Habib v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Habib v AAI Limited t/as GIO [2024] NSWPICMP 96
CLAIMANT:	Mohammad Hassan Habib
INSURER:	AAI Ltd t/as GIO
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Sophia Lahz
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	19 February 2024
CATCHWORDS:	MOTOR ACCIDENTS – Claimant was a front seat passenger in a car driven by his wife when it left the road and hit a tree; he suffered a fractured upper arm and a number of soft tissue injuries; Held – original medical certificate set aside regarding degree of permanent impairment; on review, the Panel found a total whole person impairment of 7% for left shoulder/arm; soft tissue injury with healed proximal humeral fracture; the other soft tissue injuries had resolved and the motor vehicle accident did not materially contribute to any right shoulder condition nor exacerbate any such condition; because left and right shoulder range of motion measurements at examination were inconsistent they cannot be used as a valid parameter of impairment evaluation; the Panel used its discretion in considering what weight to give other available evidence to determine if an impairment was present.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Ian Cameron dated 6 June 2023 regarding permanent impairment. 2. The Review Panel issues a new certificate determining that: (a) the following injuries were caused by the motor accident and give rise to a permanent impairment of 7% which is not greater than 10%: · head – soft tissue injury – now resolved; · cervical spine – soft tissue injury now resolved; · left shoulder/arm – soft tissue injury with healed proximal humeral fracture – 7% whole person impairment; · left leg – soft tissue injury – now resolved, and · right leg – soft tissue injury – now resolved. (b) The following injuries were not caused by the motor accident: · right shoulder – soft tissue injury.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

On 12 July 2018 Mohammad Hassan Habib (the claimant) was a front seat passenger in a 1998 Toyota Camry driven by his wife. The car left the road and ran into a tree on McCourt Street Wiley Park.
In his application for personal injury benefits form Mr Hassan says that as a result of the accident his injuries included: fractured left humerus, neck injury, right leg and left leg injury, injuries to both shoulders, head injury and left rib injury.[1]
[1] Claimant’s bundle A 1 p 25.
Mr Hassan has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
AAI Ltd t/as GIO (the insurer) is the relevant insurer with liability to pay any damages to Mr Hassan under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Hassan as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
The medical assessment was referred to Medical Assessor Ian Cameron. He assessed Mr Hassan on 23 May 2023 and issued a certificate dated 6 June 2023.
Medical Assessor Cameron assessed the degree of permanent impairment and found that the following injuries caused by the motor accident give rise to a permanent impairment of 5% and is not greater than 10%: left leg – soft tissue injury, left shoulder – soft tissue injury, left arm – humeral fracture, right leg – soft tissue injury, head – soft tissue injury, cervical spine – soft tissue injury and right shoulder – soft tissue injury .
Mr Hassan has sought a review of the certificate of Medical Assessor Cameron.

REVIEW PROCEDURE

[2] Section 7.20 of the MAI Act.

An application for review of the medical assessment of Medical Assessor Cameron was lodged on 5 July 2023. This is within 28 days of the date on which the certificate of was made available to the parties on 8 June 2023.
On 31 July 2023, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
The grounds for review advanced by the claimant included that the Medical Assessor’s certificate contains inconsistent reasoning in relation to the assessment of the claimant’s bilateral shoulder impairment.
ASSESSING THE CAUSATION OF INJURIES - RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
2.     “6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
3.     'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
4.1.      The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
5.2.      The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
6.     This, therefore, involves a medical decision and a non-medical informed judgement.
7.     6.7   There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In Norrington v QBE Insurance (Australia) Ltd[3] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
[3] [2021] NSWSC 548, Norrington.
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
Brereton J referred to the decision of Campbell J in Owen v Motor Accidents Authority (NSW)[4] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where:
[4] [2012] NSWSC 650, Owen.
8.“…busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]).”
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[5] where the Court stated at [64]:
[5] [2016] NSWCA 229, McGiffen.
9.“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
Even more recently In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[6] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.
[6] [2021] NSWSC 804, Kinchela.
The difficult issue of how medical assessors are required to assess the causation of injuries in a motor accident has been recently considered in a number of cases. Some of these recent cases are referred to below.
In Briggs v IAG Limited trading as NRMA Insurance (No. 2)[7] his Honour Justice Wright stated at [35]:
[7] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
10.“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
11.6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
12.6.6     Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
13.'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
14.1.         The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
15.2.         The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
16.This, therefore, involves a medical decision and a non-medical informed judgement.
17.6.7     There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.’”
In Briggs v IAG Limited trading as NRMA Insurance (No. 2),Wright J set out some fundamental principles of how medical assessors are required to approach the question of causation in accordance with the Guidelines (in the context of errors made by the second review panel). His Honour said, at [75]-[77]:
“75.   This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76.    In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77.    In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[8] her Honour Harrison AsJ found that a third review panel’s decision on causation was based wholly on its findings that radiological changes cannot be scientifically proven to be traumatically caused. Her Honour found that in conducting its assessment the third review panel failed to take into account all of the relevant evidence referred to by Wright J in the above passage from Briggs (No. 2). Her Honour then stated:
[8] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41].
“42. The third review panel failed to take into account all relevant evidence as required by clause 5.6 of the guidelines,and in light of all that material and in accordance with cll 6.6 and 6.7 of the guidelines, the panel failed to make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to the plaintiff’s injury.
43. In relation to the finding as to causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In the same way that the second review panel had fallen into error, the third review panel failed to address the question of causation on the balance of probabilities, instead requiring that the claimant establish causation of the disc injury to the level of medical certainty, rather than on the balance of probabilities.”
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[9] her Honour Harrison AsJ referred again to the decision of Wright J in Briggs (No. 2) where his Honour cited the following cases and commented:
[9] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [44].
“71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 as follows, at 242:
… it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.
72.    Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73.    The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74.    For the reasons set out above, the review panel failed to deal with the issue of causation according to law, and, in doing so, constructively failed to exercise its jurisdiction.”
ASSESSMENT UNDER REVIEW
The medical assessment was referred to Medical Assessor Ian Cameron. He assessed Mr Hassan on 23 May 2023 and issued a certificate dated 6 June 2023.
Medical Assessor Cameron assessed the degree of permanent impairment and found that the following injuries caused by the motor accident give rise to a permanent impairment of 5% and is not greater than 10%.
In summary Medical Assessor Cameron found that the following injuries were caused by the motor accident:
•       left leg – soft tissue injury - 0% whole person impairment (WPI).
•       Left shoulder – soft tissue injury – there are no major significant pathological changes present in this shoulder. Therefore the assessment of permanent impairment is made by analogy. 5% WPI.
•       Left arm – humeral fracture – the fracture has united without complication. There is no specific method of impairment evaluation available for it.
•       Right leg – soft tissue injury – 0% WPI.
•       Head – soft tissue injury – soft tissue injury to the head has resolved. The head injury is not assessable as causing permanent impairment.
•       Cervical spine – soft tissue injury – Mr Habib has “no significant clinical findings” with reference to this spinal region, and therefore DRE Cervicothoracic Category I (0% WPI) is the appropriate evaluation.
•       Right shoulder – soft tissue injury – 0% WPI.

EVIDENCE BEFORE THE PANEL

The Panel issued Directions to the parties on 22 November 2023 requiring each party to file an indexed, paginated bundle of documents. In response to these Direction the solicitors for the claimant and insurer both uploaded to the portal an indexed bundle of documents.
The claimant and insurer have filed with the Personal Injury Commission (Commission) over 1,000 pages of hospital notes, clinical doctors notes, treating doctor records, rehabilitation notes and medicolegal reports. The Panel has carefully reviewed and taken all these notes and medical records into account but has not attempted to summarise or detail all of the medical records in these reasons.

The Panel notes in Roger v De Gelder [2015] NSWCA 211, the Court of Appeal determined that the statutory obligation of a Medical Assessor is to review the evidentiary material placed before him/her in order to determine whether the degree of permanent impairment to the injured person caused by the motor accident is greater than 10%. The statutory duty does not go so far as to impose a precise obligation to consider and discuss every piece of evidence placed before the Medical Assessor.
Application for Personal Injury Benefits
In the Application for Personal Injury Benefits dated 12 July 2018 Mr Hassan says that as a result of the subject accident his reported injuries included: fractured left humerus, neck injury, right leg and left leg injury, injuries to both shoulders, head injury and left rib injury.[10]
[10] Claimant’s Bundle A 1 p 25.
In 2015 the claimant was involved in an earlier motor accident at Lakemba. In his Motor Accident Personal Injury Claim Form dated 10 December 2015 Mr Hassan listed his injuries as: neck whiplash, back, left and right shoulders, left and right hands, left-sided groups, legs pain, stress, anxiety, depression, and forgetfulness.[11]
[11] Insurer’s bundle R 5 p 25
Mr Hassan has also referred to a workers compensation claim made in 2002.[12]
Ambulance and police reports
[12] Insurer’s bundle R 5 p 28
There was an ambulance report dated 12 July 2018[13] which reported that: “Denied C – spine tenderness …Pt hit forehead on windscreen. Nil Nausea,GCS 15 , obs within safe ranges…Pt deformity to left humerous [sic] with crepitation on movement and grimace…”
[13] Claimant’s bundle A 3 p 41.
There was a police report dated 12 July 2018[14] which reported that there was a single vehicle accident where it had mounted a traffic island and hit a tree.
Hospital reports
[14] Claimant’s bundle p 37.
The Emergency Department (ED) discharge referral from Bankstown Hospital dated 12 July 2018 which contained the following description of the accident and injuries.[15] The clinical notes record that claimant stated that his head hit the vehicle’s windscreen but with no loss of consciousness. Claimant was complaining of pain in the right knee. Pain and swelling of the left humerus with an X-ray that demonstrated a midshaft spiral fracture.
Pre-accident treatment medical evidence
[15] Claimant’s bundle A 18 pp 79-81.
There were comprehensive medical records available for the claimant’s medical history prior to motor vehicle accident.
In bundles of documents the parties produced over 600 pages of clinical and treating medical records including medico-legal reports for the claimant prior to the subject motor accident.
The Panel has reviewed all the pre-accident treating medical records produced by both the claimant and the insurer. Some of these pre-accident medical reports are referred to briefly below.
The Panel notes that the pre-accident medical evidence shows that Mr Hassan reported a significant previous history of numerous injuries including to his neck, spine, shoulders, knees and arms. These records refer to two possible prior workplace accidents in 2001 and 2002 and one prior motor accident in 2015.[16]
[16] It is unclear from the medical records whether there was one or two workplace accidents in 2001 or 2002.
The records from A to Z Medical Centre show longstanding musculoskeletal joint pain with restricted lumbar spine motion with complaints of back and buttock pain recorded from the commencement of the notes in August 2009.[17] Neck pain with radiculopathy, back pain and left knee pain are recorded by Dr Alsayed in August 2009. The medical notes record neck pain with radiculopathy and back pain recorded repeatedly throughout the medical file from 2009 to 2020. The claimant also reported bilateral shoulder pain which was noted on 6 January 2014.
[17] See A16 pp 125 to 574 and MAS Medical Assessment Certificate from Medical Assessor Alan Home, insurer’s bundle R 9 pp 59-70.
There a detailed summary of the claimant’s medical conditions dated 10 August 2015 prepared by his treating general practitioner Dr Alsayed.[18] These conditions included canal stenosis of the lumbar spine, disc osteophyte complexes in the cervical spine at the C3/C4 and C4/C5 levels and left knee contusion.
[18] Claimant’s bundle A 15 p 92.
The clinical notes in the period leading up to the 2015 motor vehicle accident, there is reference to joint pain, restricted movement, back pain with restricted tolerances and ongoing treatment with Panadeine Forte analgesia, as recorded by Dr Alsayed on 9 October 2015. Neck pain with radiculopathy, back pain and shoulder pain are recorded in August 2015. Asymmetrical spinal motion with complaints of sciatica is recorded by Dr Alsayed in August 2015.
On 6 July 2017 the claimant had a consultation with Dr Alsayed who noted: “pt still complaining of lower back pain rediate to lt leg seen in ED and another GP given palexia 150 mg bd but did not take it pt had ctscam LS SPINE EXPLAIN results.”[19]
[19] Claimant’s bundle A 16 p 209.
There are detailed clinical notes from neurosurgeon Dr Simon McKechnie from 2014 onwards.[20] In a report dated 28 October 2020 Dr McKechnie wrote that he saw Mr Hassan on 19 March 2014. He said that the claimant suffered a workplace injury in 2002 was lifting a heavy drum of oil. He developed the onset of neck, lower back and left knee pain and his symptoms have continued since that time. Recently the claimant reported an increase in neck and lower back pain and intermittent radiation to the left arm and left leg.
[20] Claimant’s bundle A 15 p 83-124.
Dr McKechnie next saw the claimant on 14 July 2014 after reviewing an MRI of his cervical spine. This showed several small disc protrusions with several areas of foraminal stenosis.
Dr McKechnie then saw the claimant several times over the latter half of 2014 and early 2019.
In consultations on 11 December 2014 and then 5 January 2017 he noted that the claimant was still complaining of ongoing chronic neck pain.
In a consultation on 3 April 2019 the claimant continued to complain to Dr McKechnie of neck pain extending across the left shoulder and into the arm consistent with radicular pain. An MRI of the cervical spine demonstrated several disc protrusions compressing the left side C6 nerve root.
The 2015 motor vehicle accident is noted by Dr Islam on 12 October 2015, the day of the accident. It is recorded the claimant was driving at 40kkph when he was hit by a car coming from a driveway. He was wearing a seatbelt. He felt pain in the left side of his neck and left side of his chest wall with restricted neck motion recorded. Tenderness and restricted neck motion was recorded. There was no record of shoulder or knee complaints.
On 15 October 2015, Dr Alsayed reports back pain treated with Panadeine Forte analgesia.
On 21 October 2015 Dr Islam note the claimant had restricted neck motion. There is no record of shoulder or knee complaints.
On 3 November 2015, Dr Islam records back pain, neck and rib pain and right leg pain radiating and right knee pain, bilateral elbow pain and wrist pain.
On 24 March 2016, there is record of neck pain, back pain, right knee pain and bilateral shoulder pain.
In a report dated 9 August 2016 Dr John Davis, occupational physician wrote a supplementary report about a motor vehicle accident which occurred on 12 October 2015.[21] This report stated in part as follows:
“Mr Hassan clearly suffered significant ongoing trauma and impairment prior to this assessment as he had not undertaken any formalised work for a period of 13 years. To assist you therefore he will never return to any form of employment….
He did require provision of a considerable amount of domestic assistance prior to this accident due to his work injury'. …
[21] Insurer’s bundle R 6 p 36.
Mr Hassan has a past history of radicular symptoms although there was; no evidence of true radiculopathy present at the time of his clinical assessment.”
There is a report from Dr Mark Burns occupational physician dated 5 December 2016. [22] In this report Dr Burns notes that the claimant saw Dr Medhat Gurigis “…for many years for injuries involving his neck and back following a work injury in 2001.”
[22] Insurer’s bundle R 8 p 51.
Dr Burns wrote that the claimant:
“… reported that he was employed in 2001 by Qantas Catering and sustained an injury to his neck and back When he fell at work. He reported constant ongoing treatment in the form of medical appointments, medication and intermittent physiotherapy up until 2015 when his claim was finalised…. [ He ] was never able to get back to normal duties; In fact, it appears that he never returned to full hours and was eventually terminated in 2005. He did though continue having significant pain and discomfort in his neck and low back and was seeing Dr Alsayed for treatment for these conditions right up until the current accident. From Dr Alsayed’s medical notes. I note that he saw Mr Hassan for back pain and sciatica only three days before the current accident and had seen him for neck pain with referred symptoms into the arms only one month or so before the current accident.”
Dr Burns then reported that he viewed an ultrasound of both shoulders dated 24 March 2016 which revealed mild tendonitis in the supraspinatus tendon and infraspinatus tendon with no evidence of rotator cuff tear. He also viewed a bone scan dated 31 March 2016 which revealed mild increase in cervical facet joints and degenerative changes. There are also degenerative changes in the shoulders elbows hips ankles and feet.
On examination Dr Burns noted about 50% reduced range of motion in the cervical spine and thoracic spine. In the lumbar spine there was about a 25% reduction in flexion and extension. Also on examination Mr Hassen showed significant inconsistencies in the range of motion displayed for both shoulders.
Dr Burns’ diagnosis was that Mr Hassan sustained minor aggravation to pre-existing degenerative changes in both his cervical spine and lumbar spine in the 2015 motor accident. Dr Burns did not believe that Mr Hassan sustained any discrete injury to either shoulder.
Dr Burns then wrote that:
23.“Mr Hassan agreed today that he was having substantial amounts of ongoing treatment associated with his worker’s compensation injury in 2001 right up until 2015 when his claim was finalised. On questioning, he agreed that his neck and back had not actually resolved but that the insurance company had declined further liability and the claim was stopped. It would appear that he has taken the occurrence of the motor vehicle accident as a reason to commence all of the medication and treatment he was having prior to the accident when his claim for worker’s compensation was being allowed; I note today tihat he has had Significant physiotherapy and also has recommenced seeing Dr Guirgis and Dr Gorman, both of whom he was seeing before the current motor vehicle accident.”

Dr Burns concluded that Mr Hassan’s total WPI was2% for tendonitis in the left shoulder.
There is a report from Dr Medhat Gurigis, orthopaedic surgeon, dated 6 February 2017.[23] In this report Dr Gurigis writes he first saw Mr Hassan on 7 March 2016 when he described the claimant’s history as:
24.“… gave me the history of being involved in a road traffic accident on 12-10-2015 when while being a driver of a car, wearing the seat belts, the car was hit by another car that pulled from a driveway hitting the passenger side of his car. His car was written off. In that accident* he sustained injuries to the left side of his chest wall, to the left > right shoulders, and to his right knee and also further injuries to his neck, lower back, and left knee…. in regards of injuries he sustained to his lower back during his duties as catering assistant after lifting a 20-litre drum full of oil on 19-1-2003.”
[23] Insurer’s bundle R 5 p 28.
Dr Gurigis then examined Mr Hassan’s injuries which included: left and right shoulders, cervical spine, lumbar spine, right and left knee. Dr Gurigis concluded by setting out his findings of WPI as follows: left shoulder 7%, right shoulder 4%, cervical spine 5% pre-existing but 0%, lumbar spine 5% pre-existing but 0%, right knee 2% and left knee 0%. Dr Gurigis found a total combined whole person impairment of 13%.
There is a MAS Medical Assessment Certificate from Medical Assessor Alan Home dated 16 May 2017.[24] The certificate is an assessment of Mr Hassan’s injuries from the 12 October 2015 motor accident. The claimant reported current symptoms of constant neck pain and constant lower back pain which has continued since the accident. He reports left shoulder pain, which is constant, exacerbated by lying over his left side at night. He cannot lift his left arm much above the horizontal. The claimant states that he developed right shoulder pain about two to three months after the 2015 accident. At the left knee, he reports persisting pain that was also present prior to the accident. At the right knee, he reports the onset of pain following the accident.
[24] Insurer’s bundle R 9 pp 59-70.
Medical Assessor Home concluded that the claimant sustained the following injuries which were caused by the motor accident: left shoulder – soft tissue injury, left knee – aggravation of pre-existing condition, and right knee – contusion. He also concluded that the right shoulder injury was not caused by the motor accident.
Medical Assessor Home further concluded that the current permanent impairment for the claimant was 6% WPI with a 2% WPI reduction for pre-existing of the left knee giving a total final WPI of 4%.
Post-accident treating medical evidence

There are detailed medical records available for the claimant from after the subject motor accident.
The claimant was taken by ambulance to Bankstown Hospital shortly after the accident. These notes record that record that claimant stated that his head hit the vehicle’s windscreen but with no loss of consciousness. Claimant was complaining of pain in the right knee. Pain and swelling of the left humerus with an X-ray that demonstrated a midshaft spiral fracture.
After the subject motor accident on 12 July 2018 the claimant continued to consult with his treating general practitioner (GP) Dr Majd Arnaout and Dr Alsayed.[25] Dr Arnaout’s clinical notes show that the claimant continued to complain of neck and back pain with stiffness and limited lumbar spine movements. He also reported referred pain to the lower limbs.
[25] Claimant’s bundle A 16 p 200.
On 21 October 2018 he saw Dr Majd Arnaout and reported back pain, neck pain, shoulder pain. The claimant reported taking PT and his left arm improved gradually.
During 2018 and 2019 the claimant continued to consult with Dr Arnaout and Dr Alsayed. He reported ongoing hypertension, neck pain with radiation symptoms, back pain and depression.
In 2020 he was complaining to Dr Alsayed of pain in the shoulder and upper arm.[26] The severity of the pain varies from mild to very severe. The pain is aggravated by movements such as dressing and undressing, toilet activity, brushing the hair or lying on the shoulder. Lifting the arm out from the side above the level of the shoulder is usually painful.

[26] Claimant’s bundle A 16 p 128.

Medico-legal evidence

In the report dated 20 October 2020 Associate Professor Michael Shatwell, orthopaedic surgeon, found no right shoulder injury.[27] The range of motion for the right shoulder converted to 1% WPI but he could attribute this to the accident. The only impairment he found that was related to the subject motor accident was 7% WPI for the left shoulder which was assessed by using Table 3 on Page 20 of the AMA 4 Guides. Dr Shatwell found the claimant had no other impairment related to the motor accident in question.
[27] Insurer’s bundle R 2 pp 7-17.
In the report dated 9 June 2022 Dr Andrew Porteous, occupational physician did not find any injury to the right shoulder as being causally related to the accident. Dr Porteous also made similar WPI findings to Associate Professor Shatwell which was 7% for the left shoulder and 1% for the right shoulder.
X-ray, CT Scan and MRI evidence
On 22 October 2015 a CT scan of the cervical spine was performed by Dr Melvin Chew.[28] The scan found:
“Broad-based posterior disc bulges of G.3,/4 and C475 levels' without nerve root compression or canal stenosis. Posterocentral disc protrusion at C5/6 level without canal stenosis arid mild left-sided foraminal stenosis. Mild bilateral foraminal stenosis at C6/7 level- No visualised nerve compression.”
[28] Insurer Bundle R 10 p 71.
On 23 March 2016 Mr Hassan had an ultrasound performed on his bilateral shoulders.[29] The ultrasound found no evidence of any rotator cuff tear or of any bilateral shoulder tendon impingement.
[29] Insurer Bundle R 11 p 73.
There is a whole of body bone scan dated 31 March 2016.[30] The scan showed mild cervical facet joint arthropathy in the mid-cervical spine. The scan also showed Synovitis/active arthritis is noted in the knees (particularly in the patellofemoral compartments), with degenerative change in the shoulders, SC joints, elbows, hips, right SI joint inferiorly, ankles, and feet.
[30] Insurer Bundle R 12 p 75.
Mr Hassan had a CT scan of his head performed on 10 September 2018, at request of his GP, Dr Majd Amaout. The CT scan of the brain skull was normal.
There is a cervical spine, both shoulders and lumbar spine X-ray dated 17 September 2018 performed by Dr Richard Wing. At the cervical spine there is degenerative disease with a disc bulge but no definite signs of fracture. At the left arm there is a comminuted spiral fracture of the proximal humoral shaft. At the lumbar spine there is no definite fracture seen with mild degenerative changes.[31]
[31] Claimant’s bundle A 5 p 49.
On 5 October 2018 a CT scan of the cervical spine was also performed by Dr Tej Dugal.[32] It showed a mild to moderate cervical spondylosis especially in the mid cervical region were there was some foraminal stenosis on both sides but no definite report of nerve root compromise.
[32] Claimant’s bundle A 9 p 57.
There is a CT scan of the lumbosacral spine dated 2 September 2019 with by Dr Eric Brecher. This shows mild to moderate degenerative spondylosis of the mid and lower lumbar spine.[33]
[33] Claimant’s bundle A 4 p 47.
There is a MRI of the cervical spine dated 13 March 2019 performed by Dr Geoffrey Parker.[34] This shows changes of cervical spondylosis at the disc levels between C3 and C7. Formal narrowing on the left at C5 C6 appears to be the most significant abnormality.
[34] Claimant’s bundle A6 p 52.
On 2 April 2020 the claimant had ultrasound scans of his left hip and left shoulder.[35] This showed mild to moderate tendonosis of the gluteus minimus and medius tendons where these attach to the greater trochanter. There was also a report of left sided trochanteric bursitis. In the shoulder, there was moderate to marked tendonosis of the supraspinatus tendon with subdeltoid bursal thickening consistent with bursitis.
[35] Claimant’s bundle A 8 p 55.

SUBMISSIONS

Claimant’s submissions
The claimant’s solicitors made two detailed submissions dated 5 July 2023 and another undated.[36] They submit that Medical Assessor Cameron found that the claimant sustained injuries to the left and right shoulder as a result of the accident. The claimant submitted that medico-legal experts relied on by the parties have each recorded restricted range of motion in both shoulders (See R2, Associate Professor Shatwell’s report dated 20 August 2020 at page 12 and AD3, Dr Porteous’s report dated 9 June 2022 at page 4).
[36] Claimant’s Bundle pp 1-2 and pp 9-13.
The submissions emphasise that Medical Assessor Cameron recorded that the left shoulder has a full range of motion, yet it is obvious that restricted range of motion is also recorded in the left shoulder, and a subsequent finding is made the left shoulder movements were inconsistent because of pain. Meanwhile, the right shoulder is recorded as having restricted movement yet WPI using abnormal range of motion is assessed at 0%.

The claimant contends that in relation to the right shoulder, using the abnormal range of motion method yields an upper extremity impairment of 18% which equates to 11% WPI. There is a clear inconsistency between this and the finding of 0% WPI for the right shoulder. Also the finding that there is a full range of motion in the left shoulder does not accord with the recorded range of motion, and upper extremity impairment.
The claimant submits that the certificate is inconsistent on its face. It found that the claimant sustained an injury to his right shoulder in the subject accident. Abnormal range of motion has been recorded in the right shoulder. However, when the Medical Assessor uses abnormal motion as a means of assessment, WPI is assessed at 0%. No reason is given by Medical Assessor Cameron as to why WPI is assessed at 0%.
The claimant refers to Clause 6.40 the Motor Accident Guidelines allows an Assessor to modify an impairment assessment where, “in spite of an observation or test result, the medical evidence appears not verify that an impairment of a certain magnitude exists.”
The claimant submits that Medical Assessor Cameron has not recorded the extent of the claimant’s impairment using the relevant guidelines. Medical Assessor Cameron has recorded range of motion of the shoulders but not converted his findings into upper extremity impairment. He has not undertaken the task of considering the magnitude of the impairment calculated and whether the medical evidence appears not to verify that impairment. A finding of significant pathological change is not required to make a finding of impairment using abnormal range of motion as a method of assessment.
Medical Assessor Cameron has not indicated whether he is of the view that the impairment calculated using range of motion was of such a magnitude that it would ordinarily be restricted to those with significant pathological change in the shoulder. Findings of this nature were necessary pre-requisites to a modification of an impairment assessment in accordance with Clause 1.40 of the Motor Accident Guidelines. Medical Assessor Cameron has incorrectly applied the relevant test and failed to properly expose the path of his reasoning.
In the undated submissions apparently made to Medical Assessor Cameron, the claimant does not dispute that he had neck complaints before the subject motor vehicle accident. In that regard, Dr Burns in a report dated 5 December 2016 (R8) notes that on examination the claimant complains of ongoing pain involving his neck which radiates towards his left shoulder. When asked to conduct a WPI assessment, Dr Burns considers that the cervical spine impairment is DRE Category I or 0% WPI.[37]
[37] Claimant’s bundle pp 9-13.
The claimant’s submissions acknowledge that he also had left shoulder complaints before the subject accident. These were considered by Medical Assessor Home in his Medical Assessment Certificate dated 16 May 2017 (R9). There was a diagnosis of soft tissue injury to the left shoulder. That assessment was undertaken over a year before the subject motor accident. The claimant submits that this assessment of the left shoulder should not be used to predict pre-existing shoulder impairment as it is not contemporaneous and does not allow for the possibility that the range of motion in the claimant’s left shoulder improved in the year before the subject motor vehicle accident.
The claimant further submits that there was a marked deterioration in the condition of the claimant’s left shoulder between 11 May 2017 (when he was examined by Medical Assessor Home), and the assessment undertaken by Dr Porteous on 26 May 2022. The claimant submits that the deterioration must be attributable to the subject accident.
Analysis of the Medical Assessment Certificate of Medical Assessor Home and the medico-legal report of Dr Porteous demonstrates a marked deterioration in the claimant’s left shoulder range of motion following the subject motor vehicle accident.
Insurer’s submissions
The insurer’s solicitor provided two written submissions dated 25 July 2023 and 25 February 2021.[38]
[38] Insurer’s bundle pp 1-4 and pp 75 -77.
In its submissions the insurer notes that Medical Assessor Cameron diagnosed the claimant with a soft tissue injury to the right shoulder. In relation to his WPI assessment, Medical Assessor Cameron concluded that “[f]or evaluation of the impairment associated with this injury the only applicable method is related to abnormal range of motion and using this method there is 0% WPI.”
Referring to the left shoulder the insurer notes that both Associate Professor Shatwell and Dr Porteous assessed 7% WPI for the claimant’s left shoulder.
Medical Assessor Cameron’s final assessment for the claimant’s left shoulder was 5% WPI.
The insurer submits that Medical Assessor Cameron appears to have made a typographical error in the certificate particularly in the two paragraphs on the bottom of page 3.
The insurer believes that the Medical Assessor Cameron may have mistakenly switched the references to left shoulder and right shoulder, and the measurements for the observed movements should only relate to the left shoulder. The reference to a full range of motion should be for the right shoulder, which will be consistent with there being no reported symptoms and the conclusion of soft tissue injury with 0% WPI. The insurer writes that such a conclusion is consistent with the history of the right shoulder condition previously noted by Associate Professor Shatwell and Dr Porteous who did not diagnose a specific right shoulder injury but similarly assessed 1% WPI.
The insurer also believes that Medical Assessor Cameron recorded the range of movements, only for the claimant’s left shoulder. It is bizarre to record full range of motion for the right shoulder and then note restricted range of movements in that same shoulder at the very next paragraph. Unless the claimant sustained a subsequent injury to the right shoulder there is no other logical explanation for this discrepancy.
The insurer does not agree with the claimant’s contention that the Medical Assessor applied an incorrect test when determining that the range of motion was not an appropriate means of assessing left shoulder impairment. On page 6 of the certificate, the Medical Assessor noted the inconsistent left shoulder movements and provided detailed reasons (including exercising his clinical judgment as the independent Medical Assessor) for his findings regarding the left shoulder.
The insurer submits that the assessment contains no material errors. It argues that when the certificate is carefully read as a whole (and considered with the medico-legal evidence from both parties) it appears that there are typographical errors which should only be regarded as obvious errors.
In the alternative, the insurer submits that a deduction for pre-existing impairment in the left shoulder must be made as provided under clause 6.31 of the Motor Accident Guidelines. The insurer refers to its initial submissions dated 25 February 2021 on this issue regarding the previous motor vehicle accident where the claimant was assessed at the then-MAS with 4% WPI for left shoulder injury. The insurer notes that Dr Porteous also made the appropriate deduction for this pre-existing impairment in the left shoulder.
In the submissions dated 25 February 2021 insurer refers to the MAS assessment with Medical Assessor Alan Home. In his MAS Certificate dated 16 May 2017 (‘R9’), Medical Assessor Home determined that the claimant sustained injuries to the left shoulder (soft tissue injury), left knee (aggravation of pre-existing condition), and right knee (contusion). He assessed 6% WPI (4% left shoulder, 2% left knee, and 0% right knee) but 2% was deducted as a result of the pre-existing impairment of the left knee. The final WPI assessment was 4% for the left shoulder.
The Insurer further submits that the claimant has not provided any medico-legal evidence to suggest that his degree of WPI is greater than 10%. The insurer relies on the report of Associate Professor Shatwell who assessed 7% WPI. As provided under Clause 6.31 of the Motor Accident Guidelines, the insurer submits that there is sufficient objective evidence of pre-existing impairment relating to the claimant’s involvement in a previous motor vehicle accident on 12 October 2015. Therefore, it is submitted that the appropriate apportionment be undertaken during assessment of the permanent impairment between the previous and the subject accident.

MEDICAL EXAMINATION

Medical Assessor Sophia Lahz saw Mr Hassan at the Commission suites on 30 November 2023. The duration of the assessment being 1 hour and 40 minutes. A Bengali telephone interpreter (Mr Kaiser Hussain CPN 9FR91N) attended although Mr Hassan did not refer to the interpreter, choosing to provide the history in English. He demonstrated satisfactory expressive and receptive English for the medical assessment.
Mr Hassan ’s nephew Amin attended the interview and examination and observed to assist Mr Hassan with undressing and dressing and general fetching/carrying.
Mr Hassan is aged 64-years-old and right-handed. He was born in Bangladesh and has lived in Australia since 1986. He is fully retired and was also retired at the time of the subject 2018 motor accident. He lives at Lakemba with his wife and four children aged 21, 15, 11 and 8.
He acknowledged a history of neck and low back pain (due to a work injury) before the 2018 motor accident although he said there were no symptoms in these body parts immediately before the 2018 motor accident. I put to him that he had consulted his GP re neck and lower back problems approximately 10-12 months before the motor accident (per the GP records) to which he replied that it was a long time ago and he could not definitely remember. He said that he had not been taking any painkillers at the time of the 2018 motor accident.
I asked Mr Hassan what body parts he believes were injured in the motor accident. He listed bruising/cuts of the head, the left knee, left (broken) arm/shoulder, neck and lower back. Later, he added the right knee and right shoulder although he said that the left knee and left shoulder were much more symptomatic than their right-sided counterparts.
He confirmed his involvement in the motor accident in which he had been a front seat restrained passenger in a car driven by his wife. Their vehicle collided at speed with a tree. He recalls knowing immediately after the incident that the car had been involved in a collision. He then says he became unconscious with his next memory occurring in the hospital when he awoke to find a drip in the back of his hand. His wife later told him that it took a while to get him out of the car because the door had been bent.
Mr Hassan said he was taken to Bankstown Hospital immediately after the collision, where he remained for the next three days. He recalls that his left arm was placed in a cast/sling which he thought he wore for about three months after the crash. He underwent various scans and he received painkillers.
He followed up with the orthopaedic specialist about left humeral fracture although no surgery was required. Once permitted to discard the sling/cast, he started physiotherapy and he is still having physiotherapy every two weeks to multiple body parts inclusive of the neck, left shoulder, right shoulder, lower back and legs.
He could not recall when he initially consulted his GP although the records indicate that he saw the doctor on 30 July 2018 (nearly two weeks post injury). By 1 August 2018 he was complaining of neck pain as well as back pain and right knee pain. I put to him that the early GP records make no reference to either the left knee or else the right shoulder although he had no explanation.
On review of the records, the first complaint of bilateral shoulder pain was made to the GP on 12/9/18, on which day X-rays of the shoulders, neck and lower back pain.
He went on to explain that he also developed left upper limb numbness/ pins and needles as well as left hand weakness, after the accident, he thought during the first six months. (A review of the GP records indicates an initial complain of left upper limb neurological symptoms on 17 January 2019, six months post-accident.) On this day, he was also referred to Dr McKechnie a neurosurgeon.
Dr McKechnie arranged various spinal (neck and lower back) injections which were of transient benefit only. He has not seen Dr McKechnie in over 12 months.
As noted he has continued physiotherapy comprising antalgic modalities such as heat packs and gentle exercises to build strength and range of motion. However, unfortunately, he continues to suffer from severe generalised body pain and there has not been any improvement.
He takes various medications including Duloxetine 30mg daily, Lyrica 75mg bd, Amitriptyline 25mg nocte, Panadeine Forte (two per day on average), Esomeprazole 20mg daily and Prexum 5mg daily.
He is a non-smoker and non-drinker.

Current symptoms

Mr Hassan complains of sharp 7-8/10 intensity posterior neck pain over C4-6 with symptom radiation over the left>>right trapezial regions and spread down the entire left upper limb into all of the fingers. He complains too of “pins and needles” enveloping the entire left upper limb inclusive of all fingers. He also referred to “biting” sensations affecting the medial aspect of the left arm.
The neck is constantly stiff and sore.
He said too that the neck pain can spread all the way down the spine reaching the lower back and beyond to the buttocks and lower limbs as far as the feet.
His left hand is weak and it is difficult to lift and carry objects. Some of the hand weakness is due to the generalised left upper limb pain with neck pain.
He does experience mild referred pain about the right shoulder girdle although there are no other symptoms reported in the right upper extremity.
There is pain all around the left shoulder girdle and left arm and he reported that it is especially uncomfortable to lie directly on the left upper limb when trying to sleep.
Low back pain (as noted) spread into the buttocks, with the worst pain alternating between right and left. Symptoms involve both legs globally inclusive of both feet.
Back pain is worse with sitting, bending and lifting.
He complains of intermittent bilateral anterior knee pain L>R worsened by prolonged sitting and standing L>R. He can walk for up to 15 minutes before needing a break. The knees do not swell, lock or else give way.
He described himself as continuing to live in a “world of pain” since the 2018 motor accident.
He also complains of dyspepsia for which the doctor has recently referred him to a specialist. He attributes these symptoms as well to the motor accident.
In addition, he mentioned on several occasions that he experiences flashbacks and nightmares of the accident.
From the head injury point of view, he mentioned frequent headaches and short-term memory difficulties for conversations as well as items he has been asked to pick up at the shops.
He still socialises regularly with members of his local community although he also spends considerable time at home resting due to the widespread pain.
He no longer drives since the motor accident.
Before the accident, he said he helped his wife with the laundry, gardening, vacuuming and dishwashing. He said he also enjoyed playing social cricket and soccer. However, all of these activities have now ceased.

Examination

On examination, he was a pleasant and polite man although he was very pain and symptom-focused.
There was normal body habitus with height 164cm and weight 65kg.
At the commencement of the physical examination, Medical Assessor Lahz asked him to make best possible efforts with all requested movements or else it would be difficult to interpret the clinical findings and further, it would not be possible to use range of motion to determine WPI if there were considerable variation in the movements demonstrated. Mr Hassan indicated that he would do the best he could despite pain.
His nephew assisted him undress and Medical Assessor Lahz observed satisfactory elevation of the right arm to almost the ear whereas he did not raise the left arm above the horizontal whilst removing his tunic.
During the examination, he described various symptoms to me whilst specific body parts were being either touched or else moved.
There was minimal wasting about the left shoulder girdle compared with the right.
On examination of the neck, there was tenderness over the mid and lower cervical spine without muscle spasm or guarding.
There were no non-verifiable radicular complaints in the upper limbs. Pain and paraesthesia affecting all fingers is not within the distribution of a single dermatome, and thus not a non-verifiable radicular complaint.
Active neck movements were flexion 1/3 normal range, extension 1/3 normal range, rotation to either side ½ normal range and lateral flexion to either side ¼ normal range. Neck movements were slowly and cautiously performed whilst he complained of posterior neck pain with movement in all directions.
Active range of shoulder motion is shown in the following table: All restricted shoulder movements were measured on three occasions with a goniometer to check for consistency.

Right Left

Abduction 160 130 120 90, 80,75

Adduction 60 40

Flexion 160 140 130 100 90 80

Extension 50 30 40 40

Internal rotation 80 80

External rotation 80 80

With the right hand, he could reach behind to the thoracolumbar junction although with the left hand, he could only reach the left buttock.
He complained of mild discomfort over the right trapezius when moving the ipsilateral shoulder which he ascribed to the neck injury from the motor accident.
Movements tended to decrease with repetition, and he said that this was due to increasing pain.
There was full range of motion at the elbows, wrists and hands although he complained of pain with all left upper limb movements.
There was no measurable wasting of the arms (27.5cm, 10cm above the elbow crease) or else forearms (24cm, 5cm below the elbow crease).
All upper limb reflexes were present and symmetrical.
He indicated a global sensory loss affecting the left upper extremity. There was normal sensation throughout the right upper limb.
There was normal power throughout the right upper limb. There was generalised “giving way” weakness of the left upper limb due to pain at the neck and left shoulder girdle. The weakness at the left upper limb was not within the distribution of a single dermatome.
Upper limb neural tension tests were negative bilaterally.
On examination of the lumbar spine, there was lumbosacral tenderness without guarding or else spasm.
Lower back movements were restricted to ¼ of normal range in all directions (flexion, extension, lateral flexion to either side) and associated with pain complaint. Again, the movements were very slowly and cautiously performed due to fear of evoked pain.
He was able to sit with each leg fully extended on the side of the couch so that lower limb neural tension tests were negative bilaterally.
Knee, ankle and hamstring jerks were present and symmetrical.

He indicated a global sensory loss affecting the entire left lower limb. There was normal sensation at the right lower limb.
There was normal strength throughout the right lower limb and generalised giving way weakness of the left lower limb associated with complaints of low back pain.
There were no non-verifiable radicular complaints in the lower limbs. Generalised limb pain and global limb numbness are not within the distribution of a single nerve root, and thus not non-verifiable radicular nature.
Hip movements and ankle/hindfoot movements were bilaterally full.
The knees moved through 0-140 degrees bilaterally and normally aligned. There was no crepitus and the knees were stable in the anteroposterior and mediolateral planes.

There was no measurable wasting of the thigh 37cm (10cm above the suprapatellar border) and calves 30cm at maximum mid-calf girth.

Summary

Mr Hassan has sustained soft tissue injuries of the cervical spine, lumbar spine and right knee as well as left proximal humeral fracture (shoulder) in the subject accident, based on the contemporaneous GP records.
The examination was time consuming due to abnormal illness behaviour with fear avoidance of movement in case of evoked pain. He needed much encouragement to move and provided a running commentary of prevailing symptoms throughout the examination process.
The best movements at the shoulders were observed initially, then decreasing with associated increased pain complaint.
He has not sustained any traumatic brain injury according to the definition in the Guidelines. There are no medically verified abnormalities of GCS and post-traumatic amnesia, and there is no abnormal brain imaging. At most, he has sustained a soft tissue injury to the head, with minor cuts and bruising.
Clinical examination of the cervicothoracic spine is compatible with cervicothoracic DRE I i.e. 0% WPI. There were no positive findings on clinical examination to indicate DRE exceeding 1. There were no dysmetria, no non-verifiable upper limb complaints, no focal wasting, no dermatomal sensory loss and no focal weakness. Upper limb reflexes were normal and there were no X-ray findings to indicate a DRE category exceeding DRE1.
There is no evidence of any right shoulder injury from the motor accident. The first complaint of bilateral shoulder pain was not made until nearly two months after the accident, in September 2018. The Panel do not accept that any present limitation of the right shoulder is due to an injury from the motor accident. Furthermore, Medical Assessor Lahz did not find the right shoulder restriction was secondary to neck pain. Right shoulder movements were also inconsistent given the Assessor had observed him lift the right arm to nearly reach the ear whilst he removed his tunic without apparent discomfort. At other times in the examination, he was moving and using the right arm normally.
The Panel notes also that there was no medical reason identified for any loss of motion at the right shoulder. There were no objective signs of nerve root, spinal cord or peripheral nerve injury capable of limiting motion. There was also no muscle spasm or guarding present which could result in right shoulder limitation.
Under the Guidelines because there is inconsistency in range of motion in the left shoulder at the re-examination (paragraph 6.84 (d) Guidelines), then it should not be used as a valid parameter of impairment evaluation.[39] Because the left shoulder is injured the Panel could not rely upon the impairment value(s) in the left shoulder to serve as a baseline in comparing it to the right shoulder. Accordingly, as range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the Panel has used its discretion in considering what weight to give other available evidence to determine if an impairment is present, (paragraph 6.84 (e) Guidelines).
[39] See Motor Accident Guidelines clauses 6.40 and 6.47-6.57.
The Panel also found inconsistent left shoulder range of motion with variation of movement of up to 20 degrees (as indicated in the above table depicting Assessor Lahz’s clinical examination findings). The Panel is unable to accord WPI for the left shoulder using observed active range of motion because it is unreliable. (Paragraph 6.84 (d) Guidelines.)
Although the observed active range of left shoulder movement cannot be used to determine WPI, the Panel accepts that the claimant has a permanent impairment at the left shoulder due to healed left proximal humeral fracture associated with a degree of stiffness and muscle atrophy. A shoulder fracture in an elderly man is a significant injury which would be anticipated to heal with residual stiffness, soreness and muscle atrophy.
Paragraph 6.24 page 88 of the Guidelines states: a condition may present that is not covered in these Guidelines or the AMA 4 Guides. If objective clinical findings of such a condition are present, indicating the presence of an impairment, then assessment by analogy to a similar condition is appropriate. The medical assessor must include the rationale for the methodology chosen in the impairment evaluation report.
The claimant demonstrated mild muscle wasting at the left shoulder girdle compared with the right, which is an expected objective finding associated with healed proximal humeral fracture and which has developed post-immobilization of the injured left shoulder. Lack of shoulder use due to the humeral fracture has served to cause muscle weakness and atrophy around the left shoulder girdle.
The Panel considers that an appropriate analogy for healed left proximal humeral fracture with residual muscle atrophy and stiffness would be “Impairment for Joint Crepitation- Moderate 20% joint impairment” (Table 19, page 59 AMA 4 Guides) applied to the maximum UEI of the glenohumeral joint of the shoulder 60% UEI per Table 18 page 58 AMA 4 Guides. Twenty percent of 60% UEI is 12% UEI or else 7% WPI (Table 3 page 20 AMA 4 Guides) for the left shoulder, which is a similar figure accorded the left shoulder by other medical assessors. And, based on the Panel’s clinical judgement, this is the degree of WPI that they would anticipate, giving consideration to the injury sustained, progress since then, available imaging and all available medical documentation.
Clinical examination of the right knee is consistent with 0% WPI according to the tables in AMA 4 Guides dealing with knee movement and (in this case) absence of crepitus.
In summary there is 7% WPI at the left shoulder due to healed left humeral fracture with residual stiffness and muscle atrophy due to the motor accident. There is no deduction for the right (uninjured) shoulder.
The degree of permanent impairment caused by the motor vehicle accident is 7% WPI which is not greater than 10%.

SUMMARY OF THE PANELS OPINION AND CONCLUSIONS

The Panel’s opinion is that the accident caused soft tissue injuries to the claimant’s: head, cervical spine, left shoulder, left leg and right knee. The accident also caused a fracture to the left arm proximal humerus. The accident did not cause an injury to his right shoulder.
The Panel notes that the pre-accident medical evidence shows that Mr Hassan reported a significant and long standing previous history of numerous injuries or symptoms including to his neck, spine, shoulders, knees and arms. Many of his treating doctors and also medico-legal reports record a history of long standing complaints and prior injuries to those areas injured in the subject motor accident. In 2017 Dr Guirgis was reporting on similar injuries suffered in the 2105 motor accident when found a total combined WPI of 13%. In a certificate dated 16 May 2017 Medical Assessor Home concluded that the claimant sustained the following injuries which were caused by the 2015 motor accident: left shoulder – soft tissue injury, left knee – aggravation of pre-existing condition, and right knee – contusion. He also concluded that the right shoulder injury was not caused by the motor accident. Medical Assessor Home further concluded that the current permanent impairment for the claimant was 6% WPI with a 2% WPI reduction for pre-existing of the left knee giving a total final WPI of 4% for the left shoulder.
The Panel accepts that Mr Hassan had sustained soft tissue injury to his head as a result of the accident. The Panel notes there was no evidence of any traumatic brain injury according to the definition in the Guidelines. There are no medically verified abnormalities of GCS and post-traumatic amnesia, and there is no abnormal brain imaging.
The Panel accepts that Mr Hassan had sustained soft tissue injury to his cervical spine as a result of the accident. At the re-examination and medical assessment the Panel found no asymmetry, dysmetria, muscle spasm, or guarding in either the neck or back. There were no ongoing radicular symptoms or signs in either upper limb. Therefore, the appropriate assessment for his cervical spine was DRE Cervicothoracic Category I, resulting in 0% WPI.
The Panel also accepts that Mr Hassan had sustained soft tissue injury and a healed proximal humeral fracture to his left shoulder which it has assessed at 7% WPI.
The Panel notes that at the re-examination there were no objective signs of nerve root, spinal cord or peripheral nerve injury capable of limiting right shoulder motion. There was also no muscle spasm or guarding present which could result in right shoulder limitation. The claimant was also observed to use the right arm/shoulder normally at other times during the re-examination.
The Panel notes that in its re-examination of Mr Hassan the range of motion demonstrated in both shoulders varied during the re-examination.
In reaching its conclusions about the causation of the claimant’s left and right shoulder injury the Panel has carefully considered and applied the definition of causation of injury under Part 6 of the Guidelines and also the court decisions referred to earlier in these reasons. The Panel is satisfied that the subject motor vehicle accident materially contributed to the claimant’s left shoulder injury or exacerbated any such injury. The Panel is also satisfied that the subject motor vehicle accident did not materially contribute to any right shoulder condition nor exacerbate any such condition.
In conclusion the Panel found that there was 7% WPI of the left shoulder and no injury of the right shoulder either directly or else indirectly (i.e. Nguyen case via symptoms referred from the cervical spine).
The Panel notes its findings on the left shoulder are not dissimilar from those of Associate Professor Michael Shatwell and Dr Andrew Porteous of 7% WPI for the left shoulder and 1% WPI for the right shoulder.
The Panel accepts that Mr Hassan had sustained soft tissue injury to his left leg but this has now resolved. At the re-examination the claimant indicated a global sensory loss affecting the entire left lower limb. The movements of both legs were essentially normal and there was no muscle wasting measured in either leg.
The Panel accepts that Mr Hassan had sustained soft tissue injury to his right knee but this has now resolved. At the re-examination both knees moved through 0-140 degrees bilaterally and were normally aligned. There was no crepitus and the knees were stable in the anteroposterior and mediolateral planes.

CONCLUSION AND CERTIFICATION

As a result of the above findings the Panel revokes the certificate of Medical Assessor Ian Cameron dated 6 June 2023 regarding permanent impairment and issues a replacement certificate in accordance with these reasons.
The new certificate is attached at the commencement of these Reasons.

Right	Left
Abduction	160 130 120	90, 80,75
Adduction	60	40
Flexion	160 140 130	100 90 80
Extension	50	30 40 40
Internal rotation	80	80
External rotation	80	80

[2024] NSWPICMP 96

19 February 2024