Insurance Australia Limited t/as NRMA Insurance v George

[2024] NSWPICMP 69

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v George [2024] NSWPICMP 69

CLAIMANT:

Nabil George

INSURER:

NRMA

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

Christopher Oates

DATE OF DECISION:

12 February 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; dispute related to the assessment of whole person impairment (WPI) arising from right shoulder rotator cuff tear, cervical spine soft tissue injury and erosive gastritis of upper digestive tract; Medical Review Panel satisfied as to causation; claimant re-examined; Medical Review Panel required to form its own opinion on diagnosis and impairment; Insurance Australia Ltd v Marsh applied; Held – claimant assessed at 13% WPI for right shoulder and digestive system; Medical Assessment Certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 (the Act)

1.     The Review Panel revokes the certificate dated 4 April 2023 and issues a new certificate determining that:

(a)   the following injuries caused by the motor accident give rise to a permanent impairment of 13% and IS GREATER THAN 10%:

·         right shoulder rotator cuff tea;

·         cervical spine soft tissue injury, and

·         stomach – erosive gastritis upper digestive tract.

STATEMENT OF REASONS

INTRODUCTION

1. Nabil George (the claimant) was injured in a motor accident on 10 August 2019 at Bexley (the accident). The claimant was the driver and sole occupant of his vehicle. The insured vehicle was travelling in the opposite direction. It turned right in front of him and directly struck his driver’s door. Both vehicles were pushed to the left. The claimant did not lose consciousness. He was unable to get out of his vehicle because of the deformity of the driver’s door. Ambulance and police officers were called. The door was opened by a tow truck driver using a crowbar. The claimant’s vehicle was written off. The claimant walked home. The insurer wholly admitted liability for the claim.

2. The claimant reported immediate pain in his neck and right shoulder. He also complained of a painful right leg which caused difficulty in walking. The claimant consulted his local medical officer a few days after the motor accident. He was complaining of severe pain in his neck and right shoulder with limitation of movement. Imaging was performed. He was referred to Dr Maniam, orthopaedic surgeon, who advised a MRI scan. The claimant was told that he had a tear of the right rotator cuff. He had extensive physiotherapy.

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

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

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

5. The claimant was referred for assessment by Medical Assessor Philip Truskett who certified as follows:

   “The following injuries caused by the motor accident give rise to a permanent impairment of 13% and is GREATER THAN 10%:

   ·Right shoulder rotator cuff tear

   ·Cervical spine soft tissue injury

   The following injuries WERE NOT caused by the motor accident:

   ·Stomach – erosive gastritis upper digestive tract.”

THE REVIEW

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

2. Pursuant to s 7.26(5A) of the Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission).

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

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

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

   [3] Rule 128 of the PIC Rules.

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

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

ASSESSMENT UNDER REVIEW

1. The insurer submitted that Medical Assessor Truskett erred in his assessment of the right shoulder on the following bases:

   ·        Medical Assessor Truskett incorrectly calculated upper extremity impairment (UEI) in accordance with the AMA Guides to the Evaluation of Permanent Impairment 4^th Edition (AMA Guides 4), and

   ·        Medical Assessor Truskett failed to provide reasons as to why he did not apportion any impairment in respect of the claimant’s pre-existing right shoulder symptoms.

   The insurer submitted that Medical Assessor Truskett’s assessment was incorrect in a material respect.

2. The insurer submitted that Medical Assessor Truskett failed to measure or, alternatively, failed to record the range of motion assessment in respect of adduction. The insurer further submitted that the correct calculation of upper extremity impairment translates to, at most, 5% whole person impairment, rather than 13% whole person impairment, as determined by the Medical Assessor.

3. As to the alleged failure to provide reasons, the insurer noted that Medical Assessor Truskett took a clinical history of pre-existing right shoulder symptoms, which he said were temporary. Based upon the imaging, Medical Assessor Truskett found there was no evidence of pre-existing rotator cuff tear, which was diagnosed after the motor accident. The insurer submitted that, nevertheless, clinical records established that the claimant was complaining of right shoulder symptoms pre-accident. The insurer submitted that Medical Assessor Truskett should have made an apportionment for pre-existing impairment and failed to provide sufficient reasons as to how he concluded the symptoms were temporary and should not give rise to apportionment of pre-existing impairment in the right shoulder.

4. As to materiality, the insurer submitted that Medical Assessor Truskett’s assessments were incorrect in a material respect, in that the issues identified by the insurer are relevant and capable of altering the outcome of the dispute about permanent impairment, from greater than 10% to not greater than 10%.

5. The insurer’s application for review was opposed by the claimant. It was submitted for the claimant that Medical Assessor Truskett was correct in not apportioning the presence of any pre-existing impairment of the right shoulder because none existed. The claimant submitted that he did not have a rotator cuff tear prior to the motor accident and that the insurer failed to understand the distinction between “pain” and “impairment”. The claimant noted that diagnostics performed before the motor accident showed that the right rotator cuff was intact, which is to be contrasted with a scan performed 6 weeks after the motor accident, showing a full thickness tear of the right rotator cuff, for which the claimant underwent surgery.

6. As to the upper extremity impairment, the claimant submitted that Medical Assessor Truskett was correct in awarding 13% whole person impairment, based upon his use of the “PIE chart” in chapter 3 of AMA Guides 4[TR1] , which yielded at 21% impairment of the right upper limb, due to loss of shoulder movements.

7. President’s delegate Rachel Brittliff issued a Determination of an Application for Review of a Medical Assessment on 14 June 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that Medical Assessor Truskett’s assessment was incorrect in a material respect. The basis of that decision was stated to be Medical Assessor Truskett’s failure to measure the adduction of the claimant’s right arm, and his failure to record the adduction measurement of the claimant’s right arm, as required in an assessment of upper extremity impairment of a shoulder.

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

   ·        shoulder – right shoulder full thickness tear;

   ·        cervical spine – soft tissue strain/sprain, and

   ·        stomach – erosive gastritis upper digestive tract.

   As to the claimant’s stomach condition, the Review Panel notes that the clinical records appear to establish that the claimant was taking anti-inflammatories before and after the motor accident. It will be necessary for the Review Panel to consider causation and apportionment in relation to the stomach condition, as well as in relation to the full thickness tear of the right rotator cuff.

9. It will be necessary for the Review Panel to consider causation in relation to the full thickness tear of the right rotator cuff and the claimant’s stomach condition.

MATERIAL BEFORE THE REVIEW PANEL

1. The claimant relied upon the following material:

   ·        the claimant’s submissions dated 25 May 2023 in Reply to insurer’s review application.

   ·        Various reports by Richa Rastogi, consultant psychiatrist, to the treating general practitioner (GP), Dr Douaihy, which are not relevant to the current medical dispute.

   ·        A report dated 11 June 2021 by Dr Neil Berry, specialist general surgeon, to the claimant’s solicitors. Dr Berry took a history that the claimant developed pain in his neck and right shoulder, as well as abdominal pain, within a short time after the motor accident. Dr Berry records that the claimant denied any prior accidents, injuries or claims for compensation. His general health was good apart from controlled Type II Diabetes. Upon physical examination, the claimant demonstrated two-thirds of normal range of flexion and extension in the cervical spine, half the normal range of right and left rotation and three-quarters of the normal range of right and left lateral flexion. There was a full range of shoulder, elbow and wrist movements in the left upper extremity. There were surgical scars and restricted range of movement in the right upper extremity. An examination of the abdomen was not conducted as the claimant had undergone a colonoscopy. No other abnormality was detected on physical examination. Dr Berry opined that the claimant suffered injury to his neck and right shoulder, and has developed erosive gastritis, caused by the motor accident.

   ·        In a subsequent impairment assessment dated 30 June 2021, Dr Berry stated the following impairment assessments:

   (a)5% for the cervical spine;

   (b)11% for the right upper extremity, and

   (c)5% for the upper digestive tract;

   giving a total whole person impairment of 19%.

   ·        Various reports by Dr Vijay Maniam, treating orthopaedic surgeon, to the insurer. Dr Maniam gives a history of his treatment from 23 August 2019 involving arthroscopic right shoulder superior capsular repair. Progress was satisfactory. Dr Maniam comments in relation to claimant’s work restrictions and ability to undertake domestic chores. He notes that recovery was complicated by post-operative capsulitis for which the claimant may need to undergo a manipulation of the right shoulder under general anaesthetic. No assessment of whole person impairment is provided.

   ·        Various reports by Professor George Murrell, shoulder surgeon, to Dr Douaihy. Professor Murrell comments on problems arising from a right rotator cuff repair, performed by another surgeon, following the motor accident. Professor Murrell recommended arthroscopy, capsular release and acromioplasty, for which he sought the insurer’s approval.

   ·        Report dated 15 November 2020 by Dr Philip Craig, gastroenterologist, to Dr Douaihy, commenting on exacerbation of the gastrointestinal symptoms following ingestion of pain killers after rotator cuff surgery. Dr Craig recommended a gastroscopy and a colonoscopy.

   ·        Various reports from Dr Wassim Rahman, gastroenterologist, to Dr Douaihy. Dr Rahman performed a gastroscopy which demonstrated mild to moderate erosive gastritis. Dr Rahman also performed a colonoscopy and removed benign polyps. Dr Rahman opined that the erosive gastric changes are most likely due to the combination of medications the claimant was using to control his right shoulder pain.

   ·        There are reports of various diagnostic scans which add little to the material already summarised.

   ·        Further submissions dated 19 October 2023 relating to causation and apportionment of injuries to the claimant’s cervical spine, right shoulder and stomach. In relation to the right shoulder, the claimant notes that a full thickness tear of the right rotator cuff was disclosed by a MRI scan performed on 20 September 2019, about six weeks after the motor accident. The claimant notes that all prior radiology (ultrasounds), showed that the rotator cuff was intact. Reference is made to prior clinical notes by Dr Douaihy confirming that absence of anything sinister in the right shoulder. Submissions are made in relation to the assessment of the cervical spine. Submissions are made that the claimant’s current stomach condition results from the post-accident administration of Ibuprofen and Naproxen. Submissions are made regarding the claimant’s prior history of reflux and the absence of reference in the clinical notes to any gastrointestinal problems following Dr Craig’s treatment in April 2016 up to the date of the motor accident. Submissions are made regarding Medical Assessor Truskett’s state of knowledge regarding the claimant’s treatment by Dr Craig after the motor accident.

2. The insurer relied upon the following material:

   ·        insurer’s submissions dated 5 May 2023 for review application.

   ·        Insurer’s further submissions dated 13 March 2023 in Reply to claimant’s submissions. These submissions relate to Dr Vickery’s opinion which is not relevant to the current medical dispute.

   ·        Certificate of Medical Assessor Philip Truskett.

   ·        Insurer’s submissions dated 14 February 2022 in Reply to application for assessment whole person impairment.

   ·        Claimant’s statement dated 13 April 2021 which traverses his pre-accident employment history, his right shoulder surgery on 10 March 2020, his psychological problems and gastroenterological problems. The claimant describes his pre-existing bursitis in the right shoulder.

   ·        Clinical records of Marrickville Road Medical Centre.

   ·        Clinical records of Medimind.

   ·        Clinical records of Professor Murrell.

   ·        Clinical records of Dr McGurgan, consultant rheumatologist, pre-dating the motor accident.

   ·        Rehabilitation Progress Reports by Marie Belger, occupational therapist, to the insurer.

   ·        Vocational assessment report dated 11 August 2020 by Wendy Lum, rehabilitation Counsellor.

   ·        PEER [TR2] Conferencing Report dated 19 April 2021 by Dr Somnuk Phonesouk, occupational physician, to the insurer, regarding recovery expectation and recommended treatment.

   ·        Report dated 13 September 2021 by Dr Siddarth Sethi, gastroenterologist, to the insurer’s solicitors. Dr Sethi opines that the claimant developed gastroesophageal reflux disease (GORD) and irritable bowel syndrome (IBS), independently of the motor accident, with which there is no causative connection. Dr Sethi says that the GORD pre-dated the motor accident. He does not consider whether or not the claimant’s ingestion of medication post-accident could have exacerbated or aggravated the claimant’s GORD and IBS.

   ·        Report dated 7 October 2021 by Dr Graham Vickery, psychiatrist, which is not relevant to the current medical dispute.

   ·        Report dated 7 January 2022 by Dr Frank Machart, orthopaedic surgeon, to the claimant’s solicitors. Dr Machart gives a diagnosis of rotator cuff disruption in the right shoulder. He does not diagnose overuse in the left shoulder. Dr Machart opines that treatment undertaken was reasonable and necessary. The right shoulder will continue to deteriorate because of progressive cuff arthropathy. Right shoulder replacement is likely. Dr Machart assesses 10% whole person impairment for the right shoulder, from which he deducts 1/5^th for prior degenerative changes, resulting in a net 8% whole person impairment[TR3] . He assesses 0% whole person impairment for healed arthroscopic scars.

RE-EXAMINATION

1. Report from Medical Assessor Margaret Gibson is as follows:

   “RE-EXAMINATION

   Mr Nabil attended as arranged. He was unaccompanied to the assessment. An interpreter was available over the phone.

   Pre-Accident Medical History And Relevant Personal Details

   Mr Nabil married his wife in Egypt in 1991. They have four children, daughters aged 30 and 17 and sons aged 21 and 13. He said his eldest son passed away in 2005. The family live in a villa. His wife also works, she has a PhD and teaches at Sydney University and the University of New South Wales.

   Mr Nabil had completed a degree in Architecture And Design in Egypt. He arrived in Australia in 1995. He worked as a designer for six months and then completed postgraduate studies in design at the University of Technology over two years.

   He was subsequently unable to find an appropriate position, so instead in 2000 he opened a used goods store. He continued his shop for several years, finally closing it in 2003.

   In 2009 he commenced work as a graphic designer with Arkopharma. He worked there for several years. He had started his own design company, and he was working there at the time of the subject accident.

   Following the subject accident, he commenced full-time employment as a public bus driver. He was in this job for about 12 months. He said he had left this role as his subject accident-related right shoulder and neck pains had increased, and he was having difficulty doing the job as a consequence.

   In July this year he started a bus-driving job at the airport. He said this position, although full time, was less of an issue for his shoulder and neck. This was because he had rest periods from driving over the course of his shift, whilst awaiting passengers (flight attendants and pilots) to alight from aeroplanes or arrive at the car park prior to transferring them onto the aeroplane. He added that he feels he may eventually have to leave this job as well due to his symptoms.

   His medical history had included a diagnosis of type 2 diabetes in 2005. He had taken metformin but had subsequently ceased the medication and his diabetes is now diet controlled. There was a surgical history of tonsillectomy and adenoidectomy.

   He denied any prior motor vehicle accidents or workers' compensation claims. Panel review of the general practitioner’s clinical records showed there was a history of a minor motor vehicle accident on 17 July 2017. When asked about this he said that the accident had occurred as he had sun in his eyes. He didn’t recall having sustained any significant injuries to either himself or his vehicle.

   He was then asked about his prior right shoulder condition. He initially said that it had been a minor issue which had resolved over a very short space of time and had been of spontaneous onset from ‘rheumatism’[TR4] . He was asked specifically about the entries in the general practitioner's records, leading up to 31 May 2019 (the last pre-subject accident complaint of right shoulder pain) and the right shoulder ultrasound of 13 October 2017. He said he had a steroid injection to the shoulder and his symptoms had settled over several weeks.

   He volunteered that, prior to the subject accident, he and his wife had hoped to renovate their house. And he planned to do 80 percent of the job himself, as he is a proficient handyman. However, since the accident he had been unable to attempt the work.

   He said the accident also impacted his family and his recreational pursuits. He said that he had stopped swimming and bike riding, and this has impacted the time he spent with his children as he used to take them swimming. He finds he favours his injured right shoulder when driving his car and also the bus at work.

   History Of The Motor Accident

   Mr Nabil had been driving a Toyota Prius 2009 sedan with his seat belt fastened. He had no passengers in the car. His car was hit by a vehicle travelling in the opposite direction, the impact being to his driver side door. He said the car was pushed about 10 metres and hit the median strip and then the kerb.

   He felt that his right arm was jolted in the impact. There was immediate right shoulder and neck pain. He had been unable to get out of the car and had to wait for the tow truck driver to arrive with a crowbar. He had also injured his right leg and remembered he was having difficulty walking at the scene.

   He was assessed on site by an ambulance officer and advised the if his symptoms did not resolve over the next few days he should visit his general practitioner.

   His car was towed and eventually written off.

   Progress History

   Mr Nabil's neck and right shoulder symptoms had failed to improve, so he consulted his regular general practitioner, Dr Sarkis Douaihy.

   He was later referred to Dr Maniam, an orthopaedic surgeon, who he had first visited on 26 August 2019. He was referred for an MRI scan of the right shoulder and this had confirmed a right rotator cuff tear.

   He had then had physiotherapy treatment. He eventually came to a right rotator cuff arthroscopic repair which was performed by Dr Maniam on 13 March 2020. It seems this was a fairly protracted procedure. And, unfortunately, after about six weeks and having had post-operative physiotherapy, his right shoulder was no better.

   He had then sought a second opinion from Professor George Murrell, seeing him on 24 February 2021. The doctor had noted that despite there being an intact dermal graft, the ultrasound demonstrated a rotator cuff (supraspinatus tear/defect) and also that there was a prominent bony insertion to the patch which was impinging and causing pain.

   On 26 May 2021, Prof Murrell had recommended arthroscopy, capsular release and acromioplasty.

   Gastrointestinal condition

   Mr Nabil said that whilst he had had suffered with gastro-oesophageal reflux prior to the subject accident, he had been asymptomatic for several years leading up to the accident.

   Then, 3-4 months post-accident he had started to experience increasing symptoms of gastro-oesophageal reflux. He consulted Dr Philip Craig on 15 November 2020. The doctor had noted Mr Nabil had suffered an exacerbation of his symptoms with retrosternal burning consistent with reflux and colicky abdominal pain. At that stage he was taking ibuprofen twice per week and pantoprazole intermittently. Gastroscopy was recommended.

   On 11 December 2020, he visited Dr Wassim Rahman. The doctor had noted that Mr Nabil was taking a cocktail of analgesics including ibuprofen, OxyContin, naproxen and Panadeine Forte and was reporting acid reflux and heartburn and constipation with straining.

   Dr Rahman performed a gastroscopy and colonoscopy on 17 December 2020. The colonoscopy had demonstrated three small colonic polyps. but no other abnormality. The gastroscopy had revealed mild flat erosive gastritis in the gastric body and antrum.

   Mr Nabil advised that there are plans to repeat the gastroscopy in three months' time.

   Current Treatment

   Mr Nabil takes Somac as required for reflux, generally 3-4 times per week. He had last taken the medication yesterday. Alternatively, he would have some cold milk, as this also helps with his symptoms.

   He had been taking Cymbalta, an antidepressant, but this was ceased earlier this year. He said he alternates paracetamol and ibuprofen; he had taken two ibuprofen this morning, so taking paracetamol 50 percent of the time, ibuprofen 50 percent of the time. There was no other treatment.

   Proposed Treatment

   Mr Nabil said that Prof Murrell had said that he may require a shoulder arthroplasty in the future.

   Current Symptoms

   Mr Nabil described predominantly right-sided neck pain which extends to the back to his head. He finds he needs to ‘crack’ [TR5] his neck at times to improve mobility and reduce pain.

   The neck pain radiates to the upper back. There is some left-sided neck pain but this is not nearly as severe or frequent as on the right side.

   There is a constant dull pain over the right shoulder, with frequent more severe exacerbations, particularly relating to him making sudden movements with the arm, or if he lies on that side in bed. He rated the pain at 7/10 today, but it can reach 10/10 severity (zero being no pain and ten being severe pain). He indicated the anterior and lateral aspect of the shoulder as the site of the pain. He finds he cannot push or pull with his right arm due to the shoulder pain.

   In relation to his gastrointestinal complaints, there is an intermittent burning discomfort of variable intensity and frequently acid reflux into the back of this throat. At times there is cramping or spasm-like discomfort in the epigastrium. He suffers with constipation every few days, but doesn’t take any specific medication for this.

   PHYSICAL EXAMINATION

   Mr Nabil weighed 79kg. He spoke competent English, rarely needing the assistance of the interpreter. He had a normal gait.

   On examination of the cervical spine, neck flexion and extension were to three-quarters normal range. Lateral flexion was to normal range bilaterally. Rotation was to three-quarters normal range bilaterally. There was no muscle spasm or guarding, and no asymmetry of movements.

   On examination of the upper limbs, circumferential measurements were consistent with right hand dominance.

   Arms measuring 30cm, 10cm above the olecranon, right forearm measuring 28cm, left arm measuring 27cm, 10cm from the olecranon.

   There was normal power and reflexes bilaterally. There was mildly reduced sensory appreciation affecting the entire right upper limb in a non-dermatomal fashion.

   On examination of the shoulders, there are eight well-healed arthroscopy ports over the right shoulder. He was asked to provide his best effort and the examiner was confident that best effort was being employed. Active shoulder movements were as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	60° 60°	180°
Extension	30° 40°	50°
Internal Rotation	50 60°*	80°
External Rotation	45 50°*	80°
Abduction	60° 65°	180°
Adduction	0° 5°	50°

*The internal and external rotation could not be measured with arms at 90 degrees due to his reduced range of movement. Movements were recorded at maximal range and with elbows at side.

He indicated the variability was due to pain, and in fact movements could not be repeated a third time because of the reported discomfort.

On examination of the abdomen, there was mild epigastric tenderness. He had a paraumbilical hernia. There were no masses felt. There was no rebound or guarding.

SUMMARY AND OPINION

Mr Nabil is a 64-year-old man who was involved in the subject accident on 10 August 2019.

The Panel were satisfied that Mr Nabil had sustained injury to his neck and right shoulder, and upper digestive tract, the latter secondary to analgesic ingestion. This was because there was contemporaneous evidence of injury to his neck and right shoulder. In particular, there were early complaints made to the treating general practitioner, Dr Douaihy on 12 August 2019, so two days after the subject accident. The doctor had recorded ‘…he was taken out of the car he felt pain on the R shoulder and to a lesser extent on the L neck pain, headaches….[TR6] ’. He was then referred for investigation of neck and right shoulder. The ultrasound of 19 August 2019 had demonstrated the full thickness supraspinatus tear of the right shoulder, which had then necessitated the surgical treatment.

There had been later onset of gastrointestinal symptoms relating to his consumption of anti-inflammatory agents. Endoscopy had revealed erosive gastritis. Prior gastroscopy of 30 November 2016, following treatment and prior the subject accident, was normal. There were then no digestive complaints until after the subject accident.

Impairment

Cervical [Cervicothoracic] spine

There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were no clinical findings as detailed in Table 6.7, Motor Accident Guidelines [1/4/23]. Thus in reference to these guidelines the cervical spine injury would be assessed at DRE Impairment Category I, thus zero percent permanent WPI.

Right shoulder

Movements were measured as indicated below. Total upper extremity impairment (20%) was calculated with reference to Chapter 3, Fig 38, 41, 44, AMA 4 and then converted to 12% Whole Person Impairment using Table 3, p 20, AMA 4.

Shoulder Movements	Active ROM Measured RIGHT	UEI%
Flexion	60° 60°	8
Extension	30° 40°	1
Internal Rotation	50 60°*	2
External Rotation	45 50°*	1
Abduction	60° 65°	6
Adduction	0° 5°	2

The Motor Accident Guidelines [1/4/23] state at s6.31 that ‘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[TR7] .’

Assessor Truskett’s findings of 180 degrees abduction and 90 degrees internal rotation were not comparable to those of other examiners, including the review panel medical assessor. The latter was satisfied that the range of motion demonstrated on the day of the examination was consistent and showed best effort.

The Panel further notes that the active range of motion in the various planes reported by Assessor Truskett would not result in 21% UEI (upper extremity impairment) as he reported, but rather 9% UEI, which raises the possibility that typographical error in the recording of active ROM by the Assessor has occurred. The Panel notes there was no upper extremity work sheet appended to the certificate.

Mr Nabil had prior history of right shoulder symptoms, albeit maintaining these had resolved by the time of the subject accident. However, on reviewing the available clinical notes, there was no objective evidence that would permit calculation of pre-existing permanent impairment of the shoulder at the time of the subject accident. Therefore no deduction can be made.

Digestive system

The Motor Accident Guidelines [1/4/23] states at s6.247 that ‘Upper digestive tract disease caused by the commencement and ongoing use of anti-inflammatory medications must be assessed as 0-2% WPI class 1 impairment according to Table 2 (page 239, AMA4 Guides). Upper digestive tract disease caused by the use of anti-inflammatory medications resulting in severe and specific signs or symptoms must be assessed as a class 2 impairment according to Table 2 (page 239, AMA4 Guides).[TR8] ’

The disease was not severe, as shown on endoscopy. He does not require continuous treatment, weight is maintained and there is no surgical sequalae. Therefore the Panel concluded 1% WPI for the digestive system.

The combined whole person impairment was 12% whole person impairment for the right shoulder and 1% whole person impairment for the digestive system. Hence a total whole person impairment of 13%.”

FINDINGS

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

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

2. The Review Panel is not required to choose between competing medical opinions and is require to form its own opinion.[6] The Medical Assessors have explained the basis for their assessments, which are different from those provided by other examiners, in some respects. In relation to abduction and internal rotation of the right shoulder, the Review Panel notes that the findings made by Medical Assessor Truskett are out of keeping with those of all other reviewers, including the Review Panel. The Review Panel has formed views in relation to the causation of the claimant’s gastrointestinal disease which is different to the views expressed by Medical Assessor Truskett and Dr Sethi. The reasons for that divergence have been explained.

   [6] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Ltd v March [2021] NSWCA 31.

3. The medical assessment of the permanent impairment is made at the time of the examination. In that respect, the previous assessments are somewhat out dated, and do not reflect symptomatology.

CONCLUSION

1. The Review Panel concludes that the motor accident could have caused the cervical spine soft tissue injury as a matter of medical determination.

2. The Review Panel concludes that the motor accident did cause the cervical spine soft tissue injury as a matter of factual non-medical determination.

3. The Review Panel concludes that the motor accident could have caused the right shoulder rotator cuff tear as a matter of medical determination.

4. The Review Panel further concludes that the motor accident did cause the right shoulder rotator cuff tear as a matter of non-medical determination.

5. The Review Panel concludes that the motor accident could have caused erosive gastritis in the upper digestive tract as a matter of medical determination.

6. The Review Panel further concludes that the motor accident did cause the erosive gastritis in the upper digestive tract as a matter of factual non-medical determination.

7. For these reasons, the Review Panel concludes that the certificate by Medical Assessor Philip Truskett on 4 April 2023 should be revoked. A new certificate appears at the commencement of these Reasons.

[TR1]As abbreviated above

[TR2]Write in full in first instance

[TR3]Has not been abbreviated and written in full throughout the decision.

[TR4]Emphasis in original / emphasis added? Must be noted...

[TR5]Emphasis in original / emphasis added? Must be noted...

[TR6]Emphasis in original / emphasis added? Must be noted...

[TR7]Emphasis in original / emphasis added? Must be noted...

[TR8]Emphasis in original / emphasis added? Must be noted...