinical reasons for the referral were stated to be pain, query tendonitis. Dr Kariappa found a complete tear of the subscapularis and tenosynovitis of the long head of the biceps and supraspinatus.[86]

    [86] AALD 1 at page 23.

37. On 9 September 2022, Ms Esen underwent an ultrasound of both shoulders by Dr Eric Brecher on the referral of Dr Emin. The clinical reasons for the referral were stated to be bilateral shoulder pain, query tear/tendinitis. In respect of the right shoulder, Dr Brecher found moderate tendinosis of the supraspinatus tendon; a possible underlying full-thickness partial width tear of the supraspinatus tendon; moderate tendinosis of the infraspinatus tendon; and arthritis of the acromioclavicular joint. In respect of the left shoulder, Dr Brecher found a complete tear of the subscapularis tendon and a moderate to large sized

    
    

    full-thickness partial width tear of the mid and posterior portion of the supraspinatus tendon.[87]

    [87] AALD 1 at pages 21-22.

38. On 21 March 2023, Ms Esen underwent a CT scan of her lumbosacral spine by Dr Lee on the referral of Dr Emin. The clinical reasons for the referral were stated to be low back pain and numbness. Dr Lee concluded that the pain generator was most likely L4/5 or L5/S1.[88]

    [88] AALD 1 at page 18.

39. On 21 March 2023, Ms Esen underwent an ultrasound of both shoulders by Dr Kariappa on the referral of Dr Emin. The clinical reasons for the referral were stated to be pain. In respect of the right shoulder, Dr Kariappa found a complete tear of the subscapularis and long head of the biceps; a supraspinatus full-thickness tear; subacromial bursitis; and a ganglion arising from the acromioclavicular joint. In respect of the left shoulder, Dr Kariappa found a complete tear of the subscapularis and subacromial bursitis.[89]

    [89] AALD 1 at pages 19-20.

40. On 5 May 2023, Ms Esen consulted Dr Yalizis complaining of new pain in her shoulder. She had been progressing quite well until recently when she experienced an increase in her pain. She had pain in both shoulders, the left worse than the right. Recent imaging demonstrated that she had torn the subscapularis. Dr Yalizis opined that the only real surgical option for her was to undergo a left total shoulder replacement. He provided her with the necessary paperwork and placed her on the public waiting list in case she wished to proceed.[90]

    [90] Claimant's documents at page 219.

41. On 23 February 2024, Ms Esen consulted Dr Haesung Bak, consultant physician and rheumatologist on the referral of Dr Adele Lui, general practitioner, of Main Street Family Medical Centre. Dr Bak noted that Ms Esen had been under the care of Dr Liew, who had recently retired. Dr Bak noted her history of rheumatoid arthritis stretching back for 30 years. He noted that she was currently taking methotrexate 10mg weekly and prednisone 5mg daily to manage her rheumatoid arthritis. Dr Bak was aware of Ms Esen’s history of high blood pressure and diet controlled diabetes. He was in the process of obtaining her clinical records and was making arrangements for her to undergo baseline X-rays and blood tests.[91]

    [91] AALD 1 at page 55.

42. On 8 March 2024, Ms Esen again consulted Dr Bak who noted that he had contacted Medicare and that Ms Esen had failed five different anti-cytokine therapies. As a result, she could no longer use any of the specialised medications through Medicare. Dr Bak reported that, prior to committing to rituximab therapy, he recommended a whole body bone scan to demonstrate definite inflammatory activity. He scheduled Ms Esen for review following receipt of the bone scan results.[92]

    [92] AALD 1 at page 56.

43. On 5 April 2024, Ms Esen again consulted Dr Bak who noted that the bone scan had demonstrated an inflammatory problem that was still active. He referred Ms Esen for a rituximab infusion.[93]

    [93] AALD 1 at page 57.

44. On 5 July 2024, Ms Esen again consulted Dr Bak reporting that she had undergone a rituximab infusion in April but that she did not feel much difference following the infusion. He noted that she complained of a fair degree of pain symptoms in the left elbow, hands, feet and neck. Dr Bak opined that there was a contributory degenerative component but that she did have inflammatory changes in the bone scan. Ms Esen was to continue with 10mg of weekly methotrexate and 5mg of prednisone daily.[94]

Medico-legal reports

[94] AALD 1 at page 58.

Dr Andrew Keller: 1 April 2016

1. On 24 March 2016, Ms Esen consulted Dr Andrew Keller, occupational physician, at the request of the insurer. Dr Keller provided a report dated 1 April 2016.[95]

   [95] Insurer’s documents at pages 33-43.

2. Dr Keller took the following medical history:

   “Ms Esen states that in 1983, she was working full time as a sewing machinist when she had to stop due to right arm pain.

   She had some intermittent alternate duties until 1985. She states she was certified unfit for work on medical grounds between 1985 and 1988. She received a compensation payment for the right arm condition of around $18,000.

   In 1988, Mrs Esen was involved in a motor vehicle accident where she received injuries to her nose, head and neck. She had neck surgery around four years later that she describes as ‘decompression surgery’. She reports she was not certified unfit for work as a result of the accident, but never returned to work following this. She received a compensation payment for the motor vehicle accident injuries of around $13,000.

   Following the motor vehicle accident in 1988 she states she was also diagnosed with rheumatoid arthritis that affected her hands, feet and neck. She was treated with oral Methotrexate and intermittent cortisone injections. She received intermittent physiotherapy leading up to the period of the 2015 motor vehicle accident. She was also diagnosed with glucose intolerance, currently treated with diet.

   She reports no other medical, surgical or psychological conditions.”[96]

   [96] Insurer’s documents at page 35.

1. Dr Keller took the following history of the motor accident:

   “Mrs Esen states that on 30 August 2015 she was the front passenger in a car, wearing a seatbelt. When they tried to turn right across oncoming traffic to enter the driveway to their property, a car from behind them hit the driver's side of their car. Mrs Esen is unsure whether airbags were present, but none were deployed. She reports no head injuries or loss of consciousness. She was able to stand and walk at the scene and her neighbours brought out a chair for her to sit on. She reports shock but no immediate pain or injuries.

   She was assessed by an ambulance officer but declined transfer and went home. Ms Esen first saw a doctor after two days for pain in the left leg, lower back and neck. She was given analgesia but no physical treatments.”[97]

   [97] Insurer's documents at page 34.

2. Dr Keller noted that, on 6 October 2015, Ms Esen underwent a cervical spine MRI scan and was referred to Dr Needham. On 14 December 2015, Dr Needham treated her with a left and right lumbar spine injections under CT guidance. At the time of her consultation with Dr Keller, Ms Esen had not undergone any other treatment. Current medications included Panadol, Lyrica and Brufen.

3. In respect of present complaints, Ms Esen reported pain in the back of both calves that occurred with prolonged sitting or walking on a daily basis; constant dull pain in both buttocks emanating from her back; and constant neck pain. The Panel noted that Dr Keller did not record any complaints of shoulder pain.

4. Dr Keller recorded Ms Esen’s self-stated capacities to include sitting one to two hours in a soft chair; sitting 30 minutes in a hard chair; standing for five minutes; walking for 15 minutes with brief breaks; lifting 2kg; and driving up to 20 minutes.

5. In respect of general presentation, Dr Keller observed that Ms Esen was pleasant and cooperative throughout the consultation and that she was assisted by an interpreter. Ms Esen walked unassisted and without a limp. She sat comfortably for, at least, 30 minutes during the consultation. She moved her head quickly and freely between Dr Keller and the interpreter, requiring cervical rotation of up to 90°.

6. On examination of the cervical spine, Ms Esen reported tenderness on minimal palpation of the skin over the neck and shoulders. She demonstrated a restricted range of motion being flexion 45°; extension 45°; bilateral rotation 45°; and bilateral flexion 45°. Dr Keller commented that this was less than observed at other times during the consultation and, in his view, represented voluntary exaggeration of her incapacity.

7. On examination of the upper limbs, Dr Keller observed that sensation to light touch was reported as normal in both upper limbs including all fingers on both hands. He noted some swelling of the proximal interphalangeal joints sparsely on both hands but no obvious rheumatoid deformity. There was a full range of motion without asymmetry in the shoulders, elbows, wrists and all fingers.

8. On examination of the lumbar spine, Ms Esen reported tenderness to light palpation of the spine and paraspinal muscles. Dr Keller observed that range of motion in the lower back demonstrated 10° extension; 45° flexion; no rotation bilaterally; and flexion of 30° bilaterally. Sensation to touch was reported as reduced in the right heel but was otherwise normal. Testing of power of the ankle to plantar and dorsi flexion was normal and symmetrical. Reflexes were present and symmetrical at the knees and ankles and she was able to stand on her heels and toes without foot drop. Straight leg raise was 40° on the right and 45° on the left. However, Ms Esen was able to sit with her legs at 90° on the bench and during reflex testing.

9. Following clinical examination, Dr Keller concluded that Ms Esen displayed inconsistent restriction of rotation of the cervical spine with no signs of muscular spasm and no signs of radiculopathy in the upper limbs. She had mild signs of rheumatoid arthritis of the finger joints. She had mild to moderate restrictions of flexion and rotation through the lumbar spine. Whilst she reported altered sensation in the right heel, there were no other signs of radiculopathy in the lower limbs.

10. In respect of diagnosis, Dr Keller opined as follows:

    “ … Mrs Esen has a long history of right upper limb complaints and a previous motor vehicle accident with a neck injury, requiring surgery, in the 1990s for which she received a compensation payment. I note she states she has not worked since around 1985 due to a combination of the effect on her right arm and her neck complaint though she was paid as a carer for her husband's effects of the same accident of 1988. In my opinion, it is possible that Mrs Esen suffered an aggravation to her pre-existing neck complaint and rheumatoid  arthritis. There is no evidence for any significant bony or ligamentous injuries as a result of the subject accident in 2015. Any effects of this accident would be expected to have fully resolved within a three month period. The prognosis following this would be a recovery to her pre-accident status with similar symptoms, treatment needs and restrictions.”[98]

    [98] Insurer's documents at page 38.

11. In respect of an assessment of Ms Esen’s WPI, Dr Keller concluded as follows:

    “With careful consideration of all of Mrs Esen's medical history, the lack of investigative reports showing any clear and obvious musculo-skeletal trauma as a result of the accident and today's examination findings, it is my opinion that there are no injuries attributable to the subject accident that can be assessed for whole person impairment.”[99]

    [99] Insurer's documents at page 43.

Dr Yuk Kai Lee: 17 January 2017

1. On 16 January 2017, Ms Esen consulted Dr Yuk Kai Lee, orthopaedic surgeon, at the request of her lawyers. Dr Kai Lee provided a report dated 17 January 2017.[100]

   [100] Claimant’s documents at pages 194-198.

2. Dr Kai Lee took the following history of the motor accident:

   “ … She was injured in a motor vehicle accident on 30 August 2015. She was the

   
   

   front-seat passenger in a 2010 Toyota Corolla driven by her husband. They were on their way to Blacktown and they decided to turn back. Her husband signalled and wished to turn into a driveway on the opposite side of the road and then a [sic] make a U turn. A car following them was trying to pass them on the right side and hit their car on the right side. She was not sure what kind of car it was, but it may have been a

   
   

   four-wheel drive with no bull bar. She felt pain in the chest from the seatbelt straightaway. She also noticed some bruising on the left side of the body. She did not go to hospital. A couple of hours later, she noticed pain in the left shoulder and neck and later in the lower back. After three or four days, when the pain did not subside, she saw her doctor. Her doctor prescribed tablets and physiotherapy under Medicare.”[101]

   [101] Claimant's documents at page 195.

3. Dr Kai Lee recorded Ms Esen’s current complaints as back pain with occasional radiation into the left leg and left shoulder pain with occasional inability to lift up the arm. The Panel noted that there was no reference to neck pain at this consultation. Dr Kai Lee noted that walking aggravated leg pain which was relieved by sitting and that Ms Esen could not tolerate sitting for prolonged periods.

4. In respect of past medical history and previous claims, Dr Kai Lee noted that Ms Esen was on medication for high blood pressure and had rheumatism. He noted a right arm work injury in 1979 that had settled with treatment. Thirty years ago, Ms Esen was involved in a car accident where she sustained a head injury, fractured nose and fractured jaw and was hospitalised for 11 days. The Panel noted that, at this consultation, there was no reference to Ms Esen’s neck being injured in the above-mentioned car accident or her having undergone surgery to her cervical spine.

5. On physical examination, Dr Kai Lee noted that Ms Esen was 154cm tall and weighed 84kg.

6. On examination of the cervical spine, Dr Kai Lee observed that there was no pain or tenderness and that there was only minimal restriction of movement.

7. On examination of the lumbar spine, Dr Kai Lee observed that, on flexion, Ms Esen was able to reach to her knees; extension was only to neutral; muscle spasm was positive; straight leg raise was 45° on the left and 70° on the right; sensory was normal but there was a complaint of numbness in the right leg; motor was normal; and right ankle jerk was absent. There was diffuse tenderness in the left knee and movement of both knees was normal and full.

8. On examination of the left shoulder, there was tenderness in the acromioclavicular joints and also at the anterolateral aspect. Dr Kai Lee recorded range of movement as follows:

Shoulder	Right	Left
Flexion	160°	100°
Extension	40°	10°
Abduction	150°	100°
Adduction	40°	30°
External Rotation	90°	90°
Internal Rotation	70°	60°

1. Dr Kai Lee noted that an ultrasound of Ms Esen’s left shoulder on 13 September 2016 reported a partial supraspinatus and subscapularis tendon tear; arthritis of the acromioclavicular joints with a 7mm associated ganglion; and subacromial bursitis.

2. Dr Kai Lee diagnosed Ms Esen with the following injuries caused by the motor accident:

   (a)    post-traumatic subacromial bursitis and rotator cuff injury in the left shoulder;

   (b)    aggravation of an underlying acromioclavicular joint arthritis, and

   (c)    aggravation of an underlying degenerative condition in the lumbar spine rendered symptomatic and resulting in back pain radiating down the left leg.

3. Dr Kai Lee did not provide a diagnosis in respect of the cervical spine.

Dr Yuk Kai Lee: 12 November 2018

1. On 12 November 2018, Ms Esen again consulted Dr Kai Lee at the request of her lawyers. Dr Kai Lee provided a WPI assessment report dated 12 November 2018.[102]

   [102] Claimant’s documents at pages 199-200.

2. On examination of Ms Esen’s cervicothoracic spine, Dr Kai Lee noted tenderness at the paraspinal muscle on the right. There was global restriction of movement, in that, there was 35° on flexion; 25° on extension; 45° on bilateral rotation; 10° on right tilt; and 20° on left tilt. He opined that there had been a deterioration since Ms Esen had last consulted him. In respect of the cervical spine, Dr Kai Lee assessed Ms Esen as DRE Cervicothoracic Category II, attracting a 5% WPI on the basis that the history and findings were compatible with a specific injury and included intermittent or continuous muscle guarding, non-uniform loss of range of motion and non-verifiable radicular complaints without objective evidence of radiculopathy or loss of structural integrity.

3. On examination of Ms Esen’s lumbosacral spine, Dr Kai Lee observed that on flexion she was able to reach her knees; extension was only to neutral; muscle spasm was positive; straight leg raise was 45° bilaterally; some numbness in the right heel; motor was normal; and absent right ankle jerk. Ms Esen had pre-existing back pain and left sciatica that was worsened in the motor accident. The right heel numbness was not present prior to the motor accident. Dr Kai Lee opined that the absent ankle jerk would place Ms Esen in Lumbosacral DRE Category III, attracting a 10% WPI. He noted the pre-existing underlying degeneration which he assessed as Lumbosacral DRE Category II, attracting of 5% WPI. Therefore, the impairment caused by the motor accident was 5% WPI.

4. On examination of Ms Esen’s shoulders, Dr Kai Lee observed tenderness in the lateral tip of both shoulders and stated:

   “Shoulder impairment is usually estimated using the range of movement method. I normally subtract the 'normal' shoulder impairment from the affected one because usually, there is some underlying stiffness showing up on the opposite side. She had bilateral involvement. She also had previous injury to her shoulders. I would therefore take 20% off the calculation due to pre-existing stiffness.”[103]

   [103] Claimant's documents at page 200.

5. Dr Kai Lee recorded range of movement as follows:

Shoulder	Right	Left
Flexion	115°	90°
Extension	35°	35°
Abduction	75°	90°
Adduction	35°	50°
External Rotation	70°	50°
Internal Rotation	20°	20°

1. Dr Kai Lee assessed each upper limb impairment at 13% which was equivalent to 8% WPI in respect of each upper limb.

2. Dr Kai Lee assessed the combined WPI at 23%.

Dr Andrew Keller: 10 December 2018

1. On 10 December 2018, Ms Esen again consulted Dr Keller at the request of the insurer’s lawyers. Dr Keller provided a report dated 10 December 2018.[104]

   [104] Insurer’s documents at pages 44-52.

2. Dr Keller reported that, since his last assessment on 24 March 2016, Ms Esen reported no new injuries. He noted that she underwent a surgical repair for a right femoral hernia and an umbilical hernia on 1 September 2016. She had undergone cortisone injections into the left shoulder twice with no lasting benefit. She undergoes up to five sessions of physiotherapy to her neck, back and shoulders per annum. Current medications included cortisone, methotrexate, Panadol Osteo, Oroxine, Plendil, Mobic and Panadeine Forte.

3. Dr Keller noted that Ms Esen’s presenting complaints included constant pain in her bilateral shoulders, neck and lower back. Restrictions included sitting limited to five minutes; standing limited to five minutes; walking limited to 10 minutes; lifting limited to 2kg; and driving an automatic car up to 20 minutes. Further, Ms Esen now reported that she required assistance from her husband with showering and dressing. Cooking and cleaning are now performed by her husband and grandchildren.

4. Dr Keller conducted a clinical examination of Ms Esen’s cervical spine, upper limbs, lumbar spine and lower limbs and reported his observations.

5. In respect of Ms Esen’s pre-accident medical conditions, Dr Keller noted the following from the medical records provided to him:

   (a)    15 March 2007: consultation with Dr Dowla for inflammatory arthritis and bilateral carpal tunnel syndrome;

   (b)    13 September 2007: consultation with Dr Dowla for cervical dystonia with tremor recommending Botox injections;

   (c)    15 September 2009: consultation with Dr Dowla for lumbar spondylosis with right lower limb radiculopathy;

   (d)    23 April 2013: neck pain, ultrasound recommended;

   (e)    27 November 2013: X-ray of the cervical spine and thoracic spine demonstrating loss of disc space at C5, C6 and C7;

   (f)    28 November 2013: CT scan of the cervical spine demonstrating C5/6 and C6/7 central bulges;

   (g)    8 October 2013: X-ray of the lumbar spine, mild degenerative changes and X-ray of the left knee demonstrating an effusion;

   (h)    3 December 2013: neck pain, X-ray recommended;

   (i)    19 February 2014: bilateral shoulder pain, not able to look up and down due to neck pain;

   (j)    4 June 2014: ongoing lower back pain and bilateral shoulder pain;

   (k)    16 May 2015: left shoulder pain at home;

   (l)    19 August 2015: lower back pain, and

   (m)     24 August 2015: lower back pain with restricted range of motion.

6. Dr Keller also noted from the clinical records that, on 27 January 2017, Ms Esen underwent a nerve conduction study that was consistent with diabetic neuropathy.

7. Thereafter, Dr Keller observed as follows:

   “From this information it is clear to me that Ms Esen has an extensive prior history of pain affecting multiple body parts, particularly including the neck, back and shoulders. She has previously been diagnosed with carpal tunnel syndrome affecting the hands and diabetic neuropathy affecting the feet. She has had surgical repair of an umbilical and femoral hernia unrelated to the subject accident.”[105]

   [105] Insurer's documents at page 49.

8. In respect of injury and causation, Dr Keller opined as follows:

   “ … The accident appears to have caused the delayed onset of neck, back and lower limb pain. In my opinion, given the nature of the accident and information provided at my last assessment, these are likely to represent soft tissue injuries that would be expected to fully resolve. In my opinion, the current symptoms are related to her age in general and are no longer in any significant way related to the subject accident.”[106]

   [106] Insurer's documents at page 50 at [2.4].

9. Dr Keller concluded by noting that there were inconsistencies in Ms Esen’s presentation. Ms Esen’s reported symptoms had spread since his initial assessment and he could in no way relate these symptoms to objective evidence of injuries caused by the motor accident.

Dr Yuk Kai Lee: 21 April 2022

1. On 21 April 2022, Ms Esen again consulted Dr Kai Lee at the request of her lawyers. Dr Kai Lee provided a report dated 21 April 2022.[107]

   [107] Claimant’s documents at pages 78-82.

2. In respect of current complaints, Dr Kai Lee noted a complaint of more pain in Ms Esen’s right arm because of favouring the left arm. She was medicating with Panadol Osteo and Panadeine Forte. Back pain sometimes radiating down her left leg. She was able to walk for about 15 minutes, mainly affected by her back pain. Ms Esen’s specialist did not want her to undergo further surgery. The Panel noted that Dr Kai Lee did not refer to any complaint of neck pain by Ms Esen.

3. Dr Kai Lee conducted a clinical examination of Ms Esen’s cervical spine, upper limbs, lumbar spine and lower limbs and reported that his findings were similar to those in the previous consultation.

4. In respect of injury and causation, Dr Kai Lee opined as follows:

   “Mrs Esen injured her left shoulder and back because of the accident. The supraspinatus tendon of the left shoulder was torn. Because of favouring the left shoulder, the right also became more painful and stiff. She had asymptomatic

   
   

   pre-existing degeneration in her back and this became painful afterwards. The pain radiated to the left leg. There is absent ankle jerk on the left side indicating radiculopathy.”[108]

   [108] Claimant's documents at page 81 at [1].

5. Dr Kai Lee also opined that Ms Esen already had pre-existing degeneration in her left shoulder and back and that such degeneration was rendered more symptomatic following the motor accident. He noted that Ms Esen’s right shoulder had deteriorated since his last assessment.

6. The Panel again noted that Dr Kai Lee did not diagnose an injury to the cervical spine caused by the motor accident.

7. Dr Kai Lee opined that Ms Esen’s prognosis was guarded and that she would continue to experience pain and stiffness in her shoulders and back. He noted that, theoretically, Ms Esen’s left shoulder injury was likely to respond favourably to surgery but that she did not wish to proceed with surgery.

8. Dr Kai Lee did not provide a WPI assessment in this report.

Dr Andrew Keller: 4 July 2022

1. On 28 June 2022, Ms Esen again consulted Dr Keller at the request of the insurer’s lawyers. Dr Keller provided two reports dated 4 July 2022.[109]

   [109] Insurer’s documents at pages 53-

2. Dr Keller noted that, since his last assessment, Ms Esen was involved in a further motor vehicle accident in 2020 but reported that she had no specific injuries at the time, underwent no investigations and received no treatment. In December 2020, she underwent a left shoulder arthroscopy which she stated had helped her a lot. Current medications included Panadol Osteo, Panadeine Forte, cortisone 5mg daily and methotrexate.

3. Dr Keller noted that Ms Esen’s presenting complaints included daily intermittent left shoulder pain that lasted for several minutes and left lower limb pain coming from her back and into her heel. Restrictions included sitting limited to 10 minutes to 15 minutes; standing limited to 10 minutes to 15 minutes; walking limited to 15 minutes; lifting limited to 2kg to 3kg; and driving an automatic car up to 10 minutes.

4. Dr Keller conducted a clinical examination of Ms Esen’s cervical spine, thoracic spine, upper limbs, lumbar spine and lower limbs and reported his observations.

5. Dr Keller noted that Ms Esen’s physical presentation was inconsistent as it had been at the prior two assessments.

1. In respect of Ms Esen’s diagnosis, Dr Keller stated that it was not clear to him that she had suffered any lasting injuries as a result of the motor accident in 2015. He opined that Ms Esen’s current complaints were not related to the motor accident. Dr Keller added:

   “As noted in my prior reports, Ms Esen has an extensive history of prior complaints affecting multiple body areas that is sufficient to explain all of her current reported symptoms and disabilities.”[110]

   [110] Insurer's documents at page 59 at [11].

2. In the shorter of his two reports dated 4 July 2022, Dr Keller noted and opined as follows:

   “Ms Esen reports being involved in a motor vehicle accident on 30 August 2015. The ambulance officers who assessed her at the time note minimal damage to the right side of the vehicle. She reports airbags were not deployed. She reports no loss of consciousness and no immediate awareness of pain or injuries. She has had no investigations following this showing any acute traumatic injuries attributable to the accident.

   It is plausible that she suffered temporary mild symptoms of neck and back pain  attributable to exacerbation of prior cervical and lumbar spine degenerative changes. In my opinion, these would have fully resolved with or without treatment in less than 12 weeks from the time of the accident. It is not my opinion that there are objective findings of traumatic injuries attributable to the accident that can be assessed for permanent impairment in accordance with the Guides.”[111]

Medical assessment certificates

[111] Insurer's documents at page 61 at [12].

Medical Assessor Ian Cameron: 10 February 2018

1. On 6 February 2018, Ms Esen was assessed by Medical Assessor Cameron in respect of a permanent impairment dispute and a treatment dispute for the physical injuries alleged to have been caused by the motor accident.

2. On 10 February 2018, Medical Assessor Cameron issued a certificate in respect of the permanent impairment dispute.[112]

   [112] Insurer’s documents at pages 18-24.

3. Medical Assessor Cameron noted that the injuries referred for assessment were as follows:

   (a)    lumbosacral spine – soft tissue injury;

   (b)    right shoulder – soft tissue injury, and

   (c)    left shoulder – soft tissue injury.

4. The Panel noted that Medical Assessor Cameron did not include the cervical spine as having been referred for assessment.

5. Medical Assessor Cameron noted that the following treatment disputes were to be assessed:

   (a)    whether the left shoulder subacromial decompression and biceps tenotomy proposed by Dr Yalizis is causally related to the injuries sustained by Ms Esen in the motor accident, and

   (b)    whether the left shoulder subacromial decompression and biceps tenotomy proposed by Dr Yalizis is reasonable and necessary in relation to the injuries Ms Esen sustained in the motor accident.

6. Medical Assessor Cameron noted that Ms Esen’s past medical history included two surgeries to the head or neck in the late 1980s or early 1990s; non-insulin dependent diabetes; cervical dystonia; carpal tunnel syndrome; lumbar spondylosis; and rheumatoid arthritis. Ms Esen had been taking methotrexate for about 10 years.

7. Medical Assessor Cameron took a history of the motor accident that was consistent with the evidence. Ms Esen told him that, at the time of the collision, her chest was squeezed and she hit her left shoulder on the door of the car she was travelling in. She also told him that she had had pre-existing neck pain and back pain but that it was made worse by the motor accident and that the left shoulder pain was new. Her increased symptoms in the neck and back had persisted since the motor accident, as had the symptoms in her left shoulder. Left shoulder surgery had been recommended by her treating specialist (Dr Yalizis) and she wished to proceed with it.

8. Medical Assessor Cameron conducted a clinical examination and recorded his findings.

9. In respect of diagnosis and causation, Medical Assessor Cameron concluded as follows:

   “In the motor vehicle crash on 30 August 2015 Mrs Esen injured her neck and left shoulder. The only evidence of an injury to her right shoulder is in the medical certificate from the general practitioner.

   Mrs Esen has a significant past history, particularly of rheumatoid arthritis. She has surprisingly full ranges of motion at her shoulders and other joints in view of this.

   The nature of the previous problems with the cervical spine is unclear. The symptoms from the lower back as being related to the subject motor vehicle crash are supported only by the motor vehicle accident medical certificate.

   It is concluded that there has [sic] been aggravations of symptoms from the cervical and lumbar spinal regions in the subject motor vehicle crash. There has been a soft tissue injury to the left shoulder, but there is no evidence of a specific, significant injury, to the right shoulder based on the information that has been provided.”[113]

   [113] Insurer's documents at page 22 at [6].

10. Accordingly, Medical Assessor Cameron found that the following injuries were caused by the motor accident:

    (a)    lumbosacral spine – soft tissue injury, and

    (b)    left shoulder – soft tissue injury.

11. Medical Assessor Cameron found that the right shoulder soft tissue injury was not caused by the motor accident.

12. In respect of the assessment of the degree of permanent impairment in Ms Esen’s lumbosacral spine, Medical Assessor Cameron noted that there were no significant clinical findings and that, specifically, there was no muscle spasm; no muscle guarding; no dysmetria and no non-verifiable radicular complaints. Therefore, he concluded that Ms Esen met criteria for DRE Lumbosacral Category I impairment of the lumbar spine which attracts a WPI of 0%.

13. In respect of the assessment of the degree of permanent impairment in Ms Esen’s left shoulder, Medical Assessor Cameron noted that range of motion was as follows: flexion 170°; extension to 50°; abduction 170°; adduction 30°; external rotation 90°; and internal rotation 90°. Using Figures 38, 41 and 44 (pages 42 to 44 AMA 4 Guides), these movements were equivalent to 1%, 0%, 0%, 1%, 0% and 0% upper extremity impairment (UEI) respectively. These were added to give 2% UEI which converted to 1% WPI using Table 3, page 20 AMA 4 Guides.

14. Medical Assessor Cameron did not assess the degree of permanent impairment in Ms Esen’s cervical spine.

15. Accordingly, the combined WPI was 1%.

16. In respect of the treatment dispute, Medical Assessor Cameron determined that the requested treatment could be seen as causally related to the motor accident. However, he determined that the proposed surgery was not reasonable and necessary because it was not likely to improve Ms Esen’s functioning and, in fact, was more likely to be associated with a reduction in functioning due to the trauma associated with the surgery. Ms Esen had some shoulder pain but her range of movement was close to normal.

Medical Assessor Peter Steadman: 19 August 2019

1. On 7 August 2019, Ms Esen was assessed by Medical Assessor Steadman in respect of a further permanent impairment dispute for the physical injuries alleged to have been caused by the motor accident.

2. On 19 August 2019, Medical Assessor Steadman issued a certificate in respect of the permanent impairment dispute.[114]

   [114] Insurer’s documents at pages 25-32.

3. Medical Assessor Steadman noted that the injuries referred for assessment were as follows:

   (a)    lumbosacral spine – soft tissue injury;

   (b)    cervical spine – soft tissue injury;

   (c)    right shoulder – soft tissue injury in accordance with Nguyen v The Motor Accidents Authority of NSW and Zurich Australian Insurance Ltd[115] (Nguyen), and

   (d)    left shoulder – soft tissue injury in accordance with Nguyen.

   [115] Nguyen v The Motor Accidents Authority of NSW and Zurich Australian Insurance Ltd [2011] NSWSC 351.

4. Ms Esen provided a past medical history that contained some differences to those recorded at previous and subsequent medical assessments. Medical Assessor Steadman noted the following pre-accident medical history:

   “She reports that she was a 71-year-old lady at the time of the accident. She suffered from longstanding rheumatic issues and it sounds like she attended upon a rheumatologist and was on Kenacort for more than ten years which is a steroid. She said that she suffered from some hypertension and attended upon her GP Dr Emin. She had only had a hernia repaired and suffered from a significant back injury in a motor vehicle accident in 1978 and reports to me early on that there has been a mistake and the back is not included in her claim. The back has not changed nor is at part of her recent accident, when in 1978 the car rolled over when she sustained a back injury. She is allergic to penicillin. Denies any other [sic] cigarettes or alcohol.”[116]

   [116] Insurer's documents at pages 26-27.

5. Medical Assessor Steadman took a history of the motor accident that was consistent with the evidence.

6. Medical Assessor Steadman took the following history of symptoms and treatment following the motor accident:

   “Treatment since the accident has been physiotherapy although recently she advises that she has been to see the specialist Dr Yalizis and is on the waiting list at Blacktown Hospital to have an operation on both shoulders when she is advised. She reports that her low back represents no accident history and relates to an accident in 1978. She reports no symptoms or change or loss of movement further to this accident. In relation to her shoulder she says the left shoulder was injured in the accident when her left arm hit the pillar. She says the right arm pain came on about one year ago and she believes is due to overuse because of problems with her left arm. She told me left arm activities that she has to perform include cooking, carrying things with both arms and performing other cleaning activities at home. The cervical spine she reports suffered no prior injury complaints and has been injured and causing her pain.”[117]

   [117] Insurer's documents at page 27.

7. The Panel noted that the above history was inconsistent with Ms Esen’s previous and subsequent reports to various medical practitioners that she had injured her cervical spine, lumbar spine and bilateral shoulders in the motor accident. It was also inconsistent with her reports of having undergone some sort of surgery to her cervical spine.

8. Medical Assessor Steadman noted Ms Esen’s current complaints as neck pain, particularly on the right side and bilateral shoulder pain.

9. Medical Assessor Steadman conducted a clinical examination of Ms Esen’s lumbosacral spine, cervical spine and shoulders and recorded his findings.

10. In respect of diagnosis and causation, Medical Assessor Steadman referred to “redefined injuries.”[118] The Panel assumed that this referred to the removal of the lumbosacral spine referral for assessment based on Ms Esen’s statements during the assessment.

    [118] Insurer's documents at page 30

11. Medical Assessor Steadman found that Ms Esen suffered an aggravation of pre-existing radiological osteoarthritis with a soft tissue injury to her cervical spine caused by the motor accident.

12. Based on what Ms Esen had told him, Medical Assessor Steadman found no injury to the lumbosacral spine caused by the motor accident.

13. In respect of the bilateral shoulders, Medical Assessor Steadman found as follows:

    “Shoulders; both in my opinion reflect the treated diagnosis of rheumatism and the changes present in both of the rotator cuffs would not represent injury related changes specifically as opposed to age related deterioration. Therefore I am not of the opinion the changes are related to the accident. In addition, the right shoulder was considered to be an overuse problem which is unlikely on the background of the rheumatism and chronic Panadeine Forte use of which there is no evidence based medicine support. I also note the symmetry of findings which negate each other and are not Nguyen related in my opinion.”[119]

    [119] Insurer's documents at page 30.

14. Accordingly, Medical Assessor Steadman concluded that the only injury caused by the motor accident was that to Ms Esen’s cervical spine.

15. In respect of the assessment of permanent impairment of Ms Esen’s cervical spine, Medical Assessor Steadman observed Ms Esen grabbing the right side of her neck resulting in the neck listing to the side. Forward flexion and extension were both 36°; lateral flexion to the right was 15° and painful whilst lateral flexion to the left was 30°; rotation to the right was painful and limited to 10° whilst rotation to the left was 45°; there was no evidence of radiculopathy there being equal power reflexes and sensation. Medical Assessor Steadman concluded that these clinical findings constituted dysmetria with spasm and fulfilled DRE Category II criteria which attracts a WPI of 5%.

SUBMISSIONS

Ms Esen’s submissions

1. Ms Esen, through her counsel, provided written submissions dated 30 August 2022 in support of her application for further assessment of a permanent impairment dispute.[120] Her counsel also provided written submissions dated 10 January 2024 in respect of her application for review of the medical assessment by Medical Assessor Fitzsimons.[121]

   [120] Claimant’s documents at pages 19-32.

   [121] Claimant’s documents at pages 3-14.

2. The evidence relied on by Ms Esen demonstrates that she suffered lumbar spine and bilateral shoulder pain following the motor accident that was causally related to the accident.

3. The treating material produced by Blacktown Medical Centre and the medico-legal reports of Dr Kai Lee dated 22 April 2022 show that Ms Esen’s injuries, particularly in relation to the left shoulder, have demonstrably deteriorated.

4. Ms Esen’s submissions detailed the alleged demonstrable material errors in Medical Assessor Fitzsimons certificate dated 1 December 2023. The alleged demonstrable material errors included a failure to provide a proper assessment of WPI; findings inconsistent with the available treating evidence and medico-legal experts; and incorrectly applying the test of causation.

Insurer’s submissions

1. The insurer provided written submissions dated 15 September 2022 in reply to Ms Esen’s application for further assessment of a permanent impairment dispute.[122] It also provided written submissions dated 30 January 2024 in respect of Ms Esen’s application for review of the medical assessment by Medical Assessor Fitzsimons.[123]

   [122] Insurer’s documents at pages 2-5.

   [123] Insurer’s documents at pages 6-17.

2. Ms Esen’s injuries caused by the motor accident do not exceed the 10% WPI threshold.

3. Ms Esen’s bilateral shoulder injuries were not related to the motor accident. The insurer had not approved or paid for any treatment relating to her left shoulder, contrary to the submission made by Ms Esen.

4. The insurer relies on the report of Dr Keller dated 4 July 2022. Based on the opinion of Dr Keller, the insurer submits that Ms Esen’s claimed injuries are not related to the motor accident and therefore, do not attract any permanent impairment.

5. The insurer disagreed with Ms Esen’s submissions in respect of the alleged demonstrable material errors in Medical Assessor Fitzsimons certificate dated 1 December 2023 and provided detailed reasons.

THE RE-EXAMINATION

Preamble

1. On 27 November 2024, the Panel re-examination and assessment of Ms Esen was undertaken by Medical Assessors Lahz and Barnsley (the Medical Assessors) on behalf of the Panel at the Commission’s medical suites between 9.10am and 11.20am.

2. A Turkish Interpreter, Azize Sena (NAATI No CPN80L63G), was present throughout the assessment and translated all communication with and from Ms Esen.

3. At the outset of the assessment, the purpose of the assessment was explained to Ms Esen, that is, the resolution of a dispute that had arisen between her and the insurer. The

   
   

   non-confidential nature of the assessment was also disclosed. It was explained that the Medical Assessors would not be involved in the treatment of her condition.

4. The nature of the questions and extent of examination were also explained to Ms Esen. It was also explained that the Medical Assessors had access to her extensive past medical records and it was foreshadowed that any discrepancies between the history obtained and that revealed in the medical records would be put to her to facilitate a fair assessment.

Past medical history

1. Ms Esen was asked about her past medical history. She is known to have hypertension, hypothyroidism, type 2 diabetes and rheumatoid arthritis. The rheumatoid arthritis was diagnosed 20 years ago and she stated that it had affected her feet, ankles and right hand.

2. Ms Esen had been involved in a motor vehicle accident in 1978. She was the front seat passenger in a car that was hit on the front passenger side. She recalls fracturing her nose and developing some low back pain. She had a prolonged stay in Concord Hospital and was left with residual intermittent low back pain. She said that this would occur from time to time and had persisted up until the motor accident on 30 August 2015.

3. Ms Esen was specifically asked about any prior symptoms in her neck or shoulder before the motor accident. She stated that she had not had any neck or shoulder pain before the motor accident in 2015. Her response was confirmed with a closed ended question in which she was also asked about any low back pain before the subject motor accident. She explained that, following the earlier motor vehicle accident, she had had some low back pain around the L5/S1 level from time to time. She denied any leg pain prior to the motor accident in 2015.

4. It was then put to Ms Esen that there was a record of back pain radiating into the legs in 2013 in the records of Dr Mark Liew, her rheumatologist. It was also noted that, on the 19 June 2014, Dr Liew had recorded a flare-up of right shoulder pain and neck symptoms. She stated that she may have had some right sided upper neck pain, but she denied any radiating pain down the legs at any point in time. She could not recall having any prior right shoulder pain. She observed that it had been a long time ago.

History of the motor accident

1. Ms Esen was involved in a motor accident on the 30 August 2015. She was the front seat passenger in a Toyota Corolla. She was wearing a lap sash seat belt. Her husband was driving and was indicating that he was turning to the right into a driveway. Another vehicle then overtook her car on the driver’s side colliding with the right hand (driver’s) side of the car as the right hand turn was initiated. She recalls her husband falling onto her, pushing her to the left, and she hit her left shoulder on the car door.

2. Police and ambulance attended. Their car was subsequently written off. It was towed from the scene. She experienced chest tightness at the scene of the motor accident but declined ambulance transport to hospital after being assessed by the ambulance officers. She was subsequently driven home by her grand-daughter.

3. Ms Esen recalls that, after a few hours, she developed some right-sided upper neck pain. This was in the same site as she had experienced pain in the neck in the past. She also became aware of some left shoulder pain. She cannot recall whether she had any bruising or visible changes over the left shoulder. She also experienced some low back pain in the same location as described above.

4. Ms Esen waited a few days to see whether these symptoms would settle down and then consulted her local doctor on the 31 August 2015. She confirmed that she was experiencing pain in the neck, left shoulder and low back at that time. It was put to her that, in the local medical officer’s notes of that day, there is no mention of the motor accident or of pain outside the lumbar spine. She replied that he had sent her for a shoulder ultrasound. However, she again stated that it was a long time ago and she could not remember all of the details.

5. Ms Esen reported that her low back pain had persisted. It remained in the same site as the pain that she experienced prior to the motor accident, but she described it as “a bit worse”. She had also developed some numbness under both feet. She described the sensation akin to walking on sponges. She was uncertain how long after the motor accident this developed. She said that it had been attributed to her low back pain.

1. Ms Esen has had persistent left shoulder pain. She tried using medication. She had a brief course of Medicare funded physiotherapy and had several injections. However, because of persisting symptoms, she eventually came to surgery in 2020. She said that, initially, the shoulder was quite good but she had a prolonged period where she did not use it which she estimated as being over 12 months. She explained that, when her right shoulder started giving her pain and she had to use the left arm more, she developed a recurrence of the pain in the left shoulder. She has subsequently consulted an orthopaedic surgeon and has been offered the option of a left total shoulder replacement. She is currently contemplating that option although she expressed apprehension about such a large procedure.

2. Ms Esen’s neck pain has persisted. It remains in the right upper part of the neck in the same side as she experienced pain prior to the motor accident. The pain is limited to the right side. She separates this from her right shoulder pain (see the paragraph below). She has noted some numbness over the ulnar two digits on the left hand. She is unsure how long she has had this but it has only occurred since the motor accident. She did explain that she had significant limitation of left elbow movements. It is noted that she has significant rheumatoid involvement of the left elbow with fixed flexion deformity and persistent synovial swelling.

3. Ms Esen reports developing right-sided shoulder pain during the period following her surgery on the left shoulder in 2020. It was brought to her attention that her local doctor recorded a history of a fall at home in which she landed on her face and right shoulder. The record is dated the 18 June 2018 and she was subsequently referred for a right shoulder ultrasound. She was also noted to have diminished range of movement and a tender acromioclavicular joint on examination. Ms Esen denied that she had fallen or had any right sided shoulder pain at that time. She thought the doctor might not have understood her complaints.

Current symptoms

1. Ms Esen’s current symptoms are pain over the shoulder cowl of both shoulders, pain in the right upper neck and pain in the low back. She also complains of a feeling of numbness under both feet as if she were walking on sponges.

Treatment

1. Ms Esen has had treatment with various medications, principally analgesics. She has had steroid injections in the shoulders. She has had injections for her neck and back. None of these have helped.

2. Ms Esen is currently taking several medications but was unsure of their names. She recognised the name of one medication, methotrexate, and takes one tablet weekly. She is taking cortisone tablets and uses simple analgesics such as paracetamol.

Clinical examination

General presentation

1. Ms Esen was 150cm tall and weighed 69.6kg. She was examined in a gown and Medical Assessor Barnsley left the room whilst she was getting changed.

2. She had pes planus and hallux valgus more on the left than the right. There were secondary osteoarthritic changes in the right proximal interphalangeal joints. There was soft tissue swelling of the left wrist and left elbow which had a fixed flexion deformity. The Medical Assessors considered that these findings are consistent with past and currently active rheumatoid arthritis.

Lumbar spine

1. Lumbar spine examination demonstrated flexion of 50% of normal, extension of 50% of normal (limited by pain), lateral flexion was symmetrically decreased to 50% of normal. Rotation was symmetrical at 50% of normal. There was no guarding or spasm.

2. Straight leg raising was 40° on each side limited by pain in the posterior thighs. Sciatic stretch tests were negative.

3. At the outset of the examination, she was able to stand on her toes and heels, albeit briefly. Formal assessment of power demonstrated give-way weakness in hip flexors and extensors, knee flexion and extension and ankle dorsiflexion and plantar flexion. Give-way weakness describes initial application of some power followed by sudden weakness. It is a non-organic sign and is not indicative of neurological dysfunction. The weakness she manifested on physical testing was incompatible with her observed ability to walk, rise from a chair or stand on her heels and toes.

4. She had symmetrically present knee jerks. The left ankle jerk was present but the right ankle jerk was absent. She had subjectively altered sensation to light touch in a stocking distribution to just above the ankles.

5. Thigh circumference, measured 10cm above the upper pole of the patella, was 46cm on the right and 46cm on the left. Calf circumference, measured 10cm below the lower pole of the patella, was 37.5cm on the right and 37cm on the left.

Cervical spine

1. Cervical spine examination demonstrated no guarding or spasm of the cervical muscles. Flexion was decreased to 50% of expected and extension was similarly reduced by 50%. Left rotation was 40° and right rotation was 40°. Lateral flexion was 30^° on each side.

2. At other times during informal assessment, she demonstrated full and apparently painless movement of the neck, such as when turning to speak to the interpreter seated to her right and when the examiner stood to her left side demonstrating movements. The Medical Assessors brought these inconsistencies to her attention.

3. Spurling’s test was negative on both sides. She demonstrated reasonable intrinsic muscle power in the hands, including both abductor digiti minimi. She had give-way weakness in the rest of the muscle groups in the upper arms.

4. Upper limb reflexes, specifically biceps reflex, triceps reflex, brachioradialis reflex and finger jerks were symmetrically present.

5. Upper arm, circumference measured 10cm above the lateral epicondyle, was 31cm on the right and 31 cm on the left. Forearm circumference, measured 10cm below the lateral epicondyle, was 29cm on the right and 29cm on the left.

6. There was no wasting of the shoulder musculature. There were two 1.5cm white scars one on the lateral aspect of the shoulder and the other anteriorly from her previous arthroscopy. They were covered by her normal clothing. There was no contour change or visible suture mark.

7. The shoulders were assessed for movement using a goniometer and the results are reported in the table below. Ms Esen was asked to demonstrate her best efforts within limits of tolerance and it was clear that movements during the assessment caused her pain. Movements were repeated to ensure consistency, but a third assessment was not performed given her distress regarding pain levels induced by movement.

Flexion	Extension	Abduction	Adduction	Internal Rotation	External rotation
Right 1st attempt	120°	50°	80°	10°	70°	70°
Right 2nd attempt	90°	40°	80°	20°	80°	80°
Left 1st Attempt	100°	50°	90°	30°	50°	90°
Left 2nd Attempt	110°	40°	70°	30°	60°	50°

1. The Medical Assessors noted that these results indicate inconsistency. The Medical Assessors also considered prior assessments of shoulder range of motion supplied to the Panel to assess for inter observer inconsistency as set out in the tables below.

   Right shoulder

Dr Kai Lee 2022	Medical Assessor Steadman 2019	Medical Assessor Fitzsimons 2024	Medical Assessor Cameron 2018	Dr Keller 2022
Flexion	130°	120°	120°	180°	120°
Extension	40°	10°	30°	60°	10°
Abduction	90°	110°	80°	180°	120°
Adduction	30°	10°	20°	40°	40°
Internal Rotation	90°	20°	60°	90°	90°
External Rotation	50°	90°	70°	90°	90°

Left shoulder

Dr Kai Lee 2022	Medical Assessor Steadman 2019	Medical Assessor Fitzsimons 2024	Medical Assessor Cameron 2018	Dr Keller 2022
Flexion	70°	120°	100°	170°	160°
Extension	30°	10°	40°	50°	30°
Abduction	90°	110°	70°	170°	160°
Adduction	20°	10°	30°	30°	40°
Internal Rotation	60°	60°	40°	90°	90°
External Rotation	10°	90°	90°	90°	90°

Comments on consistency

1. The Medical Assessors noted a number of inconsistencies which were put to Ms Esen to maintain procedural fairness. Those arising from the history are addressed in context above.

2. Ms Esen’s attention was drawn to the inconsistency between her measured strength and that demonstrated during observation of her ability to stand on the heels and toes and walk. She stated that she tried to do all that was asked of her with all her strength.

3. Ms Esen’s attention was then drawn to the inconsistency between formally measured and informally observed neck range of movement. She stated that she would still try to do things and that she was trying to push herself despite symptoms.

4. Ms Esen’s attention was drawn to the inconsistencies in shoulder movement observed during the assessment and also the significant variation between different assessors at different times. She stated that her shoulder range of movement varied according to her degree of pain and fatigue.

5. The Medical Assessors noted that many of the key historical events in assessing Ms Esen’s impairment, such as prior symptoms and subsequent events, had occurred a considerable time ago. The Medical Assessors considered that her explanation that she could not remember some of these details was entirely reasonable in those circumstances. The Panel therefore chose to give weight to the contemporaneous medical evidence recorded by her treating doctors.

DIAGNOSIS, CAUSATION AND REASONS

1. The Panel noted the unchallenged evidence that, on 30 August 2015, Ms Esen was a

   
   

   seat-belted front seat passenger of a motor vehicle driven by her husband that slowed to make a right hand turn into a driveway. Another vehicle was travelling behind them at the time and collided with the driver’s side of their car as they were turning into the driveway. In the collision, her husband fell onto her, pushed her to the left, and she hit her left shoulder on their car door. There was a single impact. Their car was towed from the scene and was subsequently written off.

2. The Panel considered that the mechanism of the motor accident could have caused the symptoms complained of by Ms Esen in her lumbar spine, cervical spine and left shoulder.

3. The Panel did not find any evidence of a frank or direct injury to the right shoulder in the motor accident. The Panel noted that, on the basis of Ms Esen’s recollection, the right shoulder symptoms started a long time after the motor accident. There were complaints of bilateral shoulder pain at various times in Ms Esen’s clinical records in the years prior to the motor accident. Ms Esen has an inconsistent history of pain onset in her right shoulder. She says that the onset of pain occurred after her left shoulder surgery in 2020. The Panel finds it unlikely that any post-surgery favouring of the left shoulder would have contributed to her right shoulder symptoms and impairment to an extent that was more than negligible in circumstances where her medical records documented injury from a fall in 2018 resulting in a right haemorrhagic effusion and right shoulder symptoms thereafter on a background of rheumatoid arthritis. Further, Ms Esen’s current right shoulder symptoms would be compatible with rheumatoid arthritis involvement as revealed on bone scan. Accordingly, the Panel finds that Ms Esen’s right shoulder symptoms were not caused by the motor accident.

4. The Panel accepts Ms Esen’s evidence that there was a direct impact to her left shoulder in the motor accident.

5. The unchallenged medical evidence is that Ms Esen suffered from pre-existing conditions in her bilateral shoulders, cervical spine and lumbar spine on a longstanding background of rheumatoid arthritis and non-insulin-dependent diabetes myelitis. However, whilst there were complaints over many years prior to the motor accident of symptoms in the cervical spine, lumbar spine and left shoulder, those complaints increased following the motor accident, as did the necessity for treatment.

6. The preponderance of the medical evidence supported Ms Esen having sustained injuries to her cervical spine, lumbar spine and left shoulder in the motor accident.

7. The mechanism of the motor accident, the reasonably prompt development of and persistence of symptoms, persistence of disabilities, the need for ongoing treatment and an unbroken chain of causation since the motor accident would indicate, on the balance of probabilities, that the motor accident did cause or contribute to Ms Esen’s current symptoms to an extent that is more than negligible.

8. Based on the findings on physical examination and the documents in evidence, the Panel finds that the following injuries were caused by the motor accident:

   (a)    soft tissue injury and aggravation of a pre-existing condition in the cervical spine;

   (b)    soft tissue injury and aggravation of a pre-existing condition in the lumbar spine and

   (c)    soft tissue injury and aggravation of a pre-existing condition in the left shoulder.

PERMANENCY OF IMPAIRMENT

1. Permanent impairment is defined by the AMA 4 Guides as impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially, that is, by more than 3% WPI in the next year with or without medical treatment.[124]

   [124] AMA 4 Guides at page 315 and cl 1.19 of the Guidelines.

2. The Panel considered the question of permanency of impairment and is satisfied that Ms Esen’s injuries caused by the motor accident have stabilised and are permanent within the meaning of the above definition.

DEGREE OF PERMANENT IMPAIRMENT

1. The Panel assesses Ms Esen’s degree of permanent impairment as set out below.

Lumbar spine (lumbosacral)

1. The Medical Assessors noted no dysmetria and no non-verifiable radicular symptoms. The clinical examination and description of the numbness in the feet are those of a peripheral neuropathy rather than a radiculopathy. This view is further borne out by the findings of Dr Dowla in 2017 when he found electrophysiological changes in keeping with a diabetic polyneuropathy. The Medical Assessors did note that the right ankle jerk was absent. The Medical Assessors found no other evidence of a radiculopathy on examination. Ms Esen has complaints of back pain without dysmetria, non-verifiable radicular symptoms or radiculopathy applying the criteria of the Guidelines. Accordingly, Ms Esen meets criteria for DRE Lumbosacral Category I impairment of the lumbar spine which attracts a WPI of 0%.

Cervical spine (cervicothoracic)

1. The Medical Assessors noted no dysmetria and no non-verifiable radicular symptoms. The symptoms on the ulnar aspect of the left arm were considered due to irritation of the ulnar nerve at the left elbow where there is significant pathology. Moreover, the symptoms in her neck are on the right side rather than the left side. The Medical Assessors did not consider that these findings of numbness were a feature of non-verifiable radicular symptoms. Ms Esen has complaints of pain without consistent dysmetria, non-verifiable radicular symptoms or physical findings meeting the criteria for the diagnosis of radiculopathy. Accordingly, Ms Esen meets criteria for DRE Cervicothoracic Category I impairment of the cervical spine which attracts a 0% WPI.

Left shoulder

1. In assessing impairment, the Medical Assessors were concerned that there was significant inconsistency in the range of movement in the shoulder and therefore, considered that range of movement could not be used as the means of determining impairment. It was therefore felt reasonable to assess shoulder WPI by analogy as per cls 1.40, 1.41 and 1.50 of the Guidelines which state, where there are inconsistencies, these should be brought to the person’s attention and the person accorded the opportunity to explain. The assessor must also use the full gamut of knowledge and clinical experience to determine that where the evidence does not verify that an impairment of a certain magnitude exists (as in this case), the medical assessor should modify the impairment estimate accordingly and describe the modification and outline reasons for the same.

2. By way of analogy for left shoulder WPI, the Panel referred to Table 19 page 59 AMA 4 Guides, indicating 10% joint impairment for “mild” severity. Table 18 page 58 AMA 4 Guides gives a maximum of 25% UEI for AC joint. 10% of 25% UEI is 2.5% UEI which is then rounded to 3% UEI or else 2% WPI per Table 3, page 20 AMA 4 Guides for the left shoulder. In summary there is 2% WPI for the left shoulder.

The combined impairment

1. The combined impairment is 0% by 0% by 2% which equals 2% WPI.

Pre-existing or subsequent impairment

1. The general practitioner records preceding the motor accident referred to bilateral shoulder pain in June 2014 although there were no subsequent references to shoulder pain in those records to the date of the motor accident. Clause 1.31 of the Guidelines says that if there is no objective evidence of pre-existing symptomatic impairment of a body part at the time of the motor accident, then its possible presence can be ignored. Therefore, there is no deductible proportion applicable to the left shoulder.

2. Although there were symptoms of neck and lower back pain before the motor accident, the medical records provided no evidence of any assessable permanent WPI at either the neck or the lower back, prior to the motor accident.

3. There was no evidence of any subsequent impairment.

4. Accordingly, the Panel finds apportionment of impairment irrelevant.

Summary of assessment of permanent impairment

1. The Panel assesses Ms Esen’s permanent impairment as follows:

   (a)    current WPI: 2%;

   (b)    pre-existing WPI: 0%, and

   (c)    subsequent WPI: 0%.

FINDINGS

1. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[125] and Insurance Australia Ltd v Marsh.[126]

   [125] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].

   [126] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].

2. The Panel adopts the re-examination findings and conclusions of Medical Assessors Lahz and Barnsley based on their examination and specific findings pertaining to diagnosis, causation and assessment of permanent impairment.

3. The Panel determines that there was no evidence of injury to the right shoulder caused by the motor accident on 30 August 2015.

4. The Panel determines that Ms Esen sustained soft tissue injuries and

   aggravations of

   
   

   pre-existing conditions in the cervical spine, lumbar spine and left shoulder caused by the motor accident on 30 August 2015.

5. The Panel determines that the injuries caused by the motor accident give rise to a WPI which is not greater than 10%, that is, 2%.

6. The Panel revokes the certificate issued by Medical Assessor Robin Fitzsimons dated 1 December 2023.

CONCLUSION

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