Insurance Australia Limited t/as NRMA Insurance v Brewer

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Brewer [2024] NSWPICMP 350
CLAIMANT:	Alexander Brewer
INSURER:	Insurance Australia Limited trading as NRMA Insurance
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Tania Rogers
MEDICAL ASSESSOR:	Geoff Stubbs
DATE OF DECISION:	30 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was a driver in a utility that collided with a car in an intersection; original assessment found the claimant sustained numerous injuries including to right thumb, shoulders and spine; claimant assessed with a whole person impairment (WPI) of 17%; Panel found a total 3% WPI on the basis of aggravated mild crepitus carpometacarpal joint and osteoarthritis of the right thumb; claimant had a long-standing and significant history of shoulder injuries, tears and prior surgery; all other remaining injuries including to the spine, hips, elbows, left thumb and wrists assessed by the Panel as being soft tissue injuries with 0% WPI; Panel affirmed the certificate of original Medical Assessor regarding treatment and care of a referral for an MRI scan of the left wrist on 30 June 2022 and a referral for MRI scan of the left elbow on 8 March 2022 as it relates to the injury caused by the motor accident and was reasonable and necessary in the circumstances; Held – original medical certificate set aside.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Herald dated 26 July 2023 regarding permanent impairment. The Panel issues a new certificate determining that: 1. The following injuries were caused by the motor accident and give rise to a permanent impairment of 3% which is not greater than 10%: · cervical spine- soft tissue injury now resolved; · thoracic spine- soft tissue injury now resolved; · lumbar spine - soft tissue injury now resolved; · right thumb UCL tear and 1st CMCJ OA., 3% whole person impairment; · right shoulder- soft tissue injury; · left shoulder- soft tissue injury; · right knee- chondromalacia patella; · left knee- chondromalacia patella; · right hip- soft tissue injury; · right elbow – lateral epicondyle; · left elbow – lateral epicondyle; · left thumb- soft tissue injury, and · both wrists- soft tissue injury. 2. The Review Panel affirms the certificate of Medical Assessor Herald dated 26 July 2023 regarding treatment and care. 3. The following treatment and care of: · referral for MRI scan of the left wrist on 30 June 2022 and a referral for MRI scan of the left elbow on 8 March 2022, does relate to the injury caused by the motor accident. 4. The following treatment and care of: · referral for MRI scan of the left wrist on 30 June 2022 and a referral for MRI scan of the left elbow on 8 March 2022, is reasonable and necessary in the circumstances.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

On 7 December 2020 Alexander Gareth Brewer (the claimant) was involved in a motor vehicle accident at the intersection of Hoxton Park Road and Cowpasture Road, Hoxton Park NSW.
Mr Brewer has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Brewer under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by
the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment in respect of the claimant’s physical injury was referred to Medical Assessor Jonathan Herald who issued his certificate dated 26 July 2023. Medical Assessor Herald found that the injuries to the claimant were caused by the accident and gave rise to 17% whole person impairment (WPI) (the Review).
The insurer has sought a review of Medical Assessor Herald’s certificate dated 26 July 2023.
There is a medical assessment of the claimant’s permanent impairment in relation to injuries to his teeth and gums. Medical Assessor Paul Nicholls issued a certificate dated 1 July 2023 where he found that the following injuries caused by the motor accident give rise to a permanent impairment of 0%: teeth/gums – TM bruxism of teeth and gums.
The Panel notes that Mr Brewer’s psychiatric injuries arising from the subject motor accident were separately assessed by another Medical Review Panel in a decision dated
20 May 2024.

REVIEW PROCEDURE

An application for review of the medical assessment of Medical Assessor Herald was lodged by the insurer on 6 September 2023. A certificate dated 26 July 2023 was provided to the parties on 9 August 2023 which is within 28 days of the date on which the certificate was made available to the parties.
On 25 October 2023, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
The grounds for review advanced by the insurer included that the Medical Assessor’s certificate for the right shoulder the Medical Assessor did not calculate the pre-existing impairment in accordance with cl 6.31 of the Guidelines. The President’s delegate noted that the Medical Assessor’s reasons do not refer to the objective evidence of a pre-existing symptomatic impairment. The Medical Assessors reasons also do not show how the Medical Assessor calculated the value of the pre-existing impairment in accordance with cl 6.31. Rather, the Medical Assessor appears to have elected to leave a selected percentage (50%) as the pre-existing component of the current total impairment. The insurer has also referred to evidence of bilateral shoulder symptoms in the months before the subject motor accident – see paragraph 3.1 of the insurer’s review application submissions. None of this was referred to in the Medical Assessor’s calculation of pre-existing impairment.
ASSESSING PERMANENT IMPAIRMENT AND THE CAUSATION OF INJURIES - RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
The evaluation of permanent impairment where there is evidence of pre-existing symptomatic permanent impairment is referred to in cl 6.31 of the Guidelines. Clause 6.31 state as follows:
2.“6.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.”
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
3.     “6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
4.     '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:
5.1.      The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
6.2.      The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
7.     This, therefore, involves a medical decision and a non-medical informed judgement.
8.     6.7   There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In Norrington v QBE Insurance (Australia) Ltd[2] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
[2] [2021] NSWSC 548, Norrington.
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
Brereton J referred to the decision of Campbell J in Owen v Motor Accidents Authority (NSW)[3] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where:
[3] [2012] NSWSC 650, Owen.
9.“busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga[2004] NSWCA 34 at [35]).”
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[4] where the Court stated at [64]:
[4] [2016] NSWCA 229, McGiffen.
10.“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
Even more recently In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[5] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.
[5] [2021] NSWSC 804, Kinchela.
The difficult issue of how Medical Assessors are required to assess the causation of injuries in a motor accident has been recently considered in a number of cases. Some of these recent cases are referred to below.
In Briggs v IAG Limited trading as NRMA Insurance (No. 2)[6] his Honour Justice Wright stated at [35]:
[6] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
11.“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
12.6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
13.6.6     Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
14.'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:
15.1.         The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
16.2.         The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
17.This, therefore, involves a medical decision and a non-medical informed judgement.
18.6.7     There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.’”
In Briggs v IAG Limited trading as NRMA Insurance (No. 2),Wright J set out some fundamental principles of how Medical Assessors are required to approach the question of causation in accordance with the Guidelines (in the context of errors made by the second review panel). His Honour said, at [75]-[77]:
“75. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[7] her Honour Harrison AsJ found that a third review panel’s decision on causation was based wholly on its findings that radiological changes cannot be scientifically proven to be traumatically caused. Her Honour found that in conducting its assessment the third review panel failed to take into account all of the relevant evidence referred to by Wright J in the above passage from Briggs (No. 2). Her Honour then stated:
[7] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41].
“42. The third review panel failed to take into account all relevant evidence as required by clause 5.6 of the guidelines,and in light of all that material and in accordance with cll 6.6 and 6.7 of the guidelines, the panel failed to make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to the plaintiff’s injury.
43. In relation to the finding as to causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In the same way that the second review panel had fallen into error, the third review panel failed to address the question of causation on the balance of probabilities, instead requiring that the claimant establish causation of the disc injury to the level of medical certainty, rather than on the balance of probabilities.”
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[8] her Honour Harrison AsJ referred again to the decision of Wright J in Briggs (No. 2) where his Honour cited the following cases and commented:
[8] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [44].
“71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 as follows, at 242:
… it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.
72.    Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73.    The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74.    For the reasons set out above, the review panel failed to deal with the issue of causation according to law, and, in doing so, constructively failed to exercise its jurisdiction.”

ASSESSMENT UNDER REVIEW
The claimant was assessed at the Personal Injury Commission (Commission) by Medical Assessor Jonathan Herald on 22 June 2023. A certificate dated 26 July 2023 was provided to the parties on 9 August 2023.[9]
[9] Claimant’s Bundle R 2 pp 7-19.
Medical Assessor Herald certified that as a result of the subject motor accident the claimant sustained a right thumb UCL tear and 1st CMCJ OA, soft tissue injury both wrists, soft tissue injury to the left thumb, chondromalacia patella both knees, left elbow lateral epicondyle, right elbow medial and lateral epicondyle, soft tissue injury to both shoulders, and soft tissue aggravation of underlying cervical, lumbar and thoracic spine with referral to both shoulder blades.
Medical Assessor Herald certified that the treatment and care of a referral for MRI scan of the left wrist on 30 June 2022 and a referral for MRI scan of the left elbow on 8 March 2022 relates to the injury caused by the motor accident. He further found that the treatment and care of a referral for MRI scan of the left wrist on 30 June 2022 and a referral for MRI scan of the left elbow on 8 March 2022 is reasonable and necessary in the circumstances.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued Directions to the parties on 19 February 2024 requiring each party to file an indexed, paginated bundle of documents. In response to these Direction the solicitors for the claimant and insurer both uploaded to the portal an indexed bundle of documents.
The Panel’s direction included the following two directions:
“4. The claimant Mr Brewer is directed to bring with him to the re-examination on 11am Tuesday 12 March 2024 any physical copies or copies on CD discs of relevant MRI , CT scans , x-rays or other imaging studies of the claimant’s injuries that are in his possession .
5. The Panel also directs that if the claimant and insurer bundles of documents including all relevant MRI , CT scans , x-rays imaging studies are not provided by the due date the medical re-examination of the claimant may be delayed until all relevant and required documentary and imaging evidence is provided.”
The Panel notes that neither party fully complied with the above directions. The claimant’s solicitors did not produce any relevant MRI, CT scans, X-rays imaging studies. The insurer’s solicitors provided a bundle of 64 documents consisting of various reports and radiological investigations and also the workers compensation certificate of Dr Lionel Chang dated
21 May 2019. The Panel also notes that Mr Brewer appeared to have with him at the re-examination on 12 March 2024 copies of radiological investigations on a CD which he referred to but did not produce to the Panel.
The failure of the parties to provide the radiological investigations required by the Panel has hampered the Panel’s ability to determine this review application.
The claimant and insurer have filed with the Commission over 400 pages of hospital notes, clinical doctors notes, treating doctor records, rehabilitation notes and medicolegal reports. The Panel has carefully reviewed and taken all these notes and medical records into account but has not attempted to summarise or detail all of the medical records in these reasons.
The Panel notes in Roger v De Gelder [2015] NSWCA 211, the Court of Appeal determined that the statutory obligation of a Medical Assessor is to review the evidentiary material placed before him/her in order to determine whether the degree of permanent impairment to the injured person caused by the motor accident is greater than 10%. The statutory duty does not go so far as to impose a precise obligation to consider and discuss every piece of evidence placed before the Medical Assessor.
Application for Personal Injury Benefits
The Application for Personal Injury Benefits was not produced to the Panel in either parties’ bundle.
Ambulance and police reports
There were no police or ambulance reports available because neither were called to attend the motor accident.
Hospital reports
The claimant did not attend hospital immediately after the motor accident but instead drove himself to his treating doctor.
Pre-accident treatment medical evidence
There were some medical records available for the claimant’s medical history prior to motor vehicle accident.
In bundles of documents the parties produced over 400 pages of clinical and treating medical records including medico-legal reports for the claimant prior to the subject motor accident.
The Panel has reviewed all the pre-accident treating medical records produced by both the claimant and the insurer. Some of these pre-accident medical reports are referred to briefly below.
The Panel notes that the pre-accident medical evidence shows that Mr Brewer reported a significant previous history of numerous injuries or complaints including to his: spine, shoulders, knees and hips. These records refer to a prior workplace accident in 2016 and one prior motor accident in 2017. [10]
[10] Claimant’s Bundle R 2 pp 7-19.
The history of these two prior accidents and the injuries sustained by Mr Brewer are complex and were summarised by the original Medical Assessor Herald as follows:
28.“His pre-accident medical history is quite complex. In summary, he has had two previous accidents. On 7 March 2016, he was assaulted and sustained an injury to his neck and left shoulder. He was working for security at a hotel and eight men on ice and cocaine tackled him to the ground, and he fell on the left-hand side. He was kicked in the face and injured his right hip and his right eye socket. His left shoulder was injured as he was hit with a fence paling. He was taken to Royal Prince Alfred Hospital and had a dislocated shoulder which was eventually stabilised by Dr Ben Cass in 2015. He had a good recovery but not a complete recovery. He also had ongoing right hip pain, and this was initially treated conservatively. Of note, in a medical assessment by Dr Bodel, he attributes approximately one-third of the impairment to his left shoulder from this assault, as well as the right hip impairment.
29.Injury to the neck, back, both shoulders and the right hip occurred on a second occasion on 7 February 2017. At this point, he was involved in a motor vehicle accident as the front seat passenger of a Toyota Corolla. During this impact, he was also treated by Dr Cass and further progression of the tear in the labrum was identified in his shoulder and he had an extensive period of rehabilitation. He also saw Dr Walker in regard to his right hip. Although a labral tear was identified, it was not severe enough to warrant surgery and he sought a second opinion from Dr Randhawa. He has also had exercises and seen a sports physician Dr Kuah who has recommended PRP injections which he has had in various locations including his knees. He has had an injury to his left knee from 2016 that has been aggravated.”[11]
[11] Claimant’s Bundle R 2 p 10.
The Panel notes the comment from Mr Brewer to Medical Assessor Herald that: “He informs me vehemently, however, that he had a full recovery from these injuries by the time of his third accident, which we had discussed today.”
There is a report from Dr Peter Walker, hip and knee surgeon, dated 22 January 2018. In this report Dr Walker writes that Mr Brewer reported his left knee and right hip continue to give him problems.[12] The right hip is causing clicking and pain in the anterior aspect which occurs on a daily basis. Dr Walker reports that the right hip is clinically consistent with a labral tear.
[12] Insurer’s bundle A 7 p 163.
On 3 September 2018 Dr Benjamin Cass, orthopaedic surgeon reported on Mr Brewer’s right shoulder repair. Dr Cass wrote:
30.“Firstly with respect to the right, I am sad to say that our repair there of the labrum, while healing quite nicely has left Alex with ongoing issues, particularly stiffness and also a tight, painful ache posterosuperiorly. His forward elevation is to 150°, external rotation to 20 and internal rotation to L1 tut at the extremes of all range of motion he feels pain and tightness deep within the posterosuperior aspect of the joint, his rotator cuff posterosuperiorly and the labrum. It bothers him |at night-time when he lies on that side, with dressing . The decreased range of motion impacts almost everything he does during day-to-day activity. I can at least feel that his shoulder is stronger than it was before surgery but unfortunately it really is stiffer and more uncomfortable it was. It has left him in a situation where the arm cannot be used at the extremes without rotation or load…………To an extent it is what it is, he has to deal with it the way it is. I do not think it is going to improve much more but I also do not think he should have further surgery to that right shoulder, I think his result is at the lower end of what I would have expected. It still clicks for him and feels stiffer and has not stretched out over time . Unfortunately I just do not have the ability to make that much better via more surgery now.”
Reporting on Mr Brewer’s left shoulder . Dr Cass wrote:
“The left shoulder has not been reimaged since November of last year. Interestingly there does appear to have been perhaps more catching, a click and loss of power inside that left shoulder, particularly with abduction and external rotation. Really quite likely a response to the new injury that occurred where the superior labrum was torn from where we previously repaired it, the car the new accident has torn it from its superior aspect more posteriorly to cause a Kim lesion and defunction biceps and the posterosuperior labrum . In the first instance I think it is reasonable to get a MRI scan of that shoulder. It would to be nice to make sure there has been not an excessive
amount of change, at least to see what the labrum and the biceps tendon looks like. Alex has a better range of motion on this left side. His forward elevation is to 160°, his external rotation is to 30,i internal rotation is to L1 so it is a little bit freer than the right shoulder but it still feels to him weak and unstable particularly when he puts a load in the abduction external rotation position. It will click from time to time in that point and not only cause him pain but also a loss of his power and control when that occurs.”
On 4 March 2019 Dr Benjamin Cass reported that he had examined Mr Brewer and found the right shoulder is stable at the moment with solid rotator cuff and muscles and no further surgery is appropriate to the right shoulder. [13]The left shoulder is different. Dr Cass found clear evidence on multiple MRI scans, examinations and at surgery that Mr Brewer had significant damage to his left shoulder in assault in 2016 and then significantly reinjured in a motor accident in 2017.
[13] Insurer’s bundle A 7 p 68.
On 27 May 2020, the claimant reported to Lane Cove Physiotherapy that he had pain in both shoulders and restriction. He noted clicking and pain in the shoulders.
An email from the claimant to Gladesville Medical Centre Reception dated
13 November 2020 requested assistance with Centrelink as he was not working due to being injured and on Workcover.
There are a number of Allied Health Recovery requests from Jack Persia, physiotherapist, from Lane Cove Physiotherapy dated 2019. These requests contain similar details of diagnosis and pre-existing conditions. One request dated 31 July 2019 contains the following details. [14] Mr Persia’s diagnosis for Mr Brewer is: 1. Left Knee patella tendinopathy / posterior knee pain; 2. Right hip /groin/adductor related pain and 3. Left shoulder labral injury. He notes that Mr Brewer is recovering well from his left Achilles tendon rupture repair. He is training back in the gym. Mr Brewer reported left knee pain, right groin pain left shoulder near full ROM flexion, pain at EOR flexion and external rotation. Latest MRI and review by
Dr Cass dated 4 December 2018 shows extension of labrum tear into posterior – superior labrum. Mr Persia referred to pre-existing factors including motor vehicle accident on
7 February 2017 - operation right shoulder by Dr Cass 22 August 2017. Patient claims left shoulder was exacerbated in the motor vehicle accident where his left shoulder hit the passenger door. MRI confirms an extension tear of his labrum into posterior-superior direction.
[14] Insurer’s bundle A 7 p 50.
On 1 June 2020 Jack Perisa, physiotherapist, from Lane Cove Physiotherapy noted that the claimant reported some clicking and pain in both shoulders. Mr Perisa noted reduced range of motion in both shoulders with pain in both shoulders, 90 abduction restricted IR to 90ABd to 50° with positive Kim's test.
On 5 August, 9 September, 16 September and 23 September 2020 Mr Persia’s notes record : FF 170 pain EOR ER both shoulders in 90 abduction restricted IR at 90 ABd to 50 degrees positive Kim's test weak on IMT ER testing. Later in September and October Mr Perisa’s notes record similar but slightly improved range of motion in both shoulders.
On 21 October 2020, the clinical records of Lane Cove Physiotherapy noted ‘pain EOR ER both shoulders in 90 abduction’ and ‘restricted IR at 90 Abd to 50 degrees’.
On 14 November 2020 Jack Perisa noted that the claimant has had physiotherapy at the practice to both shoulders, left knee and right hip/groin for injuries sustained at work after an assault and injury sustained in a motor vehicle accident.[15] The report also notes that the claimant will be requesting continuing care under the workers compensation scheme. The report noted that the claimant was receiving treatment for both shoulders, left knee and right hip/groin for injuries sustained at work after an assault and injuries sustained in a motor accident. The claimant was reporting right shoulder stiffness, pain and clicking. In relation to his left shoulder, he had feelings of instability, pain and clicking in the shoulder.
On 20 November 2020 the claimant’s treating chiropractor, Anna Costan, completed an AHRR seeking approval for eight long consultations in relation to the left shoulder and right hip.
Immediately before the subject accident, the claimant was certified by a treating general practitioner Dr Therese Pham as having a reduced capacity of five hours a day, three days per week from 6 November 2020 until 4 December 2020. [16]The certificate of capacity noted a diagnosis of work-related injury or disease as left Bankart lesions/SLAP lesion ligament tear, right groin abductor longus tendinopathy, left knee progressive patella tendinosis and ongoing bone marrow oedema of the patella apex and progressive focal full-thickness cartilage fissuring and subchondral cystic change. The certificate noted that the patient stated the date of injury was 4 March 2016 (which coincides with the date of his assault at work).
Post-accident treating medical evidence
[15] Insurer’s bundle A 5 pp 7 -17.
[16] Insurer’s bundle A 6 pp 30 -31.

There are detailed medical records and medico – legal reports available for the claimant from after the subject motor accident.
Ms Susie Endrey, treating psychologist
There are a number of letters from Mr Brewer’s treating psychologist Ms Susie Endrey.
In a letter dated 15 May 2023 Ms Endrey writes that she has treated Mr Brewer since November 2022.[17] She wrote that Mr Brewer cannot partake in any further reviews without catastrophic psychological damage. She further describes Mr Brewer as being suicidal with levels of distress there are extreme and he's overwhelmed by a sense of profound grief, anger and despair. He is in despair about insurance process which is unsupported and he feels victimised.
[17] Claimant’s bundle R 3 pp 20- 21.
Ms Endrey writes that Mr Brewer has overwhelming stress about the insurance process.
Mr Brewer outlined his life pre-accident of December 2020 to Ms Endrey. He reports that he was living an energetic, constructive life where he was teaching and healing others while himself living a financially secure and emotionally and physically healthy life. Mr Brewer reported periods of financial insecurity and homelessness. The process of this insurance investigation is causing extraordinary high and serious levels of despair and torment.
The request for a further review will provoke extreme anxiety for Mr Brewer. He will have crippling panic attacks before any review and will suffer intense anxiety for two weeks after the review. He can be crying with frustration and contemplating suicide and then experience fear and anger. Ms Endrey believes a further review will tip Mr Brewer over the edge of the fragile equilibrium is currently maintaining.
Ms Endrey recommends that if the review process does require Mr Brewer to be present in person in Sydney that both his partner and herself as his psychologist should travel with him with the role of supporting him to minimise the psychological trauma such an event.
In another letter addressed to the insurer and dated 10 July 2023 Ms Endrey emphasises the damaging psychological effect insurance review process is having upon Mr Brewer.[18] She writes that Mr Brewer's current emotional state is very fragile and despite regular therapeutic consultations his levels of distress continue to intensify and are now frequently extreme. He reports suicidal ideation on several occasions. Mr Brewer expresses intense levels of despair about insurance process which is tortuous for him. He feels unsupported, disrespected, marginalised and feelings of an insignificant person.
[18] Claimant’s bundle R 4 pp 22-23.
Ms Endrey writes that the process has been exceptionally challenging for Mr Brewer and his emotional health is very fragile and vulnerable. He presents as a person on the verge of a total breakdown. Mr Brewer's mental health is perilously close to collapsing.
In a third letter addressed to the insurer’s solicitors and dated 20 November 2023 Ms Endrey re-emphasises the damaging psychological effect the insurance review process is having upon Mr Brewer and that he is exceptionally vulnerable emotionally.[19]
Dr James Bodel, orthopaedic surgeon
[19] Claimant’s second bundle A 2 p 2.
There is a report from Dr James Bodel, orthopaedic surgeon dated 18 July 2018.[20] This report refers to Mr Brewer's history of injury including the following notation. On
[20] Insurer’s bundle A 7 pp 90 – 95.
5 March 2026 he was assaulted by a group of men when working as a security guard. His local doctor, Dr Chater, then sent him to have an MRI scan of the left shoulder and he was told that he had a labral tear. He was referred to see Dr Benjamin Cass, an orthopaedic surgeon, in regard to the shoulder and Dr Cass recommended an arthroscopic subacromial decompression and repair of the torn labrum. This was done on 6 May 2016, which is about two months after the assault. Progress was slow. He was in a sling post-operatively for a period of about six weeks. Dr Bodel noted that Mr Brewer had not completely recovered but was near to full recovery by about January 2017. Mr Brewer also reported a right hip injury.
Mr Brewer then reported a motor accident on 7 February 2017. He reported that he injured his left and right shoulders and neck. Mr Brewer had further MRI scan investigations.
Dr Cass indicated that he had suffered a significant rotator cuff injury to the region of the right shoulder and on 21 August 2017 he had a surgical repair of the right shoulder. He saw
Dr Walker about the right hip and has had an MRI scan done. This shows some possible minor changes in the labrum but not sufficiently severe to warrant surgery.
Dr Bodel’s diagnosis is rotator cuff pathology in both shoulders, a soft tissue aggravation, acceleration, exacerbation and deterioration of a disease process being the degenerative disc disease in the cervical spine, the labral tear in the region of the right hip and the peripatellar tendinitis in the region of the left knee.
Dr Bodel then assessed Mr Brewers WPI as follows:
“I have assessed this gentleman in accordance with the WorkCover Guidelines for the injuries that occurred in the assault on 05 March 2016. He has a rateable restriction of left shoulder movement.
34.Clinically this is assessed using Figure 16-40 on Page 476, Figure 16-43 on Page 477 and Figure 16-46 on Page 479. The degree of recorded restriction of movement constitutes a 12% upper extremity impairment This converts to a 7% Whole Person Impairment overall.
Based on the history and the clinical findings seen here today, I would estimate that five-sevenths of this is due to the motor vehicle accident because of the "new" injury that occurred in that motor vehicle accident and the remaining two-sevenths is the residual impairment following the work related injury on 05 March 2016. I therefore apportion the liability as being 2% Whole Person Impairment for the injury on 05 March 2016 in regard to the left shoulder. He also has a rateable restriction of right hip movement. The -10 degrees of extension of the right hip constitutes a 5% lower extremity impairment rating and this converts to a 2% Whole Person Impairment for the right lower extremity.
There is also mild clinical evidence of anterior cruciate ligament laxity in the region of the left knee and tenderness over the medial joint line. This is associated with the tendinitis in that region caused by the assault and this attracts a 3% Whole Person Impairment from Table 17-33 on Page 546. The rating for the hip is taken from Table 17-9 on Page 537.
The final level of Whole Person Impairment therefore for the work related injury is determined by combining the 3% for the left lower extremity, the 2% for the right lower extremity and the 2% for the left upper extremity, giving a 7% Whole Person Impairment overall. There is no deduction for pre-existing impairment in regard to that injury.
The level of Whole Person Impairment for the second injury, which is the motor vehicle accident, is assessed using the Motor Accident Authority Guidelines. He has a DRE Cervicothoracic Category II level of assessable impairment in accordance with the description in Table 73 on Page 3/110 of AMA4. There is asymmetry of movement and guarding but no clinical sign of radiculopathy and there is a 5% Whole Person Impairment rating.
He also has the 5% Whole Person Impairment for the left upper extremity because of the apportioned 5% Whole Person Impairment from the total assessment of impairment (7% WPI] that I have mentioned previously.
For the right upper extremity he also has a rateable restriction of shoulder movement. This is assessed using Figure 38 on Page 43, Figure 41 on Page 44 and Figure 44 on Page 45 of AMA4. The degree of recorded restriction of movement constitutes an 11% upper extremity impairment which converts to a 7% Whole Person Impairment for the right upper extremity. This is entirely due to the motor vehicle accident.
Finally in the lower part of the back there is a DRE Lumbosacral Category II level of assessable impairment in accordance with the description in Table 72 on Page 3/110 of AMA4. There is asymmetry of movement and guarding but no clinical sign of radiculopathy and there is a 5% Whole Person Impairment rating.
There is no other rateable pathology associated with the motor vehicle accident.
The final level of Whole Person Impairment is determined by combining the 7% for the right upper extremity, the 5% for the cervical spine, the 5% for the lumbar spine and 5% for the left upper extremity using the Combined Values Charts on Page 322 of AMA4. The overall level of Whole Person Impairment is a 20% Whole Person Impairment in this case. There is no deduction for preexisting impairment.”

In a report dated 8 February 2022 Dr Bodel did not diagnose an accident-related injury to the thoracic spine.
Medical assessment certificate of Dr Lionel Chang 29 May 2019
There is a Medical assessment certificate of Dr Lionel Chang dated 29 May 2019. [21]
[21] Insurer’s second bundle R 38 pp 28 – 40.
Dr Chang assessed the WPI for Mr Brewer's facial disfigurement, trigeminal nerve, left knee, left shoulder and right hip.
Dr Chang referred to and summaries in his reason the following X-rays, MRI and other radiology that were before him:
“1. X-ray right hip dated 6 April 2016.
2. X-ray left shoulder & scapula dated 4 June 2016.
3. X-ray left knee dated 4 June 2016.
4. MRI left knee dated 20 June 2016.
5. Ultrasound/MRI brain and x-ray pelvis dated 18 January 2017.
6. MRI left shoulder dated 30 October 2017.
7. X-ray left knee and right hip dated 6 April 2018.”
Dr Chang's summary of Mr Brewer's injury and diagnosis is dislocation of his left shoulder when assaulted on 5 March 2016 with a labral tear and non-specific injury to the left knee and right hip. In the motor vehicle accident on 17 February 2017 he sustained injuries to both shoulders with labral tears. Dr Chang recorded shoulder elevation to 140° in both shoulders.
Dr Chang assessed Mr Brewer's WPI as follows. The left knee is assigned 3% WPI. For the left shoulder it was noted that Mr Brewer sustained a motor vehicle accident subsequently with a recurrent tear to the labrum which is an aggravation of his left shoulder impairment. Dr Chang assigned 60% of the impairment to the work injury equals 3% WPI and 40% equals 2% WPI to the motor vehicle accident as an aggravation. For the right hip Dr Chang assessed for a mild loss of extension of the right hip and assigned 2% WPI. Dr Chang also assigned 2% WPI for the trigeminal nerve and 2% for scarring.
Dr Chang also commented that he broadly agreed with the assessments made by Dr Bodel and Dr McGlynn and disagreed with Dr Rimmer's second report.
Dr Frank Machart, orthopaedic surgeon
There are two reports from Dr Machart both dated 2 November 2022 and one letter dated
[22] Insurer’s second bundle A 1- A 3 pp 1 – 27.
5 December 2022. [22]
In a report dated 2 November 2022 Dr Machart noted that Mr Brewer reported pain in all the allegedly injured areas, right thumb, left shoulder, right shoulder, right hip, left knee, left elbow, neck, back (thoracic spine), right elbow, and right knee. Mr Brewer was convinced that all symptoms related to the index motor vehicle accident, as new pathology or aggravation of old pathology, reporting that all the old pathology – see paragraph "Past History" - was resolved by the time that the motor vehicle accident took place.
Dr Machart recorded Mr Brewer’s account of the accident as follows:
“I assessed Mr Brewer for injury that he sustained in an MVA on 07/12/2020. He was the driver. He wore a seatbelt. His car was travelling at a speed of approximately 20 km per hour. His car was struck on the left by a car coming through a give-way sign, estimated by Mr Brewer, at 30 to 35 km per hour, attempting to turn across 3 lanes. Ambulance did not attend. The car was drivable. He drove the car to the doctor. It took some time for Mr Brewer to give me a summary of what he injured or where there was pain immediately after the MVA.” [23]
[23] Insurer’s second bundle A 3 pp 21- 22.
Dr Machart’s opinion and diagnosis is as follows:
37.“Presence of extensive pre-existing pathology. Extensive symptoms since the index MVA. None improving. Presence of patient’s self-belief that all the symptoms that he reported to be present now are as a result of the index MVA through direct or consequential injuries. My task is to confirm by looking at the objective and contemporaneous evidence. Documentation from his treating doctors is most important. There was injury to the right thumb, ligament injury on background of early osteoarthritis. The osteoarthritis was not caused by the injury. This can be a late consequence of injury, however the X-rays were far too soon after injury to declare that osteoarthritis was as a result of the injury. There is no evidence that the right thumb was symptomatic before the injury.
38.The left shoulder was extensively symptomatic in the past, reported to have completely settled. It is reasonable to accept that there was aggravation of pre-existing pathology. Probably the most objective way of diagnosing the left shoulder pathology now is to look at the figures measured in the MAS, 140° elevation and now 120°. Proportional reduction in ROM, reflects impact of the MVA.
39.I did not see objectively defined substantial pathology in other areas, whether direct or consequential injury.
40.Much of the discrepancy in assessments is generated by the patient’s self-belief of extensive symptoms and pathology, and none improving since the time of the index injury. This, I consider highly unusual, and particularly in absence of substantial injury at the time of the MVA, car drivable, no ambulance, and the self-appraisal of Mr Brewer’s injuries, in the form that he filled out and from the GP. There is a substantial difference between Mr Brewer’s current self-appraisal of his condition, and the details he filled out in the original statement on his injuries.”
In a first report dated 2 November 2022 Dr Machart’s opinion and assessment of the WPI was as follows. For the right thumb is limitation of opposition by quarter from normal 6cm from 8. (Table 7) = 3% Digital impairment = 1 hand = 1 UEI = 1% WPI. For the left shoulder he assessed diminished movement by fraction, 120 down from 140 = 0.86. UEI left is 4 + 1 + 3 + 2 = 10%. Multiply by 8.86 = 8.9, rounded up to 9% WPI. WPI as a result of the injury is 9 + 1 = 10%.
In a letter dated 5 December 2022 Dr Machart noted he had made some errors and submitted a revised second report also dated 2 November 2022 which contained revised calculations about the claimant’s WPI. These revised calculations were as follows. The WPI for the right thumb was the same and was limitation of opposition by quarter from normal 6 cm from 8. (Table 7) = 3% Digital impairment = 1 hand = 1 UEI = 1% WPI. The assessment for the left shoulder was revised to read as follows. He assessed the left shoulder under AMA4 Figures 38, 41, 44. The left shoulder UEI left is 4 + 1 + 3 + 2 = 10% = 6% WPI.
Dr Machart then noted a value for deductions as objectively defined WPI in MAC Dr Chang 21/05/2019, 5% WPI, assessed then as per ROM documented before fractionation. This figure is now basis of subtraction, 6 – 5 = 1% WPI. Thus Dr Machart assessed the WPI as result of motor vehicle accident 7 December 2020 1 + 1 = 2%.
In the reports dated 2 November 2022 Dr Machart’s did not diagnose an accident-related thoracic spine injury. The doctor did not see objectively defined substantial pathology in any other areas, whether direct or consequential, aside from the right thumb and left shoulder, but noted the presence of extensive pre-existing pathology.
X-ray, CT scan and MRI evidence
The insurer’s solicitors have produced about 128 pages of 59 reports of relevant MRI, CT scans, X-rays imaging studies of the claimant’s pre and post-accident condition.[24] When
[24] Insurer’s second bundle A 5- A 64 pp 41 – 129.
Mr Brewer presented to the Panel for his re-examination on 12 March 2024 he referred to a CD-ROM purportedly containing many of the radiological records but he did not produce them to the Panel for their review. Unfortunately the Panel has not been supplied with the actual films or images of the radiological evidence so it had to proceed in its deliberations on the written reports produced by the insurer’s solicitors. The Panel has carefully reviewed and considered all of the written radiological reports and evidence before it but has only selectively summarised some of those reports as set out below.
On 24 May 2017 Dr John Fraser reported on an ultrasound of Mr Brewer's left knee. He commented that he found a small knee effusion but no significant knee abnormality has been identified to account for his current symptoms.
On 6 May 2017, 30 January 2018 and 29 May 2018 there are MRI of the right shoulder reported by Dr Jennie Noakes.
In the report dated 6 May 2017 Dr Noakes commented on a 5mm insertional split tear, a displaced slap tear of the direct superior labrum and fraying in the biceps tendinosis. She also commented on AC joint arthrosis with appearances suggesting a previous injury to the clavicle insertion of the superior ligament.[25]
[25] Insurer’s bundle A 7 pp 215 – 217.
In the report dated 29 May 2018 Dr Noakes commented as follows:
42.“Hyperintense chondrolabral junction cleavage plane noted at the anterior equator and in the anterosuperior quadrant, with no fluid filled cleavage plane, any labral displacement nor paralabral cyst. Unchanged focal subchondral cyst formation anteroinferior glenoid rim and anteroinferior humeral head articular rim. Glenohumeral joint capsule within the normal range on the current study. No effusion. Localised subchondral bone marrow oedema postero-supero-lateral humeral head without fracture nor overlying cartilage loss demonstrated..”[26]
[26] Insurer’s bundle A 7 pp 156 – 157.
On 15 February 2019 there is an MRI of the left shoulder reported by Dr James Linklater which concludes that the MRI shows:
“Evidence of prior anterior labral repair with four non-metallic suture anchors at the 7:30, 8:30,9:30 and 11 o'clock positions. The repair appears intact.
Non-acute tear superior labrum, extend tog from anterior to posterior, the tear plane
propagating laterally into the superior labrum. No convincing evidence of biceps anchor destabilisation. No interval change when compared to the previous MRI of 19/9/2018.
43.Mid antero-distal supraspinatus tendinosis, without a tear.
Small amount of fluid in the glenohumeral joint with mid synovial thickening at the
axillary pouch and in the subscapularis recess.
No evidence of a capsulitis.
Intact glenohumeral joint articular cartilage.
Small amount of fluid in the subacromial bursa, without burso-synovial thickening.”
On 2 April 2020 the claimant had ultrasound scans of his left hip and left shoulder. [27] This showed mild to moderate tendinosis of the gluteus minimus and medius tendons where these attach to the greater trochanter. There was also a report of left sided trochanteric bursitis. In the shoulder, there was moderate to marked tendinosis of the supraspinatus tendon with subdeltoid bursal thickening consistent with bursitis.
[27] Claimant’s second bundle A 1 p 1.
There is an MRI of the left hip dated 31 October 2023 from Noosa Radiology. The report by Dr Stephen McDonald concludes with his impression of chondralabral junction separation of the superior labrum. Otherwise no significant abnormality in the left hip.

SUBMISSIONS

Insurer’s submissions
The insurer’s solicitor provided undated written submissions. [28]
[28] Insurer’s Bundle A 1 pp 2- 10.
In its submissions the insurer gives five reasons why it says the Medical Assessor certificate was incorrect.
These reasons are as follows:
(a)     the Medical Assessor failed to identify inconsistencies in relation to the history provided by the claimant and the documentary evidence, and this failure has led to incorrect factual findings being made with regards to the causation of the claimant’s injuries as well as the assessment of WPI;
(b)     the Medical Assessor failed to bring the inconsistencies to the claimant’s attention pursuant to cl 6.41 of the Motor Accident Guidelines;
(c)     the Medical Assessor failed to provide adequate reasons which show a path of reasoning in arriving at his causation findings, in circumstances where the contemporaneous medical records and qualified reports do not support such findings, and
(d)     the Medical Assessor incorrectly assessed the claimant’s pre-existing impairment in accordance with the Motor Accident Guidelines.
The insurer submits that the claimant had a significant history of pre-accident pain and complaints for his shoulders and right hip.
The insurer submits that the Medical Assessor has made a material error by incorrectly assessing the claimant’s pre-existing impairment to both shoulders and failing to acknowledge the true extent of the claimant’s pre-accident physical injuries and symptoms. This has resulted in him making incorrect findings with regards to his assessment of the claimant’s WPI.
The insurer submits that the Medical Assessor accepted the claimant’s history that his shoulders had improved completely, and the range of motion had recovered fully (at the time of the subject accident). The insurer argues that this is incorrect as the records of Lane Cove Physiotherapy show the claimant complained of pain, stiffness, and clicking in the right shoulder and had restricted range of motion in the months leading up to the subject accident. The insurer submits that the Medical Assessor did not appropriately deduct preexisting impairment when he assessed the claimant’s aggravated left shoulder injury.
Claimant’s submissions
The claimant’s solicitors made a detailed submission dated 26 September 202 .[29]
[29] Claimant’s Bundle R 1 pp 1- 6.
They refute the insurer’s submission that Medical Assessor Herald failed to identify inconsistencies in relation to the history provided by the claimant.
The claimant refers to the initial assault in 2016 and says that appropriate deductions have been made by the Medical Assessor in his assessment of WPI on pages 10 and 11 of his certificate in relation to his cervical spine, lumbar spine, both shoulders and right Hip. There is no inconsistency nor erroneous history provided by the claimant as the Medical Assessor has reviewed the available evidence in the context of the claimant’s clinical examination and history and made the appropriate significant deductions for the pre-existing injuries associated with the 2017 assault of which the claimant only made a good but not total recovery.
The issue of the respondent’s pre-accident working arrangement has already been determined by the Commission and the insurer continues to pay the claimant’s weekly statutory benefits at the time of drafting these submissions.
Regarding the thoracic spine the Medical Assessor notes on numerous occasion prior he has reviewed all the evidence available to him and on the balance of said evidence, his clinical examination and history obtained by the respondent he accepted a direct injury to the thoracic spine was caused by the subject accident. This decision must be made on clinical grounds which the Medical Assessor adequately did in this matter.
Regarding the injuries to both knees the claimant’s submissions refer to a number of excerpts from the Medical Assessor reasons. They say that from this it is clear that the Medical Assessor gave considerable thought and attention whilst providing his path of reasoning to causally accept the respondent’s knees were injured in the subject accident. The Medical Assessor has considered the circumstances of the subject accident and accepted that the claimant’s knees impacted the vehicle causing immediate injury and onset of pain and as such accepted they were causally injured in the subject accident.
The claimant’s submissions refer to the insurer’s argument that the Medical Assessor incorrectly assessed the claimant’s pre-existing impairment to both shoulders. As demonstrated at page 10 of Medical Assessor Herald’s certificate, he clearly assesses the right shoulders current WPI at 4% deducting 2% for pre-existing or subsequent causes leaving 2% WPI associated to the subject motor vehicle accident. This assessment approach complies with cl 6.31 as Medical Assessor Hearld has noted and assessed the pre-existing impairment and deducted if from the current WPI findings determined in the clinical examination. The claimant argues that it is unclear how else the Medical Assessor could have assessed the pre-existing impairment and no alternative method is proffered by the insurer.
In relation to the left shoulder the claimant submits that the Medical Assessor has complied with cl 6.31 of the Motor Accident Guidelines. As demonstrated at page 10 of Medical Assessor Herald’s certificate, he clearly assesses the left shoulders current WPI at 7% deducting 3% for pre-existing or subsequent causes leaving 4% WPI associated to the subject motor vehicle accident.
Finally the claimant concludes that the insurer has failed to identify any errors within the assessment of Medical Assessor Herald and his Certificate should be preserved allowing the claim as a whole to proceed.

MEDICAL EXAMINATION

The medical assessment was conducted by Medical Assessors Stubbs and Tanya Rogers at the Commission’s rooms at Oxford Street, Sydney on 12 March 2024. Mr Brewer attended the examination accompanied by Ms Siiri Pentacene his partner. They travelled to Sydney by air from the Sunshine Coast where both presently live.
This is a panel review of a single medical assessment. The certificate lists the following injuries:
·        right thumb UCL tear and first CMCJ OA;
·        soft tissue injury to both wrists;
·        soft tissue injury to the left thumb;
·        chondromalacia patellae both knees;
·        left elbow lateral epicondyle;
·        right elbow medial lateral epicondyle;
·        soft tissue injury to both shoulders, and
·        soft tissue aggravation of underlying cervical, lumbar, and thoracic spine with a referral to both shoulder.
The original assessment was carried out on 26 July 2023 by Medical Assessor Herald who found that the injuries to the claimant were caused by the accident and gave rise to 17% WPI. Medical Assessor Herald determined that the referral for an MRI scan of the left wrist on 30 June 2022 and the MRI scan referral of 8 March 2022 of the right wrist related to the injury caused by the accident and is reasonable and necessary under the circumstances.
The interview and examination of Mr Brewer was scheduled to commence at 11.00am but did not commence until 11.30am due to Medical Assessor Stubbs being late.
At the commencement of the interviewer Mr Brewer asked Ms Pitcaeneo to take notes. The Medical Assessors said this was inappropriate. Mr Brewer became insistent and pointed out that he was in contact with two television public affairs program about the treatment given to him by the third-party insurer. He believed he had been treated most unfairly. The Medical Assessors pointed out the role of the Commission and another staff came into the room to further point out the role of the Commission in the resolution of the dispute. Mr Brewer was most suspicious as he said that the information he had received was signed by a judge (referring to the President of the Commission); he had been treated unfairly and he was not confident at the Commission was impartial. Throughout this initial period Mr Brewer kept rising from his chair and striding towards the table giving papers of information from his own files and complaining about the unfairness of the matter. The Medical Assessors pointed out that the Commission and themselves personally were not on anyone’s side but rather attempting to fully ascertain the matter which would otherwise have to go to court. Mr Brewer was pleased with this possible development. He anticipated that hearing in court was not only allowing him to express all his grievances but that he would have a barrister appointed under legal aid.
Dealing with Mr Brewer became increasingly difficult and Medical Assessor Rogers could not continue and left the interview room. Medical Assessor Stubbs continued the assessment alone.
Background
Mr Brewer was raised in London. He described his family as being a large, both adoptive and natural. He would not give further details and when asked where his family came from. He said he found the question to be racially offensive. He said he had played rugby union on the right wing for England but gave no other details of this. He came to Australia 11 years ago having spent time the Shi Lin Buddhist Monastery in China. He is a practising Buddhist.
Mr Brewer said he had attended the British School of Osteopathy but did not give further details. He denied any prior injuries or illnesses.

In conclusion Mr Brewer’s has a total 3% WPI on the basis of aggravated mild crepitus carpometacarpal joint and osteoarthritis of the right thumb.
The total degree of permanent impairment caused by the subject motor accident is 3 % WPI which is not greater than 10%.

TREATMENT DISPUTE

The Panel found from the assessment and interview with the claimant and its review of the radiological evidence that there was no clear evidence of injury to the left wrist or left elbow caused by the subject motor accident. However a referral for MRI scan of the left wrist on
30 June 2022 and a referral for MRI scan of the left elbow on 8 March 2022 could be necessary to confirm or exclude a finding or diagnosis of any injuries to the left wrist or left elbow and whether these injuries were or were not caused by the subject motor accident.
The Panel notes in particular the earlier reports of the ultrasound to the left elbow on
4 May 2021, MRI left elbow on 6 May and 22 May 2021.

Proposed treatment and care

The Panel’s conclusion is that a referral for MRI scan of the left wrist 30 June 2022 and a referral for MRI scan of the left elbow 8 March 2022 is reasonable and necessary in the circumstances of the claimant’s case because it relates to the injury caused by the motor accident.
In this claimant’s case, the Panel is satisfied that the proposed treatment and care does relate to the injury caused by the motor accident. As discussed above.

Reasonable and necessary in the circumstances

In such a case the claimant is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[30] Grove J stated:[31]
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[30] [2003] NSWCA 52 (Clampett).
[31] Clampett at [22]-[23], Meagher and Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[32] See also the recent and comprehensive discussion of the relevant principles in Whitton v Ready Workforce (A Division of Chandler McLeod) Pty Ltd [2023] NSWDC 620.
[32] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[33] They include:
(a)   the appropriateness of the particular treatment;
(b)   the availability of alternative treatment;
(c)   the cost of the treatment;
(d)   the actual or potential effectiveness of the treatment, and
(e)   the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[33] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.

Does the proposed treatment relate to the injury resulting from the motor accident

The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[34] These principles are well settled and equally apply by reasons of the words used in the treatment issue.
[34] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[35] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the MAC Act. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[35] [2018] NSWSC 1710 at [29] (Phillips).
In this case the Panel accepts that there was a soft tissue injury to the claimant’s left arm, wrist and elbow which was caused by the subject motor accident and may possibly be an aggravation of pre-existing arm complaints. The Panel accept that a referral for MRI scan of the left wrist on 30 June 2022 and a referral for MRI scan of the left elbow on 8 March 2022 relates to any injury caused by the motor accident and is reasonable and necessary in the circumstances.

CONCLUSION AND CERTIFICATION

As a result of the above findings the Panel revokes the certificate of Medical Assessor Herald dated 26 July 2023 regarding permanent impairment and issues a replacement certificate in accordance with these reasons.
The Review Panel affirms the certificate of Medical Assessor Herald dated 26 July 2023 regarding a referral for an MRI scan of the left wrist on 30 June 2022 and a referral for MRI scan of the left elbow on 8 March 2022 relates to the injury caused by the motor accident.
The Review Panel affirms the certificate of Medical Assessor Alexander Herald dated
26 July 2023 regarding treatment and care determining that the following treatment and care of a referral for MRI scan of the left wrist on 30 June 2022 and a referral for MRI scan of the left elbow on 8 March 2022 is reasonable and necessary in the circumstances.
The Panel’s certificates are attached at the commencement of these reasons.

[2024] NSWPICMP 350

30 May 2024