Insurance Australia Limited t/as NRMA Insurance v Jaghuri
[2025] NSWPICMP 15
•8 January 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Jaghuri [2025] NSWPICMP 15 |
CLAIMANT: | Harris Jaghuri |
INSURER: | NRMA |
REVIEW PANEL | |
MEMBER: | Nolan |
MEDICAL ASSESSOR: | Gibson |
MEDICAL ASSESSOR: | Assem |
DATE OF DECISION: | 8 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; physical injuries; review of Medical Assessment Certificate under section 7.23(1); whether injuries to lumbar spine and left arm caused by motor accident and whether permanent impairment exceeded 10%; claimant involved in a high-impact collision resulting in significant sternal injury and two-week hospitalisation; lumbar spine and left arm injuries not initially reported but later documented; causation of lumbar spine and left arm conditions disputed; Review Panel considered the claimant’s pre-existing medical history, delayed reporting of symptoms, and imaging findings; lumbar spine symptoms attributed to pre-existing degenerative changes; no evidence of radiculopathy, muscle spasm, or guarding; left elbow condition resolved with no ongoing impairment; Held – injuries caused by the accident did not result in permanent impairment exceeding the statutory threshold; permanent impairment assessed at 0%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Shahzad dated 9 October 2023. The Review Panel issues a new certificate determining as follows: (a) the following injuries caused by the motor accident give rise to a permanent impairment of 0% and IS NOT GREATER THAN 10%: (i) left arm: lateral epicondylitis with a partial thickness tear measuring 5mm (0%), and (ii) lumbar spine: injury and impingement (0%). |
STATEMENT OF REASONS
INTRODUCTION
Harris Jaghuri, the claimant, was involved in a motor vehicle accident on 18 May 2018 when he was driving along Victoria Road at 6.30am (the motor accident). The insured vehicle was travelling in the opposite direction and failed to give way and attempted to make a right hand causing a collision between the two vehicles. The impact was sufficiently significant to allow the airbags to be deployed which rendered him unconscious for a period. The claimant was retrieved from the vehicle by police and ambulance offices and conveyed to Royal North Hospital for two weeks. His vehicle was written off.
BACKGROUND TO THE REVIEW
On 9 January 2020, the claimant requested a concession from the insurer to his injuries exceeding the 10% permanent impairment threshold. On 6 March 2020 and 19 June 2020, the insurer declined to make such a concession. An internal review application was lodged on 18 June 2020, in respect of which an internal review certificate was issued by the insurer on 9 July 2020, affirming the original position of the insurer that the injury of the claim did not exceed the threshold
The application before the Personal Injury Commission (the Commission) is one for determination of a medical assessment dispute under Schedule 2, cl 2(a) of the Motor Accidents Injuries Act 2017 (NSW) (the Act) and involves a determination as to the causation of the injuries claimed to have arisen out of the motor accident and whether those injuries exceed 10% permanent threshold.
The claimant initially referred the following injuries for determination and determination:
(a) sternal fracture with persisting external tenderness;
(b) cervical spine musculoligamentous injury;
(c) thoracic spine musculoligamentous injury, and
(d) right shoulder musculoligamentous injury with clinical picture of impingement.
MEDICAL ASSESSMENT
The claimant was initially assessed by Medical Assessor Woo on 8 December 2020. Medical Assessor Woo assessed the claimant’s sternal fracture and injuries to the cervical spine, thoracic spine, and right shoulder. He issued a certificate dated 21 December 2022 wherein he determined that the claimed injuries caused by the accident gave rise to a permanent impairment of 7%, which was not greater than 10%.
Further injuries referred for assessment the subject of the review
Subsequently, the claimant claimed injuries to his lumbar spine, left arm and a psychiatric condition, which were later referred for assessment in July 2022.
On 12 September 2023, the claimant was assessed by Medical Assessor Shahzad (the Medical Assessor), in relation to his left arm and his lumbar spine injuries. Medical Assessor Shahzad issued a certificate dated 9 October 2023 wherein he determined that the claimant’s left arm and lumber spine injuries gave rise to permanent impairment of 5%, which was not greater than 10%.
A compound certificate was subsequently issued which determined that the claimant’s physical injuries gave rise to a permanent impairment of 12% which was greater than 10% (noting the medical assessments of both Medical Assessor Woo and Medical Assessor Shahzad).
The insurer made an application under s 7.26 of the Act for referral of the medical assessment of Medical Assessor Shahzad to a Review Panel on the grounds that the Medical Assessor’s medical assessment was incorrect in a material respect. That application was successful on the basis that the President’s delegate found that the Medical Assessor had failed to explain his path of reasoning and determining that the lumbar spine injury was causally related to the accident.
REVIEW PROCEDURE
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
Section 7.26(5A) of the Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. Accordingly, the President’s delegate referred the matter to this Review Panel (Panel) to assess.
Section 41(2) of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. Rule 128 of the PIC Rules provides that a review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
By directions issued on 13 December 2023, the parties were directed to provide the Panel a joint bundle of material on which they relied upon the Review. That direction was complied with. The following is a summary of the relevant material provided.
MATERIAL ON THE REVIEW
Lumbar spine
The claimant did not report any lumbar spine injuries immediately following the motor accident on 18 May 2018.
In a record of the surgery consultation on 4 July 2018, Mrs Twinkle Valani noted that the claimant attended the general practitioner following a motor accident on 18 May 2018. He presented with persistent pain affecting multiple areas, including the sternum, cervical spine (Cx), thoracic spine (Tx), and lumbar spine (Lx), with an intensity rated at 6/10. He also described a poking sensation in the left arm and occasional pain radiating to the left leg. These symptoms were accompanied by discomfort in the left posterior aspect.
The claimant reported that prolonged activities such as sitting, standing, walking, and even removing his shirt aggravated his pain. Coughing and laughing specifically worsened the pain in the sternum. Rest provided some relief, although the claimant experienced significant stiffness and pain throughout the day, coupled with sleep disturbances at night.
On examination, the general practitioner noted active range of motion (AROM) pain primarily in the sternum and ribs. Shoulder flexion was reduced to a 7/10 level with a range of 90 degrees, and abduction was limited to an 8/10 level within an 80–90 degree range. Tenderness (+++) was observed over the sternum at the fracture site, which was highly sensitive even to small touches or movements. Additional tenderness and muscle spasms were noted in the cervical, thoracic, and lumbar regions, as well as in the upper trapezius and paraspinal muscles on the left side.
However, the claimant’s early consultations with medical practitioners, including Dr Eugene Gehr in December 2019, did not reveal lumbar spine abnormalities. Dr Gehr reported a normal range of motion in the lumbar spine with no tenderness, radiculopathy, or impairment. There was no indication of lumbar spine injuries causally related to the accident at that time.
By June 2018, the claimant began reporting mid-back pain, which was occasionally noted during his consultations. Physiotherapist records dated July 2018 indicated that the claimant experienced an initial pain level of 8/10 in the lower back, which restricted mobility and impacted his activities of daily living. By February 2019, his reported pain had reduced to intermittent levels of 3-4/10 following physiotherapy, suggesting some improvement.
A CT scan performed on 15 February 2021 demonstrated mild to moderate multilevel disc bulges and bilateral L5/S1 neural foraminal narrowing. There was possible contact with the exiting right L5 nerve root but no evidence of central canal stenosis. The findings suggested degenerative changes without clear traumatic causality.
Dr Andrew Keller assessed the claimant in May 2020 and found no abnormalities in the lumbar spine. He reported full symmetrical range of motion without muscle spasms, tenderness, or radiculopathy. Dr Keller attributed the claimant’s complaints to pre-existing degenerative changes and assigned a 0% whole person impairment (WPI).
In contrast, the Medical Assessor in 2023 noted severe limitations in lumbar spine movements, including restricted extension, lateral rotation, and flexion. Shahzad identified muscle guarding and tenderness over the paravertebral muscles, diagnosing a lumbar spine injury and impingement. He assigned a 5% WPI and attributed the findings to the motor accident. However, his reasoning was challenged by the insurer for failing to adequately explain causation and for inconsistencies with earlier assessments.
Left arm
The claimant reported pain in his left arm shortly after the accident, describing numbness, pins-and-needles sensations, and reduced strength. However, during his assessment with Dr Gehr in December 2019, there were no specific complaints regarding the left arm, and the examination revealed no abnormalities.
An MRI of the left elbow conducted on 14 May 2021 revealed lateral epicondylitis (tennis elbow) with a partial-thickness tear measuring 5mm. This was consistent with structural damage but without significant functional limitations.
Dr Andrew Keller, in his 2020 assessment, found no impairments in the left arm and attributed the claimant’s shoulder complaints to pre-existing conditions unrelated to the accident. He concluded that the left arm had no impairment.
The Medical Assessor acknowledged the MRI findings but assigned a 0% WPI for the left arm, citing no range of motion deficits. He described the claimant’s left arm injury as mild and not permanently impairing.
RE-CONSIDERATION BY THE PANEL
Causation
By directions dated 26 February 2024, the Panel informed the parties that it had determined that a re-examination was necessary and directed the claimant to attend upon Medical Assessor Gibson on 19 April 2024 at her suites in St Leonards. The parties were requested to provide the Panel with submissions with respect to the causation of the injury alleged to the lumbar spine. Those submissions have been provided and are summarised below.
SUBMISSIONS ON CAUSATION OF THE LOWER BACK INJURY AS ALLEGED
Claimant’s submissions
The claimant submits that the impact of the motor accident was significant and resulted in the claimant’s airbags being deployed, and him being rendered unconscious for a period. The claimant notes that he was retrieved from his vehicle by police and ambulance officers, was subsequently hospitalised at Royal North Shore Hospital for two weeks, and his vehicle was written off.
He submits that there is no evidence that the claimant had any relevant injuries or impairments prior to the motor accident. There is no evidence that the claimant has suffered a subsequent injury to his lumbar spine following the motor accident.
The claimant contends that whilst initially there was a focus on his sternal injury given the immediate and acute symptoms, on a fair reading of the evidence, there is clear evidence of reports of lower back pain soon after the accident. There is no evidence of any pre-existing low back complaints, or an injury to the lumbar spine following the motor accident which could explain the claimant’s symptoms.
Evidence of injury
He notes the following evidence:
(a) in the ambulance report dated 18 May 2018, the motor accident was described as a T-bone accident. At that stage the claimant was only complaining of chest injuries, although this was in the order of 9/10. Morphine was administered.
(b) The claimant saw Dr Khaled Osman on 13 June 2018. At that assessment it was noted that the claimant had been involved in the motor accident and had suffered a sternal fracture. Conservative treatment was indicated. The claimant was still complaining of pain. Where the claimant was experiencing pain was not stated.
(c) On 17 June 2018, the claimant saw Dr Mohammad Omer Mohmand at Priority Medical Centre. The following is recorded (errors in original):
“still getting pain occasion I pain on in spiration sitting/standign causign pain ass
woith back pain
…
Examination:
well
tend +++ mid to lower sternum and mid back”
(d) On 21 June 2018, the claimant attended upon Dr Omer Mohmand. At that stage it was noted that the claimant continued to experience chest wall pain. The claimant was feeling dizzy sometimes and was experiencing memory issues. The claimant was experiencing pain all over his spine. Movement was causing pain. On 21 June 2018, Dr Omer prepared a referral to RE-Fit Physiotherapy stating the following (errors in original):
“Thank you for seeing Harris Jaghuri, age 40 yrs, for opinion and management.
Was involved in a car accident on 18/05/2018.h has fracture of sternum, which is healing well now, but has significant back pain and upper chest pain. Needs to see physiotherapist for his recovery.”
(e) The claimant commenced physiotherapy on 27 June 2018. Treatment has included a focus on the claimant’s lower back, and the evidence clearly demonstrates that the claimant has continued to complain of lumbar spine pain since that time.
(f) The claimant notes that his general practitioner, Dr Khaled Osman in Certificates of Capacity he has completed lists “back pain (thoracic, lumbar)” as being one of many injuries he considers was caused by the motor accident. In his letter to Law Partners dated 15 October 2020, Dr Osman notes that the diagnosis arising from the motor accident includes lumbar back pain. He considered that the prognosis was poor.
(g) It should also be noted that there are frequent references to the claimant having difficulty with his memory. The claimant was rendered unconscious as a result of the accident and heavily medicated. For instance, as noted above, he complained of feeling dizzy and experiencing memory issues when he saw Dr Omer on 21 June 2018. When he saw Tanya Vlasov, physiotherapist on 14 March 2020, aside from complaining of lower back pain it was noted that he was “feeling confused / poor memory”.
(h) The clamant submits that an entry dated 25 February 2021 by Dr Osman is relevant:
“Discussed progress
Says he has some low back pain despite the meds prescribed for him earlier He reports that he has had lumbar spine pain since the accident
He advised that he only reported to everyone that he had back pain and was not specific into which part of the back hurts him as according to his culture they only say ‘Back pain’”.
(i) The claimant observes that following a dispute, Medical Assessor Tai-Tak Wan issued a certificate dated 17 April 2022 finding that the proposed CT scan and MRI scan of the lumbar spine relates to the injury caused by the motor accident, but only the CT scan of the lumbar spine was reasonable and necessary. Medical Assessor Wan was required to consider the question of causation and found that the injury to the lumbar spine was casually related.
The claimant refers to the insurer’s reliance upon the qualified report of Dr Andrew Keller, occupational physician dated 1 June 2020. It is not clear what material Dr Keller had available to him. However, it is apparent that the treating material available to him was very limited. Dr Keller appears to largely rely upon claimant’s reporting. Under the section requiring him to provide a record of the treatment post-accident to date, Dr Keller’s response is very limited:
“Mr Jaghuri reports two or three months of physiotherapy completed in early 2019. He has had no injections or surgery.”
He refers to the fact that Dr Keller acknowledged that collision involved “a high-force accident” causing a confirmed fracture of the sternum. He noted that at the time of his assessment the claimant reported intermittent thoracic stiffness and pain, and it was “plausible that this is a residual sequelae of the reported accident”. The claimant contends that this is an acknowledgement of the severity of the impact.
He submits that although Dr Keller indicates that he finds “full symmetrical range of motion” in the cervical, thoracic and lumbar spine, he does not indicate what those measurements are, whether any other symptoms are reported in these areas.
He refers to Dr Sikander Khan, general surgeon, who in his report dated 1 February 2022 considered the claimant suffered injuries, including a musculoligamentous and facet joint strain of the lumbar spine arising from the motor accident. Although Dr Gehr in his report dated 2 December 2019 stated that there was a normal range of motion, he provides no measurements and given how little is said in relation to the issue he appears to have given little attention to the lumbar spine. In any event, Dr Gehr’s report is inconsistent with the numerous reports of lumbar spine symptoms made to the claimant’s treatment providers which pre-date and post-date his examination.
Submissions on causation
The claimant notes the Panel is required to find on the balance of probabilities that the motor accident caused by or contributed to his current impairments as they relate to his lumbar spine.
He contends that the insurer does not appear to dispute the existing of lower back pain, but rather asserts that there is no “contemporaneous” complaint of pain in that area recorded in the clinical notes. He submits that this is an overly simplistic approach to the question of causation and disregards several other relevant factors.
He submits that having regard to cl 6.6 of the Motor Accident Guidelines (the Guidelines), there can be no dispute that the motor accident could have caused or contributed to the worsening of the claimant’s lumbar back condition. The claimant contends that the Panel would find that the motor accident did in fact cause or contributed to the claimant’s lumbar spine impairments because:
(a) the claimant was involved in an objectively significant accident;
(b) the Royal North Shore Hospital Discharge Summary dated 30 May 2018 notes that the claimant was having an inconsistent recollection of events, and he was in post traumatic amnesia (PTA) for eight days;
(c) the claimant suffered significant chest injuries which were clearly the initial focus of the attention of treating practitioners;
(d) the claimant has consistently reported that he has experienced lumbar spine pain since the accident, and
(e) the absence of any other cause of the lumbar spine pain, complaints of which were first recorded only a matter of weeks after the accident.
It relies on the Court of Appeal cautioning against the overreliance on histories in clinical notes where the focus of the treater is quite different to the use sought to be made of it in litigation: See for example Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8].
The claimant contends that given the very rough general practitioner notes, which are replete with typographical errors and at times are difficult to decipher despite being typed, it is clear that the focus was on treatment rather than carefully documenting histories, not precisely what was said.
The insurer’s submission contests the causation of the claimant’s lumbar spine condition as caused by the motor accident. It argues that there is a lack of contemporaneous evidence to support a causal link. Initial medical assessments, including those conducted by NSW Ambulance, Royal North Shore Hospital, Dr Gehr in 2019, and Dr Keller in 2020, did not identify any lumbar spine issues or impairments. Complaints of lumbar spine pain only emerged 2.5 years after the accident, which the insurer asserts undermines any causal nexus.
The insurer highlights that imaging results from a CT scan conducted in February 2021 revealed mild degenerative changes in the lumbar spine. These findings included multilevel disc bulges and mild bilateral L5/S1 foraminal narrowing, but no significant injuries or fractures were detected. The insurer argues that these findings are consistent with age-related changes rather than trauma caused by the accident.
Expert opinions further supported the insurer’s position. Dr Khan, in 2022, and Medical Assessor Tai-Tak Wan both attributed the lumbar spine findings to degenerative processes unrelated to the accident. Dr Wan specifically noted the absence of radiculopathy or spinal cord compression and concluded that the claimant’s imaging findings did not indicate significant trauma or fractures.
The insurer also rejected the claimant’s explanations for the delay in reporting lumbar spine symptoms. Arguments about cultural barriers and memory issues were dismissed on the basis that the claimant had consistently reported pain in other areas without difficulty. The insurer additionally contested the claimant’s interpretation of Dr Keller’s report, stating that his assessment was comprehensive and based on adequate evidence.
RE-EXAMINATION
The claimant attended as arranged. He was unaccompanied to the assessment. He had brought no imaging studies with him for the assessment. He travelled from home in Brighton Le Sands via an Uber.
Pre-accident medical history and relevant personal details
The claimant was born in Afghanistan and arrived in Australia in 1992.
He had completed a NSW TAFE course in mechanical engineering and obtained certification as a panel beater. He had then worked as a panel beater for 28 years.
By the time of the motor accident, he was employed with Masada Prestige Paint. He said that he had been certified unfit to return to work as a panel beater following the accident. The insurer had paid for him to complete a bartending course, though it seems he did not work in that capacity.
In 2022 he commenced part-time work as an offsider in a panel-beating shop in Matraville. He continues in that role.
The claimant lives in a first-floor two-bedroom, one-bathroom apartment in Brighton, having moved there in 2022. His partner moved in with him in January this year. Prior to that he was living alone.
His previous medical history had included a fractured right great toe in 2014 sustained at work.
In 2015, he had an episode of right shoulder pain. He said that this had arisen after vigorous exercise preparing for swimming and kickboxing. He had a steroid injection, and the problem had settled down.
The clinical notes from his general practitioner described an episode of back pain in 2016, but the claimant could not recall having had this problem.
History of the motor accident
The claimant had been driving his 2018 hatchback Hyundai sedan to work. He had his seat belt fastened and he was travelling along Victoria Road in Ryde. Another vehicle had attempted a right turn, and in the process, had collided with the driver-side door of the claimant’s car.
All air bags had deployed. He said he was trapped after the accident. Police and fire brigade arrived and were able to extricate him from the car, after which he was taken to Royal North Shore Hospital.
He feels he had lost consciousness for a period after the accident.
There appears to be no evidence of any immediate injury to the left upper limb with first mention being in late June.
When asked how he had injured the left side of his body, in particular his left upper limb, he thinks this had been due to his left arm being jolted, as he held onto the steering wheel as his car spun around three times with the impact.
His main injury of immediate concern was a displaced sternal fracture and internal bleeding. He was admitted to intensive care unit (ICU)/cardiac ward. He was in the hospital for two weeks. He said he was given strong analgesics parenterally together with some oral analgesics.
Following discharge from the hospital, he was provided three months of domestic assistance. He was living alone at the time.
The claimant’s recollection was that the left upper limb pain came on after he arrived home from hospital. He added that he had been taking strong analgesics including Endone in the first three months after the accident.
The history recorded in the clinical records from Royal North Shore Hospital was that he had been driving 50kmph in a left lane, when a car crossed the road and collided with the front right side of his car. There was no cabin intrusion, and he had self-extricated with some assistance. Air bags had deployed. There had been no head strike or loss of consciousness. It was also noted that he had an inconsistent recollection of events, but no focal neurological symptoms.
CT scan of the chest had revealed minimally displaced fracture of superior third of the sternum. An ECG and troponin were normal. CT of brain was unremarkable. Outpatient neuropsychiatric review was recommended.
Post discharge he had visited his regular general practice. The first entry post-accident by the general practitioner, Dr Khaled Osman was on 13 June 2018, where there is discussion about his sternal fractures and prescription of Panadeine Forte. On 27 June 2018, physiotherapist, Mrs Valani records that he was having difficulty taking his shirt off, which seemed to relate to sternal pain, but there is some comment that on examination flexion and abduction movements are reduced, there is pain at the end of range.
In relation to the absence of any reported low back complaints in the period after the accident, the claimant’s explanation was the significant use of strong analgesics due to his sternal injury.
Sometime after the accident, he had also developed some left elbow symptoms and was referred for an MRI scan which demonstrated lateral epicondylitis. Nevertheless, he states now that this issue has totally resolved and there is no ongoing left elbow pain.
Current complaints
The claimant reported left-sided neck pain radiating over the left shoulder into the left arm and forearm and into the left hand. He said these symptoms come and go, he has good days and bad days. The left arm symptoms are felt over the entire arm and the whole left hand.
He said the neck pain spreads to the back of his head and headaches are initiated and these can last for up to five hours.
There is low back pain, which is constant, and rated at 6/10 severity today, with intermittent spread to both buttocks and into the left thigh anteriorly as far as the left knee. He notices these lower limb symptoms several times a week and finds they are worse in cold conditions and can disturb his sleep.
Current treatment
The claimant was visiting an exercise physiologist in Auburn twice weekly from 2020 and up until midway through last year. He plans to identify another therapist nearer to home, as travelling to Auburn is no longer possible as it involves a two-hour drive since he has moved house.
He had also been seeing a physiotherapist in Harris Park, but again the distance is now a problem for him.
He said he purchased a massage chair to use at home.
He is still in contact with general practitioner, Dr Osman at Hall Medical Centre in Auburn, but has not seen him now since late last year. The doctor does offer phone consults and would then issue an electronic script.
The claimant had also consulted a psychologist, with his last visit being about 18 months ago.
He currently, takes esomeprazole 20mg daily and sertraline 50mg per day. He takes Panadeine Forte as required and had last taken one yesterday, but he noted that the medication provides only short-term relief of his symptoms, so he uses it and instead would take paracetamol as required.
Physical examination
The claimant had a stocky build, 165cm tall and weighed 72kg, body mass index (BMI) 26.4 (overweight range). He had a normal gait. He was able to walk on heels and toes and he could squat fully but hesitantly, reporting low back pain.
On examination of the neck, there was diffuse tenderness extending to the trapezius regions bilaterally. Flexion and extension were to three-quarters normal, lateral flexion two-thirds normal, rotation three-quarters normal. 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 28cm bilaterally, the right forearm measured 27cm and left forearm 26cm. There was normal power, reflexes and sensation apart from globally reduced sensation affecting the left upper limb.
On examination of both shoulders, active shoulder movements were as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
110°
110°
Extension
50°
50°
Internal Rotation
70°
70°
External Rotation
60°
60°
Abduction
130-160°
110-130°
Adduction
50°
50°
Movements varied on repeated measurement and were also different in comparison to previous reports. When asked about this, he said that he had taken strong analgesics for some of the other medical assessments which had reduced his pain and therefore allowed a greater range of movement. When asked why his right shoulder movements were also restricted, he said this was due to a “pulling sensation”, which he localised to his right side (chest/abdomen area).
On examination of both elbows, there was full normal range of movement. Provocation testing for epicondylitis were negative bilaterally.
On examination of the low back, there was ½ normal range of flexion and extension and ¾ normal range of lateral flexion and rotation. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the lower limbs, circumferential measurements were equal thighs measuring 41cm and calf 34cm bilaterally. There was normal power, reflexes and sensation apart from globally reduced sensation affecting the left lower limb.
Summary and opinion
The claimant had been involved in the motor accident on 18 May 2018 whilst on his way to work. The other car had impacted his driver’s side door, and his air bags had deployed.
He had been transferred to Royal North Shore Hospital where he was found to have a fractured sternum. There was no record of any left upper limb complaints when assessed at North Shore Hospital and in fact no lumbar spinal complaints either. There was also no mention of low back or elbow complaints.
At assessment today, there were complaints of low back pain and symptoms into the left leg of a somatic rather than a radicular character. However, he reports that his left elbow condition had resolved.
There were also complaints of neck pain with referral into the left upper limb and shoulder movements were variably restricted bilaterally.
There is a letter on 27 June 2018 from the physiotherapist, Ms Valani, Re-Fit Physiotherapy, back to the general practitioner, noting complaints of neck and sternal pain, restricted and painful flexion and extension of neck and shoulder although shoulder side not specified, and noting treatment of lower back pain and sternum which is confusing given the therapist does not record complaints of low back pain but yet this is a reason for referral. This contrasted with the referral from the general practitioner to the therapist where there is mention of mid back pain, but not low back pain.
Dr Andrew Keller on 1 June 2020 had recorded complaints of pins and needles in left upper limb, thoracic spine stiffness and shoulder movements normal on the right but slight restriction on the left.
Dr Gehr on 2 December 2019 had recorded thoracic spine pain with intermittent pain down left arm and pain over the right shoulder and normal movements of the left shoulder, restricted movements of the right shoulder whereas Assessor Woo on 8 December 2020 diagnosed sternal fracture, cervical and thoracic spine injuries and right shoulder injury, with reports of left arm numbness, bilateral shoulder pain more severe on the right, and on examination symmetrical shoulder movements.
The claimant had undergone an MRI of the left elbow on 14 May 2021 which showed lateral epicondylitis with a partial thickness tear measuring 5mm.
There was a CT scan of the lumbosacral spine on 15 February 2021 showing mild bilateral L5/S1 neural exit foraminal narrowing with possible contact of the exiting right L5 nerve root.
The claimant’s significant chest injuries, including a fractured sternum, and the severe pain they caused, offer a compelling explanation for the lack of contemporaneous reporting of lumbar spine symptoms. The pain and functional limitations associated with these injuries were understandably overwhelming, requiring intensive management and strong medication. It is well-established that acute and debilitating injuries, particularly in the context of significant pain and medical interventions, can divert both the patient’s and clinicians’ attention away from other injuries that may not present with immediate, severe symptoms
The absence of contemporaneous lumbar spine complaints must be viewed within this context. The claimant’s explanation is consistent with known patterns of injury reporting, where individuals in acute pain may not recognise or communicate all their symptoms at the time. Causation must consider the totality of evidence, including the prioritisation of acute injuries over less apparent conditions. Accordingly, the Panel is satisfied that the lumbar spine injury was caused by the motor accident.
The claimant’s left elbow complaint, although first documented in March 2019 and supported by imaging only in 2021, can reasonably be causally linked to the motor accident. The Panel’s conclusion is that the accident more probably than not caused trauma to the left elbow, whether directly or through rehabilitation activities such as gym exercises.
In Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 (Mandoukos), the Court of Appeal emphasised that causation must be assessed holistically, considering not just the immediate effects of an accident but also the reasonable and foreseeable consequences arising from its impact and subsequent treatment.
The Court in Mandoukos clarified that injuries resulting from the motor accident are not limited to those immediately evident or contemporaneously documented. Instead, it recognised that an injury can include a later physiological or structural change if it arises as a direct and probable consequence of the accident. In this case, the left elbow condition—whether caused by initial trauma or during rehabilitation efforts necessitated by accident-related injuries—fits within this framework. The Court’s reasoning also highlighted the importance of examining the claimant’s treatment history and the logical progression of symptoms, rather than rigidly relying on contemporaneous reporting alone. The motor accident created the conditions that either directly caused or reasonably led to the development of the elbow injury during recovery.
WHOLE PERSON IMPAIRMENT
Lumbar spine assessment is made by using AMA Guides, 4th Edition, Chapter 3, The Musculoskeletal System and Table 72, on page 110, and pages 105 to 113 of the Guidelines. The lumbar spine is assessed at diagnosis-related estimate (DRE) 1 viz. 0%WPI, as there were no non-verifiable radicular complaints in either lower limb, meaning sensory loss in a dermatomal distribution. There was no radiculopathy. There was also no asymmetry, muscle spasm or guarding.
Left elbow condition has resolved. And therefore, is not assessed for WPI. And even if symptomatic, given normal range of motion and negative provocation testing would have given rise to 0% WPI.
0
2
0