Foroosh v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Foroosh v QBE Insurance (Australia) Limited [2022] NSWPICMP 276
CLAIMANT:	Shahram Hajhashem Dookhteh Foroosh
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL:	Member Susan McTegg Medical Assessor Rhys Gray Medical Assessor Margaret Gibson
DATE OF DECISION:	4 July 2022
CATCHWORDS:	MOTOR ACCIDENTS – Medical Review Panel; permanent impairment; Motor Accident Injuries Act 2017; cervical spine; lumbar spine; left shoulder; right shoulder; whole person impairment; consistency of presentation; osteoarthritis; causation of injury; contemporaneous complaint; rear end collision; no orthopaedic or biomechanical explanation of injury to shoulders; the claimant suffered injury in a rear end collision on 24 October 2019; the dispute related to the assessment of permanent impairment under the Motor Accident Injuries Act 2017; assessment of injury to cervical spine; lumbar spine and both shoulders; inconsistency demonstrated on examination; question of causation of shoulder injuries; Held – cervical spine soft tissue injury; assessed as DRE cervicothoracic category 1 resulting in 0% whole person impairment; lumbar spine soft tissue injury; assessed as DRE lumbosacral category 1 resulting in 0% whole person impairment; Panel not satisfied shoulder injuries causally related to accident; lack of complaint of shoulder injury; variable shoulder movements; no orthopaedic or biomechanical explanation to explain injury to shoulders in rear end collision as per QBE Insurance (Australia) Ltd v Shah.

MOTOR ACCIDENT INJURIES ACT 2017

WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel revokes the Certificate of Medical Assessor Sally Preston dated 13 November 2021. The Panel issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a permanent impairment which is not greater than 10%:

· soft tissue injury to the cervical spine, and
· soft tissue injury to the lumbar spine.

The panel finds the following injures were not caused by the motor accident and do not give rise to a permanent impairment:

· injury to the left shoulder, and
· injury to the right shoulder.

Susan McTegg
Member (Motor Accident Division)
Personal Injury Commission.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

On 24 October 2019 Mr Shahram Hajhashem Dookhteh Foroosh (the claimant) was sitting in the front passenger seat of a vehicle driven by an acquaintance. When the vehicle was stationary in traffic the insured vehicle collided with the rear of the vehicle in which Mr Foroosh was a passenger pushing it into the rear of another vehicle in front (the accident). Police and ambulance attended the scene and Mr Foroosh was conveyed by ambulance to Bankstown Hospital.
Mr Foroosh asserts he sustained the following injuries in the accident:
1.     (a)   injury to the cervical spine;
2.     (b)   injury to the lumbar spine;
3.     (d)   injury to the right shoulder, and
4.     (e)   injury to the left shoulder.
Mr Foroosh has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Foroosh under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Foroosh as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[1].
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment was referred to Medical Assessor
Sally Preston. Assessor Preston assessed Mr Foroosh on 9 November 2021 and issued a certificate dated 13 November 2021.
Mr Foroosh has sought a review of the certificate of Medical Assessor Preston.
Assessor Preston not only assessed permanent impairment, but she also undertook an assessment of ‘minor injury’. Both parties agree Assessor Preston was not asked to assess ‘minor injury’ where the insurer had admitted liability and conceded that the claimant had sustained a non-minor injury. The Panel does not propose to address further the issue of ‘minor injury’.

REVIEW PROCEDURE

An application for review of the medical assessment of Assessor Preston was lodged on 22 December 2021 within 28 days of the date on which the certificate of
Assessor Assem was made available to the parties.
On 8 February 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
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.
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 Personal Injury Commission (the Commission). Accordingly, the President’s Delegate referred the matter to this Panel to assess.
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.
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.[2]
[2] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, 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.
On 29 April 2022 the Panel agreed an examination was required.
RELEVANT LEGAL AUTHORITY
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).
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 (AMA4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
6.     “6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
7.     '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:
8.1.      The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
9.2.      The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
10.   This, therefore, involves a medical decision and a non-medical informed judgement.
11.   6.7   There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In Norrington v QBE Insurance (Australia) Ltd[3] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
[3] [2021] NSWSC 548, Norrington.
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
Brereton J. referred to the decision of Campbell J in Owen v Motor Accidents Authority (NSW)[4] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where:
[4] [2012] NSWSC 650, Owen.
12.“busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga[2004] NSWCA 34 at [35]).”
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[5] where the Court stated at [64]:
[5] [2016] NSWCA 229, McGiffen.
13.“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
Even more recently In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[6] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.
[6] [2021] NSWSC 804, Kinchela.
ASSESSMENT UNDER REVIEW
The dispute was referred to Medical Assessor Preston who assessed Mr Foroosh and issued a certificate dated 13 November 2021.[7] The injuries referred for assessment were described as follows:
[7] AD2 p 10.
·        left shoulder – pain and loss of ROM;
·        right shoulder – rotator cuff pathology with pain and loss of ROM;
·        lumbar spine – soft tissue injury with radiculopathy, and
·        cervical spine – soft tissue injury with spasm and dysmetria.
Assessor Preston found the partial supraspinatus tendon tears noted on imaging of both shoulders were not causally related to the accident. This was because the examination findings demonstrated a global restriction not consistent with an isolated tendon problem and because the impingement signs were negative bilaterally. Assessor Preston also found the mechanism of the accident was not supportive of a rotator cuff injury and she considered if Mr Foroosh had sustained an acute injury to a tendon at the time of the accident he would have complained of symptoms when he attended hospital following the accident. Assessor Preston concluded the symptoms complained of around the neck and in the shoulders were related to the cervical spine. Furthermore, she was of the view the lack of therapeutic response to two cortisone injections to each shoulder supported her conclusion that the shoulder symptoms were related to the cervical spine rather than the documented rotator cuff pathology.
Assessor Preston found that the following injuries were caused by the accident but were minor injuries as defined by the MAI Act and schedule 1[2] cl 4 of the Motor Accident Injuries Regulation 2017:
·cervical spine – soft tissue injury (incorporating pain and loss of range of movement both shoulders), and
·lumbar spine – soft tissue injury.
Assessor Preston found that the right shoulder – rotator cuff pathology was not caused by the accident.
Assessor Preston assessed a 0% whole person impairment (WPI) in respect of injury to both the cervical and lumbar spine.

EVIDENCE BEFORE THE REVIEW PANEL

The Panel issued a Direction to the parties on 2 March 2021 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents marked AD2 paginated from pages 1 to 98. The solicitor for the insurer uploaded to the portal a bundle of documents marked AD3 paginated from pages 1 to 108. At the request of the Panel the claimant uploaded to the portal the clinical notes of Myhealth Merrylands marked AD4. At the request of the Panel the claimant uploaded to the portal the clinical notes of Dr Assad Malek of Restwell St Medical Centre marked AD6.
Pre-accident treatment medical evidence
Myhealth Merrylands
Mr Foroosh consulted Dr Nien La on 16 September 2015 when he reported back pain for 10 days after lifting furniture.[8] It was noted he had no prior history of back pain or injury. He displayed mild tenderness in the right L4/5 region and pain on flexion and lateral flexion. Mr Foroosh was referred for an X-ray of his lumbar spine and prescribed Norgesic.
[8] AD4 p 7.
On 11 July 2016 Mr Foroosh consulted Dr Alex Sami for lower back pain with no radiation.[9] He noted it was mechanical type pain and that the lower and upper limbs were normal in power and sensation. He provided an imaging request for an X-ray of the lumbosacral spine.
[9] AD4 p 9.
On 18 September 2016 Dr Sami apparently reviewed the claimant’s patient file transferred from Melbourne. The file apparently contained no records relevant to the current dispute. A Patient Health Summary of Joslin Clinic of West Footscray is in the records of Myhealth Merrylands.[10]
[10] AD4 p 91.
On 27 March 2018 Dr Sami reported lower back pain radiating to the right leg and a straight leg raising test positive at 50 degrees.[11] He gave Mr Foroosh some Mobic samples and a referral for a CT of the lumbar spine.
[11] AD4 p 13.
Mr Foroosh underwent a CT of the lumbar spine on 29 March 2018.[12] The report states:
[12] AD4 p 13.
17.“Mild degenerative changes in the spine. At the level of right L3/L4, the exiting nerve root is possibly in contact with the lateral disc, however, there is no definite impingement. If there is ongoing clinical concern, an MRI may be considered.”
On 20 June 2018 Dr Sami completed a Centrelink Medical Certificate where he reported Mr Foroosh was partially incapacitated for work because of discopathy, lower back pain raiding to both legs.
Mr Foroosh consulted Dr Sami on 2 August 2018 in respect of back pain radiating to the right leg. Mr Foroosh was given a referral to specialist Dr Behzad Eftekhar.
On 14 March 2019 Dr Sami reported back pain with radiation to both legs and on 6 June 2019 he reported chronic back pain and referred Mr Foroosh to Guildford Physiotherapy.
Mr Foroosh consulted Dr Sami on 19 September 2019 with complaints of back pain.

Post-accident treating medical evidence

The Ambulance Report records Mr Foroosh complained of pain to his neck and lower back, stating this was an exacerbation of pre-existing lower back pain.[13] He also complained of pain to the upper right thigh. There were no sensory deficits to any limbs and no exacerbation of pain when palpating the cervical spine. There was no complaint of upper limb or shoulder pain.
[13] AD3 p 35.
The Bankstown Hospital Discharge Summary of 24 October 2019 refers to the claimant reporting neck pain and mild headache and the impression was neck injury.[14] A CT scan of the neck reported no soft tissue swelling, no facet joint dislocation and no acute cervical spine injury.
[14] AD3 p 38.
Mr Foroosh attended Dr Assad Malek at Restwell Street Medical Centre on 28 October 2019.[15] Dr Malek reported a history of the accident on 24 October 2019 and noted
Mr Foroosh complained of dizzy attacks, headache, neck pan, dorsal spine pain and lumbar spine pain, chest pain and right lower limb pain. On examination he reported:
[15] AD6 p 1.
18.“he has tenderness over the cervical spine, tenderness over the dorsal spine and Lumbosacral spine
19.Restriction of movements of the cervical spine in flexion 30 deg, ext 10 deg, reduced lateral flexion and rotation.
20.Shoulder examination showed normal movements in all direction
21.Tenderness over the dorsal spine
22.Reduced movements of the lumbosacral spine. Flexion reduced to 30cm from floor level extension to 10 deg, reduced lateral flexion and rotation.
23.Muscle power intact, reflexed of the knee, ankle and plantar, are normal
24.Sensation was normal to cotton wool and pin prick”
Dr Malek concluded Mr Foroosh had cervical spine injury, dorsal spine injury, lumbar spine injury and right lower limb pain.
Dr Malek reviewed Mr Foroosh on 30 October 2019 when he reported neck pain and tenderness, reduced movements in all direction, tenderness over the lumbar spine and reduced movements in flexion and extension. He issued a Certificate of Capacity/Certificate of Fitness with the diagnosis “cervical, thoracic and lumbar spine inj, Rt sciatica pain”.
Mr Malek was reviewed by Dr Malek on 1 November 2019 and on 4 November 2019 with complaints of neck and lower back pain.
Mr Foroosh saw physiotherapist Su Min Oh on 4 November 2019 when she reported inter alia:[16]
[16] AD6 p 3.
25.“MVA as above on 24/10/2019
26.c/o neck, shs and back pain radiating to (r) leg.
27.PHx: back pain
28.Back is getting worse since the accident
29.Cx mvts: ½ ranges
30.Lx mvts: very restricted due to pain
31.Squatting: 1/5 range
32.Lifting capacity: 1kg (from thigh lv to waist lv)
33.Neck, shs and back mm tension
34.…”
In the Application for personal injury benefits dated 7 November 2019 Mr Foroosh described his injury as follows:
35.“I have back pain very much I already have it but this accident made it worse and my mental health not good.”
Mr Foroosh saw Dr Malek again on 8 November, 15 November, 22 November and 28 November 2019 in respect of lumbar pain. The claimant also developed psychological symptoms, with Dr Malek first suggesting a general practitioner (GP) Mental Health Treatment plan on 15 November 2019 and on 28 November 2019 he reported depression and on 19 December 2019 he prescribed a SSRI anti-depressant.
On 5 December 2019 Dr Malek requested MRI imaging of both shoulders after reporting:
36.“He started to feel bilateral shoulder pain, worse at the left side
37.Mild neck pain
38.Lower back pain
39.Pending MRI neck and lumbar
40.Examination:
41.Neck pain and tenderness, reduced movements in all direction,
42.Tenderness over the lumbar spine, reduced movements in flexion and extension, continue conservative treatment
43.Shoulder examination showed reduced movements in abduction and internal rotation, ext rotation in elbow flexion impingement of the supraspinatus tendon, RCS.”

A Certificate of Capacity/Certificate of Fitness completed by Dr Assad Malek on 5 December 2019 adds “bilateral shoulder injury” to the diagnosis.[17]
[17] AD2 p 61.
Thereafter the clinical notes of Dr Malek and of physiotherapist Su Min Oh reference regular consultations and regular complaints pertaining to the neck, lower back and both shoulders.
On 10 December 2019 Mr Foroosh was assessed by Alanna Cashman, psychologist of Work Focus Australia. She reported Mr Foroosh was the front passenger of the vehicle which was stationery at a set of lights when the vehicle was struck from the rear by another vehicle (travelling approximately 70 km/hr).
Ms Cashman reported his pre-existing lower back symptoms were exacerbated post-accident and he also experienced pain in his neck, and both shoulders. Mr Foroosh had been referred for an MRI of his shoulders but had not undergone the test because of concerns about the cost.
An Allied health recovery request by Sumin Oh, physiotherapist dated 9 December 2019 records the diagnosis as “neck, both shoulders and back pain radiating to (R) leg”.[18]
[18] AD3 p 104.
On 8 January 2020 Mr Foroosh underwent an activities of daily living assessment with Work Focus Australia.[19] He reported constant pain in his neck, constant pain in his bilateral shoulders, aggravation of intermittent pre-accident back pain which had become constant and intermittent knee pain.
[19] AD2 p 76.
Mr Foroosh underwent imaging on 22 January 2020.[20] The report of the MRI of the left shoulder states:
[20] AD2 p 85.
44.“Hypertrophic osteoarthritis of acromioclavicular articulation with impingement.
45.Partial articular surface tear of supraspinatus tendon.
46.Subscapularis tendonitis.
47.Subacromial/subdeltoid bursitis.”
The report of the MRI of the right shoulder states:
48.“Mild osteoarthritis of the acromioclavicular articulation.
49.Partial bursal surface tear of the supraspinatus tendon.
50.Mild subacromial/subdeltoid bursitis.”
The report of the MRI of the lumbar spine states:
51.“Back muscle spasm.
52.Spondylotic changes of lumbar spine.
53.L2/3 mild disc bulge with no nerve compression.
54.L3/4 mild disc bulge to the left side with mild left foraminal attenuation yet no nerve compression.
55.L4/5 mild disc bulge with posterior annular tear and no nerve compression.
56.L5/S1 focal left paracentral protrusion with cranial migration touching and mildly compressing left S1 nerve root.
57.No evidence of bony contusions or muscle haematomas.”
The report of the MRI of the cervical spine states:
58.“There is no vertebral fractures seen.
59.There is broad-based disc osteophyte complex at C5/6 level causing bilateral neural foraminal narrowing, more severe on right side, with minimal impression upon right exiting nerve root.”
Allied health recovery requests completed by Sumin Oh dated 23 January 2020 and 14 May 2020 each record a diagnosis of neck, both shoulders and back pain radiating to the right leg following the accident and detail treatment to those body parts.[21]
[21] AD3 p 98 and 100.
On 30 March 2020 Mr Foroosh underwent an ultrasound guided left shoulder injection.[22]
[22] AD6 p 49.
On 21 May 2020 Mr Foroosh underwent an ultrasound guided right shoulder injection.[23]
[23] AD6 p 51.
On 30 July 2020 Mr Foroosh underwent a further ultrasound guided right shoulder injection.[24]
[24] AD6 p 85.
On 8 September 2021 Dr Malek referred Mr Foroosh to Dr Alan Nazha, pain specialist.[25]
[25] AD6 p 203.
On 12 February 2021 Rebecca Machaalani of ACE Rehab Solutions completed an Allied health recovery request seeking approval for an initial assessment and five supervised consultations.[26] She reported Mr Foroosh presented with significant restrictions/limitations in right shoulder range of motion and high levels of pain resulting in very reduced functional capacity of the right upper extremity. She reported the goal was to improve shoulder range of motion/mobility to return to performing household duties and driving.
[26] AD6 p 307.
On 16 February 2021 Dr Eddie So, psychiatrist undertook an assessment of
Mr Foroosh and proposed a treatment plan.[27] He diagnosed post-traumatic stress disorder as a result of the accident.
[27] AD6 p 315.
On 25 February 2021 Ms Oh, reported Mr Foroosh had had physiotherapy for his neck, both shoulders and back pain radiating to the right leg with some improvement in pain but ongoing poor functional capacities.[28]
On 14 March 2022 Mr Foroosh saw Dr Manish Gupta, orthopaedic surgeon.[29] One examination he reported:
60.“He moves very stiffly in the entire upper body and on physical examination could not extend, flex or laterally rotate the neck at all due to pain. He had significant midline cervical tenderness. He had very limited active motion of the shoulders and passive mobility was also restricted due to pain. It was difficult to assess the strength of the rotator cuff. With that in mind, it did not appear that he had any radicular weakness in either upper limb.”
Dr Gupta reviewed the MRI scans performed in January 2021 and noted the chief finding was of a C6 nerve root compression due to a disc bulge in the mid to distal cervical spine. He noted there was “only partial thickness tears of the rototor cuff and no strong signs of capsulitis on those scans”. Dr Gupta recommended further MRI scans and also an epidural cervical injection.

Medico-legal evidence

[28] AD6 p 313.

[29] AD6 p 381.

Dr Gaurav Tandon
Psychiatrist Dr Gaurav Tandon provided an Early Specialist Opinion Report dated 24 March 2020 at the request of the insurer.[30] Whilst he did not undertake his own assessment, he discussed Mr Foroosh with Dr Malek. He reported Dr Malek advised the claimant’s primary complaints related to bilateral shoulder and lower back pain associated with anxiety and poor sleep and he thought Mr Foroosh would benefit from seeing a pain specialist. Dr Tandon stated he agreed with Dr Malek that Mr Foroosh likely did not meet the criterial for post-traumatic stress disorder but was more likely to be suffering from a depressive disorder.
[30] AD6 p 249.
Dr Richa Rastogi
Dr Rastogi, psychiatrist assessed the claimant and provided a report dated 11 June 2022. He reported:
63.“Their car was stationery due to heavy traffic ahead of them when they sustained a rear end collision. The impact of collision caused their car to pushed forward causing collision with front car ahead of them. The air bags were not deployed. As a result of collision, his body lunged forward with a jerk and his neck and back took the brunt of impact. He denied any loss of consciousness. He was able to extricate from the car and reported immediate severe neck pain. The car was towed away. The police and Ambulance arrived at site of accident. He was transported to Bankstown Hospital. He had X-rays and CT scan of neck that did not show any pathology and discharged home with diagnosis of soft tissue/whiplash injuries. He saw his GP two days post-accident as the neck pain was excruciating. He reported bilateral shoulder pain and lumbar region as well.”
Dr Eugene Gehr
Mr Foroosh was assessed by Dr Eugene Gehr, orthopaedic surgeon at the request of his lawyers on 5 August 2020.[31] Dr Gehr reported the accident occurred in a traffic jam when the car hit him from behind and pushed him into the car in front of him. He reported immediately after the accident Mr Foroosh had pain over the dorsal cervical spine, lumbar spine and anterior aspect of both shoulders.
[31] AD6 p 267.
Dr Gehr recorded a pre-accident problem with the lumbar spine which resulted in occasional pain to the back.
Mr Gehr reported Mr Foroosh had a lot of pain in the cervical spine, pain in the lumbar spine and pain in both shoulders, right worse than the left. Mr Foroosh stated he can sit for about 15 to 20 minutes at a time, he has to stop after walking up to five minutes and he also reported stiffness of the cervical and lumbar spine and of both shoulders.
Dr Gehr observed there were no pain behaviours, Mr Foroosh walked with an unsteady gait and a slow pace, he was not able to stand on toes, heels, invert or evert and not able to squat.
Dr Gehr reported spasm, restriction of movement and dysmetria were present in the cervical spine. On examination of the lumbar spine, he reported tenderness and the presence of spasm. He reported restriction of movement, the presence of dysmetria, a positive nerve tension test on the right side, a positive Slump test for the right side and dysaesthesia on the right side in L5-S1. He also reported decreased motor power at L5 on the right side.
There was a normal examination and range of motion of the thoracic spine.
Dr Gehr observed rotator cuff muscle wasting of the right shoulder. On examination he recorded range of motion of the right shoulder as flexion 90 degrees, extension
30 degrees, abduction 80 degrees, adduction 20 degrees, external rotation 20 degrees, and internal rotation 40 degrees. He found positive impingement of the right shoulder.
Dr Gehr noted flexion 90 degrees, extension 20 degrees, abduction 70 degrees, adduction 20 degrees, external rotation 30 degrees, and internal rotation 40 degrees on examination of the left shoulder. He found positive impingement of the left shoulder.
Dr Gehr reported the MRI imaging of both shoulders reported partial articular surface tear of the supraspinatus and subacromial subdeltoid bursitis. He noted the MRI of the lumbar spine disclosed a L5/S1 left paracentral protrusion with mild compression of the left S1 nerve root. He reported Mr Foroosh was likely to require rotator cuff surgery to both shoulders.
Dr Gehr provided an assessment of 32% WPI in respect of the following:
·        cervical spine soft tissue injury with spasm and dysmetria assessed at 5% WPI;
·        lumbar spine soft tissue injury with right radiculopathy assessed at 10% WPI;
·        right shoulder rotator cuff pathology with pain and loss of range of motion assessed at 10% WPI, and
·        left shoulder pain with loss of range of motion assessed at 10% WPI.
SUBMISSIONS
Claimant’s submissions
The claimant’s submissions dated 22 November 2021[32] address the decision to be made by the delegate of the President in determining whether the assessment of Assessor Preston was incorrect in a material respect.
[32] AD2 p 2.
The claimant submits Assessor Preston failed to provide adequate reasoning for her determination that the right shoulder injury was not caused by the accident and failed to make a determination as to whether the left shoulder injury was caused by the accident.
The claimant submits Assessor Preston failed to explain why the mechanism of the accident is not supportive of a rotator cuff injury.
The claimant submits Assessor Preston’s opinion that it would be highly likely that the claimant would have complained of such symptoms at the time of his hospital assessment is insufficient to exclude the right shoulder injury.
The claimant submits Assessor Preston failed to explain why she concluded the right shoulder symptoms were related to the cervical spine instead of to the partial thickness tears reported on imaging.
The claimant submits an assessment of the left shoulder is required where the left shoulder was also referred for assessment of permanent impairment.
The claimant provided submissions dated 15 September 2020.[33] The claimant noted the rear end collision was of sufficient force to push the vehicle in which the claimant was a passenger into the vehicle in front. Police and ambulance attended the scene, and the claimant was conveyed by ambulance to Bankstown Hospital. The vehicle in which the claimant was a passenger was towed from the scene and ultimately written off.
[33] AD2 p 5.
The claimant relies on the opinion of Dr Gehr who found a causal link between the accident and injuries to the cervical spine, lumbar spine and both shoulders. He assessed a WPI of 32% including assessments of both shoulders.
Insurer’s submissions
The insurer provided submissions dated 14 January 2022.[34] The insurer submits Assessor Preston provided adequate reasoning for her determination that the right shoulder injury was not caused by the accident and provided a determination as to the left shoulder having regard to her discussion of both shoulders set out on page 9 of her certificate.
[34] AD3 p 1.
The insurer has also sought to rely upon the submissions dated 26 November 2020 which accompanied the insurer’s reply to the application.[35]
[35] AD3 p 3.
The insurer notes in the Application for Personal Injury Benefits dated 7 November 2019 Mr Foroosh states that he suffered back pain as a result of the accident and that he had suffered back pain previously. He also referred to psychological injury. There is no reference to his neck or shoulders.
The insurer submits that the mechanism of injury and history of complaints does not suggest a causal relationship between the accident and injury to either shoulder.
The MRI report of the right and left shoulder reports a finding of osteoarthritis in the claimant’s right and left shoulders. The insurer submits that the other findings of bursitis and partial tears of the supraspinatus tendon are not conclusive as to a causal relationship with the subject accident.
The insurer submits that the MRI results for the lumbar spine indicate degenerative changes and/or are potentially pre-existing, given the claimant’s reported history of a prior back injury and ongoing intermittent back pain.

THE MEDICAL EXAMINATION

Mr Foroosh attended the Commission rooms in Sydney on 14 June 2022 as arranged and was unaccompanied to the assessment. Present were Assessors Gibson and Gray. The Farsi interpreter, Aphelia NAATI number 30181 was present over the phone for the duration of the assessment.
The Panel first explained the nature and purpose of the assessment.
When asked what specific injuries he had sustained in the accident, Mr Foroosh said he had injured his neck and both shoulders. He said he had a low back problem prior to the accident, but the pain had been made more severe as a consequence of the accident.

Personal and social history

Mr Foroosh was born in Iran, where he had worked as a manager in a roofing business, as a real estate agent, and a truck electrician. He stated that the nature of these roles was more supervisory and managerial, so not of a heavy physical nature.
Since his arrival in Australia in 2012 at the age of 42 years, he hasn’t engaged in any paid employment. When asked why this had been, he said he was “always sick” and so “could not work”. On further clarification, he said because of his back pain and he also volunteered that he had been diagnosed with Hepatitis C for which he had been treated for 6 to 12 months.
Mr Foroosh said he developed low back problems some two years prior to the accident. It would appear these were of spontaneous onset, and his treaters had advised him that it was “because of the shape of my back”. There had been no injury to the back.
Prior to the subject accident, the back pain had been intermittent with radiation to the right lower limb (he indicated with his hand the upper third of his posterior thigh). There were no neurological symptoms in his lower limbs prior to the accident. He said he had had three to four sessions of physiotherapy over a three-month period, and this treatment had ceased about three to four months before the accident.
He said he had only been taking Voltaren tablets for the back pain before the accident. The Panel pointed out that his general practitioner’s notes suggested he had, in fact, also been prescribed Lyrica tablets prior to the accident. He responded that he had lost his memory since the accident, so “does not remember”. He reiterated that the back pain had been intermittent and was not severe prior to the accident.
When asked about the MRI scan done on referral from GP, Dr Sami in July 2019,
Mr Foroosh said this was done to “check” his back.
When asked why he had transferred to a different general practitioner following the accident, he said Dr Sami, his regular general practitioner was “not familiar with injuries due to accidents” and he had been “told” by someone that Dr Malek was an expert in dealing with accident-related injuries.

History of the subject accident

Mr Foroosh had been a front seat passenger in a vehicle driven by an acquaintance. He said he was “going somewhere to see something”. They had been stopped at a traffic light when the car was hit from behind at high speed and pushed into the car in front. Therefore, there was a rear and front end damage. There was no air bag deployment. He had been taken in an ambulance to Bankstown Hospital where he had reported neck and back pain. Some imaging was performed and reviewed, and he was then discharged home.
He said immediately afterwards he experienced severe neck and back pain. He described a “a bad pressure” on his “shoulders” from being thrown forward in the seat belt but pointed to the upper anterior chest and adjacent pectoral area on each side, as the location of the seat belt causing “pressure” and not to the anatomical shoulders. He then added that a few days after this, “he could not move his shoulders”.
Mr Foroosh was asked why, given his complaints of early shoulder pain and restricted movement, his GP Dr Malek had recorded a normal range of shoulder movements and no specific shoulder complaints. He said he “does not know what the doctor has written, this is what happened”. The Panel notes there is a transient mention of shoulders by a physiotherapist Su Min Oh on 4 November 2019. On 5 December 2019 Dr Malek noted “he started to feel bilateral shoulder pain, worse at the left side”.
Mr Foroosh said that he “thought the pain was only my neck” and then he found it was affecting his shoulders as well.

Current treatment

Mr Foroosh takes Tramadol, Voltaren, and Lyrica for his musculoskeletal complaints. He said he is also visiting a psychologist. He said further physiotherapy had not been approved by the insurer.
Mr Foroosh said that he lives alone. He has a friend come and help him out with cleaning and washing. This was when he was asked how he managed to dress and undress given that he requested assistance at doing his button shirt during the medical assessment.
Current complaints
Mr Foroosh said that the neck pain is constant, better when he gets into bed and worse if he is standing or moving about. The pain starts at the back of the head and extends to the base of the spine. When asked if he could indicate the distribution of the pain with his hand, he said “I can’t lift my hands to show you”. The neck pain precipitates headaches.
There is constant low back pain which is more severe when he is walking around and “really bad” if he attempts to bend over. The back pain extends to the right thigh in a circumferential fashion, not below the knee. The leg pain “moves around”.
In relation to the shoulders, he described global discomfort affecting the entire shoulder girdle.
There were sensory symptoms in the upper limbs, left greater than the right, with pins and needles affecting the entire arm and all fingers. There were no other complaints in relation to the upper or lower limbs.
Physical examination
Mr Foroosh exhibited abnormal pain behaviour throughout the assessment including facial grimacing and hyperventilating with movements. He was wearing a detachable splint over his left shoulder which he said he bought on the internet about two months ago. He writes using his left hand but does most other tasks with his right hand.
On examination of the neck, there was generalised tenderness to light palpation with no localising features. There was tenderness over the occipital bone. There was tenderness of both trapezius regions left greater than right. Neck movements were initially slightly more reduced in rotation to the left compared to the right, but on repetition movements were symmetrical. Lateral flexion was symmetrical and negligible. Flexion and extension was symmetrical and negligible. There was no muscle spasm or guarding, and no asymmetry of movements. There were no radicular complaints.

On examination of the upper limbs, circumferential measurements of the upper arms was 34cm on the right and 33cm on the left and the forearms measured 30cm bilaterally. Reflexes were symmetrical and low amplitude, there was giving way on testing power. There were no radicular sensory or motor abnormalities.
On examination of both shoulders, there was generalised shoulder girdle tenderness without localising features. He volunteered that he cannot sleep on his shoulders and if he rolls over onto his shoulder, he is wakened by pain. Shoulder movements, measured with a goniometer, were variable and inconsistent as follows:

Shoulder Movements
Active ROM Measured

RIGHT
Active ROM Measured
LEFT

Flexion

20 °/30 °/50 °

20 °/20 °/40 °

Extension 15 °/20 °/25 ° 15 °/20 °

Internal Rotation

External Rotation 30 ° 15 °

Abduction 30 °/50 °/50 ° 20 °/25 °/40 °

Adduction 0 °/10 ° 0 °/5 °

Rotation could only be performed with his elbow at his side, and he was unable to raise either arm sufficiently to assess as per the recommended method. He said all shoulder movements were “very painful”.
When advised Mr Foroosh confirmed he understood the importance of providing his best effort and consistency in performing repeat active shoulder movements because goniometer measurements cannot be used if the measurements are variable. However, his shoulder movements continued to be variable and inconsistent. He said, “I could do more, but it is ‘killing me’”. Passive movements were consistently markedly reduced, considerably more than the active range, resulting from active inhibition/resistance by Mr Foroosh. When asked why his movements appeared greater when he was removing his shirt, he said he could move his arms more but “a lot of pain”.
There was no neck complaint or any spinal factor limiting shoulder movements.
On examination of the back, there was apparent marked tenderness, but the Assessors decided the findings represented marked over-reaction to minimal palpation. Flexion and extension were one-fifth normal range. Lateral flexion was bilaterally one-fifth normal range. Rotation was normal bilaterally. There was no asymmetry, dysmetria, muscle spasm or guarding. There were no specific non-verifiable radicular complaints.
On examination of the lower limbs, circumferential measurements of the thighs were 54.5cm on the right, 54cm on the left and both calves measured 41cm. Reflexes were of low amplitude and bilaterally symmetrical. There was no radicular, sensory, or motor loss although he reported numbness of the right lower limb, but this had a global distribution. Straight leg raise was 20 degrees on the right was reported with back pain, on the left 45 degrees. Neurotension signs were negative.

Imaging studies

MRI scan of the cervical spine, lumbar spine and both shoulders – 22 January 2020
The MRI scan of the left shoulder reportedly demonstrated hypertrophic osteoarthritis of the acromioclavicular (AC) articulation with impingement, partial articular surface tear with supraspinatus tendon, subscapularis tendonitis and subacromial/subdeltoid bursitis. The MRI scan of the right shoulder reportedly demonstrated mild osteoarthritis of the acromioclavicular articulation, partial bursal surface tear of the supraspinatus tendon and mild subacromial/subdeltoid bursitis. The MRI scan of the lumbar spine was reported to show spondylitic changes with disc bulges at multiple levels, and at L5/S1 mild compression of the left L5 nerve root. The MRI scan of the cervical spine was reported to show broad-based disc osteophyte complex C5/C6 causing bilateral neural foraminal narrowing, more severe on the right.
The Panel’s comment is that by report, the scan does not show any major abnormality in the left shoulder joint proper. Established osteoarthritis of the AC joint is common in males of middle age and is usually asymptomatic. The Panel found no evidence of specific traumatic injury to the AC joints.
A partial articular surface tear of the supraspinatus tendon is a common finding on shoulder MRIs in the claimant’s age group. The above MRI findings are essentially within normal limits for a man of his age.
The Panel reviewed the imaging and considered these reports. Their opinion was that the findings in the shoulders were unrelated to the subject accident and were degenerative in nature. In relation to the cervical spine and lumbar spine there were no traumatic findings but there were degenerative changes which would be of a longstanding nature in the cervical and lumbar spine.
Ultrasound-guided left shoulder injection - 30 March 2020
Noted.
Ultrasound-guided injection right shoulder - 30 March 2020
Noted.

Summary and opinion

Mr Foroosh is a 51-year-old man who was involved in the accident on 24 October 2019. The contemporaneous clinical notes would support soft tissue injury to the neck and low back, however, there was nothing to suggest he sustained a specific injury to either shoulder. There was no documentation in the ambulance notes, or the hospital discharge notes of 24 October 2019, to implicate symptoms or injury to either shoulder.
On 28 October 2019, four days post-accident not only was no complaint made by
Mr Foroosh in respect of either shoulder but Dr Malek reported “shoulder examination showed normal movements in all direction”.
Mr Foroosh consulted Dr Malek again on on 30 October 2019, 1 November 2019 and 4 November 2019 when the only complaints recorded were in respect of the neck and lower back. On 8, 15, 22 and 29 November 2019 Dr Malek reported complaints relating to lumbar pain. On 15 November 2019 Dr Melek also reported developing psychological symptoms. Not until 5 December 2019 did Dr Malek report bilateral shoulder complaints. Thereafter, Dr Malek reported regular complaints relating to both shoulders.
Mr Foroosh made no mention of either shoulder in the Application for personal injury benefits completed on 7 November 2019.
Having regard to the consistency of those records the Panel is not satisfied Mr Foroosh made any complaint to Dr Malek in respect of shoulder pain until 5 December 2019. The mention of “sh” in the clinical record of physiotherapist Su Min Oh on 4 November 2019 may refer to shoulders although this is far from clear.
In QBE Insurance (Australia) Ltd v Shah [2021] NSWSC 288 his Honour Justice Fagan considered the causal relationship between a motor vehicle accident and injury to both the left and right shoulder. His Honour stated as follows:
“[16] This report provides no orthopaedic or biomechanical explanation of how a “large full thickness tear of the supraspinatus” tendon, or any tear of the infraspinatus, could have been caused to the first defendant’s left rotator cuff by the motor vehicle accident as described by him. Soft tissue injury to the neck is commonly described in damages claims by drivers and passengers of motor vehicles that sustain rear end collisions, including where a front end collision has ensued. The biomechanical causation of that type of injury self-evidently involves the body being heavily accelerated and then decelerated in the horizontal plane. The body is restrained by the upright back of the seat and by the seatbelt and it therefore moves forward suddenly then stops suddenly with the corresponding movement of the vehicle. It is well understood that this acceleration and deceleration of the body causes “whiplash” to the neck because of the inertia of the head. In contrast to such cases of soft tissue injury to the neck, there is no obvious or self-explanatory means by which the rotator cuff tendons of either shoulder could be or would be torn by the first defendant’s involvement in the collision that he has described.
[17] In descriptions of the accident given by the first defendant on various occasions he has never claimed that he suffered any impact to his left shoulder or any force to his left arm that might have been transmitted to the shoulder. He has never suggested that either arm was braced in such a manner that force would have been imparted through the arms to cause a sudden load on either shoulder. Even if the first defendant’s arms had been braced in a stiff, straight-ahead fashion prior to the rear end impact, the force of that impact would have accelerated the vehicle forward and pressed the first defendant back into his seat. It would have reduced any bracing force of his arms upon his shoulders, not increased it. The subsequent collision with the car in front is described as having occurred immediately after the rear end impact, as would be expected. It has not been suggested by the first defendant that he rearranged himself to brace his arms prior to the second, front end impact. On the contrary, the first defendant describes having been thrown to his right side by the initial collision.”
The Panel notes the explanation provided by Mr Foroosh does not explain how he sustained injury to both shoulders in a rear end collision. The report of
Alanna Cashman, the report of Dr Rastogi, and the report of Dr Gehr do not purport to explain how the acceleration and deceleration of the body in the rear end collision resulted in bilateral shoulder injuries. Mr Foroosh informed Assessors Gray and Gibson that he felt pressure to the upper anterior chest and adjacent pectoral area on each side but did not describe impact to either shoulder. Mr Foroosh has conceded the air bags did not deploy so it cannot be suggested he sustained bilateral shoulder injury due to the deployment of the airbags. In reaching his conclusion Dr Gehr relied upon the assertion by Mr Foroosh that he reported pain over the anterior aspect of both shoulders immediately after the accident. The Panel finds that was not the case and the premise for Dr Gehr’s opinion cannot be sustained.
The MRI report of the right and left shoulder reports a finding of osteoarthritis in the claimant’s right and left shoulders. The Panel is not satisfied the other findings of bursitis and partial tears of the supraspinatus tendon are conclusive evidence as to a causal relationship with the accident. Indeed, in their clinical experience both Medical Assessors have observed that such MRI findings are common in the asymptomatic middle aged population.
At assessment by the Panel, there was no suggestion that the shoulder pain was referred from the neck. The Panel noted that there were significant abnormal pain behaviours evident throughout the assessment. Shoulder movements were highly variable. When asked about this, Mr Foroosh attributed the variability to the level of pain. It was noted that movements were better in some directions on repeated measurement, but others were reversed. Also, passive shoulder movements on both sides were consistently less in range than the active movements, reflecting active inhibition of shoulder movements by the claimant.
The Panel is not satisfied that Mr Foroosh’s shoulder complaints are causally related to the accident having regard to the lack of contemporaneous complaint, having regard to the Panel’s findings about the consistency of the claimant’s presentation, having regard to the prevalence of similar MRI findings in the asymptomatic middle aged population and in accordance with the decision in Shah having regard to the lack of orthopaedic or biomechanical explanation for such injury.
In relation to the shoulders, the Panel agreed with Assessor Preston’s comments that the global restriction of shoulder movements bilaterally, and the examination findings were not consistent with the imaging.
The Panel did not agree however that the neck pain or neck pathology was producing the restriction in shoulder movements.
Therefore, any shoulder restriction in the Panel’s opinion did not relate to the accident and therefore there was no subject accident related impairment of either shoulder.
In conclusion there was 0% WPI of both the left and right shoulder due to the accident.
The Panel accepted that Mr Foroosh had sustained soft tissue injury to his cervical spine as a result of the accident. At their assessment they found no asymmetry, dysmetria, muscle spasm, or guarding in either the neck or low back. There were no radicular symptoms or signs in either upper limb. Therefore, the appropriate assessment was DRE Cervicothoracic Category I, resulting in 0% WPI.
The Panel accepted Mr Foroosh had sustained a soft tissue injury to his lumbar spine, this being an exacerbation of a pre-existing low back condition. Movements were restricted, but there was no muscle spasm, dysmetria, guarding, or asymmetry. There were no radicular signs or symptoms identified at the examination. Therefore, the appropriate assessment was DRE Lumbosacral Category I, resulting in 0% WPI.

Panel’s assessment

The Panels assessment is as follows:
·        cervical spine, DRE impairment category 1, resulting in 0% WPI;
·        lumbar spine, DRE impairment category 1, resulting 0% WPI;
·        left shoulder, no injury caused by the accident, and
·        right shoulder, no injury caused by the accident.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	20 °/30 °/50 °	20 °/20 °/40 °
Extension	15 °/20 °/25 °	15 °/20 °
Internal Rotation
External Rotation	30 °	15 °
Abduction	30 °/50 °/50 °	20 °/25 °/40 °
Adduction	0 °/10 °	0 °/5 °

[2022] NSWPICMP 276

4 July 2022