Insurance Australia Limited t/as NRMA Insurance v Diab

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Diab [2025] NSWPICMP 137
CLAIMANT:	Samira Diab
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Anthony Scarcella
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Ian Cameron
DATE OF DECISION:	4 March 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) who determined that the claimant had 14% WPI; review sought by insurer under section 7.26; consideration and application of clauses 6.5 to 6.7 of the Motor Accident Guidelines (the Guidelines) in respect of causation, and clauses 6.19 to 6.22 of the Guidelines in respect of permanent impairment; Held – Review Panel revoked the certificate issued by the MA; Review Panel certified that the claimant sustained soft tissue injuries and ongoing aggravations of pre-existing conditions in her cervical spine, lumbar spine, bilateral shoulders, and right knee caused by the motor accident on 28 October 2021 that give rise to 9% WPI.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel 1. Revokes the certificate issued by Medical Assessor Jonathan Herald dated 31 October 2023. 2. Certifies that the claimant sustained soft tissue injuries and ongoing aggravations of pre-existing conditions in her cervical spine, lumbar spine, bilateral shoulders and right knee caused by the motor accident on 28 October 2021 that give rise to a whole person impairment that is not greater than 10%, that is, 9%. A statement setting out the Review Panel’s reasons for the assessment is attached to this certificate.

STATEMENT OF REASONS

BACKGROUND

The claimant, Ms Samira Diab, is a 55-year-old woman who was involved in a motor accident on 28 October 2021 whilst the passenger of a motor vehicle driven by her daughter that was rear-ended by another motor vehicle whilst stationary at traffic lights (the motor accident).
On 28 October 2021, Ms Diab made an application for personal injury benefits. The relevant compulsory third party insurer is Insurance Australia Limited t/as NRMA Insurance (the insurer). Ms Diab claimed that she suffered injuries to her neck, back, bilateral shoulders and right knee as a result of the motor accident.
Ms Diab’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (MAI Act). This legislation provides a scheme for the compulsory third party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
A medical dispute about the degree of Ms Diab’s whole person impairment (WPI) in respect of her physical injuries has arisen in connection with her claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Jonathan Herald for assessment.
On 31 October 2023, Medical Assessor Herald determined that Ms Diab suffered a soft tissue injury to her cervical spine, a soft tissue injury to her lumbar spine, bilateral right shoulder rotator cuff tears and a right knee chondromalacia patella caused by the motor accident. Medical Assessor Herald assessed Ms Diab as having a WPI greater than 10%, that is, 14%.

REVIEW PROCEDURE

The insurer sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (the Review).
On 22 February 2024, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision-maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the motor accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
On 26 February 2024, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle of documents on which they relied in the Review.
On 24 April 2024, the Panel informed the parties that it considered a re-examination of Ms Diab was required. Arrangements were made for Ms Diab to be re-examined by Medical Assessor Margaret Gibson on 12 July 2024 on behalf of the Panel. Ms Diab was directed to provide the Panel with the following:
(a)    a copy of her general practitioners’ (Greenacre Medical Centre) clinical records from 13 November 2021 to date;
(b)    copies of reports from any exercise physiologists consulted by her;
(c)    access to electronic copies of all medical imaging studies of the injured parts of her body to date or ensure that the original imaging studies are made available at or before the time of the re-examination, and
(d)    any final submissions in response to any matters raised by this report and directions document.

LEGISLATIVE FRAMEWORK

General provisions

Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Sections 5D (duty of care – general principles) and 5E (onus of proof) of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Ms Diab’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

Permanent impairment assessment

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 version 9.3 effective from 6 December 2024 (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 in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 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.”

Clause 6.7 of the Guidelines states:
“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.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
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: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.
Subsequent injury is addressed in cl 6.34 of the Guidelines which states:
“The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of a subsequent impairment, its possible presence should be ignored.”
Clause 6.19 of the Guidelines states:
“Before an evaluation of permanent impairment is undertaken, it must be shown that the impairment has been present for a period of time, and is static, well stabilised and unlikely to change substantially regardless of treatment. The AMA 4 Guides (page 315) state that 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 (i.e. by more than 3% whole person impairment (WPI) in the next year with or without medical treatment). If an impairment is not permanent, it is inappropriate to characterise it as such and evaluate it according to these Guidelines.”
The evaluation of permanent impairment should only consider the impairment as it is at the time of the assessment: cl 6.21 of the Guidelines.
The evaluation of permanent impairment must not include any allowance for a predicted deterioration. However, it may be appropriate to comment on this possibility in the impairment valuation report: cl 6.22 of the Guidelines.

EVIDENCE BEFORE THE PANEL

The evidence before the Panel consisted of the following:
(a)    the insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 20 March 2024 (insurer’s documents);
(b)    Ms Diab’s indexed and paginated bundle of documents lodged on the Commission’s portal on 12 April 2024 (claimant’s documents);
(c)    Ms Diab’s Application to Admit Late Documents dated 12 July 2024 attaching Unique Physio report (AALD 12 July 2024);
(d)    Ms Diab’s Application to Admit Late Documents dated 15 July 2024 attaching Unique Physio clinical notes (AALD 15 July 2024), and
(e)    Ms Diab’s Application to Admit Late Documents dated 17 July 2024 attaching Greenacre Medical Centre clinical notes (AALD 17 July 2024).

ASSESSMENT UNDER REVIEW

Medical Assessor Herald examined Ms Diab on 13 October 2023 and issued a certificate under s 7.23(1) of the MAI Act on 31 October 2023.[1]
[1] Insurer’s documents at pages 6-14.
Medical Assessor Herald was asked to assess the dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the MAI Act in respect of the following physical conditions:
(a)    cervical spine – musculoligamentous injury;
(b)    right knee – traumatic chondromalacia to the retropatellar region;
(c)    lumbar spine – musculoligamentous injury;
(d)    left shoulder – rotator cuff pathology, and
(e)    right shoulder – rotator cuff pathology.
Medical Assessor Herald took the following pre-accident medical history and relevant personal details:
“Samira has had a pre-accident medical history of neck problems. She first started seeing her GP, Dr Usmani in regard to neck problems in about 2020. She saw her on 21 August 2020 and continued to have complaints of neck pain and saw her again on 19 November 2020 where it was described as having chronic neck pain with physiotherapy not helping her. At that point, she had a broad-based disc osteophyte at the C5/6 level impinging on the anterior CSF, and MRI scans were done on 7 February 2020, which confirmed the left-sided impingement on the left C7 nerve root. She was subsequently referred to see Dr James Van Gelder who she saw on 23 December 2020 with a long history of neck pain as well as benign postural vertigo. She was given some physiotherapy and chiropractic treatment, which helped her neck symptoms. In 2000, she was diagnosed as having benign paroxysmal positional vertigo, for which she was receiving treatment. She also had some second-degree burns to both ankles on 20 May 2020 and had dressing changes for it. She is a

50-year-old right-handed woman, married, not working, and has four children, three married daughters, and one son 17 years old. She does not smoke or drink.”[2]
[2] Insurer’s documents at pages 8-9.
Medical Assessor Herald took the following history of the motor accident:
“Ms Diab was involved in a motor vehicle accident on 20 October 2021 [incorrect date]. She was the front seat passenger of a car that was being driven by her daughter, Sarah Diab, which was stationary at a red traffic light at the intersection of Shaftesbury Road and Railway Parade in Burwood. She was on her way to see an ENT surgeon, Dr Kleiner. Following the accident, she went and reported the accident to the police and saw her GP the next day with neck pain, back pain, headaches, and bilateral shoulder pain. She had put in a police report.”[3]
[3] Insurer’s documents at page 9.
Medical Assessor Herald took the following history of symptoms and treatment following the motor accident:
“After seeing her GP, Dr Usmani, she was referred to some investigations and began physiotherapy. She also had some acupuncture. She saw her psychologist. In regard to the knee, she had an MRI scan of her knee and was referred to see Professor Sameer Viswanathan. He reported an injury to both shoulders, right sternoclavicular joint, and right knee. He referred her to a neurosurgeon, Dr Abraszko to assess her neck and back, and in regard to her right knee, he diagnosed her as having chondromalacia patella. He suggested a conservative treatment programme with physiotherapy, exercise physiology, and acupuncture. The referral to Dr Abraszko was not approved, and she did not seek treatment through the public hospital system. She continues with Celebrex, anti-inflammatory tablets, and Panadol and takes Somac for her upset stomach. She continues with the exercise physiology treatment, as physiotherapy was subsequently ceased, and is seeing a psychologist. She takes Lexam antidepressants, Celebrex anti-inflammatories, and some Panadol Osteo as well as melatonin to help her sleep.”[4]
[4] Insurer’s documents at page 9.
Medical Assessor Herald recorded Ms Diab’s current symptoms as follows:
“She continues to have right knee pain with prolonged sitting, kneeling, squatting, and neck pain with associated headaches and restriction of range of motion in both shoulders. She gets back pain with sitting and standing for prolonged periods of time and associated radiculopathic symptoms in her right upper limb and right lower limb.”[5]
[5] Insurer’s documents at pages 9-10.
Medical Assessor Herald conducted a clinical examination of Ms Diab’s cervical spine, lumbar spine, upper extremities and lower extremities and recorded his findings.[6]
[6] Insurer’s documents at pages 10-11.
Medical Assessor Herald reported that Ms Diab’s condition was consistent and without evidence of exaggeration. He noted that she had features of radiculopathic symptoms but no radiculopathy.
Medical Assessor Herald listed the relevant documentation provided to him and summarised the relevant radiological, medical imaging and other investigations.[7]
[7] Insurer's documents at pages 11-12.
Medical Assessor Herald diagnosed Ms Diab with features of bilateral rotator cuff tears; a soft tissue injury to the cervical spine with radiculopathic symptoms in the right upper limb, which was predominantly pre-existing and aggravated by the motor accident; a soft tissue injury to the lumbar spine with aggravating underlying spondylosis and radiculopathic symptoms in the right lower limb; and patellofemoral crepitus in the right knee and chondromalacia patella. He opined that the stated injuries were caused by the motor accident or subsequently aggravated by the motor accident.
Medical Assessor Herald assessed the current WPI in respect of the cervical spine at 5% and deducted 5% for pre-existing causes, leaving Ms Diab with 0% WPI for the cervical spine. He assessed the lumbar spine at 5% WPI; both shoulders at 7% WPI; and the right knee at 2% WPI. He assessed the final WPI at 14%.

REVIEW OF EVIDENCE

Ms Samira Diab’s evidence

In evidence, there is a statement by Ms Samira Diab dated 16 March 2023. The relevant parts of that statement are referred to below.

Ms Diab stated that, in about 2000, she was diagnosed with benign paroxysmal positional vertigo caused by dislodged otoconia. She consulted a specialist and underwent a procedure to correct the issue. She was not suffering from any ongoing effects of vertigo when the motor accident took place.
Ms Diab stated that, in about 2008, she ceased her employment as a customer service officer with the Roads and Traffic Authority, where she had been employed for the previous 10 years. Her daughters were in the later stages of high school and needed more assistance from her than she could provide whilst working. Her son finished year 12 at the end of 2022 and her plan was to always return to the workforce in late 2022 or early 2023, as all the children would have completed high school by then. She intended to obtain an administration or customer service role, similar to the role she had held with the Roads and Traffic Authority and work about 20 hours per week.
Ms Diab stated that, in 2020, she sustained a minor injury to her cervical spine following a treatment consultation with a chiropractor. She consulted a neuro physiotherapist, Ms Pam Reynolds and she made a full recovery within nine months, that is, prior to the motor accident.
Ms Diab stated that, on 23 May 2020, she sustained second-degree burns to both ankles and required daily dressing changes and reviews for a number of weeks thereafter. The burns healed and she had no ongoing issues or restrictions in her ankles before the motor accident.
Ms Diab provided the following description of the motor accident:
“On 28 October 2021 at around 8:30am, I was involved in a motor vehicle accident which has resulted in physical and psychological injuries that have had a significant impact on my life. On this day, I was a passenger in a vehicle being driving [sic: driven] by my daughter, Sarah Diab, which was stationary at a red traffic light at the intersection on Shaftesbury Road and Railway Parade in Burwood. The traffic light changed green and the vehicle immediately behind our vehicle collided with the rear of our vehicle.”[8]
[8] Claimant’s documents at page 9 at [9].
Ms Diab stated that she suffered the following injuries as a result of the motor accident:
(a)    cervical spine injury by way of disc bulge at C4/5 level with compression upon left exiting C5 nerve root as well as bilateral neural foraminal narrowing and compression of the bilateral C6 nerve roots and impression upon the anterior CSF sleeve causing cervical spine radiculopathy;
(b)    right shoulder injury with tendinosis and partial tear of the supraspinatus tendon;
(c)    left shoulder injury with severe tendinosis and tear of the supraspinatus tendon;
(d)    lumbar spine injury;
(e)    right knee injury with chondromalacia and patellar tendinosis;
(f)    post-traumatic stress disorder, and
(g)    depression.
Ms Diab described her pre-accident life as follows:
“ … it was very lively and fulfilling. I was fit and healthy, had great relationships with my family and friends, and I was really looking forward to re-joining the workforce once my son graduated from high school.”[9]
[9] Claimant’s documents at page 10 at [16].
Ms Diab stated that the motor accident changed her life completely. She struggles with severe physical and psychological restrictions on a daily basis.
Ms Diab stated that she continues to suffer from constant pain in her neck and shoulders. The neck pain radiates down her right arm with numbness and tingling in both hands. At times, her head feels completely unsupported by her neck. There is a sensation of pressure in her neck. She experiences dizziness when turning her head or looking up and down. She suffers from a lot of headaches.
Ms Diab stated that there is a sensation of pressure in her lower back. She experiences a constant ache in her lower back and muscle spasms.
Ms Diab stated that her right knee his painful and stiff in the mornings and requires stretching. Some days, she struggles to walk when she experiences an exacerbation of pain.
Ms Diab stated that the severity of her neck, shoulder and lower back pain inhibits her ability to perform simple tasks such as dressing herself, showering or brushing her hair. She is unable to walk for more than two to five minutes. She is unable to stand for more than five minutes. She needs to change positions after sitting for 5 to 10 minutes. She is no longer able to complete any domestic chores other than extremely simple ones because of her pain levels and restrictions.
Ms Diab stated that, since the motor accident, she had not been coping well mentally. She suffers from anxiety and panic attacks and she is easily startled. She provided details of how this post-accident psychological condition had affected her life.

Application for personal injury benefits

On 28 October 2021, Ms Diab completed an application for personal injury benefits in respect of the motor accident.[10]
[10] Claimant’s documents at pages 13-18.
The application form set out the basic particulars of the motor accident and Ms Diab provided the following description of the motor accident:
“I was at a red light waiting on the corner of Shaftesbury Rd turning to Railway Parade Burwood. When the ligh [sic: light] turned green as I was about to turn a car behind me smashed into me from behind.”[11]
[11] Claimant’s documents at page 15.
In the application form, Ms Diab described her injuries as a result of the motor accident as follows:
“The smash push [sic: pushed] my head forward quickly and felt a sudden sharp pain in my neck and sore shoulders.”[12]
[12] Claimant’s documents at page 15.
The Panel noted that Ms Diab did not record injuries to her lumbar spine or right knee in the application form, which appears to have been completed on the date of the motor accident. This was consistent with the treating medical records that revealed that such complaints came a short time later.
In the application form, Ms Diab disclosed pre-accident symptoms and described them as “sore neck and shoulders”.[13]
[13] Claimant's documents at page 16.

NSW Police Service report

In evidence, there is a report from NSW Police Service in respect of the motor accident.[14]
[14] Claimant's documents at pages 22-25.
The report is referred to later in this statement of reasons.

Treating medical records and reports

Pre-accident

On 25 May 2020, Ms Diab consulted her usual general practitioner, Dr Masheeth Usmani, of Greenacre Medical Centre with a history of having spilt hot and boiling water on both legs. On examination, Dr Usmani observed large blisters on her legs without any sign of infection. She diagnosed second degree burns and prescribed the daily application of a wound gel.[15] Thereafter, Ms Diab attended on the medical practice’s nurse and Dr Usmani for wound dressing and management until 15 June 2020.[16]
[15] AALD 17 July 2024 at pages 67-68.
[16] AALD 17 July 2024 at page 57.
On 21 August 2020, Ms Diab consulted Dr Usmani complaining of a neck problem, nasal issues and gynaecological issues. Reference was made to seeing two physiotherapists but the context was unclear. Dr Usmani prescribed one 16mg Serc tablet per day and one 5mg Stemetil tablet three times per day.[17]
[17] AALD 17 July 2024 at pages 54-55.
On 19 November 2020, Ms Diab consulted Dr Usmani complaining of chronic neck pain, stating that physiotherapy was not helping. Dr Usmani referred to the findings in a cervical spine MRI scan performed on 17 February 2020 which showed left-sided neural foraminal narrowing and compression on the left exiting C7 nerve and another central disc bulge at C6/7. Dr Usmani referred Ms Diab to Associate Professor James Van Gelder.[18]
[18] AALD 17 July 2024 at page 52.
On 2 December 2020, Ms Diab consulted Dr Usmani. Dr Usmani recorded the reason for the visit as pain management review. She noted that Ms Diab was doing well. She recommended analgesia (Panadol, Nurofen or diclofenac); heat/cold therapy; activity as tolerated; and home/self-physiotherapy. She also prescribed one 100mg Celebrex capsule twice per day.[19]
[19] Claimant’s documents at pages 51-52.
On 21 December 2020, Ms Diab consulted Associate Professor James Van Gelder, neurosurgeon and spine surgeon, who reported to Dr Usmani on 23 December 2020.[20] Associate Professor Van Gelder reported that Ms Diab had a long history of neck symptoms that she felt was precipitated by chiropractic manipulation, following which she developed vertigo and dizziness. He noted that she had a prior history of benign positional vertigo. Every few years, she underwent a manoeuvre with a physiotherapist. Ongoing symptoms included feeling of heat in the posterolateral neck bilaterally; an unexplainable sensation in the back of her head and under her occiput that occurs with various mechanical movements; and sudden episodes of impaired balance or unsteadiness when walking.
[20] Claimant’s documents at pages 26-27.
On clinical examination, Associate Professor Van Gelder observed no focal tenderness; a normal range of motion in the cervical spine; minor dizziness on the right side with provocative manoeuvres for benign positional vertigo; normal cranial nerve and peripheral nerve examination; normal balance and coordination and tandem walking; no cerebellar signs or vestibular signs; and some dizziness transiently when coming up from a lying to sitting position. He also observed that Ms Diab was anxious.
Associate Professor Van Gelder noted that Ms Diab had undergone a cervical MRI scan, a cervical CT scan, functional cervical X-rays and a CT angiogram of the carotid and vertebral arteries, all of which were normal. He also noted that Ms Diab’s vertebral arteries were asymmetric, which he opined was a common variant and unlikely to be related to her symptoms. He noted that she had consulted a cardiologist and undergone investigations and that no contributory factors to her symptoms were identified.
Associate Professor Van Gelder opined as follows:
“Ms Diab should be managed with reassurance. She should not continually consult specialists about her diagnosis. She will not benefit from long courses of physiotherapy or structured exercise. She may benefit from screening for psychosocial risk factors and addressing these if possible. She will benefit from encouragement with social and recreational activities and active management of her depression. She will benefit from instruction and pain management strategies so that she can distract herself from the symptoms and regain her confidence.”[21]
[21] Claimant’s documents at page 26.
Associate Professor Van Gelder did not arrange a follow-up appointment.
On 6 January 2021, Ms Diab consulted Dr Usmani. Dr Usmani recorded a history of recurrent dizziness, headaches and neck pain. She noted that Ms Diab had undergone a CT scan of her brain and a neck angiogram that showed vertebral artery narrowing and atherosclerotic changes. Dr Usmani referred Ms Diab to Dr Anthony Freeman and Dr Richard Kerdic, vascular surgeons.
Thereafter, there were no further entries in Ms Diab’s Greenacre Medical Centre clinical records in respect of neck pain until the entry on 2 November 2021 when she consulted Dr Usmani following the motor accident.

Post accident

On 2 November 2021, Ms Diab consulted Dr Usmani advising that she had been involved in a motor accident as a front seat passenger on 28 October 2021. Dr Usmani recorded in the clinical records that the vehicle in which Ms Diab was a passenger was travelling at zero speed and was hit at the back by another car. Airbags were not deployed. Ms Diab felt sudden pressure in her neck with burning pain and left shoulder pain. She felt dizzy and unbalanced. No lumbar spine, right shoulder or right knee symptoms were recorded by Dr Usmani. On examination, Dr Usmani observed restricted ranges of movement in the cervical spine; normal tone, reflexes, power and sensations in the upper limbs; bilateral paraspinal muscle stiffness; no mid-line spine tenderness; and no red flags. Dr Usmani diagnosed whiplash and prescribed one 100mg Celebrex capsule twice daily. She also referred Ms Diab to Physio Hub at Wiley Park.
On 5 November 2021, Ms Diab consulted Dr Usmani complaining that she now had lower back pain. Dr Usmani recommended analgesia (Panadol, Nurofen or diclofenac); heat/cold therapy; activity as tolerated; and home/self-physiotherapy. She referred Ms Diab to Dr Mona Marabani, rheumatologist.[22]
[22] AALD 17 July 2024 at pages 47-48.
On 10 November 2021, Ms Diab consulted Dr Usmani for the purpose of obtaining a referral for physiotherapy. Dr Usmani referred her to Unique Physiotherapy and again recommended analgesia (Panadol, Nurofen or diclofenac); heat/cold therapy; activity as tolerated; and home/self-physiotherapy.[23]
[23] AALD 17 July 2024 at page 47.
On 16 November 2021, Ms Diab underwent a cervical MRI scan by Dr Farhana Younis, radiologist, on the referral of Dr Usmani.[24] The MRI scan findings are referred to later in this statement of reasons at [240].
[24] Claimant's documents at pages 28-29.
On 17 November 2021, Ms Eduarda Bota, physiotherapist, of Unique Physio completed an allied health recovery request (AHRR). On clinical assessment, she diagnosed Ms Diab with cervical, shoulder and lumbar pain following a whiplash injury in a motor accident on 28 October 2021. She noted the presence of dizziness and headaches. She also recorded Ms Diab’s current signs and symptoms, which included full ranges of movement in the shoulders with pain; pain and muscle spasms in the lumbar spine; pain and restrictions in forward flexion, extension and rotation of the cervical spine; five minutes walking tolerance limited by pain and poor balance; 5 - 10 minutes sitting tolerance before having to change position; and five minutes standing tolerance. Ms Bota recommended further treatment by way of physiotherapy.[25]
[25] Insurer’s documents at pages 16-19.
On 19 November 2021, Ms Diab consulted Dr Arafa Yehia, general practitioner, also of the Greenacre Medical Centre. There was little detail in the clinical entry on this date. However, it appears that Dr Yehia referred Ms Diab to Dr Vivek Thakkar, rheumatologist.[26]
[26] AALD 17 July 2024 at page 46.
On 22 November 2021, Ms Diab consulted Dr Usmani complaining that she had had lower back pain that started two or three days after the motor accident. She told Dr Usmani that she had never had back pain before. The reason for the consultation was recorded as prominent right sternoclavicular joint. Ms Diab told Dr Usmani that she had only now started to experience the prominent right sternoclavicular joint. Dr Usmani queried its relationship to the recent motor accident and referred her for diagnostic imaging of the right clavicle and lumbosacral spine.[27]
[27] AALD 17 July 2024 at page 46.
On 24 November 2021, Ms Diab underwent a right clavicle X-ray and a CT scan of the lumbar spine and sacrococcygeal spine by Dr Frankie Wong, radiologist, on the referral of Dr Usmani.[28] The X-ray and CT scan findings are referred to later in this statement of reasons at [241-242].
[28] Claimant's documents at pages 47-48.
On 6 December 2021, Ms Diab consulted Dr Usmani who referred her for a right shoulder and right sternoclavicular joint MRI scan.[29]
[29] AALD 17 July 2024 at page 44.
On 17 December 2021, Ms Bota completed another AHRR. On clinical assessment, she again diagnosed Ms Diab with cervical, shoulder and lumbar pain following a whiplash injury in a motor accident on 28 October 2021. She noted the presence of dizziness and headaches. She also recorded Ms Diab’s current signs and symptoms, which included full ranges of movement in the shoulders with pain; pain and restrictions on extension and rotation of the lumbar spine; pain and restrictions in forward flexion, extension and rotation (worse on the left) of the cervical spine; five minutes walking tolerance limited by pain and poor balance; 10 minutes sitting tolerance before having to change position; and 10 minutes standing tolerance. Ms Bota recommended further treatment by way of physiotherapy.[30]
[30] Insurer’s documents at pages 20-22.
On 29 December 2021, Ms Diab underwent a right shoulder MRI scan and a bilateral sternoclavicular joint MRI scan by Dr Heba Abdelrahman, radiologist, on the referral of Dr Usmani.[31] The MRI scan findings are referred to later in this statement of reasons at [243].
[31] Claimant's documents at pages 55-56.
On 24 January 2022, Ms Diab consulted Dr Usmani complaining of ongoing pain and restriction in the neck, right shoulder and lower back. There was no reference in the clinical records entry on that date of any symptoms in the left shoulder or right knee. Dr Usmani prescribed one 100mg Celebrex capsule twice per day.[32]
[32] AALD 17 July 2024 at pages 42-43.
On 24 January 2022, Dr Usmani produced a report addressed “to whom it may concern” setting out Ms Diab’s past medical history and her current medication. In the report, Dr Usmani noted and opined the following:
“Mrs Samira Diab is suffering from multiple medical problems which were previously outlined.
Her CTP insurance declined liability after 26 weeks deeming current injury as Minor Injury. She has ongoing pain and activity restriction in neck, right shoulder, and lower back. Her lower back pain and right shoulder pain and right sternoclavicular joint swelling are new post MVA and her previous neck issue was aggarvated [sic] following the accident.”[33]
[33] Claimant's documents at pages 62-63.
On 26 January 2022, Ms Diab consulted Dr Usmani who referred her to Ballina Psychology and Associate Professor Sameer Viswanathan, orthopaedic surgeon.[34]
[34] AALD 17 July 2024 at page 42.
On 31 January 2022, Ms Diab consulted Dr Usmani who recommended analgesia (Panadol, Nurofen or diclofenac); heat/cold therapy; activity as tolerated; and home/self-physiotherapy. She referred Ms Diab to Dr Bassel Hassan, neurologist and to PsychCentral.[35]
[35] AALD 17 July 2024 at pages 41-42.
On 11 February 2022, Ms Diab consulted Dr Usmani complaining of compensatory left shoulder overuse symptoms due to her right shoulder accident related symptoms. Dr Usmani referred her for a left shoulder X-ray and ultrasound.[36]
[36] AALD 17 July 2024 at page 40.
On 17 February 2022, Associate Professor Viswanathan reported to Dr Usmani that he had examined Ms Diab.[37] He took a history that Ms Diab was involved in a motor accident as a passenger when her vehicle was hit from the rear. She was thrown forward and impacted her seatbelt. Since then, she had developed pain in both shoulders and her right sternoclavicular joint. She could not remember how she injured the right sternoclavicular joint or the right knee. She had some issues with her neck and lower back in the past and had consulted spine surgeons. She said that those conditions were aggravated by the motor accident and that since the accident, she has had issues with her neck and her balance.
[37] Insurer's documents at pages 150-151.
Associate Professor Viswanathan examined Ms Diab’s right shoulder, left shoulder and right knee. He recommended she undergo left shoulder and right knee MRI scans and return for review thereafter. In respect of the cervical spine and lumbar spine, he referred Ms Diab to Dr Abraszko for an opinion.
On 25 February 2022, Ms Diab consulted Dr Usmani for review. Dr Usmani prescribed one 100mg Celebrex capsule twice per day; two Panadol Osteo SR 665mg tablets three times per day; and one 50mg Voltaren Rapid tablet three times per day.[38]
[38] AALD 17 July 2024 at page 40.
On 2 March 2022, Ms Diab consulted Dr Usmani for a case conference. Dr Usmani prescribed one 10mg escitalopram tablet per day.[39]
[39] AALD 17 July 2024 at page 39.
On 7 March 2022, Ms Diab consulted Dr Usmani complaining of ongoing neck pain radiating down the right arm associated with weakness in the right upper limb (cervical radiculopathy), bilateral shoulder, lower back pain and right knee pain. The Panel noted that this consultation was the first in which right knee symptoms were recorded by Dr Usmani. Dr Usmani referred her to Dr Renata Abraszko, neurosurgeon.[40]
[40] AALD 17 July 2024 at pages 38-39.

On 11 March 2022, Ms Bota reported to the insurer’s case manager. Ms Bota confirmed that she had been treating Ms Diab’s motor accident related cervical pain, right shoulder pain and lumbar pain as approved by the insurer. Ms Bota noted that Ms Diab had experienced episodes of right knee pain affecting her daily activities in the first weeks following the motor accident. She recommended further investigation and treatment for the right knee and opined that addressing the right knee condition would assist Ms Diab’s recovery and help improve her current functionality. [41]
[41] Claimant's documents at page 73.
On 11 March 2022, Ms Diab underwent a right knee X-ray and MRI scan on the referral of Associate Professor Viswanathan.[42] The X-ray and MRI scan findings are referred to later in this statement of reasons at [244].
[42] Claimant’s documents at page 72.
On 11 March 2022, Ms Diab underwent a left shoulder MRI scan on the referral of Associate Professor Viswanathan.[43] The MRI scan findings are referred to later in this statement of reasons at [245].
[43] Insurer's documents at pages 154-155.
On 15 March 2022, Dr Usmani issued a medical certificate certifying that Ms Diab had experienced right knee pain since the motor accident but did not report it because it was mild and had worsened since 10 February 2022. She reported the right knee symptoms to her orthopaedic surgeon on 17 February 2022.[44]
[44] Claimant's documents at page 74.
On 23 March 2022, Ms Diab consulted Dr Usmani complaining of ongoing neck pain radiating into both upper limbs and fingers, associated with weakness and numbness. She also complained of ongoing lower back pain radiating down the thighs and knees on both sides. Coughing made the back pain worse. She also complained of headaches. Dr Usmani noted that Ms Diab stated she had right knee pain since the motor accident but did not report it because it was mild but it became worse after 10 February 2022 and that she reported the right knee pain to the orthopaedic surgeon on 17 February 2022. Dr Usmani provided her with management advice in respect of her symptoms.[45]
[45] AALD 17 July 2024 at pages 37-38.
On 19 April 2022, Associate Professor Viswanathan reported to Dr Usmani as follows:
“Samira has injured her right sternoclavicular joint and her right knee as a result of the motor vehicle accident. I initially mentioned in the report that she did not remember how she did it, but she now clarified to me and her lawyers. She suggested that she told me at that time, perhaps I have misquoted her and so we will amend the report to suggest that she injured her right sternoclavicular joint and right knee as a result of the motor vehicle accident.”[46]
[46] Claimant's documents at page 75.
On 20 April 2022, Associate Professor Viswanathan reported to Dr Usmani that Ms Diab had returned for review with her left shoulder MRI scan, which showed some tendinosis of the supraspinatus tendon with an interstitial tear, some bursitis and acromioclavicular osteoarthritis. He opined that most of her pain was subdeltoid and suggested a subacromial cortisone injection. As she was complaining of pain in her neck and the trapezius and pins and needles involving all five fingers, he suggested she undergo a nerve conduction study in order to ascertain whether there was peripheral nerve compression or whether it was coming from her neck.[47]
[47] Insurer's documents at page 156.
On 21 April 2022, Ms Diab consulted Dr Usmani advising that her physiotherapy sessions would be ending soon as the insurer classified her injuries as minor. She advised that she needed further sessions of physiotherapy and wanted to use Medicare. Dr Usmani referred her to Physio Plus Health Centre and prescribed one 50mg Voltaren Rapid tablet three times per day.[48]
[48] AALD 17 July 2024 at pages 35-36.
On 4 July 2022, Ms Diab consulted Dr Usmani who prescribed one 100mg Celebrex capsule twice per day; one 10mg escitalopram tablet each morning; and one 5mg Melatonin MR tablet nightly.[49]
[49] AALD 17 July 2024 at pages 32-33.
On 20 July 2022, Ms Diab consulted Dr Usmani complaining of ongoing left shoulder pain and numbness in both hands and fingers. She said that she was unable to lift her shoulder. She advised that she was undergoing acupuncture. Dr Usmani provided her with management advice in respect of her symptoms. Dr Usmani increased her dosage of escitalopram tablets to one 20mg tablet each morning and referred her to Unique Physiotherapy.[50]
[50] AALD 17 July 2024 at pages 31-32.
On 3 September 2022, Ms Diab underwent a left shoulder ultrasound by Dr Sandeep Tiwari, radiologist, on the referral of Dr Usmani.[51] The left shoulder ultrasound findings are referred to later in this statement of reasons at [247].
[51] Claimant's documents at page 76.
On 8 September 2022, Ms Diab consulted Dr Usmani complaining, amongst other unrelated things, of ongoing severe left shoulder pain with restricted movements. An investigation confirming adhesive capsulitis (frozen shoulder) was referred to by Dr Usmani. Dr Usmani provided her with management advice in respect of her symptoms and referred her to Unique Physiotherapy.[52]
[52] AALD 17 July 2024 at pages 28-29.
On 21 December 2022, Ms Diab consulted Dr Usmani who prescribed one 400mg ibuprofen tablet three times per day.[53]
[53] AALD 17 July 2024 at page 24.
On 2 February 2023, Dr Abraszko reported to Associate Professor Viswanathan that she had examined Ms Diab on his referral.[54] Dr Abraszko noted that Ms Diab was involved in the motor accident and that she had experienced prior neck pain. She referred to the 2021 cervical spine MRI scan and the lumbar spine CT scan.
[54] Claimant's documents at pages 78-79.
Dr Abraszko noted that Ms Diab had consulted a chiropractor due to pain and stiffness in her neck and underwent some manipulation. Following the manipulation, her neck pain worsened and she had to consult a neurophysiologist. At the end of 2020, her neck pain improved and prior to the motor accident she did not have any neck pain. She took a history of the motor accident which was consistent with the evidence. In respect of the right knee, Ms Diab had consulted Associate Professor Viswanathan and he suggested a cortisone injection and acupuncture. The pain in her right knee slightly improved following acupuncture. She experiences constant headaches. Neck pain is increased when sleeping and radiates into both arms, down to the fingers to the first, second and third finger. Despite treatment, the pain has not improved.
On examination, Dr Abraszko observed stiffness in the neck; normal power, tone, reflexes and sensation; and stiffness and tenderness in the lower back. Despite a year of conservative management, there had been no improvement. Dr Abraszko recommended Ms Diab undergo further cervical spine and lumbar spine MRI scans and a whole body scan.
On 6 March 2023, Ms Diab consulted Dr Usmani who prescribed one 100mg Celebrex capsule twice per day; one 20mg escitalopram tablet each morning; and one 2mg Melatonin tablet per day.[55]
[55] AALD 17 July 2024 at page 21.
On 8 March 2023, Ms Winona Tsui, accredited exercise physiologist, of Unique Physio provided a report to the insurer.[56] Ms Tsui reported that Ms Diab first attended for an exercise physiology consultation on 1 August 2022 and thereafter, 36 insurer approved exercise physiology treatment sessions at Unique Physio for management of her cervical, bilateral shoulder, right knee and lumbar pain after a whiplash injury.
[56] Insurer’s documents at pages 301-304.
Ms Tsui noted the diagnoses in respect of Ms Diab’s physical injuries based on the medical imaging she referred to in her report as follows:
(a)    cervical spine: disc osteophyte C5/6 with bilateral compression of C6 nerve and disc bulge C4/5 with compression left C5 root;
(b)    right shoulder: partial supraspinatus tear and subacromial bursitis;
(c)    left shoulder: subacromial bursitis and severe tendinosis of supraspinatus tear with interstitial tear, and
(d)    right knee: patellar tendinosis, chondromalacia patellae and medial/lateral femoral condyle chondrosis.
Ms Tsui reported Ms Diab’s current presentation and symptoms as follows:
“On the most recent treatment session on the 1^st March 2023, Ms Diab’s left shoulder pain (VAS 8/10) has been limiting her mobility and functional capacity. Her cervical pain is managed with mobility exercises but can cause occasional headaches and stiffness after sitting for > 10mins. Ms Diab’s lower back and right knee pain causes mild discomfort after prolonged standing (10mins) and walking (10mins). She reports difficulties completing housework such as mopping, vacuuming, scrubbing walls, floors and toilets, changing her bed sheets. She is able to complete light housework such as changing pillow covers, washing light cutlery and dishes and pouring the kettle.”[57]
[57] Insurer’s documents at page 301.
Ms Tsui reported that Ms Diab’s treatment had been focused on achieving the following:
(a)    managing cervical, shoulder, knee and lower back pain with conservative treatment due to her fear of injections, surgery and imaging;
(b)    restoring full range of motion in the cervical spine, shoulder, knee and lumbar spine;
(c)    increasing upper and lower limb muscle mass and strength to improve functional capacity including postural and walking endurance and the ability to complete activities of daily living, such as cleaning the house, and
(d)
increasing physical activity levels to improve lifestyle and psychological

well-being.
On 6 April 2023, Ms Diab consulted Dr Usmani who prescribed one 50mg Voltaren EC tablet eight hourly and one 20mg Somac EC tablet each morning.[58]
[58] AALD 17 July 2024 at page 20.
On 27 September 2023, Ms Diab consulted Dr Usmani complaining of bilateral shoulder pain and in particular, an untriggered flare-up of right shoulder pain. Dr Usmani noted that impingement was positive on testing. Dr Usmani provided her with management advice in respect of her symptoms and referred her for a right shoulder X-ray and ultrasound.[59]
[59] AALD 17 July 2024 at pages 14-15.
On 13 January 2024, Ms Diab consulted Dr Usmani requesting to be referred to a different physiotherapist for her ongoing neck pain. Dr Usmani noted that the insurer had declined to cover the cost of further treatment. Dr Usmani provided her with management advice in respect of her symptoms and referred her to Unique Physiotherapy.[60]
[60] AALD 17 July 2024 at page 12.
On 13 February 2024, Ms Diab consulted Dr Usmani complaining of ongoing lower back and shoulder pain and asking for hydrotherapy. Dr Usmani provided her with management advice in respect of her symptoms and referred her to Hydroworks.[61]
[61] AALD 17 July 2024 at pages 10-11.
On 25 June 2024, Ms Diab consulted Dr Usmani to renew a certificate of capacity. Dr Usmani recorded the history of Ms Diab’s illness as follows:
“The patient presents with ongoing headaches that have been worsening, increasing pain in both shoulders, and a tingling sensation predominantly in the left hand. They also report feeling very anxious, experiencing sleep disturbances, pain in the right knee, and lower back pain. Additionally, the patient mentions feeling depressed and having difficulty focusing and concentrating. They have been engaging in hydrotherapy, physiotherapy, and weekly psychology sessions as part of their treatment plan.”[62]
[62] AALD 17 July 2024 at page 4.
On 11 July 2024, Ms Bota produced a report addressed “to whom it may concern” confirming that she had provided Ms Diab treatment by way of physiotherapy for cervical radiculopathy, bilateral shoulder pain, right knee pain and lumbar pain since 16 November 2021. Ms Bota referred to the findings in the cervical spine MRI scan dated 16 November 2021; the right shoulder MRI scan dated 29 November 2022; the left shoulder and right knee MRI scans dated 11 March 2022. Ms Bota observed that Ms Diab’s left shoulder condition suffered a progressive deterioration with progressive limitation of range of motion, increasing pain, especially at night and limited functionality, all of which was consistent with the development of adhesive capsulitis.[63]
[63] AALD dated 12 July 2024 at page 1.

Dr Andrew McIntosh: 6 October 2022

In evidence, there is a collision and biomechanics report by Dr Andrew McIntosh dated 6 October 2022 which was commissioned by the insurer.[64]
[64] Insurer’s documents at pages 159-213.
Dr McIntosh’s stated expertise is in the fields of biomechanics and ergonomics/human factors. He has completed formal traffic crash reconstruction training and formal training on event data recorder use in traffic crash reconstruction. He stated that he has applied this expertise in the study of injury causation, the study of safety systems and devices, crash and accident investigation, human gait, sporting skills and injury. His highest university qualification is a Doctor of Philosophy (PhD). The Panel noted that he is not medically qualified.
Dr McIntosh stated that he has researched, studied and/or examined:
(a)    motor vehicle crashes, occupant injury and crash severity, including low speed crashes;
(b)    the biomechanics of occupants in motor vehicle crashes, occupant kinematics, occupant injury and injury biomechanics;
(c)    the biomechanics of impact injuries;
(d)    spinal injury, including whiplash-associated disorders, and
(e)    loads experienced by the body during normal activities.
Dr McIntosh listed the documents he had been briefed with[65] and provided a summary of the motor accident details based on those documents.[66] He also provided summaries of the contents of the documents he had been briefed with, including documents and medical records related to Ms Diab’s claimed injuries.
[65] Insurer’s documents at pages 161-162.
[66] Insurer's documents at pages 163-165.
Dr McIntosh noted that the vehicle in which Ms Diab was travelling was a 2014 Toyota Corolla hatchback with a tare mass of 1,280kg. He noted that he had not been provided with any repair documentation in respect of the vehicle. In his report, he included a selection of photographs of the vehicle, the source of which were unknown, that he opined showed the following:
(a)    collision damage to the rear;
(b)    minor damage to the rear bumper and its components with signs of the bumper cover being deformed and interacting with the more rigid supporting structures, and
(c)    damage to the rear bumper reinforcement and beaver panel was unclear but minor deformation could not be excluded based on the quality of the photographs.
Dr McIntosh noted that the at-fault vehicle, being the vehicle that collided with the car in which Ms Diab was travelling, was a Grey 2018 Kia Cerato YD with a tare mass of 1,309kg. He noted that the speed of the at-fault vehicle had not been reported and that there was no statement by the driver of the at-fault vehicle. He further noted that he had not been provided with any repair documentation or photographs in respect of the at-fault vehicle.
Dr McIntosh did not say whether he had inspected the accident location or inspected either vehicle but it is apparent that he did not.
In respect of crash severity, Dr McIntosh opined that, based on the statements, incident descriptions and property damage, a collision with the following characteristics occurred:
(a)    rear end;
(b)    large overlap and in-line – the front of the at-fault vehicle collided with the rear of the vehicle in which Ms Diab was travelling;
(c)    the at-fault vehicle was travelling at a low speed when the collision occurred;
(d)    the vehicle in which Ms Diab was travelling was stationary or travelling slowly when the collision occurred, and
(e)    there was minor damage to the vehicle in which Ms Diab was travelling.
However, Dr McIntosh conceded that there were no witness marks, such as skid marks, with which to estimate the pre-collision speeds of either motor vehicle. He did not refer to the availability of any vehicle crash event data and accordingly, the Panel assumes that no such data was available. That is, there was no available objective information that could assist in determining the road speeds of both vehicles at the time of the collision. Therefore, Dr McIntosh opined that, in this case, the applicable measure of crash severity was the change in velocity. He then explained in detail his calculations in this regard.
Dr McIntosh then dealt with the question as to whether Ms Diab’s alleged injuries to the neck, right shoulder, low back and right knee were consistent with the forces involved in the motor accident.
In respect of Ms Diab’s cervical spine, Dr McIntosh opined:
“In my opinion, on balance, it is plausible that the biomechanical forces in the Incident could have reasonably led to either a cervical spine soft tissue injury / whiplash associated disorder and/or a symptomatic exacerbation of the Claimant’s pre-existing neck pain condition.”[67]
[67] Insurer’s documents at page 196 at [83].
Dr McIntosh opined that, on balance, it was unlikely that the biomechanical forces in the motor accident could have reasonably led to Ms Diab’s claimed thoracolumbar soft tissue injuries, intervertebral disc or other structural injury involving the cervical or thoracolumbar spines, shoulder, clavicle (including rotator cuff) and knee injuries.
Dr McIntosh explained that the thoracolumbar spine would have been very well-supported by the seat in the collision. Loads applied to the thoracolumbar spine in the collision would have been of very low magnitude and unlikely to cause injury.
Dr McIntosh explained that there was no mechanism for a shoulder injury, including a rotator cuff injury, in the motor accident. There was no mechanism for direct or indirect blunt force loading of the shoulders in the motor accident. The seatbelt would have acted across Ms Diab’s left shoulder and seatbelt forces would have been low magnitude and very unlikely to cause injury. The movement of Ms Diab’s shoulders in the motor accident would have been limited and within normal range of motion. The seatbelt functions to control the momentum of the occupant’s trunk and limit the forces acting through the upper limbs and shoulders, if the occupant reaches forward to the dashboard.
Dr McIntosh explained that there was no mechanism for lower limb injuries in the motor accident. Loads applied through the legs and feet would have been low magnitude. The hip, knee, ankle and foot joints would not have been moved through large or abnormal ranges of motion. There was no intrusion into the occupant area in the accident.
Dr McIntosh opined that the magnitude of the biomechanical forces acting on Ms Diab would have been low in the collision as a result of its severity with a change in velocity in her vehicle of less than 10kmph.
Dr McIntosh concluded that Ms Diab would have been exposed to low biomechanical forces including external forces acting through the seat, floor pan, seatbelt and steering wheel; and internal forces applied through muscles, ligaments and joints between body segments, for example, the cervical spine and neck muscles.

Medico-legal reports

Dr Stephen Rimmer: 14 March 2023

On 8 March 2023, Ms Diab consulted Dr Stephen Rimmer, orthopaedic surgeon, at the request of the insurer. Dr Rimmer prepared a report dated 14 March 2023.[68]
[68] Insurer's documents at pages 28-41.
In his report, Dr Rimmer described Ms Diab as a poor historian.
Dr Rimmer recorded the date of the motor accident incorrectly, that is, 28 October 2020 instead of 28 October 2021. Later in the report, he did refer to the correct date.
Dr Rimmer recorded the details of the motor accident as follows:
“ … she was the front seat passenger on route to her yearly ENT appointment for chronic benign vertigo. The car was stationary at a set of traffic lights. Their vehicle was rear ended by a vehicle travelling <10km/h. She noticed the sudden onset of sharp pain on the left side of her neck. The incident was reported to Burwood Police. She refused to be taken to hospital by ambulance. She went home. … ”[69]
[69] Insurer's documents at page 29.

It was clear that Dr Rimmer based his report of the at-fault vehicle travelling at less than 10kmph at the time of the collision on the opinion expressed by Dr McIntosh in his report dated 6 October 2022.
Dr Rimmer took a history of symptoms and treatment following the motor accident which was, in the main, consistent with the treating medical evidence at the time of the consultation. He noted that Ms Diab had undergone 40 sessions of physiotherapy, 40 sessions of exercise physiology and 14 sessions of acupuncture, all of which had now ceased.
Dr Rimmer recorded Ms Diab’s past history as follows:
“She is known to suffer from chronic neck pain for approximately 5 years. This resulted in a manipulation under anaesthesia by a chiropractor on January 2nd 2020. This caused severe debilitating pain. She sought medical attention through Dr Van Gelder (spinal surgeon) for this. He recommended physiotherapy. She claims it took 9 months of physiotherapy (self funded) to return to base level. She denies a previous history of injury to either shoulder, lumbar spine, right knee.”[70]
[70] Insurer's documents at pages 29-30.
Dr Rimmer conducted a physical examination and reported his findings on examination.[71]
[71] Insurer's documents at pages 31-33.
Dr Rimmer listed and summarised the findings of the investigations provided to him. He noted that there were no radiological investigations of Ms Diab’s right knee at the time of the consultation.
Dr Rimmer diagnosed Ms Diab with an abnormal illness behaviour; resolved musculoskeletal strain of the cervical spine; resolved soft tissue injuries to the bilateral shoulders; resolved musculoskeletal strain to the lumbar spine; and resolved soft tissue injury to the right knee. He attributed causation to the “minor motor vehicle accident on 28 October 2021”.[72]
[72] Insurer's documents at page 34.
Dr Rimmer opined that Ms Diab did not require future treatment. He further opined that she had full pre-accident capacity and clearly demonstrated an abnormal illness behaviour.
Dr Rimmer opined that Ms Diab’s injuries had stabilised and reached maximum medical improvement. He assessed Ms Diab’s WPI at 5% (cervical spine: 5%; lumbar spine: 0%; right shoulder: 0%; left shoulder: 0%; and right knee: 0%).
Dr Rimmer acknowledged that he had reviewed the collision and biomechanics report by Dr McIntosh and noted the latter’s conclusion that it was very unlikely that the biomechanical forces of the motor accident could have reasonably led to a thoracolumbar soft tissue injury; an intervertebral disc injury of the cervical or thoracolumbar spine; shoulder or clavicle injuries, including rotator cuff injury; or a knee injury. Dr Rimmer recommended a period of surveillance. The Panel notes that there were no surveillance reports, surveillance photographs or video surveillance in evidence.

Dr James Bodel: 9 March 2023

On 9 March 2023, Ms Diab consulted Dr James Bodel, orthopaedic surgeon, at the request of her lawyers. Dr Bodel provided a report dated 9 March 2023.[73]
[73] Claimant's documents at pages 83-92.
Dr Bodel recorded the following history related to the motor accident:
“The claimant states that she was involved in a motor vehicle accident that occurred on 28 October 2021. She states that she was a front-seat passenger in a Toyota Corolla. The vehicle was fitted with a head restraint and she was wearing her seatbelt. The accident occurred at ‘8:37 am while on her way to visit an ENT surgeon’.
It was a fine day and the road was dry. She states that the vehicle in which she was travelling was stationary at a red light, waiting to make a left-hand turn. When the light turned to green, the car slowly moved off to make that left-hand turn but was hit from behind by another vehicle.
She was thrown around quite violently as this was quite unexpected. The airbags were not deployed. She had to be helped out of the vehicle. She was at that time on her way to a doctor's appointment.
She had immediate onset of neck and left shoulder girdle pain as well as pain in the lower part of the back and right knee.
She did see her GP later and had MRI scans of the neck, the left shoulder and the back, and was treated conservatively with rest, analgesic medication and physiotherapy.
She was referred to Professor Viswanathan, an orthopaedic surgeon for her left and right shoulders. She was also assessed about her right knee at that time and was given medication and physiotherapy. She had some acupuncture on about 16 occasions with some improvement in clinical function.
She was also seen by Dr Renata Abraszko, a neurosurgeon about her neck and back and Dr Abraszko recommended further investigation with MRI scans of the cervical and lumbar spines and a bone scan, but the insurer has denied liability for the cost of this.
The claimant states that she has made progress but has never completely recovered. She has required some domestic assistance because of the injuries that she has suffered and her three daughters and her husband help with these activities. She states that they have two hours domestic assistance in the house, two people come once a fortnight.
The claimant also states that in 2015, she was in receipt of a disability support pension for benign positional vertigo.”[74]
[74] Claimant's documents at page 84.
In respect of past medical history, Dr Bodel noted that Ms Diab had recently been quite well apart from bilateral vestibulopathy and vertigo. He did not take a history of pre-accident symptoms in her cervical spine.
Dr Bodel conducted a physical examination and reported his findings on examination.[75]
[75] Claimant's documents at pages 85-86.
Dr Bodel listed and summarised the findings of the investigations provided to him.[76]
[76] Claimant's documents at pages 86-87.
Dr Bodel diagnosed Ms Diab with a musculoligamentous injury to the cervical spine and lumbar spine, rotator cuff pathology in both shoulders, and a traumatic chondromalacia to the retropatellar region of the right knee, all of which were caused by the motor accident. He opined that there was no indication of any pre-existing abnormality or condition contributing to the overall level of impairment.
Dr Bodel opined that Ms Diab’s injuries had stabilised and reached maximum medical improvement. He assessed Ms Diab’s WPI at 26% (cervical spine: 5%; lumbar spine: 5%; right shoulder: 6%; left shoulder: 10%; and right knee: 4%).
Dr Bodel opined that Ms Diab’s prognosis is guarded.

Medical assessment certificates

Medical Assessor Matthew Jones: 3 November 2022

On 1 September 2022, Ms Diab was assessed by Medical Assessor Matthew Jones in respect of a minor injury dispute (now threshold injury dispute) for the psychological injuries alleged to have been caused by the motor accident.
On 3 November 2022, Medical Assessor Jones issued a certificate in respect of the minor injury dispute.[77]
[77] Insurer’s documents at pages 214-221.
Medical Assessor Jones determined that Ms Diab suffered post-traumatic stress disorder caused by the motor accident, which was not a minor injury for the purposes of the MAI Act.

Medical Assessor David Gorman: 13 November 2022

On 15 September 2022, Ms Diab was assessed by Medical Assessor David Gorman in respect of a minor injury dispute (now threshold injury dispute) for the physical injuries allegedly caused by the motor accident, namely, partial tear of the supraspinatus tendon in the right shoulder and the disc bulge at C4/5 level with compression on the left exiting C5 nerve root causing cervical spine radiculopathy. He also was requested to assess two treatment and care disputes, namely, the referral to Dr Abraszko and the right knee X-ray and MRI scan on 11 March 2022.
On 3 November 2022, Medical Assessor Gorman issued three separate certificates in respect of the abovementioned medical disputes.[78]
[78] Insurer’s documents at pages 222-245.
Medical Assessor Gorman determined that Ms Diab suffered a soft tissue injury to the right shoulder and a soft tissue injury to the cervical spine, both of which were minor injuries for the purposes of the MAI Act. He also determined that the referral to Dr Abraszko and the right knee X-ray and MRI scan on 11 March 2022 related to the injuries caused by the motor accident and were reasonable and necessary in the circumstances.

SUBMISSIONS

Insurer’s submissions

General

The insurer provided written submissions dated 28 November 2023.[79] The submissions are briefly summarised below.
[79] Insurer’s documents at pages 3-6.
The insurer relied on the report of Dr Rimmer dated 14 March 2023.
Any injuries sustained by Ms Diab in the motor accident had resolved.
Ms Diab’s stated injuries do not exceed the 10% permanent impairment threshold.

Bilateral shoulders

The AHRRs dated 17 November 2021, 17 December 2021 and 24 January 2022, demonstrated that Ms Diab had a full range of motion in both shoulders for over three months from the date of the motor accident, which was consistent with Dr Rimmer’s clinical findings and inconsistent with Medical Assessor Herald’s findings on the day of his assessment.
Medical Assessor Herald failed to notice the inconsistencies between the available treating evidence before him and his clinical findings. He failed to put to Ms Diab the inconsistencies between her medical records evidencing full range of motion in the physiotherapy AHRRs and Dr Rimmer’s clinical examination with those observed in his own examinations. He failed to consider whether the effects of the motor accident had resolved and whether Ms Diab’s ongoing issues related to her pre-existing symptomatic issues.

Right knee

The medical records provided to Medical Assessor Herald and the history he took of the motor accident failed to evidence a history of direct trauma to Ms Diab’s right patellofemoral region.
The right patellofemoral region was only first imaged in March 2022 and demonstrated significant degenerative pathology which could not and was not caused, or advanced by the motor accident in the five month period from the accident to the date of the imaging.
Accordingly, an inference can be drawn that Medical Assessor Herald did not consider whether there was a history of a direct hit to Ms Diab’s patellofemoral joint or the presence of degenerative joint space narrowing given her age and advanced pathology.

Lumbar spine

Despite Medical Assessor Herald’s reference to symptoms of radiculopathy, these were not described to follow any nerve root distribution as required under Table 6.8 of the Guidelines to satisfy the definition of non-verifiable radicular complaints.
Accordingly, Medical Assessor Herald failed to provide sufficient reasons for his determination that the examination of the lumbar spine satisfied a DRE II classification attracting a 5% WPI.

Ms Diab’s submissions

General

Ms Diab provided written submissions through her lawyer dated 6 June 2023 and 30 January 2024.[80] The submissions are briefly summarised below.
[80] Claimant’s documents at pages 3-8.
Ms Diab’s injuries (cervical spine, lumbar spine, right knee and bilateral shoulders) are causally related to the motor accident.
Ms Diab’s stated injuries exceed the 10% permanent impairment threshold as assessed by Medical Assessor Herald.
In his report dated 9 March 2023, Dr Bodel indicated that Ms Diab’s physical injuries (cervical spine, lumbar spine, right knee and bilateral shoulders) were caused by the motor accident and resulted in a WPI greater than 10%.

Bilateral shoulders

The insurer, by way of reference to Ms Diab’s AHRRs dated 17 November 2021, 17 December 2021 and 24 January 2022, alleged that the treating evidence provided by the physiotherapist demonstrated Ms Diab had a full range of motion in both shoulders for over three months from the date of the motor accident, which was consistent with Dr Rimmer’s clinical findings and inconsistent with Medical Assessor Herald’s findings on the day. However, the insurer neglected to consider the direct correlation between its declinature of physiotherapy treatment and the deterioration of Ms Diab’s bilateral shoulder injuries.
There were records of Ms Diab’s complaints of bilateral shoulder pain from as early as 28 October 2021 (Greenacre Medical Centre clinical notes entry dated 2 November 2021). Ms Diab subsequently commenced physiotherapy treatment in November 2021 on a weekly basis. She continued to undergo physiotherapy treatment funded by the insurer until March 2021, when the AHRR dated 21 March 2022 was declined by the insurer and subsequently became the subject of Commission dispute M10511211/22. Ms Diab continued self-funded physiotherapy treatment until December 2022, ceasing treatment due to financial strain. She did not resume physiotherapy treatment until mid-August 2023.
On 23 June 2023, Medical Assessor Gorman issued a certificate in respect of whether physiotherapy treatment to Ms Diab’s bilateral shoulders was caused by the motor accident and was reasonable and necessary in the circumstances. Medical Assessor Gorman’s examination of Ms Diab’s bilateral shoulder movements demonstrated a clear decline in her progress as a direct result of the deprivation of access to treatment.
Medical Assessor Herald made it abundantly clear that he had considered Ms Diab’s

pre-existing symptomatic bilateral shoulder conditions in his determination. It is clear to any third party observer that he considered Ms Diab’s reduced range of bilateral shoulder movement to be causally related to the motor accident rather than age-related degenerative changes etc.
Ms Diab’s bilateral shoulder injuries are causally related to the motor accident.

Right knee

In submitting that there was no evidence to indicate that there was a history of direct trauma to the right patellofemoral region, the insurer overlooked some of the documentation before Medical Assessor Herald.
In his report dated 11 March 2022, Ms Diab’s treating physiotherapist, Ms Bota, reported that she experienced episodes of right knee pain in the first weeks following the motor accident, which had been affecting her daily activities.
In a medical certificate issued by Ms Diab’s general practitioner dated 15 March 2022, it was noted that she had right knee pain since the motor accident but did not report it as it was mild but had become worse since 17 February 2022.
In his report dated 14 March 2023, Dr Rimmer, who was engaged by the insurer, found that the motor accident was causative of a soft tissue injury to the right knee and subsequently awarded Ms Diab 5% WPI for the right knee.
Ms Diab’s right knee injury is causally related to the motor accident.

Lumbar spine

The insurer alleges that Medical Assessor Herald did not provide sufficient reasons for his determination that the examination of the lumbar spine satisfied a DRE II classification thus attracting a 5% WPI.
Based on Medical Assessor Herald’s clinical examination of Ms Diab, he subsequently allocated the same impairment for the lower back injury caused by the motor accident as Dr Bodel. In accordance with the principles in Allianz Australia Insurance Limited v Sprod,[81] it was well open to Medical Assessor Herald to find that Ms Diab presented with radicular symptoms in the absence of clinical signs consistent with a finding of DRE Lumbosacral Category II level of assessable impairment in accordance with the description in Table 72 on page 3/110 of AMA 4.

THE RE-EXAMINATION

[81] Allianz Australia Insurance Limited v Sprod [2012] NSWCA 281

Preamble

The Panel re-examination and assessment of Ms Diab was undertaken on 12 July 2024 by Medical Assessor Gibson on behalf of the Panel. She brought some imaging studies with her.

Pre-accident medical history

Ms Diab said she had suffered with neck pain in the past but this had resolved by, at least, 2020. When asked about seeing Dr Van Gelder in December 2020, she said that she had instigated this assessment and she had not required any consultations subsequently for her neck, either with her general practitioner or other service providers. She said she had come under the care of Ms Pam Reynolds at Chatswood for neuro physiotherapy and this had brought about resolution of her neck complaint by early 2021.
There was mention in the general practitioner clincal notes prior to the motor accident of a referral to a rheumatologist. Ms Diab was asked about this. She said it was “nothing to do with the accident" and said she had been referred to Dr Mona Marabani. She said this was to check her X-rays but she did not attend.
In November 2023, Ms Diab had a laparoscopic cholecystectomy.
In 2000, Ms Diab was treated for vertigo and had been under the care of an ear, nose and throat unit at Royal Prince Alfred Hospital. When asked why she had been on the way to visit Dr Kleiner, ear, nose and throat surgeon, on the day of the motor accident, she said that although her vertigo had resolved she had had some popping in her ears and was willing to have these examined to exclude any wax impaction.
Ms Diab said that she had suffered burns to her legs on 20 May 2020 but that the burns had healed and resolved.

Work history

Ms Diab worked with the Commonwealth Bank as a payroll clerk and as a sales representative with an ergonomic equipment company.
After this she was a full-time customer service officer and supervisor with Service NSW over about 10 years. She resigned about 12 years ago. She has not worked since, although she said she had friends that were still working there, and they had suggested she could resume part-time work. However, she said that she now does not feel capable of this, due to her motor accident related injuries.

Relevant personal details

Ms Diab lives with her husband and 19-year-old son in single-storey three-bedroom, two-bathroom house. Her husband works part time. Her son is studying at Macquarie University, but also working with the Rail Authority in NSW.
Ms Diab said that, prior to the motor accident, she could manage all internal household chores.

History of the motor accident

On 28 October 2021, Ms Diab was a front-seat passenger in a 2014 Toyota Corolla being driven by her daughter, Sarah. Sarah was three months pregnant at the time. They had been on their way to Ms Diab's appointment with Dr Kleiner.
They were stationary at a red traffic light at the intersection of Shaftesbury Road and Railway Parade, Burwood.
Ms Diab recalled hearing a loud bang as their vehicle was rear-ended. There was no air bag deployment as there was no front-end impact.
Ms Diab recalled her body being jolted forward and back. She said that she was in "so much pain" at the time and "so scared and shocked" that she could not recall much. When asked about her alleged knee injury, she said that she had "maybe" hit her knee. She thinks it may have been "a bit red", but she could not recall noticing any bruising or bleeding over the knee.
Ms Diab said that there had been pain in her neck and shoulders, and she indicated the anterior aspect of both shoulders. The neck pain had been left sided and extended to the left shoulder (trapezius region).
Ms Diab’s daughter had helped her out of the car. The receptionist from Dr Kleiner's rooms had taken her into the surgery, where she was sat down. She said Dr Kleiner had told her to report the accident.
Police and ambulance had not attended the scene. Her daughter exchanged details with the other driver. Both vehicles were driveable and her daughter’s car later repaired. Following the accident, her daughter had driven her to the police station.
The police report of 25 November 2021 had noted that:
“ … When the lights turned green, DRV 2 proceeded until DRV 1 [at-fault vehicle] collided with their front bumper on the rear end of VEH 2 [Ms Diab’s vehicle]. Both DRV I and DRV 2 exchanged details at the scene.
DRV 2 then went to the doctor's straightaway as the INJ had a doctor's appointment scheduled for the day. The doctor however, was unable to do most of the tests required due to time relapse, so a booking was scheduled for another day.
At about 2pm on Thursday the 28th of October 2021, DRV 2 and INJ attended Burwood Police Station to make a report as the INJ had neck problems hence the visit to the doctors. Police asked the INJ if medical assistance was needed, however the INJ declined. …”[82]
[82] Claimant's documents at page 25.

Ms Diab had later visited her regular general practitioner, Dr Nasheeth Usmani and she was referred for imaging studies and physiotherapy. The clinical notes from Greenacre Medical Centre dated 2 November 2021 gave the history of the motor accident. Dr Usmani recorded that she had:
“Felt sudden pressure in the neck with burning pain and left shoulder pain. Felt dizzy and unbalanced got out of the car slowly, sat on the ground slowly resting against a pole on the kerb after wards [sic] started developing headache and still has today. Ambulance was not needed. Reported to Burwood Police station.”[83]
[83] AALD 17 July 2024 at page 48.
On examination, Dr Usmani observed active and passive movements of the cervical spine were restricted with paraspinal muscle stiffness, but no mid line spine tenderness or red flags were noted. Neurological examination of the upper limbs had shown no abnormality. Dr Usmani had diagnosed Ms Diab with whiplash.
Ms Diab was referred to Associate Professor Sameer Viswanathan following an MRI scan of her knees and he had then identified injuries to both shoulders, the right sternoclavicular joint as well as the right knee. He suggested she see neurosurgeon, Dr Abraszko, regarding her neck and back. The doctor had recommended she have a bone scan and an MRI scan but as these were not approved by the insurer, Ms Diab had not proceeded with these investigations. She had visited Dr Abraszko on one occasion.

Current treatment

Ms Diab has weekly supervised hydrotherapy. She takes Celebrex, Panadol Osteo, ibuprofen, Somac, Lexam (for the last 2.5 years) and melatonin. She also applies a cream to the injured areas of the body.
Ms Diab performs daily exercises at home with the regime recommended by the physiotherapist.
When asked whether any further treatment was planned, she said, "whatever will help”.

Current complaints

Ms Diab described the neck pain as coming on after sleep if she sleeps on one or the other side. She said if she moves her head up or down she suffers with neck pain and feels giddy.
There is some relief of the neck pain with medication, but she added that, since her cholecystectomy, some medications made her nauseous, so she tries to put up with the pain.
In relation to the shoulders, she indicated pain over the anterior aspect of both shoulders but then later indicated that the pain extended over the entire shoulder joint.
Ms Diab said she had difficulties getting clothes on and off. She said she cannot take her jumper off, cannot do up her bra and she needs help with showering and doing her hair.
Pain is particularly severe if she sleeps on either shoulder.
Ms Diab also pointed to some swelling of her right sternoclavicular joint.
Ms Diab said there is numbness and tingling in the hands, the right greater than the left, affecting the tips of all fingers but not the thumbs.
There is low back pain with prolonged sitting or standing after about 10 minutes. She can walk up to 15 minutes before the pain becomes more severe across her low back.
Ms Diab said that she has issues with the right knee and she indicated pain over the front of the knee. She finds the knee is uncomfortable after sitting for more than 10 minutes and she has issues with kneeling, climbing stairs and cannot tolerate long walks.

Physical examination

Ms Diab was 165cm tall and weighed 61kg. She had a normal gait.
She was cautioned regarding giving her best effort and that if movements were variable when measured then these readings could not be used for assessment purposes and other methods would need to be employed. She acknowledged understanding.
On examination of the neck, there was diffuse tenderness; flexion and extension were to a third normal; rotation two-thirds normal bilaterally; and lateral flexion three-quarters normal bilaterally. Neurotension signs were negative. There was no asymmetry, but there was mild guarding. Neck movements on informal assessment were better than those obtained at other times, for instance when she was removing her jumper (with assistance). When asked about this, she said that she “forces herself” and then experiences more pain.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance. Therefore, there was no muscle wasting. There was no dermatomal loss of power, sensation and reflexes. There was giving-way bilaterally when testing power.
On examination of both shoulders, movements were variable on re-testing as follows:

Shoulder Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

100°; 110°

100°; 90°

Extension

30°; 30°

30°; 10°

Internal Rotation

70°

60°

External Rotation

90°

80°

Abduction

110°; 90°

100°; 110°

Adduction

25°; 25°

25°; 10°

When asked about the inconsistencies, Ms Diab indicated this related to variable pain.
On examination of the low back, there was tenderness in the midline and laterally. Forward flexion was a third normal, extension one-third normal, lateral flexion and rotation

three-quarters normal. There was no asymmetry, muscle spasm or guarding.
On examination of the lower limbs, circumferential measurements were equivalent. Therefore, there was no muscle wasting. There was normal power, sensation and reflexes, apart from reduced sensation in a circumferential distribution over the right thigh. Straight leg raise was 20° bilaterally. Neurotension signs were negative bilaterally.
On examination of both knees, there was no crepitus or instability demonstrated. Active movements were as follows:

Knee movements

Active ROM Measured RIGHT

Active ROM Measured LEFT

Flexion

120°

125°

Extension

0°

0°

Investigations

The MRI scan of the cervical spine dated 16 November 2021 showed cervical spondylosis with disc bulging especially at C4/5 level but also at C5/6 level but also at C4/5 and C6/7 levels. Comparison with the MRI scan dated 17 February 2020 showed a broad based disc osteophyte complex at C5/6 level causing bilateral neural foraminal narrowing and compression upon both exiting C6 nerve roots. A left paracentral disc bulge at C4/5 level causing left sided neural foraminal narrowing and compression upon left exiting C5 nerve root. There was potentially impingement on the C6 and C5 nerve root.
An X-ray of the right clavicle dated 24 November 2021 showed degenerative changes in the acromioclavicular joint.
A CT scan of the lumbosacral spine dated 24 November 2021 showed degenerative changes within the lumbar spine.
An MRI scan of the right shoulder and the right sternum dated 29 December 2021 showed a partial thickness interstitial tear of the supraspinatus tendon of the right shoulder and sternoclavicular joint within normal limits.
An X-ray and MRI scan of the right knee dated 11 March 2022 showed chondromalacia patella and medial-lateral femoral condyle chondrosis with patellar tendonitis.
An MRI scan of the left shoulder dated 11 March 2022 showed severe tendinosis of the supraspinatus tendon with interstitial tear and acromioclavicular joint arthritis and subacromial bursitis.
A right shoulder ultrasound dated 27 July 2022 showed an old supraspinatus tear and subacromial bursitis.
A left shoulder ultrasound dated 3 September 2022 showed a partial thickness supraspinatus tear.

DIAGNOSIS, CAUSATION AND REASONS

The Panel notes that the unchallenged evidence was that Ms Diab was a passenger in a stationary, or almost stationary, motor vehicle that was rear-ended by another motor vehicle on 28 October 2021. There was a single impact. Airbags were not deployed.
There was early evidence of neck and bilateral shoulder complaints and also, potentially, referral of pain to the upper limbs. There was delayed (five days) presentation of low back pain. There was a delayed complaint of right knee symptoms. There was a prior history of neck pain. However, Ms Diab denies having any ongoing neck pain by the time of the motor accident. She had visited Dr Van Gelder, neurosurgeon, prior to the motor accident (23 December 2020), but he had recorded a normal range of neck movements and no neurological findings, and there were no specific signs or symptoms in his report that would suggest a rating in excess of DRE category I at that stage.
The Panel considered that the mechanism of the motor accident could have caused the symptoms complained of by Ms Diab in her cervical spine, lumbar spine, right knee and bilateral shoulders.
The preponderance of the medical and allied health evidence supported that Ms Diab had sustained injuries to her cervical spine, lumbar spine, right knee and bilateral shoulders in the motor accident.
The Panel accepts Ms Diab’s evidence of the symptoms she experienced in her cervical spine, lumbar spine, right knee and bilateral shoulders at or soon after the motor accident.
The Panel accepts the explanation Ms Diab provided to Dr Usmani and Ms Bota in respect of the delay in her complaint of right knee symptoms.
The Panel gave little weight to the expert evidence of Dr McIntosh for the reasons stated above and those stated below.
Dr McIntosh was in the position of having to provide an opinion in the absence of any repair documentation in respect of either vehicle involved in the motor accident; the absence of a statement by the driver of the at-fault vehicle; and the absence of photographs of the at-fault vehicle. Further, the speed of the at-fault vehicle had not been reported. Dr McIntosh conceded that there were no witness marks, such as skid marks, with which to estimate the pre-collision speeds of either motor vehicle. He did not refer to the availability of any vehicle crash event data and accordingly, the Panel assumes that no such data was available. That is, there was no available objective information that could assist in determining the road speeds of both vehicles at the time of the collision.
Dr McIntosh did opine that, based on his calculation of change in velocity, it is plausible that the biomechanical forces in the motor accident could have reasonably led to either a cervical spine soft tissue injury/whiplash associated disorder and/or a symptomatic exacerbation of Ms Diab’s pre-existing neck pain condition.
Ms Diab remains symptomatic in part and still undertakes daily exercises at home with the regime recommended by the physiotherapist and exercise physiologist and undergoes weekly supervised hydrotherapy. She continues to medicate with Celebrex, Panadol Osteo, ibuprofen, Somac, Lexam and melatonin. She also applies a cream to the injured areas of the body.
The injuries are consistent with the stated cause.
The absence of symptoms in the affected areas within a reasonable time prior to the motor accident and reasonably prompt development of and persistence of symptoms, persisting disabilities and need for ongoing treatment since the motor accident would indicate, on the balance of probabilities, that the motor accident did cause or contribute to Ms Diab’s current symptoms to an extent that is more than negligible.
Based on the findings on physical examination and the documents in evidence, the Panel finds that the following injuries were caused by the motor accident:
(a)    cervical spine – soft tissue injury and ongoing aggravation of a pre-existing condition in the cervical spine;
(b)    lumbar spine – soft tissue injury and ongoing aggravation of a pre-existing condition in the lumbar spine;
(c)    right knee – soft tissue injury and ongoing aggravation of a pre-existing condition in the right knee;
(d)    right shoulder – soft tissue injury and ongoing aggravation of a pre-existing condition in the right shoulder, and
(e)    left shoulder – soft tissue injury and ongoing aggravation of a pre-existing condition in the left shoulder.

PERMANENCY OF IMPAIRMENT

Permanent impairment is defined by the AMA 4 Guides as 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, that is, by more than 3% WPI in the next year with or without medical treatment.[84]
[84] AMA 4 Guides at page 315 and cl 6.19 of the Guidelines.
The Panel considered the question of permanency of impairment and is satisfied that Ms Diab’s injuries caused by the motor accident have stabilised and are permanent within the meaning of the above definition.

DEGREE OF PERMANENT IMPAIRMENT

The Panel assesses Ms Diab’s degree of permanent impairment as set out below.

Cervicothoracic spine

DRE Category II, 5% WPI in accordance with the descriptors in Table 6.7 on page 103 of the Guidelines. There is guarding, but no radiculopathy.

Lumbosacral spine

DRE Category I, 0% WPI rating in accordance with the descriptors in Table 6.7 on Page 103 of the Guidelines.

Right knee

There was no gait derangement, no muscle atrophy or unilateral muscle weakness.
Knee movements were assessed with reference to Table 41 [Chapter 3, AMA 4, p78] resulting in 0% WPI. There was no patellofemoral crepitus [Table 62, Chapter 3, AMA 4, p83]. There were no diagnosis based estimates applicable [Chapter 3, AMA 4, Table 64, p85].

Shoulders

Shoulder movements were variably restricted when measured at assessment, and in comparison to previous reports. Clause 6.50 of the Guidelines states that, if there is inconsistency in range of motion then it should not be used as a valid parameter of impairment evaluation. Further, if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.
The Guidelines advise that the assessor can use their clinical judgement in determining an appropriate impairment rating. The Panel considered all the available clinical and radiological evidence, and also noted that cl 6.67 of the MAA Guidelines does permit assessment to be completed by analogy. Their opinion was that the motor accident related shoulder impairment may be considered analogous to mild (for the reasons above) intermittent acromioclavicular joint crepitation. Referring to Table 19 there was 10% joint impairment, thus 1.5% WPI, rounding this to the next closest integer, gives 2% WPI.
The Panel concluded there was 2% WPI of the right shoulder and 2% WPI for the left shoulder.
Therefore, the total motor accident related impairment is 9% WPI.

Pre-existing or subsequent impairment

The Panel finds that there was no history of preceding symptoms within a reasonable time prior to the motor accident to suggest any prior impairment.
There was no evidence of any subsequent impairment.
Accordingly, the Panel finds apportionment of impairment irrelevant.

Summary of assessment of permanent impairment

The Panel assesses Ms Diab’s permanent impairment as follows:
(a)    current WPI: 9%;
(b)    pre-existing WPI: 0%, and
(c)    subsequent WPI: 0%.

FINDINGS

The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[85] and Insurance Australia Ltd v Marsh.[86]
[85] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[86] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the re-examination findings and conclusions of Medical Assessor Gibson based on her examination and specific findings pertaining to diagnosis, causation and assessment of permanent impairment.
The Panel determines that Ms Diab sustained soft tissue injuries and ongoing aggravations of pre-existing conditions to her cervical spine, lumbar spine, right knee and bilateral shoulders caused by the motor accident.
The Panel revokes the certificate issued by Medical Assessor Herald dated 31 October 2023.
The Panel determines that the injuries caused by the motor accident give rise to a WPI which is not greater than 10%, that is, 9%.

CONCLUSION

The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	100°; 110°	100°; 90°
Extension	30°; 30°	30°; 10°
Internal Rotation	70°	60°
External Rotation	90°	80°
Abduction	110°; 90°	100°; 110°
Adduction	25°; 25°	25°; 10°

Knee movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	120°	125°
Extension	0°	0°

[2025] NSWPICMP 137

4 March 2025