Ghanim v Allianz Australia Insurance Limited
[2025] NSWPICMP 166
•14 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Ghanim v Allianz Australia Insurance Limited [2025] NSWPICMP 166 |
CLAIMANT: | Kitba Ghanim |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Sophia Lahz |
DATE OF DECISION: | 14 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment dispute; claimant was a passenger in a vehicle driven by a NDIS support worker; insured vehicle did not obey a traffic signal and struck the claimant’s vehicle on the left side; airbags did not deploy; ambulance and police officers attended; claimant was taken to Liverpool Hospital where she remained for four days; fractured right-sided ribs were diagnosed; insurer did not agree that the claimant’s permanent impairment exceeded the 10% whole person impairment (WPI) threshold; Medical Assessor (MA) assessed 2% WPI for the left shoulder and 2% WPI for the right shoulder; 0% WPI for various other soft tissue injuries; MA found that injuries to the lung, hip, and pelvis were not caused by the accident; Review Panel made the same findings; Held – Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the Certificate of Medical Assessor Ian Cameron dated |
STATEMENT OF REASONS
INTRODUCTION
On 11 May 2021, Kitba Ghanim (the claimant) was a seat-belted front seat passenger in a vehicle driven by a NDIS support worker on the way to physiotherapy. As the vehicle passed through an intersection at Liverpool, the insured vehicle did not obey a traffic signal and struck the claimant’s vehicle on the left side. Airbags did not deploy. Ambulance and Police Officers attended. The claimant was taken to Liverpool Hospital where she remained for four days. Fractured right-sided ribs were diagnosed. The claimant says that she suffered multiple injuries in the accident.
The claimant has a significant pre-accident medical history including chronic lung disease, osteoarthritis, congenital hip problems and long-standing shoulder problems, for which the claimant was to undergo surgery.
The insurer indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages under the Motor Accident Injuries Act 2017 (the Act). The insurer did not agree that the claimant’s permanent impairment exceeded the 10% whole person impairment (WPI) threshold.
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 claimant was referred for assessment by Medical Assessor Cameron, who certified on 21 June 2024 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 4% and IS NOT GREATER THAN 10%:
· Head – soft tissue injury
· Cervical spine – soft tissue injury
· Lumbar spine – soft tissue injury
· Right shoulder – soft tissue injury
· Left shoulder – soft tissue injury
· Chest – rib fractures
· Right knee – soft tissue injury
· Right foot – soft tissue injury
· Right ankle – soft tissue injury
The following injuries referred to me for assessment have been assessed and determined to be not caused by the motor accident:
· Lung – fracture to the ribs causing breathing difficulties
· Hip – soft tissue injury/aspherical configuration to the femoral heads with a pistol-grip deformity which may reflect a femoral acetabular dysplasia and a loss of joint space centrally in both hips suggestive of a chondral developing osteoarthrosis
· Pelvis – soft tissue injury/a spherical
AN ASSESSMENT OF THE DEGREE OF PERMANENT IMPAIRMENT OF THESE INJURIES IS THEREFORE NOT REQUIRED.
Medical Assessor Cameron found 2% WPI arising from soft tissue injury to the right shoulder and 2% WPI arising from soft tissue injury to the left shoulder. He made no adjustment for pre-existing/subsequent impairments, apportionment and treatment effects.
OTHER ASSESSMENTS
Medical Assessor Christopher Canaris certified on 3 July 2024 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 5% AND IS NOT GREATER THAN 10%:
· Aggravation of persistent depressive disorder (dysthymia) with anxious distress
Medical Assessor Canaris utilised the psychiatric impairment rating scale (PIRS) to determine that the claimant had 1% pre-existing impairment for which he made an apportionment. He made no adjustment for treatment effects as there was no evidence that treatment had made any difference to the claimant’s level of impairment.
THE REVIEW
The claimant sought a review of Medical Assessor Cameron’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 Procedural Direction PIC 7 (28 days).
The grounds of appeal in relation to Medical Assessor Cameron’s certificate, upon which the claimant relied, were as follows:
(a) Medical Assessor Cameron failed to take accurate and mandated loss of range of motion measurements with the required use of a goniometer which resulted in measurements and findings substantially inconsistent with the preponderance of the evidence that was before the Medical Assessor, including the claimant’s objective radiological investigations and medical records.
(b) Medical Assessor Cameron provided inadequate reasons with respect to his speculative and unsubstantiated allegation that the claimant’s shoulder movements were “inconsistent due to pain”, noting that Dr John Bentivoglio, orthopaedic surgeon, who was commissioned jointly by both parties, had no such issues taking accurate measurements of the claimant’s bilateral shoulder range of motion deficits, as tabulated on page 4 of his report dated 14 April 2023.
(c) Medical Assessor Cameron failed to identify any pre-existing symptomatic injuries and impairment and failed to undertake the usual mandatory deduction assessments in relation to the same.
(d) Medical Assessor Cameron made causation findings which are speculative and which contradict the medical evidence.
Further submissions are made in relation to Medical Assessor Cameron’s failure to perform any of his assessment measurements regarding the claimant’s loss of range of motion with the use of an inclinometer and/or goniometer, with regard to the claimant’s spinal and limb impairments, as mandated in Chapter 3 of the AMA 4 Guides.
The claimant also submitted that Medical Assessor Cameron erred by not following the Guidelines requirement to put any material inconsistencies to the claimant.
The claimant’s review application was opposed by the insurer on various grounds as follows:
(a) The insurer submitted there is no evidence to suggest Medical Assessor Cameron did not use a goniometer to measure the claimant’s shoulder movements. It was the Medical Assessor’s decision to not rely on the measurements obtained due to observed inconsistencies.
(b) In relation to the claimant’s submission that the Medical Assessor failed to assess pre-existing impairment and provide a sufficient deduction of any impairment, the insurer submitted there is no error, where Medical Assessor Cameron has not identified any pre-existing impairment to the subject areas.
(c) The insurer submitted that the Medical Assessor has not erred in his causation determination and provided a sufficient explanation for his clinical opinion as to causation of each of the injuries before him for assessment. The insurer submitted there is no “speculation” made by the Assessor and thus no material error.
(d) The insurer submitted there is no evidence that the Medical Assessor failed to put any material inconsistencies to the claimant. The only material inconsistency throughout the examination was the varying results of the claimant’s range of motion, which was explained by the claimant as being variable due to pain on movement.
President’s delegate Stephanie Wiggan issued a Determination of an Application for Review of a Medical Assessment on 4 September 2024 which stated the satisfaction of the President’s delegate there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. It appeared to the President’s delegate that Medical Assessor Cameron had not provided a clear path of reasoning concerning his assessment of causation and of permanent impairment. The President’s delegate stated that there is no clear path in regard to how the Medical Assessor arrived at the ultimate determination in this matter.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of 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 Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
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 factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause 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,[4] see also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] 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.”
[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.
[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.
Wright J then described the Review 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 require, 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 and,
(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 submissions made to the President’s delegate dated 22 July 2024 (see previously).
(b) Claimant’s submissions for WPI dispute.
(c) Application for personal injury benefits.
(d) Liverpool Hospital discharge referral dated 11 May 2021.
(e) Ambulance report dated 11 May 2021.
(f) Clinical notes from Liverpool Doctors dated 24 June 2021.
(g) Updated clinical notes from Liverpool Doctors dated 15 September 2022.
(h) Allied Health Recovery request to physiotherapist dated 12 July 2021.
(i) Physio Goals initial report dated 14 July 2021.
(j) Physio Goals progress report dated 25 August 2021.
(k) Physio Goals assessment report dated 18 January 2022.
Claimant’s qualified medical specialist reports
(l) Report dated 6 April 2023 by Dr Ben Hooi-Beng Teoh, psychiatrist.
Dr Teoh made a diagnosis of major depressive disorder caused by the motor accident which has resulted in chronic pain, physical disability and depressive symptoms. Dr Teoh noted that the claimant has a past history of psychiatric illness and had been on anti-depressant medication. Dr Teoh assessed 15% WPI using the PIRS.
The claimant asserted that her injuries exceed the 10% WPI threshold on the basis of
Dr Teoh’s assessment. The Review Panel has not been presented with any medical evidence that the claimant’s accident-related physical injuries result in WPI exceeding the 10% threshold.The insurer relied upon the following material which the Review Panel has considered:
(a) Insurer’s submissions opposing review application (see previously).
(b) Clinical records of Liverpool Doctors.
(c) Discharge Summary of Liverpool Hospital dated 14 May 2021.
(d) Joint report of Dr John Bentivoglio, orthopaedic surgeon, dated 14 April 2023.
Dr Bentivoglio records that, as a result of the impact, the claimant sustained a head injury. She was dazed. She also sustained fractured ribs on the left side, an injury to her neck and left shoulder region. Dr Bentivoglio notes that the claimant has had problems with her cervical spine dating from 2017. There was a period just prior to the motor accident, between December 2020 and February 2021, when she was symptomatic, as noted from her local doctor’s notes. Dr Bentivoglio records that the claimant also had problems with both shoulders in the past.
Following the accident, the claimant was transported by ambulance to Liverpool Hospital, where she remained for about four days under observation for pain relief. She then consulted her local doctor who arranged investigations and physiotherapy. The claimant has not had any specific modality of treatment. She has not seen any specialist for her neck or thoracic spine complaints.
Dr Bentivoglio lists the claimant’s current medication and describes his physical examination of the neck and shoulders. He tabulates the active range of movement measured in both shoulders. He describes the available diagnostic investigations performed before and after the accident.
Under the heading DIAGNOSIS AND OPINION, Dr Bentivoglio notes that the first mention of shoulder symptoms in the local doctor’s notes was in December 2021, which Dr Bentivoglio agrees was referred symptoms from the claimant’s neck.
Dr Bentivoglio says the investigations of both shoulders indicate the claimant has a long-standing abnormality present in both shoulders. Confirmed in the local doctor’s notes dating from August 2020. Similarly, the local doctor’s notes indicate the claimant had ongoing problems with her neck dating from February 2016 and had a flare up of her neck symptoms in December 2020 up to February 2021. There was no evidence of any nerve root irritation or compression to suggest the claimant would benefit from any other modality of treatment. Dr Bentivoglio did not think that continued physiotherapy to her neck was appropriate. Dr Bentivoglio summarised the injuries caused by the accident as follows:“……. Has aggravated pre-existing abnormalities present in her cervical spine and has some degree of peripheral radiation to the interscapular region, as well as to her left shoulder.”
Dr Bentivoglio opined that all of the claimant’s current disabilities in her neck and shoulders relate to pre-existing abnormalities. He does not consider that the claimant has any impairment from the motor accident.
EXAMINATION REPORT
The report of Medical Assessor David Gorman and Medical Assessor Sophia Lahz is as follows:
REVIEW PANEL MEDICAL EXAMINATION
Assessor David Gorman and Assessor Sophia Lahz
22 January 2025 at 12 midday at the PIC Rooms, 1 Oxford St, Darlinghurst
Who attended the assessment?
Ms Ghanim was accompanied by her daughter, Mrs Hadeel Beden, and the Arabic interpreter, Ms Zahra Mourtada.
HISTORY
Pre-accident medical history and relevant personal details
Ms Ghanim is 67 years of age and is right handed.
Ms Ghanim came to Australia in 2013 and has never worked here.
Ms Ghanim is a non-smoker and does not drink alcohol.
She is a widow. She did live with her sister but now lives alone. She has five children.
She has a history of type 2 diabetes from 2014.
She has a history of chronic lung disease. She has had hypertension.
She has osteoarthritis and we understand was planned to have a right shoulder replacement from before the subject accident – her daughter confirmed that it was a right shoulder replacement that was being planned and not the left side as mentioned in Assessor Cameron’s Certificate. She also had neck and low back pain from before the subject accident she reported.
She had physiotherapy for neck and shoulder problems before the subject accident.
There is a history of congenital hip problems and feet pain.
Ms Ghanim had prior disability, as she has been in receipt of domestic, personal care and transportation services from the National Disability Insurance Scheme since 2019. They shower her and bring her food.
Her brother is also a carer and rotates care with the rest of her family.
History of the motor accident
On 11 May 2021, Ms Ghanim was a passenger in a vehicle driven by an NDIS support worker on the way to physiotherapy. A vehicle did not obey a traffic signal and hit Ms Ghanim’s vehicle from the left side. An ambulance attended and she was taken to Liverpool Hospital.
There was a fractured right 7th rib diagnosed – her chest had hit the dashboard she reported. She returned home after a four day admission.
History of symptoms and treatment following the motor accident
She saw her GP on the 19 May 2021 (4 days after discharge from hospital). The rib fracture, neck pain, low back pain was noted with pins and needles in the feet.
Ms Ghanim has had ongoing limitations and needed ongoing support from the NDIS and from her family.
Her daughter said she had long-standing right shoulder problems and was booked to have a right shoulder replacement at a city hospital. She was unsure of the name of this.
Ms Ghanim’s daughter also said that she had had memory problems for several years.
Details of any relevant injuries or conditions sustained since the motor accident
She has had a number of falls. In one fall she fractured her toes and in another she fractured a hip.
Current symptoms
Ms Ghanim pain over the left ribs still and has trouble lying on them when sleeping.
She also has low back pain which is similar to before the accident. It extends down both legs to the toes.
She has headaches and is dizzy often. She can lose balance she reported. She has fallen. She said that high blood pressure is a cause of her headaches.
She has hip pain bilaterally which she feels is worse since the accident.
She can only walk for 30-50 minutes and usually uses a walking frame. She used the walking frame before the accident as well.
She has neck pain postero-laterally on both sides.
She reported tingling and numbness in the fingers.
She describes the pain in both shoulders as worse than before the accident. The right side is worst - an operation has been planned on the left side from before the subject accident.
She has trouble sleeping because of leg pain.
She has trouble brushing her hair because of the shoulder pain.
The right knee was hit in the accident and is still painful.
She has had pain in both feet since childhood.
Current and proposed treatment
Current medications are Somac, Escitalopram, Metoprolol, Crestor, pregabalin 75mg bd, Panadol Osteo, temisartin, Nasonex and Symbicort inhaler.
She uses heat packs and a massage machine.
Ms Ghanim’s daughter visits her daily for support.
There is continuing from the National Disability Insurance Scheme.
CLINICAL EXAMINATION
General presentation
Ms Ghanim is right-handed, 149cm in height and weighs 92.9kg. This gives a BMI of 42.
She walked slowly with a walking frame.
Cervical spine
In the cervical spine flexion was 2/3 normal, extension 1/3 normal – this difference was expected as she was kyphotic with a “poke” neck.
Rotation to the right and left was 2/3 normal/ Lateral flexion to the right and left was ½ normal. There was tenderness over the mid-cervical spine and over both trapezii with no muscle spasm and no muscle guarding.
There was no dysmetria.
There were no non-verifiable radicular complaints present.
There were no neurological abnormalities in the upper extremities. No difference in circumferences of the upper extremities was detected – they were measured as 30cm in the upper arm and 27cm in the forearm.
Shoulders
There was no wasting. She was tender over the back and front of both shoulders.
On the left side she could reach the buttock but she could not reach the buttock on the right.
There was inconsistent movements that Ms Ghanim said was due to variable pain when asked. The movements were measured using a goniometer.
Shoulder movements
Right (degrees)
Left (degrees)
Flexion
90/110/90
90/110/90
Extension
40/50/40
40/50/40
Abduction
80/140/80
70/90/70
Adduction
40/50/40
30/40/30
Internal rotation (at side)
80/80/80
80/80/80
External rotation (at side)
50/60/50
50/60/50
There was a full range of motion at other upper extremity joints.
There was prominence of the MCP on both sides consistent with osteoarthritis.
Thoracic spine
There was a thoracic kyphosis. there was moderately and symmetrically reduced range of motion to 1/3 normal in all planes with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints present.
Lumbar spine
There was mild generalised tenderness over the lumbar spine.
There was symmetrically reduced range of motion (to 1/2 normal) in all planes, with her reaching the knees when flexing forward and laterally. There was no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
Nerve tension signs were negative.
No significant difference in circumferences of the lower extremities was detected – the thighs were 48cm on the right and 48.5cm on the left measured 10cm above the knee. The calves measured 35.5cm on the right and 36cm on the left measured 10cm below the tibial tubercle.
Reflexes were normal and power normal.
Straight leg raising was to 70 degrees on the right and left.
There was reduced light touch over the dorsum of the left foot and in the right calf. There was normal sensation over the soles of the feet.
Lower extremities
The hip movements were symmetrically reduced as outlined below.
Hip movements
Right (degrees)
Left (degrees)
Flexion
80
100
Extension
40
40
Adduction
30
30
Abduction
40
40
Internal rotation
20
20
External rotation
50
50
There was no knee swelling or tenderness. There was no ligamentous instability. The Ranges of motion are outlined below
Knee movements
Right (degrees)
Left (degrees)
Flexion
135
140
Extension
0
0
There was a equal range of motion at the ankle and foot on both sides.
There was severe pes planus.
Chest
She was not short of breath at rest.
The ribs were tender on the lower left side – the ribs impacted on the pelvic rim which is likely to contribute to some of the ongoing discomfort.
Comments on consistency
Ms Ghanim was inconsistent in her presentation. She said that variable pain from her shoulders prevented her from moving them more fully. Assessor Cameron and Dr Bentivoglio in their assessments found the left shoulder was much more restricted in the assessment. In the Panel assessment, both shoulders were restricted.
DETERMINATIONS
Diagnosis and reasons
In the motor vehicle crash on 11 May 2021, Ms Ghanim sustained an injury to her chest with rib fractures. She also had soft tissue injuries as outlined below:
• Head – soft tissue injury
• Cervical spine – soft tissue injury – there is no radiculopathy
• Lumbar spine – soft tissue injury – there is no radiculopathy
• Right shoulder – soft tissue injury
• Left shoulder – soft tissue injury
• Right knee - soft tissue injury
• Right foot - soft tissue injury
• Right ankle - soft tissue injury
Causation and reasons
The rib fractures and the soft tissue injuries outlined above were caused by the accident.
Summary of injuries referred by the parties
The following injuries WERE caused by the motor accident:
• Head – soft tissue injury
• Cervical spine – soft tissue injury
• Lumbar spine – soft tissue injury
• Right shoulder – soft tissue injury
• Left shoulder – soft tissue injury
• Chest – rib fractures
• Right knee - soft tissue injury
• Right foot - soft tissue injury
• Right ankle - soft tissue injury
The following injuries WERE NOT caused by the motor accident:
• Lung - injury – there is no evidence that the fractured ribs caused any lung injury
• Hip - Soft tissue injury/ aspherical configuration to the femoral heads with a pistol-grip deformity which may reflect a femoral acetabular dysplasia and a loss of joint space centrally in both hips suggestive of a chondral wear and developing osteoarthrosis.
• Pelvis - Soft tissue injury/ aspherical configuration to the femoral heads with a pistol-grip deformity which may reflect a femoral acetabular dysplasia and a loss of joint space centrally in both hips suggestive of a chondral wear and developing osteoarthrosis.
The findings in the hip and pelvis are not injuries sustained in the subject motor accident – they are congenital hip abnormalities.
PERMANENCY OF IMPAIRMENT
Statement about permanent impairment Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (p.315) as follows: “Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
As it is more than three years since the motor accident, her symptoms have not changed significantly over the last 12 months and she is not having any specific treatment, one can consider stability has been reached and impairment is permanent.
DETERMINATIONS – PERMANENT IMPAIRMENT
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
Head – soft tissue injury
The soft tissue injury to the head has resolved. The head injury is not assessable as causing permanent impairment. Ms Ghanim has had an impact to the head. However there are no recorded abnormalities in Glasgow Coma Score, no post traumatic amnesia and no brain imaging abnormalities associated with brain trauma.
Cervical spine – soft tissue injury
Ms Ghanim has some ongoing discomfort in the cervical spine consistent with DRE Cervicothoracic Category I (0% WPI). There are no symptoms or signs to justify assessment of DRE II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present and non-verifiable radicular complaints were not present. Her extension was recorded as less than flexion because of her kyphosis and “poke” neck and not because of dysmetria caused by the accident. Reflexes were within normal limits and there was no weakness or loss of sensation.
Lumbar spine – soft tissue injury
Ms Ghanim has some ongoing discomfort in the lumbar region consistent with DRE Lumbosacral Category I (0% WPI). There are no symptoms or signs to justify assessment of DRE II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present, while non-verifiable radicular complaints were not present. Reflexes were within normal limits, nerve tension signs were negative and there was no weakness or loss of sensation.
Right shoulder – soft tissue injury
Movements of this shoulder were inconsistent. In this regard the Motor Accident Guidelines, section 6.40 are noted and it is, in the judgment of the Panel, not appropriate to rely on the measured range of motion in this case. She had pre-existing pain and restriction in shoulder movement and a right shoulder replacement had been foreshadowed. The left side was the side of direct trauma but the rib fracture and trauma to the right side occurred when the claimant struck the dashboard. The accident is felt likely to be contributing to shoulder pain and restriction in range of movement. Therefore the assessment of permanent impairment is made by analogy and it is determined that the impairment would be equivalent to mild crepitation ((Section 6.24 of the Motor Accident Guidelines) and see Table 19 page 59 AMA4 Guides) at the acromioclavicular joints (see Table 18, page 58 AMA4 Guides) and therefore would be 10% of 25% UEI, which rounds to 3% UEI and converts to 2% WPI. There is no other available method of measurement by analogy applicable in this situation.
Left shoulder – soft tissue injury
Movements of this shoulder were inconsistent. In this regard the Motor Accident Guidelines, section 6.40 are noted and it is, in the judgment of the Panel, not appropriate to rely on the measured range of motion in this case. Therefore the assessment of permanent impairment is made by analogy and it is determined that the impairment would be equivalent to mild crepitation ((Section 6.24 of the Motor Accident Guidelines) and see Table 19 page 59 AMA4 Guides) at the acromioclavicular joints (see Table 18, page 58 AMA4 Guides) and therefore would be 10% of 25% UEI, which rounds to 3% UEI and converts to 2% WPI. There is no other available method of measurement by analogy applicable in this situation.
Chest – rib fractures
The rib fractures have healed and as stated in section 6.229, Motor Accident Guidelines do not result in any assessable impairment.
Right knee - soft tissue injury
The range of motion is within normal limits and there is no clinical abnormality of relevance. There is 0% WPI.
Right foot - soft tissue injury
The range of motion is within normal limits and there is no clinical abnormality of relevance. There is 0% WPI.
Right ankle- soft tissue injury
The range of motion is within normal limits and there is no clinical abnormality of relevance. There is 0% WPI.
Permanent impairment table
Permanent Impairment Table
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
Head – soft tissue injury
Nil applicable
Yes
0%
0%
0%
Cervical spine – soft tissue injury
Table 73 on page 110 AMA 4th Edition
Yes
0%
0%
0%
Lumbar spine – soft tissue injury
Table 72 on page 110 AMA 4th Edition
Yes
0%
0%
0%
Right shoulder – soft tissue injury
Chapter 3; Table 41
Yes
2%
0%
2%
Left shoulder – soft tissue injury
Nil assessable
Yes
2%
0%
2%
Chest – rib fractures
Section 6.229, Motor Accident Guidelines
Yes
0%
0%
0%
Right knee – soft tissue injury
Nil relevant
Yes
0%
0%
0%
Right foot – soft tissue injury
Nil relevant
Yes
0%
0%
0%
Right ankle – soft tissue injury
Nil relevant
Yes
0%
0%
0%
* %WPI = percentage whole person impairment
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6] The Review Panel adopts the examination findings and reasons of the Medical Assessors.
[6] Section 7.26(6) of the Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[7] The Review Panel notes the views expressed by Dr John Bentivoglio, in relation to the assessment of WPI of the left and right shoulders, with which it respectfully disagrees, for the reasons stated.
[7] Allianz Insurance Australia Group Limited v Keen [2021] NSWCA 287.
The Medical Assessors’ findings upon examination of the claimant are similar to those of Medical Assessor Ian Cameron with whom the Medical Assessors respectfully agree.
There were significant bi-lateral shoulder problems pre-accident but the exact level of impairment could not be determined. Therefore, no deduction could be made under the Motor Accident Guidelines.
CONCLUSION
For the above reasons, the Review Panel concludes that the Certificate of Medical Assessor Ian Cameron dated 21 June 2024 should be confirmed.
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