Insurance Australia Limited t/as NRMA Insurance v Keogh

[2025] NSWPICMP 421

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v Keogh [2025] NSWPICMP 421

CLAIMANT:

Julie Keogh

INSURER:

Insurance Australia Limited t/as NRMA Insurance

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

Sophia Lahz

DATE OF DECISION:

16 June 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; degree of permanent impairment disputed; claimant suffered displaced sternum fracture and multiple rib fractures (all resolved), minor head injury, and numerous soft tissue injuries; proceedings in both Divisions of the Commission; widely divergent assessments by different IMEs and Medical Assessors (MA) under Motor Accidents and Workers Compensation schemes; MA Fitzsimons found 8% whole person impairment (WPI) for right shoulder and 5% WPI for thoracic spine; MA Fitzsimons sought opinion from MA Korber as to presence of compression fractures in thoracic spine; MA Fitzsimons disregarded MA Korber’s opinion without giving reasons; Held – Review Panel accepts MA Korber’s findings; Review Panel finds movement in right shoulder improved since previous assessments; Review Panel finds 3% WPI for right shoulder and 0% WPI for thoracic spine; MAC revoked.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act)

1.     The Review Panel revokes the certificate dated 10 July 2024 and issues a new certificate determining that:

(a)    the following injuries caused by the motor accident give rise to a permanent whole person impairment of 4% and IS NOT GREATER THAN 10%:

·         head – soft tissue injury;

·         cervical spine – soft tissue injury;

·         thoracic spine – soft tissue injury; and

·         right shoulder – soft tissue injury.

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

·         upper abdomen – soft tissue injury;

·         chest – soft tissue injury;

·         sternum – displaced fracture; and

·         ribs – fractures.

STATEMENT OF REASONS

INTRODUCTION

1. On 23 December 2017, Julie Keogh (the claimant) had picked up some passengers in her taxi on Thunderbolts Way near Walcha late at night. The passengers were drunk and rowdy. The claimant stopped to ask them to fasten their seatbelts. Shortly into the journey, the claimant was driving into a bend, when an oncoming vehicle turned directly in front of her. The claimant’s taxi was smashed in the front and the insured vehicle flipped over, spun around and came to a halt, facing in the opposite direction. It subsequently was written off for insurance purposes. The claimant lost consciousness very briefly. Ambulance and Police Officers arrived. Two of the Police Officers were known to the claimant. It took some time for the Ambulance Officers to be able to extract the claimant from her taxi. A passenger in the insured vehicle tragically died.

2. The claimant was flown to John Hunter Hospital as her ECG was reported as abnormal. She fractured six ribs (two in two places) and suffered “a lot of whiplash”. She had grazing with tar jammed into the skin on her right upper arm which has left scarring. The claimant lost her sense of smell due to hitting the front of her head. There was blood on the airbag. While the claimant was in hospital, she began experiencing episodes of dizziness. These have been diagnosed as benign paroxysmal positional vertigo (BPPV) due to dislodged crystals in the inner ear. The claimant was discharged from hospital five days later.

3. NRMA (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay the claimant damages under the Motor Accident Injuries Act 2017 (the Act). The insurer admitted liability for the common law damages claim. It did not concede that the claimant’s accident-related injuries gave rise to whole person impairment (WPI) exceeding the prescribed 10% threshold.

Bundles of documents

1. The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.

2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned.[1] The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”.[2] The Panel has come to its own conclusions and has taken its own history.

   [1] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 75 ALR 630 at (46)

   [2] Farr v Insurance Australia Limited t/as NRMA Insurance Limited [2014] NSWSC 1435 at (46)

ASSESSMENT UNDER REVIEW

1. As there is a dispute between the claimant and the insurer about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, the claimant was referred for assessment by Medical Assessor Robin Fitzsimons, who certified on 10 July 2024 as follows:

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

• cervical spine – soft tissue injury
• thoracic spine vertebral body wedge fracturing
• right shoulder – soft tissue injury
• ribs fractures

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

• Upper abdomen – soft tissue injury
• Sternum (manubrium) fracture
• Left rib fractures
• Chest soft tissue injury

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

1. Medical Assessor Fitzsimons assessed 5% WPI for the thoracic spine and 8% WPI for the right shoulder. No adjustment was made for pre-existing/subsequent impairment, apportionment or treatment effects. Medical Assessor Fitzsimons also found that a brain injury was not caused by the motor accident, but did not so certify.

THE REVIEW

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

2. The insurer submitted that Medical Assessor Fitzsimons fell into error in that she:

   (a)    unreasonably failed to follow the opinion of Medical Assessor Korber and made an erroneous causation finding regarding the thoracic spine fracture, and

   (b)    made unreliable findings in relation to the right shoulder.

   Particulars were given in respect to the Medical Assessor’s findings on causation of the thoracic spine fracture and the alleged incomplete review of the relevant medical evidence.

3. The insurer noted that Medical Assessor Fitzsimons assessed the claimant on 8 August 2023, but did not issue her certificate to the parties for almost 12 months. The reason for the delay was that the Medical Assessor sought an expert opinion from Medical Assessor John Korber, radiologist, in relation to fractures in the claimant’s thoracic spine. Medical Assessor Korber reviewed available imaging of the claimant’s thoracic spine both pre and post-accident. He provided a report dated 1 May 2024 stating that, in his independent expert opinion, the claimant did not suffer fractures to her T6 or T7 vertebrae as a result of the accident.

4. The insurer further notes that the opinion of Medical Assessor Korber was consistent with that of the treating radiologist who prepared a report in relation to imaging of the claimant’s thoracic spine at the hospital following the accident. The reviewing radiologist suspected fractures at T6 and T7 pre-dated the accident. Notwithstanding, Medical Assessor Fitzsimons made a different finding on causation.

5. The insurer submits it was not open to Medical Assessor Fitzsimons to form a different conclusion to that of both Medical Assessor Korber (from whom she had specifically requested an expert opinion) and the treating radiologist. The insurer submits that Medical Assessor Fitzsimons sought an opinion from Medical Assessor Korber in the context of her medical assessment, such that it is not merely another opinion from another expert, but a component of the assessment itself.

6. The insurer submitted that Medical Assessor Fitzsimons based her opinion upon a pictogram in the John Hunter clinical notes that depicted thoracic spine tenderness near the site of the T6 fracture. The insurer suggested that the pictogram would be equally consistent with a soft tissue injury in that region, or pain associated with rib fractures, among other things. The insurer submitted there was nothing within the certificate to suggest that Medical Assessor Fitzsimons considered those other possibilities or raised them with the claimant. The insurer submits that Medical Assessor Fitzsimons seems to have undertaken an incomplete review of the relevant medical evidence.

7. In relation to the right shoulder, the insurer notes that the claimant told Medical Assessor Fitzsimons that she had “very” recently aggravated her right shoulder whilst assisting her daughter with domestic duties. The insurer submits there was nothing within the certificate to suggest that Medical Assessor Fitzsimons raised with the claimant that the recent exacerbation had impacted her range of movement, or taken that fact generally into consideration, in reaching her ultimate findings in relation to the right shoulder. The insurer further submitted that there is reason to think that Medical Assessor Fitzsimons had not considered the issue of stabilisation having regard to the specific circumstances of the case.

8. The insurer’s review application was opposed by the claimant on various grounds. Briefly, the claimant submitted that Medical Assessor Fitzsimons was not seeking from Medical Assessor Korber a determination on the issue of whether or not the claimant had suffered a T6 fracture in the accident. The claimant submits that issue was, as Medical Assessor Fitzsimons determined, a matter for her clinical judgment. The claimant submits that the Personal Injury Commission (Commission) was not seeking a determination on this issue from Medical Assessor Korber, whose opinion was considered by Medical Assessor Fitzsimons, in coming to her own determination, based on clinical grounds.

9. In relation to the right shoulder, the claimant notes that Medical Assessor Fitzsimons found no inconsistency in shoulder movements, accepted the claimant’s history and appropriately applied the guidelines in the manner of her assessment of the upper extremity.

10. President’s delegate Tajan Baba issued a Determination of an Application for Review of a Medical Assessment on 2 October 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated to be the grounds for review and particulars in the application concerning the Medical Assessor’s finding on causation of the thoracic spinal fractures and an incomplete review of the relevant medical evidence.

11. Accordingly, the review application was accepted and was referred to the Panel, which is to re-assess the treatment disputes that were referred to Medical Assessor Fitzsimons, including a soft tissue injury to the head.

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with s 63 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the 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 Panel, reviewing a decision of a Medical Assessor.[3]

   [3] 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.[4]

   [4] 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.[5]

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

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

CAUSATION OF INJURY

1. Causation of injury is addressed in the Motor Accident Guidelines (Guidelines) as follows:

   “6.5   An 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 AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

   6.6    Causation is defined in the Glossary at page 316 of the 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 contributed to the worsening of the impairment, which is a non-medical determination.

   This, therefore, involves a medical decision and non-medical informed judgment.

   6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

2. See Briggs v IAG Limited t/as NRMA Limited.[6]  See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[7] wherein his Honour Justice Wright stated at (35):

   “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 principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”

   [6] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.

   [7] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.

3. Wright J then described the Panel’s role in a medical review which is to:

   “Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:

   (1)  a comprehensive, accurate history, including pre-accident history and pre-existing conditions;

   (2)  a review of all relevant records available at the assessment;

   (3)  a comprehensive description of the injured person’s current symptoms;

   (4)  a careful and thorough physical examination;

   (5)  diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

OTHER ASSESSMENTS

1. Medical Assessor Ian Cameron certified on 18 May 2021 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 2% AND IS NOT GREATER THAN 10%:

• upper abdomen – soft tissue injury
• sternum – undisplaced fracture
• left ribs fractures
• right shoulder – soft tissue injury
• cervical spine – soft tissue injury

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

• chest – soft tissue injury
• thoracic spine – soft tissue injury
• head – soft tissue injury

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

Medical Assessor Cameron found 2% WPI for the right shoulder – soft tissue injury.

1. Medical Assessor Sylvester Fernandes certified on 18 May 2021 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 5% and IS NOT GREATER THAN 10%:

• benign positional vertigo
• loss of taste
• loss of smell

Medical Assessor Fernandes found 5% WPI for smell impairment and 0% WPI for vestibular impairment. He also found 0% WPI for taste impairment notwithstanding that he separately stated the loss of taste was not caused by the motor accident. Those findings were the subject of a further assessment (see later).

1. There is a Combined Certificate dated 18 May 2021 by Medical Assessor Ian Cameron who certified as follows:

The following injuries caused by the motor accident give rise to a permanent impairment which IS NOT GREATER THAN 10%:

• benign positional vertigo
• loss of taste
• loss of smell
• upper abdomen – soft tissue injury
• sternum – undisplaced fracture
• left ribs – multiple fractures
• right shoulder – soft tissue injury
• cervical spine – soft tissue injury

Permanent impairment ratings take your symptoms into account, however, the percentage impairment is not a direct measure of disability.

1. Medical Assessor Tim Anderson certified on 23 March 2022, under the Workers Compensation legislation, as follows:

Cervical spine	7% WPI
Thoracic spine	5% WPI
Right upper extremity	10% WPI

The Panel notes that those findings were based on AMA 5 and are not directly comparable to assessments made under the Motor Accident Guidelines and AMA 4.

1. There is an undated Combined Certificate for 25% WPI under the Workers Compensation legislation. That certificate incudes Medical Assessor Anderson’s findings plus 6% WPI found by Medical Assessor Henley Harrison for loss of smell and taste.

2. Medical Assessor Robert Payten certified on 21 September 2023 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 7% and IS NOT GREATER THAN 10%:

• anosmia (5%)
• benign paroxysmal positional vertigo (2%)

Medical Assessor Payten found that loss of sensation of taste was not caused by the motor accident, but he did not so certify. Medical Assessor Payten’s certificate is the subject of a separate review before this Panel.

1. There is a Further Combined Certificate issued on 11 July 2024 by Medical Assessor Robin Fitzsimons who certified as follows:

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

Assessment 1

Further certificate of Assessor Robin Fitzsimons dated 11 July 2024

The permanent impairment in relation to the following injuries is 13%:

• cervical spine – soft tissue injury
• thoracic spine vertebral body wedge fracturing
• right shoulder – soft tissue injury
• rib fractures

AND

The following injuries caused by the motor accident have resolved:

• other abdomen – soft tissue injury
• sternum (manubrium) fracture
• left rib fractures
• chest – soft tissue injury

Assessment 2

Certificate of Assessor Payten dated 21 September 2023

The permanent impairment in relation to the following injuries is 7%:

• anosmia (5% WPI)
• benign paroxysmal positional vertigo (2% WPI)

Using the Combined Values Chart at page 322 of AMA 4, the Combined Permanent Impairment is 19%

MATERIAL BEFORE THE REVIEW PANEL

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

Documents	Date	Pages
Reply submissions	30.08.2024	2

See previously.

Decision of President’s delegate 31.08.2022 4

See previously.

Application for Personal Injury Benefits	12.01.2018	8
Photographs of the applicant’s vehicle	16
Dashcam footage	23.12.2017	Separate attachment
Records of John Hunter Hospital	28
PIC Combined Certificate by Medical Assessor Ian Cameron	18.05.2021	131
Certificate and Reasons of Medical Assessor Cameron	18.05.2021	133

See previously.

PIC Medical Certificate (Workers Compensation) by Medical Assessor Timothy Anderson 23.03.2022 142

See previously.

Report by Dr A G Hopcroft, orthopaedic surgeon, to the claimant’s lawyers 13.05.2020 101

Dr Hopcroft records the details of the motor accident and notes that the claimant underwent X-ray investigation at John Hunter Hospital with the following results:

(a)    Chest: the lungs are clear, no visible thoracic cage injury;

(b)    Pelvis: no fracture or dislocation, and

(c)    Left femur and knee: no fracture or dislocation

Dr Hopcroft also records that the claimant underwent a CT trauma series with that investigation describing in conclusion:

(a)    Intracranial haemorrhage or skull fracture. No cervical spine fracture or dislocation;

(b)    Non-displaced minor angulated fractures of ribs, 2 to 6 on the left as well as the manubrium, and

(c)    No acute intra-abdominal injury.

Dr Hopcroft records that the claimant was in hospital for a period of four days and then recovered in a Jason recliner chair at home.

Under the heading DIAGNOSIS OPINION AND PROGNOSIS, Dr Hopcroft says the claimant was left with several sequelae from a major rollover motor vehicle accident which can be summarised as follows:

(a)    significant loss of sense of smell;

(b)    dizziness;

(c)    probable cervical disc protrusion with right arm radiculopathy;

(d)    probable right rotator cuff tear yet to be diagnosed, and

(e)    major thoracic kyphotic kerb with pain, highly suggestive of an underlaying thoracic spinal fracture.

He noted that the claimant was then struggling with her injuries and the loss of sense of smell.

Supplementary report by Dr Hopcroft to the claimant’s lawyers 28.05.2020 106

Dr Hopcroft records that the claimant had no previous history of injury to her neck, thoracic spine or shoulder, and had no symptoms in those areas. He notes the report dated 25 May 2020 by Dr Martin Young, specialist radiologist, relating to an X-ray of the thoracic spine,
Dr Young thought that stage showed long-standing wedge compression fractures in the thoracic spine. Dr Hopcroft then provides his assessment of whole person impairment under AMA 4 and the Guidelines. He found 5% WPI for the cervical spine, 5% WPI for the thoracic spine, 7% WPI for the right shoulder and 5% WPI for loss of smell (damage to the olfactory nerve), giving a combined 20% WPI under the Combine Values Chart.

Diagnostic Radiology Report by Medical Assessor John Korber  01.05.2024 169

Medical Assessor Korber provided his report at the request of Medical Assessor Fitzsimons. Dr Korber examined the following radiological and medical imaging:

·Chest X-ray dated 21 November 2008

·Chest X-ray dated 12 January 2018

·X-ray thoracic spine dated 25 May 2020 (J-Med Radiology – lateral only supply, on disc)

Dr Korber notes that Medical Assessor Fitzsimons requested his opinion on the following radiological issues:

·If there is new compression wedging then “approximately 25% would have to classify as over 25% for DRE purposes. Since the Guidelines require that in the presence of doubt about DRE category, the higher should be chosen.

·If “20% could equally well be 25%”, the same principle might apply.

Under the heading Clinical History, Dr Korber says as follows:

“From the clinical information provided by you, the claimant was involved in a head-on collision on a country road. Among other injuries, she sustained multiple rib injuries and a manubrium injury.

A chest X-ray on 25 May was reported as showing approximately 25% wedge fracture of T6 and 20% of T7. There was a report of a possible T6 fracture in 2018 with a statement on a chest X-ray in November 2008 of a similar appearance.

I have read Dr Cameron’s assessment which indicates a thoracic spine soft tissue injury. I have read the multiple assessments. I have examined the thoracic spine images from the chest X-ray on 21 November 2008 and compared that to a thoracic spine X-ray on 12 January 2018, and also to a thoracic spine X-ray of 25 May 2020. As it is always difficulty correctly identifying thoracic vertebrae on an X-ray, the T6 vertebrae was presumed to be the vertebrae identified on 25 May 2020 with frontal and posterior marks indicating measurements. Calcification was noted in the T5/T6 disc and this serves to mark the same level in all studies. The T7 vertebrae was also identified by a small Schmuhl’s node in the postero superior endplate.”

Under the heading Opinion of Individual Imaging, Dr Korber says as follows:

“There is no doubt that the imaging generated on 25 May 2020 is a much clearer image than those in 2018 and 2008 and such clear measurements as were made in 2020 cannot satisfactorily performed on the other two image. Whilst it is possible there may have been an injury to T6, I think on the balance of probabilities, there has not been a fracture. The reason is that T6 remains proportionately a similar size to T7 in all the three images in 2008, 2018 and 2020. If there had been a fracture of T6 in the 2018 imaging, I would have expected more consolidation.”

Under the heading CONCLUSION, Dr Korber says as follows:

“On the balance of probabilities, I do not think there has been a fracture of either T6 or T7 in the thoracic spine and that the imaging in 2018 is comparable to the imaging in 2008.”

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

Doc No.	Document description	Date	Page
A1	Insurer’s submissions to the President’s delegate	12.08.2024	2

Previously summarised.

A2	Decision of the President’s delegate	02.10.2024	8
A3	Insurer’s submissions re further medical assessment of WPI	03.08.2022	11

Insurer refers to the Certificates and Reasons of Medical Assessor Sylvester Fernandes (ENT surgeon), Medical Assessor Ian Cameron (rehabilitation physician) and Medical Assessor Doron Samuell (psychiatrist). The insurer notes that all of those Medical Assessors determined the claimant to have not greater than 10% WPI. On that basis, the insurer opposed the further assessment application, stating that the statutory threshold for that to occur was not satisfied. That is, the claimant had not established the presence of deterioration or additional relevant information capable of having a material effect on the outcome of the previous assessments.

In relation to the claimant’s physical injuries, specifically those to her cervical and thoracic spines, the insurer noted the assessment made by Medical Assessor Tim Anderson in the claimant’s Workers Compensation proceedings. The insurer reputes the claimant’s submission that there is “very little difference” between the motor accident scheme and the workers compensation scheme in the assessment of WPI. The insurer submits that the evaluation of permanent impairment made by Medical Assessor Anderson (under the workers compensation scheme) and Medical Assessor Cameron (under the motor accident scheme) essentially are identical. The insurer submits that Medical Assessor Anderson adopted DRE Category II for the cervical and thoracic spines due to the different criteria for the same in the workers compensation scheme. Particulars are given.

In relation to the right shoulder, the insurer notes the claimant sought to rely upon a comparison of the findings as to the degree of range of movement of her right shoulder as observed by Medical Assessor Anderson and Medical Assessor Cameron as evidence of deterioration. The insurer submitted that the difference between the ranges of movement observed by both Medical Assessors were minimal, or within 10°, for most planes of movements. The insurer submits this would be inconsistent with deterioration and consistent with the natural variation which may be expected.

The insurer submitted Medical Assessor Cameron correctly and properly examined the claimant’s right shoulder in accordance with AMA 4 and the Guidelines. The insurer further submitted his certificate demonstrated a detailed and well-reasoned opinion, based upon his clinical observation on the date of assessment, using the entire gamut of his clinical skill and judgment.

The insurer submitted that there was no additional relevant information capable of having a material outcome on the result of the previous assessment.

A4 Decision of the President’s delegate 31.08.2022 19

President’s delegate, Rachel Brittliff, was satisfied that the medical assessment certificate issued by Medical Assessor Tim Anderson for the Workers Compensation Division of the Commission is additional relevant information about the injury such as to be capable of having a material effect on the outcome of the previous assessment. The President’s delegate said as follows:

“Assessor Anderson was able to elicit consistent movement of the claimant’s right shoulder sufficient to determine WPI in accordance with the range of motion methodology. The measurements taken by Assessor Anderson give rise to 10% WPI in accordance with the relevant Tables under AMA 4 Guides. Medical Assessor Cameron assessed the claimant’s right shoulder by analogy as he was not able to elicit consistent movement in the claimant’s right shoulder due to pain. Medical Assessor Cameron determined that the claimant had 2% WPI for the right shoulder injury.

I am satisfied that if a Medical Assessor in the Motor Accident Division of the Commission were to make similar findings to those of Assessor Anderson, they would be such as to be capable of having a material effect on the outcome of the previous assessment.”

Accordingly, the application was granted and the claim was referred for further assessment.

A5 Certificate of Assessor Fernandes 18.05.2021 23

See previously.

A6 Certificate of Assessor Cameron 18.05.2021 31

See previously.

A7 Combined Certificate 18.05.2021 40

See previously.

A8 Certificate of Assessor Paton 21.09.2023 42

See previously.

A9 Certificate of Assessor Korber 01.05.2024 51

See previously.

A10 Certificate of Assessor Fitzsimons 10.07.2024 55

See previously.

A11 Combined Certificate 11.07.2024 71

See previously.

A12 Clinical records of Dr Simpson April 2021 74

EXAMINATION REPORT

1. The report of Medical Assessor Margaret Gibson and Medical Assessor Sophia Lahz is as follows:

   “Ms Keogh attended the assessment unaccompanied.

   HISTORY OF THE SUBJECT ACCIDENT

   Ms Keogh was working in her usual occupation as a taxi driver in Walcha. She said she had been doing this job for some years and she drove the Maxi taxi for about 16 hours a day. She had just picked up five young male passengers and they were all intoxicated. They were heading out of town. She had rounded a bend when an oncoming car had turned directly in front of them and a head-on collision ensued. The taxi was flipped onto the driver’s side and then spun around, such that when it came to a stop it was facing back into town.

   She had patchy memories of the accident. The right side of her right shoulder hit the side door/pillar of the taxi, her mobile phone flew from the console onto the dashboard. She remembered there being blood on the airbags. She remembered hearing her passengers ringing triple 0, but giving the wrong location, she then called triple 0 herself.

   She said all the seats had to be cut out of the back of the taxi in order to get her out. Her passengers hadn’t sustained any significant injuries. However, the passenger in the other vehicle died, but she said the rescue personnel at the scene had not advised her of this at the time of the accident, which she understood to be common practice in these settings.

   She was moved into an ambulance which took her to Walcha Rugby Field where a helicopter had picked her up and conveyed her to John Hunter Hospital. Apparently there had been some discussion around transfer to Armidale Hospital but there were some concerns about possible cardiac complications of her chest injury, so instead she was taken to John Hunter Hospital. She was given morphine enroute. She said she had told the paramedics that this made her nauseous and she was given it anyway and subsequently vomited.

   Once assessed at the hospital, she was found to have sustained multiple fractures to six of her ribs, whiplash injury to her neck and grazing to her right upper arm. She said for the first three days she couldn’t get herself out of bed because she was suffering with profound dizziness. She said the physiotherapist at the hospital was encouraging her to move about, but every time she got up she felt nauseous and dizzy and then vomited.

   Once deemed fit for discharge her husband drove her home. She said they couldn’t take the route over the range as she was suffering with severe motion sickness.

   She later found that she had entirely lost her sense of smell. She said her anosmia has affected her taste of foods but she still wears her perfume and other people comment on it. For the early period after the accident, she spent most of her time in a recliner at home.

   PROGRESS MEDICAL HISTORY

   Ms Keogh was referred for physiotherapy treatment in Walcha. She also had some remedial massage and acupuncture.

   On 26 May 2020, a right shoulder MRI showed moderate degenerative changes and a low-grade partial-thickness tear.

   She had also initially visited a psychologist, but she has not returned there for some time.

   When asked about her ongoing injuries, she said her whole body was sore after the accident but then pain was chiefly over neck, chest and right shoulder.

   MEDICAL HISTORY

   Ms Keogh said she ceased smoking at age 35. She doesn’t drink any significant alcohol as she is on-call for the taxi on Friday and Saturday nights.

   She said that since the accident she has been referred to a cardiologist in Armidale and a left bundle branch block on ECG was diagnosed. She added that she had an  ECG performed prior to the accident and this hadn’t shown any abnormalities. She has since had regular reviews with the specialist, her last review was about 12 months ago and her next review in 2 years. She was prescribed a cholesterol-lowering medication, not because her cholesterol was elevated, but rather as a preventative as a CT calcium scan had shown calcium build-up.

   She said she put on 20kg weight over the last year. She added that she had had a lap band done 12-15 years ago but in the last two years it was removed. She didn’t feel it had helped her lose weight. However, she had also attended a nutritional medicine practice where she was prescribed probiotics amongst other medications and she was also exercising and then lost 25kg, later regaining the weight. About a month ago she was prescribed Wegovy and she has lost 2.5kg. She takes a small amount of medication for blood pressure (she could not recall the name of the medication).

   CURRENT TREATMENT

   Ms Keogh takes paracetamol-ibuprofen combination at least every second night.

   ACTIVITIES AND RESTRICTIONS

   Ms Keogh now has a regular cleaner who is paid by the workers' compensation insurer. The cleaner does the windows, shower and tasks that  require high reaching. She said she herself had been doing vacuuming and mopping up till 6 months ago.

   Her husband works as an interstate truck driver so is away a lot of the time.

   She said that they are planning to move to Hervey Bay, where her daughter now lives.

   CURRENT COMPLAINTS

   Ms Keogh said stated that her only issues now are her neck, chest and right shoulder and her loss of smell and vertigo.

   She said that she had lost her sense of smell since the accident. She said she had been seen by a number of ENT surgeons including Assessor Payten, who assessed her for the anosmia.

   She has suffered with benign paroxysmal positional vertigo since the accident and experiences profound dizziness and nausea, and at times vomiting if she tilts her head backwards. She said sometimes in the middle the night she wakes up and the room is spinning when she tries to get up to go to the bathroom. She has a treatment regime on her phone to assist her with these symptoms. She said the treatment regime she has been advised can give relief from this symptom for up to 6 months although the vertiginous symptoms inevitably recur. There was no current upper abdominal complaint.

   There is pain across the front of the chest which she notices particularly if she is lifting any objects such as shopping bags or attempting to reach up above shoulder level. When asked she said she was unsure whether this pain was due to her chest injuries or her right shoulder injury or a bit of both.

   Her right shoulder aches and if she rolls onto that side overnight she wakes. The right shoulder symptoms were localised over the right trapezius/right deltoid. She even notices exacerbation of the right shoulder pain if she brakes heavily in the car.

   There is right-sided neck pain extending to right trapezius, which is present most of the time, and of mild to severe intensity. There were no symptoms in the left shoulder.

   There were no other upper or lower limb problems.

   She does have some low back pain but she denied having any thoracic back pain. She attributed the low back pain to older age.

   When asked about her cognition (memory and thinking), she said she does not feel she has any issues although her husband feels that she is vague and her memory is not too good at times. The medical assessors noted that she provided a detailed history regarding history prior to the motor accident, motor accident itself and events occurring since this time

   She said she is still anxious when driving near to the site of the accident.

   IMAGING

   Mobile chest X-Ray performed 24 December 2017 reported as showing no fractures.

   CT scan brain performed 24 December 2017 reported as showing no acute changes.

   CT scan cervical spine 24 December 2017 reported as showing no relevant abnormalities.

   CT scan chest performed 24 December 2017 reported as showing fractured manubrium and left ribs 2-6.

   MRI scan cervical spine performed 26 May 2020 reported as showing mild right neural foraminal stenosis at C6/7. Mild left neural foraminal stenosis at C7/T1.

   MRI right shoulder performed 26 May 2020 reported as showing moderate degenerative arthrosis glenohumeral joint. Low grade partial thickness tear supraspinatus.

   MRI cervical spine performed 1 November 2022 reported as showing vertebral body heights were preserved. Marrow signal was normal. There is no evidence of oedema within the posterior paraspinal soft tissues to suggest posterior ligamentous injury. At the C3-4 level, there is a small broad-based posterior disc- osteophyte complex. There is resultant minimal narrowing of the right exit foramen. There was no associated contact of the exiting right C4 nerve.

   X-Ray thoracic spine performed 25 May 2020 reported as showing 25% wedge compression fracture of T6 and approximately 20% compression of T7.

   Chest X-Ray performed January 2018 was of poor quality, but the radiologist suspects similar compression of T6.

   Chest X-Ray performed November 2008 appears to show similar appearances of T6 and T7. The radiologist suspected the changes were long-standing.

   Chest X-Ray performed November 2008 reported as showing heart not enlarged and

   contour normal. Mild osteoarthritis mid-thoracic spine. No intra-thoracic abnormality

   Chest X-Ray performed 12 January 2018 reported as showing previous rib and manubrium fractures.

   Assessor Korber (1 May 2024) had reviewed chest x-rays - 21 November 2008 and 12 January 2018 and plain x-ray thoracic spine dated 25 May 2020.

   He noted “There is no doubt that the image generated on 25 May 2020 is a much clearer image than those in 2018 and 2008 and such clear measurements as were made in 2020 cannot be satisfactorily performed on the other two images. Whilst it is possible there may have been an injury to T6, I think on the balance of probabilities there has not been a fracture. The reasons for this is that T6 remains proportionately a similar size to T7 in all the three images in 2008, 2018 and 2020. If there had been a fracture of T6 in the 2018 imaging, I would have expected more consolidation.” And “On the balance of probabilities, I do not think there has been a fracture of either T6 or T7 in the thoracic spine and that the imaging in 2018 is comparable to the imaging in 2008.”

   PHYSICAL EXAMINATION

   Ms Keogh weighed 123.6kg and 163cm tall, BMI 46.5 (obese range). She said she was about 101kg prior to the accident. There was bilateral pes planus, but she had a normal gait.

   On examination of the neck, there was normal posture. She was tender around C6/7 centrally and over the right lateral neck. She was also tender over the right trapezius region. Flexion and extension two-thirds normal, rotation two-thirds normal, lateral flexion three-quarters normal. There was no asymmetry/dysmetria, muscle spasm or guarding.

   On examination of the upper limbs, there were normal power, sensation and reflexes bilaterally. Circumferential measurements of upper arms were 40cm bilaterally (10cm from the olecranon). The right forearm measured 31cm (10 cm below the olecranon) 30cm on the left.

   On examination of both shoulders, there was no wasting. There was tenderness over the right bicipital groove and right deltoid/right trapezius, with pain extending over the right biceps. Impingement testing was positive on the right. Shoulder movements were measured with a goniometer and were consistent on repetition. Active movements were as follows:

Shoulder Movements	ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	110 ° 5% UEI Fig 38 p43	150 ° 2% UEI Fig 38 p43
Extension	60 °	60 °
Internal Rotation	80 °	80 °
External Rotation	60 °	60 °
Abduction	100 ° 4% UEI Fig 41 p44 AMA4	170 °
Adduction	50 °	50 °

On examination of the back, there was no thoracic spine tenderness, but mild lower lumbar tenderness. She had a thoracic kyphosis and prominent lumbar lordosis. There was half-normal flexion and extension, half-normal lateral flexion and normal rotation bilaterally. There was no asymmetry/dysmetria, muscle spasm or guarding.  Straight leg raise was 70° bilaterally. Neural tension signs were negative.

On examination of the chest, there was tenderness over the upper sternum and also over the right-sided ribs anteriorly extending over the right humeral head.

On examination of the lower limbs, circumferential measurements of thighs (measured 10cm above the upper pole of patella) were 67cm, maximal girth of right calf was 42.5cm and left calf 43cm. Lower limb reflexes and power were symmetrical apart from the ankle reflex could not be elicited on the right side. There was normal lower limb sensation and lower limb neural tension tests were bilaterally negative.

IMPAIRMENT

Head - soft tissue injury

The soft tissue injury to the head has resolved.

The GCS recorded was normal (15/15), there were no traumatic abnormalities on brain imaging, there was score of 15/15 on AWPTAS at 0845, 17/18 at 0945 and then 18/18 at 1145. First contact was around 2300 the night before so at most PTA was nearly 13 hours duration and likely affected by administration of analgesia at the scene where she received Fentanyl. At most, she experienced a mild traumatic brain injury, the effects of which would have resolved by 3 months post MVA.

There is no objective evidence of ongoing effects of traumatic brain injury per the criteria set out in MAG para 6.164 page 114.
Cervical [Cervicothoracic] spine

There were complaints of pain or symptoms, but there were no clinical findings as detailed in Table 6.8, SIRA Motor Accident Guidelines. There was no radiculopathy or vertebral body compression or vertebral fracture. Therefore the cervical spine injury would be assessed at DRE Impairment Category I, thus zero percent permanent WPI.

Thoracic [Thoracolumbar] spine

There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. The panel had considered the imaging studies, and noted that whilst there was tenderness in the mid thoracic spine noted at the hospital, this was non-specific and the imaging was not in their opinion consistent with a traumatic fracture. They agreed with the reasons provided by Assessor Korber in his radiology report of 1 May 2024, that there had been no thoracic fractures arising as a consequence of the subject accident.

There were no clinical findings as detailed in Table 6.7, MAA Guidelines. Thus in reference to MAA Guidelines the thoracic spine injury would be assessed at DRE Impairment Category I, thus zero percent permanent WPI.

Right shoulder

Movements were measured. Total right upper extremity impairment (9%) was calculated with reference to Chapter 3, Fig 38, 41, 44, AMA 4.

The MAA Guidelines at s6.51 states that “If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury.”

Ms Keogh had no prior symptoms of injury to her left shoulder and no current symptoms, however left shoulder movements were reduced. Total WPI for the right upper extremity (4%) was calculated with reference to Chapter 3, Fig 38, 41, 44, AMA 4. Constitutional upper extremity impairment for baseline restriction of the uninjured left shoulder (2% UEI_was deducted from the 9% UEI of the right upper extremity in accordance with paragraphs 1.51 and 1.52 page 14 of the Permanent Impairment Guidelines whereby if the contralateral uninjured joint has less than average mobility the impairment values corresponding with the uninjured joint can serve as a baseline and subtracted from the calculated impairment for the injured joint only if there is reasonable expectation that the injured joint would have demonstrated similar findings but for the subject accident. When using 1.51 the total UEI for the injured joint must be subtracted from the total UEI of the uninjured joint and the resultant percentage UEI is then converted to WPI.

9%UEI – 2%UEI = 7%UEI, so 4%WPI. (Table 3, page 20 AMA4)

The Panel noted that Ms Keogh’s shoulder movements had improved since the examination of Assessor Fitzsimons of 8 August 2023, so over 18 months ago. It is reasonable to conclude that gradual improvement had occurred over this period. The Panel also notes there appears to have been improvement since the examination by Medical Assessor Anderson in March 2022 for the Workers Compensation Division of the Commission.

Chest – ribs and sternum

The fractures have healed and s6.23 of the MAA Guidelines state that “Certain injuries may not result in an assessable impairment covered by these Guidelines and the AMA4 Guides. For example, uncomplicated healed sternal and rib fractures do not result in any assessable impairment. Therefore, there is 0%WPI for the chest injuries.

Upper abdomen - soft tissue injury

The soft tissue injury to the upper abdomen has resolved.

The total whole person impairment arising from the subject accident is 4%WPI.”

FINDINGS

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[8] The Panel adopts the measurements and findings of Medical Assessor Gibson and Medical Assessor Lahz.

   [8] Section 7.26(6) of the Act

2. The Panel is not required to choose between competing medical opinions and is required to form its own opinion.[9]

   [9] Allianz Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31

3. The Medical Assessors have explained the basis for their assessments. The Medical Assessors respectfully disagree with the permanent assessment made by Medical Assessor Fitzsimons for the reasons stated. The Panel notes that the Medical Assessors’ findings are similar to those of Medical Assessor Cameron.

4. The medical assessment of permanent impairment is made at the time of the examination. In that respect, the previous assessments are outdated, and do not reflect the current symptomology found by the Medical Assessors upon their physical examination of the claimant.

5. Medical Assessor Fitzsimons found that BRAIN INJURY was not caused by the subject accident, but did not so certify. The Panel notes that brain injury was not referred to Medical Assessor Fitzsimons nor the Panel, for assessment.

6. The Panel notes that Medical Assessor Fitzsimons stated he considered the certificate of Medical Assessor Korber dated 1 May 2024, but makes no further reference of it, despite having requested Medical Assessor’s Korber’s opinion.

7. With the greatest respect to Medical Assessor Fitzsimons, the Panel accepts Medical Assessor Korber’s conclusion that, on the balance of probabilities, there has been no fracture of either T6 or T7, demonstrated by the most recent imaging.

8. The Medical Assessors conducted a head injury assessment. They concluded that, at most, the subject accident caused the claimant to suffer a mild brain injury, which has resolved. The Medical Assessors found no cognitive deficit and note the claimant’s opinion that there is nothing wrong with her brain.

9. The Medical Assessors note that the claimant suffered a blow to her head which caused her to lose the sense of smell. This is not inconsistent with absence of significant traumatic brain injury because the olfactory nerve has delicate, filamentous anatomy passing through the cribriform plate of the anterior skull, and very easily disrupted by blunt head trauma.

10. The Panel notes that the claimant informed the Medical Assessors, at the examination, that she did not know why her back was being referred for assessment.

CONCLUSION

1. For the above reasons, the Panel concludes the Certificate issued by Medical Assessor Fitzsimons on 10 July 2024 should be revoked. The new Certificate appears at the beginning of these reasons.