Habib v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Habib v AAI Limited t/as GIO [2024] NSWPICMP 682
CLAIMANT:	Maha Habib
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Clive Kenna
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	26 September 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s application for review of Medical Assessor’s assessment of whole person impairment (WPI) at 2%; claimant alleged injuries to 12 parts or areas of her body including her back, neck, shoulders, knees, pelvis, hips, left ankle, left wrist, head, arms and legs; claimant had been involved in several previous accidents involving the same or similar parts of her body; face-to-face re-examination undertaken; claimant had poor recall of her injuries and the development of symptoms and difficulty distinguishing current symptoms from symptoms arising from other accidents; Medical Review Panel was of the view limited weight should be given to her evidence and preferred the documentary evidence; Held – claimant injured her left ankle, left wrist, neck and lower back in the accident; WPI assessed at 0%; Medical Assessment Certificate revoked; no issue of principle.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Cameron on 15 February 2024. 2. Certifies that the degree of the claimant’s whole person impairment is 1% based on: (a) the certificate of Medical Assessor Garvey dated 23 October 2023 combined with, (b) the Review Panel’s findings in these review proceedings.

STATEMENT OF REASONS

INTRODUCTION

Maha Habib was involved in a motor accident on 30 May 2019. She was a passenger in a car driven by her husband with right of way at a T-intersection. A car turned from the side street in front of their car. Mr Habib is said to have braked suddenly in an effort to avoid the accident but despite that, a collision did occur.
Ms Habib says she injured many parts of her body in the accident. She made a claim for statutory benefits and then damages against GIO, the third-party insurer of the vehicle, the driver of which she says caused the accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) arose in connection with that claim and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 15 February 2024, Medical Assessor Cameron found 2% WPI for the claimant’s physical injuries caused by the accident. On 21 February 2024, Medical Assessor Cameron issued a certificate combining his assessment with that of Medical Assessor Garvey and certifying that the claimant’s WPI was not greater than 10%.
The claimant has lodged an application with the Commission seeking a review of Medical Assessor Cameron’s decision. On 8 May 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment on the basis of the claimant’s submissions that the Medical Assessor “failed to respond to clearly articulated submissions and failed to provide proper reasons”.
The President’s delegate allowed the review and on 8 May 2024 convened this Review Panel (the Panel) to conduct the review.
On 23 October 2023, Medical Assessor Garvey found 1% WPI for an upper digestive system impairment resulting from injuries caused by the accident. There has been no challenge to his assessment, and therefore that 1% WPI must be added to any WPI assessed by this Panel.

LEGISLATIVE FRAMEWORK

General

Ms Habib’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Under Part 4 of the MAI Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss. Damages are assessed in accordance with common law principles as modified by the MAI Act.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of 1 October 2023 is $620,000.
If there is a dispute about the degree of the claimant’s WPI, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.

Permanent impairment assessment

Permanent impairment is assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[3] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[3] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.
The claimant alleges injuries to both her neck and lower back. Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 6.111).
The spine is divided (cl 6.131) into three regions:
(a)    cervicothoracic;
(b)    thoracolumbar, and
(c)    lumbosacral.
Each of the injured regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).
There are five diagnostic related categories, and a number of indicia provided (see Table 6.7). The first is DRE category I which is selected if there are symptoms which may include pain. In the circumstances of this claim certain of the DRE categories II and III are relevant. These two categories distinguish between radicular complaints and radiculopathy.
DRE II requires there to be:
(a)    pain with guarding or
(b)    non-uniform range of motion – dysmetria or
(c)    non-verifiable radicular complaints defined in table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling) which,
(ii)follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
DRE III requires a finding of radiculopathy which is defined in cl 6.138 as:
“… the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination: …
(a) loss or asymmetry of reflexes [as per table 6.8];
(b) positive sciatic nerve root tension signs [as per table 6.8];
(c) muscle atrophy and/or decreased limb circumference [as per table 6.8];
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
If any impairment to the claimant’s shoulders or upper arms results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor[4]that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.[5] So too, if there is impairment to the claimant’s lower limbs (and hips) resulting from any lumbar spine injury, the impairment is assessed and its value included.
[4] [2011] NSWSC 351.
[5] This is commonly referred to as the “Nguyen Principle”.

Dispute resolution

Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Cameron’s and Medical Assessor Garvey’s, further medical assessments and the review of medical assessments by this Panel.[6]
[6] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

ASSESSMENT UNDER REVIEW

Medical Assessor Cameron at [2] lists the 12 injuries he was asked to assess as follows:
(a)    left ankle – soft tissue injury;
(b)    right arm – soft tissue injury/pain down the right arm extending to the middle and index fingers of the right hand with numbness and tingling;
(c)    cervical spine – multilevel cervical facet joint irritation and mild disc bulge, most pronounced at C5/6 (on background of severe whiplash injury) with radiculopathy. Pain down the right arm extending to the middle and index fingers of the right hand with numbness and tingling;
(d)    head – headaches, whiplash, soft tissue injury;
(e)    both hips – left sacroiliac joint incompetence with associated several tendon enthesopathies and hip impingement, right greater than left, and left sided S1 neural tension and irritation;
(f)    right knee – soft tissue injury;
(g)    left knee – soft tissue injury;
(h)    left leg – soft tissue injury;
(i)    lumbar spine – central disc prolapse at L5/S1 causing minimal impression upon both S1 nerve roots (annular tear at L5/S1) with radiation of pain into both left and right legs; and/or, soft tissue injuries;
(j)    pelvis – bilateral sacroiliac joint incompetence; pubic synthesis pain bilaterally (pelvis dysfunction);
(k)    right shoulder – rotator cuff injury (partial thickness tear and a possible full thickness tear of the supraspinatus tendon); focally increased uptake present in right scapula suggestive of a bony injury; shallow biceps sheath effusion and thickening in the subacromial bursa, and
(l)    left wrist – left wrist sprain (joint effusion at radiocarpal junction in keeping with synovitis).
Medical Assessor Cameron, from [8]-[10] records the following history:
(a)    the claimant receives the carer payment from the Commonwealth Government in respect of care she provides to her husband;
(b)    Ms Habib had car accidents in 1986, 2009, 2010 and 2012 which she said did not result in any “prolonged disability”;
(c)    on the day of the current accident, she was a front seat passenger with her husband driving;
(d)    the vehicle was driven home, and
(e)    she attended her general practitioner (GP) on 3 June 2019 and has seen Dr Saunders, sports physician and she has had physiotherapy.
The claimant said she has right shoulder pain, low back pain with pain in both legs, neck pain and headaches. She has sleepiness, weight gain and anxiety. The claimant was taking over the counter medication and seeing her GP, Dr Yousef at Greenoak Medical Centre (Greenoak).
Medical Assessor Cameron records at [14] the following examination findings:
(a)    moderate and symmetrical reduced range of motion in the neck (no dysmetria); no muscle spasm or guarding and no non-verifiable radicular complaints;
(b)    no cervical nerve root tension signs, no neurological abnormalities in the upper extremities and a full range of motion of all joints other than the shoulder;
(c)    left shoulder motions were full, but the right shoulder was severely limited “with inconsistent movement … due to variable pain”;
(d)    the thoracic spine had marked and symmetrical (no dysmetria) reduced range of motion, with no muscle spasm or guarding and no non-verifiable radicular complaints present;
(e)    the lumbar spine had marked and symmetrical loss of motion (no dysmetria) with no spasm or guarding and non-verifiable radicular complaints;
(f)    there were no neurological abnormalities in the lower limbs and nerve root tension signs were negative;
(g)    the knees had a full range of motion with no crepitus or instability, and
(h)    the claimant walked with a normal gait.
Medical Assessor Cameron considered the claimant had sustained soft tissue injuries to her neck, lower back, left wrist, left ankle and right shoulder and found at [20] all of the 12 injuries caused by the accident. He also found at [21] that the alleged hip and pelvic injuries were not caused by the accident as it was not medically plausible for these injuries to have been caused in the accident.
At [23] Medical Assessor Cameron made the following assessments:
(a)    cervical spine – DRE I = 0%;
(b)    lumbar spine – DRE I = 0%;
(c)    head injury – claimant may have hit her head but the criteria of cl 6.164 of the Guidelines were not met and so there was no assessable impairment;
(d)    left ankle – 0% on range of motion method;
(e)    right arm – 0% on range of motion method;
(f)    right knee – 0% on range of motion method;
(g)    left knee – 0% on range of motion method;
(h)    left leg – 0% on range of motion method;
(i)    right shoulder – motion was inconsistent therefore the range of motion method was not appropriate. There was no pathology in the shoulders, therefore assessment by analogy should be used and on the basis of mild crepitation this attracts a 2% WPI, and
(j)    left wrist – 0% on the range of motion method.
The total WPI found by Medical Assessor Cameron was therefore 2%.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant submits at [16] - [17] that at one part of his reasons, Medical Assessor Cameron says that multiple imaging studies were provided yet says elsewhere there were no imaging studies to review.
The claimant also submits at [21] and following that Medical Assessor Cameron refers to a report of Dr Korber and his comments on imaging. The claimant says the report of Dr Korber should not be relied on, and that Dr Bodel’s opinion that there is clinical evidence of additional pathology from this accident should be preferred.
The claimant takes issue with the Medical Assessor’s decision not to rely on the range of motion method for shoulder impairment and says he has not disclosed his reasoning for doing so.
In relation to the cervical spine, the claimant submits that three doctors (including the insurer’s doctor) found radiculopathy. The claimant says she was not asked about radiating pain and that therefore she should be assessed with a DRE II or 5% impairment.
The claimant submits that Medical Assessor Cameron says there is no evidence that injuries to the hip and pelvis were caused in the accident which the claimant says ignores references to pain in these areas since the accident.
The claimant says in respect of the lumbar spine Medical Assessor Cameron reports no non-verifiable radicular complaints when in fact the claimant has complained of pain radiating to her legs.

Insurer’s submissions

The insurer submits the Medical Assessor must have considered the radiological studies as they were referred to throughout the evidence and that the Medical Assessor has mentioned some of the radiological evidence. The insurer says the case law states that a Medical Assessor does not have to address all of the documents.
The insurer says the Medical Assessor is not required to set out what the assessment of shoulder impairment would have been had the claimant’s measurements been considered consistent and appropriate. The insurer submits the Medical Assessor had referred to the report of Dr Korber and was entitled to undertake his own clinical examination, provide his own diagnosis and form his own opinion as to impairment.
In relation to the cervical spine, the Medical Assessor examined the claimant one to two years after the medical reports relied on by the claimant and, when he examined the claimant, he found no evidence of radiculopathy.
The insurer responds to the claimant’s submissions about the hip and pelvis noting that the claimant’s expert, Dr McBurnie did not diagnose a hip or pelvic injury. The insurer also noted that Dr McIntosh thought it was unlikely the claimant could have injured her hip in the accident.
In answer to the allegation of error in the lumbar spine assessment, the insurer says the Medical Assessor found no non-verifiable symptoms on his examination even though the claimant had alleged what might be a non-verifiable radicular symptom.
The insurer noted the claimant’s submissions in respect of the report of Dr Korber and notes that Dr Korber was asked to assess whether the shoulder pathology was accident related or not and was therefore only given copies of the shoulder radiology.

Procedural matters

First directions and bundles

On 22 May 2024, the Panel issued directions to the parties. The Panel advised the parties that the Panel had no access to the original medical assessment file and requested bundles of documents from the parties.
The claimant’s bundle was due on 30 May 2024 and the insurer’s bundle was due on 6 June 2024.
The claimant’s bundle of documents comprising about 640 pages was relayed to the Panel on 4 June 2024 and the insurer’s bundle of more than 290 pages was made available to the Panel on 7 June 2024. A teleconference was to be held on 11 June 2024 but due to the lateness of the documents provided was deferred to enable the Panel to properly consider the material.

First teleconference and directions

The Panel met on 2 July and reported to the parties on 5 July 2024.
The Panel noted that Medical Assessor Cameron had assessed 12 injuries. The Panel summarised the claimant’s evidence in relation to those injuries and noted that the claimant’s submissions dealt with only the right shoulder, the cervical spine, the lumbar spine, the hips and the pelvis. The claimant was asked in relation to the injuries to her right arm, left wrist, left leg, left knee, left ankle, head and right knee, whether she agreed that these injuries have recovered and there is no assessable impairment in relation to them.
The Panel also asked the insurer to consider whether there was agreement as to causation of some form of injury to those parts of the body event though the injuries may have resolved or result in no impairment.
The Panel advised the parties of the medical examination and issued directions to the parties for a response to the matters raised in the report.

Parties’ responses

The claimant responded on 25 July 2024 advising the Panel:
(a) the left ankle and right wrist injury have resolved, and
(b) the claimant “has no evidence as to whether the other injuries have resolved and is unable to concede that the remaining conditions have resolved …”
The insurer responded on 2 August 2024 noting the concession about the left ankle and right wrist. The insurer then said it could not understand how the claimant can say she has no evidence as to the other injuries noting she would be aware of what symptoms she has or does not have and “could respond to the question without the need for medical evidence.”
The insurer disputed that the claimant sustained any injury to her right arm, head, right knee, left knee or left wrist in the motor accident.

REVIEW OF THE EVIDENCE

General observations

The Panel notes that of the nearly 1,000 pages of documents provided, there are multiple copies of the same notes and reports.
The Panel also notes there are documents relating to the claimant’s husband Mamdouh included in the claimant’s material (for example a certificate of fitness dated 5 February 2021). There is a referral to Dr Dover from Dr Ebrahim dated 20 December 2019 which cites the claimant’s name but saying “recently detailed while overseas – brought back memories of time in detention. He has a MHCP completed.” The Panel has assumed this is a document relevant to the claimant’s husband.

The claimant’s breast scans and mammography have been provided. As they are not referred to in the submissions, the Panel has not considered them.

Claim form and claim documents

The claim form is dated 7 June 2019. While the claimant ticked the box to indicate previous compulsory third party (CTP) claims, she wrote “can’t recall” on the form when asked for dates.
She described the accident as follows:
“Vehicle (B) came out suddenly [from a street on the left]. My husband hit a sudden hard hit the brake our vehicle then collided on the right rear vehicle of (B).”
In terms of injuries the claimant said she injured her left wrist, left ankle, lower back and “headache migraine” and that the accident had brought back memories of a previous accident involving a truck.
Dr Ebrahim completed the certificate of capacity on 19 June 2019 noting his diagnosis was “synovitis left wrist and right rotator cuff tear.” He also referred to a psychological state having been exacerbated.
Dr Ebrahim completed a further certificate of capacity dated 5 February 2021. In it he diagnoses “synovitis left wrist and right rotator cuff tear and has since developed back and hip pain [with] pelvis dysfunction.” He also notes “patient was holding onto a handrail on the door when the accident occurred – the patient held on anticipating impact receiving some of that force into the arm as the impact of the collision occurred.”

9 December 2012 accident and documents

GIO has provided a printout from the insurer in respect of the claimant’s 9 December 2012 motor accident. The claim was settled on or about 27 June 2014 for $30,000 of which $15,000 was for past and future loss of earnings and loss of earning capacity. The remainder was for treatment and Medicare expenses.
The claim form describes the 2012 accident as a rear end collision. The claimant alleged injuries to her “neck, back, both shoulders, left elbow, left arm, both heaps especially the left one, left knee and constant stomach pain and severe headache.”
She also said:
“…[the accident] had delayed me from my usual activities. I am always complaining from the pain and almost every day I must consume pain killers in order to deal with the pain. I have been consulting medical attention and receiving natural massage and natural therapy. I am fearful that I might not ever be the same again especially when driving on the road near any truck. I experience anxiety attacks.”
The claimant disclosed a previous accident on 27 November 2011 and says she injured her lower back, arm and neck in that accident.
The police attended the scene of the accident and record a rear end collision between a truck and a Toyota Kluger causing “extensive rear end damage” to the Toyota.
The claimant had attended Canterbury Hospital after the 2012 accident. She says she was a passenger in a vehicle driven by her husband that was rear-ended. Her spine and pelvis were X-rayed and revealed no abnormality. The claimant complained of neck and back pain but was discharged later in the day.
The claimant had a cervical spine CT scan on 27 June 2013 due to persisting neck and back pain. It was reported that there were degenerative changes at C5/6 and C4/5, bursitis in the left shoulder and two bulging lumbar discs with degeneration.
The medical certificate completed by Dr Ebrahim of Greenacre dated 8 July 2013[7] noted soft tissue injuries to the knee, back and shoulder, a lumbar disc prolapse and anxiety, paranoia and panic attacks. The claimant was tender over the spine, facet joints and sacroiliac joints.
[7] Page 170 of the insurer’s bundle.
There is another medical certificate in relation to this accident dated 17 December 2012 signed by a doctor (Dr Latif) who had been the claimant’s doctor for 25 years.[8] He noted a previous car accident in November 2011 and injuries to Ms Habib’s neck and back. He diagnosed post-traumatic headache, neck pain (whiplash), soft tissue injuries to the left knee and occasional urinary incontinence (urge).
[8] Page 172 of the insurer’s bundle.
Dr Medhat Guirgis provided a report dated 16 May 2012 “to whom it may concern” in relation to the claimant’s 27 November 2011 accident.[9] He has a history of neck pain and stiffness with radiating pain to the right more than left shoulder, left arm radiating pain, stiffness and heaviness and pain in the left shoulder and elbow, lower back pain with attacks of sciatic radiation.
[9] Page 230 of the insurer’s bundle.
Dr Guirgis said he had seen the claimant in 2003 after a 2001 accident and in 2006 after another car accident. He says her symptoms settled after one or two years on each occasion. He diagnosed post-traumatic mechanical derangement of the neck, left shoulder, left elbow and lumbar spine.
Dr Guirgis says in this report that he had not seen Ms Habib since 7 December 2006 and the claimant is reported to have told him she had been “symptom free over the last few years until” the accident in Perth in November 2011. This is not quite correct. Within the Zurich file are two letters from Dr Guirgis to Dr Latif dated 28 April 2009 and 11 June 2009[10] concerning a motor accident on 13 January 2009. Dr Guirgis reports on the claimant’s present condition and recommends further investigations, treatment and rehabilitation were proposed. Injuries sustained in that accident were said to be post-traumatic mechanical derangement of the cervical and lumbar spine, left shoulder, right shoulder, left ankle and post-traumatic headaches.
[10] Page 248 and 249 of the insurer’s bundle.

Treating medical records and reports

There are other pre-accident records referred to by the insurer in their submissions and in the material including the following:
(a)    a report from Dr Milsom to Dr Royle dated 13 November 1986. The claimant was 22 years of age and sustained a sternal fracture, upper thoracic back pain and right wrist symptoms in a motor accident on 24 April 1986. The claimant had significant symptoms in the back and required home-help for heavier home duties;
(b)    Dr Royle wrote a report dated 15 December 1986, expressing the view there was no measurable disability, the claimant was inconsistent and perhaps exaggerating, has been over treated and was fit for her work as a clerk;
(c)    the claimant reported headaches in 2008;
(d)    Ms Habib had her second accident in January 2009 (rear end collision at traffic lights) and she complained of injuries to her left ankle, lower back, neck and headaches. Dr Guirgis wrote a report dated 11 June 2009 diagnosing injuries to the neck, lower back, both shoulders, left ankle and posttraumatic headaches;
(e)    the claimant had an emergency presentation to the Mater Hospital in South Brisbane with abdominal pain radiating to the back on 5 February 2009;
(f)    the claimant’s third motor accident occurred on 27 November 2011 when she was the passenger in a bus that braked suddenly and the claimant was thrown forward hitting her head and sustaining injury to her neck, left shoulder and elbow, back pain and uterine bleeding;
(g)    the claimant had major abdominal surgery in May 2012 requiring five days in hospital;
(h)    Ms Habib had a further accident on 9 December 2012 after the car she was in was rear ended by a truck and the claimant developed neck pain, thoracic pain, lumbar pain and knee pain which was investigated by X-rays. She developed left shoulder pain which was also investigated and headaches;
(i)    the claimant reported a motorbike accident in 2014 in Thailand and she had right shoulder pain which had been investigated in Egypt;
(j)    there were complaints of right shoulder pain in April and June 2016 investigated with ultrasound, and
(k)    a referral to Ms Omran of Greenacre dated 24 October 2017 was provided for further assessment and management of the claimant who presents with low back pain. The claimant had been referred to a Ms Omran Youssef of Greenacre for physiotherapy on 2 August 2013[11] following several car accidents “the last of which was the worst” and the claimant had been having back pain, shoulder pain, neck pain and hip pain and she was having difficulty with mobility and could no cross her legs.
[11] The referral is at page 169 of the insurer’s bundle.
Following the accident there are Allied Health Recovery Requests (AHRR) and referrals as follows:
(a)    3 June 2019 a “to whom it may concern” letter from Dr Ebrahim advising both Mr and Ms Habib sustained musculoskeletal injuries and require further investigation;
(b)    19 June 2019 – referral to Masnad Health Clinic noting the claimant presented “after a recent near miss MVA with a L worst synovitis and R rotator cuff tear for further assessment and management”;
(c)    25 June 2019 – request for physiotherapy with a diagnosis of multilevel cervical facet joint irritation and mild disc bulge at C5/6 and partial thickness tears measuring 6 and 13mm in the right shoulder;
(d)    9 April 2021 – request for physiotherapy for the cervical spine (disc bulge at C5/6), shoulder (partial thickness tears), lumbar spine (significant degenerative changes) and left hip incompetence, and
(e)    16 January 2024 – referral for sleep management studies due to over-eating and weight gain as a result of inability to exercise after the accident in March 2019.

Greenoaks – Dr Ebrahim

Dr Ebrahim wrote to GIO in a letter dated 11 November 2019. He says the claimant complained of neck / shoulder and back pain with radiating of pain to the left ankle after the accident. He also says:
(a)    on 3 June 2019 his notes show she had right hip tenderness and he felt the need to monitor the left hip;
(b)    on 11 June 2019 the claimant attended with low back pain radiating into the left leg;
(c)    on 28 August 2019 she came in with hip pain and on 6 September 2019 with low back pain, and
(d)    on 29 October 2019 the claimant came in again and she was referred to a musculoskeletal physician for assessment of back pain and concern about sacroiliac joints.
He supported the referral for a bone scan and requested GIO reconsider their decision to refuse to pay for it.
The Panel has reviewed the 2019 entries referred to in Dr Ebrahim’s report and they correspond to the notes. The Panel also notes that on 3 June 2019 the claimant complained of right wrist pain as she was holding onto the handrail when the accident occurred (although his notes record a left wrist examination). The claimant’s left ankle was also examined due to pain and her right hip was tender with possible muscle spasm. On 11 June 2019 the note says ongoing right shoulder pain “started a few days ago” and the claimant was getting headache from the pain and pain with movement of the neck. Back pain was also stated to have started after the recent car accident and was radiating into the left leg. No history of acute, severe pain or night pain was noted.
On 28 August 2019, the claimant had been seeing a physiotherapist and a chiropractor and her neck movement had improved but she had severe hip pain. A referral to Dr Saunders was given.
Ms Habib attended Dr Ebrahim on 13 January 2020 to advise she would be travelling overseas. She reported ongoing right shoulder, neck and back pain and needed an MRI scan before seeing Dr Saunders again. Several attendances occurred in the first half of 2020 with complains of musculoskeletal pain mainly in the right shoulder. On 14 December 2020 the claimant had severe back pain, had stopped all physiotherapy and wanted pain relief.
The claimant attended on 6 February 2021 complaining of right shoulder pain, renal pain and family stress. Ms Habib attended again on 4 March 2021 with a swollen right thumb with no trauma. On 12 March 2021 the claimant attended to review the X-ray of her thumb and to request a referral for physiotherapy to her back and shoulder. On 27 April 2021 the claimant attended due to an exacerbation of her chronic lower back pain. On 30 June 2021 her medication was reviewed.
In the second half of 2021 there are attendances for a variety of complaints none of them apparently accident related.
The first note in the second bundle of notes is on 17 January 2022 concerning a Covid booster and on 25 January 2022 the claimant attended with a rash.[12] On 14 March 2022 the claimant complained of urinary tract issues. On 15 April 2022 the claimant complained of severe dental pain and was taking Panadeine forte and Nurofen with no relief. There were further attendances for dental pain and counselling with issues about her husband becoming “more erratic and unstable.”
[12] These notes commence on page 313 of the claimant’s bundle mid way through a clinical note however the first page of the notes with the other half of that note is found on page 325.
On 12 December 2022 the claimant complained of severe pain in the lower back and sacroiliac joints, and she was having difficulty managing the pain. She sought counselling and wanted a psychologist who was not the same as the one treating her husband.
On 16 February 2023 the claimant attended for right shoulder, neck and back pain. On 18 February 2023 the claimant had left hip pain, back pain, neck pain, right shoulder pain, headaches and has reflux suspected as being secondary to non-steroidal anti-inflammatory medication. The claimant attended on 6 March and 27 April with shoulder problems the primary focus. On 12 May 2023 the claimant attended with shoulder pain, neck pains, headache and hip pains.
Dr Youssef provided a letter “to whom it may concern” stating that the claimant took pain killers after the accident which is likely to cause her reflux. The last time the claimant complained of anxiety symptom was March 2018 and the last time she complained of muscular back pains was 21 January 2018.

Canterbury Hospital

These notes include the attendance after the accident on 9 December 2011 when the claimant was a passenger in a stationary vehicle rear ended by a truck. She was cut out of the vehicle due to a complaint of neck pain.

PhysioRehab clinic

The history of the accident here is of the claimant’s vehicle rear ending another car and there being two hits and the claimant developing instant pain in the neck followed by hip pain on the second day and shoulder pain in the same week. There is also a history of two previous accidents.
A pain diagram was completed with frontal head pain, right sided neck and arm pain, lower back pain radiating into the things and pubic symphysis bilateral pain.
There is evidence of an assessment session on 30 March 2020, another session on 3 April 2020, the claimant was said to feel better and was given exercises. On 20 April 2020 is the note “Didn’t do exercises much, felt better for three days after treatment.” The claimant was re-educated on the diagnosis and rehabilitation.
The report to Dr Saunders dated 16 June 2020 refers to bilateral sacroiliac joint pain across the lower back and down both buttocks in the mid hamstrings. The claimant also reported pelvic pain and right shoulder pain and neck pain with frontal headaches.

Masnad health clinic

The claimant attended here on 25 June 2019 for treatment to her neck and right shoulder. The claimant gave a history of being a passenger in a car hit by another car reversing out of a driveway. On 15 July 2019 further treatment was given to the neck and right shoulder.
The claimant next attended on 9 August 2019 again for neck and right shoulder pain. Treatment was given again on 14 August 2019. A further attendance occurred on 16 August 2019 and the claimant said her right shoulder felt good, but the pain gradually came back again, and her neck pain was ongoing.
On 22 August 2019 the claimant attended again for shoulder and neck pain but “complaining of L sided glute symptoms and was persistent on treatment for this region.”
The claimant then attended on 30 August 2019 reporting that her shoulder pain was ongoing but on and off and feeling better than before. The claimant also reported ongoing neck pain.
The claimant attended on 2 September 2019 reporting feeling ongoing neck pain and finding it difficult to feel rested. She had right sided shoulder pain which was ongoing but intermittent and sometimes felt better when she does not exercise and rests it completely.
The claimant attended again on 3 March 2021 saying she had seen a different, pelvic specialist physiotherapist and that her “shoulder pain come back again on the right side.” On 9 April 2021 the claimant reported that her shoulder was locking especially during sleeping and said she had been doing her exercises. A similar complaint was made and the next reported attendance on 6 August 2021.
There is a letter from Masnad Health Centre (Mr Harry a physiotherapist) dated 21 June 2021 documenting physiotherapy to the right shoulder.

Dr Saunders

Dr Saunders saw the claimant on 21 October 2019 at the request of Dr Ebrahim taking a history of lumbosacral pain extending down both buttocks into the left thigh and ankle. There was also pain in the cervicothoracic region into the right shoulder and extending into the shoulder down the arm.
The claimant gave a history of the family car being hit by the other vehicle.
Having reviewed the MRI, Dr Saunders says:
“The appearance above is consistent with sacroiliac joint disease and possible hip involvement of the right hip. I have arranged for her to undertake specific scanning.”
A further letter from Dr Saunders dated 20 March 2020 confirmed mechanical sacroiliac joint incompetence and a trial of specialised physiotherapy was recommended.

Radiology

Radiology was performed on 14 February 2013 as follows:
(a)    X-rays both knees – no arthritic changes and no abnormality;
(b)    cervical spine – minor spondylitic changes at C5-6 and C6-7;
(c)    X-ray thoracic spine – mild scoliosis and minor spondylitic changes from T4-T10;
(d)    X-ray lumbo-sacral spine – moderate degenerative disc thinning at L5-S1 and spurring at L2-3 and L3-4, and
(e)    ultrasound right knee – there is a small amount of fluid in the suprapatellar recess but no soft tissue abnormality.
A CT scan was undertaken of the claimant’s cervical spine on 27 June 2013[13] showing no acute or established fracture dislocation but prominent osteophyte complex at C4/5 and C5/6 with contact and indentation of the left paracentral cord at the C4/5 level.
[13] Page 174 of the insurer’s bundle.
On 2 July 2013[14] the claimant had a left shoulder ultrasound which indicated small calcifications in the supraspinatus tendon and bursitis apparent in the subdeltoid bursa.
[14] Page 181 of the insurer’s bundle.
On the same day a lumbar spine CT scan was done which showed bulging of L4/5 and L5/S1 with no fractures or compression.
Both shoulders were investigated on 15 June 2016.[15] There was mild osteoarthrosis at both acromioclavicular joints and a tear in the supraspinatus tendon of the right shoulder with bursitis and early adhesive capsulitis.
[15] Page 261 of the insurer’s bundle.
On 6 June 2019 an ultrasound of the left wrist was done showing joint effusion consistent with synovitis.
A right shoulder ultrasound was performed again on 17 June 2019[16] showing partial thickness tears of 6 and 13mm with bursitis and limitation of abduction to 40 degrees with pain.
[16] Page 263 of the insurer’s bundle.
On 9 September 2019 due to a clinical history of back pain and lumbar pain further lumbar radiology was done. This showed a central disc prolapse at L5/S1 causing minimal impression on the S1 nerve roots. There was reported a mild disc bulge at L4/5.
The claimant had a bone scan on 9 March 2020 to evaluate lower back pain. This reported left sacroiliac joint incompetence with several tendon enthesopathies and hip impingement. Significant intervertebral disc disease in the mid and lower cervical spine. Focally increased uptake present, in the right scapula suggestive of a bony injury.
On 5 March 2021 the claimant had an X-ray right thumb, ultrasound right thumb due to “sudden onset of right thumb pain and swelling.” There was mild tenosynovitis of the flexor tendon of the right thumb and ganglion on the right wrist.

Ms Habib had an MRI of the cervical spine on 17 April 2023, and it was reported there were multilevel degenerative changes. An MRI of the right shoulder on the same date showed a chronic labral tear, degenerative labrum and tendinopathy of the biceps tendon. An MRI of the left hip revealed mild tendinopathy adductor longus tendon within left public tubercle. Mild enthesitis. No further abnormality, no hip joint effusion.

Medico-legal and other expert reports

Dr McIntosh, biomechanical expert provided a report dated 18 December 2020 to the insurer. He indicates at [4] that he had the claim form, the police report, the property damage file and medical reports. He described in Table 1 that the accident was a sideswipe where the front nearside corner of vehicle 2 (the Habib family Kluger) contact the rear offside of vehicle 1 (a VW Golf). He notes the airbags did not deploy. The claimant had described the accident in her claim form as occurring at a T intersection where the claimant and her husband were travelling at the top of the T and the other vehicle came out of the side street, turning left into the T and in front of the claimant’s husband’s vehicle. He notes the claim form refers to the impact of the sudden braking.
Dr McIntosh summarises in Table 4 the claimant’s pre-accident accidents and conditions. At [27] he notes he had no photographs of the other vehicle, but he did have photographs of the claimant’s vehicle which was repaired at a cost of about $200.
At [38] he considers the accident a “very low severity collision” and at [39] that no substantial structural damage was caused to the claimant’s vehicle. He says the forces were low, there was no evidence of intrusion into the claimant’s seat and that she would be unlikely to impact forcefully against the interior if she was wearing a seat belt.
At [53] he expresses the opinion that it is unlikely for the claimant to have sustained a soft tissue or whiplash associated disorder of the cervical or thoraco-lumbar spine or aggravation of any pre-existing spinal condition. He also considers it unlikely that she would have experienced soft tissue or sprain / strain injuries to the right arm or shoulder, right hip, right knee or lower limb and highly unlikely any left wrist or right shoulder injury occurred.
Dr McBurnie, occupational physician prepared a report for the insurer on 24 February 2022 after seeing the claimant on 1 February 2022.The claimant was assessed by video link.
Dr McBurnie has a history from the claimant of immediate discomfort in the neck with pain developing over the neck, lower back, right shoulder, left wrist and left hip the next day. He notes the claimant saw a doctor and was sent for investigations and referred to see Dr Saunders. The claimant said physiotherapy had been provided and she had trialled medication including Panadeine Forte and Palexia which made her drowsy. The claimant reported flare ups of back pain and said that her shoulder symptoms were worsening.
The claimant reported headache every day, constant pain in her neck down the right shoulder arm and to the fingers. It can wake her at night. She has limited right shoulder motion. The claimant also complained of constant lower back pain extending to her hips with pain in her right and left legs. Right wrist symptoms were said to have settled.
The claimant says she takes Panadol and Nurofen three times a day half an hour apart. She was having no active treatment as physiotherapy had been declined.
Dr McBurnie was of the view that the claimant injured her neck and lower back in the accident but was not clear on the relationship of the right shoulder injury to the accident as it was not stabilised. She did not assess WPI at that stage.
In a supplementary report dated 1 September 2022, Dr McBurnie reviewed the report of Dr McIntosh and radiologist Dr Korber.
Dr McBurnie summarises the findings of Dr McIntosh in terms of the forces involved in the collision and the claimant’s movement within the vehicle to be minimal and that it was his opinion the likelihood of injury was very low. In terms of Dr Korber’s report she noted his finding that there had been no significant change in three years between the 2016 and 2019 scans.
Dr McBurnie did not wish to change her opinion in respect of the neck and lower back injuries noting the claimant had an already vulnerable spine and the data Dr McIntosh was relying on concerned healthy individuals. She considered the right shoulder symptoms to be unrelated to the accident. She formed the view the claimant’s WPI was 10% (5% for the neck and 5% for the back due to asymmetry of movement).
Dr Korber, radiologist provided a report dated 15 August 2022 to the insurer’s solicitors. Dr Korber was asked to review the 15 June 2016 right shoulder X-rays and ultrasound films and compare it with a right shoulder ultrasound dated 17 June 2019.
His conclusion was “there has been no significant change in the three-year interval.”
Dr Bodel examined the claimant at the request of her lawyers on 17 March 2023. He was asked to assess the following seven injuries:
(a)    neck;
(b)    right shoulder;
(c)    left wrist;
(d)    lower part of the back;
(e)    left leg;
(f)    left ankle, and
(g)    headache.
The Panel notes Dr Bodel was not asked to assess the pelvis or hips, the knees and the right arm.
Dr Bodel has a consistent history of the accident, and the claimant says she experienced immediate headache, neck pain, right shoulder pain, left wrist pain, lower back pain and pain in both knees. Dr Bodel records that the claimant had a left ankle injury which she said had resolved.
Dr Bodel had a history (from the claimant and the records) of four previous accidents and injuries in those accident to her sternum, right wrist, left shoulder, neck, left ankle, back and left knee.
Dr Bodel was told the claimant’s current complaints were of neck pain, right shoulder girdle pain, pain radiating down the right arm to the middle finger of the right hand with numbness and tingling. She had lower back and left hip pain.
On examination there was guarding and reduced range of neck movement which was asymmetrical. The left shoulder was normal, but the right shoulder was significantly restricted. There was wasting in the right shoulder girdle, tenderness and impingement but no instability.
He did not identify any of the clinical signs of radiculopathy in the upper or lower limbs. There was tenderness, guarding and asymmetrical restriction of lateral bending motion. While he noted there may have been pre-existing pathology in the right shoulder, he considered the accident had caused further pathology.
Doctor Bodel found:
(a)    cervical spine – DRE II = 5% WPI;
(b)    lumbosacral – DRE II = 5% WPI;
(c)    right shoulder 13% UEI = 8% WPI, and
(d)    “there are no other musculoskeletal injuries.”

Other assessments

Medical Assessor Garvey found on 23 October 2023 that the claimant had a 1% WPI in respect of an upper digestive system disorder – gastro-oesophageal reflux (GORD).
The claimant gave a consistent history of the accident and said she saw the doctor the next day. Ms Habib says she had scans and was prescribed strong medication (Panadeine Forte) which made her drowsy. She said she took Nurofen and Panadol which caused bloating, nausea and heart burn which commenced two years ago. She said she had reflux symptoms before 18 February 2023 but she only told her doctor about it at that time.
While Medical Assessor Garvey reviewed the documentation which revealed the claimant had been prescribed medication before the accident and had some symptoms, he considered the car accident which was a contributing cause that was more than negligible to her current condition. He found the impairment 2% and reduced this by 1% on the basis of pre-existing condition.
Medical Assessor Canaris found on 17 November 2023 that the claimant had a 7% WPI due to a persistent depressive disorder (dysthymia) with anxious distress.
The claimant gave a history of previous counselling with a psychologist following her husband’s incarceration. After he was released, he started seeing the claimant’s psychologist and so she stopped attending that counsellor.
She also gave a history of previous motor accidents, but she said they were “all gone.”
Ms Habib documents her physical injuries and problems and says she is no longer a good listener, would cry a lot, she gets anxious and cannot sleep well. The claimant has had no psychological treatment and no psychiatric medication.
Medical Assessor Canaris diagnosed persistent depressive disorder and somatic symptom disorder caused by the accident. He indicates that while she had previous conditions her current symptoms have only emerged after the accident and are specific to the event.
He also considered there were post-accident issues with her husband but that these did not cause an impairment. He assessed WPI at 7%.

RE-EXAMINATION FINDINGS

Introductory remarks recorded by Medical Assessor Lahz

Ms Habib attended the Commission’s medical suites punctually for the 10.00am appointment on 18 September 2024, having travelled from her apartment in Western Sydney by public transport.
Before the interview, Ms Habib walked into the examination room quite briskly and did not appear in any discomfort although, she did complain of a severe headache at the commencement of the interview, for which she advised she would take some Panadol.
In sitting, she also did not appear to be in any discomfort although, she was up and down a few times during the interview, fetching Panadol and water.
On examination, she was of short stature (159cm) with moderate central adiposity (60kg).
At the commencement of the examination, she asked if I were going to “hurt” her. I explained that all movements I would be requesting would be “active” that is she would determine how far she thought it reasonable to move. No passive movements would be undertaken. She responded saying that she would stop moving on first encountering pain with any specifically requested movement. In turn, I simply asked her to make her best effort and to move as far as she reasonably could noting her symptoms.
Ms Habib was reluctant to remove any clothing such as her dress, stockings and hijab. I explained to her that I could not conduct a sufficiently detailed examination of the injured body parts if her clothing items were not removed, and this would need to be stated in my report. I was amenable to her removal of various upper and lower body clothing items in sequence for the sake of modesty, to which she eventually consented.
She asked me if there were any cameras in the room which I answered in the negative. We were on the 8^th floor of an office tower, and I pulled down the window shade as far as possible at her request. She then indicated that she was happy to proceed with the physical examination.
Ms Habib was reluctant to remove her head scarf saying it would be very difficult to replace because of her injuries and she would need to avail herself of a mirror. At the conclusion of the examination, she went to the bathroom to replace her head scarf.
She was able to remove her long dress unassisted apart from my undoing the zip. At the conclusion of the examination, she was able to dress herself without complaint, the only assistance requested being that I do up the (long) dress rear zip.
At the end of the examination, she invited me to smell perfume from her son’s business, and even offered me a small bottle of perfume to take away. When I politely declined these offers, she then asked if I would like to apply some of the perfume anyway and again, I politely declined.

Claimant’s history before the accident

Medical Assessor Lahz took this history from the claimant:
(a)    she is aged 60 and right-handed. She told me she was born in Lebanon although she has lived in Australia since age 11. Her first language is Arabic and her second English in which she has a native command. She obtained her formal education in Australia.
(b)    She has not done any work since the subject motor accident of May 2019. Over the years, she has done various jobs inclusive of community services, private investigations and public service roles for Departments of Police, Immigration and Public Prosecutions. She also worked in her husband’s former cleaning and other businesses. Before the subject motor accident, she said she was working as a private investigator, being very guarded in the information she imparted to me.
(c)    Currently, she lives in Western Sydney with her youngest child, a daughter aged 24. She has three other children in their 30’s all of whom are married. In April 2023, she separated from her husband, and they are now in the process of obtaining a divorce. She explained that she has recently relocated from the family home to an undisclosed address. Her husband has been returning periodically to Australia (he is currently overseas) although he will only have access to the granny flat at the previous family home and she reports he has no idea of her new address.
(d)    On arrival, she advised me of a severe headache for which she would be due to take Panadol at 10.15am and asked if this would be OK to which I replied, “no problems”.
(e)    During the interview, she alternated between sitting, standing and walking short distances around the room to fetch water, Panadol and so on.
(f)    Ms Habib reported to me she was in good health before the motor accident. She said that she had been capable of completing all chores, meal preparation and shopping and had done hobbies including fishing. She denied any particular physical limitations before the 2019 motor accident.
(g)    I asked her about the history of motor accidents in 1986, 2009, 2011 and 2012 predating the subject 2019 accident. She did remember that her husband had been the driver in all of the motor accidents, none of which were his fault. She could not remember if she had received any compensation for the previous motor accidents, although when I put to her that she received a settlement for the 2012 accident, she agreed that this could have been the case.
(h)    I questioned her regarding the well-documented history in medical records predating the subject accident, of pain in the neck, shoulders, lower back and knees. She did not initially recall the sternal fracture of 1986 although she subsequently remembered that she had been breast feeding at the time and had to take a break from this due to chest wall pain. I put to her there had been back and left knee pain in 2012, left shoulder pain and neck pain in 2013 and right shoulder investigations performed in 2016. She could not provide any additional information about any of this although of note she did tell me that a tear in the right shoulder noted on a 2016 scan had increased in size from 3mm to 13mm on the scan done not long after the 2019 motor accident. She was also able to tell me that Dr McBurnie awarded her 10% WPI for the injuries due to the subject motor accident although the doctor had not included the right shoulder in her assessment.
(i)    Ms Habib said that she could not remember much about her pre-2019 history because it was all “so long ago” but she reiterated that she had been doing OK before the last accident (2019) and whilst there could have been some pain in some locations (which she was unable to recall) before the 2019 accident, the pain did not limit her day-to-day, and any symptoms that may have been present were made worse by the subject motor accident. “I lead a normal life” she remarked. If there had been minor aches and pains before the motor accident, she said that she “might” have received physiotherapy, massage sessions and used a “tiger stick” with good effect on symptoms.
(j)    As it was clear that Ms Habib would not be more forthcoming about any pre-accident symptoms, I moved on to enquire about the 2019 motor accident.
(k)    She reported to have been the restrained front seat passenger in a car driven by her husband when a car suddenly emerged from the left, causing her husband to brake suddenly to avert the collision. She reported that there was a low force impact of the front end of their vehicle with the at fault car. She explained that the injuries sustained were not derived from the impact but rather from her husband’s hard braking. She said that both vehicles were drivable post collision, with minimal visible damage.
(l)    She does not remember any impact of any part of her body with the cabin interior. She is unsure of how her right shoulder became “more injured”. On further questioning, she reported that her left knee might have hit the dashboard but she was not sure of that, but she was clear that her left hand had been on the door handle (not the handle above the window). She could not explain how her hips were injured in this accident.
(m)     Ms Habib reported that she remained in the car whilst her husband exchanged details with the other driver. The ambulance and police did not attend, and later, her husband drove their car from the scene and it was repaired.

Claimant’s history of symptoms and treatment after the accident

Medical Assessor Lahz records the following details:
(a)    The claimant said she saw her GP (Dr Ebrahim) either the same day or else the next day. She was vague as to what symptoms she reported, and also in regard to the exact sequence of development of symptoms in multiple parts of the body.
(b)    She thought that pain in the neck, left knee and left wrist had been her initial symptoms, soon followed by right shoulder symptoms. I put to her that there had been early reference to low back and right hip pain in the GP records and she agreed that this had been the case, noting (however) that currently the left hip is the most bothersome, as opposed the right hip.
(c)    Records of Dr Youseff indicate that by 18 February 2023 there was left hip pain with ongoing right shoulder pain. However, symptoms in the right wrist and left ankle had resolved. The claimant was unable to recall this and did not respond when questioned about it.
(d)    Also, recently, due (she said) to overuse (resulting from right shoulder pain/restriction), the left shoulder has now developed a degree of pain and weakness.
(e)    Ms Habib has also been plagued by frequent, generalised, severe headaches since the accident, noting that she obtained temporary relief from a Botulinum Toxin injection by a specialist (whose name she could not recall) in Bankstown although she cannot afford to resume treatment because the insurer will now not fund any treatment for any of her accident-related injuries.
(f)    Ms Habib remembered that the doctor prescribed her strong painkillers twice (after the 2019 motor accident) before declining to provide her with any further.
(g)    There were multiple scans done after the 2019 accident, although she could not detail any of the results besides the increase in size of the tendon tearing demonstrated on the 2019 right shoulder scan compared with the 2016 scan.
(h)    I put to her that although there was early reference to right shoulder/arm symptoms after the accident, there were then many (39) consultations with the GP not mentioning the shoulder. She could not provide a reason; other than to state that the right shoulder pain persisted and never resolved after the 2019 motor accident. The physiotherapy records on 21 June 2021 indicated that she resumed treatment on 3 March 2021, and that right posterior shoulder pain had recurred after one year of not receiving any physiotherapy.
(i)    Ms Habib reported to have received physiotherapy, targeting the neck, lower back and right shoulder until Covid “hit” and then there was very little available treatment. An AHRR (for physiotherapy) dated 25 June 2019 referred to symptoms in the neck (right more than left) and right shoulder. When I mentioned that the early records did not refer to the lower back, she could not in fact remember when exactly it was or how long after the motor accident that the lower back symptoms developed.
(j)    She remembered that she was referred to Dr Saunders (a musculoskeletal physician) because her lower back and posterior pelvic symptoms were not improving with general physiotherapy and her doctor wanted to “go deeper”. She said that Dr Saunders was the one who discovered her hip “injuries” (not mentioned on the claim form).
(k)    Ms Habib said that Dr Saunders arranged specialist physiotherapy for some “instability” of the pelvis and hips although the latter treatment only provided transient symptomatic benefit.
(l)    There have been no operations or else specific injections for persistent pain in the right shoulder, right upper limb, neck, lower back, left-sided pelvis and left lower limb (buttock, posterior thigh and anterolateral ankle).
(m)     Ms Habib said that she had consulted a shoulder surgeon (whose name she could not recall) either during 2022 or else 2023. He advised that her she might need surgery on the right shoulder although she should wait at least six months before deciding. However, she has not returned for review due to a lack of treatment funding from the insurer.
(n)    The claimant reported that the post-accident symptoms in her wrists and knees have completely resolved. On the other hand, whilst the left ankle symptoms initially abated these have recently recurred, which she says is due to cold weather. She has not sought medical treatment or investigation of the left ankle.
(o)    Ms Habib is no longer receiving any specific treatment for her injuries. She takes Nurofen Zavance and Paracetamol for pain relief and feels “anxious” if she does not carry these painkillers with her.
(p)    She is receiving a “Jobseeker” allowance although she has been exempted from job seeking.

Current symptoms

Medical Assessor Lahz asked the claimant about her symptoms and current treatment and records the following:
(a)    Ms Habib complains of daily, severe headaches 9/10 intensity sometimes associated with vomiting. They are more intense in the frontal and parietal regions. Sometimes, she reported, there is double vision. Sometimes too, she needs to lie down due to headache intensity.
(b)    She complains of right-sided neck pain 8-9/10 intensity spreading to the posterior trapezial region, shoulder convexity, deltoid region, “all of arm” (8-9/10) and dorsal forearm. She described greater difficulty on moving her head toward the right. She also complains of intermittent “pins and needles” in the tip of the right middle finger and thumb tip, most often at night.
(c)    She described very limited movement at the right shoulder and also tendency for the right arm to “lock” requiring her to jiggle around the limb for relief/regaining movement.
(d)    Due to severe right upper limb symptoms, she reported that she is now “overusing” the left upper limb, which she reported is becoming weaker. She complains of pain behind the left shoulder and mild limitation of movement in this location. At this point, she demonstrated with ease, placement of the left hand over the mid lumbar spine whereas with the right hand, she can barely reach the buttock.
(e)    She is not reporting any problems with her hands aside from the “pins and needles” in the right middle finger mentioned above.
(f)    Neck symptoms equate in severity with those in the right upper limb 8-9/10.
(g)    She complains of midline mechanical low back pain 6-8/10 with occasional radiation to the left buttock and posterior thigh (sharp sensations), also associated with episodic muscle spasms at the lower back. She does not report any pain below the left knee.
(h)    She pointed to the left anterior superior iliac spine as a site of pain.
(i)    There is occasional discomfort in the right buttock (spreading from the lumbar spine) although there is no right-sided leg pain.
(j)    Back pain predominates over lower limb pain. There are no neurological symptoms in the lower limbs.
(k)    Due to low back pain, she complains of reduced sitting, standing and walking tolerances although she could not say for how long or else how far, she can walk on the flat, possibly 10-15 minutes.
(l)    As noted above, of late, the left ankle symptoms have recurred. There is pain just anterior to the lateral malleolus, worsened by walking. As noted, she feels that cold weather has stirred up symptoms here.
(m)     At home, she said she cannot undertake any yard work (although she is now living in a unit) and she completes very few chores. Her daughter completes most of the necessary tasks now (cleaning, vacuuming, laundry, floors) whilst they share the shopping and the cooking. She reported she occasionally drives but only short distances.
(n)    I asked how she now generally spends her time. She reported that her son has a perfume sales outlet where she regularly visits, sits and chats with customers and others. This is helpful because it gets her out of the house. She reported too that there is considerable stress with her husband arising from the present divorce proceedings.

Cervical spine

Neck movements were reduced in all planes of movement and associated with verbal pain complaints. Movements were repeated on several occasions and were inconsistent, the predominant finding being slow, hesitantly performed movements with global restriction of 1/3 normal range of flexion, extension, lateral flexion to either side and rotation to either side. At times, there was reduced right-sided movements compared with left-sided movements, although this was not a consistent finding within the examination or when compared to informal observation. Inconsistencies were put to the claimant who said her range of movement varied because her pain was variable.
There was no muscle spasm or guarding present at the neck or in the shoulder girdles. There was also no focal neck tenderness present.
There was grade 5/5 strength in both upper limbs aside from the shoulders which were not formally assessed due to complaints of pain in both shoulders. However, once the upper arms were supported on a pillow, it was evident from the claimant’s movements that there was normal strength at the elbows, wrists and hands.
There was no measurable wasting at the arms (25cm) 5cm above the elbow crease in both arms, or in the forearms on both sides (23cm), 5cm below the elbow crease.
Upper limb reflexes (biceps, triceps and supinator) were bilaterally present and symmetrical.
There was normal sensation to light touch and pin prick testing over the upper limbs bilaterally.
Upper limb neural tension tests were bilaterally negative.

Shoulders and upper arms

It was difficult to assess active range of motion particularly of the right shoulder due to Ms Habib’s pain complaints. There was no wasting observed about the shoulder girdles and neither shoulder was especially tender on palpation. There was some poorly localised tenderness at the posterior right shoulder girdle in the suprascapular region.
Active range of shoulder motion is shown in the following table: Movements were measured with a goniometer and repeated to check for consistency.

Movement

Right

Left

Abduction

20, 20, 20

100, 130, 100

Adduction

20, 20, 20

50 (full)

Flexion

30, 20, 10

120, 110, 130

Extension

20, 20, 30

40, 40, 30

Internal rotation

40 (arm at side)

80 (arm at side) 70 (in abduction)

External rotation

50 (arm at side)

70 (arm at side) 60 (arm abducted)

The variability in neck and shoulder range of motion was drawn to the attention of the claimant who responded that her pain levels were affecting the range of motion which she could demonstrate.
Of note, the left shoulder movements have deteriorated compared with other medical examinations. The claimant’s explanation for the recently increased symptomatology in this location was overuse of her left shoulder due to right shoulder injury.
Elsewhere there was:
(a) full range of elbow motion (0-140 degrees, 80 degrees each of supination and pronation) in both upper limbs, and
(b) full range of wrist motion in each upper limb (extension 70 degrees, flexion 70 degrees, radial deviation 20 degrees and ulnar deviation 40 degrees).

Lower back

The claimant’s gait was mildly antalgic due to reported left ankle pain. Ms Habib could, with light support, balance on tiptoe and with slightly more support balance briefly on her heels whilst complaining of left ankle pain.
She was reluctant to move the lower back at all in case of pain and all lower back movements were performed very slowly and hesitantly. The following movements were recorded and noted:
(a)    with encouragement, she bent over so that her fingertips reached knee level. There was minimal lumbar flexion (20% of normal). At this point, she then started to bend her knees, in essence coming to a seated position whilst standing. Extension was 20% of normal range, being as limited as flexion;
(b)    lateral flexion to either side was 30% normal range, and
(c)    rotation was 50% normal range to either side.
There was no dysmetria, lumbar spine movements were globally and equally restricted.
There was mild tenderness indicated only at L4/5 although there was no muscle spasm or guarding.
Ms Habib reported the location of the pain she could experience when it occurred being referred from the lumbar spine. She pointed to the left buttock and posterior (back of the) thigh and denied any lower limb symptoms. These symptoms were not in a specific dermatomal pattern indicative of a specific nerve root lesion and thus not compatible with non-verifiable lower limb radicular complaints.
There were no lower limb neurological symptoms. Lower limb neural tension tests were bilaterally negative. Ms Habib was able to sit on the side of the couch with each leg fully extended and without complaint of pain or symptoms on either side (straight leg reflex testing).
There was reportedly normal sensation over the lower limbs. She declined to remove her stockings so I could not formally assess sensation. However, Ms Habib stated that there was no loss of sensation over the lower limbs and told me these did not require assessment.
Lower limb strength was preserved aside from at the hips (due to the associated complaints of low back pain).
There was no measurable wasting of the thighs 10cm above the superior patellar border (45cm) nor of the calves at maximal mid girth (35cm).

Lower limbs and hips

There was full bilateral range of hip motion aside from reduction of left hip flexion associated with pain complaint at the left lowermost lumbar spine. In summary:
(a)    there were 100 degrees of left hip flexion compared with 120 degrees of right hip flexion;
(b)    abduction at the hips was 40 degrees bilaterally;
(c)    adduction 40 degrees bilaterally;
(d)    internal rotation 30 degrees bilaterally;
(e)    external rotation 40 degrees bilaterally, and
(f)    there was no hip flexion contracture on either side.
Of note, Ms Habib could also achieve a right-sided FABER (flexion abduction and external rotation) position and almost obtain a full left-sided FABER position (limited due to left buttock pain).
She was reluctant to lie on the couch with both legs fully extended, preferring to keep both knees bent in order to reduce low back pain. This made the examination rather difficult, so some components were performed in a seated position whereas others I conducted with Ms Habib in supine position.
Active movements at the knees were full, with 0-130 degrees achieved on both sides. There was no crepitus and both knees were stable in the anteroposterior and mediolateral planes.
There was normal active ankle movement on both sides with:
(a)    20 degrees of dorsiflexion;
(b)    40 degrees of plantarflexion;
(c)    40 degrees of inversion, and
(d)    20 degrees of eversion.
Ms Habib indicated tenderness anterior to the left lateral malleolus. The left ankle was carefully examined, it was stable and there was no swelling present.

Radiology review

Ms Habib brought multiple investigations (imaging studies, scans and films) to the appointment which Medical Assessor Lahz viewed, and reported as follows:
(a)    plain shoulder X-rays on 15 June 2016 showed normal GH (glenohumeral) joints with mild AC (acromioclavicular) osteoarthritis;
(b)    ultrasound of the right shoulder 15 June 2016 demonstrated supraspinatus tendinosis with partial thickness partial width tear of the insertional fibres. There was also overlying bursitis and osteoarthritis of the AC joint. There was impression of early adhesive capsulitis;
(c)    right shoulder ultrasound on 17 June 2019 referred to partial thickness tears of the supraspinatus and subscapularis tendons anteriorly, measuring 6mm and 13mm respectively. There was bursal thickening with limitation of abduction to 40 degrees due to pain;
(d)    MRI of the lumbar spine 9 September 2019. The report referred to a L5/S1 central disc prolapse causing minimal impression on both S1 roots. There was significant disc height reduction at L5/S1. The disc height at L4/5 was well preserved with mild disc bulge causing minimal impression upon anterior cerebrospinal fluid sleeve;
(e)    MRI of the cervical spine dated 17 April 2023 showed a C4/5 discophyte complex with moderate right exit foraminal narrowing. At C5/6 there was discophyte complex with mild bilateral exit foraminal narrowing. Other levels were unremarkable. Overall, there were multilevel cervical degenerative changes visible;
(f)    MRI right shoulder 17 April 2023 showed moderate tendinopathy of the biceps tendon with degenerative signal in the biceps anchor. There was a posterosuperior labral tear, likely chronic, the remaining labrum being diminutive and degenerative. The supraspinatus tendon had a low-grade articular surface partial thickness tear measuring 4mm in mediolateral dimensions and 13mm in the anteroposterior. The rest of the fibres were tendinotic and there was some mild bursal surface fraying. Infraspinatus and teres minor tendons were intact. There was mild tendinosis of the subscapularis. There was mild bursitis with thickened bursa and mild osteoarthritis of the acromioclavicular joint, and
(g)    MRI left hip 17 April 2023 showed normal joint surfaces. There was mild tendinopathy of the adductor longus at insertion with minimal signal at the left pubic tubercle. There were no other abnormalities.
Ms Habib also showed me a bone scan noting findings consistent with sacroiliac joint incompetence.

CONSIDERATION OF THE ISSUES

Is the claimant’s evidence reliable?

The available information indicates that the subject motor accident collision was minor and of low velocity. Ms Habib believes it was the sudden braking on the part of her husband, the driver, which caused her physical injuries rather than any impact with the other vehicle. Ms Habib said the impact between the two vehicles resulted in minimal damage. The claimant relies on no expert biomechanical evidence concerning the forces involved in the sudden braking.
Ms Habib told Medical Assessor Lahz she could not remember the development of her symptoms or what parts of her body and hurt when, due to the effluxion of time since the motor accident. Medical Assessor Lahz also noted the claimant’s ability to recall her several other accidents was not good and her ability to distinguish past reports of symptoms was poor. The Panel considers that limited weight should be given to the claimant’s history because of what she concedes to be her poor memory of events and their sequalae. The Panel is of the view we should give a greater weight to the contemporary records documented by her doctors and allied health professionals.

Did the claimant injure her left leg, left knee and left ankle?

An injury to the left ankle was mentioned in the claim form but no other part of the left leg was mentioned including the left knee.
The claimant said no part of her body impacted the vehicle during the accident although she thought her left knee may have hit the dashboard (but she was uncertain about this) and her left wrist was holding onto the door handle. The Panel notes that according to claim documents and medical records, the claimant injured her left knee in the 2012 accident and her left ankle in 2009.
Dr Saunders had a history of back pain radiating into the left thigh and left ankle.
The claimant’s solicitor advised the Panel that the claimant’s left ankle injury had resolved. The Panel notes that Dr Bodel had a history of resolved left ankle pain and he assessed 0% WPI. Medical Assessor Cameron was asked to assess a soft tissue injury to the left ankle, left leg and left knee. He found a normal range of ankle, leg and knee motion and assessed WPI at 0%. Finally, Medical Assessor Lahz recorded a full range of ankle motion in both the left ankle as well as a full range of motion in the left knee and no abnormality was detected in the examination of the left ankle. Her left ankle impairment is 0% WPI.
The Panel is doubtful that the forces involved in this accident could have caused a direct, specific or frank injury to the claimant’s left leg including her left knee or left ankle particularly in the light of her history that no part of her body impacted the car and her uncertainty of hitting her knee. As a left knee injury was not mentioned in the claim form, the Panel does not accept there was a left knee injury, and it is likely the claimant is confusing the history she gave after her 2012 accident in which she injured her knee. If the left knee was injured in the accident the Panel notes that the re-examination findings of Medical Assessor Lahz revealed a normal range of motion in the left knee, there was no effusion or crepitation and therefore there is a 0% WPI in the left knee.
The claimant made contemporary complaints of left ankle pain and therefore the Panel accepts she did sustain a soft tissue injury to her left ankle. The Panel however is not satisfied that the re-emergence of symptoms in the left ankle at the re-examination with Medical Assessor Lahz is related to the injuries sustained in the accident. This is because of the soft tissue nature of the injury, the record of resolved symptoms by Dr Bodel in March 2023, the instructions she gave to her solicitor which were relayed to the Panel and the clinical findings of both Medical Assessors Cameron and Lahz.
In the light of the range of motion in the left ankle and left knee being normal when examined by Medical Assessor Lahz and there being no impairment in any event and the Panel does not propose to engage further with the issue of causation.

Did the claimant injure her right knee in the accident?

Medical Assessor Cameron was asked to assess a soft tissue injury to the right knee. The claimant did not mention a right knee injury in her claim form and the Panel notes there are no complaints of right knee pain in the GP or physiotherapy records. The claimant thought she may have hit her left knee on the dashboard in the 2019 accident but did not mention the right knee. There were however right knee complaints in 2013 investigated by X-ray and radiology. Dr Bodel, the claimant’s expert, did not record any right knee symptoms and both Medical Assessors Cameron and Lahz found a normal range of right knee motion with no crepitus or signs of effusion.
The Panel is not satisfied that the claimant sustained an injury to her right knee in the accident on the basis of these findings. If she did hit her right knee on the dashboard and sustain an injury, any injury was a mild or minor soft tissue injury from which the claimant has completely recovered.

Did the claimant injure her right arm and right wrist in the accident?

Medical Assessor Cameron was asked to assess a soft tissue injury manifesting in pain down the right arm extending to the middle and index fingers of the right hand with numbness and tingling. The Panel notes that the claim form does not mention a right hand, right wrist or right arm injury. The claimant told Dr Lahz that no part of her body impacted the car during the accident and her left hand was holding on to the door handle. She said she had no problems with her hands aside from some pins and needles in the right middle finger.
Dr Saunders has a history of right arm pain referred from the cervicothoracic region into the right shoulder and from there to the right arm. Similar complaints were made to Dr McBurnie. Dr Bodel was not asked to assess the right arm but did record complaints of pain radiating down the right arm into the fingers with numbness and tingling in the fingers (plural).
The right wrist was not mentioned in the claim form and on 3 June 2019 Dr Ebrahim records right wrist pain as Ms Habib was holding onto the handrail when the accident occurred. Dr Ebrahim however examined the left wrist, and the claimant was a passenger so would have been holding onto the handrail with her left wrist. The Panel is of the view that Dr Ebrahim’s record of right wrist pain is a common typographical error and that the other evidence supports complaints of left wrist symptoms.
The Panel is not satisfied that the claimant could have or did sustain a direct or frank injury to her right wrist or right hand. If the claimant did injure her right wrist or hand, the Panel notes Medical Assessor Lahz recorded a full range of motion in the both the right elbow and the right wrist and therefore any impairment would be 0%. It may be that the claimant’s right arm symptoms are a result of referred pain from the neck but as the range of motion in the right elbow and wrist was normal, there is no additional impairment for either of those allegedly injured body parts.

Did the claimant injure her left wrist?

Medical Assessor Cameron was asked to assess a left wrist sprain (joint effusion at radiocarpal junction in keeping with synovitis).

The claimant identified a left wrist injury in the claim form and Dr Ebrahim included “synovitis left wrist” in his initial certificate of capacity in June 2019. A referral for physiotherapy in June 2019 refers to left wrist synovitis. An ultrasound of the left wrist on 6 June 2019 showed “joint effusion consistent with synovitis.” There are no further complaints or records of left wrist pain in the records that the Panel can ascertain.
Dr Saunders and Dr McBurnie did not have a history of left wrist symptoms and Dr Bodel who examined the claimant at the request of her solicitors found no musculoskeletal injuries other than to the neck, lower back and right shoulder.
The Panel accepts the claimant’s history from the claimant as verified by the claim form and the early records of Dr Ebrahim establish that the claimant did sustain an injury to her left wrist. The Panel is not however satisfied that the left wrist is continuing to cause symptoms on the basis of an absence of complaints for the last four to five years. The Panel’s primary finding is that the claimant’s left wrist injury was soft tissue and has resolved.
The Panel also notes that Medical Assessor Lahz found a normal range of motion in the claimant’s left wrist (and left elbow). If there was an injury any impairment is therefore 0%.

Did the claimant injure her right and left shoulders?

The claimant alleges the following right shoulder injury which was referred to the Commission for assessment:
“…rotator cuff injury (partial thickness tear and a possible full thickness tear of the supraspinatus tendon); focally increased uptake present in right scapula suggestive of a bony injury; shallow biceps sheath effusion and thickening in the subacromial bursa.”
The claimant does not allege she injured her left shoulder in the accident (sudden braking and minor impact). The claimant now alleges a consequential left shoulder injury due to overuse as a result of the right shoulder being injured in the accident.
The claimant injured her shoulders in 1986, complained of left shoulder pain in 2009 and Dr Guirgis confirmed both shoulders were injured in the January 2009 accident. The claimant further injured her left shoulder in the 9 December 2012 accident and Dr Guirgis has a record of neck pain radiating into both shoulders, the right more than left. The claimant had a left shoulder ultrasound in July 2013 due to symptoms reported a motor bike accident in 2014 in Thailand and right shoulder pain with X-rays having been taken in Egypt. Further complaints of right shoulder pain were made in November 2015.
On 15 June 2016 both shoulders were investigated revealing osteoarthritis and a 3mm insertional tear in the right supraspinatus. A right shoulder ultrasound was performed on 17 June 2019 showing the partial thickness insertional tear measuring 6 x 2mm and a further tear measuring 13 x 4mm. While Dr Bodel, orthopaedic surgeon suggests there is new pathology, Dr Korber, an expert radiologist examined both films and reported “there has been no significant change in the three-year interval” between the two scans. The radiology reveals degenerative changes in the joints in additional to the tears.
Ms Habib did not include injuries to either of her shoulders in the list of injuries in the claim form dated 7 June 2019. Dr Ebrahim’s notes had a record on 11 June 2019 of ongoing right shoulder pain which “started a few days ago.” As the right shoulder was not mentioned by the claimant on 7 June this suggests the history on 11 June 2019 was correct that is that right shoulder pain commenced at some stage after 7 June and before 11 June 2019. In the light of the claimant’s lengthy right shoulder pre-accident history, this evidence along casts some doubt on the relationship between the right shoulder and the accident.
Dr Ebrahim in the certificate of fitness and capacity dated 19 June 2019 noted two injuries one of which was a right rotator cuff tear. Physiotherapy referrals and records include right shoulder pain, and the claimant complained to Dr Ebrahim of right shoulder pain regularly either as pain in the shoulder or as pain radiating from the neck. There was then a break in shoulder complaints during 2020 with no report of right shoulder or arm symptoms mentioned at 39 consultations with the claimant’s GP. While the claimant said she had continual right shoulder symptoms after the accident the absence of documented complaints is important to the Panel noting the claimant’s poor recall of her symptoms and her multiple accidents.
The Panel notes Ms Habib’s shoulder motion has deteriorated in comparison with the findings of other medical assessors involved in this case (see the attachment to these reasons). The claimant says this is because of increasing pain levels.
The Panel has considered the report of Dr McIntosh, and his description of the damage and biomechanical forces involved in the accident and the likelihood of injury. The Panel notes the repair to the claimant’s car cost $206.
It is the clinical judgment of the medical members of the Panel that in their experience, the mechanism of the subject motor accident (sudden braking and a minor impact) is not one that would be consistent with the occurrence of further rotator cuff and labral tears. For such to occur from a car accident, there would need to be a significant force applied to the right arm such as a fall onto outstretched arm, forceful direct impact to the right shoulder joint or else forceful reefing of the right arm in a cocked position. None of the latter could have occurred or did occur in the subject motor accident. The claimant was seated in the passenger seat of a modern motor vehicle. Her left shoulder was restrained by the seat belt and her left arm holding the passenger door handle. The claimant does not say her right arm hit anything and in fact has no recall of any part of her body impacting any part of the car. Her right shoulder is unlikely to have moved much or at all during the braking and impact.
The claimant’s MRI findings are constitutional, age-related and degenerative and in the clinical judgment of the Medical Assessors, the relatively minor nature of the MRI right shoulder findings is not consistent with the very gross limitation of the motion demonstrated by the claimant at the re-examination with Medical Assessor Lahz.
Of particular significance to the Medical Assessors, is that there were no objective clinical findings at the right shoulder. There was no muscle wasting which would be expected if the claimant’s gross loss of active motion were chronic. There was no evidence of any nerve injury such as to the brachial plexus, spinal cord, peripheral nerves or else cervical nerve roots to explain any restriction of motion. There were also no sensory abnormalities present and of note all upper limb reflexes were present. There was also no muscle spasm or else guarding at the neck capable of causing such a gross restriction of the right shoulder or any restriction at either shoulder.
The Medical Assessors are of the view that the re-examination findings offer no medically credible explanation for the gross loss of right shoulder motion observed at clinical examination. The complaints of right shoulder weakness and pain giving rise to gross reduction of movement were vague and non-specific and it is not medically credible that these could have or did arise from the motor accident with only minor forces imparted to the claimant’s body during braking and impact.
The Medical Assessors do not accept that the present loss of left shoulder movement is due to overuse stemming from a chronic right shoulder injury. Again, there were no objective clinical findings such as muscle wasting in the left shoulder musculature and no objective clinical findings to confirm the presence of a nerve injury involving plexus, nerve root, spinal cord or else peripheral nerve. The complaints of left shoulder weakness and pain giving rise to mild reduction of movement are non-specific and it is not medically credible that these could have or did arise from the motor accident.
The Panel does not accept that there was any specific or frank injury to either shoulder joint in the motor accident, given the lack of credible mechanism of injury as described above.
If the claimant did sustain an injury to either of her shoulders in the accident, then the Panel is of the view that the injury would be a soft tissue injury which has caused a minor, temporary exacerbation of the longstanding degenerative changes and pre-existing condition which dates back the claimant’s accidents in 2009, 2011, 2012 and 2014.

Did the claimant injure her head?

The claimant listed headache and migraine in the claim form. Dr Ebrahim did not include a head injury or headaches in his initial certificate of fitness and capacity. His note on 11 June 2019 says the claimant was getting headache from movement of her neck.
Dr Bodel was asked to assess “headache”. Medical Assessor Cameron was asked to assess a head injury resulting in headaches from a whiplash and soft tissue injury.
Ms Habib alleges that she has suffered headaches since the motor accident. The Panel has also identified headaches arising from previous accidents. Headache is a non-specific symptom with myriad causes. Clause 6.162 of the Guidelines provides that:
“Headache or other pain potentially arising from the nervous system, including migraine, is assessed as part of the impairment related to a specific structure. The AMA4 Guides state that the impairment percentages shown in the chapters of the AMA4 Guides make allowance for the pain that may accompany the impairing condition.”
Ms Habib said told Medical Assessor Lahz that no part of her body hit any part of the inside of the car. There is no contemporaneous evidence of any injury to the head such as a soft tissue injury which might have occurred if her head came into contact with the head rest. There is certainly none of the necessary medical evidence such as an altered Glasgow Coma Scale or documented post-traumatic amnesia duration or brain imaging abnormality to conclude that there has been a traumatic brain injury from the subject motor accident which could lead to any impairment to the central nervous system pursuant to cl 6.164 of the Guidelines.
The Panel is not satisfied that the claimant sustained a head injury or a head injury that has led to a brain injury or neurological cause of the claimant’s headaches. The Panel is of the view that any headaches if caused by the accident are most likely related to the claimant’s whiplash injury and in accordance with cl 6.162 of the Guidelines any impairment as a result is included as part of the impairment percentage for the cervical spine.
MRI scans of the neck and lower back show age-related degenerative changes, very common in the general population and not forming an explanation for the reported severe persistent symptomatology so long after the subject motor accident.

Did the claimant injure her cervical spine?

The claimant alleges an injury to her neck in terms that were referred to the Commission as follows:
“…multilevel cervical facet joint irritation and mild disc bulge, most pronounced at C5/6 (on background of severe whiplash injury) with radiculopathy. Pain down the right arm extending to the middle and index fingers of the right hand with numbness and tingling.”
The claimant alleged injuries to her neck in previous accident. A CT scan from June 2013 showed degenerative changes at C4/5 and C5/6 with indentation of the left paracentral cord at the C4/5 level. The most recent MRI of the cervical spine from April 2023 reported degenerative changes throughout. The Medical Assessors are of the view that the findings reported on the most recent MRI are degenerative and constitutional, and the two reports of scans show progression of the claimant’s degenerative disease.
The Medical Assessors are also of the view that the MRI reported findings do not correlate with Ms Habib’s complaints of severe neck pain with constant symptomatic referral to the whole of the right upper limb.
However, the Panel accepts based on the claimant’s history as confirmed by the relatively contemporaneous GP records that the claimant did injure her cervical spine in the accident and that the injury was a soft tissue injury on a background of degenerative changes.

What is the impairment resulting from the cervical spine injury?

The claimant reports pain in her neck. Ms Habib qualifies for a DRE Category I assessment on that basis.
Clause 6.40 of the Guidelines provide that:
“The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report.”
Clause 6.41 then says that: “…where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person's attention.”
On examination of the cervical spine, Medical Assessor Lahz records global restriction of movement without consistent restriction of some neck movements. The inconsistency was put to the claimant who said the inconsistency was due to her variable pain levels. The Panel is of the view that the inconsistent variation in neck movements cannot therefore be considered true dysmetria for the purposes of a permanent impairment assessment.
There were no other clinical findings reported by Medical Assessor Lahz such as muscle spasm or guarding.
The clinical judgment of the Medical Assessors is that the reported right upper limb symptoms (pain over all of the arm and dorsal forearm) and intermittent “pins and needles” in the tips of the middle finger are not symptoms in the pattern of a complete specific dermatome or dermatomes and therefore not non-verifiable radicular complaints arising from a particular nerve root injury or injuries.
The Panel is not therefore satisfied that the claimant has symptoms or findings which would satisfy a DRE Category II impairment.
The Panel also notes there are no objective clinical findings on re-examination of a DRE Category III impairment. There was no atrophy or muscle wasting, no loss of or altered sensation reproducible on testing, no loss or reduction of reflexes, no weakness on testing and negative nerve root tension signs. The claimant does not have radiculopathy.
The Panel is satisfied that the claimant has a DRE Category I WPI of 0% in respect of her cervical spine (neck) injury.

Did the claimant injure her lower back?

Medical Assessor Cameron says he was required to assess the following injury:
“…lumbar spine – central disc prolapse at L5/S1 causing minimal impression upon both S1 nerve roots (annular tear at L5/S1) with radiation of pain into both left and right legs; and/or, soft tissue injuries.”
The claimant sustained a fractured sternum with back pain in 1986, she had lumbar spine symptoms after her 2009 and 2012 accidents. A lumbar spine CT scan in July 2013 showed bulging of the L4/5 and L5/S1 discs. An MRI on 9 September 2019 revealed a mild central disc bulge at L4/5 and a disc prolapse at L5/S1.
It is the clinical judgment of the Medical Assessors that the most recent MRI of the lumbar spine from 2023 suggest there is some contact of disc with S1 nerve roots. The claimant’s symptoms however do not correlate with bilateral S1 radiculopathy nor the presence of S1 non-verifiable radicular complaints. The reported MRI findings do not correspond with the reported lower limb symptoms. The clinical judgment of the medical members of the Panel is that the contact with the bilateral S1 nerve roots is a constitutional finding secondary to degenerative change and not a finding due to any trauma from the 2019 motor accident.
The Panel accepts on the basis of the claimant’s claim form and the contemporaneous records that Ms Habib sustained a soft tissue injury of her lower back on a background of degenerative changes.

What is the impairment resulting from the lower back injury?

Ms Habib complained of lower back pain in the midline with radiation to the left buttock and back of the thigh associated with episodic muscle spasms. On examination, Medical Assessor Lahz observed and found no spasming and the claimant was tender only at the midline L4/5 level and not in significant pain and had no radiating pain that day. Medical Assessor Lahz commented that the radiating symptoms were not in a specific dermatomal pattern indicative of a specific nerve root injury and thus she found no non-verifiable lower limb radicular complaints.
On examination of the lumbar spine, Medical Assessor Lahz found there was global restriction of movement without dysmetria and no muscle spasm or guarding and as explained in the paragraph above no non-verifiable radicular symptoms. The Panel is satisfied the claimant does not have symptoms or findings that would satisfy the DRE II requirements in the Guidelines.
There were none of the five signs of radiculopathy present on examination by Medical Assessor Lahz. There was no muscle wasting, no weakness, no loss of or altered sensation in the lower limbs, no neural tension signs and no loss or reduction in reflexes. The claimant does not have lumbar radiculopathy.
The Panel is satisfied that the claimant has a DRE Category I WPI of 0% in respect of her lumbosacral (lower back) injury.

Did the claimant injure her lower hips or pelvis?

The claimant alleges injuries to her pelvis and both hips. The Commission referred the following to Medical Assessor Cameron for assessment:
(a) pelvis – bilateral sacroiliac joint incompetence; pubic synthesis pain bilaterally (pelvis dysfunction), and
(b) both hips – left sacroiliac joint incompetence with associated several tendon enthesopathies and hip impingement, right greater than left, and left sided S1 neural tension and irritation.
Ms Habib reports symptomatic referral from the lumbar spine to the left buttock and posterior thigh which has been dealt with in the assessment of the lumbar spine above. Hip or pelvic pain was not recorded in the claim form or the original medical certificate. Dr Ebrahim says in his letter of 11 November 2019 that his notes indicate right hip tenderness, and he wished to minor the left hip and that in August the claimant complained of left hip pain and in October 2019 the claimant was referred for investigation of her hip and pelvis pain with concern about the sacroiliac joints.
The claimant has been diagnosed by Dr Saunders with left SI (sacroiliac) incompetence and pelvic dysfunction.
The Medical Assessors are of the view that sacroiliac incompetence or pelvic dysfunction could not have been and was not caused by the 2019 motor accident. There is no credible mechanism for such an injury to occur as it is the clinical judgment of the Medical Assessors that this would have required considerable front end or side impact forces which were not present in the subject motor accident (sudden braking and minor impact).
If there was such an injury the Panel notes that sacroiliac incompetence is not a condition assessable by way of the diagnostic estimates criteria for WPI according to Table 64 at page 85 of AMA 4 Guides. Assessment of the pelvis requires consideration of section 3.4 of AMA 4 Guides and none of the injuries there are relevant as there is no evidence of any pelvic fractures.
If any impairment is to be allocated for sacroiliac incompetence and pelvic dysfunction injuries, the Medical Assessors are of the view that the most appropriate methodology for assessment would be by measuring active hip motion.

In accordance with Table 40 at page 78 of AMA 4 Guides:
(a)    mild impairment (2%) is allowed for less than 100 degrees of hip flexion. The claimant demonstrated 100 degrees of flexion in the left and 120 degrees in the right on examination by Medical Assessor Lahz – there is therefore no assessable impairment;
(b)    abduction of both the right and left hips was 40 degrees and an impairment is allowed only if the measurement was less than 25 degrees;
(c)    adduction was also 40 degrees on both sides again there is no impairment for a range of motion greater than 15 degrees;
(d)    internal rotation was 30 degrees on each side in Ms Habib’s case which does not attract an assessable impairment (which depends on there being less than 20 degrees of motion);
(e)    external rotation was 40 degrees on each side and impairment can only be assessed if there is 30 degrees or less of motion;
(f)    there is no abduction contracture on either side which again does not translate to an assessable impairment, and
(g)    there was a mild reduction in left hip flexion compared with right due to low back pain although this was not severe enough to warrant WPI according to the relevant table in AMA 4 Guides.
While the Panel is not satisfied that there was any specific, direct or frank injury to the claimant’s pelvis or hips sustained in the accident, if there was such an injury, any impairment arising from those conditions would be assessed at 0% in any event.

CONCLUSION

In accordance with the detailed findings above, the claimant’s current impairment is:
(a)    left knee  no injury but if injured         0%
(b)    left ankle  injured and recovered        0%
(c)    right knee                  no injury but if injured         0%
(d)    right arm and wrist      no injury but if injured         0%
(e)    left wrist  injured and recovered        0%
(f)    head  no injury but if injured         0%
(g)    right shoulder             no injury
(h)    left shoulder               no injury
(i)    cervical spine             DRE I  0%
(j)    lumbar spine              DRE I  0%
(k)    pelvis and hips           no injury but if injured         0%.
The Panel notes that other examiners have assessed the claimant as having a greater impairment. Paragraph 6.21 of the Guidelines says that “the evaluation should only consider the impairment as it is at the time of the assessment.” The Panel’s evaluation has been undertaken at a point in time later than these other assessments and more than five years after the accident. Reflecting the soft tissue nature of the injuries sustained, it is the Panel’s view that the claimant has recovered from many of her injuries and those that remain have improved.
The Panel notes the claimant’s submissions that other examiners have found radiculopathy. Radiculopathy is a medical term used by doctors in clinical practice. In the MAI Act and the Guidelines radiculopathy is defined and requires specific clinical findings to be satisfied. Dr McBurnie for the insurer did not find radiculopathy. She assessed 5% WPI in the back and neck on the basis of dysmetria. Dysmetria is not one of the five signs of radiculopathy set out in the Guidelines. Dr Bodel found non-verifiable radicular symptoms in the back and neck and assessed 5% WPI but he found none of the five signs of radiculopathy present on his examination.
As the Panel has found a degree of impairment different to that recorded by Medical Assessor Cameron in his certificate, it follows that his certificate must be revoked even though the outcome remains the same.
The Panel will combine the findings above with Medical Assessor Garvey’s pursuant to s 7.26(8) of the MAI Act.

ATTACHMENT A SHOULDER MOTION

Left Shoulder Normal in brackets (degrees)	Dr McBurnie 24/02/2022	Dr Bodel 17/03/2023	Medical Assessor Cameron 15/02/2024	Review Panel 18/09/2024
Flexion (180)	160	Normal	Normal	120, 110, 130
Extension (50)	60	Normal	Normal	40, 40, 30
Abduction (180)	140	Normal	Normal	100, 130, 100
Adduction (50)	No record	Normal	Normal	Normal
Internal rotation (90)	60	Normal	Normal	80 (arm at side) 70 (in abduction)
External rotation (90)	50	Normal	Normal	70 (arm at side) 60 (arm abducted)

Right Shoulder Normal in brackets (degrees)	Dr McBurnie 24/02/2022	Dr Bodel 17/03/2023	Medical Assessor Cameron 15/02/2024	Review Panel 18/09/2024
Flexion (180)	85	120	30	30, 20, 10
Extension (50)	25	30	30	20, 20, 30
Abduction (180)	45	90	30	20, 20, 20
Adduction (50)	No record	10	30	20, 20, 20
Internal rotation (90)	30	50	60	40 (arm at side)
External rotation (90)	45	50	60	50 (arm at side)

Movement	Right	Left
Abduction	20, 20, 20	100, 130, 100
Adduction	20, 20, 20	50 (full)
Flexion	30, 20, 10	120, 110, 130
Extension	20, 20, 30	40, 40, 30
Internal rotation	40 (arm at side)	80 (arm at side) 70 (in abduction)
External rotation	50 (arm at side)	70 (arm at side) 60 (arm abducted)

[2024] NSWPICMP 682

26 September 2024