Insurance Australia Limited t/as NRMA Insurance v Jamhour

[2023] NSWPICMP 94

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v Jamhour [2023] NSWPICMP 94

CLAIMANT:

Amira Jamhour

INSURER:

Insurance Australia Limited t/as NRMA

REVIEW Panel

PRINCIPAL MEMBER:

John Harris

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

Shane Moloney

DATE OF DECISION:

16 March 2023

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 1 July 2019 when she was struck by the insured whilst crossing a road; the dispute related to the assessment of permanent impairment of physical injuries; claimant re-examined; Panel satisfied that claimant suffered from moderate collateral laxity; other body parts rated no assessable impairment; Panel found that left shoulder condition not caused by accident due to accepted delay in onset of symptoms and adhesive capsulitis likely due to diabetes; Held – claimant assessed at 7% permanent impairment; original Medical Assessment Certificate revoked.

DETERMINATIONS MADE:  

Medical Assessment – Permanent Impairment

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%.

The assessment made by the Review Panel under s 7.23(1) of the Motor Accident Injuries Act 2017 is as follows:

The Panel revokes the certificate dated 13 July 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment not greater than 10%:

·        left knee;

·        right hip;

·        left hip, and

·        lumbar spine.

REASONS

BACKGROUND

1. Ms Amira Jamhour (the claimant) suffered injury on 1 July 2019 whilst crossing a road as a pedestrian when she was struck by the insured vehicle.

2. Insurance Australia Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Jamhour any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).

3. The present dispute is whether Ms Jamhour’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[1]

   [1] See division 7.5 and Schedule 2 cl 2 of the MAI Act.

4. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).

5. The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]

   [2] Clause 6.2 of the Guidelines.

6. This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Truskett and dated 13 July 2022. The Medical Assessor assessed the degree of permanent impairment at 11%. The details of that assessment are set out later in these Reasons.

THE REVIEW

1. The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[3]

   [3] Section 7.26(10) of the MAI Act.

2. The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]

   [4] Section 7.26(5) of the MAI Act.

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

4. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[5]

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

5. 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.[6]

   [6] Rule 128 of the PIC Rules.

6. The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]

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

7. The parties provided bundles of documents in accordance with the initial Direction.

8. The Panel subsequently advised the parties that, subject to objection by the insurer, it proposed to assess the right hip. The Panel did not receive a response to our direction.

ASSESSMENT UNDER REVIEW

1. The Medical Assessor provided a medical assessment dated 13 July 2022 determining that the permanent impairment of the injuries was greater than 10%.[8] The Medical Assessor found that the claimant injured her left knee rupturing the medial collateral ligament and assessed impairment at 7% and suffered a soft tissue injury to the left shoulder with subsequent adhesive capsulitis and assessed that impairment at 4%. The injuries sustained to the lumbar spine and the left hip were each assessed at 0%.

   [8] Insurer’s bundle, p 10.

2. The Medical Assessor assessed the combined permanent impairment at 11%.

MATERIAL BEFORE THE REVIEW PANEL

1. The Panel requested and were provided with separate bundle of documents provided by the parties.

Pre-accident health

1. Prior health conditions included diabetes mellitus, type 2. There was no relevant pre-existing condition of any of the body parts referred for assessment.

Contemporaneous records

1. The ambulance report noted a pedestrian versus vehicle accident hit at approximately 30km per hour.[9] Nil obvious injuries were noted although the officer then noted small abrasion on right elbow, complaints of pain on left buttock and right ankle (old injury). The claimant was noted to climb the stairs into the vehicle.  

   [9] Insurer’s bundle, p 87.

2. The hospital discharge records refer to a series of investigations to the pelvis, left knee, left leg, leg ankle and right ankle reporting no obvious fracture.[10]

   [10] Insurer’s bundle, p 92.

3. The history recorded by Dr Gehr[11] is that the claimant was telephoned the next day, advised there was a fracture of the left knee, and to consult her general practitioner (GP). That history is consistent with the consultation notes of the GP and the referral dated 9 July 2019.

   [11] Insurer’s bundle, p 45.

4. The consultation notes of Dr Sivakumar dated 7 July 2019 recorded:[12]

   [12] Insurer’s bundle, p 95.

   “MVA car vs pedestrian

   She was walking and cross the lane, car hit her on thigh

   Ambulance came 30 minutes ….

   5 days ago had MVA

   Big bruises on right buttock and thigh

   Nmo fracture

   CT left knee to R/O fracture

   If fracture need hospital review

   Pain under control with Mobic and paracetamol.”

5. The CT scan of the left knee dated 9 July 2019 showed a moderate grade sprain of the medial collateral ligament at the femoral attachment with several small cortical avulsion fractures.[13]

   [13] Insurer’s bundle, p 97.

6. On 9 July 2019 the doctor[14] referred the claimant to Westmead hospital. The referral provided:[15]

   “Thank you for seeing Amira Jamhour for an opinion and management of moderate grade MCL sprain with several small avulsion fractures on CT L knee. Reviewed in WMD ED post-MVA (car-pedestrian) 1^st July, and discharged but then recalled for further imaging due to ?#. Has had ongoing knee bruising and pain.”

   [14] Insurer’s bundle, p 96.

   [15] Claimant’s bundle, p 87.

7. The certificate of capacity dated 9 July 2019 recorded a history of the claimant being struck on the left thigh and falling on her right side on the ground. The injuries were “multiples bruises on both sides” and a fracture of the left knee with ligament sprain.[16] Under “comments” the doctor noted “pain, lump on right buttock” and “left groin and knee pain”.

   [16] Insurer’s bundle, p 100.

8. The hospital discharge plan dated 9 July 2019 noted CT demonstrating MCL sprain and small avulsion fractures of the left knee following the recent motor accident.[17] The claimant was referred to the knee clinic and advised to weight bear as tolerated.

   [17] Claimant’s bundle, p 89.

9. A right buttock ultrasound dated 15 July 2019 showed a deep subcutaneous haematoma.[18] No fracture was shown in the left ankle.[19]

   [18] Insurer’s bundle, p 98.

   [19] Insurer’s bundle, p 98.

Claim form

1. The claim form dated 9 July 2019 referred to the motor accident whilst crossing Bailey Street. The claimant stated that the accident occurred when she was “about 3/4 of the way over”.[20] The claimant’s description of injuries as a result of the accident was:

   “Car has hit me on left side and have landed on my right side. My shoe on my right foot flew off. Extensive bruising on my left side, bruising across both buttocks (with swelling on right buttock), bruising from my thighs down to my knees. CT scan showed tiny fractures on knee joint, right ankle swollen and bruised. Graze to my right elbow (my jacket and top I was wearing have a hole due to this. The following period of sleepness [sic] nights due to pain/bruising/groin pain.”

   [20] Claimant’s bundle, p 46.

Specialist treating records

1. Dr Gavin Soo, orthopaedic surgeon, provided a report dated 11 June 2021 relating to consultations since 15 August 2019.[21] The doctor noted a history of the claimant being struck on the left knee and falling onto her right side. Ongoing pain in the left knee and buttock was noted with significant swelling. Later in the report there was references to the left hip.

   [21] Insurer’s bundle, p 54.

2. On 15 June 2020 the doctor noted that the claimant had been seen for the left knee injury “which had been slowly improving”. The complaint at that time was due to left shoulder becoming “more painful in the last 3 months”. The doctor noted that the right shoulder was getting sore due to overcompensating.

3. The doctor opined that most patients with adhesive capsulitis resolve with complete resolution over a two-year period.

Statement – Ms Jamhour[22]

[22] Claimant’s bundle, p 68.

1. In a statement dated 16 January 2020 Ms Jamhour said that she was struck by the insured vehicle on the left side, thrown onto the bonnet and landed on her right side. The claimant stated that she sustained “a severe injury” but does not specify the injury. Much of the claimant’s statement relates to differences in her account with that provided by the insured.

Other material

1. In a letter dated 26 May 2021 the claimant alleged injuries to the left knee, right buttock and hip, lumbar spine, left shoulder, right knee and a psychiatric condition.[23]

   [23] Claimant’s bundle, p 19.

2. The police report confirmed the history of the motor accident noting complaints of “immediate pain to her left hip and left side of her body”.[24] The report noted that there was no diagnosis of injury and no treatment and admission at the hospital. In a passage relied upon by the insurer as suggesting that there was no injury suffered in the motor accident, the police officer stated:

   “Between the 2^nd of July and the 11^th of July the pedestrian has rung that police station many times demanding an event number for the incident. Police believe her motivation behind the calls are for insurance purposes only and at none of these times has she stated she had any injury.”

   [24] Claimant’s bundle, p 61.

Qualified opinions

1. Dr Gehr, orthopaedic surgeon, was qualified by the claimant and provided a report dated
   

   [25] Insurer’s bundle, p 42.

   16 April 2020.[25] The doctor noted resolution of left ankle pain, with ongoing stiffness in the left knee and lumbar spine. Normal examination was reported in the right hip, right knee, right foot/ankle and left hip, foot/ankle.

2. Dr Gehr diagnosed avulsions injury of the medial collateral structures of the left knee and soft tissue injury to the lumbar spine with dysmetria.

3. There is no suggestion in this report of shoulder injury.

4. Dr Gehr provided a further report dated 26 August 2021.[26] The doctor noted prior medical problems included diabetes and high blood pressure.

   [26] Insurer’s bundle, p 58.

5. The claimant reported worsening back pain due to an absence of physiotherapy. The lumbar spine was assessed at 5% due to dysmetria. The left knee was assessed at 12% although the basis for this assessment is unclear.

6. Dr Richard Powell, orthopaedic surgeon, provided a report dated 7 May 2021.[27] The doctor noted the claimant remained symptomatic in the left knee, right hip and left shoulder and otherwise referred to symptoms in the low back.

   [27] Insurer’s bundle, p 22.

7. Examination of the left knee was reported as normal for alignment, with no crepitus or effusion and no focal tenderness. The MCL was clinically intact with no increased laxity.

8. Dr Powell noted that left shoulder symptoms developed in the period after the motor accident. He accepted that the injuries to the left knee, right buttock and lower back were reasonably attributed to the motor accident, but the frozen shoulder appeared to have developed in the period after the subject motor accident. The doctor opined that the diagnosis of adhesive capsulitis generally represented an idiopathic condition which was common in people suffering from diabetics.

9. Dr Powell assessed the right hip at 3% permanent impairment. The left knee and lumbar spine were assessed at 0%.

10. Dr Mohammed Assem, rehabilitation specialist, was qualified by the claimant and provided a report dated 18 February 2022.[28] The doctor noted the claimant’s comment that she injured her right, not her left shoulder.

    [28] Insurer’s bundle, p 31.

11. Dr Assem noted moderate laxity of the left medial collateral ligament. He diagnosed a moderate tear of the medial collateral ligament associated with avulsion fractures, persistent right trochanteric bursitis causing a slight antalgic gait.

12. Dr Assem noted that the shoulder symptoms did not develop until one year after the motor accident and was not causally related to the motor accident. The doctor assessed the lumbar spine at 5%, left knee (moderate laxity due to a tear of the medial collateral ligament) at 7% and the right hip due to trochanteric bursitis at 3%.

SUBMISSIONS

Claimant’s submissions dated 24 August 2022[29]

[29] Claimant’s bundle, p 1.

1. These submissions opposed the matter proceeding to a Review Panel. The claimant submitted that the casual connection of injury to the left shoulder was apparent from the reasoning process of the Medical Assessor. The assessment of moderate collateral ligament laxity was a clinical assessment by the Medical Assessor.

Insurer’s submissions dated 22 June 2021[30]

[30] Insurer’s bundle, p 6.

1. These submissions responded to a claim based on injury to the left knee and lumbar spine. The insurer noted the ambulance report which recorded nil injuries and attendance at Westmead Emergency Department where the claimant was not diagnosed with an injury.

2. The insurer relied on the “belief” of the police that the knee fracture was unrelated.

3. The insurer referred to the injuries listed in the claim form. It also asserted that it had “significant concerns with the credibility and legitimacy of Dr Gehr’s report” because the assessment appeared to be undertaken by video and yet the doctor asserted that he assessed range of motion by goniometer and inclinometer.

4. The insurer submitted that Dr Gehr’s assessment of non-uniform range of motion was “inaccurate on the basis of his largely normal findings in the lumbar spine”.

5. The insurer submitted that Dr Powell had provided a “more comprehensive examination of the left knee”. It incorrectly submitted that “the opinion of Dr Powell be preferred over
   Dr Gehr”. That submission encourages error by the Medical Assessor and any Review Panel because it is contrary to the requirement that the Panel form its own conclusion. 

Insurer’s submission dated 28 July 2022[31]

[31] Insurer’s bundle, p 1.

1. These submissions were filed seeking a review of the Medical Assessment. The insurer submitted that with respect to the assessment of the left shoulder, the Medical Assessor:

   ·        incorrectly assessed the calculations;

   ·        failed to consider the issue of causation of injury to the left shoulder, and

   ·        erred in finding that the left shoulder condition was permanent.

2. In respect of causation, the insurer referred to the opinion of Dr Powell that in the majority of cases of adhesive capsulitis was an idiopathic condition common in diabetics. It also noted the history provided by Dr Assem in a report dated 18 February 2022 that the left shoulder symptoms developed one year after the motor accident.

3. The insurer referred to opinions from Dr Soo dated 11 June 2021 and Dr Powell dated
   7 May 2021 that there was an expected recovery from adhesive capsulitis.

4. The insurer submitted that the assessment of the left knee “was based solely on the claimant’s self-reported pain levels”. It submitted that there was no apparent clinical presentation supporting a finding of Grade II (moderate) laxity. It noted that Dr Soo stated in a report dated 15 June 2020 that the left knee injury had been “slowly improving”.

RE-EXAMINATION

1. Ms Jamhour was examined by Medical Assessor Gibson of the Review Panel. The examination report is as follows

   “Ms Jamhour attended today as arranged. She arrived with her son who remained in the waiting room while the assessment was conducted. She said they travelled in by train.
   PREACCIDENT MEDICAL HISTORY AND RELEVENT PERSONAL DATA
   Ms Jamhour was born in New Delhi, India. 
   She arrived in Australia as a child in 1964 and went on to complete high school at Brigidine College in 1977. After leaving school she had commenced an Economics Degree at Macquarie University. She left before completing the course, as she married. 
   She was then mainly engaged in home duties until her divorce in 2012. 
   She had then obtained full-time employment as a Laundry Manager at the QT Hotel.  She worked there for about seven years, before she was made redundant. 
   Commencing some months prior to the subject accident, she had started work at the Four Points Hotel, initially as an assistant in housekeeping. She said in the weeks leading up to the subject accident, she had received a promotion to Assistant Executive House Manager. However, since the accident, she has been unable to return to work in any capacity. She said there had been some discussion as to whether she could be accommodated on lighter duties. However, although her new position was largely supervisory, it did involve inspecting rooms, which required that she check for dust above cupboards, and squat or kneel down to check under beds. She indicated these essential tasks have not been possible since the subject accident.
   Ms Jamhour lives in a 1^st floor Housing Commission apartment in Westmead. Her son has been living with her for the last 12 months. She has two other children, both adults, (son and daughter) who live independently. 
   She said that there is one flight of steps to climb to enter the apartment from the street, but two flights to take out garbage or access the garage. 
   She has had a regular partner since 2017, and he lives in Liverpool. She said that she would at times stay at his place, or he would stay at her place, but because her sleep is disturbed due to left knee pain, they do not necessarily share the same room.
   Ms Jamhour has hypertension and hypercholesterolemia and was diagnosed with diabetes Type 2 in 2015. She takes medications for all of these conditions. There were no other significant medical problems. There was no history of prior motor accidents or work injuries.
   HISTORY OF THE SUBJECT ACCIDENT
   Ms Jamhour said she had been on her way to work on the day of the accident. It was approximately 6.30am in the morning, and it was still dark as it was winter. She had been crossing Bailey Street in Westmead, this being the road she had crossed in the same manner for at least seven years. She said she looked to the left and looked to the right, and started crossing, and she was about two steps from the far kerb when saw headlights approaching her in the dark.  She said the vehicle hit her on the left side of her body and she blacked out, she was unsure how long. However, she understood she had been on the ground for about 30 minutes before the ambulance arrived.  Bystanders had reported that she had been catapulted with the impact and landed onto her right side. She said she had significant bruising over her right buttock and possibly tyre marks, although she was uncertain about that. 
   Ms Jamhour was conveyed to Westmead Hospital where imaging was undertaken and she was later cleared to be discharged to home, after about six hours. She said at that stage, she ‘still felt okay’, in fact she volunteered, that at the time, she felt she was quite lucky escaping serious injury. 
   The following morning, she was contacted by a representative from the hospital who advised that she should visit her general practitioner urgently as there was a query that she had suffered a fracture to her left knee which was missed the night before. 
   She visited the Advanced Medical Practice in Westmead and was referred back to the emergency department. 
   She was subsequently under the care of the Workers Doctors Practice in Parramatta.  Referral was made to orthopaedic surgeon, Dr Gavin Soo.  Ms Jamhour said she was fitted with a full-length brace and the plan was to wear this for six weeks. However, she found the brace very uncomfortable, and although she managed close to six weeks, this was exchanged for a shorter knee brace. She thinks she may have worn some form of brace for approaching 12 weeks. 
   She was then referred to physiotherapy and this continued for about 12 months. She had then attended hydrotherapy treatment for three months. 
   There was some discussion with Dr Soo about surgical intervention, however, he had been unable to guarantee that she would necessarily have a positive result and she was unwilling to take the chance.  
   There was then no further treatment until October-November late last year when the insurer agreed to pay for more physiotherapy which she has since been receiving on a weekly basis at the Workers Doctors Heath Centre. 
   There has been no other surgical treatment, or any other interventions undertaken.
   CURRENT COMPLAINTS
   Ms Jamhour is most troubled by her left knee and finds this most disabling of the injuries. She said there is discomfort most of the time, but worse at night. She characterised this as a “nagging” or “throbbing” sensation which is felt chiefly over the medial aspect of her left knee. 
   There is occasional swelling of the knee especially if she is walking distance or standing for long periods. The left knee gives way intermittently and without warning.
   She finds she is risk of falling, however up until Saturday of this week, she has managed to avoid falling top the ground. She said on Saturday she had been standing at the Parramatta Rail Station, near to the turnstiles. She was carrying a heavy bag in her left hand. She had looked up at the train signal and then felt herself fall forward, chiefly onto her face, although she did have a bruise on to her chin. She cracked a front tooth and has since visited a dentist and been advised the tooth is fractured, so she will potentially require root canal therapy. 
   On specific questioning, she indicated that she had sustained no other injuries from this fall. She emphasised that this had actually been the first time she had actually fallen to the ground, although she said that she is conscious that she is unsteady when walking, tending to veer towards the right and having problems walking at a rapid pace even on flat ground.
   Ms Jamhour also suffers with left lateral hip pain and discomfort. She said this varies according to her level of activity, although there is some discomfort most of the time.   She said she feels as if the hip is ‘overworked’. 
   When asked, she said that her right hip and in fact whole right side is ‘fine’, including her right shoulder. 
   There is low back pain 75% of the time, worse at night and with prolonged sitting. The back pain limits her ability to lift heavy objects or perform any housework. The pain is across the lower back and spreads towards the left hip and towards her upper back (indicating the trapezius regions bilaterally), but not elsewhere. 
   The left shoulder discomfort comes and goes. She feels it is ‘connected’ to her low back symptoms. Occasionally she gets ‘bad aches’ in her left shoulder which then feels stiff and sore. When asked, she indicated discomfort felt diffusely over the entire left shoulder. At times, as she rolls over onto that side in bed, and she feels quite uncomfortable and has to roll back on to the other side.
   CURRENT TREATMENT
   Ms Jamhour attends 30-minute sessions of physiotherapy at Workers Doctors, and she has been having this treatment since late last year. Prior to that she had no treatment for about 16 months. She said the physiotherapist manipulates her low back, left hip, and left shoulder region. 
   She takes Nurofen (Ibuprofen) as required for pain, and she would take up to two tablets per day. She estimates she would not use the Nurofen on approximately weekly basis. She applies Voltaren Gel ‘now and again’ to the shoulder and occasionally her left knee. 
   She was asked about the onset of her left shoulder complaints, she was not ‘really sure’ and was uncertain when these symptoms came on. She accepted Dr Assem’s history of no shoulder symptoms being reported for 12 months after the accident. However, she emphasised that she had had absolutely no problems of her left shoulder before the accident and the left shoulder had never recovered since the accident. She said she can’t understand why her shoulder is a problem, if not for the subject accident.
   PHYSICAL EXAMINATION
   Ms Jamhour weighed 74.5 kg. She had a slightly antalgic gait. She couldn’t kneel and she had difficulty squatting over the left knee managing about approximately three-quarters normal range.
   On examination of the cervical spine, there was a full range of movement in all planes. There was no asymmetry, muscle spasm or guarding. She reported some discomfort over the left trapezius region when turning her head to the left. 
   On examination of the upper limbs, there was normal power, sensation, and reflexes. 
   On examination of both shoulders, there was tenderness over the scapula border, trapezius, and the subacromial region, but not elsewhere. No impingement could be demonstrated. The right shoulder was normal. Active movements were as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Forward Flexion	180 °	145 °/150 °/150 °
Extension	50 °	50 °/50 °/ 40 °
Internal Rotation	80 °	70 °/90 °/90 °
External Rotation	80 °	70 °/90 °/90 °
Abduction	180 °	150 °/160 °/160 °
Adduction	50 °	65 °/70 °/70 °

When asked about the variability, she attributed this to left shoulder pain and fatigue, the latter on repetition (goniometer measurements were repeated three times).
On examination of the lower back, she had three-quarters normal flexion and extension, normal range of rotation (4/4) bilaterally and normal range of lateral flexion bilaterally (4/4). There was no asymmetry, muscle spasm or guarding.
On examination of the lower limbs, there was normal power, reflexes and sensation.  Thighs measured 40 cm, calves 37 cm, so, there was no muscle wasting.
On examination of both hips, there was tenderness over the lateral aspect of the left hip and upper left thigh with adduction. There was no tenderness over the right hip and no signs of trochanteric bursitis on that side. Active movements were as follows:

Hip movements	Right	Left
Flexion	120 °	110 °
Extension	20 °*	20 °*
Internal Rotation	30 °	25 °
External Rotation	40 °	35 °
Abduction	30 °	35 °
Adduction	30 °	20 °

*No flexion contracture

On examination of both knees, there was no crepitus or effusion. There was tenderness over the medial aspect of the left knee. There was grade 2 laxity of the medial collateral ligament of the left knee. There was a circular area (3 x 2cm) of pale scarring. Active movements were as follows:

Knee movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	120 °	115 °
Extension	0 °	0 °

SUMMARY AND OPINION
Ms Jamhour is a 63-year-old woman who was involved in the subject accident on
1 July 2019 when she was crossing a road and was struck on the left side of her body by the vehicle. She had had conservative treatment of the left knee injury. 
There was contemporaneous evidence of injury to the lumbar spine, left hip and left knee. There was delayed onset of symptoms in the left shoulder, in fact, she was unsure when they came on. Based on the documentation, there is no evidence of specific injury to the left shoulder, although there is some minor restriction of left shoulder movements in abduction, forward flexion, and internal rotation. 
Impairment assessment is as follows:

1.Lumbar [Lumbosacral] spine

There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were no non-verifiable radicular complaints and no asymmetry, muscle spasm or guarding. Therefore, in reference to MAA Guidelines the lumbar spine injury would be assessed at DRE Impairment Category I, thus zero percent permanent WPI.

2.Left lower limb

In reference to Ch 3, page 78, table 40, AMA Guide 4th Edition.
There was no muscle atrophy [Ch 3 AMA 4, Table 37, p77]
No unilateral muscle weakness [Ch 3 AMA 4, Table 38 & 39, p77]

2a Left hip

Hip movements were assessed with reference to Table 40 [Ch 3, AMA 4, p78] gave rise to 0% WPI.

2b Left knee

Knee movements were assessed with reference to Table 41 [Ch 3, AMA 4, p78] resulting in 0% WPI. 
There was no patellofemoral crepitus [Table 62, Ch 3, AMA 4, p 83] of either knee.
There were diagnosis based estimates applicable [Ch 3, AMA 4, Table 64, p85].
According to Table 64 [Ch 3, AMA 4, p85] moderate collateral ligament laxity, gives rise to 7% whole person impairment.”

FINDINGS

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[32] The Panel adopts the examination findings of Medical Assessor Gibson and adds the following reasons.

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

2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[33] and Insurance Australia Ltd v Marsh.[34] The insurer’s submission that Dr Powell’s opinion be preferred and accepted to Dr Gehr’s opinion represents a misunderstanding of the Panel’s role.

   [33] [2021] NSWCA 287 at [40], [41] and [45].

   [34] [2022] NSWCA 31 at [11], [21] and [64].

Left knee injury

1. Despite the selective quotations by the insurer when referring to various reports, there is clear evidence that the claimant injured her left knee in the motor accident. We reject the insurer’s submission that we should rely on hearsay comments or opinion expressed by the police officers in circumstances where there is uncontradicted evidence that the claimant was struck by the insured vehicle on the left leg whilst walking across a road.

2. There is contemporaneous evidence that the claimant underwent an X-ray at hospital of the left knee. We accept, based on the consultation notes of the GP and the referral dated 9 July 2019 that the claimant was telephoned the day after her initial hospital admission to undertake further investigations of the left knee. The scan evidence undertaken on 9 July 2019 then showed small avulsion fractures with damage to the medial collateral ligament.

3. The circumstances of the motor accident where the insured vehicle impacted onto the claimant’s left leg is consistent with the pathology shown on the scans.

4. The claimant provided a consistent history and various doctors made findings of ongoing collateral ligament laxity. Those findings were made by Dr Assem, Dr Gehr and Dr Soo and Medical Assessor Truskett. In that respect, Dr Powell’s examination findings are an outlier.

5. Further, these findings are dated, and the Panel is otherwise required to form its own opinion. We otherwise note the insurer’s submission that the assessment of the left knee “was based solely on the claimant’s self-reported pain levels”. That submission is incorrect. A finding of collateral ligament laxity is based on examination findings and not dependent of complaint.

6. The findings of Medical Assessor Gibson confirm that the claimant continues to suffer from collateral ligament laxity. We are satisfied that the condition is caused by the motor accident.

Right and left hip

1. There is clear contemporaneous evidence of right hip injury such as the right buttock ultrasound dated 15 July 2019 which showed a deep subcutaneous haematoma.

2. We note that Medical Assessor Truskett assessed the left hip because the parties referred that part.

3. The left hip was not previously assessed for impairment by any doctor. There is no scan evidence suggesting that the claimant has bursitis. When the left hip was previously assessed by Medical Assessor Truskett there was no tenderness although there were complaints of pain. 

4. The chronicity of the left knee injury and altered gait could explain the recent tenderness in the left hip, but it is otherwise not assessable under Table 64 of AMA 4. This is because we are not satisfied that the claimant has chronic bursitis.

5. The parties were advised that we would assess the right hip given that the insurer qualified both Dr Powell and Dr Assem and that had previously assessed the right hip due to trochanteric bursitis at 3%.

6. Based on the examination findings of Medical Assessor Gibson, any signs of trochanteric bursitis on the right side have now resolved. This is medically plausible as these conditions can resolve over a period of time. We note that Medical Assessor Truskett also found no local tenderness with full movement.

7. Accordingly, the hips have no assessable impairment.

Lumbar spine

1. There is no contemporaneous mention of lumbar pain although there is reference to left groin pain. The claim form referred to bruising on “both buttocks”.

2. There is otherwise clear contemporaneous evidence of bruising to the upper portions of the legs. This would have occurred both when the claimant was struck by the insured vehicle and when she impacted the ground.

3. It is medically plausible that the claimant could have sustained soft tissue injury to the lumbar spine from the motor accident which is consistent with bruising to the upper portions of the legs.

4. The examination findings otherwise did not establish any assessable impairment of the lumbar spine.

Left shoulder injury

1. There is no contemporaneous report of injury to the left shoulder. The absence of complaint is relevant but not determinative of injury.[35]

   [35] AAI Ltd v McGiffen [2016] NSWCA 229 at [64]-[66].

2. The claimant did not state in the claim form that she injured the left shoulder. An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[36] Similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue.

   [36] [2014] NSWSC 888 at [31]-[32].

3. The history recorded by Dr Assem is that left shoulder symptoms did not develop until 12 months after the motor accident. Dr Assem concluded that the left shoulder condition was unrelated to the motor accident.

4. The delay in onset is consistent with the absence of complaint of injury to the left shoulder in Dr Gehr’s reports and Dr Soo’s statement that the left shoulder was not mentioned to him until the consultation on 15 June 2020. At that time Dr Soo recorded a three-month duration of left shoulder problems with more recent right shoulder compensatory problems.

5. The claimant otherwise advised Medical Assessor Gibson that she was uncertain when the left shoulder symptoms arose.

6. The claimant has a history of diabetes. We agree with the opinion expressed by Dr Powell that this is a likely medical explanation for the development of adhesive capsulitis.

7. Not only is there a delay in reporting, but there is clear evidence that the left shoulder symptoms did not commence for an extensive period of at least 12 months after the motor accident. In those circumstances it is medically implausible that the left shoulder condition was caused by the motor accident.

8. For these reasons we do not accept that the motor accident caused a left shoulder injury.

Assessment of impairment

1. The claimant is assessed at 7% for the permanent impairment of the left knee.

2. We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.

CONCLUSIONS

1. The medical assessment certificate is revoked. The new certificate is attached at the commencement of these Reasons.