Insurance Australia Limited t/as NRMA Insurance v Hasoon
[2024] NSWPICMP 833
•6 December 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Hasoon [2024] NSWPICMP 833 |
| CLAIMANT: | Wameidh Hasoon |
| INSURER: | Insurance Australia Limited t/as NRMA |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | David Gorman |
| DATE OF DECISION: | 6 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical review of certificate of Medical Assessor (MA) Gothelf; the claimant suffered injury in a motor vehicle accident on 23 July 2022; the dispute related to the assessment of whole person impairment (WPI) of cervical spine, thoracic spine, lumbar spine and both shoulders; MA Gothelf assessed 25% WPI; Held – significant pain behaviours; no organic basis for presentation; claimant sustained soft tissue injury to cervical spine, to thoracic spine and to lumbar spine; each assessed as DRE I or 0% WPI; injury to each shoulder due to referred pain from cervical spine as per Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd; due to inconsistencies assessed by way of analogy on basis of swelling of the acromioclavicular joint; left shoulder assessed at 2% WPI; right shoulder assessed at 3% WPI; certificate of MA Gothelf revoked; WPI assessed at 5%. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Todd Gothelf dated 2 June 2024 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment that is not greater than 10% and which is 5%: · cervical spine – soft tissue injury; · thoracic spine – soft tissue injury; · lumbar spine – soft tissue injury; · left shoulder – soft tissue injury secondary to cervical spine injury, and · right shoulder – soft tissue injury secondary to cervical spine injury. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 23 July 2022 Mr Wameidh Hasoon (the claimant) was driving his motor vehicle. Whilst it was stopped at a red light the insured vehicle collided with the rear of his motor vehicle (the accident).
Mr Hasoon was 43 years of age at the date of accident and is now 45 years of age.
Mr Hasoon has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Hasoon under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Hasoon as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment in respect of the claimant’s physical injury was referred to Medical Assessor Gothelf. He issued a certificate dated 2 June 2024.
DOCUMENTS CONSIDERED BY THE REVIEW PANEL
The Review Panel (Panel) issued a Direction to the parties on 5 August 2024. The Panel noted the insurer had uploaded an indexed and paginated bundle of documents on 21 June 2024. The insurer’s bundle was paginated from pages 1 to 187 (insurers bundle).
The Panel directed the claimant to upload an indexed, paginated bundle of documents. In response to this Direction on 28 August 2024 the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 9 (claimant’s bundle).
Whilst not included in the claimant’s bundle the Panel notes the claimant uploaded to the portal submissions dated 12 July 2024 in reply to the insurer’s application for review.
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]
[2] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the 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.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
CERTIFICATE OF MEDICAL ASSESSOR GOTHELF
The injuries referred to Medical Assessor Gothelf for assessment as to permanent impairment were listed as follows:
· cervical spine – soft tissue/disc injury/radiculopathy;
· thoracic spine – soft tissue/disc injury/radiculopathy;
· lumbar spine – soft tissue/disc injury/radiculopathy;
· right shoulder – soft tissue/secondary (Nguyen principle)/tear, and
· left shoulder – soft tissue/secondary (Nguyen principle)/tear.
Medical Assessor Gothelf issued a certificate dated 2 June 2024.[3]
[3] Insurer’s bundle p 16
Mr Hasoon reported a gym injury on 20 November 2019 causing injury to the right hand and both knees. He otherwise denied any problems with his neck, back or both shoulders prior to the accident. He was not employed at the time of the accident.
Medical Assessor Gothelf reported Mr Hasoon was not able to stand without support due to his pain. He also noted there were no walking aids present. He reported Mr Hasoon weighed 137kg and was 182cm in height. He could not sit in the chair provided and had to sit on the edge of the bed. He required help from his daughter to remove his shirt and shoes and socks and was in moderate apparent distress. Mr Hasoon reported severe pain in the cervical, thoracic and lumbar spine and pins and needles in both arms and both legs.
On examination of the cervical spine, he found no muscle spasm but there was positive guarding. Range of movement was restricted to ¼ in all directions but there was no asymmetrical loss of motion.
On examination of the thoracic spine Medical Assessor Gothelf found restricted range of motion to ¼ in all directions but no asymmetrical loss of motion. He reported tenderness to palpation along the left and right paraspinal muscles but no muscle guarding or spasm.
On examination of the lumbar spine, he found restricted range of motion to ¼ in all directions but no asymmetrical loss of motion. Mr Hasoon reported tenderness to palpation along the left and right paraspinal muscles. He observed muscle guarding but no spasm.
In the upper extremity Medical Assessor Gothelf reported power, reflexes, circulation, sweat cover, colour and temperature of both upper limbs were normal and equal. There was reduced sensation of both arms and hands to light touch and pin prick in a non-dermatomal distribution. There was no wasting or swelling of the upper limbs.
He reported active range of motion (ROM) of both shoulders as follows:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 90° 80° Extension 30° 30° Adduction 20° 20° Abduction 90° 90° Internal Rotation 70° 70° External Rotation 30° 30°
On assessment of the lower extremity Medical Assessor Gothelf observed the claimant’s poor mobility with a slow and difficult gait. He reported power was 5/5 and muscle tone was normal. Sensation was decreased to light touch and pin prick in both legs in a non-dermatomal distribution. Babinski test caused down-going toes. Range of motion was limited but symmetrical. He reported positive symptoms with straight leg raising but no nerve root tension signs.
Dr Gothelf assessed a 5% whole person impairment (WPI) of the cervical spine, 0% WPI for the thoracic spine and 5% WPI for the lumbar spine. He assessed 8% WPI for the right upper extremity and 10% WPI for the left upper extremity based on the principle enunciated in Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd resulting in a total WPI of 25%.[4]
[4] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
REVIEW PROCEDURE
The insurer has sought a review of the medical assessment of Medical Assessor Gothelf.
The application was lodged on 21 June 2024 within 28 days of the date on which the Certificate of Medical Assessor Gothelf was made available to the parties.[5]
[5] Section 7.26(1)(b) of the MAI Act.
On 22 July 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Panel.[6]
[6] Section 7.26 of the MAI Act.
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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 24 October 2024 the Panel agreed an examination was necessary.
THE EVIDENCE
Other medical assessment certificates
Certificate of Medical Assessor Kenna
Medical Assessor Kenna issued a certificate dated 15 November 2023 in which he certified the following injuries caused by the accident were threshold injuries for the purposes of the MAI Act:
· cervical spine – soft tissue injury;
· thoracic spine – soft tissue injury;
· lumbar spine – soft tissue injury;
· left shoulder – soft tissue injury, and
· right shoulder – soft tissue injury.[8]
[8] Insurer’s 4 June bundle p 20.
Medical Assessor Kenna reported Mr Hasoon presented with a massive physical presentation noting he had obviously been into body building over his lifetime. He reported during most of the assessment Mr Hasoon was fairly non-cooperative and just stood and leant against the couch.
Medical Assessor Kenna was unable to establish any definable pathology and considered that any initial soft tissue injury had since resolved. In his view the overall current condition was not consistent with the alleged injuries and disabilities. He considered the claimant’s prognosis to be poor noting he presented with a high level of functional disability.
Certificate of Medical Assessor Gerald Chew
In a certificate dated 3 October 2023 Medical Assessor Chew diagnosed a persistent depressive disorder which was not a threshold injury for the purposes of the MAI Act.
Certificate of Medical Assessor Sidorov
Medical Assessor Sidorov provided a certificate dated 9 May 2024.[9] He certified the accident caused exacerbation of a major depressive disorder which gave rise to a 3% WPI.
[9] Insurer’s bundle p 27.
Medical Assessor Sidorov reported Mr Hasoon left Iraq in 2005 due to the war. He had been shot in the lower right part of his abdomen and had undergone surgery in Iraq. He also reported shrapnel had to be removed from his shoulder after a rocket fell near him. After leaving Iraq he stated in Syria for 14 years before arriving in Australia in 2019. In Australia he sustained an injury in the gym where he dropped weights on his knees. He reported he had been very fit and involved with bodybuilding and training.
Medical Assessor Sidorov reported Mr Hasoon appeared to generally minimise his psychiatric history prior to the accident. He attributed all his depressive symptoms to the accident despite the fact he was seeing Dr Rastogi prior to the accident. Dr Rastogi in a letter dated 8 July 2022 diagnosed an adjustment disorder with anxiety associated with a physical injury.
Medical Assessor Sidorov concluded Mr Hasoon initially developed a major depressive disorder following his injury at the gym and also related to traumatic events he experienced in Iraq and Syria and the difficulty adjusting to life in Australia. He considered as a result of the accident there was an exacerbation of the major depressive disorder. He assessed a 22% WPI but attributed 19% of that impairment to the pre-existing impairment.
Certificate of Medical Assessor John Garvey
Medical Assessor Garvey issued a certificate dated 6 May 2024 in which he certified as follows:
· endoscopic gastric balloon insertion does not relate to the injury caused by the accident and is not reasonable and necessary in the circumstances, and
· ozempic injections relate to the injury caused by the accident and are reasonable and necessary in the circumstances.[10]
[10] Insurer’s bundle p 36.
Medical Assessor Garvey reported Mr Hasoon worked overseas in Iraq and Syra as a personal trainer. He had a master’s degree in physical education from the University of Baghdad. He reported Mr Hasoon ran a gym for 14 years in Syria. He came to Australia in 2019 but has not worked after sustaining injury to his legs six months after his arrival.
Medical Assessor Garvey reported Mr Hasoon received assistance from his sister, a nurse and from niece and nephew with housework, cooking and washing. He also reported he has a paid carer who comes daily. He required help with bathing and elf hygiene, would walk for five minutes and drive a car for 10-15 minutes.
Medical Assessor Garvey reported the claimant was in obvious discomfort and could not sit down. He stood during the history taking and held onto the examination couch. He reported the claimant had severe unbearable back pain and had experienced a weight gain of 50kg.
Medical Assessor Garvey noted Ms Hasoon also suffered from chronic obstructive pulmonary disease, right deep venous thrombosis, obesity, major depression, recurrent cellulitis both legs, gout, lipid disorder and hypertension.
Medical Assessor Garvey reported the current symptoms following the accident were severe unbearable back pain and weight gain of 50kg.
This certificate is also subject to review by the Panel.
Pre-accident treating medical evidence
On 8 July 2022 Dr Richa Rastogi, psychiatrist reported Mr Hasoon sustained an anterior cruciate ligament (ACL) tear that hindered his exercise. He was said to be waiting for surgery and dealing with pain. Dr Rastogi diagnosed an adjustment disorder with anxiety associated with the physical injury.[11]
[11] Insurer’s bundle p 174.
Dr Rastogi reviewed Mr Hasoon on 28 October 2022 and provided a report. Surprisingly there was no mention of the accident.
Application for personal injury benefits
In the application dated 28 July 2022 the claimant described his injuries as “back pain, neck pain, shoulder pain, leg pain/swelling, bruising, back/shoulders”.[12]
[12] Insurer’s bundle p 51.
Post-accident treating medical evidence.
The NSW Ambulance Service attended the scene of the accident on 23 July 2022 and conveyed the claimant to Liverpool Hospital.[13] The report states:
“… pt standing w/bystander, alert and oriented. … At approx. 2000 this pm, pt was involved in a 2 car MVA, pt was driver of stationary vehicle and was rear-ended by another car … Headstrike on steering wheel and car seat. … Seatbelt worn and airbags not deployed. …Nil obvious injuries. Pt c/o generalised pain – pain to C-spine, back, sternum and all limbs. …”
[13] Insurer’s bundle p 97.
On 8 July 2022 Dr Richa Rastogi, psychiatrist diagnosed a major depressive disorder and prescribed Endep.
In a Certificate of capacity/Certificate of fitness dated 1 August 2022 Dr Sabri Hasam of Fairfield Chase Medical and Dental Centre reported the accident on 23 July 2022 caused “right and left leg pain and oedema, bilateral and (cervical and lumbar), generalised body pain, bilateral arms, anterior chest wall, midline vertebral”. He noted pre-existing back pain and bilateral knee pain (meniscal tear).[14]
[14] Insurer’s bundle p 113.
On 9 September 2022 Dr Sanki reported Mr Hasoon’s condition was worse. He appeared depressed, had lost weight and was worried about the musculature in his upper and lower limbs.
In a Certificate of capacity/Certificate of fitness dated 14 September 2022 Dr Hasam recorded; “MVA, right and left leg pain and oedema, neck and back pain, anterior chest wall pain, bilateral shoulder pain”.
In a Certificate of capacity/Certificate of fitness dated 14 November 2022 Dr Magdy Girgis of Royale Medical Centre provided the following diagnosis; “severe neck, back, shoulders associated with tingling sensation hands after MVA on 23.08.2022. MRI (Multi-level C + L spines disc bulge – grade 1 spondylolisthesis L4 on L5”.[15]
[15] Insurer’s bundle p 121.
Mr Hasoon commenced physiotherapy treatment with Rehab Solutions following an assessment on 5 October 2022. He reported pain in the neck and lower back and chest and arms. Physiotherapist Mr Lau diagnosed severe whiplash, cervical and lumbar discogenic pain with referred pain/symptoms into the limbs. It was reported the claimant frequently moved position because it was painful for him stay in a stationary position. He was unable to perform a single leg stance. He had to use both hands on his knees or arm rest to push himself up.
On 27 March 2023 Dr Sanki reported severe pain in all his body, affecting his spine, upper limbs and lower limbs. He put the claimant on an Endone trial and recommended he continue to consult his psychiatrist Dr Rastogi.
On 20 April 2023 Dr Sanki reported Mr Hasoon was suffering from severe pain in the palms, the thumbs and metacarpophalangeal joints. He could not walk long distances due pain in the heels.
On 29 May 2023 Dr Sanki administered an injection of Tramol 100mg for severe back pain.[16]
[16] Insurer’s bundle p 169.
Dr Andrew Kanawati saw the claimant on 17 July 2023.[17] He reported the MRI scan revealed multilevel spinal stenosis. He reported congenitally narrow pedicles predisposing him to severe spinal stenosis occurring at multiple levels L3/4, L4/5 where there was also a subtle spondylolisthesis and mild spinal stenosis at L5/S1. He reported severe neuropathic discomfort in both legs and lower back pain. He recommended surgery subject to weight loss.
[17] Insurer’s bundle p 79.
On 4 August 2023 Dr Antoine Sanki reported Mr Hasoon continued to experience moderate pain. Noting his request for gastric stapling to help him lose weight had been refused he recommended Ozempic injections for weight loss.[18]
[18] Insurer’s bundle p 77.
On 11 August 2023 Dr Sanki referred to the report of Dr Kanawati who recommended an ideal weight for the claimant to achieve before he could undergo surgery would be 100kg. noting Mr Hasoon weighed 135kg Dr Sanki sought approval from the insurer to undergo gastric balloon insertion.[19]
[19] Insurer’s bundle p 78.
Imaging
CT lumbosacral spine, 16 August 2022 – the report concludes:
“There is canal stenosis at L4-5 with possible encroachment on the left nerve root. Degenerative facet joint changes also present. The patient may benefit from CT guided facet joint and epidural injections in the appropriate clinical setting”.
MRI cervical spine and lumbar spine, 4 October 2022[20] – the report concludes:
“Severe narrowing right exit foramen at C4/5 level and moderate to severe narrowing both exit foramen at C5/6 and C6/7 levels. Severe canal stenosis at C5/6 and C6/7 level. No myelomalacia change evident.
Severe narrowing both exit foramen at L4/5 level and moderate narrowing left exit foramen at L5/S1 level. Moderate canal stenosis at L4/5 level secondary to anterior and posterior causes. Grade 1 spondylolisthesis secondary to facet joint degenerative change.”[20] Insurer’s bundle p 105.
Bone scan, 11 October 2022
“Features of degenerative endplate changes in lower cervical spine and features of facet joint arthropathy in cervical and lumbar spine.”
MRI lumbar spine, 8 June 2023[21] – the report concludes:
“Broad-based shallow left posterolateral disc protrusion at L4/5 associated with a grade 1 anterolisthesis due to facet arthrosis. This results in moderate to high-grade left lateral recess stenosis with some compression of the descending L5 nerve root. No further disc protrusions.
Asymmetric disc bulge towards the right is also seen at L3/4 approaching on the descending right L4 nerve root though no definite impingement is seen at this level. No foraminal neural impingement throughout the lumbar spine.”
Medico-legal evidence
[21] Insurer’s bundle p 110.
Dr T Mastroianni, occupational physician
Dr Mastroianni assessed the claimant and provided two reports dated 14 September 2023. He reported Mr Hasoon was a difficult historian and had psychological issues. He complained of constant neck pain, back pain, shoulder pain, knee pain and ankle pain. He reported pain in both legs, pins and needles and pain in the wrists and pins and needs in the feet. He reported difficulties walking.
On examination Dr Mastroianni reported Mr Hasoon had a muscular physique consistent with one who did body building. He reported Ms Hasoon stood leaning on the couch as he was uncomfortable sitting. He reported Mr Hasoon walked with a wide based gait, stooped posture and shortened stance. Mr Hasoon said he used a walking stick but did not have it with him.
On examination Dr Mastroianni reported the claimant’s spinal movements were very restricted and he noted on casual observation that as he moved onto the couch Mr Hasoon’s spinal movements were still very restricted and there was dysmetria.
Dr Mastroianni concluded Mr Hasoon sustained injuries to the neck, back and shoulders and exacerbated pre-existing injuries of the knees and ankles. Dr Mastroianni noted he could not see any evidence which demonstrated Mr Hasoon had aggravated the pathology to his knees and ankles arising out of the 2019 gym accident.
Dr Mastroianni said in his opinion the claimant was not a surgical candidate for injuries to the cervical or lumbar spine. Dr Mastroianni noting tenderness and dysmetria found the claimant met the diagnosis-related estimate (DRE) cervical category II and assessed 5% WPI. Similarly, he assessed 5% WPI for the lumbar spine, noting tenderness and dysmetria. He found a 10% WPI of the right shoulder and 8% WPI of the left shoulder.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 21 June 2024.[22]
[22] Insurer’s bundle p 2.
The insurer notes Medical Assessor Gothelf failed to put to the claimant the inconsistency between his standing and walking capacity and the lack of walking aids present. The insurer notes an Allied Health Recovery Request (AHRR) dated 6 October 2022 indicates a walking capacity of 10 minutes.
The insurer notes that in accordance with Table 6.8 of the Guidelines non-verifiable radicular complaints are symptoms (for example, shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root but there are no objective clinical findings of dysfunction of the nerve root (for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes). The insurer submits that Medical Assessor Gothelf failed to provide sufficient reasons to support a finding of non-verifiable radicular complaints, as defined under the Guidelines in the cervical and lumbar spines.
The insurer submits that the Medical Assessor failed to provide reasons for the finding of causation of the shoulder tears.
The insurer submits that Medical Assessor Gothelf failed to demonstrate that the shoulder restriction range of motion stems from the cervical spine injury as required for the application of the Nguyen principle. The Court of Appeal in Dominice v Allianz Australia Insurance Ltd[23] addressed the principle set out in paragraphs [99] and [100] of Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd[24] stating at [56]:
“The characterisation of this paragraph as a statement of ‘principle’ is, in my opinion, an overstatement; it is a statement of fact. It simply acknowledges what medical practitioners (and legal practitioners and judges who engage in the world of personal injury litigation) have come to know, that injury to one part of the body can cause pain to other parts of the body. It remains necessary, in any individual case, to determine whether, in the circumstances of the individual case under consideration, the secondary injury is caused by or related to the primary injury…”
[23] Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171.
[24] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
The insurer also argued that Medical Assessor Gothelf failed to address stabilisation where the claimant had undergone a procedure for his heart three weeks prior to the assessment. The insurer submits the claimant’s active range of motion may have been impacted by deconditioning following the cardiovascular surgery.
The insurer submits the Medical Assessor failed to consider whether the pre-existing and ongoing lower limb injuries were a material factor in the presence of impairment in the lumbar spine, rather than any discrete lumbar spine injury sustained in the accident.
The insurer submits the Panel would have regard to the following additional matters:
(a) Medical Assessor Sidorov reported Mr Hasoon generally minimised his psychiatric history prior to the accident, attributing all his depressive symptoms to the accident despite the fact he was seeing Dr Rastogi prior to the accident;
(b) prior to the accident the claimant was shot in Iraq and his right shoulder was injured by shrapnel when he was close to an explosion;
(c) after sustaining significant lower limb injuries in the gym accident, the claimant did not return to work or gym or other recreational activities prior to the accident;
(d) the claimant has failed to particularise the injuries sustained in the gym accident, any disabilities sustained as a result of this incident or the possible existence of any proceedings;
(e) the claimant alleged significant weight gain and consequently gastric surgery as a result of the accident, however, medical records do not evidence any meaningful weight gain following the accident, nor any meaningful change in the claimant’s level of activity;
(f) Dr Kawanati on 17 July 2023 in part attributed the weight gain to heavy alcohol drinking;
(g) the radiological findings to the cervical and lumbar spines do not support a finding of traumatic changes;
(h) the claimant’s present complaints and impairment are wholly attributable to the pre-accident degenerative findings and a progression of same;
(i) the allege restriction in the shoulder range of motion is not substantiated by medical records where there is no evidence of pathology, including any tear caused by the accident;
(j) the claimant has not sought treatment or imaging to either shoulder;
(k) there is a lack of muscle wasting that would be expected if the alleged ranges of motion were permanent and well stabilised, and
(l) the reduced ranges of motion of both shoulders is inconsistent with the mechanism of accident, even if it were accepted the seatbelt caused or aggravated underlying degenerative pathology in both shoulders to similar extents.
Claimant’s submissions
The claimant provided submissions dated 12 July 2024 in response to the insurer’s application for review.
The claimant submits there was no failure by Medical Assessor Gothelf to put to him inconsistencies. The claimant submits Medical Assessor Gothelf was entitled to accept the claimant’s explanation that he could not stand without support due to pain. In terms of walking capacity, the claimant submits reliance on a AHRR issued in October 2022 reflecting a walking capacity of 10 minutes does not support inconsistency, noting it would be expected there would be some fluctuation in the claimant’s condition over a period of years. In any event it is submitted a standing limit of 10 minutes still suggests significant pain and disability.
The claimant submits the Medical Assessor accurately assessed DRE II impairment in the cervical spine where he found the presence of muscle guarding. It is submitted there is no error in the finding by the assessor of non-verifiable complaints.
The claimant submits that Medical Assessor Gothelf found impairment in the shoulders based on direct injury to the shoulders, noting the ambulance notes and claim form indicated injury to the neck and lower back and shoulders.
In relation to stabilisation the claimant submits the submission made by the insurer is speculative and not supported by any evidence. Further the claimant submits there is no evidence to suggest the assessor was required to address a speculative link between the previous leg injury and the lumbar spine injury, noting he found a 5% WPI of the lumbar spine and did not attribute any impairment to a pre-existing condition.
MEDICAL EXAMINATION
Mr Hasoon attended the medical suites of the Personal Injury Commission where he was assessed by Medical Assessor Gorman. Medical Assessor Gibson was connected by MS Teams as arranged. Also present at the assessment were the claimant’s niece and an Arabic interpreter.
Mr Hasoon advised that he was unable to sit down and therefore remained standing through most of the assessment, which lasted over an hour.
Mr Hasoon did not bring any imaging with him for review by the Panel.
Past medical history
Mr Hasoon maintained that he was in good health prior to the accident although it was noted he had been unable to work soon after arriving in Australia due to a leg injury sustained in a gym. It was also noted from the clinical records that he had been diagnosed with chronic obstructive airways disease. There was a history of right deep venous thrombosis and recurrent cellulitis of both legs, gout, hyperlipidaemia and hypertension.
Home circumstances
Mr Hasoon said he arrived in Australia in February 2019.
He lives in a townhouse and is in receipt of the Centrelink pension.
His sister and his niece provide domestic assistance, with shopping and household chores.
Mr Hasoon said that his nephew comes over and helps him dress and undress and have a shower. He has a raised toilet seat in his bathroom.
When asked whether he goes out in a car, he said "Where do you want me to go?". It would seem he rarely if ever leaves the house.
History of the accident
It was noted from the records that Mr Hasoon was a seat-belted driver of a Jeep Cherokee driving along Memorial Avenue, Liverpool on 23 July 2022 at about 8pm. He had stopped at a red light when his vehicle was hit from behind by another car.
Police arrived after the accident and helped him out of his vehicle. The other driver was positive for alcohol on roadside testing.
Mr Hasoon was conveyed by ambulance to Liverpool Hospital where he remained overnight.
The ambulance report from the day of the accident noted there had been head strike on the steering wheel and car seat. He had reported generalised pain, particularly involving the neck, back, sternum and all limbs. He was moving his neck and all limbs independently.
Mr Hasoon had come under the care of his treating general practitioner, Dr Magdy Girgis.
He was referred for physiotherapy and had a limited number of sessions and he also had hydrotherapy treatment.
Mr Hasoon was reviewed by specialist Dr Andrew Kanawati, orthopaedic surgeon, on 17 July 2023, who had commented that the MRI scan had shown multilevel spinal stenosis which was predisposed by congenitally narrowed pedicles, there was a subtle spondylolisthesis and mild spinal stenosis at L5/S1. Dr Kanawati had also noted severe neuropathic discomfort in both legs as well as low back pain, Mr Hasoon was morbidly obese on a background of being a weightlifter, currently weighing 135kg. He added that he was:
"…a surgical candidate and that he does have severe spinal stenosis at multiple levels in the setting of sciatica with neurogenic claudication. He would benefit from surgery but at his current weight he really is not a surgical candidate due to increased surgical and medical complications. I really advised him to undergo weight loss counselling and also the possibility of getting reviewed by a bariatric surgeon. I also think he needs psychological support, psychological review as well as dietician review as it seems like he drinks a lot of alcohol, which probably is not helping his current weight."
He ended by stating that he ideally should weigh 100kg before surgery.
On 27 March 2023 Dr Antoine Sanki reported Mr Hasoon had "severe pain in all his body, which mainly affects his spine, upper limbs and lower limbs” He was put on an Endone trial.
Current complaints
Mr Hasoon said that his "whole body" was aching.
He had neck pain. He added that he "can’t handle this kind of pain." Both ears and both hands felt numb. When asked about his back, he said there was an "electric shock" going through his body.
There was pain extending from hips to legs.
He said due to the pain he spends most of his time sleeping.
He confirmed that he has normal bladder and bowel function.
Current treatment
Mr Hasoon was unable to recall his current medication regime and hadn’t brought any of his medications with him to the assessment. He advised that he had four Endone tablets this morning and generally has two to four Endone tablets daily. On prompting he was able to confirm that he takes 500mg Metformin daily.
Mr Hasoon said he has been using Ozempic 1mg weekly for the last three to four months. He said it had not helped with weight loss. He added that the insurer would not pay for gastric surgery.
When asked about his diet, Mr Hasoon said that he consumes only one meal a day, for example a standard serve of chicken, salad and rice. He said he only drinks alcohol on three days per week. On each of these days, he consumes about a bottle of Scotch. He denied any withdrawal symptoms on days he does not drink. He smokes 20 cigarettes per day. He maintained that his alcohol intake had commenced since the subject accident.
PHYSICAL EXAMINATION
Mr Hasoon is currently aged 45 years and is right hand dominant. He weighed 134kg.
He leant on his niece whenever he took a step. He moved slowly in an out of the examination room leaning on his niece.
However, later in the assessment in order to examine his reflexes, the couch was lowered, and he was encouraged and assisted to take a seat on the examination couch. He had a stocky physique. He was frequently tearful. There was much grimacing, and pain behaviour displayed throughout the physical assessment.
On examination of the cervical spine, neck movements were to ¼ normal range in all planes. There was no muscle spasm or guarding.
On examination of the thoracic spine, he was able to demonstrate movements to ½ normal range in all planes. There was no muscle spasm or guarding.
On examination of the lumbar spine, movements were to ¼ normal range in all planes. There was no muscle spasm or guarding.
On examination of the upper limbs, circumferential measurements did not demonstrate any radicular muscle wasting. Upper limb reflexes were of low amplitude but bilaterally present and equal. There was global sensory impairment of both upper limbs. In summary there were no signs of radiculopathy in either upper limb.
On examination of the shoulders, movements were variable. For instance, on formal testing, only 90° of abduction was obtained on the right side. However, when asked to put his hand on his head, about 120° of abduction could be achieved. Maximal active range was as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
110°
110°
Extension
50°
50°
Internal Rotation
50°
60°
External Rotation
70°
70°
Abduction
90°
100°
Adduction
20°
30°
He reported pain in the neck with shoulder movements, as opposed to localised shoulder pain. When asked about the variability in the range of shoulder movements, both today and in comparison, with previous assessments, he said the pain was worse than before.
On examination of the lower limbs, circumferential measurements showed no radicular loss. Lower limb reflexes were present and equal bilaterally. Motor power was normal and equal.
RADIOLOGY REVIEW
The cervical and lumbar MRI scans are outlined above.
The MRI scan of 4 October 2022 demonstrated significant degenerative disease. There is spinal stenosis but no myelomalacia. While this degenerative disease was likely aggravated by the accident, there are no neurological findings consistent with cervical spinal compression. In the absence of significant imaging findings such as cervical spine compression the Panel does not consider aggravation of the underlying degenerative disease explains the claimant’s inability to walk unaided.
The MRI scans of the lumbar spine of 4 October 2022 and 8 June 2023 demonstrate degenerative disease with some nerve root compression of the left L5 nerve root and right L4 nerve root. There is moderate spinal stenosis. However, the pain reported by Mr Hasoon is widespread and is not limited to regions corresponding with the changes apparent on scanning.
DIAGNOSIS AND CAUSATION
The Panel accepts that the accident could have and did cause or contribute to the injuries alleged by the claimant to his cervical, thoracic and lumbar spine having regard to the following:
(a) his complaints to the ambulance service of pain in the back and the cervical spine;
(b) the inclusion of back and neck in the Application for personal injury benefits dated 28 July 2022;
(c) the Certificate of capacity/Certificate of fitness dated 1 August 2022 of Dr Hasam which documented cervical and lumbar and generalised body pain caused by the accident;
(d) the Certificate of capacity/Certificate of fitness dated 14 September 2022 which documented, inter alia, neck and back pain, and
(e) the lack of any evidence of pre-existing pain in either the back or the cervical spine other than the reference by Dr Hasam on 1 August 2022 of pre-existing back pain.
The Panel finds Mr Hasoon had sustained soft tissue injuries to his neck, and his upper and lower back caused by the accident.
In relation to the shoulders the Panel notes Mr Hasoon complained of pain in the right shoulder to the ambulance service and he mentioned shoulder pain in the Application for personal injury benefits dated 28 July 2022 (five days post-accident). The Panel notes the Certificate of capacity dated 14 September 2022 documented bilateral shoulder pain and there was no evidence of any pre-existing shoulder complaints. On examination by Medical Assessor Gorman Mr Hasoon complained of bilateral shoulder pain although the goniometer measurements were widely inconsistent and his presentation most unusual.
It is difficult to differentiate between referred pain and a soft tissue injury to each shoulder. Where a rear end collision is more likely to cause a flexion/extension injury to the cervical spine than injury to both shoulders, the Panel finds, on the balance of probabilities, that the injury to each shoulder is as a result of referred pain from the cervical spine in accordance with the principle enunciated in Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd.[25]
[25] Nguyen v the Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
However, there were significant pain behaviours evident throughout the assessment which the panel was unable to explain on the basis of an organic medical injury/condition.
Indeed, the Panel notes the claimant’s unusual presentation was apparent as early as 9 September 2022 when Dr Sanki reported his condition was worse, he was depressed and had lost weight. On 5 October 2022 physiotherapist Mr Lau reported Mr Hasoon frequently moved position because it was painful for him to stay in a stationary position and he was unable to perform a single leg stance. By 27 March 2023, some eight months post-accident Dr Sanki reported severe pain in all his body and prescribed Endone. He recommended Mr Hasoon continued under the care of his psychiatrist.
The Panel cannot find a physical explanation given the available imaging or on clinical assessment as to why Mr Hasson could not sit, as to why he needed to lean on his niece whenever he walked and why he had variable and limited shoulder movements.
The Panel believes that the explanation for his unusual presentation is “somatisation” of his psychological distress in association with the deconditioning and “fear avoidance” behaviours associated with his chronic pain. There is not a physical explanation for his gross limitations in spinal movement and shoulder movement.
IMPAIRMENT ASSESSMENT
The spine is assessed under Chapter 3 of the AMA 4 Guides in accordance with the DRE method of assessment.
There are five diagnostic related categories, and a number of indicia provided (see Table 7).
DRE category I which is selected if there are symptoms which may include pain.
DRE category II requires:
“(a) Pain with guarding or
(b) Non-uniform range of motion – dysmetria or
(c) Non-verifiable radicular complaints defined in table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling)
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.”
DRE category III requires radiculopathy. Clause 6.138 of the Guidelines states radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination:
“(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution;
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
DRE categories IV and V are clearly not applicable to this claim.
Cervical spine
The Panel accepts the claimant suffered a soft tissue injury to the cervical spine caused by the accident.
The claimant does not meet the criteria for a DRE III assessment where on examination there was no radiculopathy.
The claimant does not meet the criteria for a DRE II assessment where on examination there was no asymmetry of range of motion, no muscle spasm or guarding and no non-verifiable radicular complaints.
At the time of his examination of the cervical spine, Medical Assessor Gorman found there was pain but there was no dysmetria, no guarding on palpation, no radiculopathy and no non-verifiable radicular complaints in the upper limbs. The claimant is assessed as DRE cervicothoracic category I giving a 0% WPI.
Thoracic spine
The Panel accepts the claimant sustained a soft tissue injury to the thoracic spine. At the time of his examination of the thoracic spine Medical Assessor Gorman found no muscle spasm, guarding or asymmetry. There were no spinal fractures. There were no non-verifiable radicular complaints. The claimant is assessed as DRE thoracolumbar category I giving a 0% WPI.
Lumbar spine
Whilst asked about his back pain Mr Hasoon described an “electric shock” going through his body and he also complained of pain extending from his hips to his legs.
Mr Hasoon was not able to establish the presence of radiculopathy or non-verifiable radicular complaints. Whilst the examination by Medical Assessor Gorman was conducted with great difficulty Mr Hasoon he was not able to establish the presence of muscle spasm, guarding or asymmetry. There were no spinal fractures. On examination of the lower limbs the reflexes were present and equal bilaterally, motor power was normal and equal and there were no symptoms such as shooting pain, burning sensation or tingling which followed the distribution of a specific nerve root.
Medical Assessor Gorman found there was pain but there was no asymmetry of range of motion, no muscle spasm or guarding, no radiculopathy and no non-verifiable radicular complaints. The claimant is assessed as DRE lumbosacral category I giving a 0% WPI.
Shoulders
Medical Assessor Gorman was unable to assess active range of motion of the shoulders where the goniometer measurements were inconsistent and Mr Hasoon’s presentation was unusual, particularly, in the absence of any organic pathology.
Where range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation Clause 6.50(e) of the Guidelines permits a Medical Assessor to use discretion in considering what weight to give other available evidence to determine if an impairment is present.
Accordingly, Medical Assessor Gorman undertook an assessment by analogy. The impairment relates to the restriction of shoulder motion due to neck pain based on the Nguyen principle.[26]
[26] Nguyen [2011] NSWSC 351.
The Panel finds due to pain referral from the neck, there could reasonably be a small impairment of both shoulders akin to the presence of mild acromioclavicular joint (AC) joint synovial hypertrophy.
The Panel assesses the impairment of the left shoulder by reference to mild joint swelling. Table 20, page 59 of the AMA 4 Guides provides 10% joint impairment for mild joint swelling. Table 18, page 56, AMA 4 Guides, provides a maximum WPI of 15% for the AC joint. Ten percent of 15% is 1.5% or 2% WPI after rounding up in accordance with the Guidelines. The Panel finds a 2% WPI for the left shoulder.
The Panel assesses the impairment of the right shoulder by reference to moderate joint swelling. Table 20, page 59 of the AMA 4 Guides provides 20% joint impairment for moderate joint swelling. Table 18, page 56, AMA 4 Guides, provides a maximum WPI of 15% for the AC joint. Twenty percent of 15% is 3% WPI. The Panel finds a 3% WPI for the right shoulder.
The above figures are combined to give 5% WPI in accordance with the Combined Values Chart, AMA 4 Guides page 322.
There is no deduction for any pre-existing or subsequent impairment.
There is no adjustment for the effects of treatment.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Gothelf dated 2 June 2024 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a WPI that is not greater than 10% and which is 5%:
(a) cervical spine – soft tissue injury;
(b) thoracic spine – soft tissue injury;
(c) lumbar spine – soft tissue injury;
(d) left shoulder – soft tissue injury secondary to cervical spine injury; and
(e) right shoulder – soft tissue injury secondary to cervical spine injury.
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