Insurance Australia Limited t/as NRMA Insurance v Hassoun

[2024] NSWPICMP 587

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v Hassoun [2024] NSWPICMP 587 

CLAIMANT:

Nouril'Dean Moustafa Hassoun

INSURER:

Insurance Australia Limited t/as NRMA Insurance

REVIEW PANEL

GENERAL MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

Shane Moloney

MEDICAL ASSESSOR:

Christopher Oates

DATE OF DECISION:

21 August 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical dispute as to extent of whole person impairment (WPI) arising from injuries caused by motor accident; claimant was the driver of a car with two passengers; claimant’s car was stationary at traffic lights when the claimant’s vehicle was struck in the rear by the insured vehicle at high speed; claimant recalls his whole body being jolted back and forth; claimant’s vehicle was shunted into the middle of the intersection; no airbags were deployed; police attended the scene; claimant believes that the insured vehicle’s driver was charged with possession of drugs; claimant’s vehicle was repaired; claimant does not recall immediate pain at the time; claimant reports experiencing gradually worsening pain in his neck, lower back, right knee and right wrist; insurer admitted liability for the claim; issues as to causation and nature of injuries; Held – 9% WPI found for injuries to cervical spine, lumbar spine and right shoulder; Medical Assessment Certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Certificate issued under s 63 of the Motor Accidents Compensation Act 1999 (the Act)

1.     The Review Panel revokes the certificate of Medical Assessor Nelukshi Wijetunga dated 29 January 2024 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a permanent impairment of 9% and IS NOT GREATER THAN 10%:

·        cervical spine – soft tissue injury;

·        lumbar spine – soft tissue injury, and

·        right shoulder – soft tissue injury.

2.     The following injuries caused by the motor accident have resolved and do not result in permanent impairment:

·        right wrist – soft tissue injury, and

·        right knee – soft tissue injury.

3.     The following injury has been assessed and determined not caused by the motor accident:

·        left shoulder – musculo ligamentous strain/sprain.

As assessment of the degree of permanent impairment of that injury is therefore not required.

STATEMENT OF REASONS

INTRODUCTION

1. Nouril'Dean Moustafa Hassoun (the claimant) was involved in a motor vehicle accident on
   12 June 2016 at Lidcombe (the accident). The claimant was the driver of a late model Toyota Corolla Hatch with two other occupants. They were stationary at traffic lights when the claimant’s vehicle was struck in the rear by the insured vehicle at high speed. The claimant recalls his whole body being jolted back and forth. His vehicle was shunted into the middle of the intersection. No airbags were deployed. Police attended the scene. The claimant believes that the offending driver was charged with possession of drugs. The claimant’s vehicle was repaired. He does not recall any immediate pain at the time. The claimant reports experiencing gradually worsening pain in his neck, lower back, right knee and right wrist.

2. The claimant was working as a full-time teacher at the time of the motor accident. The claimant says that his employment was terminated in 2018 due to the significant amount of sick leave he took because of pain caused by the accident.

3. NRMA (the insurer) indemnifies the owner and/or the driver of the vehicle at-fault for liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accidents Compensation Act1999 (the Act). The insurer admitted liability for the claim.

4. There is a dispute between the claimant and the insurer about the degree of permanent impairment under s 58(1)(d) of the Act.

ASSESSMENT UNDER REVIEW

1. The present application is a review of a medical assessment pursuant to s 63 of the Act. The medical assessment which is the subject of the review was conducted by Medical Assessor Nelukshi Wijetunga who certified on 29 January 2024 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 12% and IS GREATER THAN 10%:

• Cervical spine – Whiplash Associated Disorder
• Lumbar spine and right knee – annular tear and musculo ligamentous strain of lumbar spine
• Right shoulder – soft tissue injury

Medical Assessor Wijetunga found 5% whole person impairment for each of the cervical and lumbar spine, as well as 2% whole person impairment for the right shoulder. Medical Assessor Wijetunga made no adjustment for pre-existing/subsequent impairment, apportionment or treatment effects.

1. Medical Assessor Wijetunga also certified as follows:

The following injuries caused by the motor accident have resolved and give rise to no assessable permanent impairment:

(i)    Right wrist

An assessment of degree of permanent of these injuries is therefore not required.

THE REVIEW

1. The application for review was made by the insurer on 12 February 2024, within 28 days after the parties were issued with the original Certificate of the medical assessment, of which the review is sought.

2. The insurer submitted that the Medical Assessor failed to take into account relevant considerations arising from the expert medico-legal report dated 17 February 2017 by
   Dr Crocker and other documents admitted as late documents. The insurer also submitted that the Medical Assessor failed to provide adequate reasons in relation to her findings on causation. It is the insurer’s case that the claimant at most suffered soft tissue injuries to his cervical spine, lumbar spine and right shoulder in the accident. It further submits that all of those soft tissue injuries resolved within 12 months of the accident. It disputes the persistence of symptoms to the present date. The insurer advocates Dr Crocker’s position that an MRI of the lumbar spine performed on 26 November 2016 shows features that are likely to have pre-dated the accident. The insurer submitted there is no evidence that the claimant sustained any injury to the left shoulder in the accident.

3. The insurer’s review application was opposed by the claimant. It was submitted that Medical Assessor Wijetunga’s assessment satisfied the requisite standards and contained no reviewable error. It was submitted that the Medical Assessor reviewed all of the relevant documentation and correctly calculated whole person impairment. It was submitted that the report of Dr Crocker can be put to one side and that the review application should be dismissed because the medical assessment, reasons and certificate are compliant.

4. President’s delegate Rachel Brittliff issued a Determination of an Application for Review of a Medical Assessment on 4 April 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment is incorrect in a material respect. The basis of that decision was stated to be that Medical Assessor Wijetunga did not refer to the late documents when discussing the evidence before her and did not respond to substantive issues raised by the insurer in its submissions. The President’s delegate was satisfied that Medical Assessor Wijetunga did not meaningfully engage with the material before her. Accordingly, the review application was accepted.

5. The Review Panel is to re-assess all of the injuries referred to Medical Assessor Wijetunga for assessment. Those injuries are as follows:

   (a)cervical spine – musculo ligamentous strain/sprain;

   (b)right knee – musculo ligamentous strain/sprain;

   (c)lumbar spine – L3/L4 and L4/L5 mild posterior annular bulge and posterolateral disc bulge and posterolateral annular tear;

   (d)left shoulder – musculo ligamentous strain/sprain;

   (e)right shoulder – traumatic bursitis, and

   (f)right wrist - musculo ligamentous strain/sprain.

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with Part 3.4 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 60 of the Act and on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).

2. Part 5 of the Personal Injury Commission Act 2020 (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.[1]

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

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]

   [2] Rule 128 of the PIC Rules.

4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned, unless the parties otherwise agree, or the Review Panel otherwise decides.[3]

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

5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

CAUSATION OF INJURY

1. Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.

2. In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:

   [4] [2022] NSWSC 372.

   “…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:

   Causation of injury

   6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the American Medical Association Guides (AMA 4) Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.

   6.6Causation is defined in the Glossary at page 316 of the American Medical Association Guides (AMA 4) Guides as follows:

   ‘Causation means that a physical, chemical or biological 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 judgment.

   6.7There 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.”

MATERIAL BEFORE THE REVIEW PANEL

1. The claimant relied upon the following material which the Review Panel has considered:

   (a)    Claimant’s review submissions dated 5 March 2024 (previously summarised).

   (b)    Personal Injury claim form dated 21 October 2016.

   (c)    Medical Certificate of Dr Abdalla dated 17 June 2016:

   (ii)neck pain radiating to both shoulders;

   (iii)low back pain to thigh and right knee;

   (iv)right wrist pain, and

   (v)anxiety, post-traumatic stress disorder.

   (d)    Report dated 11 April 2019 by Dr Vijay Maniam, orthopaedic surgeon, to the claimant’s lawyers.

   Dr Maniam records that the claimant sustained injuries to the following body parts in the accident:

   (i)cervical spine;

   (ii)right shoulder;

   (iii)right wrist;

   (iv)lumbar spine (delayed), and

   (v)right knee.

   Dr Maniam records the current symptoms as follows:

   (i)cervical spine pain radiating into the shoulders, episodic, of moderate intensity;

   (ii)lumbar spine pain with no evidence of radiation and located in the lower lumbar segment, and

   (iii)right wrist paint.

   He states that the right knee symptoms have regressed.

   Dr Maniam tabulates his findings made upon physical examination of the cervical spine, thoracolumbar spine and the right shoulder. Dr Maniam states that no medical issues were pre-existent and gives the following diagnosis of injuries caused by the accident:

   (i)musculo ligamentous strain of the cervical spine with precipitation of premature degenerative changes;

   (ii)musculo ligamentous strain of the lumbar spine with intervertebral disc bulges at L3/L4 and L4/L5 with no evidence of any neurological compromise, and

   (iii)right shoulder traumatic bursitis.

   Dr Maniam notes that there were no diagnostic studies made available to him.

   Dr Maniam notes that the claimant’s condition had stabilised. He assessed 5% whole person impairment for the cervical spine, 1% whole person impairment for the right shoulder and 5% whole person impairment for the lumbar spine, giving a combined 11% whole person impairment. Dr Maniam made no adjustment for pre-existing or subsequent impairments, nor treatment effects.

   (e)    Clinical notes of NAS Advanced Medical Centre as at 27 January 2017.

   (f)    Updated clinical notes of NAS Advanced Medical Centre as at 16 May 2019.

   (g)    Clinical notes of Masnad Health Clinic as at 16 September 2019.

   (h)    Clinical notes of Primary Healthcare Medical and Dental as at 4 November 2019.

   (i)    Clinical notes of Isra Medical Services as at 8 November 2019.

   (j)    Clinical notes of Dr Nayef Kanawati as at 23 December 2019.

   (k)    Documents produced by Justice Health and Forensic Mental Health Network (various dates).

   The Review Panel requested the clinical notes of the treating general practitioner (GP) since 3 November 2023 when the claimant was released from prison. That material was not provided.

2. The insurer relied upon the following material which the Review Panel has considered:

   (a)Insurer’s submissions in support of review application dated 12 February 2024 (previously summarised).

   (b)Report dated 17 February 2017 by Dr Davis Crocker, occupational physician, to the insurer.

   Dr Crocker records that the claimant, the occupants of his vehicle and the driver of the at-fault vehicle were all known to one another. The driver of the other vehicle was taken to a police station and tested for drug use as she appears to be well-affected. The claimant reported to Dr Crocker that the passengers in his vehicle subsequently developed some symptoms. The claimant reported that he developed headache, right-sided neck pain/stiffness, pain to his lower back and right lower limb, a few hours after the accident. He went on to develop pain to the right shoulder girdle and right wrist.

   Dr Crocker records that the claimant was experiencing daily headaches associated with dizziness, constant variable pain to the right side of the neck, pain extending to the right shoulder girdle and in the region of the right upper anterior chest wall. The claimant also reported frequent intermittent pain to the ulnar side of the right wrist. intermittent pain was reported in the right knee and right leg with weakness and depression. Dr Crocker tabulates his findings upon physical examination. He refers to MRI examination of the cervical spine and lumbosacral spine
   (26 November 2016) and of the right knee (23 November 2016) and the accompanying reports.

   Dr Crocker considers that the claimant sustained acute musculo ligamentous strain injuries to the cervical ad lumbar spine in the accident. He opines that the MRI examination of the cervical spine showed little abnormality and that changes shown in the lumbosacral spine are likely to have pre-dated the accident. Nil abnormality was evident in the MRI examination of the right knee. Dr Crocker thought that facet joint dysfunction may be contributory to the cervical spine complaints and that somatic referred pain from the cervical spine may be contributing to the right shoulder symptoms. He concedes possible soft tissue injuries to the right wrist and right knee. Dr Crocker thought that the clinical presentation was significantly contributed to by fear avoidant behaviours and that the prognosis otherwise would have generally been good. He did not think it appropriate to assess whole person impairment at that time as the claimant’s condition had not stabilised.

3. The insurer relied upon the same clinical records as listed in the claimant’s bundle.

4. Further documents produced by Justice Health and the Department of Communities and Justice.

5. The parties did not update the evidence of their qualified medical experts.

RE-EXAMINATION

1. The claimant was assessed on 3 July 2024 by Medical Assessors Oates and Moloney whose report is as follows:

   “Nouril’Dean Moustafa Hassoun

   VA 12 June 2016

   Mr Hassoun attended the medical suites at PIC on July 3, 2024. He was unaccompanied and was interviewed and examined by Assessor Oates and Assessor Moloney.

   Pre-accident history

   Mr Hassoun stated that he had been working full-time as a high school teacher which had commenced in 2013 at the time of the accident. He had previously graduated with a Bachelor of Science and a Masters of secondary teaching.

   There was a previous injury to the right calf when he was shot in 2012. The bullet apparently went straight through the muscle bulk and subsequently got infected. He gave no reason for this assault but had fully recovered. In 2016 he got married and lives with his wife and 7-year-old son at present. Prior to the accident he was a regular attender at the gymnasium.

   After the accident, his employment was terminated apparently due to excess sick leave which caused him financial difficulties and subsequently debt which led him into dealing drugs and subsequent arrest in 2019. He was sentenced to 5 years jail term and was released after 4 ½ years due to good behaviour in November 2023.

   History of motor accident

   Mr Hassoun was the driver of his car and accompanied by 2 friends and was stationary at an intersection when they sustained a rear collision. The impact pushed his Toyota Corolla forward about 2 car lengths but with no other impact of other cars. He was wearing a seatbelt at the time but airbags were not deployed. He stated that the driver of the other car was a girlfriend of one of his friends in his car, who was chasing them and rammed into the back of their car. She called the police and subsequently got charged with drug possession in her car. Mr Hassoun was able to get out of his car and was checked by the ambulance officer. His own car was subsequently repaired.

   History of symptoms and treatment following the motor accident

   Initially Mr Hassoun had a stiff neck but the next day noted increasing pain in the right side of his neck, right wrist, right shoulder, right low back and right knee. He consulted a local GP Dr Abdalla for the first time, 5 days after the accident who noted pain in the right neck radiating to the shoulders, low back pain to the thigh and right knee and right wrist pain. He was referred for physiotherapy and hydrotherapy and prescribed analgesics and Lyrica. He was also referred to an orthopaedic surgeon Dr Maniam who organised radiological studies.

   In September 2018, his employment as a teacher was terminated due to excessive time off work. He stated that the school was one hour’s drive from home which caused increase in low back pain each way. He then applied for working for the NDIS but there was a prolonged time before this employment started. This led to him becoming depressed with increased debt and as a result, he started selling drugs which led to a jail term starting in 2019 with a final release in November 2023. This was followed by parole restrictions for 6 months. During his jail term, he had worked in a clerical job and gardening but states the low back pain, with referred symptoms to initially the right and then both lower extremities increased due to a poor mattress. He has seen Dr Maniam once since his release from incarceration but has not followed up with any GPs.

   There have been no further injuries or accidents sustained since the motor vehicle accident in 2016 ,apart from a fight with a fellow prisoner resulting in  facial injury, knuckle and knee abrasions, from which he fully recovered.

   At present he lives in a granny flat, adjacent to a house owned by his in-laws, with his wife and son. He states that the families have been very supportive.

   Current symptoms

   The worst pain is in the lower back which radiates down the lateral thighs to the level of the knees. He feels tightness in the gluteal muscles and hamstrings. This is aggravated by driving and results in a poor sleep pattern.

   He feels tightness and pain in the cervical spine which is relieved with stretching. The pain radiates into the trapezius muscle bilaterally but the arms are asymptomatic. He feels that the neck pain causes a migraine about once per week which is throbbing in nature with no visual symptoms or vomiting. The left shoulder is asymptomatic that he gets pain anteriorly in the right shoulder and right pectoral muscle. Recently there has been the development of periodic numbness in both feet when he gets out of bed but settles quickly with movement. Prolonged sitting aggravates the back and neck symptoms.

   In the past 2 weeks, he started a clerical job at a childcare centre which is owned by the family. He plans for it to be his full-time employment and he attends the gym 4 to 5 times per week.

   Current treatment

   Present medication is Nurofen and Panadol and occasionally a Panadeine  Forte . He frequently does home stretches and some resistance training at the gym. Since his jail term he has had no regular GP but he  is worried about abdominal pain and plans to organise a scan. He ceased Lyrica due to side-effects.

   He consults a psychiatrist on a monthly basis which commenced while he was in jail but no medication has been prescribed for depression as he is worried about potential side-effects.

   Clinical examination

   Mr Hassoun walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is right-handed and weight was 84.8 kg with a height of 178 cm. He has a well-muscled physique but states he has lost over 10 kg since the accident.

   Cervical spine

   On inspection of the cervical spine there was a normal contour and on palpation no guarding or spasm was noted in the cervical musculature. On testing range of movement, flexion/extension, side bending and rotation were all two thirds of expected range with no asymmetry noted. There were no non-verifiable radicular complaints.

   On neurological examination of the upper limbs, reflexes were of low amplitude but symmetrical with normal power and no sensory changes were noted. The circumferences of the upper arms 35.5 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 31 cm bilaterally with no muscle wasting.

   The thoracic spine had a rotation of three quarters of expected range bilaterally with no asymmetry and a normal contour.

   Lumbar spine

   Mr Hassoun was able to walk with a normal gait and walk on his heels and toes. Squatting was limited to 50% of expected range due to pain in the knees. On testing range of movement, flexion was 75% of expected range but extension was 50% of expected range with side bending 30% of expected range bilaterally. Thus, there was dysmetria in the lumbar spine. On palpation no guarding or spasm was noted in the lumbar musculature.

   On neurological examination of the lower limbs, reflexes were of low amplitude but symmetrical with normal power and sensation. Straight leg raise was 70° on the right with limitation due to tight hamstring and 80° on the left and sciatic nerve root tension signs were negative. No muscle wasting was apparent in the lower limbs with the circumferences of the lower thighs 47 cm bilaterally (10 cm above the superior patella pole) and in the calves 38 cm bilaterally (14 cm below the patella).

   Shoulders

   On inspection of the shoulders, no muscle wasting was apparent and no crepitus was detected on passive movement. Active measurements were made using a goniometer and repeated.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	140° = 3% UEI	170°
Extension	50° = 0% UEI	60°
Adduction	40° = 0% UEI	40°
Abduction	150° = 1% UEI	180°
Internal Rotation	50° = 2% UEI	90°
External Rotation	70° = 0% UEI	90°

Wrists

On inspection of the wrists, no abnormalities were detected with no tenderness on palpation. Active movements were measured using a goniometer and repeated.

Wrist Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	60°	70°
Extension	60°	60°
Radial Deviation	20°	20°
Ulnar Deviation	40°	40°

Knees

On palpation, there was no tenderness on patella compression and no crepitus on passive movement. No ligament laxity was noted in either knee. Active movement was measured using a goniometer.

Knee Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	125°	125°
Extension	0°	0°

Consistency

The claimant presented in a straightforward manner. The Panel Medical Assessors asked him why there was no reference to his MVA-related injuries in the records from Corrective Services and his reply was it was impossible to get treatment for such things.

Imaging

The claimant did not present any imaging at the Review Panel medical re-examination.

Diagnosis and Causation

The Review Panel accepted the accident was a cause of  soft tissue injury to the cervical and lumbar spines and the right wrist. The neck pain radiated to the right shoulder and the back pain radiated to the right knee. These injuries are mentioned on the PICF dated 24/10/2016 and both the GP record and medical certificate dated 17/06/2016, five days after the accident. The Panel did not find the accident was a cause of discrete injury to the right shoulder, left shoulder or right knee. There was no reference to left shoulder by the claimant or in the evidence available.

The Panel notes the opinion of Dr Crocker that MRI scan lumbar spine findings are likely to have pre-existed the accident, but note that the claimant was a regular gymnasium attendee prior to the accident and there was no evidence of lumbar spine injury or symptoms prior to the accident. Both Dr Crocker and Dr Maniam, the experts for the parties, reported no prior lumbar spine problems, consistent with the history given to the Review Panel and the original Medical Assessor. As mentioned above no imaging was available for the Panel to view. In any case, the MRI report refers to non-specific mild degenerative changes, which are not possible to date from the report alone.

Permanent impairment

Cervical spine – soft tissue injury

The Panel accepts that Mr Hassoun sustained a soft tissue injury to cervical spine in the subject accident. Based on the findings of the Panel Medical Assessors,  this is a classification of DRE 1 which is 0% WPI. On testing range of movement, no dysmetria was noted and on palpation no guarding or spasm was recorded in the cervical musculature. There were no signs of radiculopathy or non-verifiable radicular complaints in the upper limbs. Assessor Wijetunga recorded dysmetria of the cervical spine but this was not present the time of the Panel re-examination.

Lumbar spine – soft tissue injury

The Panel accepts that Mr Hassoun sustained a soft tissue injury to his lumbar spine in the subject accident. This is a classification of DRE 11 which is 5% WPI. At the time of Panel examination there was dysmetria on testing range of movement flexion/extension which was also the finding of Assessor Wijetunga and the independent experts Drs Crocker and Maniam. On palpation there was no guarding or spasm in the lumbar musculature and no signs of radiculopathy or non-verifiable radicular complaints in the lower limbs.

Right shoulder – soft tissue injury

The Panel found that the right shoulder referred symptoms from the cervical spine  is causally related to the subject accident and was assessed using range of movement in figures 38, 41 and 44 of AMA 4^th edition. This was 6% UEI which converts to 4% WPI using table 3. This result was similar to that determined by Assessor Wijetunga.

Left shoulder

The Panel has determined that there was no injury sustained to the left shoulder in the subject accident. It was not recorded by the treating GP records or on the personal injury claim form and in the physiotherapist treatment notes. Mr Hassoun also states that the left shoulder is asymptomatic.

Right wrist – soft tissue injury

The treating GP recorded pain in the right wrist immediately after the accident as did the physiotherapist and the Panel accepts that there was a soft tissue injury to the right wrist which has now resolved. On examination there was 0% WPI.

Right knee – soft tissue injury

There was initial pain extending toward the right knee recorded by the treating doctor and physiotherapist which has now resolved. The Panel accepts that there were initial referred symptoms  to the right knee but at the Panel re-examination the findings are consistent with 0% WPI.

The total whole person impairment is 5% for the lumbar spine combined with  4% for the right shoulder which is a total of 9% WPI.

The degree of permanent impairment of the injuries caused by the motor accident was calculated as follows:

Body Part or System	AMA Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	%WPI* from pre-existing OR subsequent causes	%WPI* due to motor accident
1	Cervical spine	AMA table 73	Yes	0%	0%	0%
2	Lumbar spine	AMA table 72	Yes	5%	0%	5%
3	Right shoulder	AMA figures 38, 41, 44 and table 3	Yes	4%	0%	4%

*  %WPI = percentage whole person impairment

Determination Regarding the Degree of Permanent Impairment of the Injured Person as a Result of the Injuries Caused by the Motor Accident

The total percentage permanent impairment for assessed injuries caused by the motor accident is 9%. Therefore, the total whole person impairment is not greater than 10%.”

FINDINGS

1. The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[5] The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6] The Medical Assessors have explained the basis of their assessment, which differs to the assessment of Medical Assessor Wijetunga, at the time of their assessment.

   [5] Section 63(3A) of the Act.

   [6] Insurance Australia Group Limited v Keen [2021] NSWCA 287.

2. The Review Panel agrees with Medical Assessor Wijetunga that the claimant suffered no accident-related injury to the left shoulder, as a matter of medical determination, and as matter of non-medical factual determination.

CONCLUSIONS

1. For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor Wijetunga on 29 January 2024 should be revoked. The new certificate appears at the commencement of these reasons.