Hamed v Allianz Australia Insurance Limited

[2024] NSWPICMP 143

DETERMINATION OF REVIEW PANEL

CITATION:

Hamed v Allianz Australia Insurance Limited [2024] NSWPICMP 143

CLAIMANT:

Huda Hamed

INSURER:

Allianz

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

Drew Dixon

MEDICAL ASSESSOR:

Margaret Gibson

DATE OF DECISION:

11 March 2024

CATCHWORDS:

MOTOR ACCIDENTS – The claimant suffered injury on 7 February 2020 at Fairfield; the dispute related to the assessment of permanent impairment arising from injuries to the neck, low back and both shoulders; claimant re-examined; Panel required to form its own opinion on diagnosis and impairment; Insurance Australia Ltd v Marsh applied; Held – claimant assessed at 9% whole person impairment for both shoulders.

DETERMINATIONS MADE:  

CERTIFICATE
REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT
Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 (the Act)

1.     The Review Panel revokes the certificate dated 13 April 2023, and issues a new certificate determining that:

(a)   the following injuries caused by the motor acident gives rise to a permanent impairment of 9% and IS NOT GREATER THAN 10%:

·        soft tissue injury to the cervical spine;

·        soft tissue injury to the lumbar spine, and

·        soft tissue injuries to both shoulders.

STATEMENT OF REASONS

INTRODUCTION

1. Huda Hamed (the claimant) was injured on 7 February 2020 at Fairfield (the accident). The claimant was the seat-belted driver of her car that was travelling in a 50 kilometres speed zone. It was raining. The insured vehicle was coming from the other direction. The driver of that vehicle lost control in the wet conditions. That vehicle struck the claimant’s vehicle on the front and driver’s side. Her airbags deployed. The claimant’s vehicle sustained considerable damage. The claimant was conveyed to Liverpool Hospital by ambulance in a neck brace. She remained as an inpatient at Liverpool Hospital for three days. The insurer wholly admitted liability for the claim.

2. Upon discharge from hospital, the claimant’s local doctor arranged appropriate MRI scans of her cervical spine, both shoulders and lumbar spine. As a result of the findings, the claimant was referred for physiotherapy. When her symptoms failed to improve, the claimant was referred for specialist treatment. The claimant had an ultrasound-guided cortisone injection into her left shoulder, hydro-cortisone and local anaesthetic injections into her right shoulder with little improvement in her symptoms. The claimant eventually underwent surgical treatment in November 2021 on her right shoulder. For her neck, the claimant has had osteopathic treatment. Possible neck surgery has been discussed. The claimant has had conservative treatment for her lumbar spine.

3. Allianz (the insurer) insured the owner and/or driver of the offending motor vehicle for liability to pay the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017.

4. There is a dispute between the claimant and the insurer about the degree of permanent impairment under s 4.12 and Schedule 2 cl 2(a) of the Act. This is a medical dispute within the meaning of the Motor Accident Injuries Act 2017 (the MAI Act).[1]

   [1] See Division 7 and Schedule 2 cl 2 of the MAI Act

5. The claimant was referred for assessment by Medical Assessor Adam Rapaport, who certified as follows:

   “The following injuries caused by the motor accident give rise to a permanent impairment of 9% and IS NOT GREATER THAN 10%

   ·Mechanical trauma to the cervical region and aggravation of pre-existing asymptomatic degenerative changes.

   ·Mechanical trauma to the lumbar region and aggravation of pre-existing asymptomatic degenerative changes.

   ·Rotator cuff tear to the right shoulder.

   ·Rotator cuff tear to the left shoulder.”

6. Medical Assessor Rapaport found 8% whole person impairment for the left shoulder, 1% whole person impairment for the right shoulder, 5% whole person impairment for the cervical spine and 5% whole person impairment for the lumbar spine. He apportioned the whole of the impairments for the cervical spine and lumbar spine to pre-existing causes. Medical Assessor Rapaport noted that the clamant had been involved in a rear-end collision in 1998 which caused cervical spine injuries and that the claimant has long-standing symptoms of pain in the cervical spine.

7. Medical Assessor Rapaport was not provided with any original imaging. However, he notes that there is no documentation relating to the claimant’s bilateral shoulder symptoms which pre-dates the motor accident. He therefore accepts that the claimant’s rotator cuff injuries and bilateral labral tears are causally related to the motor accident (paragraph 6.31 of the Motor Accident Guidelines).

THE REVIEW

1. The claimant sought a review of Medical Assessor Rapaport’s certificate on the basis that the assessment was incorrect within the meaning of s 7.26 of the MAI Act, in a number of material respects. The claimant brought the application in the time prescribed by s 7.26(10) of the MAI Act and cl 34 of Procedural Direction PIC 7 (28 days).

2. Pursuant to s 7.26(5A) of the Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission).

3. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Medical Assessor.[2]

   [2] Section 41(2) of the PIC Act.

4. Rules 127 to 130 of the Personal Injury Commission Rule 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings based solely upon the written application.[3]

   [3] Rule 128 of the PIC Rules.

5. The review is by way of new assessment of all matters with which the medical assessment is concerned.[4]

   [4] Section 7.26(6) of the MAI Act.

ASSESSMENT UNDER REVIEW

1. The claimant submitted that Medical Assessor Rapaport erred in his assessment of the cervical and lumbar spines on the following bases:

   ·        as to causation, Medical Assessor Rapaport ascribed impairments in the cervical and lumbar spine to pre-existing chronic degenerative pathology without stating why he did not apportion some, any or all, of the spinal impairments to injuries caused by the accident.

   ·        Medical Assessor Rapaport disregarded the report dated 30 November 2022 by Dr John Davis, occupational physician, to which he does not refer.

2. The claimant submitted that Medical Assessor Rapaport’s assessment was incorrect in a material respect.

3. The claimant’s application for review was opposed by the insurer. The insurer noted that Medical Assessor Rapaport found that the accident caused soft tissue injuries and aggravation of chronic degenerative spondylitis in the cervical and lumbar spine, as well as rotator cuff tears and labral injuries to both shoulders. The insurer submitted that Medical Assessor Rapaport made no error in ascribing the whole of the impairments in the cervical and lumbar spines to pre-existing conditions. The insurer also submitted that Medical Assessor Rapaport considered all of the documentary material, including the report by Dr Davis, as well as the other medical evidence, to which the insurer refers. The insurer submits that Medical Assessor Rapaport was not required to provide an analysis of that material and that the claimant was not thereby denied procedural fairness.

4. The Review Panel notes that the claimant was assessed on 13 July 2022 by Dr John Bentivoglio, orthopaedic surgeon, jointly for the parties. Dr Bentivoglio found as follows:

   “Investigations done of her shoulders indicate that she had rotator cuff tendon tears and investigations done of her cervical and lumbar spine indicate that she has sustained some degree of discal damage together with aggravating pre-existing degenerative changes present in her cervical and lumbar spines”.

   Dr Bentivoglio found Diagnosis-Related Estimates (DRE) Category II impairments in the cervical and lumbar spines. That is, each 5% whole person impairment for each. That accords with the findings of Dr Davis.

5. President’s delegate, Rachel Brittliff, issued a Determination of an Application for Review of a Medical Assessment on 24 July 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that Medical Assessor Rapaport’s assessment was incorrect in a material respect. The basis of that decision was stated to be as follows:

   (a)   Medical Assessor Rapaport’s failure to articulate his reason for finding that the 5% whole person impairment of the claimant’s cervical and lumbar spine was not caused by the accident, and

   (b)   Medical Assessor Rapaport’s deducting the full value of impairment in both the cervical and lumbar spine, on the basis that it was pre-existing, notwithstanding his finding that the accident caused mechanical trauma and aggravation to the claimant’s pre-existing asymptomatic degenerative changes in her spine.

   Accordingly, the application was accepted and was referred to the Review Panel, which is to assess the following injuries:

   ·        mechanical trauma to the cervical region and aggravation of pre-existing asymptomatic degenerative changes;

   ·        mechanical trauma to the lumbar region and aggravation of pre-existing asymptomatic degenerative changes;

   ·        rotator cuff tear to the right shoulder, and

   ·        rotator cuff tear to the left shoulder.

MATERIAL BEFORE THE REVIEW PANEL

1. The claimant relied upon the following material:

   ·        the Review Panel requested and were provided with separate indexed and paginated bundles of documents by the parties. There were hundreds of pages of clinical notes, and other medical records, most of them post-dating the accident.

   ·        A report dated 13 March 2023 by Dr Thomas Newlyn, consultant psychiatrist, provides a diagnosis of Somatic Symptom and related disorder. Page 26 of that report was not provided to the Review Panel. In any event, the report is not relevant to the present medical dispute before the Review Panel.

   ·        An Initial Assessment report dated 1 July 2021 from Dr Eric Lim describes narrowing at C3/C4 and C6/C7 with nerve root infringement; various tears in the left upper limb tendons; multi-level disc desiccation, L3/L4 annular tear and bilateral annular tears at L4/L5; a small radial tear of the left medial meniscus; post-traumatic stress disorder symptoms and a possible head trauma. Dr Lim notes that the claimant attended Liverpool Hospital Emergency and had multiple osteopath treatments.

   ·        Dr Lim records that the claimant was complaining of headaches, neck pain, pins and needles, numbness in both hands (right worse than left), bilateral shoulder pain, lower back pain and numbness radiating down the left leg, bilateral knee pain, left ankle pain. He made referrals to an osteopath, psychologist, orthopaedic surgeon, neurosurgeon and for a brain scan.

   ·        There are 13 separate reports from Dr Peter Khong, neurosurgeon, to the claimant’s general practitioner. Those reports cover the period 10 September 2021 to 9 December 2022 and are in similar terms. They describe the history of complaints and ongoing treatment. Dr Khong records continuing complaint of severe lower back pain, right groin and thigh pain to the right knee. He says that MRI scans of the cervical spine and lumbar spine showed degenerative disc disease at C6/C7, L3/L4 and L4/L5; annular tears at L3/L4; a new acute disc herniation at L3/L4, which may have been caused by the motor accident.

   ·        Dr Khong says that the claimant developed new right-sided back and leg pain in mid-2022 which “may be due to her altered postures and weight bearing related to her back and left leg pain related to her car accidents” which “may also be a progression of the annular tear at L3/L4 which was present on previous imaging”. Dr Khong recommended surgery being a right L3/L4 microdiscectomy. His final note is of continued complaint of right sided leg pain from an acute right L4/L5 disc herniation for treatment of which the right L3/L4 microdiscectomy was recommended. That treatment was approved by the insurer.

   ·        There is a separate request for surgery by Dr Khong made on 1 April 2022 for approval of a C6/C7 anterior cervical discectomy and fusion. It is not clear if that request was approved by the insurer. Dr Khong opines that the accident caused severe neck, lower back and bilateral shoulder pain from musculo-ligamentous strain and exacerbation of pre-existing degenerative changes.

   ·        There are three reports from David Lieu, orthopaedic surgeon, to Dr Lim. They cover 9 February 2022 to 3 June 2022. Dr Lieu refers to problems with the claimant’s left shoulder following surgery. Progress was slow. A MRI scan showed a partial tear of the left supraspinatus and sub-scapularis for which no urgent intervention was required. Dr Lieu recommended referral to a pain specialist for further pain management. It is not clear if the claimant was referred for such treatment as there is no report from a pain management specialist.

   ·        There is a report dated 30 November 2022 by Dr John Davis, occupational medicine, who was qualified by the claimant’s solicitors. Dr Davis records that the claimant suffered injury to her neck, both shoulders and lower back, in the accident. Dr Davis notes that the claimant underwent a right rotator cuff repair by Dr Lieu in November 2021. Dr Davis also notes that Dr Khong recommended lumbar surgery. He says that the insurer did not approve that procedure which does not seem to be correct.

   ·        Under the heading PRESENT COMPLAINTS, Dr Davis records as follows:

   a.“Pain in the left side of her neck which radiates across the shoulder to her mid-forearm together with pain posteriorly over the shoulder;

   b.reduced range of movement of both shoulders with some improvement in the right shoulder;

   c.difficulty with overhead work;

   d.constant lumbar pain which radiates through the buttocks anterolaterally along the thighs as far as her knees and also into her inguinal regions; and

   e.symptoms aggravated generally by any work”

2. Dr Davis recorded restrictions in range of movement in the cervical spine, both shoulders and lumbar spine.

3. Under the heading DIAGNOSIS, Dr Davis states as follows:

   ·        “Bilateral rotator cuff tear.

   ·        Mechanical trauma to the cervical region and aggravation of pre-existing asymptomatic degenerative changes.

   ·        Mechanical trauma to the lumbar region and aggravation of pre-existing asymptomatic denigrative changes”

4. The Review Panel notes that the diagnosis made by Dr Davis is similar to Dr Khong’s diagnosis. Dr Davis finds that the claimant’s injuries are consistent with the accident, in the absence of any recorded history of symptoms, prior to the accident. He finds no indication of radiculopathy in the cervical spine nor in the lower limbs.

5. In a supplementary report dated 30 November 2022, Dr Davis gives the following assessments:

The body part	The percentage
Cervical spine	5% WPI
Lumbar spine	5% WPI
Right shoulder	5% WPI
Left shoulder	9% WPI

This gives a total combined whole person impairment of 22% for which Dr Davis says there should be no apportionment.

·        There is a report dated 13 July 2022 by Dr John Bentivoglio, orthopaedic surgeon, to the insurer. That report is not relied upon by the insurer but what was served in the claimant’s case. Dr Bentivoglio describes the circumstances of the accident. He notes that the claimant sustained injuries to her left hip, left knee and left ankle. She experienced neck, back and shoulder pain. Dr Bentivoglio records that the claimant told him she had not sustained any injuries to those areas previously. He states that his brief was only in relation to the claimant’s shoulder and spine complaints.

·        Under the heading SPECIALIST TREATMENT, Dr Bentivoglio records that the claimant had a cortisone injection into both shoulders with little improvement. She underwent surgical treatment on her right shoulder in November 2021 at the hands of Dr Lieu who also advised that surgical treatment on her neck may be of benefit.

·        Under the heading CURRENT SYMPTOMS, Dr Bentivoglio records that neck pain troubles the claimant most of all and is present most of the time. He also records that the claimant has pain in her right shoulder most of the time and pain in her low back half of the time. It radiates into her left lower limb as far as the knee. Dr Bentivoglio lists the claimant’s current medications. He describes her social and educational history. He records the findings of his physical examination. The claimant demonstrated very little range of movement in her cervical spine, about one-third normal range of movement in her lumbar spine and essentially no movement in her right shoulder. Dr Bentivoglio thought that was “really not normal noting she had surgery on her shoulder in November 2021”. The claimant demonstrated a significant loss of movement in her left shoulder with evidence of some degree of inconsistent presentation.

·        Under the heading INVESTIGATIONS, Dr Bentivoglio notes that the claimant did not bring any investigations to the assessment. He describes the reports of MRI scans performed in September 2021 on the cervical spine and right shoulder, a MRI scan of the left shoulder in February 2021, a MRI scan of the cervical spine in May 2020 and a MRI scan of the lumbar spine in July 2020 indicating evidence of degenerative disc disease.

·        Under the heading DIAGNOSIS AND OPINION, Dr Bentivoglio says as follows:

“Investigations done of her shoulders indicate that she had rotator cuff tendon tears and investigations done of her cervical and lumbar spine indicates that she has sustained some degree of discal damage together with aggravating pre-existing degenerative changes present in her cervical and lumbar spines.”

1. In relation to her right shoulder, Dr Bentivoglio suspects the range of movement demonstrated is not an accurate assessment of her movement. He notes that the claimant was then recovering from her right shoulder surgery and mentions the possibility she has developed frozen shoulder syndrome. As regards her neck, Dr Bentivoglio notes that the claimant has abnormalities at several levels of her cervical spine, the worst being at the C6/C7 level. He notes that Dr Khong recommends an anterior cervical disc excision and fusion. Dr Bentivoglio is uncertain as to how much benefit the claimant would obtain from that surgery.

   ·        Under the heading Clinical Findings, Dr Bentivoglio says as follows:

   “On physical examination today, the only abnormal physical finding was decreased movement involving her shoulders.”

2. It is difficult to reconcile that comment with his actual examination finding as described. The Review Panel notes that Dr Bentivoglio did not tabulate his findings.

   ·        Dr Bentivoglio states that the diagnosis is made on the history provided by the claimant, physical examination, as well as MRI scan findings. He states as follows:

   “Back   aggravation caused to pre-existing degenerative changes present in her lumbar spine together with some degree of discal damage with annular tears at the L3/L4 and L4/L5 levels.

   Right shoulder        supraspinatus and sub-scapularis tendon tears together with damage to her long head of biceps tendon and a superior labral tear.

   Left shoulder           sub-scapularis tendon tear together with complete tearing of the long head of biceps tendon and a Type 2 SLAP lesion involving her left shoulder.”

   Dr Bentivoglio states that the prognosis for the neck, back and both shoulders remains guarded.

   ·        As to the causal relationship between the claimant’s condition and the accident, Dr Bentivoglio says as follows:

   “I would consider the motor vehicle accident has caused degenerative changes present in her cervical and lumbar spine to become symptomatic as well as sustaining some degree of discal damage in the accident. She also has sustained rotator cuff tendon tears in both shoulders secondary to the injuries in the accident.”

1. Dr Bentivoglio assesses 5% whole person impairment for the neck, 5% whole person impairment for the lumbar spine and 10% whole person impairment for the left shoulder. He notes there was some inconsistent presentation for the left shoulder. His assessment of the left shoulder is based upon the Pie Chart, figure 44, page 45 of the American Medical Association (AMA) Guides Fourth Edition. Dr Bentivoglio gives a combined 19% whole person impairment. He did not assess the right shoulder as he found that the claimant’s condition had not stabilised.

2. The insurer made detailed criticisms of Dr Bentivoglio’s report and findings. Firstly, it notes that Dr Bentivoglio was not provided with an accurate prior medical history. He was not informed that the claimant was involved in a prior motor accident in 1998 in which she sustained injuries to her cervical spine. Nor was he informed of a domestic altercation in 2016 in which the claimant sustained injury to her head, neck and lower back. The insurer further notes that Centrelink records contain references (from January 2017 to late 2019) of lower limb deficiencies, spinal disorder, psychological/psychiatric disorder, depression and anxiety. The insurer notes that none of that history was provided to Dr Bentivoglio. The insurer says that the claimant’s prior injuries and conditions were not considered by Dr Bentivoglio in assessing causation, diagnosis or permanent impairment. It also says that Dr Bentivoglio failed to bring the inconsistency in the claimant’s left shoulder presentation to her attention and did not use an alternative method of assessment in those circumstances. The insurer concedes that Dr Bentivoglio was jointly retained by the parties.

3. In relation to the claimant’s report by Dr John Davis, occupational physician, the insurer made a number of criticisms. It notes that, similarly to Dr Bentivoglio, the claimant did not provide an accurate history to Dr Davis of symptoms affecting her neck, back or shoulders, and denied any past compensation history. The insurer notes that Dr Davis observed signs of abnormal pain behaviour and pain avoidance behaviour. He informed the claimant of the need for consistency and considered it likely she was not using maximal effort. Despite that concern, the insurer says that Dr Davis seemingly accepted the ranges of motion measured by him, in informing his assessment of permanent impairment. The insurer further says that, given his lack of information concerning the claimant’s pre-existing medical history, the findings made by Dr Davis on causation are not persuasive. The Review Panel takes all of those matters into account in forming its views.

4. Following the Review Panel’s first teleconference on 26 September 2023, the Review Panel was provided with the clinical notes of Dr Bishay, Dr Salama and Dr Noussair, at the Review Panel’s request.

5. Dr Bishay’s notes confirm that the claimant experienced lower back pain in the years prior to the accident. There are records of pain in the left knee which sometimes gave way. The claimant had a fall on her back in October 2016 causing neck pain, lower back pain referred to her legs. There are references to headache and mental health issues associated with separation from her husband. There is a reference to lower back pain and neck pain exacerbation early in January 2020. The next entry relates to the subject accident recording pain in the lower back, arms and legs, radiating to the right upper thigh and left knee, muscle tenderness in the arms, legs and lower back. That is the extent of Dr Bishay’s notes.

6. Dr Salama’s note referencing the accident records that the claimant was bleeding from her nose and mouth due to the deployment of her airbag. There was soft tissue swelling above the scapula, a bruise on the right side of the scalp, bruising around her right eye and right side of neck. There was bruising over the right groin and below, bruising on both knees, ankle pain. Diagnostic scans showed nothing abnormal. A few days later, Dr Salama records neck pain with radiculopathy. None of the subsequent entries up to April 2023 referenced the accident.

7. The clinical notes of Dr Noussair commenced on 16 July 2020 with reference to the accident. There is reference to pain in the neck, right shoulder, knees and ankles. A cervical MRI scan showed spondylosis with mild right C3/C4 foraminal narrowing. A subsequent entry on 21 July 2020 references a right shoulder ultra scan showing rotator cuff tendinosis and subacromial bursitis, a lumbar CT scan showing disc lesions at L3/L4 and L4/L5 without neuro compression. An entry on 31 August 2020 references a painful left ankle. An entry on 28 September 2020 references left shoulder tears and subscapularis bursitis. Entries in November 2020 refer to the left shoulder, left hip and left knee. An entry on 3 December 2020 refers to left shoulder pain. There are numerous subsequent entries up to 10 October 2023 which refer to various conditions unrelated to the accident. There are no specific references to the accident in those notes.

RE-EXAMINATION

1. The claimant was examined by Medical Assessor Margaret Gibson on 10 November 2023 on behalf of the Review Panel. The claimant was asked to bring to that appointment the actual MRI scans to which Medical Assessor Rapaport refers. None of that imaging was made available to Medical Assessor Rapaport nor, in the event, was it made available to the Review Panel. The report from Medical Assessor Gibson is as follows:

   “Ms Hamed attended as arranged. Her daughter had driven her in for home and had remained in the waiting room while the assessment was conducted.
   PAST OCCUPATIONAL HISTORY
   Ms Hamed had completed high school in Syria. She trained as a hairdresser, married at 18 and arrived in Australia with her husband in 1988.
   Over the years she had various part-time jobs as a deli assistant, but she had not engaged in any full-time employment.
   Her last job was with the IGA supermarket in Strathfield, and she left this when the store closed in 2018.
   PAST MEDICAL HISTORY
   Ms Hamed was involved in a motor vehicle accident some years ago. She couldn’t recall the details but said that it had been ‘nothing serious’ and she had only had some pain for a short period.
   When asked about the entry in Dr Bishay’s records of 10 December 2018, where he mentioned a neck and low back pain ‘exacerbation’, she agreed she had been prescribed some Panadol and Nurofen. She said she had some symptoms when she was working in the delicatessen. She said her general practitioner told her that it was just tiredness.
   RELEVANT PERSONAL DETAILS
   Ms Hamed lives in a house with her daughter, her daughter's husband and his mother, although she said she sometimes stays at a friend's place. She said that in general, she doesn’t perform any domestic chores, as sometimes she is okay and at other times she is very symptomatic.
   She said that she had moved in with her sister for a few months after the accident, as she felt unable to do any chores about the house.
   HISTORY OF THE MOTOR ACCIDENT
   Ms Hamed had been driving a recent model Hyundai i20. She had her seat belt fastened and there were no passengers in the car. It was towards evening and she was driving slowly and cautiously given the wet conditions. She had noticed another vehicle was approaching from the other direction and appeared to be driving erratically. This vehicle then lost control and collided with her car. Her air bags deployed. She said she was
   Police and ambulance attended and she was conveyed to Liverpool Hospital. She was fitted with a neck brace. She had a scan taken. She was having pain in her low back and numbness in her legs. She also had pain in the kidney area, so a renal scan was performed. She said she was an inpatient in the hospital for the next three days, before being discharged home.
   A few days later she visited her regular general practitioner, Dr Marwan Bishay. Ms Hamed had been reporting pain in lower back, arms and legs. On examination there was a small bruise over the left knee, also bruising over the upper right thigh. There was muscle tenderness over arms, legs and low back. No neural deficits. No bony tenderness.
   On 13 February 2020, she visited Dr Theodora Salama. The doctor had noted the history of air bag deployment and bleeding from nose and mouth. She had been taken to Liverpool Hospital. There was a bruise over the right side of the scalp, bruising around right eye, right side of neck, right clavicle, right iliac fossa, right groin and below right groin, bruising in both knees, pain in ankle. He noted that the x-ray and scan were normal in the hospital and there had been a normal ultrasound.
   Ms Hamed said that Dr Salama had stopped practising due to the Covid epidemic, so she started seeing another general practitioner in Greenacre, Dr Marwan Aloe, and then from mid-2020, Dr Mona in Punchbowl.
   Ms Hamed said she had suffered with severe depression after the accident, and had attempted suicide, although she denied any current suicidal thoughts. She said she had been driven to the depression as the pain was unbearable.
   She said she had physiotherapy treatment for over 2 years and she still attends a practice in Punchbowl on a weekly basis.
   She had visited neurosurgeons, Dr McKechnie and Dr Peter Khong. She said that spinal surgery had been recommended although payment was declined by the insurer. She is on the waiting list to have the procedures to the neck and back performed at a public hospital.
   She was referred to Dr David Lieu and on 18 November 2021, she had arthroscopic shoulder surgery to her right shoulder. She feels the shoulder is now much better, although she is still getting pain extending from the neck to the shoulder. She has had multiple steroid injections to her left shoulder.
   Her current complaints were of lateral neck pain which was previously worse on the left side, now worse on the right side. Pain is present intermittently and at 7/10 severity today. She added that after she has needling treatment with the physiotherapist the pain is usually worse for a few days.
   There is pain across the lower back extending to the right buttock and right groin, front of right thigh, over the right shin and the dorsum of the right foot and under the toes of the right foot.
   She said there is numbness and heaviness both arms, left greater than right, and also diffuse pain through the arms.
   She said her right shoulder is still not a hundred percent. There was no pain in the shoulder itself at assessment today but pain in the right trapezius region.
   She said her left shoulder had been a little painful before, but now is more troublesome and she said she can no longer do anything with the left arm. She indicated pain over the left trapezius and deltoid.
   Currently, she attends weekly physiotherapy, which involves dry needling and massage therapy. She takes pregabalin 75mg a day and alternates 15mg meloxicam and 200mg celecoxib for pain. She also takes paracetamol and codeine (8mg) and a mixture of paracetamol and ibuprofen for pain. She has desvenlafaxine 100mg per day for depression.

   PHYSICAL EXAMINATION
   Ms Hamed was right-handed. She was 157cm tall and weighed 67kg. She was well presented. She moved slowly throughout the examination room and there were pain behaviours.
   On examination of the neck, full flexion was observed when she was seated and also when reading her weight on the scales. However, at formal assessment, only half to one-third flexion could be managed. When asked about this, she said she "tries to do everything, just has pain.” On repetition, forward flexion and extension half normal, lateral flexion two-thirds normal, rotation two-thirds normal bilaterally. There was no muscle spasm or guarding, and no asymmetry of movements.
   On examination of the shoulders, shoulder movements were as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	120° 110°	110° 70°
Extension	50° 50°	30° 5°
Internal Rotation	70°	60°
External Rotation	80°	70°
Abduction	130° 120° 100°	50° 90° 110°
Adduction	40° 50°	30° 50° 10°

When asked why she thought her shoulder movements varied, she again said it was due to the pain and she was trying her best. When I commented on the shoulder measurements not being as good as when seen by the original assessor, she said she didn’t know why.
Circumferential measurements of the upper limbs were consistent with right hand dominance, therefore there was no muscle wasting. There was giving-way weakness on testing of upper limb power, however no objective weakness following any dermatomal distribution. There were diffuse and variable sensory changes in both upper limbs and no dermatomal sensory abnormality was demonstrated.
On examination of the upper back there was diffuse tenderness, rotation was one-third normal bilaterally. She reported right groin pain on rotary movements of the back. There was no muscle spasm or guarding and no asymmetry of movements.
On examination of the low back, forward flexion one-third normal, extension one-third normal, lateral flexion one-third normal bilaterally, rotation was one-third normal bilaterally. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the lower limbs, circumferential measurements were equivalent, therefore there was no muscle wasting. There was giving-way weakness on testing of lower limb power but no objective muscle weakness was demonstrated. There were no objective sensory findings in the lower limbs. Straight leg raise was 80 degrees when seated and 10 degrees bilaterally when lying supine. Neurotension signs were negative bilaterally.
SUMMARY
Ms Hamed is a 53-year-old woman who was involved in the subject accident on 7 February 2020. She sustained soft tissue injuries to her neck, low back and both shoulders (Rotator cuff tears and labral injuries). The Panel were satisfied, based on the contemporaneous clinical documentation, that these injuries to neck, low back and both shoulders, were caused by the subject accident.
They noted that following the accident she was taken by ambulance to Liverpool Hospital. Following discharge she had consulted general practitioner, Dr Salama in Merrylands.
She had later been referred for MRI scan of her left shoulder (12 February 2021) which demonstrated osteoarthritis with hypertrophy of the acromioclavicular articulation. There was a full thickness tear of the subscapularis tendon and incomplete tear of the long head of biceps tendon. There was an intrasubstance tear of the supraspinatus tendon and a Type 2 SLAP tear.
Then, MR arthrogram of her right shoulder (9 September 2021), which demonstrated supraspinatus and subscapularis tendon tears and chronic long head of biceps tendon tear with medial subluxation and a superior labral tear. There was also evidence of glenohumeral and acromioclavicular joint osteoarthritis.
Ms Hamed was referred to orthopaedic surgeon, Dr Lieu and had gone on to have an ultrasound-guided cortisone injection into her left shoulder, with some temporary improvement. She had hydrocortisone injections to her right shoulder with no significant improvement in her symptoms.
She underwent surgical treatment of her right shoulder In November 2021.
Based on today's assessment
Cervical [Cervicothoracic] spine
There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were no clinical findings as detailed in Table 6.7, MAA Guidelines [1/4/23]. Thus in reference to MAA Guidelines the cervical spine injury would be assessed at DRE Impairment Category I, thus zero percent permanent WPI.
Lumbar [Lumbosacral] spine
There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were no clinical findings as detailed in Table 6.7, MAA Guidelines [1/4/23]. Thus in reference to MAA Guidelines the lumbar spine injury would be assessed at DRE Impairment Category I, thus zero percent permanent WPI.

The Panel noted that Assessor Rappaport had found 5% WPI for cervical and lumbar spine. However, based on his clinical findings there was no paraspinal muscle spasm, guarding or dysmetria and no radiculopathy in relation to the cervical or lumbar spine, therefore no grounds to assess DRE II for either of these regions.
Shoulders
Shoulder movements were variable on the day of the assessment and also in comparison with previous impairment assessments. For instance Assessor Rapaport found 170 degrees of right shoulder flexion, Dr Davis (30/11/22) found 120 degrees of right shoulder flexion. At Panel assessment 120 degrees of right shoulder flexion. Whereas Dr Bentivoglio found ‘essentially no movement present in her right shoulder.’ And had added that ‘This is really not normal noting she had surgery on her shoulder in November 2021. She also demonstrated a significant loss of movement present in her left shoulder with evidence of some degree of inconsistent presentation.’
At Panel assessment, some planes of shoulder movement varied by as much as 60 degrees.
Clause 6.50 of the SIRA Motor Accident Guidelines 1 April 2023 state that ‘Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed.’ And ‘.. if the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions.
(d) if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation (see clause 6.40 of these Guidelines)
(e) if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.’
Based upon the examination findings, there is a moderate restriction of the right and left shoulders.  
Right shoulder
The Review Panel considered all the available medical documentation, the circumstances of the subject accident, the surgical procedure performed and imaging studies. They exercised their clinical judgement and experience to determine that 5% WPI would be the expected impairment for the right shoulder, given the clinical circumstances. This also approximates the average range of motion identified by other examiners.
Left shoulder
The Panel considered all the available medical documentation, the circumstances of the subject accident and imaging studies. They exercised their clinical judgement and experience to determine that 4% WPI would be the expected impairment for the right shoulder, given the circumstances. This also approximated to the average range of motion identified by other examiners.
Therefore, total whole person impairment as a consequence of the subject accident comprises 0% WPI for cervical spine, 0% WPI for lumbar spine, 5% WPI for right shoulder and 4% WPI for left shoulder. Therefore 9% WPI combined. Notwithstanding the inconsistency in the presentation of the shoulders, in the clinical judgement of the Panel, any alternative method of assessment is unlikely to yield a more accurate or valid assessment of impairment.
Dr Rappaport 11/4/23
Flexion 170° (right) 110° (left)
Extension 40°(right) 20° (left)
Adduction 40° (right) 30°(left)
Abduction 170° (right) 90° (left)
Internal Rotation 80° (right) 60° (left)
External Rotation 70° (right) 60° (left)
Dr Davis 30/11/22 right/left
Flexion 120 ° 100 °
Extension 30 ° 15 °
Abduction 130 ° 115 °
Adduction 35 ° 25 °
External rotation 85 ° 65 °
Internal rotation 60 ° 45 °”

FINDINGS

1. The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[5] The Review Panel adopts the reasons of the examination findings of Medical Assessor Gibson with which Medical Assessor Dixon concurs.

   [5] Section 7.26(6) of the MAI Act.

1. The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6] The Medical Assessors have explained the basis of their assessment which are different to those provided by other medical specialists. The medical assessment of permanent impairment is undertaken at the time of examination. In that respect, previous assessments are outdated and do not reflect current symptomatology.

   [6] Insurance Australia Group Ltd v Keen [2021] NSWCA 287.

2. The claimant provided some details of her previous motor accident and a subsequent exacerbation of neck and lower back pain as recorded by Dr Bishay. The claimant informed Medical Assessor Gibson that she had recovered from those injuries. The Review Panel is satisfied that is the case as there is no clinical evidence to the contrary. The claimant was not experiencing symptoms in her neck and lower back prior to the accident. It is not clear to the Review Panel how Medical Assessor Rapaport arrived at his finding of a pre-existing 5% whole person impairment in the cervical and lumbar spine. For the reasons previously stated, the Review Panel finds 0% whole person impairment for the cervical, thoracic and lumbar spines.

3. The Review Panel finds that the claimant has assessable whole person impairment in both shoulders as a result of the motor accident. There is restriction on elevation in the right shoulder that has undergone repair. There is restriction in elevation in the left shoulder which is unrepaired. There is pathology in both shoulders.

4. In considering causation, the Review Panel has attempted to apply clauses 6.5 to 6.7 of the Motor Accident Guidelines version 9.2.

CONCLUSIONS

1. The Review Panel concludes that the accident could have caused injuries to both shoulders as a matter of medical determination.

2. The Review Panel further concludes that the accident did cause injuries to the claimant’s shoulders as a matter of factual non-medical determination.

3. The Review Panel also conclude that the claimant has recovered from any injury to her cervical, thoracic and lumbar spine, caused by the accident, with no assessable impairment.

4. For these reasons, the Review Panel concludes that the certificate issued on 13 April 2023 by Medical Assessor Rapaport should be revoked. That is because, notwithstanding that the Review Panel finds the same degree of whole person impairment, it is for different reasons. The new certificate appears at the commencement of these Reasons.