Insurance Australia Limited t/as NRMA Insurance v Bozunovic
[2025] NSWPICMP 195
•24 March 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Bozunovic [2025] NSWPICMP 195 |
| CLAIMANT: | Stefan Bozunovic |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 24 March 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 26 July 2022; Medical Assessor (MA) determined the claimant’s whole person impairment (WPI) as a result of the accident was 17%; insurer made application under section 7.26 for referral of assessment to the Review Panel; Held – the Review Panel conducted its own examination and found that WPI as a result of injuries sustained in the accident totalled 13%; Medical Assessment Certificate was revoked and the Review Panel substituted a 13% WPI as a result of the accident. |
| DETERMINATIONS MADE: | DECISION 1. The Panel revokes the certificate of Medical Assessor Gothelf and substitutes the determination that the claimant had a 13% whole person impairment as a result of the accident. |
STATEMENT OF REASONS
BACKGROUND
Stefan Bozunovic (the claimant) was injured in a motor accident (the Accident) on
26 July 2022.On 24 May 2024, the claimant was assessed by Medical Assessor Todd Gothelf (Medical Assessor), and he issued an assessment outcome (medical assessment) in a certificate dated 6 June 2024. The Medical Assessor found that the injuries caused by the Accident gave rise to whole person impairment (WPI) of 17%.
The insurer has made an application under s 7.26 of the Motor Accident Injuries Act 2017 (the MAI Act) for referral of the medical assessment to a review panel (the Panel) on the ground that the medical assessment was incorrect in a material respect. The claimant relies on the particulars set out in the application and supporting documentation.
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
(a) cervical spine – soft tissue injury;
(b) lumbar spine – soft tissue injury;
(c) left shoulder – rotator cuff pathology and impingement with restricted range, and
(d) right shoulder - rotator cuff pathology and impingement with restricted range.
Medical Assessor Todd Gothelf examined the claimant on 24 May 2024 and issued a certificate dated 6 June 2024.
Medical assessor Gothelf provided his certificate and reasons on 6 June 2024 in which he made a determination of 17% WPI:
(a) cervical spine 5% WPI. DRE category II applies as there was positive asymmetrical loss of motion and non-verifiable radicular complaints (Table 73 p 110 AMA4 is used);
(b) lumbar spine 5% WPI. DRE category II applies as there was positive asymmetrical loss of motion and positive guarding (Table 72 p 110 AMA4 is used), and
(c) right upper extremity (shoulder) 8% WPI converted from 13% UEI. The assessor assessed active range of motion as a 21% UEI for the affected right shoulder and 8% UEI for the unaffected left shoulder. The Medical Assessor considered the loss of motion of the uninjured left shoulder can be used as a baseline, having a reasonable expectation that without injury to the right shoulder, the right upper extremity would have a similar range of motion to the uninjured side. He subtracted the 8% UEI for the uninjured left joint from the 21% UEI for the injured right joint to arrive at 13% UEI (Figures 38, 41, 44 pp 43-45 AMA4 and s 6.51 p 91 Motor Accident Guidelines used for impairment. Table 3 p 20 AMA4 used to convert 13% UEI to 8% WPI).
STATUTORY PROVISIONS
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 9.2 (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:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
'Causation means that a physical, chemical, or 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:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
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.”
Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Sections 5D and 5E of the Civil Liability Act2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:
“One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the CL Act (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation”. Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 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.’
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].”
These observations were made in the context of a review panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI Acts.
In respect of any injury or impairment before or after the subject which would justify any negative causation findings, the basis for this needs to be higher than the level of ‘mere speculation’ in the absence of any identifiable evidence. Such speculation must be dismissed as per the principles enunciated in Insurance Australia Limited trading as NRMA Insurance v Brown [2019] NSWSC 1236.
In particular, such findings must follow the Guidelines paragraphs 6.31 to 6.34 which set out what must be considered when assessing impairment from conditions before or after the subject accident.
Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
ASSESSMENT UNDER REVIEW
Medical Assessor Gothelf noted the insurer’s submission at [4] relying on Dr Mitchell’s opinion that the low-back and right-shoulder conditions were not caused by the Accident.
Medical Assessor Gothelf noted the documents which he had available at [5]-[6].
Medical Assessor Gothelf set out the history he took at [8].
He then set out the history of the Accident at [9], noting that it was a pushbike versus motor vehicle accident.
He then set out the symptoms and treatment, and recurrent symptoms at [10]-[12].
At [14], Medical Assessor Gothelf set out the results of his clinical examination.
At [15], Medical Assessor Gothelf reported that cervical movement was a fraction of the normal range, giving ¼ for extension, ½ for flexion, ½ for right rotation, ¼ for left rotation, ½ for right lateral flexion, and ¼ for left lateral flexion. There was positive cervical asymmetrical loss of motion.
Similarly, Medical assessor Gothelf set out the results of his examination of the lumbar spine where he observed ½ full flexion, ¼ full extension, ½ full left rotation, and ½ full right rotation. There was a fraction of normal active lumbar motion of ½ with full flexion ¼, full lateral flexion ¼, full right lateral flexion ½. There was positive asymmetrical loss of motion.
Medical assessor Gothelf set out the results for his examination of shoulder movements in the chart on page 5. There was guarding and reported posterior shoulder pain to movements above shoulder level.
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
80°
130°
Extension
20°
40°
Adduction
80°
140°
Abduction
20°
40°
Internal Rotation
20°
60°
External Rotation
10°
60°
The history was consistent.
Medical Assessor Gothelf noted the report of Dr Wade Harper of 12 September 2022.
He also noted the other materials set out under History of Treatment.
He had available, and clearly had read, the report of the occupational physician Dr Mitchell on whom the Insurer relies.
In respect of causation and reasons, Medical Assessor Gothelf states:
“The history and documentation support that the subject accident resulted in a cervical spine soft tissue injury. The claimant denied any cervical spine condition prior to the subject accident. The mechanism of injury is consistent with the diagnosis. While the discharge summary from Prince of Wales Hospital 26 July 2022 indicated “no c-spine tenderness”, the history provided by the claimant is consistent with the development of cervical spine pain and a soft tissue injury. An MRI of the cervical spine 23 March 2023 revealed multilevel spondylotic changes most notable at the C4/5 level with severe right sided foraminal stenosis and potential irritation of the exiting C5 nerve roots. The claimant was seen by Dr Huang, Neurosurgeon 22 May 2023 who indicated a provisional diagnosis of a right upper limb radiculopathy. A bone spect CT scan and nerve conduction tests were ordered. Considering the findings on MRI, it is likely that there was pre-existing pathology of the cervical spine which pre-disposed to the current condition. However, the cervical spine was asymptomatic prior to the subject accident, and the Accident resulted in an aggravation of the underlying condition and resulted in the current condition, dysfunction and need for treatment. The history and documentation supported that the lumbar spine soft tissue injury was caused by the subject accident. The claimant denied any lumbar spine condition or symptoms prior to the subject accident. The mechanism of injury is consistent with the diagnosis. The discharge summary 26 July 2022 from Prince of Wales Hospital noted grazes to the right hip and lower limb which would be consistent with an injury around his lower back and pelvis region. While the CT 30 May 2022 revealed lumbar spine L3/4 facet arthritis and minor degenerative changes of the SI joints, the claimant was asymptomatic prior to the subject accident. The lower back symptoms and need for treatment occurred only after the subject accident. The claimant in my opinion would not have developed symptoms and would not have required treatment but for the subject accident. The history and documentation support that the claimant sustained an injury to the right shoulder due to the subject accident. Dr Mitchell in his report 30 October 2023 was of the opinion that the claimant had a significant past history of a right shoulder injury from 2004 with ongoing restricted movement. The pre-existing injury was confirmed in letters from Dr Wade Harper 20 July 2004. Specifically, the claimant sustained a right clavicle fracture and scapular neck fracture. Dr Harper indicated that the fractures healed and the claimant developed shoulder impingement.
Dr Harper indicated 1 June 2005 that the shoulder progressed well and that the claimant returned to full time work in February 2005 and had returned to cycling and surfing. The claimant confirmed these events and indicated that the right shoulder was pain free and fully functional prior to the subject accident. I would therefore attribute the right shoulder injury and current condition as attributable entirely to the subject accident. The claimant was seen by Dr Harper
12 September 2022. Dr Harper indicated that the claimant sustained a right elbow injury with haemarthrosis and likely an undisplaced radial neck fracture, as well as a right acromioclavicular (AC) joint injury. The AC joint represented a right shoulder injury, and Dr Harper ordered an MRI of the shoulder. The difficulty in this assessment of the right shoulder injury is to distract the symptoms and function of the right shoulder that is caused by the subject accident from the symptoms and dysfunction of the right shoulder which is caused by the cervical spine injury causing right upper extremity radicular symptoms. The physical examination demonstrated a decreased range of motion of the right shoulder with symptoms expressed by the claimant of neck pain which radiated down the right arm, resulting in guarding of the right shoulder movements. This guarding was also observed in the limited movements of the left shoulder. However, the limited range of motion of the right shoulder was more significant. My approach to this matter was to subtract the impairment due to the uninjured left shoulder from impairment calculated for the injured right shoulder, using the left shoulder as a baseline. The history and documentation do not support a left shoulder injury as a result of the subject accident. The claimant admitted to having left shoulder pains prior to the subject accident while working as a painter. Working as a painter for his career, it is reasonable that the claimant may have developed rotator cuff tendinopathy as he used his arms frequently is sustained forward flexion. The documentation from the Prince of Wales Hospital made no mention of a left shoulder injury. The Claim form filled by the claimant indicated a right shoulder and elbow injury, neck, right hip and leg injury, but no injury to the left shoulder. The claimant was seen by Dr Harper 12 September 2022, who made no mention of left shoulder symptoms and no mention of an injury to the left shoulder.”
EXAMINATION BY THE REVIEW PANEL
The claimant attended the rooms of Medical Assessor Alan Home on 5 December 2024 for clinical assessment as part of the Panel Review of the Certificate prepared by Medical Assessor Todd Gothelf.
He attended the assessment unaccompanied.
Past history
The claimant states that he previously injured his right shoulder in a bicycle accident around 2004. He recalls that he suffered a fracture through the clavicle and scapula. He was treated by Dr Wade Harper, orthopaedic surgeon.
He confirms that MRI scans of the right shoulder had been undertaken at that time, which demonstrated a rotator cuff tear with associated bursitis.
He recalls that he made a good recovery with physical therapy and returned to full-time work around February 2005, as documented. He has also returned to cycling and surfing.
He says that he did experience occasional pain in his left and right shoulders associated with the work as a painter.
In particular, he recalls experiencing a post-activity ache after a day’s work and if he was undertaking prolonged overhead tasks.
He says that he did not require further medical treatment or physical therapy to either shoulder in the period leading up to the subject accident.
He confirms a past history of low back pain commencing in May 2022. He recalls he was painting from a ladder when he experienced the sudden onset of back pain associated with the sensation of locking. Pain was more severe on the right side.
He underwent CT scan imaging of the lumbar spine performed on 30 May 2022 that demonstrated marked facet joint arthrosis on the right at L3/4 with a minor disc bulge also at L4/5.
He underwent a CT-guided right L3/4 facet joint injection performed on 16 June 2022. He recalls some benefit from the injection.
He continued to work as a painter leading up to the Accident.
Details of the Accident
The claimant states that in the Accident, he was the helmeted rider of a bicycle travelling on Military Road, at the intersection of Bumborah Point Road, when a car travelling in the opposite direction turned right, impacting his bike and causing him to fall. He recalls that he was momentarily unconscious. He recalls ambulance officers and passers-by in attendance when he regained his mental faculties.
He confirms that he was fully conscious when he arrived at Prince of Wales Hospital after transfer by ambulance.
He recalls early symptoms of pain in his head, right shoulder, right arm, right elbow and right hip. He also recalls the early onset of neck pain.
At the Prince of Wales Hospital, he underwent X-ray of the right elbow. A fracture of the elbow was not initially detected, but later confirmed upon review of the images by the hospital’s radiologist.
He was subsequently treated in a sling for several weeks. Due to persisting symptoms, he attended Dr Vorady, general practitioner in Bondi Junction.
He was referred to Dr Wade Harper for further assessment of complaints of right shoulder, right elbow and right hip pain.
A diagnosis of right AC joint injury was made by Dr Harper. He was referred for physical therapy.
He subsequently underwent MRI scans of the right shoulder. He was advised by Dr Harper that there was no requirement for shoulder surgery.
He recalls that during this period he became aware of intermittent paraesthesia, with post-axial pain extending into the right hand. This would occur when he raised his arm to the horizontal. He added that he could not raise his arm above the horizontal.
He attended Dr Huang, neurosurgeon, in May 2023. He was subsequently referred for further imaging and for Nerve Conduction Studies. There was a trail of Palexia and Lyrica. He was sent on to Dr Shetty, pain management specialist.
There was no further invasive treatment. There was a discussion regarding Botulinum injections that did not proceed.
To direct enquiry, he reports that low back pain commenced several weeks, that is, two to three weeks after the subject accident. Pain was predominantly right-sided, extending from the back to the right buttock.
He recalls the onset of left shoulder pain at least several weeks after the subject accident. He attributed this to the preferential use of his left hand for activities of daily living.
He has since continued with home-based exercise, as previously instructed by his physiotherapist.
He reports the occasional use of Paracetamol or Ibuprofen, approximately once or twice weekly. He generally avoids medication where possible. He does attend hydrotherapy exercise, 2-4 days weekly at a pool in Matraville.
Current symptoms
The claimant states that he experiences constant neck pain, predominantly right-sided, of average intensity varying between 4-5 out of 10. He is aware of greater stiffness turning to his right and his left. There is difficulty looking up.
He has a disturbed sleep pattern.
He reports activity-related pain at the right shoulder. There is little pain at rest with his arm by his side. There is pain associated with shoulder elevation. He says there is great difficulty raising his arm above the horizontal. He cannot sleep comfortably over his right shoulder at night.
He continues to describe post-axial pain and associated paraesthesia in the right hand when raising his right shoulder to the horizontal.
He frequently drops objects from his right hand.
He describes cramping in the muscles of his right hand associated with prolonged typing or writing.
There is intermittent mild pain in the left shoulder.
There are no ongoing complaints at the right hip.
He reports intermittent right-sided low back pain. He indicates the right buttock is the main site of pain. He describes the intensity of pain at 4-5 out of 10 on a VAS. There are no symptoms of distal radicular pain. There is no lower limb paraesthesia.
The back pain is exacerbated by prolonged sitting, walking and bending.
Functional capacity and reported tolerances
The claimant is right-hand dominant. He describes a sitting tolerance of 20 minutes, a driving tolerance of 10 minutes, walking tolerance of 10-20 minutes limited by back pain. He avoids deep forward bending at the waist. There is no disability for crouching or kneeling.
He performs stair climbing over short flights but avoids prolonged stair climbing due to back pain. There is sleep disruption.
He is independent for activities of self-care. He is able to lift and carry moderate weight with his left hand but only 3-4kg with his right.
Social history
He is married without children. He is a non-smoker. He does perform cooking, dishwashing and bench-height cleaning. His wife performs the laundry tasks and the heavier cleaning tasks. Ther are no gardening requirements.
He has not resumed previous active hobbies of cycling, playing tennis, surfing, walking and beach going.
Vocational history
He worked as a painter and decorator in the period leading up to the subject accident.
Examination
General presentation
The claimant presented as a 56-year-old standing 172cm and weighing 70kg.
Cervical spine (cervicothoracic)
Examination reveals normal spinal curvature without muscle spasm. Active cervical spine flexion is performed to two thirds normal range, extension half normal range. Right and left rotation are symmetrically performed to two thirds normal range. Right lateral flexion one half; Left lateral flexion one half. There is dysmetria in cervical flexion/exension.
Neurological examination of the upper extremities reveals normal upper limb power in all muscle groups. There is no muscle wasting. There is no deformity. There is normal sensibility throughout. The deep tendon reflexes are symmetrically preserved.
Right shoulder
There is no deformity. Impingement signs are positive
Active range of motion measured by Goniometer method as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Flexion
100°
Extension
50°
Abduction
80°
Adduction
40°
Internal Rotation
40°
External Rotation
80°
There is Grade 5 power of resisted movements across the rotator cuff in all planes.
Left shoulder
Lateral shoulder pain is declared with left shoulder motion. Impingement signs are mildly positive. There is no muscle wasting.
Active range of motion measured by Goniometer method as follows:
Shoulder Movements
Active ROM Measured
LEFT
Flexion
140°
Extension
50°
Abduction
100°
Adduction
40°
Internal Rotation
70°
External Rotation
80°
Lumbar spine (lumbosacral)
There is normal spinal curvature. There is no muscle spasm. Active lumbar flexion is performed to half normal range. Extension is performed to half normal range. Right and left ateral flexion is symmetrically performed to half normal range. Thoracic rotation two thirds normal range to the right, two thirds normal range to the left. There is no muscle spasm or guarding evident. Straight leg raise is performed to 70 degrees bilaterally. Lasegue’s sign is negative.
Neurological examination of the lower extremities reveals normal lower limb power in all muscle groups. There is normal sensibility throughout. The deep tendon reflexes are symmetrically preserved.
Diagnosis and causation
The claimant was involved in a push-bike accident when his bike was struck by a car. He recalls brief loss of consciousness, although this was not confirmed on the hospital records.
There is early documentation of multiple right-sided injuries with the hospital records detailing grazing to the right lower shin and swelling, bruising and grazing to lateral right buttock, with further grazing at the right elbow.
A full elbow/shoulder motion was documented.
The Panel is aware that it is not uncommon for post-traumatic swelling and restricted joint motion to develop over time.
The early imaging demonstrated a radial head fracture consistent with injuries to the right upper limb.
He has recovered from early symptoms of pain in the right trochanteric (hip) region.
With regard to his spinal complaint, there is a history confirmed by the claimant of pre-existing back pain for which he underwent CT scan imaging in May 2022 and CT guided right L3/4 facet joint injection in June 2023, only one month before the subject accident.
He recalls the recurrence of back pain at least several weeks after the subject accident, although he could not recall this timing with precision.
It is noted that back pain is not recorded in the Personal Injury Claim Form completed one month post-accident and there is no reference to low back pain in the hospital records.
The subsequent development of low back pain, which he estimated to be 2-3 weeks post-accident likely reflects a recurrence of the previous back condition that he had suffered in the period leading up to at least one month prior to the Accident rather than a new injury caused by the subject motor vehicle accident.
In this regard there is no early complaint of low back pain that would be anticipated if the claimant had sustained trauma to the lumbar spine.
In his history at this assessment, as best that he could recall, the pain in the lower back commenced 2-3 weeks after the Accident.
This history is consistent with a reoccurrence of pain from the pre-accident pathology for which he had received a corticosteroid injection.
With regards to the right shoulder condition, the Panel finds that the claimant did suffer a previous injury to the right shoulder around 2004 incorporating a fracture of the clavicle and scapula, for which he required treatment.
MRI scans at that stage demonstrated infraspinatus tendinopathy. However, the claimant did ultimately recover and returned to his work as a painter which involves significant load on the shoulders whilst completing overhead tasks.
The claimant recalls intermittent pain in both shoulders before the Accident.
There is no evidence the claimant suffered restriction of motion or other pre-existing symptomatic condition that would give rise to an assessment of impairment.
The claimant’s neck pain complaints are documented in his Personal Injury Claim Form. The mechanism of the Accident involving a fall from a bike landing heavily over the right side with sufficient force to cause a fracture of the elbow is also consistent with causing a cervical spine injury.
There is early documentation of right shoulder pain in the medical notes of Dr Varady dated
30 July 2022, only four days post-accident. Dr Varady documents right acromioclavicular joint tenderness.The painful restriction of shoulder motion with an inability to raise above the arm is documented by 24 August 2022.
It is relevant to consider the claimant was treated in a sling for several weeks after the diagnosis of the right elbow radial head fracture, such that he would not have been aware of restricted shoulder motion in the immediate post-accident period.
It is noted the claimant was referred to Dr Wade Harper within a month of the Accident.
There is no record of left shoulder pain during the post-accident period.
The following injuries were caused by the Accident:
·cervical spine- soft tissue injury; underlying discopathy C4/5. There is spinal dysmetria at assessment, and
·right shoulder: soft tissue injury; right acromioclavicular joint injury; impingement.
The following injuries were not caused by the Accident:
· left shoulder, and
· lumbar spine.
Permanency
Statement about permanent impairment
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (AMA 4) and the Motor Accident Permanent Impairment Guidelines 2017.
Definition of Permanency
Permanent impairment is defined in the AMA 4 (p.315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
In my view, the impairment in this case meets the Definition of Permanency outlined above.
Cervicothoracic (cervical) spine
The clinical presentation is consistent with a DRE Cervico-thoracic Category II impairment rating. There are complaints of neck pain. There is evidence of spinal dysmetria.
I do not find that the referred symptoms in the right upper limb reflect non-verifiable radicular complaints that do not follow a specific radicular pattern.
The presentation does not meet the criteria for radiculopathy set out in s 6.138 of the SIRA Guidelines, Page 112.
A 5% WPI rating arises in accordance with the methodology set out in AMA 4, Chapter 3, Page 104.
Right shoulder
Impairment is determined using the methodology set out in AMA 4, Chapter 3. Impairment of the right shoulder is determined using range of motion methods, using figures 38, 41 and 44, AMA4 pages 43, 44 and 45, respectively, as set out in the Table below.
Shoulder Movements
Active ROM Measured
RIGHT °
Upper Extremity Impairment
AMA Guides (4th Ed)
Flexion
100
5% (Fig 38, pg 43)
Extension
50
0% (Fig 38, pg 43)
Abduction
80
5% (Fig 41, pg 44)
Adduction
40
0% (Fig 41, pg 44)
External Rotation
80
0% (Fig 44, pg 45)
Internal Rotation
40
3% (Fig 44, pg 45)
Total UE Impairment
13% UEI
This upper extremity impairment rating converts to a WPI rating of 8% using Table 3, AMA 4, page 20 to convert upper extremity impairment to WPI.
The Panel has considered using the contralateral (left shoulder) joint as a baseline for impairment on the right side in accordance with s 6.51.
However, the claimant reported that his left shoulder was not consistently symptomatic prior to the subject accident. There is no evidence in the medical file the claimant suffered from restricted shoulder motion on the left side, or indeed on the right, prior to the Accident.
The claimant recalls that his left shoulder became painful in the weeks or months after the Accident, which he attributed to preferential use of the left shoulder. However, the Panel notes that during this period, the claimant was undertaking limited activity beyond activities of daily living. He was not working as a painter and he was not performing heavy domestic chores.
The Panel cannot be satisfied that the injured right shoulder joint would have had a similar finding to the uninjured left shoulder joint before the injury or that the range of motion of the left shoulder now represents the status of the right shoulder before the injury. Therefore it has not made a deduction for the left shoulder condition on that basis.
Combined WPI
The Combined WPI rating is 13% WPI.
Body Part or System
AMA Guides/ MAA Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
Current %WPI*
%WPI* from pre-existing OR subsequent causes
%WPI* due to motor accident
1.
Cervical spine
AMA4 Chapter 3
Page 103
YES
5%
0%
5%
2.
Right shoulder
Figures 38, 41, 44, AMA4,
pages 43, 44, 45
YES
8%
0%
8%
3.
TOTAL
13%
* %WPI = percentage WPI
MATERIALS AVAILABLE TO THE REVIEW PANEL
The Review Panel had available all of the documents listed by the insurer in its list of
19 September 2024 and it also had available all of the documents listed by the claimant in an undated document headed claimant’s list of documents for review panel.The review panel briefly summarises the more significant documents.
The Prince of Wales Hospital Emergency Department Discharge Summary noted that:
“Most of impact on right side of body – elbow. Hip/buttock and leg.
Bike flew out from underneath him to side.
Feels it had slightly but did not take majority of impact.”
Dr Brian Stephenson, orthopaedic surgeon, who reported to the claimant’s solicitor on
6 October 2023 was of the opinion that there was a 12% upper extremity impairment for the right-shoulder giving 7% WPI. Further, he was of the opinion that for the cervicothoracic spine, the range of motion was as noted at the top of page 5. Clinical signs of neck injury were present without radiculopathy or loss of motion segment integrity and gave rise to a 5% WPI.For the lumbosacral spine, there was similarly 5% WPI.
Dr Wade Harper, the treating orthopaedic surgeon and a specialist shoulder surgeon, reported to the GP on 1 September 2022 noting the history of the pushbike accident on
26 July 2022.Dr Harper noted that he had had right-sided injuries. His right elbow was X-rayed, and he had ongoing right elbow and right shoulder issues. He also injured his right hip. There was a deformity of the right acromioclavicular joint with lateral clavicle prominence. He had a painful abduction arc. He had preserved power of right shoulder internal and external rotation. The impingement and crossbody adduction signs were positive.
Report of Dr Mitchell dated 30 October 2023
The claimant said that he developed pain in his neck, right shoulder/clavicle/elbow, right thigh/hip and left knee, as well as subsequent psychological issues, following a motor vehicle accident on 26 July 2022.
He said that he was riding his bicycle in traffic when he was T-boned by a vehicle making a right-hand turn in front of him. He was thrown onto his right side and back. He was wearing his helmet, he did not lose consciousness and was able to move to the side of the road.
He was then transferred by ambulance to Prince of Wales Hospital complaining of pain to the right elbow/shoulder and right leg. Grazes were noted to his right hip, right lower limb and elbow. Scans showed:
(a) a muscular tear from the right clavicle measuring 21 cm;
(b) a right shoulder rotator cuff tear, and
(c) gluteal and hamstring tears in his right leg.
His injuries were managed conservatively and he was discharged with his right shoulder in a sling, which he wore for two months.
The claimant reports ongoing pain in the neck with radicular symptoms radiating down the right arm following the subject injury of 26 July 2022, after which he was found to have multilevel spondylotic changes, most notable at the C4/5 level where there was severe right-sided foraminal stenosis potentially irritating the exiting C5 nerve roots.
He has a significant past history of a right shoulder injury from 2004, with ongoing restricted movement as a consequence, as well as previous low back pain, due to severe long-standing facet joint arthritis at L3/4, particularly on the right side, together with mild spondylolisthesis at the same level treated with a steroid injection.
The right arm demonstrated a degree of weakness, particularly in the lower right arm, with a measured hand grip strength of only 20kg compared to 70kg possible on the left side. Reflexes in the right arm appeared reduced compared to the left side.
The prognosis with respect to all of the diagnosed conditions would be considered guarded due to the permanent nature of the degenerative changes identified.
The claimant had a current capacity for suitable work that would avoid any aggravation of the reported symptoms and, providing the following precautions were available, he should be able to manage such work on a full-time basis:
(a) manage all physical activities below mid-chest height and close to the body trunk, particularly if repeated or sustained in nature, to avoid aggravating his symptoms;
(b) frequent manual handling actions limited to 5kg in force for lifting, carrying, pushing, and pulling;
(c) on an occasional basis, up to 10kg;
(d) avoid fixed and awkward spinal postures, including unsupported spinal bending and frequent twisting of the lower back, and
(e) frequent posture movement should take place throughout the day.
The claimant had not yet reached maximum medical improvement, based on the proposed investigations that may indicate further treatment that could alter the state of his neck symptoms. He suggested that assessment of his WPI be considered in six months time.
The described neck symptoms appear to be related to the subject motor vehicle accident, as an aggravation of long-standing constitutional cervical spondylotic changes, together with possible right arm radiculopathy.
The right shoulder and lower back would appear to be prior conditions, unrelated to the subject motor vehicle accident.
SUBMISSIONS
Insurer’s submissions dated 7 February 2024
[2.1] The claimant seeks a determination of WPI relying on orthopaedic surgeon
Dr Stephenson’s report dated 6 October 2023, assessing the claimant at 20% WPI:(a)Left shoulder: 8% UEI → 5% WPI;
(b)Right shoulder: 12% UEI → 7% WPI;
(c)Lumbar spine: DRE Category II → 5% WPI, and
(d)Cervical spine: minor impairment, asymmetric loss of motion → 5% WPI.
2.2 Dr Stephenson acknowledged the claimant’s chronic shoulder problems due to years of work but stated the 2022 accident exacerbated them. However, he did not deduct for pre-existing impairment.
[2.3] In his report of 30 October 2024, Dr Mitchell opined:
(a)Dr Huang proposed further investigations: bone scan with SPECT CT and nerve conduction studies, and
(b)Dr Mitchell opined the claimant’s condition was not stable for WPI assessment. Symptoms had been stable for 12 months, but ongoing treatment could alter the situation. WPI assessment was suggested in 6 months.
[2.4] When examined by Dr Mitchell (weeks after Dr Stephenson’s report), the claimant disclosed a prior injury:
(a)Fractured right clavicle and scapular in 2004, and
(b)treated conservatively with symptoms continuing due to rotator cuff injury.
[2.5] Dr Mitchell’s examination results compared to Dr Stephenson’s findings:
(a)Neck: Normal range of motion except for mild reduction of right lateral flexion;
(b)Back: Normal range of motion in thoracolumbar spine;
(c)Right arm: Weakness in the lower right arm, hand grip strength 20 kg (compared to 70 kg on the left), and
(d)Left shoulder: Normal range of motion; no diagnosis made.
[2.6] Dr Mitchell noted:
(a)significant past history of right shoulder injury (2004) with ongoing restricted movement, and
(b)previous low back pain due to facet joint arthritis at L3/4 and mild spondylolisthesis, treated with a steroid injection.
[2.7] Dr Mitchell continued:
(a)neck symptoms were accident-related (aggravation of cervical spondylotic changes and possible right arm radiculopathy), and
(b)right shoulder and low back pain were pre-existing and unrelated to the Accident.
[2.8] The insurer provided the claimant’s general practitioner records from Bondi Junction Medical Centre:
(a)11 December 2007: Lower back injury at work, treated with physiotherapy and NSAIDs;
(b)29 May 2022: Persistent lower back pain despite physiotherapy and chiropractic care, and
(c)16 June 2022: CT-guided L3-L4 Facet Joint Steroid Injection, 10 days before the Accident.
[2.9] The insurer referred to Dr Shetty’s report (28 June 2023), which noted:
(a)pre-accident rotator cuff issues;
(b)the claimant consulted Dr Harper for several years to manage the condition, and
(c)consistent with the claimant’s disclosure to Dr Mitchell of ongoing rotator cuff symptoms after the 2004 injury.
[3.1] The insurer relies on Dr Mitchell’s opinion to argue that the claimant’s low back and right shoulder conditions are not related to the 2022 accident.
[3.2] Without WPI assessments for the low back and right shoulder, Dr Stephenson’s 20% WPI would reduce to 10% WPI.
[3.3] The insurer submits that the claimant’s WPI arising from the Accident would not exceed 10%, and the claimant’s application should be dismissed.
Claimant’s submissions dated 6 June 2024
Medical Assessor Gothelf assessed the claimant’s injuries to his neck, back, and upper extremities.
The left shoulder injury did not give rise to WPI, and this finding is not contested.
The claimant accepts the insurer's contention that pre-existing impairment for the lumbar spine should have been considered but argues it does not materially affect the outcome.
Section 7.26(2) of MAI Act allows review only if the assessment is “incorrect in a material respect.”
Meeuwissen v Boden [2010] NSWCA 253 requires that the error “would or could have a bearing on the conclusions reached.”
Ground one: Causation of the Lower Back Injury:
(a) the claimant does not contest this ground and does not wish to be heard on it.
Ground two: Causation of the Right Shoulder Injury:
(a) the claimant relies on the standard of reasons for administrative decisions set out in Minister for Immigration v Wu Shan Liang (1996) and Winfoot v Cocak [2013] HCA 43, and
(b) reasons must inform the decision and should not be critiqued “minutely and finely” with an overzealous approach.
Ground three: Stabilisation and Maximum Medical Improvement:
(a) the claimant repeats the above submissions regarding the standard of reasoning;
(b) the Medical Assessor examined the claimant almost two years after the Accident and considered his circumstances:
(i)paragraph 13: the assessor noted no plans for surgery, and
(ii)page 11: the assessor commented on the permanency of the impairment,
(c) the Medical Assessor applied a straightforward and practical approach to stabilisation, and any criticism would be an inappropriate over-analysis (see Winfoot).
Ground four: Incorrect Application of Guidelines
Cervical spine:
(a) DRE category II applies where there is either non-uniform loss of motion or non-verifiable radicular complaints;
(b) the Medical Assessor found positive asymmetrical loss of motion, satisfying DRE category II;
(c) radicular complaints following a dermatomal distribution are irrelevant.
Shoulder:
(a) the Medical Assessor must determine the loss of range of motion on the day of assessment;
(b) other findings by different assessors on another day are irrelevant (see Guideline 6.21);
(c) Guidelines 6.40 and 6.41 apply only where there are inconsistencies in presentation. The assessor found no such inconsistency:
(i)paragraph 19: the history, physical examination, and documentation were consistent with the diagnosis and mechanism of injury.
The finding that the left shoulder impairment is unrelated to the Accident is not challenged.
Even if there is a pre-existing impairment for the back, the claimant’s WPI exceeds the threshold based on the neck and right upper extremity assessments.
The Medical Assessor’s approach was straightforward and appropriate, with no error in the assessment of the neck or right upper extremity.
The application for review should be dismissed.
Insurer’s submissions dated 3 July 2024
[1.1] The claimant was injured on 26 July 2022 while riding his bicycle on Bumborah Point Road, Botany Bay, when a vehicle turning right collided with him.
[1.2] Injuries included: right elbow, right clavicle, right shoulder, neck, right thigh, and left knee.
[1.3] WPI:
(a)Dr Stephenson assessed 20% WPI on 7 October 2023, and
(b)Dr Mitchell reported on 26 October 2023 that the claimant’s condition was not stabilised for assessment.
[1.4] On 17 January 2024, the claimant’s solicitor lodged a dispute for WPI assessment with the Commission, referring these injuries:
(a)cervical spine – soft tissue injury;
(b)lumbar spine – soft tissue injury;
(c)left shoulder – rotator cuff pathology and impingement, and
(d)right shoulder – rotator cuff pathology and impingement.
[1.5] Treating surgeon Dr Harper’s 2004 notes revealed a prior cycling accident that caused a fractured right clavicle and scapular neck, leading to muscle wasting, impingement, and ongoing pain.
[1.6] Medical Assessor Gothelf provided his certificate on 6 June 2024, determining 17% WPI:
(a)Cervical spine: 5% WPI (DRE II, AMA4);
(b)Lumbar spine: 5% WPI (DRE II, AMA4);
(c)Right shoulder: 8% WPI (converted from 13% UEI after subtracting baseline from the uninjured left shoulder), and
(d)Left shoulder: Not accident-related.
[3.2] Medical Assessor Gothelf failed to consider:
(a)pre-accident complaints of low back pain documented in Bondi Medical Centre notes, and
(b)treatment for the lower back, including a CT-guided steroid injection on 16 June 2022, just 10 days before the Accident.
[3.6] The insurer identified five key errors:
(a)ignored documented pre-existing back issues and treatment;
(b)relied solely on the claimant’s denial of pre-existing symptoms;
(c)failed to address inconsistent descriptions of the injury mechanism and claimant’s medical history;
(d)procedural unfairness by not questioning the claimant about inconsistencies, and
(e)failed to deduct/apportion pre-existing impairment for the lumbar spine, as required by Guidelines 6.31–6.33.
[3.14]The Medical Assessor failed to account for:
(a)the claimant’s 2004 right shoulder injury (fractured clavicle and rotator cuff pathology) and ongoing symptoms, and
(b)reports from Dr Shetty and Dr Mitchell referencing prior rotator cuff issues and chronic problems from painting.
[3.23]The Medical Assessor erred in:
(a)relying on the left shoulder as a “baseline” for right shoulder impairment, and
(b)not considering the claimant’s right-hand dominance and heavy use of the right shoulder over his 42-year career as a painter.
[3.25]Medical Assessor Gothelf determined the claimant’s condition had stabilised despite:
(a)recommendations from Dr Huang and Dr Shetty for further investigations (bone SPECT CT and nerve conduction tests), and
(b)Dr Mitchell’s opinion (October 2023) that the claimant’s condition was not stabilised and WPI assessment should occur in 6 months.
[3.33]The assessor failed to provide reasons for determining stabilisation and ignored Dr Mitchell’s views.
[3.36]Cervical spine:
(a)the finding of “non-verifiable radicular complaints” was not supported by the examination.
[3.37]Shoulders:
(a)the range of motion findings were inconsistent with medical records, including reports from Dr Mitchell, Dr Stephenson, and hospital records, and
(b)the assessor failed to consider Guidelines Clause 6.40 and 6.41 regarding plausibility and procedural fairness.
The insurer argues that errors in causation, stabilisation, and improper application of guidelines led to incorrect WPI assessments.
Without lumbar spine and right shoulder impairments, the WPI would not exceed 10%.
The insurer submits there is reasonable cause to suspect Medical Assessor Gothelf’s assessment was incorrect.
Requests the President refer the matter to a review panel.
HOW THE PANEL DEALT WITH THE SUBMISSIONS
Medical Assessor Home and the Review Panel were quite clear in its examination that the clinical presentation on examination of the cervical spine was consistent with DRE cervicothoracic II. There were complaints of neck pain and there was evidence of spinal dysmetria.
Notwithstanding that the requirements of radiculopathy were not met, the Panel arrived at a finding of 5% WPI in accordance with the methodology set out in the Medical Assessment Guidelines – chapter 3, page 104.
With respect to the right shoulder, the Panel took into account that there was clear evidence of the impact being on the right-hand side. It determined impairment of the right shoulder using the range of motion methods and set out the findings in the table which appears below:
Shoulder Movements
Active ROM Measured
RIGHT °
Upper Extremity Impairment
AMA Guides (4th Ed)
Flexion
100
5% (Fig 38, pg 43)
Extension
50
0% (Fig 38, pg 43)
Abduction
80
5% (Fig 41, pg 44)
Adduction
40
0% (Fig 41, pg 44)
External Rotation
80
0% (Fig 44, pg 45)
Internal Rotation
40
3% (Fig 44, pg 45)
Total UE Impairment
13% UEI
The combined WPI including for the right shoulder was as set out in the table in the report of the panel’s examination.
DETERMINATION
The Panel determined to revoke the certificate of Medical Assessor Gothelf and in lieu determined that the claimant had a 13% WPI as a result of the Accident.
0
11
0