Eterna v Insurance Australia Limited t/as NRMA Insurance

[2025] NSWPICMP 61

DETERMINATION OF REVIEW PANEL

CITATION:

Eterna v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 61

CLAIMANT:

Lux Eterna

INSURER:

Insurance Australia Limited, ABN 11 000 016 722, trading as NRMA

REVIEW PANEL

MEMBER:

Terence Stern OAM

MEDICAL ASSESSOR:

Mohammed Assem

MEDICAL ASSESSOR:

Thomas Rosenthal

DATE OF DECISION:

4 February 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor; claimant injured in motor vehicle accident in 2022; on 21 May 2024 MA Wijetunga determined WPI of 17%; review of medical assessment; Held – Panel revoked certificate of MA; substituted determination of 5% WPI.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

1.    The Review Panel revokes the certificate of Medical Assessor Nelukshi Wijetunga, dated 21 May 2024, and substitutes the determination that the claimant did not establish that she, as a result of the accident, sustained whole person impairment (WPI) in excess of 10%. The Review Panel found a 5% WPI due to the injuries sustained in the subject motor vehicle accident.

STATEMENT OF REASONS

INTRODUCTION

1. Lux Eterna (Ms Eterna), the claimant, was born in 1978. She is an Australian citizen and does not have offspring.

2. Ms Eterna was injured on 28 May 2022 in a motor vehicle accident (the Accident).

3. At the time of the Accident, Ms Eterna describes herself as having been a creative freelancer, interdisciplinary artist, camera operator, and a film director.

4. On 28 May 2022 in the Accident, she was riding her pushbike when a motor vehicle collided with her causing injury, including a fracture of her sacrum.

5. Ms Eterna has brought a claim for common law damages for the injuries she sustained under the Motor Accident Injuries Act 2017 (the MAI Act).

6. Insurance Australia Limited, ABN 11 000 016 722, trading as NRMA is the relevant insurer (NRMA).

7. A medical dispute about the degree of Ms Eterna’s whole person impairment (WPI) has arisen. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.

8. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.

9. The dispute was referred to the Personal Injury Commission (Commission) and assigned to Medical Assessor Nelukshi Wijetunga for assessment.

10. On 21 May 2024, Medical Assessor Wijetunga issued a certificate under s 7.23(1) of the MAI Act.

REVIEW PROCEDURE

1. Ms Eterna sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review).

2. A delegate of the President of the Commission determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the matter to the Review Panel (the Panel).

3. The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. The President’s delegate has convened this Panel to conduct the review of the medical assessment.

4. The Review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. Section 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.

5. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (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.

LEGISLATIVE FRAMEWORK

General provisions

16.Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.

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

2. However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

Permanent impairment assessment

1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).

2. The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.

3. Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.

4. Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.

5. Clause 6.6 of the Guidelines notes:

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

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

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

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

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

6. Clause 6.7 of the Guidelines states:

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

7. Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.

8. The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.

9. Clause 6.32 of the Guidelines states:

   “The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.”

10. Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.

ASSESSMENT UNDER REVIEW

1. Medical Assessor Wijetunga (the Medical Assessor) examined Ms Eterna on 21 May 2024 and issued a certificate the same day under s 7.23 of the MAI Act.

2. The following injuries were referred by the Commission for assessment:

   (a)    buttocks / glutes: (left) – bruising and tyre mark to left buttock;

   (b)    cervical spine – cervical spine injury;

   (c)    hip (right) – bruising to right hip;

   (d)    knee (right) – right knee injury;

   (e)    lumbar spine – lumbar spine including the sixth sacral fragment fracture with displacement and persistent marrow oedema in the section;

   (f)    sacrum/coccyx – sacrum/coccyx associated fracture;

   (g)    shoulder (right) – right shoulder injury, and

   (h)    thigh (right) – grazes and bruising to right thigh.

3. Medical Assessor Wijetunga dealt with the submissions by Ms Eterna dated 22 March 2023 at [3]:

   “The Assessor noted the Submission of Ms Eterna that Dr James Bodel, Orthopaedic Surgeon, assessed Ms Eterna at 17% WPI with 5% for each of the Cervical Spine, Lumbar Spine, and 2% for the right-upper extremity, and 5% for the fracture of the sacrum.

   The Submission of Ms Eterna further noted that Dr Rastogi, Psychiatrist, on 2 October 2023 had assessed her as a 16% WPI for Posttraumatic Stress.”

4. Medical Assessor Wijetunga then dealt with the Submissions by the Insurer in reply of 25 January 2024 at [4], the thrust of which was that there was insufficient medical evidence before the Medical Assessor to provide an accurate account of the medical history and the permanent impairment:

5. Medical Assessor Wijetunga then took a detailed history and relevant personal details at
   [8]-[13]:

   “[8]    Pre-accident medical history and relevant personal details: -

   Ms Eterna completed all her secondary education. She then completed a Bachelor of Arts and a Master of Teaching. After her first degree she worked in a bank for about 1 year. After completing her Master of Teaching, she worked as a teacher for 4 years. After about 4 years, she changed her hours to casual. In 2013/2014 her art practice started to take shape, and at that time she was working in Arts, film and photography and dancing. In the 12 months before the accident, she trained once a week for 3-4 hours and then again an hour on a fortnightly basis. In the 12 months before the accident, she was working as a camera operator, videographer and undertaking dance performance making and directing. She was working more than full time hours.

   She does not describe any relevant past medical history.

   Ms Eterna lives in a house on her own. She does not smoke and drinks alcohol occasionally. She is right hand dominant.

   [9]    The Medical Assessor at [9] sets out the history of the accident, which the Panel does not reproduce as it is not controversial.

   [10]     History of symptoms and treatment following the motor accident: -

   At hospital she was provided with analgesia. She was unable to lie on her back and was taken for scans where she could only lie on her side. At the hospital, they diagnosed her with a fractured coccyx.

   After discharge, she returned home and was mainly bed bound for about 4 months. During this time, she had osteopathy.

   She had an MRI in July 2022 which diagnosed to a fracture to sacrum. After 4 months, she continued to use crutches up until February 2023. At that time, she also had difficulties with urinary incontinence. This has somewhat improved.

   Around March 2023, she started physiotherapy and Pilates.

   She reports that up to that time, all her pain was in the coccygeal area.

   She cannot recall any significant neck pain or shoulder pain or right knee pain and her main concern was around her lumbar spine and co. She mainly describes left sided symptoms to left hip, knee and foot.

   She reports that around March 2023, her condition had improved by about 60%.

   In July 2023, she had three PRP injections to her sacroiliac joint which she found to assist in improvement of her mobility.

   Since the accident, her work has changed as she has lost the more creative components of her work life. At the moment she is doing casual teaching for 3 days per week. She also does some of her own artwork.

   [11]     Details of any relevant injuries or conditions sustained since the motor accident: -

   Nil described.

   [12]     Current symptoms: -

   Bruises and tyre mark to left buttock.

   -She no longer has this and reports that it took about 6 weeks to resolve.

   Cervical spine

   -She reports a slight reduction in range of movements. However she does not describe any neck pain.

   Right hip

   -She has intermittent right hip pain in the inguinal area and extending into the groin. This changes intermittently to the left hip pain. She mainly experiences this pain when walking for longer than 35 – 45 minute mark.

   -On average it onsets a couple of times a week.

   -On onset she estimates her pain level as 4-5/10. She has started to experience clicking in her hip.

   Right knee

   -She reports that initially the pain was mainly in the left.

   -She describes right knee pain if she is walking regularly.

   -On average it onsets about once a week, and is estimated at 3/10.

   -She does not describe any clicking, locking or instability of her right knee. She reports that at the time of the accident she had scars in the inferior aspect of her anterior Knee.

   Lower back and right thigh

   -She describes constant pain from her lower thoracic spine to lumbar spine.

   -At a constant level she estimates it as 5/10.

   -With longer activity her pain increases to 7/10.

   -On occasions if she is sitting for prolonged periods or taking public transport, she may experience it down the posterior aspect of her right thigh.

   Right shoulder

   -She does not describe any shoulder pain but experiences an intermittent clicking.

   [13]     Current and proposed treatment: -

   She takes Tapentadol at night if she is going to be more active or if her symptoms are more severe. She also takes Nuromel on a daily basis.”

6. Medical Assessor Wijetunga performed a clinical examination at [14]-[19]:

   “[14]  General presentation

   She was noted to require a sacral pillow and change her posture to lying down during the assessment. She is able to stand and walk on her toes and achieve a squatted position.

   [15]     Cervical spine (cervicothoracic)

   She has mild tenderness on firm palpation of her his cervical spine and paraspinal muscles. There is normal spinal curvature. There is no muscle spasm or guarding. She demonstrates the following range of movements expressed as a fraction of normal.

Movements	Cervical Spine
EXTENSION	Normal
FLEXION	Normal
RIGHT ROTATION	Normal
LEFT ROTATION	Normal
RIGHT FLEXION	Normal
LEFT FLEXION	Normal

The neurological examination of the upper limbs was undertaken which reflects normal tone, muscle strength bilateral symmetrical reflexes (which were globally reduced and not reflective of specific spinal nerve injury) of the upper limbs and she he described reduced sensibility over lateral aspect of her left upper arm which corresponds to the C5 dermatome.

[16]     Lumbar spine (lumbosacral)

She has normal spinal curvature of her lumbosacral spine. She has mild tenderness over the thoracic and lumbar area. She does not have any muscle spasm or guarding.

She demonstrates the following range of movements expressed as a fraction of normal.

Movements	Lumbar Spine
EXTENSION	Normal
FLEXION	Half
RIGHT ROTATION	Normal
LEFT ROTATION	Normal
RIGHT FLEXION	Normal
LEFT FLEXION	Half

The neurological examination of the lower limbs was undertaken which reflects normal tone, muscle strength bilateral symmetrical reflexes of the lower limbs and reduced sensibility of the whole right thigh, medial calf and lateral aspect of her foot which does not correlate with a specific dermatome. She is able to straight leg raise to 60 degrees bilaterally. Her sciatic stretch test is negative.

Her lower limb circumference is equal with thighs being measured as 43 cm and calves at 38 cm.

[17]     Upper extremity

Ms Eterna does not have any atrophy on inspection. On formal measurement she has an upper arm circumference of 27cm bilaterally which does not correspond to any atrophy of the affected shoulder. There is no tenderness over the insertion point of the rotator cuff. There are no signs of impingement. She demonstrates the following range of movements as measured by goniometer.

Shoulder Movements	Active ROM measured Right (0)	Active ROM measured Left (0)
Flexion	180	180
Extension	50	50
Adduction	50	50
Abduction	140	180
Internal Rotation	70	80
External Rotation	80	80

[18]     Lower extremity

There are no abnormalities on inspection of either hip. She is tender to palpation over each of the greater trochanters. Trendelenberg test of right is positive. She demonstrates the following range of movement as measured by goniometer

Hip Movements	Active ROM measured Right (0)	Active ROM measured Left (0)
Flexion	100	100
Extension	0	0
Adduction	50	50
Abduction	30	30
Internal Rotation	30	30
External Rotation	50	50

On inspection there are no abnormalities of her knees. She felt some discomfort on palpation around the patella tendon. There are no crepitations on movement of her knee. There is no collateral ligament laxity. McMurray, Lachmanns and Clarkes tests are negative.

Knee Movements	Active ROM measured Right (0)	Active ROM measured Left (0)
Flexion	130	130
Extension	0	0

[19]     Comments on consistency

There are no inconsistencies evident at today’s assessment.”

1. Medical Assessor Wijetunga refers to the documents which she had at [20]-[21]. She also summarised the diagnostic material she had at [21].

2. The material available to Medical Assessor Wijetunga included Ms Eterna’s statement of 20 June 2023, the police report, the ambulance report, and a number of other reports as noted by her.

3. Medical Assessor Wijetunga set out her determinations on Causation, Diagnosis and reasons at [22]. She noted that Ms Eterna did not describe any relevant pre-accident medical history and described herself as being very active before the accident, reflected in activities such as bike riding and dancing.

4. The Medical Assessor comments that:

   “The accident was significant in that a car ran into her whilst she was cycling, police and ambulance attended, and she was taken to hospital. I am satisfied that the injuries including bruises and tyre marking to left buttock, cervical spine injury, right hip injury, right knee injury, lumbar spine injury, injury to sacrum/coccyx associated fracture, right shoulder and grazes and bruising to right thigh are causally related to the accident.”

5. The Medical Assessor continued that from the documentation it appeared that Ms Eterna:

   “…fell on her right hip. She describes tenderness of the right hip, and increased pain with adduction. This is consistent with trochanteric bursitis.”

6. The Medical Assessor continued that given Ms Eterna had a sacral fracture, it was plausible that her adjacent lumbar spine was also impacted.

7. Medical Assessor Wijetunga set out her determinations at [25]:

   “The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.

   (y)    Permanent impairment table

   Cervicothoracic (cervical) spine

   In accordance with AMA 4, Chapter 3 page 104 and in view of the following clinical findings:

   -No muscle spasm or guarding

   -No Dysmetria

   -has non-verifiable radiculopathy

   -No imaging demonstrating structural abnormalities that correlates with categories of greater than DRE II.

   The clinical presentation is consistent with a DRE Cervicothoracic Category II impairment rating. A 5% whole person impairment rating arises in accordance with the methodology set out in AMA 4, Chapter 3, page 104.

   Lumbosacral Spine Category

   The clinical presentation is consistent with a DRE Lumbosacral Category 2 impairment rating. There are complaints of low back pain. There is muscle spasm/ There is asymmetrical spinal motion/ There are non-verifiable radicular complaints/ There is muscle guarding.

   The presentation does not meet the criteria for radiculopathy set out in Section 6.138 of the SIRA Guidelines, October 2021, Page 112, which require two of the following:

   (i)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 of the Guidelines).

   (ii)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8 of the Guidelines).

   (iii)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8 of the Guidelines).

   (iv)muscle weakness which is anatomically localised to an appropriate spinal nerve root distribution.

   (v)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

   None were present at this assessment.

   A 5% Whole Person Impairment rating arises in accordance with the methodology set out in AMA 4, Chapter 3, Page 102.

   Sacral fracture

   Using AMA 4, chapter 3, page 131, and given that the MRI of her sacrum in July demonstrated minimally displaced fracture, her conditions correlate with section 2 f i.e. 5% WPI.

   Upper extremity

   42.The shoulder impairment related to whiplash associated disorder is assessed using Nguyens principle (Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351). Impairment is determined using the methodology set out in SIRA Guidelines 2021 and AMA 4, Chapter 3.

   Impairment of the left shoulder is determined using range of motion methods, using figures 38, 41 and 44 AMA 4, pages 43, 44 and 45 respectively, as set out in the Table below:

Shoulder AROM	Right (0)	UE impairment AMA Guides (4th Ed)	Left (0)	UE impairment AMA Guides (4th Ed)
Flexion	180	0% (Fig 41, pg 44)	180	0% (Fig 41, pg 44)
Extension	50	0% (Fig 41, pg 44)	50	0% (Fig 41, pg 44)
Adduction	50	0% (Fig 38, pg 43)	50	0% (Fig 38, pg 43)
Abduction	140	2% (Fig 38, pg 43)	180	0% (Fig 38, pg 43)
IR	70	1% (Fig 44, pg 45)	80	0% (Fig 44, pg 45)
ER	80	0% (Fig 44, pg 45)	80	0% (Fig 44, pg 45)
Total	3%	0%

This gives rise to a 3% WPI. As per AMA 4, Table 3, a 3% WPI converts to a 2% WPI.

Lower extremity

Right hip

This is considered different to hip movements from coccygeal fractures and related to trochanteric bursitis. Therefore, using table 40 page 78 AMA 4, there Is no rateable impairment for the right hip.

Right knee

Although Ms Eterna had direct impact to her knee there are neither crepitations or a positive Clarkes test and therefore table 62, page 83 cannot be used.

Using table 41 page 78 AMA 4, her ROM results in a 0% impairment

Body Part or System	AMA4 Guides/Guidelines References (Chapter/page/table)	Permanent (YES/NO)	Current %WPI*	%WPI from pre-existing or subsequent causes	%WPI* due to motor accident
1	Cervical Spine	AMA 4, Chapter 3, page 104.	Yes	5%	0%	5%
2	Lumbar Spine	AMA 4, Chapter 3, Page 102.	Yes	5%	0%	5%
3	Sacral Fracture	Using AMA 4, chapter 3, page 131	Yes	5%	0%	5%
4	Right Shoulder	AMA 4, pages 43, 44 and 45	Yes	2%	0%	2%
5	Right Hip	table 40 page 78 AMA 4,	Yes	0%	0%	0%
6	Right Knee	table 62, page 83 table 41 page 78 AMA 4	Yes	0%	0%	0%

* %WPI = percentage whole person impairment”

1. Medical Assessor Wijetunga arrived at a degree WPI caused by the accident of 17%.

MEDICAL EXAMINATION BY THE REVIEW PANEL

1. The examination was carried out by Medical Assessor Thomas Rosenthal on 11 December 2024 at the Medical Suites of the Commission. Ms Eterna attended unaccompanied.

History

1. Ms Eterna is a 46-year-old female who was involved in a motor vehicle accident on 28 May 2022. She was a cyclist on a pushbike wearing a helmet and normal clothing. She was traveling in a bike lane in the Homebush region. While traveling in the bike lane, a car had turned left from the road, struck her, and knocked her down. There was no loss of consciousness. An ambulance arrived took her to Concord Hospital. She was kept in the hospital for 24 hours.

2. Her injuries included a suspected fracture of the coccyx, for which she was given painkillers. Subsequent investigations, however, found that she had sustained a displaced fracture of the sacrum. She was treated conservatively for four months on bedrest and then had been on crutches for six months. She then had physiotherapy treatment, which continued from March 2023 until June 2024. She was also given hydrotherapy and had self-managed exercises.

3. She was treated by Dr Moses, a sports physician, who noted that she had sacroiliac joint dysfunction. She experienced pinching symptoms in her left hip and left knee while she was recovering and continued to have low back pain and buttock/sacral pain.

4. She had also developed a psychological injury, including post-traumatic stress disorder.

5. In the accident, she remembered falling onto her right side and grazing her right shoulder. She did not recall injuring her neck.

6. In terms of her hip and knee injuries, she believed it was on the left side and not the right, as listed in her injury list, although she stated she had developed right hip tightness at one point.

7. She said she might have developed some neck symptoms from the prolonged resting period following the accident, but she had undergone no investigations or received any particular treatment for her neck.

8. She had reported no pre-existing injuries and was perfectly well prior to the accident.

Occupational history

1. She was required to perform a lot of dance routines as part of her work. She was working as a film editor/videographer with dance moves in the arts and film industry. The jobs she had undertaken had typically been contract roles.

2. Following the accident, she had been unable to continue with her pre-accident work, which she had been doing since 2014. Some of her work had involved carrying heavy equipment and building sets on stage. Since then, she had been working as a casual teacher in high schools two days a week for the Department of Education. She was teaching English and arts. She was unable to dance anymore because of her injury.

Social history

1. She was single and living in a house in Lidcombe. She was able to do the majority of her household chores and had received help with gardening. Initially, after the accident, she had a cleaner for one year but had resumed doing her own cleaning.

2. She used a sit/stand desk. She reduced her driving because of the injury.

Current symptoms and treatment

1. She had a dull ache in her lumbosacral region, which was worse with activity. She rated it about 6 on a scale of 0-10. It radiated around to the side of her pelvis. She experienced some leg pain shooting down the back of her legs to her ankles, the left worse than the right. She had trouble sleeping.

2. She was able to sit for only about 30 minutes. Standing had been manageable but had caused fatigue after a period of time. She was unable to walk for more than about 45 minutes continuously. She had stopped cycling. She experienced concentration issues. The injury had impacted her work as a film editor and interdisciplinary artist.

3. In terms of her neck, the symptoms come and go. She experienced minor neck stiffness. Her right shoulder occasionally clicked.

4. The left knee pain/discomfort comes and goes. She experienced occasional right hip tightness.

5. Her bowel motions were normal, but she experienced slight bladder urge incontinence.

6. When driving, she used a pudendal cushion in the car.

7. She was undergoing hydrotherapy twice weekly and Pilates at home. She had been taking Palexia 50mg sustained release three times a week

Physical examination

1. On examination, Ms Eterna appeared to walk with a normal gait and posture.

2. She weighed 58.8kg and was 160cm tall.

3. Examination of her neck had revealed no tenderness, spasm, or guarding. There was reduced left rotation of the neck by one-quarter, and left lateral flexion had been reduced by one-quarter. All other neck movements had been of normal range.

4. She had a full range of motion in both shoulders measured with a goniometer. There was no evidence of impingement. Clicking in the right shoulder had not been detected.

5. She was very tender over the sacrum and coccyx region, and there was mild tenderness over both sacroiliac joints.

6. There was no spasm or guarding in the lumbar spine. Forward flexion and extension of the lumbar spine had been of normal range. Lateral flexion was asymmetrical, with left lateral flexion reduced by one-quarter and right lateral flexion reduced by one-third.

7. She was able to get up on her heels and toes and squat. Straight leg raise had been 80° on both sides. She was very flexible. Lasegue’s signs were negative.

8. There was slight tenderness over the greater trochanter of the left hip, but hip movements had been full and of normal range.

9. At the knees, she had a full range of movement from 0° extension to 130° of flexion in both knees. Alignment had been normal. Ligaments were intact.

10. There were no neurological deficits in her upper or lower limbs. Muscle power, tone, and reflexes were normal, and there had been no sensory changes.

Discussion

1. Ms Eterna was involved in an accident when she was knocked off her bicycle by a car on 28 May 2022. The main injury was a fractured sacrum, with the latest radiology showing it was healing in good alignment.

2. With respect to the fracture of the sacrum/coccyx, in terms of impairment to qualify for 5% WPI, she would have needed a healed fracture with displacement. However, a review of the latest radiology had indicated that healing was occurring in good alignment. Thus, she had not qualified for 5% WPI under the Pelvis Table on page 131.

3. With respect to her neck injury, she had asymmetry of neck movement, but the issue of causation of the neck injury still needed to be resolved. It was unclear from her statement and documents as to whether an injury to the neck had actually occurred due to the accident. At the time, she had asymmetry of motion and would have been diagnostic related estimate (DRE) II, 5% WPI.

4. Her right shoulder had been grazed, and there might have been a soft tissue injury to the right shoulder, but there was no residual impairment.

5. Her right hip might have been a consequential injury to an altered gait stance, but there was no ongoing impairment at the right hip.

6. Her right knee apparently had not been injured. It was deemed by Ms Eterna to have been her left knee. There was no residual whole person impairment at either knee.

7. Her lumbar spine injury was associated with the accident, and she was lumbosacral DRE II with asymmetry of motion. She would have received 5% WPI.

Second meeting of the Medical Review Panel on 20 January 2025.

1. The Medical Review Panel met again on 20 January 2025.

2. Medical Assessor Assem was of the view that, as Medical Assessor Rosenthal had documented a normal gait pattern on his clinical examination of Ms Eterna, while she may have had trochanteric bursitis, this condition did not qualify for an impairment rating under the AMA 4 Guidelines (Table 64, page 3-85), as her gait pattern was observed to have been normal.

3. The Review Panel further noted that in the MRI scan, the sacral fracture was reported to have "normal" alignment, which may be a more precise and appropriate description than referring to it as "good" alignment. In any case the sacral fracture had healed without displacement

4. The Review Panel did not consider that Ms Eterna’s neck complaints were causally related to the accident. While Ms Eterna fell onto her right-hand side, grazing her right shoulder, she did not report any impact to her neck. Furthermore, there were no neck complaints documented in the records of Concord Hospital or contemporaneous medical records following the accident.

5. The Review Panel noted that Ms Eterna was on prolonged bed rest for four months, followed by six months of crutch-assisted mobility. She reported to Medical Assessor Rosenthal during his clinical examination that during this period she had developed “some neck symptoms” which Ms Eterna attributed to the extended immobility rather than the accident itself.

6. The Review Panel noted, however, that Dr Duma, neurologist, did not document any cervical spine complaints or findings when he reported on 16 February 2023.

7. Furthermore, in Ms Eterna’s signed statement of 20 June 2023, she did not mention any neck symptoms or complaints.

8. The letter from the osteopath, Elizabeth Howard, dated 14 November 2022 did not report any neck symptoms or treatment.

9. The pictogram from Balmain Sports Medicine Pilates initial assessment showed an absence of shaded areas in the neck region.

10. No treating practitioner has diagnosed any neck condition.

11. The Review Panel did not accept that there had been any aggravation of a pre-existing neck condition at the time of the accident.

12. The Medical Assessors did not accept that there was a consequential neck injury related to the accident.

13. The Review Panel considered that there was no medical plausibility in the proposition that a neck injury had occurred as a result of accident-related bedrest or immobility.

14. Dr James Bodel examined Ms Eterna on 27 June 2023, and this was the first time when symptoms of neck pain were documented, more than 12 months after the accident.

15. The Review Panel noted that moreover, Ms Eterna had not undergone any investigations or received specific treatment for neck pain.

16. The Review Panel noted that the delayed onset of symptoms, the absence of neck-related complaints in contemporaneous medical records, and the lack of evidence linking the neck symptoms to the accident strongly suggested to the Panel that the neck complaints were unrelated to the accident.

17. In conclusion, there was no neck injury in this accident.

SUBMISSIONS

Insurer’s Submissions dated 25 January 2024

1. I briefly summarise the submissions with reference to paragraph numbers below:

   [1.2] The application has been lodged as a medical assessment under Schedule 2, cl 2(e) of the MAI Act.

   [2]    The Insurer sets out the legal framework.

   [3]    The Insurer sets out the background of the accident.

   [4.2]   The insurer issued a Liability Notice for statutory benefits accepting liability for benefits up to 26 weeks on 6 June 2022

   [4.3-4.4] On 30 September 2022, the insurer issued a further Liability Notice for statutory benefits accepting liability for benefits after 26 weeks, noting that the insurer was awaiting further factual investigations. The Application for common law damages was lodges on 21 September 2023.

   [4.5]   The insurer issued a Liability Notice for the damages claim on 19 December 2023 denying liability for the common law claim for damages pending further investigations. The insurer submits that this notice relates to liability of the common law claim and does not relate to any request for concession of whole person impairment.

   [4.6]   The insurer notes that Ms Eterna makes submissions that she sought concession of whole person impairment on 23 January 2023. The insurer submits that the request was premature as a claim for common law damages had not even been lodged at that stage and submits that any request for concession of whole person impairment was to be made after the common law claim was lodged, that is after 21 September 2023.

   [4.7-4.8]    The Insurer submits that it does not hold any of the following:

   -Correspondence seeking a concession from Ms Eterna of her entitlement to WPI after the lodgement of the common law claim on 21 September 2023.

   -Correspondence seeking a joint medico legal assessment from Ms Eterna after the common law claim was lodged, that is after 21 September 2023.

   -Correspondence from Ms Eterna serving medicolegal reports of Dr Bodel dated 27 June 2023 and Dr Rastogi dated 2 October 2023.

   [5]    The Insurer sets out the injuries and disabilities sustained from the subject accident in the Application for Personal Injuries Benefits and that they have not received authorities, s6.25 particulars, or medical reports from Ms Eterna’s solicitor.

   [6.1]   On 22 December 2023 Ms Eterna lodged the subject application for a medical assessment of her degree of permanent impairment. Ms Eterna refers for assessment injuries, being psychiatric condition (post traumatic street disorder), cervical spine, right shoulder, right knee, lumbar spine (including 6th sacral fragment fracture with displacement and persistent marrow oedema), sacrum/coccyx fracture, thigh (grazes and bruising to right thigh), hip (bruising to right hip), buttocks (bruising and tyre mark to left buttock) (‘the Dispute’).

   [6.2]   The insurer submits that there is insufficient medical evidence to provide an accurate account of Ms Eterna’s medical history, stabilisation, and permanent impairment status at this stage. The insurer submits that a determination on whole person impairment is premature absent receipt of Medicare history and pbs signed authority and records, pre-accident medical records, the ambulance report and Concord Hospital notes together with subsequent treating medical evidence.

   [6.3]   The insurer submits that it was awaiting receipt of the abovementioned treating medical records from Ms Eterna’s pre- and post-accident treatment providers, before instructing a medico-legal expert to assess her stabilisation, whole person impairment and future capacity. At this stage, the insurer has only received records from Ms Eterna’s treatment providers, post-accident.

   [6.4]   The insurer submits that Ms Eterna had not served any medico-legal reports in relation to Ms Eterna’s physical and psychological injuries prior to lodging this application. Further, it is noted that the medico-legal reports of Dr James Bodel dated 27 June 2023 and Dr Richa Rastogi dated 2 October 2023 fail to address any pre accident medical history noting that both the experts based their reports on post-accident medical evidence only.

   [6.5]   Furthermore, the insurer submits that Ms Eterna’s application for medical assessment for assessment of WPI relies only on medical evidence post-accident. The insurer submits on this basis, that there is insufficient medical evidence to provide the Medical Assessors an accurate and detailed account of Ms Eterna’s psychological and physical status prior to the accident in order to assess whole person impairment.

   [7]    The Insurer requests the provision of the following medical records/authorities:

   -NSW Ambulance

   -Concord Hospital

   -Dr Lum, general practitioner

   -Polly Levinson

   -Liz Howard, Osteopath

   -Sydney Pelvic Clinic

   -Dr S Duma, Neurologist

   -Dr Lauren White

   -Medicare

   -Medicare PBS

   [8]    The Insurer discusses the pre-accident medical history and post-accident medical history.

   [9]    The Insurer submits that Ms Eterna had not, prior to lodging this application with the Commission, served the medico-legal reports of Dr James Bodel dated 27 June 2023 and Dr Richa Rastogi dated 2 October 2023

   [10]     The Insurer submits that has not yet obtained any medico-legal reports pending the receipt of outstanding medical evidence and noting that Ms Eterna has only just disclosed medico legal reports of Dr James Bodel dated 27 June 2023 and Dr Richa Rastogi dated 2 October 2023 in this application.

   [11.1]The insurer submits that the matter is not ready for a medical assessment at this stage, pending further medical evidence to substantiate Ms Eterna’s pre accident medical history.

   [11.2]The insurer submits that the matter is not ready for a medical assessment noting the outstanding medical history and provision of medico legal reports in reply to the reports not previously disclosed and contained in Ms Eterna’s application of Dr Bodel and Dr Rastogi. Appointments have been arranged with Dr Andrew Keller, Occupational Physician on 5 March 2024 and Dr Yajuvendra Bisht, psychiatrist on 24 April 2024.

   [12.1]The insurer reserves the right to make further submissions in the event further evidence is made available.

Insurer’s further submissions dated 17 June 2024

1. I briefly summarise the insurer’s submissions of 17 June 2024 with reference to the paragraph numbers below:

   (a) the insurer seeks a review of the amended medical certificate by Medical Assessor Wijetunga dated 21 May 2024, in accordance with s 7.26 of the MAI Act.

   (b) The insurer argues the decision of Medical Assessor Wijetunga is materially incorrect and makes application for review of the certificate in accordance with s 7.26 of the MAI Act as set out below:

   “(1) A claimant or an insurer may apply to the President to refer a medical assessment under this division by a single Medical Assessor to a Review Panel for review.

   (2) An application for the referral of a medical assessment to a Review Panel may be made only on the grounds that the assessment was incorrect in a material respect.”

   (c) Under s 7.26(5), the President must refer the assessment for review if there is reasonable cause to suspect an error.

   (d)    Reference is made to Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848 at [13], highlighting the threshold for suspicion of error.

   Background to medical dispute

   [2.1]   Ms Eterna applied for a medical assessment of permanent impairment for physical and psychological injuries (PIC No. M22359/23).

   [2.2]   Medical Assessor Wijetunga assessed physical injuries on 21 May 2024, issuing a certificate that same day.

   [2.3] The dispute of degree of permanent impairment under Schedule 2, s 2(a) of the MAI Act was determined by Medical Assessor Wijetunga.

   [2.4]   The insurer made an application for an obvious error in accordance with Procedural Direction PIC7 on 4 June 2024.

   Permanent Impairment disputes to be assessed

   [3.1]   The following injuries were referred by the Commission for assessment: -

   -injury to the right shoulder;

   -injury to the right knee;

   -injury to lumbosacral spine – including the sixth sacral fragment fracture with displacement and persistent marrow oedema in the section;

   -fractured sacrum;

   -grazes and bruising to right thigh;

   -bruising to right hip;

   -bruising and tire mark to left buttock, and

   -psychiatric/ psychological injury.

   [3.2]   Medical Assessor Wijetunga assessed permanent impairment at 17% for injuries caused by the accident.

   [3.3]   Specific body part assessments and percentages included:

   -cervical spine: 5%;

   -lumbar spine: 5%;

   -sacral fracture: 5%, and

   -right shoulder: 2%.

   [5.1]   The insurer submits that the Medical Assessor has assessed Ms Eterna as having a 5% WPI in respect of the sacral fracture. The insurer submits that the Medical Assessor has erred in her determination, noting that she relies upon an early scan dated 12 July 2022 which provided the following findings:

   “The sixth sacral fragment fracture is visible. Fracture is obliquely oriented and shows minimal displacement and shows persistent marrow oedema within the sixth sacral segment. The fracture does not show union at this stage. The presacral and parasacral soft tissue show mild signal hyperintensity in keeping with ongoing low-grade inflammation. The remainder of the sacrum is intact.”

   [5.2]   The Medical Assessor refers to the further MRI of the sacrum and lumbosacral, plexus and pelvis conducted on 2 September 2022 and 10 December 2022, however, does not rely upon them as part of her WPI assessment, relying upon the earlier MRI scan of 12 July 2022. There is no reasoning provided for this in the Medical Assessor’s certificate.

   [5.3]   Page 12 of the Medical Assessor’s certificate refers to the further MRI of the sacrum dated 2 September 2022 and the MRI of the lumbosacral plexus and pelvis dated 16 December 2022, however, does not refer to the reports as part of her whole person impairment assessment.

   [5.4]   The insurer submits that the MRI Report of the Sacrum dated 2 September 2022 found that the sixth sacral segment fracture is stable in alignment, alignment is normal, and there is a resolution of the marrow oedema and the peri-fracture soft tissue inflammatory changes.

   [5.5]   The insurer notes that the MRI Report of the Lumbosacral Plexus and Pelvis dated 10 December 2022 found that the fracture was healed, no marrow oedema or recent injury, and minimal canal narrowing at L5-S1.

   [5.6]   The insurer submits that the appropriate category for the assessment of the sacral fracture is s 1 which provides a healed fracture without displacement or residual sign(s) which provides a 0% WPI, relying upon further MRI scans.

   [5.7]   The insurer also relies on the reports of Dr Stephen Duma and Dr Andrew Keller in support of a 0% WPI in respect of the sacral fracture.

   [5.8]   The insurer submits that a 0% WPI in respect of the sacral fracture is the appropriate assessment.

   [5.11]The insurer further submits that the Medical Assessor has not provided a clear path of reasoning as to how she has assessed WPI.

   Cervical spine – WPI

   [5.13]The insurer submits that there is no evidence of a causal link to Ms Eterna sustaining an injury to her cervical spine in the motor vehicle accident.

   [5.14]The insurer refers to the following documents in respect of causation of an injury to the cervical spine as being related to the motor vehicle accident:

   (a)Ms Eterna’s Application for personal injury benefits (31 May 2022) mentioned tailbone, hip, and shoulder injuries but no neck injury.

   (b)The ambulance report (28 May 2022) noted pain in the tailbone and hip but no neck pain or injury.

   (c)Dr Almansur’s records noted soft tissue injuries, a coccyx fracture, and hip pain, with no mention of cervical spine issues.

   (d)Balmain Sports Medicine records referred to sacrum pain and a prior rotator cuff injury but no cervical spine injury.

   (e)Dr Duma’s report (16 February 2023) noted coccyx fracture improvement, with no cervical spine injury or neck pain reported.

   (f)Rehabilitation records listed hip and sacral pain with no cervical spine or neck symptoms.

   (g)Ms Eterna’s statement (20 June 2023) detailed several injuries but did not include cervical spine or neck pain.

   (h)Dr Bodel’s report (27 June 2023) introduced neck pain for the first time, over a year post-accident, inconsistent with prior records and Ms Eterna’s statement.

   (i)Dr Bodel’s findings relied solely on self-reported symptoms without supporting diagnostic tests.

   (j)D. Bodel noted neck pain at the base of the neck and right shoulder but no prior evidence suggested neck injury.

   (k)Ms Eterna’s statement (20 June 2023) made no reference to a cervical spine injury, 7 days before Dr Bodel’s report.

   (l)The Medical Assessor noted Ms Eterna could not recall significant neck pain and focused on lumbar spine symptoms.

   (m)Under “Cervical spine,” the Medical Assessor observed slight movement reduction but no neck pain.

   (n)Clinical examination showed normal cervical spine movements, no muscle spasm or guarding, and only mild tenderness.

   (o)The insurer refers to the motor accident guidelines for assessing spinal impairment, requiring symptoms to align with clinical findings.

   (p)Diagnostic tests and imaging must confirm symptoms and findings for impairment rating, as per guidelines.

   (q)The Medical Assessor did not follow guidelines, relying heavily on Dr Bodel’s report, which surfaced neck pain over a year after the accident.

   (r)Ms Eterna’s complaints of neck pain are inconsistent with treating doctors’ evidence and her own statement.

   (s)The cervical spine injury is not causally related to the accident, aligning with treating doctors and Dr Keller’s reports.

   (t)Dr Keller found no assessable impairment, consistent with guidelines (DRE cervicothoracic category I).

   (u)The insurer submits the Medical Assessor’s reasoning is flawed, and the correct cervical spine impairment rating is 0%.

   [5.15]The Insurer submits that the Medical Assessor did not expose her reasoning process and set out the reasons as to why she reached that conclusion and relies upon the decision of Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.

   Right shoulder – WPI

   [5.16]The insurer acknowledges Ms Eterna reported a specific injury to her right shoulder caused by the motor vehicle accident, noting grazes to the area.

   [5.17]Ms Eterna has a history of bursitis and rotator cuff injury (2012–2017), which the Medical Assessor did not reference in assessing the right shoulder injury. Records from Balmain Sports Medicine dated 9 October 2023 confirm this history, but the Medical Assessor has failed to address it.

   [5.18]Although the Medical Assessor reviewed Balmain Sports Medicine records, she did not mention the pre-accident injury and did not raise the inconsistency with Ms Eterna, contrary to the guidelines.

   [5.19]The insurer submits the Medical Assessor misapplied Nguyen's principle in assessing whole person impairment for the right shoulder. The Medical Assessor incorrectly associated the shoulder injury with cervical spine impairment, which the insurer disputes.

   [5.20]Ms Eterna did not recall significant neck or shoulder pain. Her submissions dated 22 December 2023 included the right shoulder for assessment but specifically excluded the cervical spine.

   [5.21–5.22] The Medical Assessor noted no reported shoulder pain, only intermittent clicking. The clinical examination revealed no atrophy, tenderness, or signs of impingement.

   [5.23]On page 12 of the certificate, the Medical Assessor attributed multiple injuries, including the right shoulder, to the accident.

   [5.24]Bruising and tyre marks on the left buttock resolved fully after six weeks, according to the Assessor.

   [5.25]The insurer submits the Medical Assessor failed to provide adequate reasons for determining permanent impairment in the right shoulder, contrary to causation requirements in clause 6.6 of the Guidelines.

   [5.26]The insurer asserts the Medical Assessor did not comply with clause 6.18 of the Guidelines, which requires a review of all evidence, clinical examination, and clear reasoning in determining impairment.

   [5.27]The Medical Assessor did not address whether the impairment is permanent or its duration.

   [5.28]The Medical Assessor erroneously applied Nguyen's principle, linking the shoulder injury to cervical spine impairment, despite medical evidence showing no cervical spine injury caused by the accident.

   [5.29]The insurer submits that there is no assessable impairment in the right shoulder, as the Medical Assessor ignored Ms Eterna’s history of bursitis/rotator cuff injury and failed to address this inconsistency.

   [5.30–5.31] The insurer claims the Medical Assessor failed to address inconsistencies between clinical findings and medical records, violating clauses 6.40 and 6.41 of the Guidelines, which require procedural fairness and accuracy.

   [5.32]The insurer submits that the Medical Assessor did not address causation as required by clauses 6.5-6.7, which mandate consideration of whether the accident materially contributed to the impairment.

   [5.33]The insurer highlights clause 6.50 regarding range of motion assessments, emphasising potential variability due to pain or lack of cooperation. The Medical Assessor should have ensured reliable measurements or used discretion in evaluating other evidence.

   Conclusion

   [6.1]   The insurer submits that the determination in dispute M10539048/22 by Medical Assessor Wijetunga (Certificate dated 21 May 2024) is materially incorrect. Regarding the cervical spine, there is no causal connection between Ms Eterna's injury and the motor vehicle accident, so no impairment should be assessed. Regarding the right shoulder, the insurer highlights Ms Eterna's pre-existing conditions, being bursitis and the rotator cuff injury, and claims the Medical Assessor misapplied the Nguyen principle, providing no reasoning on whether the right shoulder injury is permanent.

   [6.2]   For the sacral fracture, the insurer states that the Medical Assessor relied solely on an MRI from 12 July 2022 but failed to consider subsequent scans showing the fracture had healed without displacement.

   [6.3]   The insurer claims the Medical Assessor did not clearly explain the reasoning behind the permanent impairment determination. They reference AAI Limited v Fitzpatrick [2015] NSWSC 1108, where her Honour Schmidt J held at [29] and [30];

   “In forming his or her opinions on the dispute, the assessor must thus take into account what any clinical examination he or she conducts reveals, as well as the opinions of other medical practitioners, including those expressed in earlier certificates, by treating doctors and those who have expressed medico-legal opinions. Account must also be taken of diagnostic findings and other available notes and reports including those from allied health professionals.

   The conclusions expressed in the certificate issued must then be explained by the assessor in the accompanying statement of the reasons. While the reasons given need not be elaborate, they must disclose the actual path of reasoning by which the assessor arrived at the opinions formed on each of the issues which had to be resolved.”

   [6.4]   The insurer also refers to Kerr v Insurance Australia Limited [2019] NSWSC 133 and Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43, which require assessors, in their reasons, to explain their path of reasoning in sufficient detail, especially when controversies exist. The assessor must analyse substantial issues and not merely summarise evidence before stating a conclusion (Dogon v Redmond [2010] NSWSC 1329).

   [6.5]   Based on these points, the insurer submits that the determination by Medical Assessor Wijetunga should be referred to a Review Panel. They argue the correct finding would be 5% permanent impairment (injury to the lumbar spine) since it falls below the 10% threshold.

Claimant’s Submissions in reply dated 8 July 2024

I refer to the claimant’s submissions dated 8 July 2024 and note that Ms Eterna submits that:

1. The insurer has not demonstrated that there is reasonable cause to suspect the Certificate and Reasons of Assessor Wijetunga were incorrect in a material respect, as required by s 7.26 of the MAI Act.

2. The referral to a Review Panel is unwarranted where the Insurer is merely dissatisfied with the Member’s findings.

3. There is no reasonable cause to suspect that the medical assessment was incorrect in a material respect or at all.

4. The insurer’s allegations were not supported by qualified evidence as Dr Keller, who reported for the insurer, failed to express views about the causation of the right shoulder or cervical spine injury and adequately assess the coccyx and the sacral fracture injury.

5. The insurer’s claims were based on an unqualified understanding of radiological evidence and incorrect comparison of MRI findings.

6. The insurer has failed to show actual evidence or suspicion of an error in the assessment of the sacral fracture, or at all.

7. The insurer provided extensive and at times contradictory submissions in relation to the causation issues and whether she sustained a frank injury to the cervical spine and right shoulder as a result of the accident.

8. Where the insurer failed to raise and clearly articulate points of controversy as to causation or evidence of any pre-existing or subsequent injury or impairment that could affect her assessment, it should not be open to the insurer to seek review of Medical Assessor Wijetunga’s findings.

9. There was no objective evidence of a pre-existing symptomatic permanent impairment in the right shoulder and thus submits that Medical Assessor Wijetunga did not fall into error when assessing the right shoulder.

10. The insurer incorrectly submitted in its review application that Medical Assessor Wijetunga did not comply with the Guidelines in assessing cervical spine injury and the subsequent whole person impairment assessment.

11. The insurer’s allegations that the complaints about the neck issues were only brought about Dr Bodel were mistaken and inaccurate.

12. The insurer’s review application should thus be dismissed.

How the Review Panel dealt with the submissions

1. The Review Panel noted Ms Eterna’s submissions of 6 July 2024 in reply to the insurer’s Application for review.

2. In relation to the submission that Ms Eterna had sustained a trochanteric bursitis condition, the Review Panel noted that Ms Eterna’s gait was observed to have been normal.

3. With respect to the submission as to the sacral fracture, the Review Panel referred to the results of the MRI scan where Ms Eterna’s fracture was reported to have had a “normal” alignment.

4. With respect to the submissions concerning the cervical spine and shoulder injury, the Review Panel noted that Dr Duma, neurologist, did not document any cervical spine complaints or findings on 16 February 2023. Ms Eterna did not mention any neck symptoms or complaints in her signed statement. Dr Bodel’s examination on 27 June 2023 marked the first instance where neck pain was documented, and this was more than 12 months after the accident.

5. The Review Panel took the view that the delayed onset of symptoms, the absence of neck-related complaints in contemporaneous medical records, and the lack of evidence linking the neck symptoms to the accident strongly suggested to the Panel that the neck complaints were not causally to the incident.

THE REVIEW PANEL’S CONCLUSIONS

1. In respect of each injury referred to Medical Assessor Wijetunga:

   (a)    buttocks – bruising and tyre mark – finding no permanent impairment;

   (b)    cervical spine – finding no evidence of any permanent impairment caused by the accident;

   (c)    right hip – normal gait pattern, no WPI;

   (d)    right knee – no evidence of WPI;

   (e)    lumbar spine – 5% WPI (lumbosacral spine Table 72, page 110, AMA 4 Guides (asymmetry of lumbar motion – DRE II);

   (f)    sacrum/coccyx – normal alignment, 0% WPI (Pelvis, page 131, AMA 4 Guides);

   (g)    right shoulder – soft tissue injury – no residual WPI, and

   (h)    right thigh grazes and bruising resolved – no WPI.

DETERMINATION

1. The Review Panel revokes the certificate of Medical Assessor Nelukshi Wijetunga, dated 21 May 2024, and substitutes the determination that the claimant did not establish that she, as a result of the accident, sustained WPI in excess of 10%. The Review Panel found a 5% WPI due to the injuries sustained in the Accident.