Gad v Allianz Australia Insurance Limited

[2023] NSWPICMP 86

DETERMINATION OF REVIEW PANEL

CITATION:

Gad v Allianz Australia Insurance Limited [2023] NSWPICMP 86

CLAIMANT:

Belinda Gad

INSURER:

Allianz Insurance Australia Limited

REVIEW Panel

MEMBER:

Ray Plibersek

MEDICAL ASSESSOR:

Tai-Tak Wan

MEDICAL ASSESSOR:

Drew Dixon

DATE OF DECISION:

9 March 2023

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was a driver in a head-on collision 40 km/h; injuries reported to head, knee, right shoulder, cervical and lumbar spine; Held – original Medical Assessment Certificate set aside; Review Panel issued a new Certificate; claimant’s  injuries caused by the motor accident and gave rise to a permanent impairment which is not greater than 10%; soft tissue injury to the knee, cervical and spine; injury to the head and right shoulder not caused or aggravated by the motor accident and did not give rise to a permanent impairment.

DETERMINATIONS MADE:  

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 s 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel:

1.     Revokes the certificate of Medical Assessor Ian Cameron dated 27 February 2022.

2.     Certifies that the following injuries were caused by the motor accident and give rise to a permanent impairment which is not greater than 10%:

(a)   cervical spine – soft tissue injury;

(b)   chest – soft tissue injury;

(c)   thoracic spine – soft tissue injury;

(d)   lumbar spine – soft tissue injury, and

(e)   left knee – soft tissue injury.

3.     Finds the following injures were not caused by the motor accident and do not give rise to a permanent impairment:

(a)   head and brain;

(b)   right shoulder, and

(c)   stomach.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

1. On 15 May 2019 Ms Belinda Gad (the claimant) was the driver of a car that was involved in a head on collision whist she was driving to work.

2. In her personal injury claim form, Ms Gad reported sustaining the following injuries in the accident: chest, back, left bottom, knee and leg.[1]

   [1] Insurer Bundle AD3 p 21.

3. Ms Gad has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).

4. Allianz Insurance Australia Ltd (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the MAI Act.

5. 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%.

6. This dispute is in relation to whether the degree of permanent impairment sustained by
   Ms Gad 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.

7. A medical assessment matter is determined in accordance with division 7.5 of the MAI Act by a Medical Assessor.[2]

   [2] Section 7.20 of the MAI Act.

8. The dispute as to permanent impairment was referred to Medical Assessor Ian Cameron. He assessed Ms Gad on 15 February 2022 and issued a certificate dated 27 February 2022. Medical Assessor Cameron found that the permanent impairment arising from the injuries to the claimant’s cervical spine, thoracic spine, lumbar spine, chest, stomach and left knee gave rise to a 2% whole person impairment (WPI). Medical Assessor Cameron also found that the injury to the claimant’s right shoulder was not caused by the subject motor accident.

9. Ms Gad has sought a review of the certificate of Medical Assessor Cameron.

REVIEW PROCEDURE

1. On 17 May 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).[3]

   [3] Claimant's Bundle AD2 pp 6-7.

2. In an Determination of an application for review of a medical assessment, dated
   17 May 2022, the President’s Delegate stated:

   “… there is reasonable cause to suspect that Assessor Cameron did not sufficiently articulate the path of reasoning for his finding that the claimant’s right shoulder injury was not caused by the motor accident …”  

   Therefore she accepted the claimant’s application for a review.

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

4. The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission). Accordingly, the President’s Delegate referred the matter to this Panel to assess.

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

6. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[4]

7. The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 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.

RELEVANT LEGAL AUTHORITY

[4] Rule 128 of the PIC Rules.

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 with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.

3. Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:

   1.     “6.6  Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

   2.     '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:

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

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

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

   6.     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.”

4. In Norrington v QBE Insurance (Australia) Ltd[5] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:

   [5] [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.”

5. Brereton J referred to the decision of Campbell J in Owen v Motor Accidents Authority (NSW)[6] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where:

   [6] [2012] NSWSC 650, Owen.

   7.“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]).”

6. In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[7] where the Court stated at [64]:

   8.“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.”

7. Even more recently in Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[8] 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 (MVA) materially contributed to that injury.

8. ASSESSMENT UNDER REVIEW

   [7] [2016] NSWCA 229, McGiffen.

   [8] [2021] NSWSC 804, Kinchela.

9. The dispute was initially referred to Medical Assessor Cameron who assessed Ms Gad and issued a certificate dated 27 February 2022.[9] The injuries referred for assessment can be summarised as follows:

   a.     cervical spine;

   b.     upper right extremity, right shoulder;

   c.     chest and stomach;

   d.     thoracic spine;

   e.     lumbar spine;

   f.     lower left extremity, and

   g.     head.

   [9] Claimant's Bundle AD2, A4 pp 389 – 397.

10. Medical Assessor Cameron found that the following injuries caused by the motor accident give rise to a permanent impairment of 2% and is not greater than 10%:

    (a)   cervical spine – soft tissue injury;

    (b)   chest and stomach – soft tissue injury;

    (c)   thoracic spine – soft tissue injury;

    (d)   lumbar spine – soft tissue injury, and

    (e)   left knee – soft tissue injury.

11. Medical Assessor Cameron found that the following injuries were not caused by the motor accident:

    a.     shoulder upper right extremity (right shoulder);

    b.     soft tissue injuries;

    c.     musculoskeletal injuries;

    d.     bursitis;

    e.     tendinopathy, and

    f.     impingement.

12. He also noted that there is no evidence of a specific injury that occurred to the right shoulder. The presence of pain in a body region is not necessarily an indication of an injury to the body region.

13. Medical Assessor Cameron found that the following injuries caused by the motor accident have resolved and do not result in permanent impairment:

    ·chest and stomach – soft tissue injury, and

    ·head – soft tissue injury.

14. Medical Assessor Cameron assessed a 2% permanent impairment caused by the motor accident.

EVIDENCE BEFORE THE PANEL

1. The Panel issued a Direction to the parties on 3 June and 11 July 2022 requiring each party to file an indexed, paginated bundle of documents and the claimant to attend a medical examination. 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 466. The solicitor for the insurer uploaded to the portal a bundle of documents marked AD3 paginated from pages 1 to 285.

2. The Panel notes that there are extensive and voluminous medical records, reports and clinical notes describing the claimant’s psychological and physical injuries. The Panel has read, discussed and carefully considered all of these medical records, reports and notes before it. The Panel has not referenced or summarised the records relating to Ms Gad’s physical injuries or symptoms unless they are relevant or have some bearing on the consideration of the injuries which are the subject matter of the Panel’s reassessment process.

3. The Panel has not referenced or summarised all of the records relating to Ms Gad’s symptoms or injuries. If some of those medical records and reports are not referred to in the Panel’s review, it should not be assumed that the Panel was unaware of that medical material or that the Panel failed to take the material into account. In its review the Panel is endeavouring to carry out its statutory function and promote the objects of the legislation it operates under including the legislator’s guiding principle that proceedings in the Commission be a just, quick and cost-effective resolution of the real issues in the proceedings.[10] Consistent with this guiding principle, the Panel has not referred to every item of medical evidence but has done its best to refer to them sufficiently but briefly.

   [10] Sections 3 and 42 of the Personal Injury Commission Act 2020.

Claim form

1. In the personal injury claim form dated 27 May 2019,[11] the claimant stated that she sustained the following injuries as a result of the subject accident: chest, back, left bottom, knee and leg.[12]

2. Pre-accident treatment medical evidence

   [11] Insurer Bundle AD3, AD1.1 pp 18 - 22.

   [12] Insurer Bundle AD3, AD1.1 p 21.

3. Some of the pre-accident treatment medical evidence concerning Ms Gad is referred to or summarised as part of the report on the re-examination of Ms Gad.

4. Post-accident treating medical evidence

5. On 24 May 2019 Dr Kim Ong, general practitioner (GP) noted in a referral to a physiotherapist, that the claimant appears to have sustained injuries to her spine, chest, and the lower left limb in a motor vehicle accident on 15 May 2019.[13]

   [13] Claimant Bundle AD2, p 143.

6. In a certificate of capacity dated 11 June 2019 Dr Ong diagnosed the claimant with the following injuries: acute soft tissue injuries/strain to spine, chest and lower left limb.

7. In the surgery consultation note with Dr Steven Zhang dated 28 August 2019, Dr Zhang noted that the claimant reported still having chest, back and left leg pain.[14]

   [14] Claimant Bundle AD2, p 176.

8. In the surgery consultation note with Dr Henry Tang dated 8 November 2019, Dr Tang noted that the claimant reported pain in the arm, left leg swelling, right leg OK. Dr Tang suggested to the claimant antidepressant treatment. Dr Tang noted that the claimant sees a psychologist once a week and has lodged legal action against the insurer and CTP payments have now stopped.[15]

   [15] Claimant Bundle AD2, p 179.

9. In a report dated 10 January 2020 Alexandra Webb, exercise physiologist, noted that the claimant reported being in a great deal of pain after a family holiday in Queensland. The claimant reported a sharp stabbing pain in her shoulder, neck and chest. Ms Webb wrote that she believed the symptoms may have been due to sitting in a car for a prolonged period of time.[16]

   [16] Claimant Bundle AD2, p 232.

10. In the surgery consultation note with Dr Henry Tang dated 7 April 2020, Dr Tang noted that the claimant reported right shoulder pain worse. Dr Tang recorded a finding of bursitis.[17]

    [17] Claimant Bundle AD2, p 182.

11. In the surgery consultation note with Dr Henry Tang dated 7 June 2020, Dr Tang noted that the claimant reported ongoing neck and back pain. Dr Tang diagnosed the claimant with post-traumatic stress disorder.[18]

    [18] Claimant Bundle AD2, p 177

12. In the surgery consultation note with Dr Henry Tang dated 26 June 2020, Dr Tang noted still shoulder pain, doing physio, unhappy with slow progress.

13. A report from Debra Cush, treating physiotherapist, dated 17 November 2020 indicated that one of the areas where the claimant sought treatment was for soft tissue trauma to the right shoulder causing spasms. Ms Cush noted that the claimant had quite a good range of movement in the right shoulder.[19] Ms Cush also noted that the claimant had poor endurance and strength in the range of motion.

    [19] Insurer Bundle AD3, pp 142-144.

14. In an Allied health recovery request written by Ms Cush, and dated 1 December 2020,
    Ms Cush’s diagnosis of the claimant’s right shoulder was “… Neuropathic pain affecting the neck area and referring to the right shoulder and upper right limb”.

15. A further report from Ms Cush dated 16 December 2020 indicated that the claimant’s range of movement in her neck and right shoulder had improved but there were still significant pain on the end of her range.[20]

    [20] Insurer Bundle AD3, pp 189-190.

16. Clinical notes from Ms Cush dated 12 February 2021 indicated that the claimant’s tightness and range of movement in right shoulder and neck were improved.[21]

    [21] Insurer Bundle AD3, p194.

Medico-legal evidence

1. Deborah Martin-Smith, clinical psychologist

2. Deborah Martin-Smith wrote in a report dated 26 September 2019. The report noted that the claimant complained of headaches, sore neck, pain across the chest centre back. The claimant complains of pain travelling across her arms, shoulders and neck. The claimant has multiple stressors in her life. The claimant was diagnosed with severe post-traumatic stress disorder and depression.

3. Deborah Martin-Smith wrote in another report dated 29 September 2020. The report again noted that the claimant gave a history of headaches, sore neck, pain across the chest centre back. The claimant complains of pain travelling across her arms, shoulders and neck.

4. Dr Utham Dias, occupational physician

5. Ms Gad was assessed by Dr Dias on 20 October 2020.[22] Dr Dias provided a detailed and lengthy report on the claimant. Dr Dias reported on the following injuries: cervical spine, chest wall, thoracic spine, lumbar spine and right shoulder.

   [22] Claimant Bundle AD2, pp 347 – 367.

6. Dr Dias assessed the claimant to have a total combined permanent impairment of 18% WPI.

7. Regarding the shoulders, one examination Dr Dias reported that the right shoulder was normal on inspection. He found some limitations to abduction, flexion and internal rotation. He found a full range of movement on external rotation, adduction internal rotation, external rotation, flexion and extension. In comparison, Dr Dias found upon examination of the left shoulder that it was normal with a full range of movement across all planes tested on examination.

8. Dr Dias assessed the claimant’s right shoulder to have a WPI of 7% based upon upper extremity impairment (UEI) rating of 12%.

9. Dr Todd Gothelf, Orthopaedic Surgeon

52.  Ms Gad was assessed by Dr Gothelf on 26 February 2021.[23] Ms Gad reported to Dr Gothelf that she always had right shoulder pain and it had recently gotten worse. She said that her shoulder feels stiff and that the right arm is painful as well.

[23] Claimant Bundle AD2, pp 448 – 463.

53.  On examination of the right shoulder Dr Gothelf noted some inconsistencies between the physical examination and some of the documentation. Dr Gothelf noted the letter from
Ms Cush dated 17 November 2020 which indicated that the claimant had quite a good range of movement in the right shoulder. Dr Gothelf however found that the physical range of motion demonstrated a poor active range of motion in the right shoulder.

54.  Dr Gothelf’s conclusions regarding the right shoulder is a 6% UEI which converts to a 4% WPI.

1. Dr Abdal Khan, psychiatrist

2. Ms Gad was assessed by Dr Khan on 2 February 2022. Dr Khan’s psychiatric diagnosis was that Ms Gad suffered from post-traumatic stress disorder and a major depressive disorder which were in accordance with DSM-5 diagnostic criteria.

3. Dr Khan assessed Ms Gad with a WPI of 22% for her psychiatric diagnosis.

4. Dr Graham George, psychiatrist

5. Ms Gad was assessed by Dr George on 8 March 2021.[24] Dr George’s psychiatric diagnosis was that Ms Gad suffered from mild to moderate post-traumatic stress disorder which was resolving.

   [24] Insurer Bundle AD3, AD3.1 pp 209 - 219.

6. Dr George assessed Ms Gad with a WPI of 0% for her psychiatric diagnosis.

7. Dr Samson Roberts, psychiatrist

8. Ms Gad was assessed by Medical Assessor Roberts on 22 March 2022.[25] He issued a certificate assessing her degree of permanent impairment on 18 April 2022. Medical Assessor Roberts’s psychiatric diagnosis was that Ms Gad suffered from post-traumatic stress disorder and major depressive disorder.

   [25] Insurer Bundle AD3, AD3.1 pp 209 - 219.

9. Medical Assessor Roberts assessed Ms Gad with a WPI of 7% for her psychiatric diagnosis.

X-ray, CT scan and MRI evidence

1. Dr Phillip Segal

2. Dr Segal reported on an ultrasound study of the claimant’s right shoulder dated
   1 April 2020.[26] The report noted a history of persistent pain after a motor vehicle accident. The thickening was in keeping with tendinopathy. The report noted a bursal thickening in keeping with bursitis. The report noted no rotator cuff tear was demonstrated.

3. Dr Babak Sanadgal

   [26] Claimant Bundle AD2, pp 242 – 243.

4. Dr Sanadgal reported on an X-ray and ultrasound study of the claimant’s right shoulder dated 15 June 2022.[27] He found no calcification or recent displaced fracture or dislocation. He also found no evidence of any tears. He found an intact subscapularis tendon. He commented that there was no recent rotator cuff tear.

5. SUBMISSIONS

6. Claimant’s submissions

   [27] Claimant Bundle AD2, pp 464 – 466.

7. The claimant’s solicitors made detailed submissions to the President’s delegate dated
   

   [28] Claimant Bundle AD2, A1 pp 1 - 5.

   28 March 2022.[28] They submit that Medical Assessor Cameron had proceeded erroneously in determining the degree of permanent impairment of the injured person as a result of the injury caused by the subject accident.

8. The submissions enumerate the following errors:

   (a)   failure to adequately consider all the relevant material;

   (b)   failure to provide sufficient reasons;

   (c)   failure to adequately articulate a path of reasoning, and

   (d)   erred in determining that the claimant’s right shoulder injury was not caused by the subject motor vehicle accident.

9. The submissions set out in detail the relevant history of the claimant’s injured right shoulder. The claimant’s submissions list a number of reports from physiotherapists and exercise physiologists between 2019 and 2020 which record the claimant complaining about persistent right shoulder pain since her motor vehicle accident. The submissions also refer to a right shoulder ultrasound report in 2020. The submissions also note a medico-legal report from Dr Dias which diagnosed right shoulder impingement syndrome. The submissions referred to another report from Dr Gothelf which attributes numerous injuries, including the right shoulder, to whiplash disorder and assesses the claimant’s right shoulder injury as 4% WPI. The claimant’s submissions then argues Medical Assessor Cameron should have found, on that evidence, that the claimant’s injured right shoulder was caused by the motor vehicle accident. Furthermore, Medical Assessor Cameron should have assessed the WPI of the injured right shoulder.

10. Insurer’s submissions

11. The insurer’s solicitor provided brief submissions dated 12 April 2022.[29] The insurer submits that it is unlikely to be any dispute that Medical Assessor Cameron’s certificate found the accident resulted in soft tissue injuries to the cervical spine, chest, stomach, thoracic spine, lumbar spine, left knee and head (and the chest, stomach and head injuries have resolved) whilst those injuries gave rise to a 2% WPI.

    [29] Insurer Bundle AD3, AD3.1 pp 280-281.

12. The insurer submits that Medical Assessor Cameron has clearly and concisely set out the claimant’s history of the accident, complaints when seen, presentation on examination together with a review of the available medical evidence before going on to clearly set out his finding that the accident did not cause an injury to the right shoulder/upper extremity.

13. The insurer submits that Medical Assessor Cameron clearly articulated his path of reasoning as to why he found the right shoulder injury was not caused by the accident. The claimant’s dispute lies not with the adequacy of Medical Assessor Cameron’s reasons but rather that Medical Assessor Cameron’s findings did not accord with the medico-legal evidence obtained on behalf of the claimant.

14. If the claimant’s submissions were to carry any weight, one would have expected that any reference to contemporaneous complaint made by the claimant about the right shoulder would have included a written record prior to four months following the date of the accident.

15. The insurer also made detailed earlier submissions about the permanent impairment dispute dated 30 March 2021.[30] The insurer submitted that the claimant’s right shoulder injury attracts a 4% permanent impairment rating. The insurer submits that Dr Gothelf correctly assessed the claimant’s permanent impairment of her right shoulder at 4% WPI taking into consideration cl 6.51 of the Guidelines.

    [30] Insurer Bundle AD3, AD1.27 pp 256-266.

THE MEDICAL EXAMINATION

1. Ms Gad attended for re-examination at the rooms of Medical Assessor Tai-Tak Wen on
   30 January 2023. She was unaccompanied and the examination took place from 1.30pm to 3.30pm

2. The claimant is 49 years old. The assessment, including history taking, cognitive functions assessment and physical examination, lasted for 2 hours.

3. The Panel reviewed the certificate of Medical Assessor Cameron dated 27 February 2022 for WPI disputes. The Panel decided to do a de novo examination for all the injuries.

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

   (a)   cervical spine - soft tissue injuries, nerve impingement, disc injuries, musculoskeletal injuries, multilevel degenerative endplate bony spurring, radiculopathy;

   (b)   shoulder - upper right extremity (right shoulder), soft tissue injuries, musculoskeletal injuries, bursitis, tendinopathy, impingement;

   (c)   chest and stomach - soft tissue injuries, displaced bones;

   (d)   thoracic spine - soft tissue injuries, musculoskeletal injuries;

   (e)   lumbar spine - soft tissue injuries, musculoskeletal injuries, nerve impingement;

   (f)    knee - lower left extremity (left knee), soft tissue injuries, musculoskeletal injuries, direct trauma, patellofemoral pain, and

   (g)   head – brain injury/soft tissue injuries, severe headaches.

History as given by the injured person

Pre-accident medical history and relevant personal details

1. Ms Gad is 49 years old, and currently unemployed. She said she is now receiving disability support pension and was not working since mid-2022. She worked as a child protection officer/social worker, casual (up to 70 hours per week) at the time of subject motor vehicle accident. Her duties included visiting residential youth clients, and sometimes might need to move heavy furniture. She denied having any work-related injuries.

Past health

1. Ms Gad initially denied any other history of accidents, injuries or other relevant conditions sustained prior to the subject motor vehicle accident.

2. She has the following significant history:

   (a)   endometriosis – she has had an operation on uterus;

   (b)   caesarean section 12 years;

   (c)   irregular heartbeat since 2004, seen by cardiologist for 2 years, and

   (d)   allergic to pethidine a flagyl.

Social history

1. Ms Gad was born in NSW, Australia.

2. She said she has a Bachelor degree in teaching, a diploma in counselling, and a diploma in psychology. She did not proceed to the psychologist degree because of the subject accident. She said her academic performance in school was above average with a HSC score around 70. Her best subjects were history and English, and the worst subject was science. She has been working as a teacher, a social worker, and a counsellor in child services. She has stopped working since the subject MVA.

3. She has separated from her de-facto. She lives with three children, aged 12 to 18. They have recently moved to a new single storey house with one step. (Previously they lived in a house with 5 steps.) She has two other children: one is married and lives in Adelaide, and another also married and lives with her husband.

4. She is a non-smoker and a non-drinker.

5. She drives an automatic car, but she said she is scared to drive.

6. She used to play tennis but stopped in 2019, before the subject MVA. She said she did gardening regularly but has stopped it now. She gets someone to mow the lawn. She said the new house nevertheless has “no garden”.

History of the motor accident (from the claimant)

1. Ms Gad said on 15 May 2019, at about 2.30pm, she drove her car to work. There was no passenger. She was wearing the seat belt, and there was headrest on her car seat. While she was travelling on the Luxford Road, Whalan, at a speed of 40km per hour, a car on the opposite lane turned right and was in front of her car, and was then T-boned by the front of her car. Her airbag was deployed. She said there was brief loss of consciousness for unknown period. She could remember the impact when the cars collided. The next thing she could remember after she regained consciousness was that she was still in the car and passers-by helped her getting out the car and then she sat on the ground while waiting for ambulance. She complained of chest pain as her chest was hit by the airbag. She recalled both the police and ambulance came to the scene soon after the accident. All these suggested there were no significant retrograde amnesia, brief anterograde amnesia (for a few seconds to minutes), and the blackout was very brief if ever present.

2. She said she was taken to Nepean Hospital and stayed in the Emergency Department (ED) until next day. X-rays were done but showed no fractures but “some dislocation of sternum”. She found some bruises in the chest and left leg which settled quickly in a few weeks. She complained of pain in the chest, left leg, upper back and both shoulders. There was no bleeding, laceration and no suture was needed.

3. Her car was towed after the accident, and later written off. No other people were injured in the accident.

History of symptoms and treatment following the motor accident

1. Ms Gad stated she consulted her usual GP Dr Ong one day after the subject MVA. She insisted that there was pain in the right shoulder. When I presented to her the GP notes initially did not mention right shoulder pain (although recorded other pain), she insisted that she had pain in the right shoulder from day one, and did tell the GP, but she does not understand why the GP did not record it.

2. She was referred to physiotherapy two weeks later. She said she had “full time physio”, but has stopped, waiting to see pain specialist.

3. She was also seen by a psychologist Debra after the subject MVA, initially weekly but now monthly.

4. She saw a pain specialist, Dr Ho, 2022 in RPA Medical Clinic, but only twice. She stopped it because she got COVID-19 at the time, and then the specialist became sick. She has booked to see another specialist on 28 February 2023.

5. She could not recall seeing any brain injury specialist, neurologist or neuropsychologist while she was in the hospital or as an outpatient. She could not recall testing memory or PTA (post-traumatic amnesia) while she was in the hospital.

6. She said she has seen an occupational therapist for return to work (RTW) before her
   COVID-19. She said she once tried to RTW briefly but stopped because she “had too much pain”.

Details of any relevant injuries or conditions sustained since the motor accident

1. Ms Gad denied any history of significant accidents, injuries or other relevant conditions sustained since the subject MVA.

Current symptoms  

1. Her current complaints are as follows:

   (a)   Back pain, 8/10 in visual analogue scale (VAS), involving both upper and lower back. It is a constant dull ache but can be sharp pain at times. It is reduced by taking Nurofen. It is aggravated by any physical activities, such as doing housework.

   (b)   She said sometimes there is “cramps” in the back, and her cramps in legs also became more often after the subject MVA.

   (c)   Right and left shoulder pain. It is 8/10 in VAS (right more pain than left side). It is a “sharp, stabbing” intermittent pain. It is aggravated by physical activities, such as cooking or driving.

   (d)   Pain in left leg and knee. It is 4/10 in VAS. It is an intermittent dull ache. There might be swelling in legs, and even changes of colour. The pain is less if she uses Voltaren or physio cream.

   (e)   Headache, mainly occipital then spread to right or left side of the head, “like migraine”. It is 5/10 in VAS and may last for a whole day. She admitted that she had headache before, but it is more severe after the accident.

   (f)    Chest pain, 6/10 in VAS. It is almost daily, and she said it could be severe that she had presented to ED of hospital because of it. However it is not clear what the diagnosis was, but probably not cardiac pain.

2. Her memory is not good since the accident but getting worse recently. She said she may not remember where she parks the car in the carpark. However otherwise she could not recall any other difficulties in her daily life due to memory problems. I asked her according to GP notes, she did not complain memory problems initially but only started to complain forgetfulness in February 2020, nine months after the accident, she replied that she had memory problems soon after the accident but initially did not tell the GP. There was never any brain scan or other investigation of the brain, or referral to see brain injury specialist or clinic. However she has been seen by psychologist, initially weekly.

3. When I asked about any change in her mood or personality, she said now she does not meet people and may be depressed. She is seeing psychologist regularly.

4. Sleep is not good, mainly due to back pain and late sleeping.

5. She reported no problem in her bowel and bladder functions.

6. She said at most she can sit for 15 minutes, stand for 20 minutes and walk for 20 minutes.

7. She is independent in her personal hygiene care and most activities of daily living (ADL). She said she still does most of the housework, although less than before the subject MVA, which is now done by her family.

8. She does not do any sport even prior to the subject MVA. 

9. She said she volunteers in her temple twice a month now because of the pains. Prior to the subject MVA she went to the temple once a week.

Current and proposed treatment

1. Ms Gad stated that she has been taking the following medication:

   ·        Duloxetine 60 mg nocte;

   ·        Nurofen one tablet when necessary;

   ·        Panadol two tablets 6 hourly when necessary;

   ·        Olmesartan 20 mg daily, and

   ·        Topical physio cream or Voltaren cream.

2. She said she once received physiotherapy, but has ceased them now. She may resume it after seeing a pain specialist. She had hydrotherapy before.

3. She sees her psychologist monthly.

4. She might see an occupational therapist once before regarding return to work (RTW). She tried to RTW once for a few months but stopped because of “too much pain”.

Findings on clinical examination

Clinical examination

1. Examination on 30 January 2023 showed that Ms Gad was orientated and alert. She said she is 161cm tall, and weighs 83kg, which gave a BMI of 32, in the ‘obese’ range. Significant pain behaviours were observed during the interview. She stood up and walked around the examination room about five minutes after the consultation started. She walked independently without walking aid in a normal symmetrical gait. She could walk on tip-toes, on heels, and in tandem (heel-toes) way. However, she could only half squat, complaining pain in the back and the knees. She could dress and undress independently. She could get on the examination couch independently.

2. She is right hand dominant.

3. Examination of the head showed no conspicuous scars, swellings, or deformities. Smell sensation was normal. Visual fields tested by confrontation were normal on both eyes. There was no nystagmus or diplopia. Pupils were equal and reactive. Visual acuity was grossly normal. There was no gross hearing loss. There were no other motor or sensory deficits in the face and head. All the cranial nerves were intact. There was no difficulty in communication, both in expression and comprehension. There were no cerebellar signs found. Romberg test was normal.

Mental state screening

1. She scored 28/30 in Folstein Mini Mental test (MMSE). She lost 2 points in short term verbal memory test. She scored 4/5 in serial 7 test, but scored 5/5 in reverse spelling test, so she still got 5/5 in the attention and calculation item. She had no problem in copying figures including three-dimensional cubes. She had no problem in alternating sequences. She drew a clock showing the current time well. Regarding written arithmetic tests, she got the correct answer for addition, wrong answer for subtraction, but refused to try multiplication and division, saying that she won’t be able to do it. She gave correct answers when asked to give three differences and three similarities between apple and orange.

2. In summary, there was no evidence of cognitive impairment detected clinically in the mental state screening tests. The mild difficulty in short term verbal memory was most likely due to inadequate attention, or inadequate effort. The arithmetic test results most likely due to inadequate effort but could also reflect her usual ability (science was her worst subject in school), work experience, and the fact she has not worked for a long time. Abstract thinking and executive function were within normal limits. I could not find any evidence of significant cognitive impairment from the subject MVA. However it is well known mental screening may not detect subtle change in mild traumatic brain injury, and it is likely that she did not give the maximum efforts in the tests, or she was depressed. A comprehensive neuropsychological may clarify the situation.

3. However, with the current evidence available, considering the circumstances of the accident, no or brief retrograde amnesia and anterograde amnesia, no or very brief reported but unwitnessed loss of consciousness (LOC), no documented abnormal GCS (Glasgow coma scale) score or PTA score, and no documented abnormal brain scan finding. It is unlikely that Ms Gad has sustained any brain injury in the subject MVA.

Cervical spine (Cervicothoracic)

1. Examination of the neck showed mild tenderness over the occipital area but no muscle spasm or guarding. There was no evidence of non-verifiable radicular complaints, and there were no features of radiculopathy. Initially there were severe restrictions in active movements in all direction which was inconsistent to the observations when not in formal examination setting, such as undressing, and the findings reported by previous examiners. I presented the inconsistency to the claimant, and she replied that she sometimes has more pain than in other days. I asked to give her best efforts and I repeated the measurements. There was not much improvement regarding the consistency. [All the measurements are those of active movements. All the active ranges of movements (ROM) of the spine were measured using a goniometer]:

Cervical spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	1/5,2/5,3/5 normal	1/5,2/5,3/5 normal	0/5,1/5,2/5 normal	0/5,1/5,2/5 normal	1/5,2/5,3/5 normal	1/5,2/5,3/5 normal

There was no evidence of dysmetria (asymmetrical loss of motion).

Thoracic spine (Thoracolumbar)

1. Examination of the upper back showed very mild diffuse tenderness but no muscle spasm or guarding. Active movements of the thoracic spine were symmetrical and within normal limits. There was no evidence of any non-verifiable radicular complaints nor radiculopathy:

Thoracic spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	Normal	Normal	Normal	Normal	Normal	Normal

Lumbar spine (Lumbosacral)

1. Examination of the lower back showed mild tenderness in the lumber region, but no muscle spasm or guarding. Similarly, initially there were severe restrictions in active movements in all direction which was inconsistent to the observations when not in formal examination setting, such as undressing, and the findings reported by previous examiners. I presented the inconsistency to the claimant, and she replied that she sometimes has more pain than in other days. I asked to give her best efforts and I repeated the measurements. There was not much improvement regarding the consistency. There was no evidence of dysmetria. There was no evidence of radiculopathy nor non-verifiable radicular complaints:

Lumbar spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	1/5,2/5,3/5 normal	1/5,2/5,3/5 normal	Normal	Normal	1/5,2/5,3/5 normal	1/5,2/5,3/5 normal

Straight leg raising was 20° in on both sides; in supine position but 80° in on both sides in sitting position.

Upper extremity

1. Examination of the upper limbs showed no gross muscle wasting. Measurements of mid-arm circumference showed that the right side was 0.5cm larger than the left side which was within the normal limits, as she is right hand dominant. Measurement of mid-forearm circumferences also showed that the right side was 0.5cm larger than the left side which was within the normal limits. Muscle power was grade normal in both upper limbs, both proximally and distally. Reflexes were normal and symmetrical in the upper limbs. Sensation was normal in both upper limbs.

2. Examination of the shoulders showed tenderness in the trapezius muscle region on both sides. No crepitation was found on moving shoulders. Active movements of left shoulders were severely restricted initially in the formal examination, which were different from those reported by other examiners, and were also not consistent with the observations when not in formal examination, such as undressing. Ms Gad was presented with the inconsistency, but she did not respond. She was asked to give her best efforts and measurements repeated. There was not much improvement in the consistency. [All the measurements are those of active movements. [All the active ranges of movements (ROM) of the limbs were measured using a goniometer]:

Shoulder	Flexion	Extension	Abduction	Adduction	Internal Rotation	External rotation
Right /°	70,80,90	5,10,15	70,80,90	5,10,15	80,80,80	80,80,80
Left /°	70,80,90	5,10,15	70,80,90	5,10,15	80,80,80	80,80,80

1. Examination of the elbows showed no tenderness or swelling. Active movements of the elbows were symmetrical and within normal limits.

2. Examination of the wrists and hands showed no deformity or swelling. Active movements of the wrists, hands and fingers were all symmetrical and within normal limits.

Lower extremity

1. Examination of the lower limbs showed no gross muscle wasting. Measurement of mid-thigh circumference and mid-calf circumference were equal on both sides. Muscle power was normal and symmetrical, both proximally and distally. Reflexes were normal and symmetrical on both lower limbs. There was no sensory impairment in right lower limb, but she complained of mild subjective impaired sensation to pain and touch of the whole left lower limb which did not follow any dermatomal or peripheral nerve distribution.

2. Examination of the hips showed no deformity or swelling. There was no tenderness over the hip regions. FABER test was normal on both sides. Active movements of the hips were within normal limits.

3. Examination of the knees showed no deformity, swelling or effusion. I asked the claimant to show me where was the soft tissue injury to the left knee, then I could see very faint superficial scar, around 2 cm long, which was nontender, and very difficult to find if not pointed by the claimant. There was no crepitation on moving the knees, although I could feel a click when moving left knee. There was no excessive antero-posterior or medio-lateral laxity of the knees suggesting the cruciate and collateral ligaments were intact. However, there was no excessive anterior-posterior laxity on the right knee. McMurray’s test was normal on both sides, suggesting the menisci were intact. Active movements of both knees were symmetrical and within normal limits.

4. Examination of the ankles showed no deformity or swelling. Active movements of the ankles and feet were symmetrical and largely within normal limits.

5. Examination of the chest showed that there was some tenderness over the sternum. However there was no crepitation found on breathing, with no significant ‘steps’ or mass of sternum or ribs to suggest nonhealing. Air entry was normal and symmetrical.

6. Examination of the abdomen was unremarkable.

Consistency of presentation

1. I have already mentioned above the inconsistency in the cervical, lumbar and shoulder examinations.

Review of documentation

Relevant imaging studies and other investigations

1. The claimant did not bring any X-ray films or reports to the assessment, because “she forgot”.

2. The Panel Members have reviewed the reports of the following investigations enclosed in the supporting documentation:

   (a)   Ultrasound and X-ray right hip, Ultrasound subcutaneous soft tissue facial region, and X-ray lumbosacral spine of 14 July 2016, taken at Spectrum Medical Imaging, reported by Dr Ramesh Cuganesan - the clinical indication was, “Right hip pain ? Trochanteric bursitis. Tender lump in left lower face region”. The scan was done approximately three years prior to the subject MVA. It showed lobulated soft tissue lesion in the angle of the mandible. There was degenerative change involving right facet joint at L3/4 and L4/5 level. There was an ovoid focus of calcification project over the right upper quadrant of the abdomen which might represent a calcified gallstone.

   (b)   X-ray and ultrasound right hip showed mild trochanteric bursitis.

   (c)   Ultrasound right shoulder of 1 April 2020, taken at South West Radiology, reported by Dr Philip Segal – which showed bursal thickening overlying the subscapularis and supraspinatus in keeping with bursitis. Heterogenous appearance of the supraspinatus with thickening keeping with tendinopathy. There was bunching of the bursa overlying supraspinatus on abduction, keeping with impingement. No rotator cuff tear was demonstrated. 

   (d)   

   X-ray cervical spine and right shoulder, and ultrasound right shoulder of

   
   

   14 June 2022, taken at Harbour Radiology, reported by Dr Babak Sanadgol – which showed no significant lateral offset of C1 and C2. No recent displaced future or dislocation of the cervical spine was noted. There was no anterior paravertebral soft tissue thickening, and no destructive osseous lesion seen. There were mild lower cervical spondylotic changes.

3. There was moderate insertional tendinosis of the supraspinatus tendon, but no recent rotator cuff tear. There was features of subdeltoid subacromial bursitis.

4. The following scans were done in Nepean Hospital and the reports are embedded in the Nepean ED notes:

   (a)   X-ray left knee of 15 May 2019, reported by Dr Jarrett – no fractures detected. The main knee joint space and patella-femoral space were normal;

   (b)   X-ray chest of 15 May 2019, reported by Dr Jarrett – normal, and

   (c)   X-ray sternum of 15 May 2019, reported by Dr Jarrett – no fracture is detected.

5. The Panel could not find any brain imaging, nor neuropsychological assessment report.

Summary of relevant documentation provided for the initial assessment

1. The ambulance report showed that the subject MVA occurred on 15 May 2019. It was stated that,

   “… 45 y/o female,,, traumatic chest pain. O/A – pt self extricated driver of 2 car head on collision at apprx 40 Kmh. Airbags fitted and deployed on steering wheel/dash. Nil intrusion or deformity into the vehicle… pt had just driven out of a school zone and was traveling appx 40 kmh when another vehicle turning from a side street collided with her  headon…. O/E… denies LOC, nil c-spine pain, nil neck pain, nil back pain. Oriented to ppt… sternum pain, non-cardiac, nil radiations, pain increases on inspiration… lung sounds normal, chest equal and expanding, nil SOB [shortness of breath] or increased WOB, pt states taking deep breath is a bit difficult due to sternum pain… some nauseas, nil active vomiting…. Some minor pain in lower (L) limb, pt able to bare weight on ambulate…IMP:  sternum bruising. DDx = sternum #. RX- analgesia with good effect… Tx- Nepean Hospital…”

   GCS score was 15 on two occasions.

2. Regarding the ambulance report, the Panel notes that there was no evidence of LOC or PTA, and GCS normal. There was no neck pain or back pain, but only chest pain related to the airbag.

3. The Panel could not find any Police report.

4. In an ED Discharge transfer documents, dated 15 May 2019, Dr Nicholas Barry stated the claimant was admitted and discharged to ED of Nepean Hospital on 15 May 2019. He stated that,

   “Belinda was involved in a motor vehicle accident today which was likely head on… The airbags of the car were deployed and the car has been written off. However she remained conscious throughout the incident, self extricated from the car and walked off from the scene. The police and ambulance attend the scene… Her primary survey was clear. Ona secondary survey she had a tender anterioinferior sternum and a tender L knee, particularly around the tibial tuberosity. There was associated bruising, swelling and small graze…”
   The treatments were: regular Panadol, ibuprofen and follow up with GP.

5. ED notes showed that CGS was 15, no cervical tenderness, full range of motion, cleared. There was tender over lower sternum, but no rib tenderness bilaterally; “… tender over L knee, small abrasion, bruised and swollen over tibial tuberosity, nil patella tenderness, nil joint line tenderness…”.

6. Regarding the ED notes the Panel noted that there was no mention of right shoulder injury, brain or head injury, and no LOC.

7. In an ED discharge referral of Liverpool Hospital (Document AD2, p.92), dated 7 January 2018 (more than one year prior to the subject MVA), it was stated that the claimant present to the hospital complaining of left sided numbness. Mother passed away two days prior. Physical examination was normal. CT Brain was normal. Impression was left sided patchy sensory, and discussed with neurologist, offering hospital admission for further investigation, but claimant declined. Referred to GP for MRI brain and neurology outpatient follow up.

8. In a “Patient Health Summary” printed on 29 July 2020, apparently the clinical notes of “The Valley Plaza Medical Centre”, the first entry was recorded by Dr Marwan Toma, dated
   16 May 2016. In an entry dated 30 August 2017 Dr Michael Sorani reported fever, headache, achy body, vomiting.

9. In an entry dated 21 May 2019 (a week after the subject MVA), Dr Kim Ong stated,

   “… walking better today. has aches on anterior chest and back pain too aches. main aches on thoracic back, mild lumbar and neck. had left knee xr at hosp. for spinal xr…”

10. In an entry dated 24 May 2019, Dr Ong stated,

    “… ongoing spinal aches esp thoracic, ant chest and left leg. no calf tenderness left tenderess anteriorly. works with children, social worker, drives and help domestic chores too. for physio….”

11. The Panel noted that there was no mention of shoulders injuries, or head/brain injuries.

12. In an entry dated 15 January 2020, Dr Sorani stated,

    “… Sinus congestion… on going right shoulder pain since her accident. No localised tenderness, movements of shoulder is tender above 90 degrees abduction, internal and external rotations…”

13. The Panel notes that this was the first time right shoulder pain was mentioned in the GP notes, seven months after the subject MVA.

14. In the next entry dated 1 April 2020, Dr Sorani requested an ultrasound shoulder because of ongoing pain in right shoulder and “… tender in >90 abduction with internal and external rotation…”.

15. The last entry was dated 22 July 2020 by Dr Sorani for anxiety attacks and sleeping problem.

16. In a “Patient Health Summary”, clinical notes of Hurstville City Medical Centre, printed on
    14 August 2020, the first entry was recorded by Dr Steven Zhang, dated 15 August 2019, who stated that, “… car accident 6 or 7 weeks ago on 15/5/2019…. Was admitted to Nepean hospital? Still feel chest pain. Left leg pain and want to see cardiologist…”.

17. In an entry dated 27 August 2019, Dr Zhang stated that,

    “… did physio yesterday and got cream. Want to change the document the date of the workcover. Advised that could not change due to legal issue. Still have chest and back pain and leg pain… Intermittent palpitation will see a cardiologist this week or next week…”

18. The claimant continued to see the clinic regularly, mainly for chest pain and depression. She might also see another GP of the same clinic, such as Dr Henry Tang.

19. In an entry dated 7 February 2020, Dr Tang stated,

    “… Anxious, mood swing, still on Avanza 30 mg, worried about not being able to work, crying,… not coping at home with 4 kids, pain bit better… but poor memory missed appt…”

20. In an entry dated 8 May 2020, Dr Tang stated,

    “… dizziness, call ambulance bp 160, did not go to ED, stopped cerebrex, nil further dizziness… right should pain unable to do phyio much, physio trying massage…. Mention pt very tense muscle, mood low…”

21. The last medical entry was 17 July 2020, Dr Tang, who stated,

    “… Doppler right leg veins … nil DVT… pt applying stocking…. Reports forgetfulness, anxiety, tiredness and insomnia and forgetfulness can be from depression or mirtazapine…”

22. The Panel has reviewed multiple Certificates of Capacity.

23. There are multiple reports from the psychologist, Deborah Martin-Smith. In a report dated
    26 April 2020 (document AD2, p.331), she said she saw the claimant as referred by Dr Tang. She has treated the post-traumatic stress disorder with EMDR. She mentioned, “… unfortunately Belinda has started suffering from sleep paralysis and this has increased old sleep issues …”.

24. In a report dated 26 September 2019, Ms Martin-Smith said the claimant has severe post-traumatic stress disorder. She would treat the claimant with CBT and EMDR.

25. The Panel has also reviewed multiple Allied Health Recovery Request (AHHR), mainly from the treating psychologist.

26. In a medico-legal report dated 20 October 2020, requested by the claimant’s solicitor,
    Dr Uthum Dias, an occupational physician, stated that he examined the claimant on the day. In another report of the same date, Dr Dias assessed DRE II for cervical spine because of muscular guarding and dysmetria, DRE I for thoracic spine, and DRE II for lumbar spine because of muscular guarding and dysmetria. He assessed 7% WPI for right shoulder (using ROM method) and 2% WPI for left knee because of crepitation. There was no WPI for the chest injury.

27. In a medico-legal report dated 3 March 2021, Dr Todd Gothelf, an orthopaedic surgeon, requested by the insurer, stated that he examined the claimant on 26 February 2021. He noted inconsistencies with the physical exam and documentation. The physiotherapist, Debra Cush, 17 November 2020 indicated the claimant had quite a good range of movement in the right shoulder, but she showed poor range of motion of the right shoulder. The persistence of symptoms 2 years after the subject accident could not be explained by any available evidence. He assessed no impairment for the chest wall, left knee and leg, and cervical spine (DRE I). He assessed right shoulder impairment to be 4% WPI after contralateral joint deduction.

28. In a medico-legal report dated 19 March 2021, Dr Graham George, a psychiatrist, requested by the insurer, stated that he examined the claimant on 8 March 2021. The diagnosis was post-traumatic stress disorder, mild to moderate degree. He stated that, “… Her thought form was normal and did not exhibit psychotic phenomena. Her cognitions were intact…”. He assessed 0% WPI.

29. In a medico-legal report, dated 2 February 2022, Dr Abdal Khan, a psychiatrist, requested by the claimant solicitor, stated he examined the claimant on 1 February 2022. He diagnosed post-traumatic stress disorder and major depressive disorder, and assessed 22% WPI.

30. There were several “Allied health recovery request” (AHHR) by physiotherapist.

Summary of other relevant documentation

1. In a Personal Injury Commission certificate dated 27 February 2022, Medical Assessor Cameron stated that he examined the claimant on 15 February 2022. He assessed that the “Chest and Stomach - soft tissue injury” and “Head-soft tissue injury” have resolved and do not result in permanent impairment. He assessed that “left knee – soft tissue injury” has 2% WPI using the footnote to Table 62, page 83, AMA 4 Guides, as there was direct trauma to the knee, patellofemoral pain and crepitation. Cervical spine, thoracic spine and lumbar spine injuries are all classified as DRE 1, with 0% WPI. He did not mention he did assess any brain injury, although the list of injuries referred to him included, “… Head – Brain Injury/ soft tissue injuries, severe headaches …”. He assessed that, “Shoulder - Upper right extremity (right shoulder), soft tissue injuries, musculoskeletal injuries, bursitis, tendinopathy, impingement” were not caused by the motor accident,

   “… there is no evidence that a specific injury occurred to the right shoulder. The presence of pain in a body region is not necessarily an indication of an injury to that body region…”.

2. He reported that,

   “… at the cervical spine there was markedly and symmetrically reduced range of motion (to 40% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative…”.

   He reported similar findings for thoracic spine and lumbar spine (both reduced symmetrically 50% normal).

3. He also stated that, “Ms Gad was inconsistent in movement of her shoulders. She said that pain in the shoulders prevented her moving them further…”. He reported that,

   “…the maximum observed movements at both shoulders were abduction 45 degrees, adduction 30 degrees, flexion 45 degrees, extension 30 degrees, external rotation 70 degrees, internal rotation 70 degrees…”

   He reported crepitus on moving left knee.

4. In an ED discharge referral of Fairfield Hospital, dated 4 October 2011, it was stated that the claimant presented to ED following a fall from a ladder about 1.5m high, landing on her back. She complained of headache, neck pain and laceration on occipital area. Physical exam was normal and suturing was done. After X-ray cervical spine, CT brain and X-ray chest, she was discharged home with amoxicillin.

CONCLUSIONS

Diagnosis and Causation

Head injury/Brain injury

1. There is no evidence of a significant head injury: there is no documented loss of consciousness, no documented post-traumatic amnesia, and no evidence of brain imaging abnormalities. There is no evidence of retrograde amnesia or anterograde amnesia. Mental status screening tests do not show objective signs of cognitive impairment, memory impairment or executive function impairment.

2. There is no documented or clinical evidence of concussion or post-concussion syndrome. Brain injury or head injury were not mentioned in the GP notes.

3. Therefore, there is no evidence of brain injury.

4. Furthermore, the pre-requisite criteria of assessment of mental status impairment and emotional and behavioural impairment have not been satisfied: there is no evidence of a significant impact to the head or a cerebral insult, and there is no medically verified abnormalities such as abnormal initial post-injury Glasgow Coma Scale score, or post traumatic amnesia, or brain imaging abnormality.

1. However, it is possible that she might have soft tissue injury of the head, but it is not documented. Therefore the Panel accept there might be head soft tissue injury but clinically it has all resolved.

Cervical spine injury

1. There is no evidence of cervical radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 8.2: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

2. There is also no evidence of non-verifiable radicular complaint.

3. There is no muscle spasm, guarding or wasting.

4. Although there was significant inconsistency in active movements of cervical spine, and there may be some restriction in movement of cervical spine, clinically there was no asymmetrical restriction (dysmetria).

5. However, considering the history and complaint, it is possible there was soft tissue injury to cervical spine. However clinically there is no evidence of nerve impingement, disc injuries or musculoskeletal injury. “Multi-level degenerative endplate bony spurring” is a radiological description and is not significant in DRE classification.

6. Therefore, the Panel assessed the cervical spine is DRE I, corresponding to 0% WPI.

Thoracic spine injury

1. There is no evidence of any injury to thoracic spine sustained in the subject MVA. Examination of the thoracic spine was normal. There is no evidence of fracture, radiculopathy or bony lesion.

2. Considering the circumstances of the accident, it is possible there was soft tissue injury to the thoracic spine, although it is not documented. There is no evidence of other musculoskeletal injuries. Active movements of thoracic spine are normal. There was no muscle spasm or guarding. There was no non verifiable radicular symptoms, and no dysmetria.

3. Therefore, the Panel assessed the thoracic spine is DRE I, corresponding to 0% WPI.

Lumbar spine injury

1. There is no evidence of lumbar radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 8.2: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. There is also no evidence of non-verifiable radicular complaint.

2. However, considering the history and complaint, it is possible there was soft tissue injury to lumbar spine, but it is not relevant in WPI assessment.

3. Although there was significant inconsistency in active movements of lumbar spine, and there may be some restriction in movements of cervical spine, clinically there was no asymmetrical restriction (dysmetria).

4. Therefore, the Panel assessed the lumbar spine injury as DRE I (0% WPI).

Right shoulder injury

1. Considering the circumstances of the accident, it may be possible that the claimant sustained some soft tissue injury to the shoulder. However, it is not documented in Ambulance record, ED notes and transferral and GP notes (until seven months after the subject MVA, by  Dr Sorani).

2. Furthermore the physical findings of both shoulders are inconsistent, between the observations not in formal examination and the findings in formal examination, and between different examiners. Ultrasound right shoulder only shows some tendinosis of supraspinatus, subdeltoid / subacromial bursitis but no rotator cuff tear. There is no scan for left shoulder to compare. The Panel also observed that the left shoulder, which was not complained also shows similar restriction in movement (although both ROMs are inconsistent).

3. Therefore, the Panel assess that there is no evidence of right shoulder injury sustained in the subject MVA. Even if the Panel assessed the right shoulder injury using ROM, considering contralateral deduction, it would be 0% WPI.

4. In reaching its conclusions about the causation of the claimant’s right shoulder injury the Panel has carefully considered and applied the definition of causation of injury under Part 6 of the Guidelines and also the court decisions referred to earlier in these reasons. The Panel could not find any persuasive evidence enabling it to make a finding that the subject motor vehicle accident materially contributed to the claimant’s right shoulder injury or exacerbated any such injury.

Left knee injury

1. Considering the circumstances of the accident, the history given by the claimant and the ED finding, the Panel assessed that the claimant sustained soft tissue injury to the left knee in subject MVA. However clinically, on examination the soft tissue injury has subsided. Movements of the knees are normal. Some examiners, including Medical Assessor Cameron found crepitus on moving the knee, therefore assessed 2% WPI. However Medical Assessor Wan, the examining Panel member, could only find clicks in the left knee, with no crepitus, and full ROM, with no evidence of ligaments or menisci injury. Therefore the left knee impairment is 0% WPI.

Chest – soft tissue injury

1. There is no stomach soft tissue injury.

2. The soft tissue injury of the chest wall was from the airbag, which clinically has subsided, with no permanent impairment. There is no fractures or displaced bones.

Chart - summary WPI

1. The Panel provides the following chart as a summary of the assessment of WPI:

Body Part or System	AMA 4 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	Table 73, page 110, AMA 4	Yes	0	0	0
2	Thoracic spine	Table 74, page 111, AMA 4	Yes	0	0	0
3	Lumbar spine	Table 72, page 110, AMA 4	Yes	0	0	0
4	Left knee	Table 62, page 83, AMA 4	Yes	0	0	0

CONCLUSION

1. The Panel revokes the certificate of Medical Assessor Ian Cameron dated 27 February 2022.

2. The Panel is satisfied that the following injuries were caused by the motor accident and give rise to a permanent impairment which is not greater than 10%:

   (a)   cervical spine DRE category I - 0%, soft tissue injury;

   (b)   chest, soft tissue injury 0%;

   (c)   thoracic spine DRE category I - 0%, soft tissue injury;

   (d)   lumbar spine DRE category I - 0%, soft tissue injury, and

   (e)   left knee, soft tissue injury 0%.

3. The Panel is satisfied that the following reported injuries were not caused by the motor accident:

   (a)   head and brain;

   (b)   right shoulder, and

   (c)   stomach.