Georgoudis v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 26
•13 January 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Georgoudis v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 26 |
CLAIMANT: | Poppy Georgoudis |
INSURER: | Insurance Australia Limited t/as NRMA |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Michael Couch |
DATE OF DECISION: | 13 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute as to permanent impairment; claimant the driver of a stationary vehicle struck in the rear; insurer denied statutory benefits beyond 26 weeks on the basis that all injuries are threshold; Medical Assessor Herald found 9% whole person impairment (WPI) for injuries to cervical spine, lumbar spine and left shoulder (range of motion); Review Panel found no dysmetria present in cervical spine at time of examination; Review Panel assessed left shoulder by analogy because of inconsistencies; Review Panel finds 2% WPI for the left shoulder; no matters of principle; certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the certificate dated 30 April 2024 and issues a new certificate determining that: (a) The following injuries caused by the motor accident give rise to a permanent impairment of 2% and is not greater than 10%: · Cervical spine: neck injury · Lumbar spine: lower back injury · Shoulder: left shoulder injury |
STATEMENT OF REASONS
INTRODUCTION
On 15 June 2022, Poppy Georgoudis (the claimant) was the unaccompanied seat-belted driver of an Audi sedan which was stationary on Lyons Road, Drummoyne, when it was struck from behind by the insured sedan. There was no secondary forward collision. The claimant’s vehicle sustained rear-end damage and subsequently was towed from the scene. The claimant recalls that she experienced early symptoms of shock. The claimant was able to alight from her vehicle and sit on the footpath. She exchanged details with the other driver. The claimant declined transfer by ambulance officers and was taken home by a friend. The claimant attended her local medical officer the next day complaining of neck pain and left shoulder pain. The claimant reported an increase in the severity of pre-accident back pain following the subject accident.
The insurer indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory compensation benefits under the Motor Accident Injuries Act 2017 (the Act).
The insurer denied liability to pay statutory benefits beyond 26 weeks on the basis that all of the claimant’s alleged injuries relevantly are threshold injuries for the purposes of the Act. The insurer maintains that the claimant has long-standing pre-existing pain in the neck, back and shoulders that would have been expected to return to their prior status within three months of the accident. The insurer notes pre-existing medical conditions affecting the claimant’s neck and lower back.
ASSESSMENT UNDER REVIEW
As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, the following injuries were referred by the Commission to Medical Assessor Alan Home for assessment:
· Cervical spine – neck injury
· Lumbar spine – lower back injury
· Shoulder – left shoulder injury
Medical Assessor Home certified on 30 April 2024 as follows:
“The following injuries caused by the motor accident give rise to a permanent impairment of 9% WPI and IS NOT GREATER THAN 10%:
·Cervical spine – soft tissue injury
·Lumbar spine – soft tissue injury
·Left shoulder – soft tissue injury
·Underlaying osteoarthrosis in the AC joint”
Medical Assessor Home found 0% whole person impairment (WPI) for the cervical spine, 5% WPI for the lumbar spine, and 4% WPI for the left shoulder, after allowing for mild constitutional stiffness in the right shoulder. He made no allowance for pre-existing/subsequent impairment nor treatment effects.
THE REVIEW
The claimant sought a review of Medical Assessor Home’s certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the Act, in a material respect. The claimant brought the application within the time prescribed by s 7.26(10)(a) of the Act and
cl 34 of Procedure Direction PIC 7 (28 days).The claimant submits that the Assessor made a material error in interpreting the X-ray dated 17 June 2022 for the cervical spine. It is said that the X-ray reveals that “there is multi-level protrusion of calcified disc with compression of anterior thecal sac” which are signs of radiculopathy. It is also submitted that the X-ray shows “narrowing of C6/C7/T1 intervertebral foramina abutting the existing C7/C8 nerve roots” and that the claimant reports occasional paraesthesia in the middle finger of the left hand which, it is submitted, are signs of radiculopathy.
The claimant also submits that the Medical Assessor made a material error in not properly assessing her lumbar spine. Upon presentation, the claimant was wearing a CAM boot, as the result of twisting her right ankle one week prior to the assessment, causing a fibula fracture. The claimant notes that the Medical Assessor was unable to assess right leg raising due to the claimant’s wearing a CAM boot. It is submitted that the failure to assess right leg raising necessarily means that the presence of radiculopathy could not properly be determined.
The claimant’s review application was opposed by the insurer on various grounds. It is not necessary to deal with those submissions in detail as they were not accepted by the President’s delegate. Briefly, the insurer challenged the claimant’s assertion that the straight leg raising test must be completed, noting that the medical assessor must use the entire gamut of clinical skill and judgment. The insurer submitted that, by the claimant’s own account, there has been no reported radiculopathy symptoms. In relation to the cervical spine, the insurer submitted that the Medical Assessor did nor err in his interpretation of the imaging before him. The insurer also noted that imaging results alone are insufficient to qualify for a DRE category. The insurer submitted that the clinical examination of the cervical spine demonstrated no radiculopathy.
President’s delegate Rachael Brittliff issued a Determination of an Application for Review of a Medical Assessment on 6 July 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was that Medical Assessor Home was unable to test three of the five signs of radiculopathy in the claimant’s right leg.
Accordingly, the review application was accepted and was referred to the Review Panel, which is to re-assess all of the injuries referred to Medical Assessor Home.
OTHER ASSESSMENT
The claimant was seen by Medical Assessor Yu Tang Shen who certified on 8 May 2024 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 10% and is not greater than 10%:
· Post-Traumatic Stress Disorder
Medical Assessor Shen found 9% WPI using the psychiatric impairment rating scale (PIRS) to which he added 2% for treatment effects and deducted 1% for Pre-Existing Persistent Depressive Disorder. The Review Panel does not know if Medical Assessor Shen’s certificate is the subject of a separate review.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Motor Accident Injuries Act 2017 (the Act). The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (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.[1]
[1] Section 41(2) of the PIC Act.
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.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
PERMANENT IMPAIRMENT ASSESSMENT
Permanent impairment is to be assessed in accordance with Part 6 of the Motor Accident Guidelines (the Guidelines) which are largely based on the American Medical Association’s Guide to the Evaluation of permanent impairment, 4th Edition. (AMA 4 Guides). These guidelines apply to motor accidents occurring after 30 November 2017 and are definitive with regard to the matters they address. Where they are silent on an issue; the AMA 4 Guides are to be followed.
Due to the nature of the injuries sustained by the claimant, Chapter III of the AMA 4 Guides is relevant when assessing his musculoskeletal system.
DISPUTE RESOLUTION
There is a dispute about the degree of the claimant’s impairment, damages for non-economic loss cannot be awarded and disputes must be refer to a Medical Assessor for determination.[4]
[4] Section 4.12 of the Act
Part 7 Division 7.5 of the Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment and the review of medical assessments by this Panel.
CAUSATION OF INJURY
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factored could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factored did caused or contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
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 Briggs v IAG Limited t/as NRMA Limited.[5] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956[6], his Honour Justice Wright stated at (35):
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.
[5] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372
[6] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956
Wright J then described the Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination;
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a) Claimant’s review submissions dated 13 May 2024 (previously summarised).
(b) Report dated 17 June 2022 by Dr Zaden of CT Cervical Spine without contrast, X-ray left shoulder and X-ray chest.
FINDINGS
CT cervical spine:
There is degenerative changes in cervical spine with osteophytosis in anterior vertebral body and prominence uncovertebral joints. No compression fracture or spondylolisthesis. There is no flexion or extension avulsion fracture.
Posterior Arc are intact. No fracture in the spinus or transfers process. There is no pre-vertebral or epidural collection. Aerodigestive tract is patent. There is multiple protrusion of calcified disc with compression of anterior decal sac. There is narrowing of left C6/C7 and C7/T1 intervertebral foramina abutting the existing left C7 and C8 nerve roots.
X-ray chest:
In cardio mediastinal silhouette is normal in size. Trachea is mid line. No pulmonary condution or laceration. There is no pneumothorax or left pleural effusion. Blanting of right costophrenic angle likely due to a small right pleural effusion. No acute boney abnormalities.
X-ray left shoulder:
There is osteoarthritis in the AC joint. Left humeral head is in place. No fracture or dislocation. Glenohumeral joint is unremarkable.
COMMENT
No fracture or dislocation in cervical spine, chest or left shoulder. Significant osteoarthritis in cervical spine with impingement of left C7 and C8 nerve roots.
(c) Certificate and Reasons of Medical Assessor Alan Home dated 30 April 2024 (previously summarised).
(d) Certificate of Capacity/Fitness dated 16 June 2022 by Dr Gialluss.
(e) Allied Health Recovery request by Charles Tzannes, physiotherapist (8 standard consultations).
The insurer relied upon the following material which the Review Panel has considered:
(a) Insurer’s reply submissions dated 29 May 2024 (previously summarised).
(b) Insurer’s submissions dated 25 October 2023 in relation to claimant’s application for determination of whole person impairment.
The insurer briefly summarised the medical evidence and noted that:
·the insurer obtained medico-legal evidence from Dr Andrew Keller whose report is dated 11 September 2023. Dr Keller considered the claimant to have temporarily exacerbated her long-standing pre-existing pain in her neck, back and shoulders that would have been expected to have returned to its prior status in less than 3 months from the date of the subject accident. Dr Keller assessed 0% whole person impairment arising from the claimant’s accident-related injuries;
·the claimant had no treatment other than physiotherapy and was not referred to any specialist for treatment of her physical injuries;
·the insurer briefly summarised the claimant’s pre-existing medical conditions which involved the neck and lower back as well as a prior psychiatric condition. The claimant was involved in an earlier motor accident on 25 May 2019 causing injury to her neck, back, both arms and right shoulder, as well as headaches.
(c) Clinical records of Dr James Giallusi.
(d) Report dated 12 October 2022 by Charles Tzannes, physiotherapist.
Mr Tzannes states that the claimant suffered injury to her lower back and left shoulder in the subject accident. He also reports that the claimant suffered injury to her neck and thoracolumbar/lumbar region in 2019 in a prior motor accident. The treatment provided by Mr Tzannes was aimed at increasing range of movement and functional capacity of the left shoulder and lower back. He considered the claimant’s need for domestic assistance.
(e) Further report dated 2 November 2022 by Mr Tzannes.
This report was confined to the claimant’s need for further treatment.
(f) Report dated 2 December 2019 from Dr James Giallussi to the claimant’s lawyer.
This report deals with the injuries suffered by the claimant in her prior motor accident. The claimant was seen by Dr Giallussi on 5 separate occasions. He reports that the claimant sustained injuries to her right shoulder, neck and lower back. He prescribed Neurophen and Panadeine Forte for pain control and referred the claimant to Dr Andreas Loffler, orthopaedic specialist.
(g) Report dated 11 September 2023 by Dr Andrew Keller, occupational physician, to the insurer.
“On examination today, there was reported pain on neck, shoulder and lower back movement. She appeared however to have a full symmetrical range of motion of the cervical spine, thoracolumbar spine and minor restriction of flexion in the shoulders consistent with age related degeneration. There were no signs of radiculopathy. In my opinion, the subject accident may temporarily have exacerbate her long-standing pre-existing pain in her neck, back and shoulders. With regard to the accident of May 2019, it appears she suffered aggravation of cervical and lumbar degenerative changes and aggravation of pain in both shoulders. With regard to the accident in June 2022, it is plausible that she suffered a temporary exacerbation of the pre-existing pains that would be expected to have returned to the prior status in less than 3 months from the time of the subject accident.
In my opinion, all of the injuries are minor injuries with regard to the June 2022 injury. There is no evidence for significant bone, joint or nerve injuries and they do not meet the definition for non-minor complaints.”
Dr Keller assessed 0% whole person impairment.
(h) Report dated 17 June 2022 by Dr Zaden (previously summarised).
EXAMINATION REPORT
The report of Medical Assessor Shane Moloney is as follows:
“Poppy Georgoudis
MVA 15 June 2022
Ms Georgoudis attended the medical suites at PIC on 13 November 2024. She was unaccompanied.
Pre-accident history
Ms Georgoudis stated that she was in good health prior to the accident and was unemployed at that time. She is single and lives alone in a home unit and has a 51-year-old daughter. She states that she had bipolar but stable. Due to ischaemic heart disease, cardiac stents were inserted 10 years ago and re-done 2 years ago. She was unsure about an accident in 2019 with possible neck and low back injuries. She is a vague historian.
History of motor accident
Ms Georgoudis was driving her car, Audi A l, she was wearing a seatbelt at the time and sustained a rear end collision with no secondary hit. Airbags were not deployed. She was able to get out of the car and states that she was in shock and hyperventilating. The ambulance officer assessed her and she was collected by a friend and driven home.
History of subsequent treatment
Ms Georgoudis consulted her GP the next day and he arranged CT scans of her neck, left shoulder and chest. She states at that time she had neck pain, low back pain, stiffness in the left shoulder and soreness in the arms more so on the left. She was referred for physiotherapy which gave some initial benefit and also acupuncture and cupping with some help. Due to low back pain her GP arranged a cortisone injection which was also beneficial.
Further injuries
Mr Georgoudis was involved in the motor vehicle accident in July 2024 with another rear end collision. She consulted her GP with increasing neck and back pain and pain on abduction of the shoulders. She has also had a recent trip to Greece.
Current symptoms
At present, there is low back pain on the left which radiates into the left buttock region down to the mid-thigh level. She had soreness in the left side of the neck and shoulders. The shoulder pain increases with abduction. There is a feeling of stiffness in the hands and she gets numbness in the fingers at night which wakes her and gets relieved by shaking a stretching the arms.
She has no trouble driving and walk short distances and does most of the house work but gets extra help from her daughter her daughter does most of the cooking. Ms Georgoudis is now on the age pension.
Current medication
Ms Georgoudis takes paracetamol most days.
Clinical examination
Ms Georgoudis walked into the rooms with a normal gait and sat comfortably during the interview. She stated she is right-handed. The height was 155 cm and weight 65.5 kg.
Cervical spine
On inspection there was a normal contour and on testing flexion/extension, side bending and rotation there was a symmetrical movement of 80% of expected range with no dysmetria. On palpation, there was tenderness in the lower cervical and upper thoracic spines but no guarding or spasm was noted in the cervical musculature.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the upper arms 27 cm bilaterally (10 cm above the olecranon process) and in the upper forearm 24 cm bilaterally (5 cm below the olecranon process).
On testing for a carpal tunnel syndrome, Phalen’s and Tinel’s test were negative in both wrist joints.
Shoulders
On inspection of the shoulders no muscle wasting was apparent. Active movements were measured using a goniometer and repeated 3 times. On passive movement, no crepitus was detected in either shoulder. She states that the decreased range of active movement of the shoulders was due to pain in the lumbar region and occasionally anterior shoulder but no referral of pain from the cervical spine. Impingement tests were negative.
I asked Ms Georgoudis about the variability in shoulder range of movement and she stated she was unsure why. I explained that due to this variability at the time of my examination and in comparison, to previous examinations that range of movement would not be used to assess impairment. I stated that other methods would need to be used. She stated that she understood this.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 100°/110°/140° | 100°/140° |
| Extension | 40° | 40° |
| Adduction | 40° | 40° |
| Abduction | 90°/110° | 90° |
| Internal Rotation | 90° | 80° |
| External Rotation | 90° | 90° |
Lumbar spine
Ms Georgoudis walked with a normal gait and was able to walk on heels and toes and squat normally. On testing range of movement flexion/extension was 80% of expected range and side bending and rotation was 70% of expected range bilaterally with no dysmetria. Straight leg raise when lying was 70° bilaterally with negative sciatic nerve root tension signs. There was a full pain free range of movement of the knees and hips.
On palpation there was tenderness over the mid lumbar spines but no guarding or spasm was noted in lumbar musculature.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the lower thighs 42 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 32 cm bilaterally.
No radiological studies were available for inspection.
Causation and WPI
Cervical spine
There was documentation that Ms Georgoudis sustained a soft tissue injury to cervical spine at the time of the accident. This was documented by her treating GP and investigated with a CT scan. The Panel has determined that this injury was caused by the accident. The scan dated 17 June 2022 reported osteoarthritic changes that are not acute and not related to the subject accident. This gives a classification DRE l which is 0% WPI. This was because there was no dysmetria on testing range of movement, no guarding or spasm on palpation and no signs of radiculopathy or non-verifiable radicular complaints in the upper limbs. Assessor Home came to the same conclusion.
Lumbar spine
It was also a documented by the treating GP that Ms Georgoudis had low back pain after the accident and he later treated this with a cortisone injection. The Panel accepts that she sustained a soft tissue injury to the lumbar spine in the subject accident. This has a classification DRE l which is 0% WPI. There was no dysmetria on testing range of movement, no guarding on palpation and no signs of radiculopathy or non-verifiable radicular complaints in the lower limbs. Assessor Home recorded dysmetria at the time of his examination of the lumbar spine but this was not apparent at the time of my examination.
Shoulders
There was documentation by the treating GP that Ms Georgoudis had left shoulder pain immediately after the accident which investigated with a CT scan. There was a history of left shoulder pain after a motor vehicle accident in 2019 but no evidence of any apparent impairment at the time of this accident. The physiotherapist also treated her left shoulder and left trapezius muscle spasm within 2 months of the accident.
The shoulder would normally be assessed using range of movement but due to inconsistency at the time of my examination and in comparison, to previous examinations, this is not valid means of assessment. This is in consideration of MAA guidelines 6.40 and 6.41. An appropriate method would be by analogy. Using table 18 of AMA 4th edition, the acromioclavicular joint is 15 % WPI. Mild crepitation is 10% of joint impairment using table 19. 10% of 15 % is 1.5 % which is rounded up to 2 % WPI. This is an appropriate analogy as an x-ray of the left shoulder in 2022 reported osteoarthritis of the AC joint.
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical spine | AMA table 73 | Yes | 0% | 0% | 0% |
| 2 | Lumbar spine | AMA table 72 | Yes | 0% | 0% | 0% |
| 3 | Left shoulder | MAA guidelines, 6.40 and 6.41, AMA table 18, 19 | Yes | 2 % | 0% | 2 % |
* %WPI = percentage whole person impairment
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[7] The Review Panel adopts the examination findings and reasons of Medical Assessor Moloney with which Medical Assessor Couch concurs. The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[8]
[7] Section 7.26(6) of the Act
[8] Insurance Australia Group Limited v Keen [2021] NSWCA 287
The Medical Assessors have explained the basis of their assessment and why they have come to a different conclusion to that of Medical Assessor Home. Dysmetria was not apparent at the time of Medical Assessor Moloney’s examination of the claimant. Medical Assessor Home used the range of movement method to assess impairment of the left shoulder. Medical Assessor Moloney assessed impairment by analogy due to inconsistencies as stated in the examination report. The assessment of whole person impairment has been made on clinical grounds, not on the basis of radiological studies.
CONCLUSION
For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor Home on 30 April 2024 should be revoked. The new certificate appears at the commencement of these reasons.
0
3
0